EXHIBIT 10.25
EXECUTION COPY
PHARMACOGENOMICS AGREEMENT
BY AND BETWEEN CURAGEN CORPORATION
AND ▇▇▇▇▇ ▇▇
DATED AS OF
JANUARY 12, 2001
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
BAYER and CURAGEN Pharmacogenomics Project Agreement
TABLE OF CONTENTS
ARTICLE I - BACKGROUND............................................................................ 1
ARTICLE II - DEFINITIONS.......................................................................... 2
2.00 - Terms..................................................................................... 2
2.01 - Affiliate................................................................................. 2
2.02 - BAYER Background Technology............................................................... 2
2.03 - BAYER Compound............................................................................ 3
2.04 - BAYER Data................................................................................ 3
2.05 - BAYER Licensed Patent Rights.............................................................. 3
2.06 - BAYER Licensed Technology................................................................. 3
2.07 - BAYER Facility............................................................................ 3
2.08 - BAYER Indemnified Parties................................................................. 3
2.09 - BAYER Patent Rights....................................................................... 3
2.10 - BAYER Product............................................................................. 3
2.11 - BAYER Program Technology.................................................................. 4
2.12 - BAYER Proprietary Material................................................................ 4
2.13 - BAYER Response............................................................................ 4
2.14 - BAYER SNP Target.......................................................................... 4
2.15 - BAYER Target.............................................................................. 4
2.16 - BAYER Technology.......................................................................... 4
2.17 - Biological Materials...................................................................... 5
2.18 - Breaching Party........................................................................... 5
2.19 - Change of Control......................................................................... 5
2.20 - Competitive Entity........................................................................ 5
2.21 - Confidential Information.................................................................. 5
2.22 - CURAGEN Deliverables...................................................................... 6
2.23 - CURAGEN Diagnostic Product................................................................ 6
2.24 - CURAGEN Discovery Tools................................................................... 6
2.25 - CURAGEN Discovery Tool Technology......................................................... 6
2.26 - CURAGEN Discovery Tool Improvements....................................................... 7
2.27 - CURAGEN Indemnified Parties............................................................... 7
2.28 - CURAGEN Licensed Patent Rights............................................................ 7
2.29 - CURAGEN Licensed Technology............................................................... 7
2.30 - CURAGEN Notice............................................................................ 7
2.31 - CURAGEN Patent Rights..................................................................... 7
2.32 - CURAGEN Program Technology................................................................ 7
2.33 - CURAGEN Proprietary DBs................................................................... 8
2.34 - CURAGEN Proprietary Material.............................................................. 8
2.35 - CURAGEN Screening Services................................................................ 8
2.35 - CURAGEN Services.......................................................................... 8
2.37 - CURAGEN Services Revenue.................................................................. 8
2.38 - CURAGEN Technology........................................................................ 9
2.39 - Designated Scientific Issue............................................................... 9
2.40 - Diagnostic Products....................................................................... 9
2.41 - DOJ....................................................................................... 10
2.42 - Effective Date............................................................................ 10
2.43 - FTE....................................................................................... 10
2.44 - HSR Act................................................................................... 10
2.45 - HSR Clearance Date........................................................................ 10
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
▇-▇
▇▇▇▇▇ and CURAGEN Pharmacogenomics Project Agreement
2.46 - HSR Filing................................................................................ 10
2.47 - Infringement.............................................................................. 10
2.48 - Knowledge................................................................................. 11
2.49 - Marker Gene............................................................................... 11
2.50 - Metabolic Disorder Collaboration Agreement................................................ 11
2.51 - Optimized Product......................................................................... 11
2.52 - Party or Parties.......................................................................... 11
2.53 - Patent Rights............................................................................. 11
2.54 - Pharmacogenomics Data..................................................................... 12
2.55 - Pharmacogenomics Program.................................................................. 12
2.56 - Pharmacogenomics Program Term............................................................. 12
2.57 - Pharmacogenomics Project Plan............................................................. 12
2.58 - Predictive Toxicogenomics Technology...................................................... 13
2.59 - Production Phase.......................................................................... 13
2.60 - Production Phase Term..................................................................... 13
2.61 - Program Diagnostic Product................................................................ 13
2.62 - Program Director.......................................................................... 13
2.63 - Program Funding........................................................................... 13
2.64 - Project Teams............................................................................. 14
2.65 - Proteomics Feasibility Study.............................................................. 14
2.66 - Proteomics Technology..................................................................... 14
2.67 - Set-up Phase.............................................................................. 14
2.68 - Set-up Phase Term......................................................................... 14
2.69 - Stock Purchase Agreement.................................................................. 14
2.70 - Technology................................................................................ 15
2.71 - Terminating Party......................................................................... 15
2.72 - Third Party............................................................................... 15
2.73 - Toxicogenomics Reference Data............................................................. 15
2.74 - UNCITRAL.................................................................................. 15
ARTICLE III - PHARMACOGENOMICS PROGRAM............................................................ 16
3.00 - Pharmacogenomics Program.................................................................. 16
3.01 - Collaborative Efforts and Reports......................................................... 21
3.02 - Non-Exclusivity........................................................................... 22
3.03 - Program................................................................................... 22
3.04 - Executive Level Meeting................................................................... 23
3.05 - Decisions................................................................................. 23
3.06 - Expenses.................................................................................. 24
ARTICLE IV - LICENSES; PROGRAM DIAGNOSTIC PRODUCTS AND CURAGEN DIAGNOSTIC PRODUCTS................ 24
4.00 - License to BAYER.......................................................................... 24
4.01 - Licenses and Rights to CURAGEN............................................................ 24
4.02 - CURAGEN Diagnostic Products............................................................... 25
ARTICLE V - FUNDING OF PHARMACOGENOMICS PROGRAM................................................... 26
5.00 - Funding................................................................................... 26
5.01 - Compensation for Services................................................................. 26
ARTICLE VI - TREATMENT OF CONFIDENTIAL INFORMATION................................................ 26
6.00 - Confidential Information.................................................................. 27
6.01 - Publications.............................................................................. 28
6.02 - Press Release and Regulatory Filings...................................................... 28
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
A-ii
BAYER and CURAGEN Pharmacogenomics Project Agreement
ARTICLE VII - INTELLECTUAL PROPERTY RIGHTS; FILING, PROSECUTION AND MAINTENANCE OF PATENT RIGHTS.. 29
7.00 - BAYER Intellectual Property Rights and BAYER Proprietary Material......................... 29
7.01 - CURAGEN Proprietary Material and Predictive Toxicogenomics Technology..................... 30
7.02 - Filing Prosecution and Maintenance of Patent Rights....................................... 30
7.03 - Amendment to Patent Rights................................................................ 33
7.04 - Actual or Threatened Infringement......................................................... 34
7.05 - Defense of Claims......................................................................... 35
7.06 - Cooperation............................................................................... 36
ARTICLE VIII - EXPIRATION AND TERMINATION........................................................ 36
8.00 - Term of the Agreement..................................................................... 36
8.01 -Termination by Mutual Agreement............................................................ 36
8.02 - Termination for Material Breach........................................................... 37
8.03 - Termination Following Bankruptcy.......................................................... 37
8.04 - Termination by BAYER...................................................................... 37
8.05 - Effect of Termination..................................................................... 38
8.06 - Obligations............................................................................... 39
8.07 - Remedies.................................................................................. 39
8.07 - Surviving Provisions...................................................................... 39
ARTICLE IX - ▇▇▇▇▇ ▇▇▇▇ PROCESSING FACILITY; NON-COMPETE AGREEMENT................................ 40
9.00 - BAYER Facility............................................................................ 40
9.01 - Non-Competition........................................................................... 40
ARTICLE X - REPRESENTATIONS AND WARRANTIES; MISCELLANEOUS......................................... 40
10.00 - Due Organization......................................................................... 40
10.01 - Consents................................................................................. 41
10.02 - Execution, Delivery and Performance...................................................... 41
10.03 - Legal, Valid and Binding Obligation...................................................... 42
10.04 - No Conflict.............................................................................. 42
10.05 - Employee Obligations..................................................................... 42
10.06 - CURAGEN Intellectual Property............................................................ 43
10.07 - BAYER Intellectual Property.............................................................. 44
10.08 - Contracts................................................................................ 46
10.09 - No Material Omissions.................................................................... 46
10.10 - No Warranties............................................................................ 47
10.11 - Survival................................................................................. 47
10.12 - Liability................................................................................ 47
10.13 - Notices.................................................................................. 47
10.14 - Dispute Resolution and Arbitration....................................................... 49
10.15 - Currency................................................................................. 50
10.16 - Limitations.............................................................................. 50
10.17 - No Implied Waiver; Rights Cumulative..................................................... 50
10.18 - Assignment............................................................................... 51
10.19 - Force Majeure............................................................................ 51
10.20 - No Strict Construction................................................................... 51
10.21 - Severability............................................................................. 51
10.22 - Independent Contractor................................................................... 52
10.23 - BAYER Indemnification of CURAGEN......................................................... 52
10.24 - CURAGEN Indemnification of BAYER......................................................... 53
10.25 - Captions and Headings.................................................................... 53
10.26 - Amendments............................................................................... 53
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
A-iii
BAYER and CURAGEN Pharmacogenomics Project Agreement
10.27 - HSR Matters.............................................................................. 54
10.28 - Intellectual Property Right Bankruptcy Code.............................................. 54
10.29 - HSR Filing............................................................................... 54
10.30 - Governing Law............................................................................ 55
10.31 - Counterparts............................................................................. 55
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
A-iv
BAYER and CURAGEN Pharmacogenomics Project Agreement
APPENDICES
APPENDIX A - PHARMACOGENOMICS PROGRAM PLAN
APPENDIX B - MINIMUM LEVELS OF SERVICES
APPENDIX C - CRITERIA FOR PROTEOMICS FEASIBILITY STUDY
APPENDIX D - COMMERCIAL TERMS FOR EXCLUSIVE LICENSE TO CURAGEN DIAGNOSTIC
PRODUCTS
APPENDIX E - SOFTWARE LICENSE
APPENDIX F - ARBITRATION PROCEDURES
SCHEDULES
SCHEDULE 10.06(A) - OWNERSHIP OF CURAGEN LICENSED PATENT RIGHTS AND CURAGEN
LICENSED TECHNOLOGY
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
A-v
PHARMACOGENOMICS PROGRAM AGREEMENT
This Agreement is made as of the 12th day of January 2001 ( the "Execution
Date"), by and between ▇▇▇▇▇ ▇▇, a corporation organized and existing under the
laws of the Federal Republic of Germany and having its principal place of
business at D ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany ("BAYER") and
CURAGEN CORPORATION, a Delaware corporation having its principal place of
business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
("CURAGEN").
ARTICLE I - BACKGROUND
WHEREAS, CURAGEN has developed a comprehensive suite of functional genomics
technologies and processes (including GeneCalling/TM/, PathCalling/TM/,
SNPCalling/TM/ and RTQ PCR, and bioinformatics software (including GeneScape(R)
and CuraTools/TM/) (collectively, the "CURAGEN Discovery Tools"); and
WHEREAS, CURAGEN has developed proprietary databases composed of rat genes,
human genes and human cSNPs (collectively the "CURAGEN Proprietary DBs"); and
WHEREAS, BAYER and CURAGEN wish to initiate a Pharmacogenomics Program (as
defined herein below) using the CURAGEN Discovery Tools and CURAGEN Proprietary
DBs to identify genes related to toxicity and to develop screens for the early
prediction of the toxicity of drugs or compounds, primarily to aid in the
selection of lead drug candidates and optimization of drugs and secondarily to
develop potential diagnostic tests; and
WHEREAS, BAYER wishes to obtain access to the data and certain rights to
inventions made in the performance of the Pharmacogenomics Program pursuant to
this Agreement; and
WHEREAS, CURAGEN and Bayer Corporation, BAYER's direct wholly-owned
subsidiary ("Bayer Corporation"), also wish to collaborate in the discovery and
development of targets and assays and to develop small molecule drugs for the
treatment of metabolic disorders pursuant to the terms of a Metabolic Disorder
Collaboration Agreement dated as of the date hereof by and between CURAGEN and
Bayer Corporation (the "Metabolic Disorder Collaboration Agreement"); and
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
BAYER and CURAGEN Pharmacogenomics Project Agreement
WHEREAS, BAYER has also agreed to make an equity investment in CURAGEN
common stock, in the aggregate amount of $85 million, such investment to be made
pursuant to the terms of a Stock Purchase Agreement dated as of the date hereof
by and between CURAGEN and BAYER (the "Stock Purchase Agreement").
NOW THEREFORE, in consideration of the foregoing premises, BAYER and
CURAGEN agree to undertake the foregoing, under the terms and conditions set
forth in this Agreement.
ARTICLE II - DEFINITIONS
2.00 - Terms
Terms used in this Agreement (other than the names of parties and article
headings) that are set forth with an initial capital letter have the meanings
established for such terms in the succeeding paragraphs of this Article II, or
as otherwise specifically defined hereinafter.
2.01 - Affiliate
Shall mean any person, corporation, firm, limited liability company,
partnership or other entity, which directly or indirectly controls or is
controlled by or is under common control with a Party. For purposes of this
definition, "control" shall mean (a) in the case of corporate entities, direct
or indirect ownership of at least fifty percent (50%) of the stock or shares
having the right to vote for the election of directors, and (b) in the case of
non-corporate entities, direct or indirect ownership of at least fifty percent
(50%) of the equity interest with the power to direct the management and
policies of such non-corporate entities.
