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EXHIBIT 10.27
April, 1995
ONCOGENE SCIENCE, INC.
and
CIBA-GEIGY Limited
COLLABORATIVE AGREEMENT
relating to TGF-Beta3
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THIS AGREEMENT is made as of the 19th day of April, 1995.
BETWEEN
CIBA-GEIGY LIMITED
of Klybeckstrasse 141, 4002 Basel, Switzerland
(hereinafter referred to as "CIBA-GEIGY")
AND
ONCOGENE SCIENCE, INC.
of 106 Charles Lindbergh Boulevard,
Uniondale, New York 11553-3649, USA
(hereinafter referred to as "ONCOGENE SCIENCE")
WHEREAS:
(A) ONCOGENE SCIENCE has know-how and rights to TGF-Betas and has applied for
patent rights to certain novel proteins, including TGF-Beta3.
(B) By a License Agreement dated the 1st April, 1991 (the "1991 Agreement")
made between ONCOGENE SCIENCE and PFIZER INC. ("PFIZER"), ONCOGENE SCIENCE
granted to PFIZER the exclusive right to manufacture, have manufactured,
use and sell products containing TGF-Beta3 for a range of indications
including the Licensed Indications as hereinafter defined.
(C) By an Addendum to the 1991 Agreement made between ONCOGENE SCIENCE and
PFIZER on the 17th April, 1995, PFIZER surrendered to ONCOGENE SCIENCE all
the rights relating to TGF-Beta3 granted to PFIZER pursuant to the 1993
Agreement subject only to the reservation in favour of CIBA-GEIGY of those
rights granted to CIBA-GEIGY under the Agreement dated the 11th August,
1993, between ONCOGENE SCIENCE, CIBA-GEIGY and PFIZER ("the 1993
Agreement").
(D) CIBA-GEIGY wishes to take an exclusive license direct from ONCOGENE
SCIENCE to manufacture, have manufactured, use and sell products
containing the Compound (as defined in Clause 1.3) for the Licensed
Indications (as defined in Clause 1.5) and ONCOGENE SCIENCE is willing to
grant such a license to CIBA-GEIGY in substitution for the license granted
to it under the 1993 Agreement on the terms and conditions hereinafter
appearing.
(E) The parties have agreed that the 1993 Agreement shall be terminated and
replaced by this Agreement as from the date of its execution and delivery
by both parties.
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(F) CIBA-GEIGY also wishes to have the opportunity to acquire from ONCOGENE
SCIENCE a license to manufacture, use and sell products containing
TGF-Beta3 and other TGF-Betas for all other indications not now included
in the Licensed Indications.
(G) CIBA-GEIGY has developed a process for the manufacture of certain
TGF-Betas.
(H) ONCOGENE SCIENCE wishes to have the right to buy such TGF-Betas from
CIBA-GEIGY and, subject as hereinafter mentioned, CIBA-GEIGY is willing to
supply TGF-Betas to ONCOGENE SCIENCE on the terms hereinafter appearing.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
The following terms where used in this Agreement shall, unless the context
clearly indicates to the contrary, have the meanings set out below:
1.1 "Affiliate" shall mean with respect to each party or a licensee or
sub-licensee, any legal entity that directly or indirectly controls,
is controlled by or is under common control with, such party,
licensee or sub-licensee, but only for so long as such control shall
continue. One entity shall be deemed to control another entity if
such entity has the power to direct or cause the direction of the
management or policies of the other entity.
1.2 "Combination Product" shall mean a Product containing the Compound in
combination with one or more therapeutically active ingredients.
1.3 "Compound" shall mean transforming growth factor Betas ("TGF-Betas")
as described in the OSI Patents.
1.4 "Know-How" shall mean all information and material, technical data
and other know-how invented, developed or acquired by, or under the
control of any party hereto and which directly relates to the
Compound or the Product, or to the development, manufacture or use of
the same, including but not limited to chemical data, toxicological
and other pre-clinical data, product forms and formulations, control
assays and specifications and methods of preparation and stability
data, all such data belonging to one party constituting that party's
confidential information. "CG Know-How" and "OSI Know-How" shall
mean that Know-How belonging respectively to CIBA-GEIGY and ONCOGENE
SCIENCE. For the avoidance of doubt, the OSI Know-How shall be
deemed to include the PFIZER Know-How as defined in the 1993
Agreement.
