EXHIBIT 10.2
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COLLABORATION AGREEMENT
by and between:
ARRAY BIOPHARMA INC.,
a Delaware corporation; and
VERTEX PHARMACEUTICALS INCORPORATED,
a Massachusetts corporation.
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Dated as of August 1, 2001
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS.....................................................................................1
ARTICLE 2 RESEARCH COLLABORATION..........................................................................5
Section 2.1 Goal...................................................................................5
Section 2.2 Targets............................................................................... 5
Section 2.3 Research Plan..........................................................................6
Section 2.4 General Resources and Responsibilities.................................................6
Section 2.5 Research Collaboration Staffing........................................................7
Section 2.6 Research Term..........................................................................8
Section 2.7 Third Party Licenses...................................................................8
Section 2.8 Record Maintenance.....................................................................8
Section 2.9 Exclusivity............................................................................8
Section 2.10 Access to Diversity Library Compounds..................................................9
Section 2.11 Delivery...............................................................................9
ARTICLE 3 MANAGEMENT.....................................................................................10
Section 3.1 Joint Research Committee..............................................................10
Section 3.2 Membership............................................................................10
Section 3.3 Meetings..............................................................................10
Section 3.4 Minutes...............................................................................10
Section 3.5 Decision Making.......................................................................11
Section 3.6 Program Managers......................................................................11
Section 3.7 Records and Reporting.................................................................11
ARTICLE 4 LICENSES.......................................................................................12
Section 4.1 Exclusive License under Collaboration Technology......................................12
Section 4.2 Exclusive License under Joint Technology..............................................12
Section 4.3 Non-Exclusive License under Array Technology..........................................12
Section 4.4 Research Use License..................................................................13
Section 4.5 License to Vertex for Diversity Library Compounds.....................................13
Section 4.6 No Implied Licenses...................................................................13
Section 4.7 No Products Other than Products.......................................................13
Section 4.8 Development and Commercialization.....................................................13
ARTICLE 5 PAYMENTS.......................................................................................14
Section 5.1 Initial Payment.......................................................................14
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Section 5.2 Research Collaboration Funding........................................................14
Section 5.3 Milestones............................................................................15
ARTICLE 6 PAYMENT METHOD; BOOKS AND RECORDS..............................................................16
Section 6.1 Payment Methods.......................................................................16
Section 6.2 Records; Inspection...................................................................16
ARTICLE 7 DUE DILIGENCE..................................................................................17
Section 7.1 Due Diligence.........................................................................17
ARTICLE 8 INTELLECTUAL PROPERTY..........................................................................17
Section 8.1 Ownership of Inventions; Disclosure...................................................17
Section 8.2 Patent Prosecution....................................................................17
Section 8.3 Cooperation...........................................................................18
Section 8.4 Infringement Defense..................................................................18
ARTICLE 9 CONFIDENTIALITY AND NON-USE....................................................................19
Section 9.1 Confidential Information..............................................................19
Section 9.2 Non-Use Obligations...................................................................20
Section 9.3 Permitted Use and Disclosures.........................................................20
Section 9.4 Termination of Prior Agreement........................................................20
Section 9.5 Nondisclosure of Terms................................................................21
Section 9.6 Publication...........................................................................21
ARTICLE 10 REPRESENTATIONS AND WARRANTIES.................................................................22
Section 10.1 Vertex................................................................................22
Section 10.2 Array.................................................................................22
Section 10.3 Disclaimer............................................................................22
ARTICLE 11 INDEMNIFICATION................................................................................23
Section 11.1 Vertex................................................................................23
Section 11.2 Array.................................................................................23
Section 11.3 Indemnification Procedures............................................................23
ARTICLE 12 TERM AND TERMINATION...........................................................................24
Section 12.1 Term..................................................................................24
Section 12.2 Termination for Breach................................................................24
Section 12.3 Termination for Insolvency............................................................24
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Section 12.4 Early Termination of Research Collaboration by Vertex.................................24
Section 12.5 Termination Upon Acquisition..........................................................25
Section 12.6 Effect of Breach or Termination.......................................................25
Section 12.7 Survival..............................................................................25
ARTICLE 13 MISCELLANEOUS..................................................................................26
Section 13.1 Governing Laws........................................................................26
Section 13.2 Waiver................................................................................26
Section 13.3 Assignment............................................................................26
Section 13.4 Independent Contractors...............................................................26
Section 13.5 Compliance with Laws..................................................................26
Section 13.6 Notices...............................................................................27
Section 13.7 Severability..........................................................................27
Section 13.8 Advice of Counsel.....................................................................28
Section 13.9 Performance Warranty..................................................................28
Section 13.10 Force Majeure.........................................................................28
Section 13.11 Complete Agreement....................................................................28
Section 13.12 Consultation..........................................................................28
Section 13.13 Headings..............................................................................28
Section 13.14 Counterparts..........................................................................28
EXHIBIT A RESEARCH PLAN
EXHIBIT b DIVERSITY LIBRARY COMPOUND SPECIFICATIONS
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COLLABORATION AGREEMENT
This COLLABORATION AGREEMENT (the "Agreement"), effective as of August 1, 2001
(the "Effective Date"), is made by and between Array BioPharma Inc., a Delaware
corporation, having a principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Array"), and Vertex Pharmaceuticals Incorporated, a
Massachusetts corporation, having a principal place of business at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Vertex").
BACKGROUND
A. Array has developed novel and proprietary methods for the generation
of Compounds, has synthesized a Diversity Library (as defined below) and has
skills, expertise and experience in identification, generation, selection and
optimization of lead compounds to produce clinical candidates from drug
discovery programs.
B. Vertex is a pharmaceutical company involved in the research,
development, manufacture and sale of new and useful pharmaceutical products, and
has identified biological models and assays that have the potential to be used
as the basis for drug discovery programs for specific Targets (as defined
below).
C. Vertex and Array desire to collaborate to identify Compounds with
activity against the Targets, with the goal of delivering Compounds with desired
activity and selectivity.
NOW, THEREFORE, for and in consideration of the covenants, conditions
and undertakings hereinafter set forth, it is agreed by and between the Parties
as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms will have the meanings set forth
below:
1.1 "Affiliate" shall mean any corporation or other entity which is
directly or indirectly controlling, controlled by or under common control of a
Party hereto for so long as such control exists. For the purposes of this
Section 1.1, "control" shall mean the direct or indirect ownership of at least
fifty percent (50%) of the outstanding shares or other voting rights of the
subject entity having the power to vote on or direct the affairs of the entity,
or if not meeting the preceding, the maximum voting right that may be held by
the particular Party under the laws of the country where such entity exists.
1.2 "Array Technology" shall mean Array Patent Rights, Diversity
Library Compounds, and all other technology including, but not limited to, trade
secrets, know-how, inventions,
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information (including structure-activity data) and materials, whether
patentable or not, directed to processes, formulations and/or methods
discovered, developed, owned, licensed or acquired by Array in the Field prior
to the commencement date of the Research Collaboration. Notwithstanding the
foregoing, it is understood that Array Technology shall not include any patent
or other rights to high-speed synthesis technology, methods or compound
libraries. For the avoidance of doubt, it is intended that Array Technology
shall exclude Vertex Technology, Collaboration Technology and Joint Technology.
1.2.1 "Array Patent Rights" shall mean (i) all patents and patent
applications that claim a Diversity Library Compound, or method of use or
process for the synthesis thereof or composition-of-matter containing such
Diversity Library Compound, for which the earliest effective filing date is
prior to the Effective Date, and (ii) any divisions, continuations,
continuations-in-part, reissues, reexaminations, or extensions to the extent the
same have an earliest effective filing date prior to the date described in (i)
above, and any substitutions, confirmations, or registrations of any of the
foregoing, in each case, which is owned by Array (solely or jointly), to the
extent Array has the right to license or sublicense the same.
1.3 "Array Researchers" shall have the meaning set forth in Section 2.5
below.
1.4 "Diversity Library Compound Information" shall have the meaning set
forth in Section 2.11.1 below.
1.5 "Chemical Class" shall mean those chemical entities [***].
1.6 "Collaboration Technology" shall mean all technology including, but
not limited to, trade secrets, know-how, inventions, information (including
structure-activity data) and materials (excluding Compounds), whether patentable
or not, directed to processes, formulations and/or methods a) discovered,
developed, owned, licensed or acquired by Array (whether or not with funding
support by Vertex) arising out of or in connection with the conduct of the
Research Collaboration; or (b) discovered, developed, owned, licensed or
acquired by Array Researcher(s) funded by Vertex in the course of performing
activities under the Research Plan. For the avoidance of doubt, it is intended
that Collaboration Technology shall exclude Vertex Technology, Array Technology
and Joint Technology.
1.7 "Compound" shall mean any chemical entity synthesized by Array and
disclosed to Vertex in the course of performing or in connection with the
Research Collaboration that is identified as having that level of activity
against a Target in the applicable assay as set forth in the Research Plan. For
the purposes hereof, a prodrug shall also constitute a "Compound", provided that
the active component of such prodrug has the level of activity specified in the
Research Plan. Notwithstanding the foregoing, it is understood and agreed that
no Diversity Library Compound shall be deemed a Compound. The Parties agree that
the Research Plan shall specify an enzymatic inhibition activity level no
greater than [***].
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1.8 "Consumer Price Index" or "CPI" means the Consumer Price Index, All
Urban Consumers, as published by the U.S. Bureau of Labor Statistics.