2.02 - BAYER Background Technology
Shall mean any Technology owned or otherwise controlled by BAYER or
its Affiliates as of the Effective Date which is necessary for CURAGEN to
practice the licenses granted by BAYER to CURAGEN pursuant to Section 4.01(a) or
4.01(b) of this Agreement.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
2
BAYER and CURAGEN Pharmacogenomics Project Agreement
2.03 - BAYER Compound
Shall mean any proprietary chemical entity or substance of BAYER or
its Affiliates that is provided by BAYER to CURAGEN or otherwise identified by
BAYER to CURAGEN for testing, screening or analysis under the Pharmacogenomics
Program.
2.04 - BAYER Data
Shall mean all data, other than Toxicogenomics Reference Data, generated by
or on behalf of CURAGEN in the conduct of the Pharmacogenomics Program through
the testing, screening and/or use by CURAGEN of any BAYER Target, BAYER SNP
Target, BAYER Compound or any other BAYER Proprietary Material.
2.05 - BAYER Licensed Patent Rights
Shall have the meaning set forth in Section 10.07(a) of this Agreement.
2.06 - BAYER Licensed Technology
Shall have the meaning set forth in Section 10.07(a) of this Agreement.
2.07 - BAYER Facility
Shall have the meaning set forth in Section 9.00(a) below.
2.08 - BAYER Indemnified Parties
Shall have the meaning set forth in Section 10.24 below.
2.09 - BAYER Patent Rights
Shall mean Patent Rights with respect to BAYER Technology.
2.10 - BAYER Product
Shall mean, collectively, an Optimized Product and a Program Diagnostic
Product.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
3
BAYER and CURAGEN Pharmacogenomics Project Agreement
2.11 - BAYER Program Technology
Shall mean, collectively (a) the Marker Genes and (b) the Pharmacogenomics
Data.
2.12 - BAYER Proprietary Material
Shall mean any tangible proprietary substances and materials of BAYER or
its Affiliates, including, without limitation, the BAYER Compounds, the BAYER
SNP Targets and the BAYER Targets, provided by BAYER to CURAGEN or otherwise
identified by BAYER to CURAGEN for the purpose of conducting the
Pharmacogenomics Program, including any tangible substances or materials
produced by either Party in the conduct of the Pharmacogenomics Program which
are derived in whole or in part from BAYER Proprietary Material or BAYER
Technology.
2.13 - BAYER Response
Shall have the meaning set forth in Section 4.02 of this Agreement.
2.14 - BAYER SNP Target
Shall mean any gene target provided by BAYER to CURAGEN or otherwise
identified by BAYER to CURAGEN for the purpose of conducting SNP analysis under
the Pharmacogenomics Program.
2.15 - BAYER Target
Shall mean any druggable target provided by BAYER to CURAGEN or otherwise
identified by BAYER to CURAGEN for the purpose of conducting analysis activities
under the Pharmacogenomics Program.
2.16 - BAYER Technology
Shall mean, collectively, the BAYER Program Technology and the BAYER
Background Technology.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
4
BAYER and CURAGEN Pharmacogenomics Project Agreement
2.17 - Biological Materials
Shall have the meaning set forth in Section 3.00(a)(iii) of this Agreement.
2.18 - Breaching Party
Shall have the meaning set forth in Section 8.02 of this Agreement.
2.19 - Change of Control
Shall mean (a) a merger or consolidation of CURAGEN which results in the
voting securities of CURAGEN outstanding immediately prior thereto ceasing to
represent at least [___________] of the combined voting power of the surviving
entity immediately after such merger or consolidation; (b) the sale of all or
substantially all of the assets of CURAGEN (including any sale by CURAGEN of all
or substantially all of the assets constituting the CURAGEN Discovery Tools); or
(c) any "person", as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), together with
any of such persons "affiliates" or "associates", as such terms are used in the
Exchange Act, becoming the beneficial owner of [___________] or more of the
combined voting power of the outstanding securities of CURAGEN (other than
CURAGEN, any trustee or other fiduciary holding securities under an employee
benefit plan of CURAGEN or any corporation owned directly or indirectly by the
stockholders of CURAGEN in substantially the same proportion as their ownership
of stock of CURAGEN).
2.20 - Competitive Entity
Shall mean any Third Party that is engaged in the business of
[___________________].
2.21 - Confidential Information
Shall mean all materials, Technology or other information, including,
without limitation, proprietary information and materials (whether or not
patentable) regarding a Party's Technology, products, business information or
objectives, which is designated as confidential in writing by the disclosing
Party, whether by letter or by the use of an appropriate stamp or legend,
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
5
BAYER and CURAGEN Pharmacogenomics Project Agreement
prior to or at the time any such material, trade secret or other information is
disclosed by the disclosing Party to the other Party. Notwithstanding the
foregoing to the contrary, materials, Technology or other information which is
orally, electronically or visually disclosed by a Party, or is disclosed in
writing without an appropriate letter, stamp or legend, shall constitute
Confidential Information of a Party (a) if the disclosing Party, within thirty
(30) days after such disclosure, delivers to the other Party a written document
or documents describing the materials, Technology or other information and
referencing the place and date of such oral, visual, electronic or written
disclosure and the names of the persons to whom such disclosure was made, or (b)
such information is of the type that is customarily considered to be
confidential information by persons engaged in activities that are substantially
similar to the activities being engaged in by the Parties pursuant to this
Agreement.
2.22 - CURAGEN Deliverables
Shall have the meaning set forth in Section 3.00(b)(ii) below.
2.23 - CURAGEN Diagnostic Product
Shall mean any human diagnostic product or service discovered, conceived or
reduced to practice by CURAGEN in the conduct of the Pharmacogenomics Program
independent of any BAYER Proprietary Materials or BAYER Data.
2.24 - CURAGEN Discovery Tools
Shall have the meaning set forth in the recitals to this Agreement.
2.25 - CURAGEN Discovery Tool Technology
Shall mean any Technology owned or otherwise controlled by CURAGEN as of
the Effective Date which is necessary to practice the license to the CURAGEN
Discovery Tools granted to BAYER pursuant to Section 9.00(a) of this Agreement.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
6
BAYER and CURAGEN Pharmacogenomics Project Agreement
2.26 - CURAGEN Discovery Tool Improvements
Shall mean any improvements to the CURAGEN Discovery Tool Technology
made by CURAGEN or by 454 Corporation, CURAGEN's majority-owned subsidiary, or
any other Affiliate of CURAGEN, during the Pharmacogenomics Program Term, both
within and outside of the conduct of the Pharmacogenomics Program, to the extent
CURAGEN has the right to license or sublicense such improvements without
violating any agreement with 454 Corporation or any Third Party.
2.27 - CURAGEN Indemnified Parties-
Shall have the meaning set forth in Section 10.23 below.
2.28 - CURAGEN Licensed Patent Rights
Shall have the meaning set forth in Section 10.06(a) of this Agreement.
2.29 - CURAGEN Licensed Technology
Shall have the meaning set forth in Section 10.06(a) of this Agreement.
2.30 - CURAGEN Notice
Shall have the meaning set forth in Section 4.02.
2.31 - CURAGEN Patent Rights
Shall mean Patent Rights with respect to CURAGEN Technology.
2.32 - CURAGEN Program Technology
Shall mean any Technology, other than BAYER Program Technology and CURAGEN
Discovery Tool Improvements, developed or conceived by employees of or
consultants to CURAGEN during the Pharmacogenomics Program Term in the conduct
of Pharmacogenomics
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
7
BAYER and CURAGEN Pharmacogenomics Project Agreement
Program. CURAGEN Program Technology shall include, without limitation, the
Predictive Toxicogenomics Technology and the Proteomics Technology.
2.33 - CURAGEN Proprietary DBs
Shall have the meaning set forth in the recitals to this Agreement.
2.34 - CURAGEN Proprietary Material
Shall mean any tangible proprietary substances and materials of CURAGEN or
its Affiliates provided by CURAGEN for the purpose of conducting the
Pharmacogenomics Program.
2.35 - CURAGEN Screening Services
Shall mean any services provided by CURAGEN or any of its Affiliates to
Third Parties which are designed to test compounds, targets and/or products
identified or provided by such Third Parties, and which use a Marker Gene or
Toxicogenomics Reference Data.
2.36 - CURAGEN Services
Shall mean any services provided by CURAGEN or any of its Affiliates
to Third Parties through the use of CURAGEN Discovery Tools, the primary purpose
of which is to provide access to any information comprising the Toxicogenomics
Reference Data, other than information that would provide a Third Party with any
pathology information.
2.37 - CURAGEN Services Revenue
Shall mean the aggregate gross revenues received by CURAGEN or its
Affiliates in connection with its providing of CURAGEN Screening Services or
CURAGEN Services less, to the extent such CURAGEN Screening Services or CURAGEN
Services are provided by CURAGEN to Third Parties in arm's length transactions,
the following:
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
8
BAYER and CURAGEN Pharmacogenomics Project Agreement
(a) trade, early settlement, cash and quantity discounts or rebates
actually allowed or taken;
(b) credits or allowances actually given or made for CURAGEN Screening
Services or CURAGEN Services or for retroactive price reductions
(including legally mandated types of rebates); and
(c) sales, transfer, value added and other excise taxes levied on the sale
or delivery of CURAGEN Screening Services or CURAGEN Services to the
extent included in the gross invoiced sales price, other than
franchise or income tax of any kind whatsoever.
2.38 - CURAGEN Technology
Shall mean, collectively, the CURAGEN Program Technology, the CURAGEN
Discovery Tool Technology and the CURAGEN Discovery Tool Improvements.
2.39 - Designated Scientific Issue
Shall mean any scientific matters related to the Pharmacogenomics Program
including, without limitation, all interpretations of the Pharmacogenomics
Program Plan but not including any dispute as to whether the performance
criteria set forth in Section 3.00(b)(iii) have been achieved. Notwithstanding
the foregoing, it is hereby agreed that Designated Scientific Issues shall not
include any matters specifically left to the discretion, consent or approval of
BAYER under this Agreement.
2.40 - Diagnostic Products
Shall mean, collectively, Program Diagnostic Products and CURAGEN
Diagnostic Products. In the singular form, "Diagnostic Product" shall mean
either a Program Diagnostic Product or a CURAGEN Diagnostic Product, as
appropriate.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
9
BAYER and CURAGEN Pharmacogenomics Project Agreement
2.41 - DOJ
Shall mean the United States Department of Justice.
2.42 - Effective Date
Shall mean the later of the HSR Clearance Date and the Closing Date as
defined in the Stock Purchase Agreement.
2.43 - FTE
Shall mean a full time equivalent person year (consisting of a total of one
thousand eight hundred eighty (1,880) hours per year) of scientific or technical
work.
2.44 - HSR Act
Shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended (15 U.S.C. Sec. 18a), and the rules and regulations promulgated
thereunder.
2.45 - HSR Clearance Date
Shall mean the earlier of (a) the date on which the FTC shall notify BAYER
and CURAGEN of early termination of the applicable waiting period under the HSR
Act or (b) the day after the date on which the applicable waiting period under
the HSR Act expires.
2.46 - HSR Filing
Shall mean filings by BAYER and CURAGEN with the FTC and the Antitrust
Division of the DOJ of a Notification and Report Form for Certain Mergers and
Acquisitions (as that term is defined in the HSR Act) with respect to the
matters set forth in this Agreement, the Metabolic Disorder Collaboration
Agreement and the Stock Purchase Agreement, together with all required
documentary attachments thereto.
2.47 - Infringement
Shall have the meaning set forth in Section 7.04(a) of this Agreement.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
10
BAYER and CURAGEN Pharmacogenomics Project Agreement
2.48 - Knowledge
For purposes of this Agreement, the term "Knowledge" shall mean the
knowledge, after due and reasonable investigation,
[_________________________________________________].
2.49 - Marker Gene
Shall mean any gene discovered by CURAGEN in the conduct of the
Pharmacogenomics Program whose expression or pattern of expression is predictive
of (a) toxicity or efficacy and is therefore useful for screening drug
candidates to assess toxicity or efficacy or (b) disease, disease predisposition
or patient response and therefore has diagnostic applications, including disease
diagnosis, patient selection and treatment monitoring, including, in any case,
any part of the CURAGEN Program Technology pertinent thereto.
2.50 - Metabolic Disorder Collaboration Agreement
Shall have the meaning set forth in the recitals to this Agreement.
2.51 - Optimized Product
Shall mean any compound or target (including without limitation any BAYER
Target or BAYER Compound), other than a Program Diagnostic Product, that results
from a compound or target that is selected, optimized, screened or tested within
or outside of the Pharmacogenomics Program.
2.52 - Party or Parties
Shall mean BAYER or CURAGEN or both, as appropriate.
2.53 - Patent Rights
Shall mean the rights and interests in and to (a) issued patents and
pending patent applications without limitation to any country, including, but
not limited to, all provisional
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
11
BAYER and CURAGEN Pharmacogenomics Project Agreement
applications, substitutions, continuations, continuations-in-part, divisions,
and renewals, all letters patent granted thereon, and all reissues,
reexaminations and extensions thereof, and supplemental protection certificates
relating thereto whether owned solely or jointly by a Party or licensed in by a
Party, with the right to grant sublicenses and (b) copyrights with respect to
data.
2.54 - Pharmacogenomics Data
Shall mean, collectively, the Toxicogenomics Reference Data and the BAYER
Data.
2.55 - Pharmacogenomics Program
Shall mean a research and development program pursuant to which CURAGEN
shall use the CURAGEN Discovery Tools and CURAGEN Proprietary DBs (a) during the
Set-Up Phase, to identify Marker Genes, to develop the Predictive Toxicogenomics
Technology and conduct the Proteomics Feasibility Study, (b) during the
Production Phase, to conduct toxicogenomic and pharmacogenomic testing and
analysis of BAYER SNP Targets, BAYER Targets and BAYER Compounds using BAYER
Technology or CURAGEN Technology and (c) during the Pharmacogenomics Program
Term, to identify Marker Genes for the purpose of [___________].