1.5 "Licensed Indications" shall mean (1) oral mucositis arising from the
use of chemotherapy or radiation therapy in the treatment or
prevention of cancer, and (2) topical or local (as opposed to
systemic) application of the Products including, but not limited to,
the healing of soft tissue wounds however caused, and the treatment
of ophthalmic conditions and psoriasis, but excluding topical
application in the
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gastrointestinal tract in the treatment or prevention of cancer or
the management of side effects or adverse reactions arising from the
use in the treatment or prevention of cancer of chemotherapy or
radiation therapy; and also (3) all other indications deemed to be
included in the Licensed Indications pursuant to Clause 5.8.
1.6 "Major Country" shall mean any one of the following countries: the
United States of America, France, Germany, Italy, the United Kingdom.
1.7 "Net Sales" shall mean the invoice price billed to Third Parties on
the sale of the Products, less:
(i) trade and/or quantity discounts;
(ii) sales, value added or other excise taxes paid on the sale
of the Products;
(iii) amounts repaid or credited by reason of purchase
chargebacks, rebates, rejections or returns;
(iv) charges for freight, handling and transportation separately
billed; and
(v) rebates (including, but not limited to, all governmental
and managed health care rebates and hospital performance
incentive programme chargebacks).
all to the extent actually allowed, accrued or taken, and as
determined in accordance with CIBA-GEIGY's standard accounting
procedures.
In the case of Products which are Combination Products the parties
will negotiate in good faith and agree on an equitable method of
calculating the Net Sales having regard to the Net Sales of Products
which are not Combination Products and the value of the active
ingredient or ingredients other than the Compound.
1.8 "OSI Patents" shall mean all of ONCOGENE SCIENCE's right, title and
interest in and to the patents relating to TGF-Betas set out in
Schedule 1 hereto and corresponding foreign patents or applications
therefor, together with any patents issuing on the said applications,
or any addition, continuation, continuation-in-part, division,
reissue, renewal or extension based thereon (including any
supplementary protection certificate ("SPC") based on the said
patents).
1.9 "CG Patents" shall mean all of CIBA-GEIGY's right, title and interest
in and to patents relating to processes for the manufacture of
TGF-Betas including the Patents set out in Schedule 2 hereto and
corresponding foreign patents or applications therefor, together
with any patents issuing on the said applications, or any addition,
continuation, continuation-in-part, division, reissue, renewal or
extension based thereon (including any SPC based on the said patents).
1.10 "Third Party Patents" shall mean the patents set out in Schedule 3
hereto and corresponding foreign patents or applications therefor,
together with any patents issuing on the said applications, or any
addition, continuation, continuation-in-part, division, reissue,
renewal or extension based thereon (including any SPC based on the
said patents).
1.11 "Products" shall mean pharmaceutical preparations containing the
Compound designed for administration to human beings which fall
within the scope of the claims of the OSI Patents.
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1.12 "Territory" shall mean all countries of the world.
1.13 "Third Party" shall mean any person or legal entity, whether or not
incorporated, other than any of the parties hereto or their
respective Affiliates or CIBA-GEIGY's sub-licensees.
1.14 "Year" shall mean a period of 12 calendar months commencing on the
1st January.
1.15 "Half Year" shall mean a period of six calendar months commencing on
the 1st January or the 1st July in any Year.
2. GRANT
2.1 In consideration of the covenants on the part of CIBA-GEIGY
hereinafter contained, ONCOGENE SCIENCE hereby grants to CIBA-GEIGY
an exclusive license, with the right to grant sub-licenses, under the
OSI Patents and OSI Know-How, the right to manufacture, use and sell
the Products for the Licensed Indications within the Territory.
2.2 ONCOGENE SCIENCE warrants that it is free to enter into this
Agreement and to carry out all the obligations on its part contained
herein.
2.3 Within 30 days from the date hereof, ONCOGENE SCIENCE will deliver to
CIBA-GEIGY such of the OSI Know-How as is in written form and is
relevant to the Compound and Licensed Indications.
2.4 ONCOGENE SCIENCE will pursue applications for the OSI Patents with
reasonable diligence and will notify CIBA-GEIGY as and when patents
are granted on the said applications.
2.5 If ONCOGENE SCIENCE should decide to abandon any of the OSI Patents
it shall notify CIBA-GEIGY, and CIBA-GEIGY shall have the right to
take an assignment of the OSI Patent or Patents in question.