1.9 "Diversity Library" shall mean the collection of chemical entities
that Array makes available on a non-exclusive basis to Third Parties contained
within 96-well plates. The Diversity Library shall contain between [***] and
[***] chemical entities.
1.10 "Diversity Library Compound" shall mean any chemical entity that
is contained in the Diversity Library.
1.11 "Field" shall mean the discovery, development and
commercialization of small molecules for the therapeutic or prophylactic
treatment of diseases and conditions in humans, wherein the mechanism of action
of such small molecules is to modulate the activity of a Target.
1.12 "First Commercial Sale" shall mean, with respect to each Product,
the first bona fide FDA-approved commercial sale of such Product in the United
States by or under authority of Vertex, its Affiliates or Licensees.
1.13 "FTE" shall mean a full-time person dedicated to the Research
Collaboration, or in the case of less than a full-time, dedicated person, a
full-time, equivalent person year, based upon a total of [***] hours per year of
work in connection with the Research Collaboration.
1.14 "Inactive Chemical Entity" shall mean a chemical entity, (other
than a Compound, or a chemical entity in the Chemical Class, or a Diversity
Library Compound) synthesized and screened by Array in the course of performing,
or in connection with, the Research Collaboration.
1.15 "JRC" or "Joint Research Committee" shall have the meaning set
forth in Section 3.1.
1.16 "Joint Technology" shall mean all technology including, but not
limited to, trade secrets, know-how, inventions, information (including
structure-activity data) and materials (excluding Compounds), whether patentable
or not, directed to products, processes, formulations and/or methods that are
developed by Array using Vertex Technology or are discovered, developed,
licensed or acquired jointly by Array and Vertex in performance of the Research
Collaboration or thereafter until termination of the Agreement. For the
avoidance of doubt, it is intended that Joint Technology shall exclude Vertex
Technology, Array Technology and Collaboration Technology.
1.17 "Licensed Technology" shall mean, collectively, Collaboration
Technology, Joint Technology, and Array Technology licensed to Vertex under this
Agreement.
1.18 "Licensee" shall mean, with respect to a particular Product, a
Third Party to whom Vertex has granted a license or other right under the
Licensed Technology to make and sell such Product. As used in this Agreement,
"Licensee" shall also include a Third Party to whom Vertex has granted the right
to distribute such Product, provided that such Third Party has responsibility
for
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marketing and promotion of such Product within the field or territory for
which such distribution rights are granted.
1.19 "NDA" shall mean a New Drug Application, as defined in the U.S.
Food, Drug and Cosmetic Act and the regulations promulgated thereunder, or any
corresponding foreign application, registration or certification.
1.20 "Net Sales" shall mean the gross invoice price by Vertex or its
Affiliates or Licensees, as the case may be, for all Products sold by Vertex,
its Affiliates or Licensees ("Selling Party"), under this Agreement in arm's
length sales to Third Parties less deductions allowed to the Third Party
customer by the Selling Party on such sales for: (a) trade, quantity, and cash
discounts; (b) credits, rebates (including those to managed-care entities and
government agencies), and allowances or credits to customers on account of
rejection or returns (including, but not limited to, wholesaler and retailer
returns) or on account of retroactive price reductions affecting such Product;
(c) freight, postage and duties; and (d) sales and excise taxes, other
consumption taxes, customs duties and compulsory payments to governmental
authorities and any other governmental charges imposed upon the sale of such
Product to Third Parties. In addition, the Selling Party may exclude from Net
Sales a reasonable provision for uncollectible accounts, to the extent such
reserve is determined in accordance with generally accepted accounting
standards, consistently applied across all product lines of the particular
Party, until such amounts are actually collected. Notwithstanding the foregoing,
Net Sales shall not include sales among Vertex, its Affiliates and Licensees for
resale, provided that such resale shall be included within Net Sales.
1.21 "Party" or "Parties" shall mean, respectively, Array or Vertex
individually, or Array and Vertex collectively.
1.22 "Phase IIb" shall have the meaning attributed to such term in 21
CFR 312.21.
1.23 "Phase III" shall mean human clinical trials, the principal
purpose of which is to establish safety and efficacy of one or more particular
doses in patients being studied, and which will (or are intended to) satisfy the
requirements of a pivotal trial for purposes of obtaining approval of a Product
in a country by the health regulatory authority in such country to market such
Product for an application in the Field, and more specifically, shall have the
meaning attributed to such term in 21 CFR 312.21.
1.24 "Product" shall mean any diagnostic, therapeutic or prophylactic
product for use in the Field, incorporating as an active ingredient at least one
of the following (i) a Compound, or (ii) a chemical entity in the same Chemical
Class as a Compound. For the avoidance of doubt, a Product will be considered a
single Product and not a separate Product, even if multiple marketing approvals
are or would be required by the FDA (or the relevant competent authority), if
the multiple marketing approvals are solely due to changes to or variations of
(a) the inactive ingredient(s) and/or concentration of the active ingredient(s),
(b) the method of delivery (e.g., tabular versus injectable forms, modified
dosage forms, treatment modalities), and/or (c) prodrug moieties.
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1.25 "Research Collaboration" shall mean the research activities
undertaken by the Parties pursuant to this Agreement.
1.26 "Research Plan" shall mean the written research plan, adopted by
the Parties promptly after the Effective Date, governing the joint effort of the
Parties in conducting the Research Collaboration in the Field. The Research Plan
may be amended from time to time by the Joint Research Committee as it deems
necessary or appropriate and shall specify the Array personnel to conduct
activities with respect to the Research Collaboration, such personnel to be
proposed by Array. The initial Research Plan shall be attached hereto as
Exhibit A.
1.27 "Research Term" shall mean the term of the Research Collaboration,
as provided in Section 2.6 below.
1.28 "Research Year" shall mean a twelve (12) month period during the
term of the Research Collaboration. The first Research Year hereunder shall be
deemed to have commenced on the Effective Date.
1.29 "Target(s)" and "Substitute Targets" shall mean those molecular
targets which the parties agree are the subject of the Research Collaboration
pursuant to Section 2.2 below.
1.30 "Third Party" shall mean any person or entity other than Array and
Vertex, and their respective Affiliates.
1.31 "Vertex Technology" shall mean all technology including, but not
limited to, trade secrets, know-how, inventions and information (including test
data, protocols and screening methodology), and materials, whether patentable or
not, directed to products, processes, formulations and/or methods that Vertex
discovers, develops, identifies, licenses or acquires independently of Array
(i.e., without the use of the Confidential Information of Array), and Compounds,
pharmaceutical compositions containing a Compound, chemical entities in a
Chemical Class, or the use of a Compound or a composition containing a Compound
for therapeutic purposes. For the avoidance of doubt, it is intended that Vertex
Technology shall exclude Array Technology, Collaboration Technology and Joint
Technology.
ARTICLE 2
RESEARCH COLLABORATION
2.1 Goal. The goal of the Research Collaboration is to identify
Compounds that will serve as lead classes against the Targets.
2.2 Targets.
2.2.1 General. The Research Collaboration shall be focused on
identifying chemical entities that have activity against the following two (2)
phosphatase Targets: [***].
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2.2.2 Abandonment and Substitution of Targets. The JRC may decide
to discontinue research activities with respect to one or more Targets (each a
"De-Selected Target"). In such event, any Compound directed to a De-Selected
Target and any chemical entity in the same Chemical Class as such Compound
directed to a De-Selected Target shall remain subject to this Agreement;
provided, however, that if during the Research Term research activities are
discontinued with respect to a particular De-Selected Target because Vertex
elects to cease all research and development activities with respect to such
De-Selected Target (an "Abandoned Target"), then (i) Vertex shall so notify
Array in writing, and (ii) Arrays' obligations under Section 2.9 below with
respect to such Abandoned Target shall terminate [***] after the effective date
of the written notice to discontinue research activities with respect to such
Abandoned Target. No chemical entity synthesized by Array directed to such
De-Selected Target after the effective date of the written notice to discontinue
research activities with respect to such De-Selected Target shall be deemed to
be a Compound or Inactive Chemical Entity under this Agreement. In the event
that research activities are discontinued with respect to any De-Selected Target
pursuant to this Section 2.2.2, then Vertex may substitute, upon consultation
with the JRC and mutual agreement of the Parties, such agreement not to be
unreasonably withheld or delayed, another target in its place as a Target for
purposes of this Agreement (a "Substitute Target"). The Substitute Target(s) may
be a phosphatase Target, or a Target outside the phosphatase class of enzymes.
Such Substitute Target(s) shall be deemed to be a Target for the purposes of
this Agreement upon the consent of Array. Array shall not be obligated to
substitute more than two (2) such Substitute Targets during the Research Term,
except as the parties may otherwise agree in writing.
2.2.3 Additional Targets. Upon request of Vertex and subject to the
consent of Array, such consent not to be unreasonably withheld, the Research
Collaboration may be expanded to include additional Targets in excess of the
number set forth in Section 2.2.1.
2.3 Research Plan. The Research Collaboration shall be carried out in
accordance with a mutually agreed upon written Research Plan attached hereto as
Exhibit A which shall establish specific research objectives and the research
tasks to be performed and resources to be provided by Array. The Research Plan
shall, among other things, establish: (i) the scope of the research activities
which will be performed; (ii) the research objectives and work plan activities;
(iii) specific screening assays for identifying and testing the activity of
chemical entities against each Target; and (iv) the criteria for determining
when a chemical entity shall be deemed a Compound. The JRC shall review the
Research Plan on an ongoing basis and may make changes thereto as the JRC
approves.