2.56 - Pharmacogenomics Program Term
Shall mean the term of the Pharmacogenomics Program, which shall commence
on the Effective Date and continue for a period of [___________], unless earlier
terminated pursuant to Article VIII below or extended by extension of the Set-up
Phase in accordance with Section 3.00(b)(i) below. The Pharmacogenomics Program
Term shall include the Set-Up Phase Term (as such term may be extended pursuant
to Section 3.00(b)(i) below), and the Production Phase Term.
2.57 - Pharmacogenomics Program Plan
Shall mean the written description of the research to be performed by
CURAGEN and BAYER under the Pharmacogenomics Program as more fully described in
Appendix A attached hereto and as such plan may be updated or amended from time
to time by the Parties.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
12
BAYER and CURAGEN Pharmacogenomics Project Agreement
2.58 - Predictive Toxicogenomics Technology
Shall mean a toxicology screening Technology for the early prediction of
the toxicity of drugs or compounds that is developed by CURAGEN pursuant to
Section 3.00(b)(i) and which is designed primarily to aid in the selection of
lead drug candidates and the optimization of drugs.
2.59 - Production Phase
Shall have the meaning provided in Section 3.00(c)(i) below.
2.60 - Production Phase Term
Shall mean the term of the production phase of the Pharmacogenomics
Program, which shall commence upon the submission by BAYER to CURAGEN of the
initial BAYER Compound or BAYER Target, as the case may be, as provided in
Section 3.00(c) (i) below and continue for a period of [___________] from the
Effective Date, as the same period may be extended, if the Set-Up Phase Term is
extended in accordance with Section 3.00(b)(i) below.
2.61 - Program Diagnostic Product
Shall mean any human diagnostic product or service, other than a CURAGEN
Diagnostic Product, discovered, conceived or reduced to practice by either Party
or their respective Affiliates in the conduct of the Pharmacogenomics Program
including, without limitation, any product designed to (a) identify
predisposition to a particular disease or to confirm the presence or absence of
a Marker Gene, (b) predict drug response or therapeutic effectiveness, (c)
monitor drug response or (d) stratify patient groups.
2.62 - Program Director
Shall have the meaning set forth in Section 3.03 (a) below.
2.63 - Program Funding
Shall have the meaning set forth in Section 5.00(a) of this Agreement
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
13
BAYER and CURAGEN Pharmacogenomics Project Agreement
2.64 - Project Teams
Shall have the meaning set forth in Section 3.03(b) below.
2.65 - Proteomics Feasibility Study
Shall mean a study on proteomics feasibility to be conducted by CURAGEN in
accordance with the criteria set forth in Appendix C attached hereto that
demonstrates, to the reasonable satisfaction of BAYER, the feasibility of
[__________________________________].
2.66 - Proteomics Technology
Shall mean all Patent Rights and Technology that arise directly from the
activities conducted by CURAGEN under the Proteomics Feasibility Study related
to antibody generation.
2.67 - Set-up Phase
Shall have the meaning set forth in Section 3.00(b)(i) below.
2.68 - Set-up Phase Term
Shall mean the term of the Set-up Phase of the Pharmacogenomics Program,
which shall commence on the Effective Date and shall continue until the earlier
of (i) the completion of the Set-Up Phase and (ii) a period [___________];
provided, that, the Set-up Phase Term, at BAYER's option, shall be extended for
[___________] in accordance with Section 3.00(b)(i) below.
2.69 - Stock Purchase Agreement
Shall have the meaning set forth in the recitals to this Agreement.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
14
BAYER and CURAGEN Pharmacogenomics Project Agreement
2.70 - Technology
Shall mean all (a) inventions, discoveries, improvements, trade secrets
and proprietary methods and materials, whether or not patentable, including but
not limited to, samples of, the methods of production or use of, and structural
and functional information pertaining to, chemical compounds, proteins or other
biological substances, (b) information, data and formulations (including any
negative results), and (c) techniques and trade secrets. "Technology" of a
Party includes Technology owned by a Party or licensed to that Party with a
right to grant sublicenses without violating the terms of any agreement or
arrangement with any Third Party.
2.71 - Terminating Party
Shall have the meaning set forth in Section 8.02 of this Agreement.
2.72 - Third Party
Shall mean any person, corporation, firm, limited liability company,
partnership, or other entity, which is not a Party or an Affiliate of a Party.
2.73 - Toxicogenomics Reference Data
Shall mean the data generated or used by CURAGEN in the Set-up Phase of
the Pharmacogenomics Program, including without limitation
[________________________].
2.74 - UNCITRAL
Shall have the meaning set forth in Section 10.14 of this Agreement.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
15
BAYER and CURAGEN Pharmacogenomics Project Agreement
ARTICLE III - PHARMACOGENOMICS PROGRAM
3.00 - Pharmacogenomics Program
(a) General.
(i) Description of Program. BAYER and CURAGEN hereby agree to
conduct the Pharmacogenomics Program so as to collaborate on toxicogenomic and
pharmacogenomic technologies for use in (A) the identification of gene-based
toxicity markers, development and operation of toxicity assays, the generation
and maintenance of databases [__________________________________________]; and
(B) gene expression profiling of animal and human cells in [______________] to
assess and predict their pharmacological effectiveness. It is expected that the
Pharmacogenomics Program will consist of two primary phases, designated herein
as the Set-up Phase and the Production Phase.
(ii) Conduct of Program. Each Party agrees to (A) undertake the
responsibilities assigned to such Party in the Pharmacogenomics Program Plan,
including, but not limited to, the dedication of resources appropriate to such
efforts and (B) make available to the other Party those resources set forth in
the Pharmacogenomics Program Plan. In addition, each Party agrees to carry out
all work done in the course of the Pharmacogenomics Program in material
compliance with all applicable federal, state or local laws, regulations and
guidelines governing the conduct of such work, including, without limitation,
all applicable export and import control laws.
(iii) Biological Materials. For purposes of facilitating the conduct
of the Pharmacogenomics Program, each Party shall provide to the other Party, at
its sole expense, such animal or human tissues, cells, blood samples and other
materials ("Biological Materials") specified from time to time in the
Pharmacogenomics Program Plan. The Parties agree that: (A) all Biological
Materials provided by one Party to the other shall be used solely for research
purposes in the Pharmacogenomics Program; (B) the Party providing such
Biological Materials shall obtain (or cause its Third Party collaborators to
obtain or certify that they have obtained) all appropriate and required consents
from the source of such Biological Materials; and
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
16
BAYER and CURAGEN Pharmacogenomics Project Agreement
(C) Biological Materials provided by one Party to the other shall not be made
available by the receiving Party to any Third Party except pursuant to the
Pharmacogenomics Program or upon the prior written consent of the Party
providing such Biological Materials.
(b) Set-up Phase.
(i) General. During the Set-up Phase of the Pharmacogenomics
Program (the "Set-up Phase"), CURAGEN shall use reasonable commercial efforts,
in accordance with the Pharmacogenomics Program Plan, to (A) create a database
of Marker Genes and (B) develop the Predictive Toxicogenomics Technology
[__________________________________________]. The Set-up Phase shall commence on
the Effective Date and continue for the duration of the Set-up Phase Term,
unless earlier terminated in accordance with Section 3.00(c)(iv)(A) below.
Notwithstanding the foregoing, it is hereby acknowledged and agreed that the
Set-up Phase Term shall, at BAYER's option, be extended [________________] if
the activities to be conducted in the Set-up Phase, as described in the
Pharmacogenomics Program Plan, are not completed on or before expiration of
[________________].
(ii) CURAGEN Obligations and Deliverables. Subject to the payment by
BAYER of the Program Funding in accordance with Section 5.01 hereof and the
execution and delivery by the Parties of, and the closing of the transaction
contemplated by, the Stock Purchase Agreement, CURAGEN shall use reasonable
commercial efforts to deliver to BAYER, as promptly as practicable and in any
event on or before the expiration of the Set-up Phase Term: (A) the Predictive
Toxicogenomics Technology meeting the specifications set forth in Section
3.00(b)(i) above; (B) the Toxicogenomics Reference Data; and (C) the Proteomics
Feasibility Study (collectively, the "CURAGEN Deliverables").
(iii) Performance Criteria. During the Set-up Phase, CURAGEN shall
use reasonable commercial efforts to achieve the following performance criteria
within the following time frames:
(A) Demonstration to BAYER's reasonable satisfaction, on or
before [___________________________________],
[_____________________________________].
(B) Demonstration to BAYER's reasonable satisfaction, on or
before [___________________________________],
[_____________________________________].
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
17
BAYER and CURAGEN Pharmacogenomics Project Agreement
In the event that the Parties disagree as to whether any of the foregoing
performance criteria have been achieved, the matter shall not be treated as a
Designated Scientific Issue in accordance with Section 3.05 of this Agreement.
(iv) Effect of Criteria.
(A) In the event that CURAGEN fails to achieve the performance
criteria set forth in Section 3.00(b)(iii)(A) above within the applicable time
frame, BAYER shall have the right to terminate this Agreement pursuant to
Section 3.00(c)(iv) below.
(B) In the event that CURAGEN achieves the performance criteria
set forth in Section 3.00(b)(iii)(B) above within the applicable time frame, the
Parties shall promptly enter into good faith discussions, based on the price
specifications set forth in Appendix B (plus a profit factor), for a period of
[___________] from the date the performance criteria is achieved for an
amendment to this Agreement to expand the scope of the Pharmacogenomics Program,
which amendment is expected to include, inter alia, a description of the
additional proteomics research and development activities to be performed by
CURAGEN. If the Parties are unable to agree upon and execute a written amendment
within such [___________] period covering such expanded activities, as such
period may be extended by written agreement of the Parties, no such additional
proteomics activities will be undertaken by CURAGEN in connection with the
Pharmacogenomics Program.
(c) Production Phase.
(i) General. During the production phase of the Pharmacogenomics
Program (the "Production Phase") CURAGEN shall (A) conduct toxicogenomic and
pharmacogenomic testing and analysis of BAYER SNP Targets, BAYER Targets and
BAYER Compounds using CURAGEN Discovery Tools and (B) analyze and use Marker
Genes to screen BAYER Compounds for toxicity using the Predictive Toxicogenomics
Technology for the purpose of optimizing and developing BAYER Products, all in
accordance with the Pharmacogenomics Program Plan. The Production Phase shall
commence on the date of submission by BAYER to CURAGEN of the initial BAYER
Target or BAYER Compound, as the case may be, as provided in Section 3.00(c)(ii)
below and shall continue for the duration of the Production Phase Term, unless
earlier terminated in accordance with Article VIII below. The Production Phase
Term
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
18
BAYER and CURAGEN Pharmacogenomics Project Agreement
shall be extended to reflect such additional period(s) as the Set-Up Phase Term
may be extended pursuant to Section 3.00(b)(i).
(ii) BAYER Obligations. During each full year of the Production
Phase Term, BAYER shall submit a minimum of [______________] and a maximum of
[______________] BAYER SNP Targets for SNP analysis by CURAGEN as described in
Section 3.00(c)(iii)(A) and BAYER Targets for pathway analysis by CURAGEN as
described in Section 3.00(c)(iii)(B) and a minimum of [______________] and a
maximum of [______________] BAYER Compounds for screening with the Predictive
Toxicogenomics Technology as described in Section 3.00(c)(i) (B) above.
(iii) CURAGEN Obligations. During the Production Phase Term, CURAGEN
shall perform the following services for BAYER in consideration of BAYER's
payment of the applicable fees for such services:
(A) SNP Analysis. Upon the submission by BAYER to CURAGEN of
each BAYER SNP Target, CURAGEN shall use its SNPCalling technology to
identify single nucleotide polymorphisms for such BAYER SNP Target
(using a minimum of [______________]) and allele frequency
determinations for identified haplotypes across a panel of
[______________]. So long as BAYER submits BAYER SNP Targets at an
average rate no greater than [______________] BAYER SNP Target per
week during the Production Phase Term, CURAGEN will complete the SNP
Calling services for each BAYER SNP Target within [______________] of
receipt by CURAGEN of each BAYER SNP Target, consisting of
[__________________________________________________]. For purposes of
this Section 3.00(c)(iii)(A), "submission" of a BAYER SNP Target shall
mean the receipt by CURAGEN of a BAYER SNP Target in a vector proposed
by BAYER and reasonably acceptable to CURAGEN.
(B) Pathway Analyses. Upon the submission of a BAYER Target by
BAYER to CURAGEN, CURAGEN shall provide the following analyses to
BAYER:
(1) Pathway Analysis. CURAGEN shall perform pathway
analysis of each BAYER Target, which will involve
[_________________________].
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
19
BAYER and CURAGEN Pharmacogenomics Project Agreement
(2) RTQ PCR Analysis. CURAGEN shall perform RTQ PCR
analysis of each BAYER Target, which will involve
[_________________________].
For purposes of this Section 3.00(c)(iii)(B),
"submission" shall mean the receipt of BAYER Target in a vector
proposed by BAYER and reasonably acceptable to CURAGEN.
(C) Predictive Toxicogenomics Screening and Expression Analyses. Upon
the submission by BAYER to CURAGEN of a BAYER Compound during the
Production Phase, CURAGEN shall provide the following services to
BAYER:
(1) Predictive Toxicogenomics Screening. CURAGEN shall perform
predictive toxicogenomics screening of BAYER Compounds using the
Predictive Toxicogenomics Technology developed in the Set-up Phase.
CURAGEN will begin predictive toxicity screening at any time
following CURAGEN's achievement of the performance criteria
described in Section 3.00 (b) (iii)(A) above. The Parties hereby
agree that such predictive toxicity screening activities may involve
lead optimization of BAYER Compounds by BAYER and/or screening of
selected BAYER Compounds by CURAGEN.