3. SUPPLY OF TGF-Betas
3.1 CIBA-GEIGY warrants that it owns or has rights to the CG Patents and
that it is free to enter into this Agreement and to carry out the
obligations on its part contained herein.
3.2 CIBA-GEIGY warrants that it is the licensee under the Third Party
Patents which entitles it to manufacture TGF-Betas without infringing
such patents.
3.3 (a) CIBA-GEIGY agrees to establish processes for the manufacture of
TGF-Beta3 and of such other TGF-ps as shall be agreed from time to
time between itself and ONCOGENE SCIENCE, and, subject as hereinafter
mentioned, agrees to supply to ONCOGENE SCIENCE, and ONCOGENE SCIENCE
agrees to purchase from
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CIBA-GEIGY the quantities of TGF-Betas required by it for research
and development purposes.
(b) ONCOGENE SCIENCE acknowledges that it is its present intention
to purchase, and, subject as hereinafter mentioned, shall purchase
from CIBA-GEIGY, and CIBA-GEIGY shall supply, the quantities of
TGF-Betas required by ONCOGENE SCIENCE for commercial purposes. If
ONCOGENE SCIENCE should decide not to purchase its commercial
requirements of TGF-Betas from CIBA-GEIGY as from or at any time
subsequent to the date of commercial launch of the Products, it shall
give CIBA-GEIGY not less than 36 months' prior notice in writing of
that decision. Upon expiry of such notice ONCOGENE SCIENCE shall be
relieved of its obligation to purchase, and CIBA-GEIGY shall be
relieved of its obligation to supply, such commercial requirements.
(c) For the avoidance of doubt, it is agreed by the parties that
CIBA-GEIGY shall not be required to manufacture or supply TGF-Betas
pursuant to this Agreement if by so doing it would be liable to suit
for infringement or contributory infringement of the intellectual
property rights of a Third Party.
(d) The processes to be developed by CIBA-GEIGY pursuant to this
Clause shall initially be adequate to meet the requirements of itself
and its sub-licensees, of ONCOGENE SCIENCE, and the licensees of
ONCOGENE SCIENCE, for research and development purposes and clinical
trials as foreseen at the date of this Agreement. It is the
intention of CIBA-GEIGY to scale up such processes to meet the
estimated future requirements of itself and ONCOGENE SCIENCE for
commercial quantities of the Compound. Should it fail to do so, or
if processing capacity should prove to be inadequate to meet all
ONCOGENE SCIENCE actual requirements and CIBA-GEIGY should be
unwilling to invest in additional capacity, it agrees if so requested
to grant a license to ONCOGENE SCIENCE under the CG Patents and CG
Know-How to produce the Compound on terms to be negotiated in good
faith, the financial terms to be reasonable having regard to the cost
of supplies of the Compound as at the date of the license
negotiations, the cost to ONCOGENE SCIENCE of procuring the grant of
licenses for any parts of the process covered by Third Party Patents,
and the estimated production costs of ONCOGENE SCIENCE. CIBA-GEIGY
will also provide reasonable assistance to ONCOGENE SCIENCE with
plant design and operations so far as its resources permit.
(e) CIBA-GEIGY will notify ONCOGENE SCIENCE promptly should it
decide not to scale up manufacture of the Compound or to discontinue
manufacture thereof. For a period of 36 months following such
notification, unless a shorter period should be agreed in writing by
the parties hereto, CIBA-GEIGY shall continue to supply the Compound
to ONCOGENE SCIENCE in accordance with the arrangements hereinafter
set out, it being understood, however, that CIBA-GEIGY shall not be
obliged to produce quantities of the Compound for its own consumption
and for supply to ONCOGENE SCIENCE in excess of the production
capacity available to it at the time of such notification.
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(f) Upon the request of ONCOGENE SCIENCE to be made in writing not
less than one year in advance of the date when such supplies are
required, CIBA-GEIGY will manufacture and store for ONCOGENE SCIENCE,
and ONCOGENE SCIENCE will purchase and pay storage for up to a
one-year supply of Compound as projected in the ordinary course of
business. In the event that CIBA-GEIGY is unable to supply the
Compound to ONCOGENE SCIENCE for a period of 90 days by reason of
force majeure or otherwise, it will use all commercially reasonable
endeavours to have an alternative plant for the production of the
Compound validated within one year from the date of cessation of
supply.