2.4 General Resources and Responsibilities.
2.4.1 Array Responsibilities. During the Research Term, Array shall
make the following resources available in connection with the Research
Collaboration activities to be performed by Array, as specified in the Research
Plan:
(a) Screening of compounds against Targets;
(b) Initial drug discovery, including lead generation and lead
optimization;
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(c) in vitro and ex vivo metabolite profiling;
(d) Medicinal and combinatorial chemistry; and
(e) All materials, equipment and facilities used for the
preparation and testing of Compounds, and the handling and
disposal of any waste material generated by Array during the
performance of the Research Collaboration. Array covenants
that the materials, equipment and facilities to be used by
Array under this Agreement shall be of the same quality as
Array in its experience and best scientific judgment uses in
its own research of similar nature.
In performing its obligations under the Research Collaboration,
Array shall use such of its available Diversity Library Compounds as Array
reasonably deems necessary or useful for lead generation. During the Research
Term, Array shall provide to Vertex such Array Technology as may be reasonably
necessary for Vertex to carry out research activities in furtherance of the
Research Collaboration.
During the term of the Research Collaboration and thereafter until
termination of the Agreement, Array agrees that, as reasonably requested by
Vertex, at Vertex's expense, appropriate individuals shall be available to
assist and consult with Vertex in connection with the Licensed Technology. Such
assistance and consultation by Array may be by means of personal visits,
correspondence or telephone discussions.
2.4.2 Vertex Responsibilities. During the Research Term, Vertex
shall have the right, but not the obligation, to carry out research activities
with respect to the Targets that Vertex deems advisable, in its sole discretion,
to promote the objectives of this Agreement. During the Research Term, Vertex
shall provide to Array such Vertex Technology as may be reasonably necessary for
Array to carry out research activities in furtherance of the Research
Collaboration.
2.5 Research Collaboration Staffing. Subject to Vertex funding the
Research Collaboration pursuant to Section 5.2 Array shall devote the following
number of FTEs to the conduct of the Research Collaboration by or during the
following periods:
Period Array
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End of first three months [***] FTEs
End of first six months [***] FTEs
End of first twelve months through [***] FTEs
the end of the Research Term
The Array research staff conducting the Research Collaboration (the
"Array Researchers") shall include a dedicated team leader [***]. At least [***]
of the Array Researchers will [***] and Vertex shall have the right to review
the qualifications of all Array Researchers.
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Array shall employ an optimal combination of experience and training in the
Field in selecting members for the Array Researchers. Vertex and Array
acknowledge the importance of having personnel devoted full-time to work in the
Research Collaboration; accordingly, in order to maximize the effective conduct
of the Research Collaboration, Array will use reasonable best efforts to
maximize the continuity of Array Researchers conducting the Research
Collaboration, and in all events shall immediately report to Vertex any changes
in Array Researchers personnel. Additionally, each Array Researcher who is
engaged in chemistry shall, at minimum, work as [***] FTE under the Research
Collaboration.
2.6 Research Term. The Research Term shall commence on the Effective
Date and shall end upon the earlier to occur of (i) the [***] of the Effective
Date, or (ii) the termination of this Agreement.
2.7 Third Party Licenses. In the event that the Parties agree to
acquire additional technologies from a Third Party specifically for use in the
conduct of the Research Collaboration in the Field, Vertex will be responsible
for the payment of any amounts due to the Third Party for the license of
intellectual property which directly applies to any Target, and the costs of
negotiating, preparing and executing any such license.
2.8 Record Maintenance. Array shall maintain records of the Research
Collaboration (or cause such records to be maintained) in sufficient detail and
in good scientific manner as will properly reflect all work done and results
achieved in the performance of the Research Collaboration (including all data in
the form required under any applicable governmental regulations and as directed
by the JRC). Such records will be dated and witnessed and otherwise suitable for
patent purposes in accordance with generally acceptable industry standards of
all work performed and data developed for or on Vertex's behalf during the
Research Collaboration.
2.9 Exclusivity. Except as set forth herein, during the period set
forth in this Section 2.9, Array shall not knowingly conduct, participate in, or
fund, directly or indirectly, alone or with a Third Party, discovery research
specifically directed to the Field (the "Exclusivity Period"). Except as set
forth in Section 2.2.2 above, Array's obligations under this Section 2.9 shall
commence on the Effective Date and shall continue until (i) the [***] of the end
of the Research Term, or (ii) with respect to Targets for which Vertex is
developing a Product, for so long as Vertex is pursuing diligent research and/or
development of such a Product, but in no event later than the [***] of the end
of the Research Term. Notwithstanding the above, in the event of a Change of
Control of Array, the provisions of this Section 2.9 shall not apply to the
surviving entity. For purposes of this Section 2.9, a "Change of Control" shall
mean the merger, consolidation, sale of substantially all of its assets or
similar transaction or series of transactions, as a result of which Array's
shareholders before such transaction or series of transactions own less than
fifty percent (50%) of the total number of voting securities of the surviving
entity immediately after such transaction or series of transactions.
Notwithstanding the foregoing, if as a result of any such Change of Control,
Array exists as a wholly owned subsidiary of a parent, then the provisions of
this Section 2.9 shall continue to apply to Array, but not to such parent.
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2.10 Access to Diversity Library Compounds. On or before the first
anniversary of the Effective Date, Vertex shall have the right to select up to
[***] of the Diversity Library Compounds existing as of the first anniversary of
the Effective Date (the "Available Diversity Library Compounds") on a plate by
plate basis. Within thirty (30) days after the Effective Date, Array shall
provide Vertex with a complete list of available Diversity Library Compounds and
their chemical structures. Thereafter, prior to the first anniversary of the
Effective Date, updates of the list of the available Diversity Library Compounds
shall be provided to Vertex on a quarterly basis, and Vertex shall advise Array
of its selection(s) of available chemical entities within thirty (30) days of
receipt of each such update. Upon receipt of written notice of Vertex's
selection, Array shall deliver such Diversity Library Compounds to Vertex in
accordance with this Section 2.10. Based upon the availability of such Diversity
Library Compounds, Array shall deliver to Vertex a [***] of each Diversity
Library Compound, and each Diversity Library Compound shall conform to the
specifications set forth in Exhibit B. In the event Array is unable to deliver
the full [***] of the Available Diversity Library Compounds due to the failure
of such Diversity Library Compounds to conform to the specifications set forth
in Exhibit B, Vertex shall have the option to select additional Diversity
Library Compounds during the term of this Agreement, so that the total number of
Diversity Library Compounds delivered by Array to Vertex equal [***] of the
Available Diversity Library Compounds. Vertex shall have the right to obtain
from Array additional amounts of the selected Diversity Library Compounds, upon
commercially reasonable terms.
2.11 Delivery.
2.11.1 Diversity Library. Array shall use good faith efforts to
deliver the Diversity Library Compounds in accordance with a schedule mutually
agreed upon by the Parties. The Diversity Library Compounds shall be delivered
F.O.B. Vertex's facility at the address set forth above (or such other address
as Vertex may specify in writing prior to the shipping date). The carrier shall
be paid by Vertex, and shall be selected by agreement between Array and Vertex,
provided that in the event no such agreement is reached Array shall select the
carrier. Together with each Diversity Library Compound delivered hereunder,
Array shall make available to Vertex the following information for the Diversity
Library Compounds: [***] (collectively, the "Diversity Library Compound
Information").
2.11.2 Compounds and Inactive Chemical Entities. Array shall
transfer to Vertex (or a Third Party designated by Vertex) all Compounds and
Inactive Chemical Entities, in the amount and purity set forth in this Section
2.11.2, in the Research Plan or as otherwise agreed upon by the Parties.
Together with each Compound and Inactive Chemical Entity, Array shall provide to
Vertex corresponding information relating to its preparation, analytical
properties and biological activity. Vertex shall have clear title to the
physical samples of Compounds and Inactive Chemical Entities it receives, and
except as otherwise provided in this Agreement, Vertex shall be free to use the
Compounds without further obligation to Array. Array shall deliver to Vertex a
minimum of [***] mg of each Compound, and a minimum of [***] mg of each Inactive
Chemical Entities which shall conform to the specifications set forth in the
Research Plan.
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Array shall use its best efforts to ensure that the Compounds
delivered hereunder have a purity of at least [***] by LCMS, and that the
Inactive Chemical Entities delivered hereunder have a purity level as determined
by the JRC, but in no event shall the purity level of the Inactive Chemical
Entities be less than [***] by LCMS. Array shall use commercially reasonable
efforts to deliver the Compounds and Inactive Chemical Entities promptly after
they are screened, but in any event not less than on a quarterly basis, or in
accordance with a schedule mutually agreed upon by the Parties. The Compounds
and Inactive Chemical Entities shall be delivered F.O.B. Vertex's facility at
the address set forth above (or such other address as Vertex may specify in
writing prior to the shipping date). The carrier shall be paid by Vertex, and
shall be selected by agreement between Array and Vertex, provided that in the
event no such agreement is reached Array shall select the carrier. Upon
termination or expiration of the Research Collaboration, Array shall deliver to
Vertex any unused Compounds synthesized by Array during the term of the Research
Collaboration.