(2) GeneCalling Expression Profiling. CURAGEN shall provide
GeneCalling expression profiling of the effect of BAYER Compounds on
Marker Genes and will provide comparative data to BAYER using the
Pharmacogenomics Data developed in the Set-up Phase.
(D) Reports on Results of Services. Promptly upon completion of any
of the services provided by CURAGEN to BAYER pursuant to this Section
3.00(c)(iii), CURAGEN shall provide to BAYER a report summarizing the
analysis and results thereof. The form of such report will be agreed
upon by the Parties and will be made available by CURAGEN to BAYER
through its GeneScape(R) software. In addition, CURAGEN will work with
BAYER to [______________].
(iv) Early Termination of this Agreement.
(A) BAYER may terminate this Agreement (a) at any time on or
[_________________________________________], upon not less than
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
20
BAYER and CURAGEN Pharmacogenomics Project Agreement
[___________] written notice to CURAGEN, if CURAGEN fails to achieve
the performance criteria described in Section 3.00(b)(iii)(A) of this
Agreement or (b) if CURAGEN has failed to deliver the CURAGEN
Deliverables as of the date of expiration of the Set-Up Phase.
(B) BAYER may terminate this Agreement upon not less than
[___________] prior written notice, if (1)
[______________________________________]; (2) CURAGEN fails to cure
such failure within [___________] of CURAGEN's receipt of written
notice from BAYER of such failure; and (3) [____________________].
(d) Priority of Services. Subject to the payment by BAYER of the Program
Funding described in Article V of this Agreement, CURAGEN shall provide, at its
sole expense, the personnel and resources necessary to provide the services
contemplated by the Pharmacogenomics Program Plan. In connection therewith, if
at any time during the Production Phase Term, CURAGEN experiences capacity
constraints in providing the commercial services of the types provided to BAYER
that CURAGEN also offers to Third Parties, then CURAGEN hereby agrees
[_______________________________________________________________].
3.01 - Collaborative Efforts and Reports
(a) Cooperation of the Parties. The Parties agree that the successful
execution of the Pharmacogenomics Program will require the collaborative use of
both Parties' areas of expertise. In connection therewith, CURAGEN shall furnish
BAYER quarterly summary written reports within ten (10) business days after the
end of each quarter during the Pharmacogenomics Program Term, describing the
progress of its activities in reasonable detail, including a summary of the
progress of the Pharmacogenomics Program by CURAGEN. From time to time during
the Set-up Phase Term, upon the reasonable advance written request of BAYER,
CURAGEN will provide to BAYER an update of the status of the Pharmacogenomics
Program.
(b) Use of Personnel. Scientists at CURAGEN and BAYER shall cooperate in
the performance of the Pharmacogenomics Program and, subject to any
confidentiality obligations to Third Parties, shall exchange information and
materials (including BAYER Proprietary Material)
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
21
BAYER and CURAGEN Pharmacogenomics Project Agreement
as necessary to carry out the Pharmacogenomics Program. Each Party will attempt
to accommodate any reasonable request of the other Party to send or receive
personnel for purposes of collaborating or exchanging information under the
Pharmacogenomics Program. Such visits and/or access will have defined purposes
and be scheduled in advance. Each Party will bear its own travel and lodging
costs related to such meetings.
(c) Access to GeneScape Software. During the Pharmacogenomics Program
Term, CURAGEN will provide BAYER with non-exclusive access to its GeneScape
software to enable BAYER to view data associated with the Pharmacogenomics
Program. BAYER hereby acknowledges and agrees that such access shall be granted
pursuant to the terms of the software license set forth on Appendix E attached
hereto and in accordance with Section 3.00(c)(iii)(D) above.
3.02 - Non-Exclusivity
Except as expressly set forth in this Agreement, nothing contained in this
Agreement shall in any way restrict CURAGEN's right to perform research for, or
to collaborate with, any Third Parties to the extent that any such research or
collaboration would not conflict with the provisions hereof. The foregoing
notwithstanding, it is clearly understood and agreed that CURAGEN is not
permitted to use, share or otherwise disclose the results of any research or
collaboration conducted hereunder, except as otherwise permitted hereby.
3.03 - Program Directors and Project Teams
(a) Appointment of Program Directors. Within thirty (30) business days of
the Effective Date, BAYER and CURAGEN shall each appoint a senior research
scientist or executive (each, a "Program Director") to each serve as an
executive director to oversee jointly the operations of the Pharmacogenomics
Program and to make recommendations to the Parties for modifications of, or
amendments to, the Pharmacogenomics Program Plan. During the Pharmacogenomics
Program Term, the BAYER Program Director shall be permitted to reside at
CURAGEN, at BAYER's sole expense, for at least six (6) months of each year in
order to facilitate conducting the Pharmacogenomics Program. The Program
Directors will (i) commit
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
22
BAYER and CURAGEN Pharmacogenomics Project Agreement
substantially all of his/her working hours to the Pharmacogenomics Program and
(ii) have access to the offices and data related to the Pharmacogenomics Program
and personnel of the other Party to the extent necessary to facilitate the close
and direct collaboration of the Parties contemplated by the Pharmacogenomics
Program Plan related to the Pharmacogenomics Program.
(b) Project Teams. The Program Directors shall each appoint personnel to
serve on project teams ("Project Teams") to supervise and/or perform the various
tasks required under the Pharmacogenomics Program. The Project Team will
consist of an equal number of representatives of each Party. Each Party shall
have the right to replace its representatives at any time during the term of
this Agreement by providing written notice to the other Party. During the
Pharmacogenomics Program Term, BAYER and CURAGEN will each commit to the
Pharmacogenomics Program the FTE levels for their respective Project Team
Members set forth in the Pharmacogenomics Program Plan.
3.04 - Executive Level Meetings
The President of CURAGEN and the Head of Worldwide Pharmaceutical Research
for BAYER shall meet at least annually but more or less frequently if
appropriate or necessary and upon mutual agreement of both Parties, with such
meetings to be held alternating in New Haven, Connecticut, USA, or Wuppertal,
Germany, unless the Parties agree otherwise. Meetings may also be held by
conference telephone or videoconference upon mutual agreement.
3.05 - Decisions
Each Project Team shall decide matters directly related to the scope of its
responsibilities by the mutual consensus of its members. If any matter cannot
be resolved on a consensus basis, then such matter will be referred to the
Program Directors for resolution at a Program Director Meeting. In the event
that the Program Directors are unable to reach agreement on any matter within
thirty (30) days, the issue will be referred for resolution to the president of
CURAGEN and the Head of Worldwide Pharmaceutical Research at BAYER. If these
two individuals are unable to resolve the matter within thirty (30) days (a) if
the matter does not relate to a
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
23
BAYER and CURAGEN Pharmacogenomics Project Agreement
Designated Scientific Issue, either Party may refer the matter to binding
arbitration in accordance with Section 10.14 and (b) if the matter relates to a
Designated Scientific Issue, the Parties will resolve that matter through the
use of an expedited mediation process, which shall be mediated by a scientist
mutually acceptable to both Parties. If the Parties are unable to agree on a
single scientist to serve as mediator within twenty (20) days, each Party will
appoint an unaffiliated scientist who shall together select a third unaffiliated
scientist to serve as mediator. The selected mediator will review the Designated
Scientific Issue on an expedited basis, considering the relevant data, the
standards established by this Agreement and the Pharmacogenomics Program Plan
and relevant precedents. The decision of the mediator will be binding on the
Parties.
3.06 - Expenses
CURAGEN and BAYER shall each bear all expenses related to the activities of
their respective Project Directors and Project Team members contemplated by this
Agreement. Notwithstanding the foregoing, it is hereby agreed that CURAGEN
shall bear all expenses related to the use by the BAYER Program Director of
CURAGEN's facility in accordance with Section 3.03(a) above.
ARTICLE IV - LICENSES; PROGRAM DIAGNOSTIC PRODUCTS; CURAGEN DIAGNOSTIC PRODUCTS-
4.00 -Licenses to BAYER
(a) Commercialization Licenses to BAYER. CURAGEN hereby grants to BAYER
and its Affiliates
[_______________________________________________________________].
(b) Royalties. It is hereby acknowledged and agreed by the Parties that
[__________________________________________________________________________].
4.01 - Licenses to CURAGEN
(a) Research License to CURAGEN. BAYER hereby grants to CURAGEN, during
the Pharmacogenomics Program Term, [______________________________________].
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
24
BAYER and CURAGEN Pharmacogenomics Project Agreement
(b) Commercialization Licenses to CURAGEN. BAYER hereby grants to CURAGEN
[_______________________________________________________________].
(c) Royalties. It is hereby acknowledged and agreed by the Parties that
[_________________________________________________________________________].
(d) Use of BAYER Technology by CURAGEN. Except as expressly permitted by
Sections 4.01(a) and (b) of this Agreement, CURAGEN shall not transfer or
disclose to any Third Party or otherwise use BAYER Technology or BAYER
Proprietary Material for any purpose and keep the same confidential.
(e) Withholding. The Party paying royalties under Section 4.00 or Section
4.01 (the "Royalty Paying Party") shall have the right to withhold from the
royalty payments the tax which the Party receiving such royalties (the "Royalty
Receiving Party") is liable under the appropriate local tax laws and for the
payments of which the Royalty Paying Party is responsible. The Royalty
Receiving Party shall immediately be sent tax receipts by the Royalty Paying
Party certifying the payments of the tax, so that the Royalty Receiving Party
may use it for claiming a credit on the tax payable by the Royalty Receiving
Party in Germany on such payments. No deduction shall be made nor shall a
reduced amount be deducted if the Royalty Receiving Party furnishes a document
from the appropriate tax authorities to the Royalty Paying Party by the time of
the payments certifying that the payments are exempt from tax or subject to a
reduced tax rate according to the convention for the avoidance of double
taxation between the Federal Republic of Germany and the United States of
America. Except for such withholding taxes, any taxes, assessments, fees and
charges imposed against payments due the Royalty Receiving Party hereunder shall
be borne by the Royalty Paying Party.
4.02 - Diagnostic Products
In the event that CURAGEN shall discover or develop a Diagnostic
Product during the Pharmacogenomics Program Term, it shall provide prompt
written notice of same (the "CURAGEN Notice") to BAYER together with a
description of such Diagnostic Product specifying whether such Diagnostic
Product is a CURAGEN Diagnostic Product or a Program
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
25
BAYER and CURAGEN Pharmacogenomics Project Agreement
Diagnostic Product and any other information available to CURAGEN which CURAGEN
reasonably determines may be useful to BAYER to evaluate the commercial
potential of such Diagnostic Product.
[__________________________________________________________].
ARTICLE V - FUNDING OF PHARMACOGENOMICS PROGRAM
5.00 - Funding
(a) Program Funding. Subject to the terms and conditions of this
Agreement, BAYER shall be obligated to commit thirty nine million dollars
($39,000,000) to fund the Pharmacogenomics Program (the "Program Funding"),
subject to reasonable adjustment
[______________________________________________________________________].
(b) Set-up Phase Funding. Subject to the terms and conditions of this
Agreement, BAYER shall pay CURAGEN an aggregate of
[_____________________________] to fund the Set-up Phase of the Pharmacogenomics
Program, [___________] of which shall be payable in the [__________] the Set-up
Phase in advance in quarterly installments on the first day of each calendar
quarter during the Set-up Phase and [___________] of which is payable upon the
delivery by CURAGEN of the CURAGEN Deliverables. The Parties hereby acknowledge
and agree that the Set-up Phase Funding may be adjusted from time to time during
the Set-up Phase Term to reflect any changes in the Pharmacogenomics Program
agreed to by the Parties. Notwithstanding the foregoing, CURAGEN hereby
acknowledges and agrees that it shall be obligated to perform obligations
related to [________________________].
(c) Production Phase Funding and Costs. Subject to the terms and
conditions of this Agreement, BAYER shall pay CURAGEN an aggregate
[_____________________________] to fund the Production Phase of the
Pharmacogenomics Program. [____________________].
5.01 - Service Price Adjustment.
CURAGEN hereby acknowledges and agrees that such prices shall be adjusted
[_____________________________________________________________________].
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
26
BAYER and CURAGEN Pharmacogenomics Project Agreement
ARTICLE VI - TREATMENT OF CONFIDENTIAL INFORMATION
6.00 - Confidential Information
All Confidential Information disclosed by a Party or its Affiliates to the
other Party or its Affiliates during the term of this Agreement shall not be
used by the receiving Party except in connection with the activities
contemplated by this Agreement, shall be maintained in confidence by the
receiving Party (except to the extent reasonably necessary for regulatory
approval of BAYER Products developed by BAYER or any of its Affiliates or for
the filing, prosecution and maintenance of Patent Rights), and shall not
otherwise be disclosed by the receiving Party to any other person, firm, or
agency, governmental or private, without the prior written consent of the
disclosing Party, except to the extent that the Confidential Information (as
determined by competent documentation):
(i) was known or used by the receiving Party or its Affiliates prior to
its date of disclosure to the receiving Party; or
(ii) either before or after the date of the disclosure to the receiving
Party or its Affiliates is lawfully disclosed to the receiving Party
or its Affiliates by sources other than the disclosing Party or its
Affiliates rightfully in possession of the Confidential Information;
or
(iii) either before or after the date of the disclosure to the receiving
Party or its Affiliates becomes published or generally known to the
public (including information known to the public through the sale
of products in the ordinary course of business) through no fault or
omission on the part of the receiving Party or its Affiliates or its
sublicensees; or
(iv) is independently developed by or for the receiving Party or any of
its Affiliates without reference to or reliance upon the
Confidential Information; or
(v) is required to be disclosed by the receiving Party or its Affiliates
to comply with applicable laws, by governmental or judicial order,
to defend or prosecute litigation or to comply with governmental
regulations, provided that the receiving Party or its Affiliate, as
appropriate, provides prior written notice of such
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
27
BAYER and CURAGEN Pharmacogenomics Project Agreement
disclosure to the disclosing Party and takes reasonable and lawful
actions to avoid and/or minimize the degree of such disclosure.