3.4 The ex-works price at which CIBA-GEIGY shall supply the Compound to
ONCOGENE SCIENCE for use for pre-clinical and clinical purposes shall
be equal to CIBA-GEIGY's cost of manufacture, including overheads,
calculated in accordance with its standard accounting practices
("Manufacturing Cost"), freight, transport and insurance charges
incurred in delivering the material to the purchasing party, and
royalties to third parties for bulk material, but shall exclude any
profit element.
3.5 (a) The ex-works price at which and all other terms and conditions
on which CIBA-GEIGY shall supply the Compound for the manufacture of
products for subsequent sale shall be negotiated by the parties in
good faith prior to the date of commencement of supply. However, if
the parties should be unable to reach agreement on price during such
negotiations then the price shall be equal to the Manufacturing Cost,
plus any freight, transport and insurance charges incurred by
CIBA-GEIGY in shipping the Compound to ONCOGENE SCIENCE plus an
amount equal to eight per cent (8%) of ONCOGENE SCIENCES' and its
licensees' Net Sales. In the latter case, payments shall be
calculated and paid as mentioned in Clause 3.5(c).
(b) Payment for the said supplies shall be made by ONCOGENE SCIENCE
in two installments, as follows:
(i) the first installment, being an amount equal to the
Manufacturing Cost, plus freight, transport and insurance
charges, shall be paid within thirty (30) days of the end of the
month in which the supplies are delivered;
(ii) the second installment, being an amount equal to eight per
cent (8%) of ONCOGENE SCIENCE's and its licensees' Net Sales of
the Products and/or of the Compound during each Half Year, shall
be paid within sixty (60) days of the end of such Half Year.
(c) Notwithstanding the provisions hereinbefore contained, if CIBA-
GEIGY's weighted average Manufacturing Cost per gram of Compound
supplied to ONCOGENE SCIENCE in any Year, expressed as a percentage
(the "Actual Percentage") of ONCOGENE SCIENCE's weighted average Net
Sales Value per active gram of Product sold by ONCOGENE SCIENCE and
its licensees in the same Year should be less than four per cent
(4%), then, in addition to the amounts mentioned in Clause 3.5(b),
ONCOGENE SCIENCE shall pay to CIBA-GEIGY a percentage of its and its
licensees Net Sales equal to one half of the difference between four
per cent (4%) and the Actual Percentage. For the purposes of this
calculation,
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the Net Sales Value per active gram shall be determined by dividing
the Net Sales of ONCOGENE SCIENCE and its licensees by the number of
grams and/or parts of a gram of the Compound contained in the
quantities of the Product sold. (An example of a calculation using
hypothetical figures is set out in Schedule 4 hereto.)
Such payment shall be made at the same time as the second payment due
under Clause 3.5(b)(ii) in respect of the Half Year ending on the
31st December of that Year.
(d) ONCOGENE SCIENCE shall be entitled to have CIBA-GEIGY's cost of
manufacture and overhead confirmed by an independent firm of
accountants to which CIBA-GEIGY has no reasonable objection, but not
more than once in any Year PROVIDED HOWEVER that such firm of
accountants shall only report to ONCOGENE SCIENCE the amount of such
costs, including overheads, and shall keep confidential all other
information acquired in the course of the examination.
(e) ONCOGENE SCIENCE shall supply to CIBA-GEIGY within 60 days of
the end of each Half Year a statement showing the Net Sales during
such Half Year of Products produced from the Compound.
(f) ONCOGENE SCIENCE shall keep accurate records in sufficient
detail to enable the price of the Compound to be calculated and shall
maintain such records for a period of two Years after the end of the
period to which they relate. CIBA-GEIGY shall be entitled to have
such records examined during normal working hours by an independent
firm of accountants to which ONCOGENE SCIENCE has no reasonable
objection (but not more than once in any one Year) so as to verify
the correctness of any royalty payment PROVIDED HOWEVER that such
firm of accountants shall only report to CIBA-GEIGY the correct
amount of net sales, and shall keep confidential all other
information acquired in the course of such examination.
(g) Not later than the end of each Year ONCOGENE SCIENCE will supply
to CIBA-GEIGY an estimate of its requirement of the Compound during
the ensuing three Years, and will update this estimate at six-monthly
intervals. CIBA-GEIGY will notify ONCOGENE SCIENCE within 30 days of
receipt of such estimate if it will be unable to supply the whole or
any part of the requirements mentioned in such estimate.