ARTICLE 3
MANAGEMENT
3.1 Joint Research Committee. As soon as practicable after the
Effective Date, Vertex and Array will establish a committee (the "Joint Research
Committee" or "JRC") to oversee, review and recommend direction of the Research
Collaboration. The responsibilities of the Joint Research Committee shall
include, among other things: (i) monitoring and reporting research progress and
ensuring open and frequent exchange between the Parties regarding Research
Collaboration activities; (ii) coordination of all discovery and optimization
programs under the Research Collaboration; and (iii) amending as necessary the
criteria for the selection of Compounds for each Target.
3.2 Membership. The JRC shall include two (2) representatives of each
of Vertex and Array, each Party's members selected by that Party. Array and
Vertex may each replace its JRC representatives at any time, upon written notice
to the other Party. From time to time, the JRC may establish subcommittees, to
oversee particular projects or activities, and such subcommittees will be
constituted as the JRC agrees.
3.3 Meetings. During the Research Term, the JRC shall meet at least
quarterly, or as agreed by the Parties, at such locations as the Parties agree,
and will otherwise communicate regularly by telephone, electronic mail,
facsimile and/or video conference. With the consent of the Parties, other
representatives of Array or Vertex may attend JRC meetings as nonvoting
observers. Each Party shall be responsible for all of its own expenses
associated with attendance of such meetings. The first meeting of the JRC shall
occur within forty-five (45) days after the Effective Date.
3.4 Minutes. The JRC and/or a designated clerk shall keep accurate
minutes of its deliberations which shall record all proposed decisions and all
actions recommended or taken. The Secretary of the JRC (as appointed by the
members of the JRC) and/or a designated clerk shall be responsible for the
preparation of draft minutes. Draft minutes shall be sent to all members of the
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JRC after each meeting and shall be approved, if appropriate, at the next
meeting. All records of the JRC shall at all times be available to both Array
and Vertex.
3.5 Decision Making. Decisions of the JRC shall be made by unanimous
agreement. In the event that unanimity is not achieved within the JRC, the
matter will be referred to Array's Chief Scientific Officer and Vertex's Vice
President of Research, U.S., who shall promptly meet and endeavor in good faith
to resolve such matter in a timely manner. If such individuals cannot resolve
such dispute, then, other than with respect to [***]; provided, however, that
notwithstanding the foregoing, Array shall not be obligated, as a result of
[***], to violate any obligation or agreement it may have with any Third Party.
3.6 Program Managers. Array shall appoint [***] as the Array Program
Manager and Vertex shall appoint [***] as the Vertex Program Manager. Each
Program Manager shall be the principal point of contact between the Parties.
Each Party may change its Program Manager by giving [***] days' written notice
to the other Party.
3.7 Records and Reporting.
3.7.1 Array shall keep Vertex fully informed of the progress of the
Research Collaboration by providing summary reports ("Summary Reports") to the
Vertex Program Manager and the JRC from time to time, but no less frequently
than on a quarterly basis. Each Summary Report shall include at least the
following: (i) [***] conducting the Research Collaboration, (ii) an [***] to the
Research Collaboration, (iii) a description in reasonable detail of the
activities, including the work conducted and data generated by Array Researchers
in support of the Research Collaboration and (iv) a description in reasonable
detail of all Licensed Technology generated by Array, specifically including,
but not limited to, Compound(s), Inactive Chemical Entities, all assay data
generated with any such Compound(s), methods and processes for the preparation
of any such Compound(s), synthetic intermediates thereof, and methods and
processes for the preparation of synthetic intermediates and raw materials
useful in the preparation of any such Compound(s).
3.7.2 Array shall ensure that its key personnel involved with the
Research Collaboration and the Array Program Manager are reasonably available
for telephone and face-to-face discussions with Vertex's personnel as may be
agreed upon by the Parties. Additionally, the Array Program Manager shall be
reasonably available for bi-weekly conference calls with the Vertex Program
Manager or other duly authorized representative of Vertex to discuss the
Research Plan and to report the activities, including the work conducted and
data generated by Array Researchers in support of the Research Collaboration.
The Array Program Manager (or the Array Program Manager's authorized appointee)
shall be responsible for, and keep, accurate records of the bi-weekly conference
calls which shall record all recommended material decisions and material
actions. All records of the bi-weekly conference calls shall at all times be
available to both Array and Vertex. Except as otherwise provided in Section 3.3
and in this Section 3.7.2, if Vertex requests Array personnel to attend any
further meetings other than those on Array premises, Array shall be reimbursed
for reasonable travel expenses incurred by Array personnel attending such
meetings.
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3.7.3 Upon completion of the Research Collaboration, Array shall
provide Vertex with [***] technical information and supporting documentation
generated in the course of the Research Collaboration and necessary for the
manufacturing process and development of the Compound(s) and Inactive Chemical
Entities in sufficient detail to allow Vertex to reproduce such process. Array
shall promptly provide Vertex with copies of all technical information, data,
records and supporting documentation reasonably requested by Vertex relating to
the Research Collaboration, subject to the provisions of Article 9, including
without limitation Compound information such as analytical and structure
determination information, purity and physical characteristics at the same time
as the Compounds and Inactive Chemical Entities are provided to Vertex.
ARTICLE 4
LICENSES
4.1 Exclusive License under Collaboration Technology. Array hereby
grants to Vertex a royalty-free, exclusive world-wide license, with the right to
sublicense under Collaboration Technology to make, have made, use, sell, lease,
offer to sell or lease, import, export or otherwise transfer physical possession
of or title in the Compound(s) and/or Product(s).
4.2 Exclusive License under Joint Technology. Array hereby grants to
Vertex a royalty-free, exclusive world-wide license, with the right to
sublicense under its rights to the Joint Technology to make, have made, use,
sell, lease, offer to sell or lease, import, export or otherwise transfer
physical possession of or title in the Compound(s) and/or Product(s).
4.3 Non-Exclusive License under Array Technology.
4.3.1 Array hereby grants to Vertex a royalty-free, non-exclusive
world-wide license, with the right to sublicense, under Array Technology, solely
to make, have made, use, sell, lease, offer to sell or lease, import, export or
otherwise transfer physical possession of or title in (i) Product(s) in the
Field, and (ii) Compound(s) inside the Field or outside the Field. The license
granted under this Section 4.3.1 shall include the right to grant sublicenses to
Vertex's collaborators.
4.3.2 Array hereby grants to Vertex a royalty-free, non-exclusive
world-wide license, under Array Improvements, solely to make, have made, use,
sell, lease, offer to sell or lease, import, export or otherwise transfer
physical possession of or title in Compounds [***] as a Compound in the Field.
The license granted under this Section 4.3.2 shall include the right to grant
sublicenses to Vertex's collaborators, and shall be subject to any pre-existing
licenses granted to any Third Party by Array. For the purposes of this Section
4.3.2, "Array Improvements" shall mean any improvements made to the Licensed
Technology after expiration of the Research Term.
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4.4 Research Use Licenses. Array hereby grants to Vertex a perpetual,
compensation-free, non-exclusive license, without the right to sublicense, under
Licensed Technology to make, have made and use Compounds to make, have made and
use any Inactive Chemical Entity for Vertex's own internal research purposes (on
its own or through a Third Party on behalf, or under the authority, of Vertex).
4.5 License to Vertex for Diversity Library Compounds. Array hereby
grants to Vertex a non-exclusive right and license, under the applicable
Licensed Technology, to make, have made and use the Diversity Library Compounds
physically transferred pursuant to Section 2.10, and corresponding Diversity
Library Compound Information for its own internal research purposes. The license
granted under this Section 4.5 shall not include the right to grant or authorize
sublicense.
4.6 No Implied Licenses. Only the licenses granted pursuant to the
express terms of this Agreement shall be of any legal force or effect. No other
license or rights, including without limitation any license or right to Array
Technology or Vertex Technology, shall be created by implication, estoppel or
otherwise.
4.7 No Products Other than Products. Except as otherwise agreed in
writing or specifically provided in the terms of this Agreement, neither Vertex
nor its Affiliates nor Licensees shall, directly or indirectly commercialize for
use in the Field any [***], other than as a Product in accordance with this
Agreement.
4.8 Development and Commercialization.
4.8.1 Post Research Collaboration Activities; Product Development.
Vertex shall have sole and full control, authority, discretion and
responsibility for conducting, funding and pursuing all aspects of clinical
development, regulatory, manufacturing and commercialization of Compounds in the
Field, either on its own, through a sublicensee or through a Third Party on
behalf of or under the authority of Vertex or its sublicensee. Notwithstanding
anything to the contrary in this Agreement, Array shall have no rights and will
have no involvement with respect to any such clinical development, regulatory,
manufacturing and commercialization. In exercising such rights, Vertex shall
have the exclusive right, and may select in its sole discretion trademarks for
such Products, and Vertex shall own all right, title or interest in such
trademarks (subject to any pre-existing rights of Array or Third Parties).
4.8.2 Regulatory Filings and Governmental Approvals. Vertex shall
have sole and full control, authority, discretion and responsibility to prepare,
file and own all right, title and interest in regulatory filings and
governmental approvals relating to the Compounds, either on its own, through a
sublicensee or by a Third Party on behalf of or under the authority of Vertex or
its sublicensee. Notwithstanding anything to the contrary in this Agreement,
Array shall have no rights with respect to the preparation, filing and ownership
of any such regulatory filings and governmental approvals, but will, upon
Vertex's reasonable request, assist Vertex in the preparation of such regulatory
filings (at Vertex's expense).