Such obligations of confidentiality and non-use shall remain in effect for a
period of five (5) years after the termination or expiration of this Agreement.
6.01 - Publications
Neither Party shall publish or otherwise publicly disclose the results of
any work or activities conducted under this Agreement without prior written
consent of the other Party. The publishing Party, upon the other Party's
written approval, shall acknowledge contributions by the other Party in any
publication. In order to safeguard intellectual property rights and
Confidential Information, the Party wishing to publish such intellectual
property and/or Confidential Information shall first submit a draft of any
proposed manuscript to the other Party for review, comment and consideration of
appropriate patent application preparation activity at least sixty (60) business
days prior to any submission for publication or other public disclosure. The
other Party will advise the Party seeking publication as to whether a patent
application will be prepared and filed or whether trade secret protection should
be pursued or whether Confidential Information should be deleted. Both Parties
will discuss in good faith to determine the appropriate timing and content of
any such publications. The other Party can request that the publishing Party
delays publication for up to an additional sixty (60) business days for the
purpose of preparation of an appropriate patent application(s) or redrafting to
delete Confidential Information.
6.02 - Press Release and Regulatory Filings
The Parties shall agree upon a press release with respect to the execution
of this Agreement. Except as required by law or by a stock exchange or
quotation system, any subsequent announcements or similar publicity shall be
agreed upon between the Parties as set forth below. Each Party understands that
this Agreement is likely to be of significant interest to investors, analysts
and others, and that either Party therefore may make such public announcements
with respect thereto. The Parties agree that any such announcement will not
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
28
BAYER and CURAGEN Pharmacogenomics Project Agreement
contain confidential business or technical information and, if disclosure of
confidential business or technical information is required by law or regulation,
will make reasonable efforts to minimize such disclosure and obtain confidential
treatment for any such information which is disclosed to a governmental agency
or group. Each Party agrees to provide to the other Party with a copy of any
public announcement as soon as reasonably practicable under the circumstances
prior to its scheduled release. Except under extraordinary circumstances, each
Party shall provide the other with an advance copy of any press release at least
five (5) business days prior to the scheduled disclosure. Each Party shall have
the right to expeditiously review and recommend changes to any announcement
regarding this Agreement or the subject matter of this Agreement; provided,
however that such right of review and recommendation shall only apply for the
first time that specific information is to be disclosed, and shall not apply to
the subsequent disclosure of substantially similar information that has
previously been disclosed. Except as otherwise required by law or by a stock
exchange or quotation system, the Party whose press release has been reviewed
shall remove any information the reviewing Party reasonably deems to be
inappropriate for disclosure.
ARTICLE VII - INTELLECTUAL PROPERTY RIGHTS; FILING, PROSECUTION AND MAINTENANCE
OF PATENT RIGHTS
7.00 - BAYER Intellectual Property Rights
(a) BAYER Technology. BAYER shall have sole and exclusive ownership of all
right, title and interest on a worldwide basis in and to any and all BAYER
Technology, with full rights to license or sublicense, subject to the
obligations under Article IV and Article VIII as set forth herein. Without
limiting the foregoing, BAYER shall be the sole owner of all Patent Rights,
trade secret rights, Technology and any other intellectual property rights in
the BAYER Technology, including the exclusive right to exclude others from
making, using, selling, offering for sale or importing the BAYER Technology and
any BAYER Products derived therefrom.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
29
BAYER and CURAGEN Pharmacogenomics Project Agreement
(b) BAYER Proprietary Material. The BAYER Proprietary Material shall
remain the property of BAYER. CURAGEN's rights to use the BAYER Proprietary
Material will be governed by the provisions of this Agreement.
(c) Further Assurances. CURAGEN agrees to execute all documents,
including, but not limited to, any assignments, deemed reasonably necessary by
BAYER to assign to BAYER all of CURAGEN's ownership rights with respect to the
BAYER Technology and any BAYER Products derived therefrom.
7.01 - CURAGEN Intellectual Property Rights
(a) CURAGEN Technology. CURAGEN shall have sole and exclusive ownership of
all right, title and interest on a worldwide basis in and to any and all CURAGEN
Technology, with full rights to license or sublicense, subject to the
obligations under Article IV, VIII and IX as set forth herein. Without limiting
the foregoing, except as otherwise provided herein, CURAGEN shall be the sole
owner of all Patent Rights, all trade secret rights, all Technology and any
other intellectual property rights in the CURAGEN Technology including the
exclusive right to exclude others from making, using, selling, offering for sale
or importing the CURAGEN Technology or any products derived from any CURAGEN
Technology.
(b) CURAGEN Proprietary Material. CURAGEN Discovery Tools; CURAGEN
Proprietary DBs. The CURAGEN Proprietary Material, the CURAGEN Discovery Tools
and the CURAGEN Proprietary DBs shall remain the property of CURAGEN. BAYER's
rights to use the CURAGEN Proprietary Material, CURAGEN Discovery Tools and
CURAGEN Proprietary DBs will be governed by the provisions of this Agreement.
(c) Further Assurances. BAYER agrees to execute all documents, including,
but not limited to, any assignments deemed reasonably necessary by CURAGEN to
assign to CURAGEN all of BAYER's ownership rights with respect to the CURAGEN
Technology.
7.02 - Filing, Prosecution and Maintenance of Patent Rights
During the Pharmacogenomics Program Term, with respect to any Patent Rights
arising under the Pharmacogenomics Program, the following provisions shall
apply.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
30
BAYER and CURAGEN Pharmacogenomics Project Agreement
(a) Responsibility for Filing and Prosecution of Patents.
(i) Subject to subsection (ii) of this Section 7.02(a), CURAGEN, at
its sole expense and acting through patent attorneys or agents of its choice,
shall prepare, file prosecute and maintain all Patent Rights relating to the
CURAGEN Technology, the Marker Genes and any CURAGEN Diagnostic Products that
have reverted to CURAGEN in accordance with Section 4.02 of this Agreement. In
the event that any invention shall be made that constitutes CURAGEN Program
Technology or that relates to Marker Genes and which CURAGEN believes should be
patented, CURAGEN shall notify BAYER accordingly and shall consult with BAYER
with respect to its strategy for seeking patent protection for the said
invention. CURAGEN shall give reasonable consideration to any suggestions or
recommendations of BAYER concerning the preparation and filing of patent
applications covering the said invention and the countries in which applications
should be filed. CURAGEN shall notify BAYER of its proposed filing at least
sixty (60) days prior to the deadline for filing. BAYER agrees to provide
reasonable assistance and cooperation to CURAGEN to facilitate the preparation
and filing of any such patent applications. In the event that BAYER wishes a
patent application to be filed in respect of the said invention in a particular
country in which CURAGEN does not propose to file, then the costs of filing and
prosecuting that application in that country shall be borne entirely by BAYER,
who shall be entitled to use for that purpose patent attorneys or agents of its
choice.
(ii) Subject to subsection (i) of this Section 7.02(a), BAYER, at
its sole expense and acting through patent attorneys or agents of its choice,
shall prepare, file, prosecute and maintain all Patent Rights relating to the
BAYER Technology (other than with respect to Marker Genes), Program Diagnostic
Products, any CURAGEN Diagnostic Products that are deemed to be a Program
Diagnostic Product under Section 4.02 of this Agreement and, to the extent not
covered in a patent filed pursuant to subsection (i) above, all Patent Rights
relating to BAYER Products. In the event that any invention shall be made that
constitutes BAYER Program Technology (other than with respect to Marker Genes),
or that covers a BAYER Product and which BAYER believes should be patented,
BAYER shall notify CURAGEN accordingly and shall consult with
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
31
BAYER and CURAGEN Pharmacogenomics Project Agreement
CURAGEN with respect to its strategy for seeking patent protection for the said
invention. BAYER shall give reasonable consideration to any suggestions or
recommendations of CURAGEN concerning the preparation and filing of patent
applications covering the said inventions and the countries in which
applications should be filed. BAYER shall notify CURAGEN of BAYER's proposed
filing at least sixty (60) days prior to the deadline for filing. CURAGEN agrees
to provide reasonable assistance and co-operation to BAYER to facilitate the
preparation and filing of any such patent applications. In the event that
CURAGEN wishes a patent application to be filed in respect of the said invention
in a particular country in which BAYER does not propose to file, then the costs
of filing and prosecuting that application in that country shall be borne
entirely by CURAGEN who shall be entitled to use for that purpose patent
attorneys or agents of its choice.
(b) Information and Cooperation.
(i) The filing Party shall keep the other Party regularly informed
of the status of the Patent Rights for which the filing Party is responsible in
accordance with this Section 7.02 and shall provide the other Party at least
once per fiscal year with an updated list of the patents and patent applications
comprising its Patent Rights. The filing Party shall additionally notify the
other Party of the grant, lapse, revocation, surrender or abandonment of any
patent or patent application included among the Patent Rights for which the
filing Party is responsible.
(ii) Except as otherwise agreed by the Parties, the filing Party
shall provide copies to the other Party of all filings and correspondence with
the patent offices, administrative boards or courts which the filing Party sends
or receives in connection with filing, prosecution, maintenance and defense of
the Patent Rights for which the filing Party is responsible. The filing Party
shall provide copies of filings and correspondence under the preceding sentence
sufficiently in advance of the due date so as to give the other Party sufficient
time to comment and shall give good faith consideration to the other Party's
comments, which comments shall be offered promptly. The filing Party shall seek
the advice of the other Party with respect to strategy for the Patent Rights
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
32
BAYER and CURAGEN Pharmacogenomics Project Agreement
for which it is responsible and shall give reasonable consideration to any
suggestions or recommendations of the other Party concerning the preparation,
filing, prosecution, maintenance and defense of such Patent Rights. If the
Parties disagree on a particular approach to take with respect to the filing,
prosecution or defense of any Patent Rights relating to BAYER Products, CURAGEN
shall have the right to request BAYER to take whatever action is possible to
protect the interests of CURAGEN, provided that the protection afforded to BAYER
is not diminished.
(c) Abandonment. If a filing Party decides to abandon or to allow to lapse
any of its Patent Rights or, in the case of BAYER, any Patent Rights relating to
a BAYER Product, and, in the case of CURAGEN, any Patent Rights relating to a
Marker Gene, the filing Party shall inform the other Party at least forty-five
(45) days prior to the effective date of such decision and the other Party shall
be given the opportunity to assume responsibility for continuing the prosecution
of such Patent Rights or paying any required fees to maintain such Patent Rights
or defending such Patent Rights at the other Party's sole expense and through
patent attorneys or agents of its choice. The other Party shall not become an
assignee of such Patent Rights as a result of its said assumption of
responsibility. Upon transfer of a Party's responsibility for prosecuting,
maintaining and defending any of its Patent Rights to the other Party under the
preceding sentence, the transferring Party shall promptly deliver to the other
Party all necessary files related to the Patent Rights with respect to which
responsibility has been transferred and shall take all actions and execute all
documents reasonably necessary for the other Party to assume prosecution.
7.03 - Amendment to Patent Rights
The Parties shall mutually agree prior to either Party taking any action
which would amend any patent application or patent within its Patent Rights
licensed to the other Party under this Agreement so as to irrevocably limit or
materially change the lawful scope of such Patent Rights; provided, however,
that such obligation shall not apply to any Patent Rights being
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
33
BAYER and CURAGEN Pharmacogenomics Project Agreement
prosecuted by one Party in which the other Party has no rights (either by
ownership or license) hereunder.
7.04 - Actual or Threatened Infringement.
(a) In the event either Party becomes aware of any possible infringement
or unauthorized possession, knowledge or use of any BAYER Patent Rights or
CURAGEN Patent Rights (an "Infringement"), that Party shall promptly notify the
other Party and provide it with full details.
(b) Except as set forth in Section 7.04(c), the Party owning the affected
Patent Rights shall be primarily responsible for enforcing them against the
infringer at the owning Party's expense and the other Party shall co-operate
fully with the owning Party in taking such action. In the event that the owning
Party is unwilling to enforce its Patent Rights against the infringer, it shall
authorize the other Party, at the other Party's request and expense, to
institute proceedings against the infringer on behalf of the owning Party and,
in any such case, the other Party shall retain any damages awarded against the
infringer.
(c) Notwithstanding the foregoing (i) if any Infringement primarily
affects a BAYER Product or any Marker Gene, BAYER shall be primarily responsible
at its expense for enforcing such affected Patent Rights against the infringer
and (ii) if any Infringement primarily affects the CURAGEN Screening Services or
CURAGEN Services, CURAGEN shall be primarily responsible at its expense for
enforcing the affected Patent Rights against the infringer.
(d) In any suit under this Section 7.04, the Party bringing the suit shall
have the right first to reimburse itself out of any sums recovered in such suit
or in its settlement for all reasonable costs and expenses, including reasonable
attorney's fees, related to such suit or settlement. The remainder is next to
be used to reimburse the other Party for its costs and expenses so incurred, if
any, and then (i) in the event of an action brought by CURAGEN under this
Section 7.04, any amounts recovered shall be added by CURAGEN to its Net Sales
in the payment period in which it is received from the infringing Party and (ii)
in the event of an action brought by BAYER under this Section 7.04, any amounts
recovered shall be added by BAYER to its Net Sales in the payment period in
which it is received from the infringing Party. Each
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
34
BAYER and CURAGEN Pharmacogenomics Project Agreement
Party shall always have the right to be represented by counsel of its own
selection and at its own expense in any suit instituted under this Section by
the other Party for Infringement.