(h) Together with the three-year estimate, ONCOGENE SCIENCE will
deliver to CIBA-GEIGY firm orders for its requirements of the
Compound not less than twelve (12) months in advance of the required
date of delivery. CIBA-GEIGY shall fulfill such orders provided that
the quantifies specified therein do not exceed those quantities
contained in the previous estimate for the same period and provided
that CIBA-GEIGY has not previously advised ONCOGENE SCIENCE that it
will be unable to supply all or part of such quantities.
All other terms of supply and purchase shall be negotiated by the
parties in good faith.
3.6 Apart from material supplied for research purposes and for the
Licensed Indications, CIBA-GEIGY will not during the life of the OSI
Patents supply the Compound to any
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Third Party without the prior consent of ONCOGENE SCIENCE, provided
that such consent shall not be unreasonably withheld or delayed.
3.7 It is a condition precedent to the performance by the parties hereto
of their respective obligations under this Agreement that CIBA-GEIGY
shall have delivered copies of the License Agreements under the Third
Party Patents to ONCOGENE SCIENCE.
4. DEVELOPMENT
4.1 Subject as herein mentioned, CIBA-GEIGY will pursue the development
of the Products for the Licensed Indications wound healing, psoriasis
and oral mucositis with reasonable diligence. ONCOGENE SCIENCE will
cooperate fully and accept certain responsibilities as set forth
below.
4.1.1 ONCOGENE SCIENCE will be responsible for developing the
Compound through Phase I clinical trials for Oral
Mucositis, in consultation with CIBA-GEIGY based on a
protocol approved by CIBA-GEIGY, and ONCOGENE SCIENCE will
pay for all Phase I Oral Mucositis expenses from its funds,
except those studies done directly by CIBA-GEIGY or under
the direction or control of CIBA-GEIGY.
4.1.2 ONCOGENE SCIENCE agrees that if so requested by CIBA-GEIGY
it is willing to assume responsibility for Phase II trials
for Oral Mucositis in accordance with CIBA-GEIGY's standard
operating procedures for clinical trials and based on a
protocol approved by CIBA-GEIGY in consultation with
CIBA-GEIGY, with the expense of the Phase II trials to be
paid by CIBA-GEIGY in accordance with a budget to be
mutually agreed by the parties in advance.
4.1.3 CIBA-GEIGY will be responsible for Phase III trials for
Oral Mucositis and will pay the expense of the trials, in
consultation with ONCOGENE SCIENCE. ONCOGENE SCIENCE is
willing to assume responsibility for Phase III trials in
any respect requested by CIBA-GEIGY, with expenses to be
paid by CIBA-GEIGY.
4.1.4 CIBA-GEIGY will be responsible for the development of the
Compound for Licensed Indications, other than Oral
Mucositis, in consultation with ONCOGENE SCIENCE, and will
pay all expenses.
4.2 CIBA-GEIGY shall have the right to discontinue development of the
Products at any time.
4.3 If CIBA-GEIGY should decide to discontinue the development of the
Products it shall promptly notify ONCOGENE SCIENCE and thereupon:
(a) all licenses granted hereunder to CIBA-GEIGY will automatically
terminate.
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(b) CIBA-GEIGY will make available to ONCOGENE SCIENCE for use by
ONCOGENE SCIENCE or its sub-licensees the results of all
development work carried out up to the date of discontinuance
(including rights under any patents or CG Know-How developed by
CIBA-GEIGY so far as they relate exclusively to the Products) on
terms to be negotiated in good faith.
(c) the provisions with regard to supply of the Compound and the
licensing of the process for the manufacture of the Compound set
out in Clause 3 shall remain binding on CIBA-GEIGY for a period
of three years from the date of such notification. CIBA-GEIGY
may at its discretion opt to continue the supply of the
Compound, in which event the parties will enter into an
Agreement for the supply of the Compound on the same terms as to
price and ordering as set out herein and on such other terms as
shall be mutually agreed.
(d) CIBA-GEIGY will return to ONCOGENE SCIENCE all documents
received from ONCOGENE SCIENCE containing OSI Know-How.
4.4 The parties will cooperate with one another, and ONCOGENE SCIENCE
shall ensure that its licensees cooperate with CIBA-GEIGY, with a
view to facilitating the regulatory approval and commercialization of
products containing the Compound, and in particular will share
Know-How relating to such products.