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ARTICLE 5
PAYMENTS
5.1 Initial Payment. Vertex shall pay to Array an initial fee [***]
U.S. dollars [***] within [***] days after the Effective Date and upon receipt
of invoice by Vertex, which amount shall be non-refundable and non-creditable
against any other amounts due Array under this Agreement.
5.2 Research Collaboration Funding.
5.2.1 FTEs. Vertex agrees to pay Array research funding for the
conduct of the Research Collaboration in an amount equal to the number of Array
FTEs called for in Section 2.5 or the Research Plan for the applicable quarter
multiplied by the Array FTE Rate (as defined below). The number of FTEs for
particular periods within the Research Term is set forth in Section 2.5, as may
be modified by the Research Plan. The "Array FTE Rate" shall be equal to [***]
U.S. dollars [***] per FTE per Research Year (the "Funding Commitment"). During
[***], the FTE Rate [***]. [***], the FTE Rate shall increase no more than [***]
by the percentage increase, if any, in the Consumer Price Index for all Urban
Consumers, as published by the U.S. Department of Labor, Bureau of Statistics,
since the Effective Date or the last adjustment hereunder, whichever is later.
The payments subject to this Section 5.2.1 shall be paid in quarterly
installments, in advance,. The initial payment shall be made within [***] days
of the date Array FTEs are first deployed in accordance with the Research Plan
and upon receipt of invoice by Vertex. Subsequent payments shall be made on or
before the first day of each calendar quarter thereafter within [***] days after
receipt of an invoice by Vertex which sets forth the actual number of Array
Researchers FTEs estimated for the upcoming quarter. Such payments are
non-refundable; provided, however, that if in the event that for any quarter of
the Research Term the number of Array Researcher FTEs funded by Vertex for such
quarter shall exceed the actual number of Array Researcher FTEs devoted to the
conduct of the Research Collaboration in such quarter, Vertex shall be entitled
to credit any such excess against the Funding Commitment in the next quarter. If
upon termination or expiration of the Research Term, the aggregate number of
Array Researcher FTEs funded by Vertex exceeds the aggregate number of Array
Researcher FTEs actually devoted to the conduct of the Research Collaboration,
Array shall promptly reimburse Vertex for such excess at the applicable FTE
Rate. Array shall keep accurate records and books of accounts containing all
data reasonably required for the calculation and verification of FTEs employed
by Array in the Research Collaboration.
5.2.2 Non-FTE Costs. Non-FTE Costs and resource requirements (e.g.,
analytical, computational support, and the cost of storage, handling,
transportation and disposal of chemical synthesis of products generated by
Array) associated with the Research Collaboration shall be borne by Array,
except that Vertex agrees to reimburse Array for any extraordinary chemical
costs incurred by Array in accordance with the Research Plan and as otherwise
pre-approved by Vertex. Array shall not be obligated to incur any extraordinary
non-FTE costs in connection with this Research Collaboration.
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5.2.3 No Withholding. All amounts paid by Vertex to Array pursuant
to Sections 5.2.1 and 5.2.2 shall be made without withholding for taxes or any
other charge.
5.3 Milestones.
5.3.1 Milestone Payments Based on Clinical Events. Vertex shall pay
to Array the following amounts within [***] days following the first achievement
by Vertex or its Affiliates, Licensees or other designees, as the case may be,
of each of the following milestones with respect to each Target:
CLINICAL EVENTS MILESTONES PAYMENT AMOUNT
1. [***] $[***]
2. [***] $[***]
3. [***] $[***]
4. [***] $[***]
Vertex shall not be obligated to pay any Clinical Events Milestone payments
under this Section 5.3.1 more than [***] with respect to each Target, regardless
of the number of Compounds that achieve a particular Clinical Milestone event.
5.3.2 Milestone Payments Based on Net Sales. During each full
calendar year following the First Commercial Sale of a Product, Vertex shall pay
to Array the following amounts within [***] days of the end of each calendar
quarter following the achievement of each of the following Net Sales milestones
with respect to each Product:
NET SALES MILESTONE PAYMENT AMOUNT
1. Net Sales in the U.S. exceed [***] $[***]
2. Net Sales in the U.S. exceed [***] $[***]
3. Net Sales in the U.S. exceed [***] $[***]
4. Net Sales in the U.S. exceed [***] $[***]
5. Net Sales in the U.S. exceed [***] $[***]
(a) Net Sales of a particular Product shall be based on the
aggregate sales of such Product by Vertex, its Affiliates and Licenses.
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(b) Each of the milestone payments set forth in this Section
5.3.2 are [***] for each [***]. By way of example, in a given calendar year
within [***] years of the First Commercial Sale of a Product, if Net Sales
related to such Product were [***] million, Vertex would be obligated to pay
Array a milestone payment of [***], and if Net Sales related to such Product
were [***] million, Vertex would be obligated to pay Array a milestone payment
of [***].
(c) Vertex's obligation to make the milestone payments due
under this Section 5.3.2 shall commence, on a [***], on the first day of the
first calendar year following the First Commercial Sale of such Product, and
shall continue, on a [***], until the end of the [***] following the First
Commercial Sale of such Product.
ARTICLE 6
PAYMENT METHOD; BOOKS AND RECORDS
6.1 Payment Method. All payments due under this Agreement shall be made
from a bank located in the United States by bank wire transfer in immediately
available funds to a bank account designated by Array. All payments hereunder
shall be made in U.S. dollars. In the event that the due date of any payment
subject to Article 5 hereof is a Saturday, Sunday or national holiday, such
payment may be paid on the following business day. Any payments that are not
paid within [***] days after the date such payments are due under this Agreement
shall bear interest to the extent permitted by applicable law at the prime rate
as reported by the Chase Manhattan Bank, New York, New York, on the date such
payment is due, plus an additional [***], calculated on the number of days such
payment is delinquent.
6.2 Records; Inspection. Vertex and its Affiliates and Licensees shall
keep complete, true and accurate books of account and records for the purpose of
determining the milestone amounts payable under this Agreement. Such books and
records shall be kept at the principal place of business of such party, as the
case may be, for at least three (3) years following the end of the calendar
quarter to which they pertain. Such records will be open for inspection during
such three (3) year period by a public accounting firm to whom Vertex has no
reasonable objection, solely for the purpose of verifying milestone statements
hereunder. Such inspections may be made no more than once each calendar year, at
reasonable times and on reasonable notice. Inspections conducted under this
Section 6.2 shall be at the expense of Array, unless a variation or error
producing an increase in payment to Array in excess of [***] for any period
covered by the inspection is established in the course of any such inspection,
whereupon all reasonable costs relating to the inspection for such period and
any unpaid amounts that are discovered will be paid promptly by Vertex to Array
together with interest thereon from the date such payments were due at the
lesser of the prime rate as reported by the Chase Manhattan Bank, New York, New
York, plus an additional [***] or the maximum rate permitted by law. The
interest available to Array pursuant to this Section 6.2 shall in no way limit
any other remedies available to Array.
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ARTICLE 7
DUE DILIGENCE
7.1 Due Diligence. For each Compound and Product to which Vertex
retains rights under this Agreement, Vertex shall use commercially reasonable
efforts to develop and commercialize such Compounds and Products, and to obtain
the optimum commercial return for each Compound, for the development,
commercialization and marketing of pharmaceutical products of similar commercial
value potential.
ARTICLE 8
INTELLECTUAL PROPERTY
8.1 Ownership of Inventions; Disclosure.
8.1.1 General. Subject to Section 8.1.2 below, title and interest
to all Vertex Technology shall be owned by Vertex; title and interest to all
Array Technology shall be owned by Array; title and interest to all
Collaboration Technology and all patent rights and other intellectual property
rights related thereto shall be owned by Array; title and interest to all Joint
Technology shall be jointly owned by Array and Vertex. Except as expressly
provided in this Agreement, it is understood that Vertex shall have no
obligation to account to Array for profits or to obtain any approval of Array to
license or exploit any jointly owned invention, by reason of joint ownership of
any invention or other intellectual property. Inventorship of inventions and
other intellectual property conceived and/or reduced to practice pursuant to
this Agreement shall be determined in accordance with the patent laws of the
United States. Each Party shall promptly disclose to the other any inventions
made in connection with this Agreement.
8.1.2 Compositions; Uses. [***] and other intellectual property
made by personnel of Vertex or Array (solely or jointly) in the course of
performing, or in connection with, the Research Collaboration comprising (i)
[***], (ii) [***], or (iii) [***]. Array [***]. It is understood and agreed that
[***] under this Section 8.1.2 shall be [***], and shall [***].