(e) No suit under Section 7.04 may be settled by the Party bringing the
action without the other Party's consent, which shall not be unreasonably
withheld or delayed.
7.05 - Defense of Claims
(a) Except as provided in Section 7.05(b) below, in the event that any
action, suit or proceeding is brought against CURAGEN or BAYER or any Affiliate,
licensee or sublicensee of BAYER, alleging the infringement of the intellectual
property rights of a Third Party by reason of the discovery, development,
manufacture, use, sale, offer for sale or importation of a BAYER Product or use
of BAYER Patent Rights or BAYER Technology in the discovery, development,
manufacture, use, sale, offer for sale, or importation of a BAYER Product, BAYER
will have the obligation to defend itself and CURAGEN in such action, suit or
proceeding at its own expense. CURAGEN shall have the right to separate counsel
at its own expense in any such action or proceeding.
(b) In the event that any action, suit or proceeding is brought against
BAYER or CURAGEN, or any Affiliate, licensee or sublicensee of CURAGEN, alleging
the infringement of the intellectual property rights of a Third Party by reason
of (i) the discovery, development, manufacture, use, sale, offer for sale, or
importation of a BAYER Product that is dominated by CURAGEN Patent Rights, (ii)
the development, use, sale or offer for sale of CURAGEN Services or CURAGEN
Screening Services or (iii) the use of CURAGEN Patent Rights, CURAGEN Licensed
Technology or BAYER Patent Rights in the development, use, sale or offer for
sale of CURAGEN Services or CURAGEN Screening Services, CURAGEN will have the
obligation to defend itself and BAYER in such action, suit or proceeding at its
own expense. BAYER shall have the right to separate counsel at its own expense
in any such action or proceeding.
(c) The Parties will cooperate with each other in the defense of any
such suit, action or proceeding. The Parties will give each other prompt
written notice of the
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
35
BAYER and CURAGEN Pharmacogenomics Project Agreement
commencement of any such suit, action or proceeding or claim of infringement and
will furnish each other a copy of each communication relating to the alleged
infringement. Neither Party shall compromise, litigate, settle or otherwise
dispose of any such suit, action or proceeding which involves the use of the
other's Technology or Patent Rights without the other Party's advice and prior
consent; provided that the Party not defending the suit shall not unreasonably
withhold its consent to any settlement which does not have a material adverse
effect on its business. If the defending Party agrees that the other Party
should institute or join any suit, action or proceeding pursuant to this
Section, the defending Party may at its expense, join the other Party as a Party
to the suit, action or proceeding, and the Party so joined shall execute all
documents and take all other actions, including giving testimony, which may
reasonably be required in connection with the prosecution of such suit, action
or proceeding.
7.06 - Cooperation
Each Party shall, at the expense of the Party bringing any suit, execute
all papers and perform such other acts as may be reasonably required to maintain
any infringement suit brought in accordance with Section 7.04 or 7.05 above
(including giving legal consent for bringing such suit, and agreeing to be named
as either a plaintiff or defendant, or otherwise joined in such suit), and at
its option and expense, may be represented in such suit by counsel of its
choice.
ARTICLE VIII - EXPIRATION AND TERMINATION
8.00 - Term of the Agreement
This Agreement shall become effective on the Effective Date and terminate
upon the expiration of the Pharmacogenomics Program Term, unless both Parties
agree to extend the period or unless the Agreement is earlier terminated in
accordance with the terms and conditions hereof.
8.01 -Termination by Mutual Agreement
The Parties have the right to terminate this Agreement and the
Pharmacogenomics Program at any time by mutual agreement in writing.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
36
BAYER and CURAGEN Pharmacogenomics Project Agreement
8.02 - Termination for Material Breach
This Agreement may be terminated by a Party (the "Terminating Party") upon
any material breach of this Agreement by the other Party (the "Breaching
Party"), effective [___________] after giving written notice to the Breaching
Party of such termination in the case of a payment breach and [___________] days
after giving written notice to the Breaching Party of such termination in the
case of any other material breach, which notice shall describe such breach in
reasonable detail. The foregoing notwithstanding, if the default or breach is
cured or shown to be non-existent within the aforesaid [______________] period,
the notice shall be deemed automatically withdrawn and of no effect.
8.03 - Termination Following Bankruptcy
If either Party makes an assignment for the benefit of creditors, appoints
or suffers appointment of a receiver or trustee over all or substantially all of
its property, files a petition under any bankruptcy or insolvency act or has any
such petition filed against it which is not discharged within [____________] of
the filing thereof, then the other Party may terminate this Agreement by notice
to such Party.
8.04 - Termination by BAYER
(a) Completion of Production Phase. BAYER shall have the right to
terminate this Agreement [_________________________________________________].
(b) Change of Control of CURAGEN. In the event of a Change of Control of
CURAGEN involving a Competitive Entity, CURAGEN shall deliver promptly to BAYER
written notice setting forth the date and circumstances of the Change of Control
and the identity of the Competitive Entity. Upon receipt of such notice, or
upon delivery to CURAGEN of written notice by BAYER that BAYER has otherwise
determined that a Change of Control involving a Competitive Entity has occurred,
and for a period of [___________] thereafter, BAYER shall have the right to
terminate this Agreement effective upon the expiration of [_____________]
period.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
37
BAYER and CURAGEN Pharmacogenomics Project Agreement
8.05 - Effect of Termination
(a) General. Except as set forth in Section 8.05(b) or (c), upon
termination of this Agreement, (i) CURAGEN shall continue to have the rights and
licenses described in Section 4.01(b) above, and (ii) BAYER shall continue to
have the rights and licenses described in Section 4.00 above, subject, in each
case, to continued compliance with obligations related to such licenses, such as
the royalty provisions of Article IV.
(b) Termination Prior to Expiration of Set-Up Phase. In the event that
BAYER terminates this Agreement pursuant to Section 3.00 (c)(iv) (A) (a), all
the licenses (other than the license granted pursuant to Section 4.01 (b) (ii))
granted by BAYER to CURAGEN shall terminate and CURAGEN shall use commercially
reasonable efforts to deliver any portion of the CURAGEN Deliverables which
CURAGEN has produced and not yet delivered to BAYER;
[_________________________________________________________]. If BAYER
terminates this Agreement pursuant to Section 3.00 (c) (iv) (A) (b), (i) all
the licenses granted by BAYER to CURAGEN under this Agreement, other than those
granted pursuant to Section 4.01, shall terminate, (ii) CURAGEN shall use
commercially reasonable efforts to deliver any portion of the CURAGEN
Deliverables which CURAGEN has produced and not yet delivered to BAYER and (iii)
if, within [___________] of such termination, CURAGEN sells, assigns, delivers,
transfers, leases, licenses, sublicenses or otherwise provides services in
connection with such CURAGEN Deliverables to a Third Party, CURAGEN will pay to
BAYER, [_____________________________________________________________].
(c) Termination for Material Breach. Notwithstanding subsection (a) above,
upon termination of this Agreement under Section 8.02 all relevant licenses
granted by the Terminating Party to the Breaching Party hereunder shall
automatically terminate, and if the Breaching Party is CURAGEN, CURAGEN shall be
deemed, without further action, to have forfeited its license from BAYER to
commercialize CURAGEN Screening Services and CURAGEN Services. Notwithstanding
the foregoing, the Parties hereby agree that nothing in this Section 8.05(c)
shall affect BAYER's ownership rights with respect to BAYER Targets,
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
38
BAYER and CURAGEN Pharmacogenomics Project Agreement
BAYER Proprietary Materials, BAYER Compounds and BAYER SNP Targets or CURAGEN's
ownership rights with respect to CURAGEN Proprietary Materials.
(d) Additional Rights Upon Termination. Upon termination of this Agreement
for any reason, other than because of a breach by BAYER pursuant to Section
8.02, (i) CURAGEN shall (A) be deemed to have granted to BAYER and its
Affiliates, without any further action by the Parties, a non-exclusive,
perpetual, royalty-free, worldwide license under CURAGEN's interest in the
Predictive Toxicogenomics Technology and the Proteomics Technology for the
purpose of manufacturing, having manufactured using, selling developing and/or
having developed, BAYER Products and (B) grant to BAYER a non-exclusive,
perpetual license under CURAGEN's interest in the Discovery Tool Technology and
Discovery Tool Improvements for the purpose of developing BAYER Products on
terms financially equivalent to those CURAGEN is then receiving from its most
favored Third Party customers and subscribers, as negotiated by the Parties in
good faith and (ii) CURAGEN shall provide BAYER with any copies of the
Pharmacogenomics Data that CURAGEN did not previously deliver to BAYER prior to
the termination of the Pharmacogenomics Program. The license in (d)(i)(B) above
shall include the terms of the software license as set forth in Appendix E
attached hereto.
8.06 - Obligations
Upon any termination of this Agreement, the Parties shall remain liable for
all obligations accruing prior to the date of termination.
8.07 - Remedies
If either Party shall fail to perform or observe its material obligations,
or otherwise breaches any of its material obligations under this Agreement, in
addition to any right to terminate this Agreement, the non-defaulting Party
shall have the right to any other relief or remedies available under law or
equity.
8.08 - Surviving Provisions
Except as provided in Subsections 8.05(b) and (c) and Section 10.27, the
rights and obligations set forth in Articles IV (other than 4.01(a)) VI, VII, IX
and X and Sections 8.05, 8.06, 8.07, and 8.08 shall survive expiration or
termination of this Agreement.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
39
BAYER and CURAGEN Pharmacogenomics Project Agreement
ARTICLE IX - ▇▇▇▇▇ ▇▇▇▇ PROCESSING FACILITY; NON-COMPETE AGREEMENT
9.00 - BAYER Facility
(a) Upon BAYER's written request, which request shall not be made at
any time earlier than one (1) year prior to the expiration of the
Pharmacogenomics Program Term, or upon any termination of the Pharmacogenomics
Program for any reason other than (i) by CURAGEN pursuant to Section 8.02 for
breach of this Agreement by BAYER [or (ii) by BAYER pursuant to Section
3.00(c)(iv) above], CURAGEN [___________________________________________]. The
license described in Section 9.00(a)(ii) above shall include the terms of the
software license as set forth in Appendix E attached hereto.
(b) BAYER shall pay CURAGEN for its consulting services described above
[____________________________________].
9.01 - Non-Competition.
In consideration of the performance by CURAGEN of the services and the
grant to BAYER of the licenses described in this Article IX, BAYER hereby agrees
that during the period
[___________________________________________________________________].
ARTICLE X - REPRESENTATIONS AND WARRANTIES; MISCELLANEOUS
10.00 - Due Organization.
BAYER and CURAGEN each represents and warrants to the other that as of the
Effective Date it (a) is a company duly organized, validly existing, and in good
standing under the laws of the jurisdiction of organization; (b) is duly
qualified as a corporation and in good standing under the laws of each
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification, where the failure to be so qualified would
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
40
BAYER and CURAGEN Pharmacogenomics Project Agreement
have a material adverse effect on its financial condition or its ability to
perform its obligations hereunder; (c) has the requisite corporate power and
authority and the legal right to conduct its business as now conducted and
hereafter contemplated to be conducted; (d) has all necessary licenses, permits,
consents, or approvals from or by, and has made all necessary notices to, all
governmental authorities having jurisdiction, to the extent required for such
ownership and operation; and (e) is in compliance with its certificate of
incorporation (or equivalent organizational document) as applicable, and by-
laws.
10.01 - Consents.
BAYER and CURAGEN each represents and warrants to the other that all
necessary consents, approvals and authorizations of all government authorities
and other persons required to be obtained by such Party in connection with the
execution, delivery and performance of this Agreement have been and shall be
obtained, except with respect to approvals required under the HSR Act.
10.02 - Execution, Delivery and Performance.
BAYER and CURAGEN each represents and warrants to the other that the
execution, delivery and performance of this Agreement by such Party and all
instruments and documents to be delivered by such Party hereunder (a) are within
the corporate power of such Party; (b) have been duly authorized by all
necessary or proper corporate action; (c) do not conflict with any provision of
the certificate of incorporation (or equivalent organizational document), as
applicable, or by-laws of such Party; (d) will not violate any law or regulation
or any order or decree of any court of governmental instrumentality; (e) will
not violate any terms of any indenture, mortgage, deed of trust, lease,
agreement, or other instrument to which such Party is a party or by which such
Party or any of its property is bound, which violation would have a material
adverse effect on its financial condition or on its ability to perform its
obligations hereunder; and (f) do not require any filing or registration with or
the consent or approval of any governmental body, agency, authority or any other
Person, which has not been made or obtained previously, other than to the U.S.
Department of Justice with respect to the HSR Act, to the FDA or equivalent
regulatory agency in a country or group of countries other than the United
States.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
41
BAYER and CURAGEN Pharmacogenomics Project Agreement
10.03 - Legal, Valid and Binding Obligation.
BAYER and CURAGEN each represents and warrants to the other that this
Agreement has been duly executed and delivered by such Party and constitutes a
legal, valid and binding obligation of such Party, enforceable against such
Party in accordance with its terms, except as such enforceability may be limited
by applicable insolvency and other laws affecting creditors' rights generally or
by the availability of equitable remedies.
10.04 - No Conflict.
BAYER and CURAGEN each represents and warrants to the other that
notwithstanding anything to the contrary in this Agreement, the execution and
delivery of this Agreement, the performance of such Party's obligations
hereunder and the conduct of the Pharmacogenomics Program (a) do not conflict
with or violate any requirement of applicable laws or regulations and (b) do not
and will not conflict with, violate or breach or constitute a default or require
any consent under, any contractual obligations of such Party, except such
consents as shall have been obtained prior to the Effective Date.