4.5 During the term of this Agreement and to the extent necessary to give
effect to the purposes of this Agreement each of the parties will
disclose to the other any new Know-How coming to its attention,
including, but not limited to, information which would modify or
supplement to a material degree information disclosed to the other
party pursuant to the preceding provisions of this Agreement, or
which in the reasonable opinion of that party could have a material
bearing on the other party's testing, registration or marketing of
products produced from the Compound.
4.6 For the purpose of limiting infringing or off-label use of a product
produced from the Compound each of the parties agrees to use all
commercially reasonable efforts to develop products formulated or
presented in such a manner as to make them difficult to use in the
other party's licensed indications.
5. PAYMENT OF ROYALTIES AND FOR RIGHTS GRANTED
5.1 In consideration of the license and rights hereby granted, CIBA-GEIGY
agrees to pay ONCOGENE SCIENCE the royalties herein set forth and to
purchase ONCOGENE SCIENCE common stock as set forth in clauses 5.7
and 5.8, or alternatively, at CIBA-GEIGY's option to pay the
respective milestone fees in lieu of purchasing stock as set forth in
clauses 5.7 and 5.8.
5.2 CIBA-GEIGY agrees to pay ONCOGENE SCIENCE a royalty of 8% of Net
Sales of the Products made by CIBA-GEIGY or its sub-licensees during
the royalty period. The royalty period shall be calculated on a
country-by-country basis and shall commence on the date of commercial
launch of any of the Products in each country and shall end on the
date of expiry of the Patents in the country.
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5.3 If ONCOGENE SCIENCE shall not have applied for any Patent in a
particular country or if patent protection for the Products should be
refused or revoked, the rate of royalty payable on Net Sales in that
country shall be reduced by half. Royalties under this Clause 5.3
shall be payable for a period of ten years from the date of
commercial launch in the country in question.
5.4 No later than 60 days after the end of each Half Year CIBA-GEIGY
shall deliver to ONCOGENE SCIENCE a statement showing its and its
sub-licensees Net Sales of the Products invoiced during such Half
Year, and shall pay to ONCOGENE SCIENCE the amount of royalty due on
such Net Sales.
5.5 CIBA-GEIGY shall keep accurate records in sufficient detail to enable
the amount of the royalties due hereunder to be calculated and shall
maintain such records for a period of two Years after the end of the
period to which they relate. ONCOGENE SCIENCE shall be entitled to
have such records examined during normal working hours by an
independent firm of accountants to which CIBA-GEIGY has no reasonable
objection so as to verify the correctness of any royalty payment
PROVIDED HOWEVER that such firm of accountants shall only report to
ONCOGENE SCIENCE the correct amount of Net Sales and the amount of
royalty due to ONCOGENE SCIENCE and shall keep confidential all other
information acquired in the course of such examination.
5.6 (a) Royalties shall be paid in US dollars into such accounts as
shall be nominated by ONCOGENE SCIENCE for that purpose. Net Sales
in currencies other than US dollars shall be converted into US
dollars at the rate of exchange prevailing on the last day of the
Half Year to which they relate.
(b) If CIBA-GEIGY is obliged to deduct withholding tax on royalties,
the royalties shall be paid net of withholding tax. CIBA-GEIGY will
deliver to ONCOGENE SCIENCE receipts or other evidence of payment
issue any the relevant tax authorities to enable it to claim any
available double-taxation relief.
5.7 CIBA-GEIGY agrees to pay ONCOGENE SCIENCE $5 million in cash at the
time this Agreement is signed, or to purchase ONCOGENE SCIENCE common
stock to the value of $5,000,000.50 at a price of $5.50 per share in
accordance with the terms of the Stock Subscription and Purchase
Agreement ("the Stock Purchase Agreement") contained in Schedule 5.
In recognition of this payment or investment, CIBA-GEIGY is hereby
granted an option to include all other indications for the Compound
in the Licensed Indications, upon making the milestone payment or
stock purchase set forth in Clause 5.8, such option to be exercised,
if at all, within 60 days of the decision by CIBA-GEIGY to initiate
full development of the Product (i.e. Phase IIb or Phase III clinical
trials for Oral Mucositis (which decision shall be communicated
promptly to ONCOGENE SCIENCE in writing) or within four years from
the date hereof whichever is the earlier. For the avoidance of
doubt, it is agreed that unless CIBA-GEIGY advises ONCOGENE SCIENCE
to the contrary, the option shall be deemed to have been
automatically exercised by CIBA-GEIGY upon making the said milestone
payment or the said stock purchase in accordance with Clause 5.8
without
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the need for further notification to ONCOGENE SCIENCE. The option
shall automatically lapse if it is not exercised within the time
limits hereinbefore prescribed.