8.2 Patent Prosecution.
8.2.1 Jointly Owned Inventions. Vertex shall have the first right
to control, at Vertex's expense, the preparation, filing, prosecution and
maintenance of patents and patent applications directed to Joint Technology, and
conducting any interferences, re-examinations, reissues and oppositions with
respect thereto. Vertex may elect, upon [***] prior notice to Array, to
discontinue prosecution of any such patent applications and/or not to file or
conduct any further activities with respect to such patent applications or
patents. In the event Vertex declines to file or, having filed, fails to further
prosecute or maintain any such patent applications or patents, or conduct any
proceedings including, but not limited to, interferences, re-examinations,
reissues, oppositions relating thereto, then Array shall have the right to
prepare, file, prosecute and maintain such patent applications and patents in
such countries as it deems appropriate, and conduct such
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proceedings, at its sole expense. In such case, upon Array's request, Vertex
shall immediately execute all necessary documents that may be required in order
to enable Array to file, prosecute and maintain such patent applications and to
conduct any such proceedings. Neither Party shall have an obligation to account
to the other, or obtain the consent of the other, with respect to the
exploitation (directly or through licensees of third parties) of any Joint
Technology, and each Party hereby waives any right it may have under the laws of
any jurisdiction to require such an accounting or consent.
8.2.2 Solely-Owned Inventions. Each Party shall be responsible, at
its expense and in its sole discretion, for preparing, filing, prosecuting and
maintaining, in such countries as it deems appropriate, any and all patent
applications and patents directed to inventions solely owned by such Party
pursuant to Section 8.1 above, and conducting any interferences,
re-examinations, reissues and oppositions with respect to such patent
applications and patents.
8.2.3 Inventions Relating to Diversity Library Compounds.
Notwithstanding any other provision of this Agreement, Vertex shall not file,
prosecute and maintain any patent applications and patents claiming a Diversity
Library Compound or pharmaceutical compositions based on such Diversity Library
Compound (including method of use or process for the synthesis thereof or
composition of matter).
8.3 Cooperation. Each of Vertex and Array shall keep the other fully
informed as to the status of patent matters described in this Article 8 (except
Array Technology) affecting the other Party's rights under this Agreement. Array
and Vertex shall each reasonably cooperate with and assist the other at its own
expense in preparing and prosecuting patent applications that are the subject of
patent rights granted under this Article 8. Vertex shall provide, on a timely
basis, Array with copies of all patents claiming a Compound which may affect
Array's rights under this Agreement.
8.4 Infringement Defense.
8.4.1 If Array receives any information or a notice of alleged
infringement of a Third Party's intellectual property rights concerning the
making, having made, using, selling, leasing, offering to sell or lease,
importing, exporting or otherwise transferring physical possession of or title
in a Compound and/or Product, Array shall promptly notify Vertex and shall
provide Vertex with details concerning such information or notice.
8.4.2 Vertex shall have the right, but not the obligation, to
defend any suit against Vertex or its Licensees alleging infringement of any
patent claim or other intellectual property right of a Third Party because of
Vertex's (or its Licensee's) practice of its licenses under this Agreement,
including the making, having made, using, selling, leasing, offering to sell or
lease, importing, exporting or otherwise transferring physical possession of or
title in a Compound or a Product by Vertex or its Licensees. If Vertex finds it
necessary or desirable, Array agrees to cooperate with Vertex (as may reasonably
be requested by Vertex) and to use its best efforts to ensure that any Array
personnel (as may reasonably be requested for assistance by Vertex) will be
available to cooperate with Vertex, at Vertex's expense, during the defense of
any such suit. If Vertex finds it necessary or
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desirable for Array to join Vertex as a party, Array shall execute all papers or
perform such other acts as may reasonably be required by Vertex. The costs and
expenses of any action under this Section, including attorney fees and all
damages and settlements, including any costs incurred by Array as a result of
Vertex's requested participation and assistance of Array shall be borne by
Vertex. In any suit under this Section in which Array is joined or is named as a
party, Array shall neither admit liability or otherwise consent to an adverse
judgment, without the prior written consent of Vertex.
ARTICLE 9
CONFIDENTIALITY AND NON-USE
9.1 Confidential Information. Except as otherwise expressly provided
herein, the Parties agree that, for the term of this Agreement and for [***]
thereafter, the receiving Party shall not, except as expressly provided in this
Article 9, disclose to any Third Party for any purpose any Confidential
Information furnished to it by the disclosing Party hereto pursuant to this
Agreement,. Array Technology and Diversity Library Compound Information shall be
considered the Confidential Information of Array, except as otherwise provided
in this Agreement. Vertex Technology, and all other results of the Research
Collaboration that are subject to an exclusive license to Vertex shall be
considered the Confidential Information of Vertex. For purposes of this Article
9, "Confidential Information" shall also mean any information including oral or
written communications regarding Collaboration Technology and Joint Technology,
and the source data and information and/or the reports (or any data or
information contained therein), or information which if disclosed in tangible
form and is marked "confidential" or with other similar designation to indicate
its confidential or proprietary nature, or, if disclosed orally, is indicated
orally to be confidential or proprietary at the time of such disclosure and is
confirmed in writing as confidential or proprietary within forty-five (45) days
after such disclosure. Notwithstanding the foregoing, Confidential Information
shall not include any information that can be established by the receiving Party
by competent proof that such information:
(a) was already known to the receiving Party, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the receiving Party;
(c) became generally available to the public or otherwise part of
the public domain after its disclosure and other than through any act or
omission of the receiving Party in breach of this Agreement;
(d) was independently developed by the receiving Party without
access to or use of the other Party's Confidential Information, as demonstrated
by documented evidence prepared contemporaneously with such independent
development; or
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(e) was disclosed to the receiving Party, other than under an
obligation of confidentiality, by a Third Party who had no obligation to the
disclosing Party not to disclose such information to others.
9.2 Non-Use Obligations.
9.2.1 Array shall not use Vertex Technology or other Vertex
Confidential Information, except for the sole purpose of conducting the Research
Collaboration at its company address listed above and not for any other use or
purpose without the prior express written consent of Vertex. Without the prior
written consent of Vertex, Array shall neither transfer nor provide access to
Vertex Technology to any Third Party, and shall maintain Vertex Technology only
at its company address set forth above. Other than for the conduct of the
Research Collaboration as expressly set forth in this Agreement, it is agreed
that the provision of Vertex Technology to Array under this Agreement shall not
constitute any grant of, option or license to Array under any Vertex
intellectual property rights or any other rights.
9.2.2 Vertex shall not use Array Technology or other Array
Confidential Information, except for the sole purpose of exercising its rights
under this Agreement and not for any other use or purpose without the prior
written consent of Array. Without the prior written consent of Array, Vertex
shall neither transfer nor provide access to Array Technology to any Third
Party, other than as necessary to exercise its rights under this Agreement and
subject to such Third Party having agreed to be obligated to the terms of
confidentiality and non-use as set forth in this Agreement. Other than as
expressly set forth in this Agreement, it is agreed that the provision of Array
Technology to Vertex under this Agreement shall not constitute any grant of,
option or license to Vertex under any Array intellectual property rights or any
other rights.
9.3 Permitted Use and Disclosures. Each Party hereto may use or
disclose Confidential Information disclosed to it by the other Party or Results
to the extent such use or disclosure is reasonably necessary and permitted in
the exercise of the rights granted hereunder in filing or prosecuting patent
applications, prosecuting or defending litigation, complying with applicable
governmental laws, regulations or court order or otherwise submitting
information to tax or other governmental authorities, conducting clinical
trials, or making a permitted sublicense or otherwise exercising license rights
expressly granted by the other Party to it pursuant to the terms of this
Agreement, provided that if a Party is required to make any such disclosure,
other than pursuant to a confidentiality agreement, it will give reasonable
advance notice to the other Party of such disclosure and, save to the extent
inappropriate in the case of patent applications, will use its reasonable
efforts to secure confidential treatment of such information in consultation
with the other Party prior to its disclosure (whether through protective orders
or otherwise) and disclose only the minimum necessary to comply with such
requirements.
9.4 Termination of Prior Agreement. This Agreement supersedes the
Confidentiality Agreement between the Parties dated [***]. All information
exchanged between the Parties under that the Confidentiality Agreement shall be
deemed Confidential Information and shall be subject to the terms of this
Article 9.
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9.5 Nondisclosure of Terms. Each of the Parties hereto agrees not to
disclose the terms of this Agreement to any Third Party without the prior
written consent of the other Party hereto, except to such Party's attorneys,
advisors, investors and others on a need to know basis under circumstances that
reasonably ensure the confidentiality thereof, or to the extent required by law.
If Array concludes that a copy of this Agreement must be filed with the U.S.
Securities and Exchange Commission, it will provide Vertex with a copy of the
Agreement to so be filed, and will provide Vertex with an opportunity to comment
on the form of the Agreement and any Sections as to which Vertex requests
confidential treatment, and will take Vertex's reasonable comments and requests
into consideration, before filing same. Notwithstanding the foregoing, the
Parties shall agree upon a joint press release, its contents and timing, and the
contents and timing of any other form of publicity or announcement relative the
execution of this Agreement. Thereafter, Array and Vertex may each disclose to
Third Parties the information contained in such press release or other public
announcement without the need for further approval by the other. In addition to
the forgoing restrictions on public disclosure, Vertex and Array may make public
statements and/or issue a press release regarding the progress of the Research
Collaboration and the achievement of milestones with respect thereto, following
consultation and mutual agreement of the Parties with respect to the consent and
timing of such public announcement and/or press release.