10.05 - Employee Obligations.
BAYER and CURAGEN each represents and warrants to the other that all of its
employees, officers, and consultants have executed agreements or have existing
obligations under law requiring, in the case of employees and officers,
assignment to such Party of all inventions made during the course of and as the
result of their association with such Party and obligating the individual to
maintain as confidential such Party's Confidential Information as well as
confidential information of a Third Party which such Party may receive, to the
extent required to support such Party's obligations under this Agreement.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
42
BAYER and CURAGEN Pharmacogenomics Project Agreement
10.06 - CURAGEN Intellectual Property.
CURAGEN further hereby represents and warrants to BAYER as follows:
(a) Ownership of CURAGEN Licensed Patent Rights and CURAGEN Licensed
Technology.
CURAGEN owns or otherwise has the right to use or license in accordance
with the terms of this Agreement, the CURAGEN Patent Rights used by CURAGEN or
licensed to BAYER hereunder (the "CURAGEN Licensed Patent Rights") and the
CURAGEN Technology used by CURAGEN or licensed to BAYER hereunder (the "CURAGEN
Licensed Technology"), and except as set forth on Schedule 10.06(a), to
CURAGEN's Knowledge, no Third Party (including any government) has any license,
claim or other right or interest in or to such CURAGEN Licensed Patent Rights or
CURAGEN Licensed Technology. To CURAGEN's Knowledge, such CURAGEN Licensed
Patent Rights and CURAGEN Licensed Technology may be exclusively licensed and
sublicensed as hereunder provided, in the case of the CURAGEN Licensed Patent
Rights and CURAGEN Licensed Technology without payment of any royalty, fee or
incurring any other obligation to any Third Party (except with respect to any
statutory march-in rights). To CURAGEN's Knowledge, the conduct by CURAGEN of
the Pharmacogenomics Program in accordance with the Pharmacogenomics Program
Plan does not infringe or conflict with the rights of any Third Party in respect
of Technology or issued patents or published patent applications owned by such
Third Party.
(b) Validity and Enforceability of Patents.
The issued patents included in the CURAGEN Licensed Patent Rights are valid
and enforceable to CURAGEN's Knowledge.
(c) Investigation of Prior Art.
CURAGEN has made all reasonable inquiries and has diligently conducted a
reasonably complete investigation of Third Party prior art as part of CURAGEN's
preparation and prosecution of the CURAGEN Licensed Patent Rights, and has
reviewed all relevant information and prior art obtained or derived from such
investigation. CURAGEN has disclosed all material prior art of which it has
Knowledge related to the CURAGEN Licensed Patent Rights and other
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
43
BAYER and CURAGEN Pharmacogenomics Project Agreement
material information obtained or derived from such investigation to BAYER as of
the date hereof, in each case to the full extent requested by BAYER.
(d) No Infringement of CURAGEN Intellectual Property.
CURAGEN has no Knowledge of any infringement of the CURAGEN Licensed Patent
Rights, or any misappropriation of the CURAGEN Licensed Technology by any Third
Party.
(e) Work-For-Hire.
To CURAGEN's Knowledge, all of the research and development work performed
in connection with any of the CURAGEN Licensed Technology prior to the Execution
Date or Effective Date, as applicable, was performed solely under an obligation
to assign to CURAGEN or one of its Affiliates, and was performed in accordance
with applicable law and in compliance with all applicable regulatory
requirements, and all such rights have been properly assigned to CURAGEN,
including any and all rights of CURAGEN's employees and the employees of
CURAGEN's Affiliates.
(f) No Claims or Suits Regarding CURAGEN Intellectual Property.
There are no judicial, arbitral, regulatory or administrative proceedings
or, to CURAGEN's Knowledge, investigations, claims, actions or suits relating to
the CURAGEN Licensed Patent Rights or the CURAGEN Licensed Technology in any
court or by or before any governmental body or agency, including product
liability or compliance with good manufacturing practices or state or federal
food and drug laws and, to CURAGEN's Knowledge, no such judicial, arbitral,
regulatory or administrative proceedings or investigations, actions or suits
have been threatened against CURAGEN or its Affiliates.
10.07 - BAYER Intellectual Property
BAYER further hereby represents and warrants to CURAGEN as follows:
(a) Ownership of BAYER Licensed Patent Rights and BAYER Licensed
Technology.
BAYER owns or otherwise has the right to use or license in accordance with
the terms of this Agreement the Patent Rights of BAYER licensed to CURAGEN
hereunder (the "BAYER
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
44
BAYER and CURAGEN Pharmacogenomics Project Agreement
Licensed Patent Rights") and the Technology of BAYER licensed to CURAGEN
hereunder (the "BAYER Licensed Technology"), and to BAYER's Knowledge, no Third
Party (including any government) has any license, claim or other right or
interest in or to the BAYER Licensed Patent Rights or the BAYER Licensed
Technology. To BAYER's Knowledge, the BAYER Licensed Patent Rights and the BAYER
Licensed Technology may be exclusively licensed as hereunder provided, in the
case of the BAYER Licensed Patent Rights and BAYER Licensed Technology without
payment of any royalty, fee or incurring any other obligation to any Third Party
(except with respect to any statutory march-in rights). To BAYER's Knowledge,
the conduct by BAYER of the Pharmacogenomics Program Plan does not infringe or
conflict with the rights of any Third Party in any material respect of
Technology or issued patents owned by such Third Party.
(b) Validity and Enforceability of Patents.
The issued patents included in the BAYER Licensed Patent Rights are valid
and enforceable to BAYER's Knowledge.
(c) Investigation of Prior Art.
BAYER has made all reasonable inquiries and has diligently conducted a
reasonably complete investigation of Third Party prior art as part of BAYER's
preparation and prosecution of the BAYER Licensed Patent Rights, and has
reviewed all relevant information and prior art obtained or derived from such
investigation. BAYER has disclosed all material prior art of which it has
Knowledge related to the BAYER Licensed Patent Rights and other material
information obtained or derived from such investigation to CURAGEN as of the
date hereof, in each case to the full extent requested by CURAGEN.
(d) No Infringement of BAYER Intellectual Property.
BAYER has no Knowledge of any infringement of the BAYER Licensed Patent
Rights, or any misappropriation of the BAYER Licensed Technology by any Third
Party.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
45
BAYER and CURAGEN Pharmacogenomics Project Agreement
(e) Work-For-Hire.
To BAYER's Knowledge, all of the research and development work performed in
connection with any of the BAYER Licensed Technology prior to the Execution Date
or Effective Date was performed solely under an obligation to assign to BAYER or
one of its Affiliates, and was performed in accordance with applicable law and
in compliance with all applicable regulatory requirements, and all such rights
have been properly assigned to BAYER, including any and all rights of BAYER's
employees and the employees of BAYER's Affiliates.
(f) No Claims or Suits Regarding BAYER Intellectual Property.
There are no judicial, arbitral, regulatory or administrative proceedings
or to BAYER's Knowledge, investigations, claims, actions or suits relating to
the BAYER Licensed Patent Rights or the BAYER Licensed Technology in any court
or by or before any governmental body or agency, including product liability or
compliance with good manufacturing practices or state or federal food and drug
laws and, to BAYER's Knowledge, no such judicial, arbitral, regulatory or
administrative proceedings or investigations, actions or suits have been
threatened against BAYER or its Affiliates.
10.08 - Contracts
(a) CURAGEN represents and warrants to BAYER that it is not a party to any
contract that, if terminated, would materially adversely affect CURAGEN's
ability to conduct the Pharmacogenomics Program in accordance with the
Pharmacogenomics Program Plan.
(b) BAYER represents and warrants to CURAGEN that it is not a party to any
contract that, if terminated, would materially adversely affect BAYER's ability
to conduct the Pharmacogenomics Program in accordance with the Pharmacogenomics
Program Plan.
10.09 - No Material Omissions.
Each of BAYER and CURAGEN represents and warrants to the other that such
Party has not, up through and including the Effective Date, omitted to furnish
to the other Party with any information in its control or possession or of which
it has Knowledge concerning (a) its Patent
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
46
BAYER and CURAGEN Pharmacogenomics Project Agreement
Rights, (b) its Technology, or (c) the activities contemplated by this
Agreement, which in such Party's opinion would be material to the other Party's
decision to enter into this Agreement and to undertake the commitments and
obligations set forth herein.
10.10 - No Warranties
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN OR IN THE STOCK PURCHASE
AGREEMENT OR IN THE METABOLIC DISORDER COLLABORATION AGREEMENT, THE PARTIES MAKE
NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, AND PARTICULARLY (1) THAT PRODUCTS WILL BE SUCCESSFULLY DEVELOPED
HEREUNDER, AND IF DEVELOPED, WILL HAVE COMMERCIAL UTILITY OR MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND (2) AS TO ANY BIOLOGICAL MATERIALS PROVIDED
UNDER THIS AGREEMENT.
10.11 - Survival
The representations and warranties set forth in this Agreement are made as
of the Execution Date and the Effective Date and shall survive the Effective
Date.
10.12 - Liability
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY
WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR
(I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS
OR (II) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES,
NOTWITHSTANDING THAT A PARTY WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
47
BAYER and CURAGEN Pharmacogenomics Project Agreement
10.13 - Notices
Any notices, requests, deliveries, approvals or consents required or
permitted to be given under this Agreement to BAYER or CURAGEN shall be in
writing and shall be personally delivered or sent by facsimile (with written
confirmation to follow via courier or certified mail as set forth below),
overnight courier providing evidence of receipt or certified mail, return
receipt requested, postage prepaid, in each case to the respective address
specified below (or to such address as may be specified in writing to the other
Party hereto):
If to CURAGEN: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Executive Vice President, Business Development
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to BAYER: ▇▇▇▇▇ ▇▇
D ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Attention: General Counsel
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
Facsimile: 011 49 214 30 50848
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Such notices shall be deemed to have been sufficiently given on: a) the
date sent if delivered in person, b) the next business day after dispatch in the
case of transmission by
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
48
BAYER and CURAGEN Pharmacogenomics Project Agreement
facsimile, c) three (3) business days after dispatch in the case of overnight
courier or d) five (5) business days after deposit in the US mail in the case of
certified mail.
10.14 - Dispute Resolution and Arbitration
(a) All disputes arising out of this Agreement and referred to arbitration
shall be finally resolved by arbitration conducted in the English language in
London, England in accordance with the arbitration Rules of the United Nations
Commission on International Trade Law ("UNCITRAL"). Each Party shall appoint an
arbitrator and the two arbitrators so appointed shall jointly appoint a third
arbitrator; provided, however that if they cannot agree (or if any one Party
refuses to appoint an arbitrator), than this third arbitrator shall be appointed
by the UNCITRAL. If a Party fails to appoint an arbitrator within thirty (30)
days after a dispute is referred to arbitration, the UNCITRAL shall appoint an
arbitrator for such Party. The UNCITRAL shall be the administrator of the
arbitration proceedings.
(b) The arbitrators shall rule on each disputed issue within [___________]
after the third arbitrator has accepted the appointment to serve as an
arbitrator; provided, however that if the arbitrators are unable to render a
decision within such [___________], they shall render such decision as soon
thereafter as is practicable. The arbitrators shall issue a written decision in
order to explain the basis of the ruling. The arbitrators shall not have the
authority to award consequential or punitive damages.
(c) The arbitrators shall be paid reasonable fees plus expenses. These
fees and expenses, along with the reasonable legal fees and expenses of the
prevailing Party (including all expert witness fees and expenses), the fees and
expenses of a court reported, and any expenses for a hearing room, shall be paid
as follows:
(i) If the arbitrators rule in favor of one Party on all disputed
issues in the arbitration, the losing Party shall pay 100% of
such fees and expenses.
(ii) If the arbitrators rule in favor of one Party on some issues
and the other Party on other issues the arbitrators shall issue
with the ruling a written determination as to how such fees and
expenses shall be allocated between
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
49
BAYER and CURAGEN Pharmacogenomics Project Agreement
the Parties. The arbitrators shall allocate fees and expenses
in a way that bears a reasonable relationship to the outcome of
the arbitration, with the Party prevailing on more issues, or
on issues of greater value or gravity, recovering a relatively
larger share of its legal fees and expenses.
(d) Any decision or award of the arbitrators shall be final, conclusive,
and binding on the Parties to the dispute, and judgment may be entered on any
award in any court of competent jurisdiction. To the extent lawful, the Parties
include any right of application or appeal to the English or other courts in
connection with any question of law arising in the arbitration or in connection
with any award or decision made by the arbitrators, except as is necessary to
recognize or enforce such award or decision.
10.15 - Currency
Unless otherwise indicated, all monetary amounts referred to in this
Agreement are in United States currency. Payment shall be made by wire transfer
or other mutually acceptable means to a bank account designated by CURAGEN.
10.16 - Limitations
Except as expressly set forth in this Agreement, neither Party grants to
the other Party any right or license to any of its respective intellectual
property.
10.17 - No Implied Waiver; Rights Cumulative
No failure on the part of CURAGEN or BAYER to exercise, and no delay in
exercising, any right, power, remedy or privilege under this Agreement, or
provided by statute or at law or in equity or otherwise, shall impair, prejudice
or constitute a waiver of any such right, power, remedy or privilege or be
construed as a waiver of any breach of this Agreement or as an acquiescence
therein, nor shall any single or partial exercise of any such right, power,
remedy or privilege preclude any other or further exercise thereof or the
exercise of any other right, power, remedy or privilege.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
50
BAYER and CURAGEN Pharmacogenomics Project Agreement
10.18 - Assignment
Neither CURAGEN nor BAYER may assign this Agreement in whole or in part
without the consent of the other, except if such assignment occurs in connection
with the sale or transfer of all or substantially all of the business and assets
of CURAGEN, on the one hand, or BAYER, on the other, to which the subject matter
of this Agreement pertains. Notwithstanding the foregoing, any Party may assign
its rights (but not its obligations) pursuant to this Agreement in whole or in
part to an Affiliate of such Party.