9.6 Publication. Each Party may publish scientific results of its
respective work within the scope of the licenses granted under this Agreement;
provided however, that the Parties comply with the following procedure:
(a) At least [***] days prior to submission for publication, Vertex
shall provide Array with a copy of any such planned publication by Vertex that
would disclose the Confidential Information of Array, for Array's written
consent prior to the disclosure of such Confidential Information. Array shall
notify Vertex in writing within [***] days after receipt of the planned
publication as to whether (i) Array consents to the disclosure of such
Confidential Information of Array, (ii) Array requires Vertex to remove all or
part of any Confidential Information of Array prior to publication, or (iii)
Array reasonably believes that any invention in Licensed Technology would be
disclosed by such planned publication. In the event of notice by Array under
Section 9.5(a)(ii), Vertex agrees to remove such Confidential Information of
Array requested in the notice by Array. In the event of notice by Array under
Section 9.5(a)(iii), Vertex agrees to delay publication for a reasonable time
period sufficient for a patent application thereon to be filed pursuant to
Section 8.2 (but in no event to exceed [***] days). It is understood and agreed
that failure of Vertex to receive notification from Array within [***] days of
receipt of a planned publication under this Section 9.5(a) shall be deemed
consent by Array to such publication.
(b) At least [***] days prior to submission for publication, Array
shall provide Vertex with a copy of any such planned publication by Array that
would disclose the Confidential Information of Vertex, for Vertex's written
consent prior to the disclosure of such Confidential Information. Vertex shall
notify Array in writing within [***] days after receipt of the planned
publication as to whether (i) Vertex consents to the disclosure of such
Confidential Information of Vertex, (ii) Vertex requires Array to remove all or
part of any Confidential Information of Vertex
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prior to publication, or (iii) Vertex reasonably believes that any invention in
Licensed Technology would be disclosed by such planned publication. In the event
of notice by Vertex under Section 9.5(b)(ii), Array agrees to remove such
Confidential Information of Vertex requested in the notice by Vertex. In the
event of notice by Vertex under Section 9.5(b)(iii), Array agrees to delay
publication for a reasonable time period sufficient for a patent application
thereon to be filed pursuant to Section 8.2 (but in no event to exceed [***]
days). It is understood and agreed that failure of Array to receive notification
from Vertex within [***] days of receipt of a planned publication under this
Section 9.5(b) shall be deemed consent by Vertex to such publication.
(c) Any such publication will include recognition of the Parties'
respective contributions according to standard practice for assigning scientific
credit, either through authorship or acknowledgement, as may be appropriate.
(d) Notwithstanding the above, Array shall not publish any
scientific results that specifically relate to the Compounds.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
10.1 Vertex. Vertex represents and warrants on its own behalf and on
behalf of its Affiliates that: (i) it has the legal power, authority and right
to enter into this Agreement and to perform all of its obligations hereunder;
(ii) this Agreement is a legal and valid obligation binding upon it and
enforceable in accordance with its terms; (iii) it has the full right to enter
into this Agreement, and to fully perform its obligations hereunder; and (iv) it
has not previously granted, and during the term of this Agreement will not
knowingly make any commitment or grant any rights which are in conflict in any
material way with the rights and licenses granted herein.
10.2 Array. Array represents and warrants that: (i) it has the legal
right and power to extend the rights granted in this Agreement; (ii) this
Agreement is a legal and valid obligation binding upon it and enforceable in
accordance with its terms; (iii) it has the full right to enter into this
Agreement, and to fully perform its obligations hereunder; (iv) it has not
previously granted, and during the term of this Agreement will not knowingly
make any commitment or grant any rights which are in conflict in any material
way with the rights and licenses granted herein; and (v) to the best of its
knowledge as of the Effective Date, there are no existing or threatened actions,
suits or claims pending against it with respect to the Array Technology.
10.3 Disclaimer. Vertex and Array specifically disclaim any guarantee
that the Research Collaboration will be successful, in whole or in part. The
failure of the Parties to successfully develop Compounds and/or Products will
not constitute a breach of any representation or warranty or other obligation
under this Agreement. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT,
ARRAY AND VERTEX MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OR CONDITIONS
OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE VERTEX TECHNOLOGY,
ARRAY TECHNOLOGY, COMPOUNDS,
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DIVERSITY LIBRARIES, DIVERSITY LIBRARY COMPOUNDS, INFORMATION DISCLOSED
HEREUNDER OR PRODUCTS INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY OF ANY COLLABORATION
TECHNOLOGY, PATENTED OR UNPATENTED, OR NONINFRINGEMENT OF THE INTELLECTUAL
PROPERTY RIGHTS OF THIRD PARTIES.
ARTICLE 11
INDEMNIFICATION
11.1 Vertex. Vertex agrees to indemnify, defend and hold Array and its
Affiliates and their respective directors, officers, employees, agents and their
respective successors, heirs and assigns (the "Array Indemnitees") harmless from
and against any losses, costs, claims, damages, liabilities or expense
(including reasonable attorneys' and professional fees and other expenses of
litigation) (collectively, "Liabilities") arising, directly or indirectly out of
or in connection with Third Party claims, suits, actions, demands or judgments,
relating to (i) any Products developed, manufactured, used, sold or otherwise
distributed by or on behalf of Vertex, its Affiliates or Licensees or other
designees (including, without limitation, product liability and patent
infringement claims), (ii) Vertex's performance of the Research Collaboration,
(iii) the use of the Targets by Vertex which are involved in the conduct of the
Research Collaboration and the making or use of modulators of such Targets by
Vertex; and (iv) any breach by Vertex of the representations and warranties made
in this Agreement, except, in each case, to the extent such Array Liabilities
result from the willful negligence or willful misconduct of Array.
11.2 Array. Array agrees to indemnify, defend and hold Vertex and its
Affiliates and their respective directors, officers, employees, agents and their
respective heirs and assigns (the "Vertex Indemnitees") harmless from and
against Liabilities arising, directly or indirectly out of or in connection with
Third Party claims, suits, actions, demands or judgments, relating to (i) the
performance of the Research Collaboration by Array, and (ii) any breach by Array
of its representations and warranties made in this Agreement, except, in each
case, to the extent such Liabilities result from the willful negligence or
willful misconduct of Vertex.
11.3 Indemnification Procedure. A Party that intends to claim
indemnification (the "Indemnitee") under this Article 11 shall promptly notify
the other Party (the "Indemnitor") in writing of any claim, complaint, suit,
proceeding or cause of action with respect to which the Indemnitee intends to
claim such indemnification (for purposes of this Section 11.3, each a "Claim"),
and the Indemnitor shall have sole control of the defense and/or settlement
thereof; provided that the Indemnitee shall have the right to participate, at
its own expense, with counsel of its own choosing in the defense and/or
settlement of such Claim. The indemnification obligations of the Parties under
this Article 11 shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the consent of the Indemnitor, which consent
shall not be withheld or delayed unreasonably. The failure to deliver written
notice to the Indemnitor within a reasonable time after the commencement of any
such Claim, if prejudicial to its ability to defend such action, shall relieve
such Indemnitor of any liability to the Indemnitee under this Article 11, but
the
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omission so to deliver written notice to the Indemnitor shall not relieve the
Indemnitor of any liability to any Indemnitee otherwise than under this Article
11. The Indemnitee under this Article 11, and its employees, at the Indemnitor's
request and expense, shall provide full information and reasonable assistance to
Indemnitor and its legal representatives with respect to such Claims covered by
this indemnification. It is understood that only Vertex may claim indemnity
under this Article 11 (on its own behalf or on behalf of a Vertex Indemnitee),
and other Vertex Indemnitees may not directly claim indemnity hereunder.
Likewise, it is understood that only Array may claim indemnity under this
Article 11 (on its own behalf or on behalf of an Array Indemnitee), and other
Array Indemnitees may not directly claim indemnity hereunder.
ARTICLE 12
TERM AND TERMINATION
12.1 Term. The term of this Agreement shall commence on the Effective
Date, and shall continue in full force and effect, on a [***] basis, until
Vertex and its Licensees have no remaining milestone payment obligations with
respect to any Product, or unless earlier terminated as provided in Article 12.
12.2 Termination for Breach. Either Party to this Agreement may
terminate the Research Collaboration and this Agreement in the event the other
Party hereto shall have materially breached or defaulted in the performance of
any of its material obligations hereunder, and such default shall have continued
for [***] days after written notice thereof was provided to the breaching Party
by the non-breaching Party. Any termination shall become effective at the end of
such [***] day period unless the breaching Party (or any other Party on its
behalf) has cured any such breach or default prior to the expiration of the
[***] day period; provided, however, in the case of a failure to pay any amount
due hereunder, such default may be the basis of termination [***] business days
following the date that notice of such default was provided to the breaching
Party.
12.3 Termination for Insolvency. If voluntary or involuntary
proceedings by or against a Party are instituted in bankruptcy under any
insolvency law, or a receiver or custodian is appointed for such Party, or
proceedings are instituted by or against such Party for corporate
reorganization, dissolution, liquidation or winding-up of such Party, which
proceedings, if involuntary, shall not have been dismissed within [***] days
after the date of filing, or if such Party makes an assignment for the benefit
of creditors, or substantially all of the assets of such Party are seized or
attached and not released within [***] days thereafter, the other Party may
immediately terminate the Research Collaboration and/or this Agreement,
effective upon notice of such termination.
12.4 Early Termination of Research Collaboration by Vertex. Vertex may,
in its absolute discretion, terminate its participation in the Research
Collaboration [***], upon [***] prior written notice to Array (the "Notice
Period"), in which event Vertex must nevertheless make all of the payments
required to be made hereunder which accrue or fall due during the Notice Period.
Array
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shall not change the number of Array Researchers FTEs after receipt of such
notice, unless otherwise authorized by Vertex.
12.5 Termination [***]. In the event that during the term of the
Research Collaboration, [***] upon [***] days notice [***], and Vertex's
obligations to fund the Research Collaboration under Section 5.2 and Array's
obligation to conduct the Research Collaboration under Sections 2.3, 2.4 and 2.5
shall terminate. In addition, Article 3 (except Section 3.7.3 and Array's
obligation to submit a final report under Section 3.7.1) shall terminate.
Regardless of whether or not [***] terminates this Agreement [***], then
notwithstanding the definition of Array Improvements, Array Technology, Array
Patent Rights, Collaboration Technology, Joint Technology, Licensed Technology
and Vertex Technology (collectively the "Technologies"), Vertex shall not
acquire under this Agreement any rights to any intellectual property or subject
matter that, [***], was held or controlled by [***], except as provided in this
Section 12.5. In the event [***] terminates this Agreement under this Section
12.5, then [***] shall not acquire under this Agreement any rights to any
intellectual property or subject matter created or acquired by [***], unless
such intellectual property or subject matter (i) would otherwise be within the
Technologies (i.e., if created by Array prior [***]), (ii) was created by an
individual who was an employee of [***], and (iii) was so created [***] in the
course of activities directed to the Field. Except for those activities
described in clause (iii) above which were conducted by an individual described
in clause (ii) above, no activities of [***] shall be deemed within the
Technologies.
12.6 Effect of Breach or Termination.
12.6.1 Accrued Rights and Obligations. Termination of this
Agreement for any reason shall not release either Party hereto from any
liability which, at the time of such termination, has already accrued to the
other Party or which is attributable to a period prior to such termination nor
preclude either Party from pursuing any rights and remedies it may have
hereunder or at law or in equity with respect to any breach of this Agreement.
12.6.2 Return of Materials. Upon any termination of this
Agreement, Vertex and Array shall promptly return to the other all Confidential
Information received from the other Party, except one copy of which may be
retained for archival purposes.
12.6.3 Material Breach for Non-Payment. In the event (i) Vertex
fails to make any payment due Array under Section 5.3.1 or 5.3.2, (ii) this
payment dispute is not resolved through the provisions set forth in Section
13.12, (iii) Array thereafter institutes proceedings to obtain such payment, and
(iv) as a result of such proceedings, whether by judgement or settlement
thereof, Vertex is required to make all or part of such payment, [***].
12.7 Survival. Any rights or obligations set forth under this Agreement
which of their nature are intended to extend beyond the term of the Agreement
shall survive, including, but not
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limited to, 5.3.1, 5.3.2, 6.2, and 12.7 of this Agreement, and Articles 1, 9,
11, 12 and 13 shall survive the expiration or termination of this Agreement for
any reason.
ARTICLE 13
MISCELLANEOUS
13.1 Governing Laws. This Agreement shall be governed by and
interpreted in accordance with the substantive laws of the Commonwealth of
Massachusetts, without reference to the conflicts of law principles thereof. The
parties hereby acknowledge their diversity (Array having its principal place of
business in Colorado and Vertex having its principal place of business in
Massachusetts) and, if Array brings suit under this Agreement such suit shall be
brought in Federal District Court in Boston, Massachusetts or the Massachusetts
state courts of general jurisdiction in Boston, Massachusetts (and the parties
will submit to the jurisdiction thereof); and, if Vertex brings suit under this
Agreement, such suit shall be brought in the Federal District Court in Denver,
Colorado or the Colorado state courts of general jurisdiction in Denver,
Colorado (and the parties will submit to the jurisdiction thereof).
13.2 Waiver. It is agreed that no waiver by either Party hereto of any
breach or default of any of the covenants or agreements herein set forth shall
be deemed a waiver as to any subsequent and/or similar breach or default.
13.3 Assignment. This Agreement shall not be assignable by either Party
to any Third Party hereto without the written consent of the other Party hereto.
Notwithstanding the foregoing, either party may assign this Agreement, without
such consent, to an entity that acquires all or substantially all of the
business or assets of such Party to which this Agreement pertains, whether by
merger, reorganization, acquisition, sale, or otherwise; provided, however, that
within thirty (30) days of such an assignment, the assignee shall agree in
writing to be bound by the terms and conditions of this Agreement, provided
further, however, that either Party may still exercise its rights under Section
12.5. This Agreement shall be binding upon and accrue to the benefit any
permitted assignee, and any such assignee shall agree to perform the obligations
of the assignor.
13.4 Independent Contractors. The relationship of the Parties hereto is
that of independent contractors. The Parties hereto are not deemed to be agents,
employer-employee, partners or joint venturers of the others for any purpose as
a result of this Agreement or the transactions contemplated thereby. Array shall
use its own discretion and shall have complete and authoritative control over
its employees and Array Researchers, and the details of performing its
obligations under this Agreement.
13.5 Compliance with Laws. In exercising their rights under this
license, the Parties shall fully comply in all material respects with the
requirements of any and all applicable laws, regulations, rules and orders of
any governmental body having jurisdiction over the exercise of rights under this
license including, without limitation, those applicable to the discovery,
development, manufacture, distribution, import and export and sale of Products
pursuant to this Agreement.
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13.6 Notices. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to be sufficient if personally delivered
or by registered or certified mail, return receipt requested, postage prepaid,
transmitted by commercial overnight courier, or transmitted by telex, telegram
or telecopy (receipt verified) in each case to the respective address specified
below, or such other address as may be specified in writing to the other Parties
hereto and shall be deemed to have been given upon receipt:
If to Vertex:
Vertex Pharmaceuticals, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Attn.: Legal Department
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Array:
Array BioPharma Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
13.7 Severability. Each Party hereby agrees that it does not intend to
violate any public policy, statutory or common laws, rules, regulations, treaty
or decision of any government agency or executive body thereof of any country or
community or association of countries. Should one or more provisions of this
Agreement be or become invalid, the Parties hereto shall substitute, by mutual
consent, valid provisions for such invalid provisions which valid provisions in
their economic effect are sufficiently similar to the invalid provisions that it
can be reasonably assumed that the Parties
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would have entered into this Agreement with such valid provisions. In case such
valid provisions cannot be agreed upon, the invalidity of one or several
provisions of its Agreement shall not affect the validity of this Agreement as a
whole, unless the invalid provisions are of such essential importance to this
Agreement that it is to be reasonably assumed that the Parties would not have
entered into this Agreement without the invalid provisions.
13.8 Advice of Counsel. Array and Vertex have each consulted counsel of
their choice regarding this Agreement, and each acknowledges and agrees that
this Agreement shall not be deemed to have been drafted by one Party or another
and will be construed accordingly.
13.9 Performance Warranty. Each Party hereby warrants and guarantees
the performance of any and all rights and obligations of this Agreement by its
Affiliates and Licensees.
13.10 Force Majeure. Neither Party shall lose any rights hereunder or
be liable to the other Party for damages or losses (except for payment
obligations) on account of failure of performance by the defaulting Party if the
failure is occasioned by war, strike, fire, Act of God, earthquake, flood,
lockout, embargo, governmental acts or orders or restrictions, failure of
suppliers, or any other reason where failure to perform is beyond the reasonable
control and not caused by the negligence, intentional conduct or misconduct of
the non-performing Party and such Party has exerted all reasonable efforts to
avoid or remedy such force majeure; provided, however, that in no event shall a
Party be required to settle any labor dispute or disturbance.
13.11 Complete Agreement. This Agreement with its Exhibits, constitutes
the entire agreement, both written and oral, between the Parties with respect to
the subject matter hereof, and all prior agreements respecting the subject
matter hereof, either written or oral, express or implied, shall be abrogated,
canceled, and are null and void and of no effect. No amendment or change hereof
or addition hereto shall be effective or binding on either of the Parties hereto
unless reduced to writing and executed by the respective duly authorized
representatives of Array and Vertex. Any inconsistencies between this Agreement
and the Research Plan shall be resolved in favor of the Agreement.
13.12 Consultation. If an unresolved dispute arises out of or relates
to this Agreement, or the breach thereof, either Party may refer such dispute to
the Chief Executive Officer of Vertex and the Chief Executive Officer of Array,
or such Parties' designated representative (provided such representative is at
least a Vice President or above), who shall meet in person or by telephone
within forty-five (45) days after such referral to attempt in good faith to
resolve such dispute.
13.13 Headings. The captions to the several Sections hereof are not a
part of this Agreement, but are included merely for convenience of reference and
shall not affect its meaning or interpretation.
13.14 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to be one and the same agreement.
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[SIGNATURE PAGE TO FOLLOW]
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[SIGNATURE PAGE]
COLLABORATION AGREEMENT
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed by their authorized representatives and delivered in duplicate
originals as of the Effective Date.
VERTEX PHARMACEUTICALS ARRAY BIOPHARMA INC.
INCORPORATED
By: /s/ By: /s/
------------------------------ ----------------------------------
Name: Name:
---------------------------- --------------------------------
Title: Title:
--------------------------- -------------------------------
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COLLABORATION AGREEMENT
EXHIBIT A
RESEARCH PLAN
[***].
[***]:
[***]
[***]:
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[***]:
[***]
[***]:
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EXHIBIT B
DIVERSITY LIBRARY COMPOUND SPECIFICATIONS
The Diversity Library Compounds shall conform to the following specifications:
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