10.19 - Force Majeure
No failure or omission by the Parties hereto in the performance of any
obligation of this Agreement shall be deemed a breach of this Agreement or
create any liability if the same shall arise from any cause or causes beyond the
control of the Parties, including, but not limited to, the following: acts of
God; acts or omissions of any government; any rules, regulations or orders
issued by any governmental authority or by any officer, department, agency or
instrumentality thereof; fire; storm; flood; earthquake; accident; war;
rebellion; insurrection; riot; and invasion and provided that such failure or
omission resulting from one of the above causes is cured as soon as is
practicable after the occurrence of one or more of the above-mentioned causes.
10.20 - No Strict Construction
This Agreement has been prepared jointly and shall not be strictly
construed against any Party.
10.21 - Severability
If any provision hereof should be held invalid, illegal or unenforceable in
any respect in any jurisdiction, then, to the fullest extent permitted by law,
(a) all other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the Parties as nearly as may be possible and (b) such invalidity,
illegality or unenforceability shall not affect the validity, legality or
enforceability of such provision in any other jurisdiction. To the extent
permitted by applicable law, CURAGEN and
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
51
BAYER and CURAGEN Pharmacogenomics Project Agreement
BAYER hereby waive any provision of law that would render any provision hereof
prohibited or unenforceable in any respect.
10.22 - Independent Contractor
It is understood an agreed that the relationship between the Parties
hereunder is that of independent contractors and that nothing in this Agreement
shall be construed as authorization for either CURAGEN or BAYER to act as agent
for the other. The Program Directors and members of Product Teams shall remain
employees of BAYER or CURAGEN, as the case may be.
10.23 - BAYER Indemnification of CURAGEN
BAYER agrees to defend CURAGEN and its Affiliates at its cost and expense,
and will indemnify and hold CURAGEN and its Affiliates and their respective
directors, officers, employees and agents (the "CURAGEN Indemnified Parties")
harmless from and against any losses, costs, damages, fees or expenses arising
out of any claim relating to (i) any breach by BAYER of any of its
representations, warranties or obligations pursuant to this Agreement or (ii)
personal injury from the development, manufacture, use, sale or other
disposition of any product or service offered by BAYER and/or its licensees or
collaborators unless the claim relates to patent infringement by CURAGEN. In
the event of any such claim against the CURAGEN Indemnified Parties by any Third
Party, CURAGEN shall promptly notify BAYER in writing of the claim and BAYER
shall manage and control, at its sole expense, the defense of the claim and its
settlement. The CURAGEN Indemnified Parties shall cooperate with BAYER and may,
at their option and expense, be represented in any such action or proceeding.
BAYER shall not be liable for any litigation costs or expenses incurred by the
CURAGEN Indemnified Parties without BAYER's prior written authorization. In
addition, BAYER shall, not be responsible for the indemnification of any CURAGEN
Indemnified Party arising from any negligent or intentional acts by such party,
or as the result of any settlement or compromise by the CURAGEN Indemnified
Parties without BAYER's prior written consent.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
52
BAYER and CURAGEN Pharmacogenomics Project Agreement
10.24 - CURAGEN Indemnification of BAYER
CURAGEN agrees to defend BAYER and its Affiliates at its cost, and will
indemnify and hold BAYER and its Affiliates and its respective directors,
officers, employees and agents (the "BAYER Indemnified Parties") harmless from
and against any losses, costs, damages, fees or expenses arising out of any
claim relating to (i) any breach by CURAGEN of any of its representations,
warranties or obligations pursuant to this Agreement or (ii) personal injury
from the development, manufacture, use, sale or other disposition of any product
or service offered by CURAGEN or its licensees or collaborators unless the claim
relates to patent infringement by BAYER. In the event of any claim against the
BAYER Indemnified Parties by, any Third Party, BAYER shall promptly notify
CURAGEN in writing of the claim and CURAGEN shall manage and control, at its
sole expense, the defense of the claim and its settlement. The BAYER
Indemnified Parties shall cooperate with CURAGEN and may, at their option and
expense, be represented in any such action or proceeding. CURAGEN shall not be
liable for any litigation costs or expenses incurred, by the BAYER Indemnified
Parties without CURAGEN's prior written authorization. In addition, CURAGEN
shall not be responsible for the indemnification of any BAYER Indemnified Party
arising from any negligent or intentional acts by such party, or as the result
of any settlement or compromise by the BAYER Indemnified Parties without
CURAGEN's prior written consent.
10.25 - Captions and Headings
The captions and headings appearing in this Agreement have been inserted
for reference and as a matter of convenience and in no way define, limit or
enlarge the scope or meaning of this Agreement or any provision.
10.26 - Amendments
Any amendment to this Agreement shall only be effective if the amendment is
in writing and is signed by all the Parties to this Agreement.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
53
BAYER and CURAGEN Pharmacogenomics Project Agreement
10.27 - HSR Matters
The Agreement shall not become effective (and accordingly shall immediately
terminate) in the event that (a) the FTC and/or the DOJ shall seek a preliminary
injunction under the HSR Act against CURAGEN and BAYER to enjoin the transaction
contemplated by this Agreement and BAYER elects not to contest the FTC and/or
DOJ; (b) the HSR Clearance Date shall not have occurred on or prior to June 30,
2001; or (c) the Stock Purchase Agreement shall be terminated in accordance with
Section 7.1 of the Stock Purchase Agreement. Notwithstanding anything to the
contrary in this Agreement, if this Agreement is terminated pursuant to this
Section 10.27, all of the licenses granted hereunder shall automatically
terminate.
10.28 - Intellectual Property Rights Under Bankruptcy Code
All rights and licenses granted under or pursuant to any section of this
Agreement are, and shall otherwise be, deemed to be, for purposes of Section
365(n) of the Bankruptcy Code, licenses of rights to "intellectual property" as
defined under Section 101(35A) of the Bankruptcy Code. The Parties shall retain
and may fully exercise all of their respective rights and elections under the
Bankruptcy Code. Upon the bankruptcy of any Party, the non-bankrupt Party shall
further be entitled to a complete duplicate of (or complete access to, as
appropriate) any such intellectual property, and such, if not already in its or
their possession, shall be promptly delivered to the non-bankrupt Party, unless
the bankrupt Party elects to continue, and continues, to perform all of its
obligations under this Agreement.
10.29 - HSR Filing
As soon as practicable after the Execution Date, each of BAYER and CURAGEN
shall promptly file any Notification and Report Forms and related materials that
either such Party may be required to file with the FTC and the DOJ under the HSR
Act, shall use its best efforts to obtain an early termination of the applicable
waiting period, and shall promptly make any further filings or information
submissions pursuant thereto, or responses to requests to additional information
thereunder, that may be necessary, proper or advisable.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
54
BAYER and CURAGEN Pharmacogenomics Project Agreement
10.30 - Governing Law
This Agreement shall be construed and the respective rights of the Parties
hereto determined according to the substantive laws of the State of Delaware
notwithstanding the provisions governing conflict of laws under such Delaware
law to the contrary and without giving effect to the United Nations Convention
on Contracts for the International Sale of Goods, the 1974 Convention on the
Limitation Period in the International Sale of Goods (the "1974 Convention") and
the Protocol amending the 1974 Convention, done at Vienna April 11, 1980, except
matters of intellectual property law which shall be determined in accordance
with the national intellectual property laws relevant to the intellectual
property in question.
10.31 - Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and all of which together shall constitute one and the
same Agreement.
[Remainder of page intentionally left blank]
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
55
BAYER and CURAGEN Pharmacogenomics Project Agreement
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of
the date first set forth above by their duly authorized representatives in two
(2) originals.
▇▇▇▇▇ ▇▇ CURAGEN CORPORATION
By: /s/ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ---------------------------------------
Name Name ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and Title: EVP, ▇. ▇▇▇▇▇▇▇ and Title: Executive Vice President
---------------------- ----------------------------
Date: Jan. 12, 2001 Date: Jan. 12, 2001
---------------------------- ----------------------------------
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
Name ▇. ▇▇▇▇▇▇▇▇▇
and Title: Senior Counsel
-----------------------
Date: January 12, 2001
----------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
56
BAYER and CURAGEN Pharmacogenomics Project Agreement
APPENDIX A
----------
Pharmacogenomics Program Plan
Rationale
During the preclinical phase of drug development, candidates fail to
advance in the development process due to evidence of toxicity or lack of
efficacy. The experiments defined in this Pharmacogenomics Program Plan are
designed to complement BAYER's drug development capabilities in a way that
will ultimately improve the quality and yield of drugs delivered to the
market. The plan is organized into two sections; a SETUP PHASE, where the
goals are to create an assay to eliminate toxic compounds early in
preclinical development (Predictive Toxicogenomics Screen, PTS), and a
PRODUCTION PHASE, where this assay and genomics technologies are applied to
enhance the drug development process. It is anticipated that the
experimental plan will be modified by the Pharmacogenomics Project Team
(PPT) on a regular basis to optimize the quality, speed, and cost of
research deliverables.
[______________]
[_________]
[____________________________________________________________].
[_________]
[____________________________________________________________].
[____________________________________________________________].
[____________________________________________________________].
[____________________________________________________________].
[____________________________________________________________].
[____________________________________________________________].
[____________________________________________________________].
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
A-1
BAYER and CURAGEN Pharmacogenomics Project Agreement
[_____________________________________]
[____________________________________________________________]:
-----------------------------------------------------------------------------------------------------------------
[_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[_______________]
[____________________________________________________________].
[____________________________________________________________].
[_____________________________________]
[____________________________________________________________]:
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
A-2
BAYER and CURAGEN Pharmacogenomics Project Agreement
-----------------------------------------------------------------------------------------------------------------
[_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[___________________] [_____] [_____] [_____] [_____]
-----------------------------------------------------------------------------------------------------------------
[_______________]
[_____________________________________________________________].
[_____________________________________________________________].
[_____________________________________________________________________]
[_________]
[_____________________________________________________________].
[_____________________________________________________________].
[_________]
[_____________________________________________________________________]
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
A-3
BAYER and CURAGEN Pharmacogenomics Project Agreement
[_________]
[_____________________________________________________________________]
[_________]
[_____________________________________________________________].
[__________________________________________________________].
[_____________________________________________________________].
[________________]
[_________]
[_________________________________________________________________]:
[_______________________________________________________].
[____________]
[_______________________________________________________].
[_______________________________________________________].
[____________]
[_______________________________________________________].
[_______________________________________________________].
[_____________________________________________________________].
[___________________________________________________________________].
[___________]
[_________________________________________________________________].
[_________________________________________________________________].
[___________]
[_________________________________________________________________].
[_________________________________________________________________].
[_________________________________________________________________].
[_________________________________________________________________].
[___________]
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
A-4
BAYER and CURAGEN Pharmacogenomics Project Agreement
[_________________________________________________________________].
[_________________________________________________________________].
[_________________________________________________________________].
[___________]
[_________________________________________________________________].
[__________________________________________________________________].
[__________________________________________________________________].
[___________________________________________]
[___________________________________________]
[___________________________________________]
[__________________________________________________________________].
[__________________________________________________________________].
[__________________________________________________________________].
[___________]
[___________]:
[__________________________________________________________________].
[__________________________________________________________________].
[________________________]
[__________________________________________________________________]:
[____________________] - [_________________________________________].
[____________________] - [_________________________________________].
[____________________] - [_________________________________________].
[____________________] - [_________________________________________].
[____________________] - [_________________________________________].
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
A-5
BAYER and CURAGEN Pharmacogenomics Project Agreement
[________________________________________________________________].
[____________________] - [_________________________________________].
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
A-6
BAYER and CURAGEN Pharmacogenomics Project Agreement
APPENDIX B
----------
MINIMUM USAGE OF SERVICES
-------------------------
Service Minimum Level
------- -------------
[__________________] [______________]
[__________________] [______________]
[__________________] [______________]
[__________________] [______________]
UNIT PRICES
-----------
Annual Base Level
------------------
Service from which Adjusted* Initial Unit Price (2001)
------- -------------------- -------------------------
[___________________] [________________] [___________________]
[___________________] [________________] [___________________]
[___________________] [________________] [___________________]
[___________________] [________________] [___________________]
* [_________________________________].
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
B-1
BAYER and CURAGEN Pharmacogenomics Project Agreement
APPENDIX C
----------
CRITERIA FOR PROTEOMICS FEASIBILITY STUDY
[_______________________________________________________________];
[_______________________________________________________________];
[_______________________________________________________________];
[_______________________________________________________________];
[_______________________________________________________________];
[_______________________________________________________________].
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
C-1
BAYER and CURAGEN Pharmacogenomics Project Agreement
APPENDIX D
----------
COMMERCIAL TERMS OF EXCLUSIVE LICENSE TO DIAGNOSTIC PRODUCTS
[_____________________________________]
[_______________________________________________________________________]:
[_________________________________________________________________];
[_________________________________________________________________];
[_________________________________________________________________];
[_________________________________________________________________];
[_________________________________________________________________].
[_________________________________________________________________].
[_________________________________________________________________].
.
[____________________]: [__________________________________________________].
[____________________]: [__________________________________________________].
[____________________]: [__________________________________________________].
[____________________]: [__________________________________________________].
[____________________]: [__________________________________________________].
[____________________]: [__________________________________________________].
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential Investment under Rule 406 of the Securities Act.
D-1
BAYER and CURAGEN Pharmacogenomics Project Agreement
APPENDIX E
----------
[__________________________________________________________]:
[__________________________________________________________].
[__________________________________________________________].
E-1