5.8 Within 60 days after the earlier of: (a) the date of the decision by
CIBA-GEIGY to initiate full development (as defined in Clause 5.7) of
the Product for Oral Mucositis, or (b) the exercise of the option set
out in Clause 5.7, CIBA-GEIGY agrees either to make a milestone
payment of $10 million in cash to ONCOGENE SCIENCE or to purchase
ONCOGENE SCIENCE common stock to the value of $10 million at the
higher of EITHER the average closing price for the 30-day period
ending on the date of purchase or $5.50 per share. Upon making this
milestone payment or completion of the stock purchase, all other
indications for the Compound not already licensed to CIBA-GEIGY shall
be deemed to be included in the Licensed Indications. The retention
of the rights to such other indications shall be subject to the
provisions of the Stock Purchase Agreement.
6. DEFENSE OF PATENTS, INFRINGEMENTS, ETC.
6.1 Each of the parties hereto agrees to notify the other party if it
should become aware of any infringement or threatened infringement of
the Patents.
6.2 ONCOGENE SCIENCE shall have the prior right, but not the obligation,
to bring legal proceedings against an infringer of the OSI Patents or
to take such other action against such infringer as it thinks fit
PROVIDED HOWEVER that it shall not settle or compromise any such
action where the infringing act involved the sale of products for one
of the Licensed Indications without obtaining the prior written
agreement of CIBA-GEIGY, such agreement not to be unreasonably
withheld or delayed. If so requested, CIBA-GEIGY will provide
reasonable assistance in connection with any such proceedings or
other action.
6.3 With respect to Licensed Indications, if ONCOGENE SCIENCE should fail
to institute proceedings against an infringer of the OSI Patents
within 60 days of the receipt of information of such infringement or
threatened infringement CIBA-GEIGY shall have the night to institute
proceedings in its own name where practicable, or otherwise in the
name of ONCOGENE SCIENCE, to prevent or put an end to the
infringement, including, at its option, the filing of a claim for
damages. In this event ONCOGENE SCIENCE shall do all such things as
are reasonably necessary to enable CIBA-GEIGY to institute such
proceedings and shall cooperate with CIBA-GEIGY in the conduct of
such proceedings.
6.4 Any damages and costs recovered from the infringer in proceedings
brought or other action taken against the infringer pursuant to
Clause 6.2 or 6.3 shall be applied firstly in defraying the legal
costs and expenses of the proceedings. Any surplus remaining shall
be used to compensate whichever of ONCOGENE SCIENCE or CIBA-GEIGY has
incurred losses as the result of the infringement, and if both of
them shall have incurred losses, the surplus shall be divided between
them in proportion to their respective losses. If the net amount of
damages and costs recovered exceeds the legal costs and expenses and
their respective losses, the surplus remaining shall be paid to
ONCOGENE SCIENCE.
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13
6.5 If CIBA-GEIGY shall be unable to exploit the license hereby granted
without infringing the patent rights of a Third Party, ONCOGENE
SCIENCE will use all reasonable endeavours to obtain an unblocking
license. If they shall fail to do so, CIBA-GEIGY shall be entitled
to negotiate the terms of a license for itself and its sub-licensees
directly with the Third Party. If under such a license CIBA-GEIGY is
obliged to pay a lump sum or royalty to the Third Party, it shall be
entitled to deduct the amount of such lump sum or royalty from the
royalties due to ONCOGENE SCIENCE hereunder, provided, however that
the deduction in any one Year shall not cause the royalty to be paid
by CIBA-GEIGY to ONCOGENE SCIENCE in that year to be reduced below 5
percent.
7. CONFIDENTIALITY
7.1 For the purposes of this Clause 7, "Confidential Information" shall
mean all information, whether technical, commercial, or otherwise
(including, but not limited to, Know-How, technical and non-technical
materials and specifications) disclosed by any of the parties hereto,
or its Affiliates, licensees or sub-licensees (the "Discloser") to
the other party or any of its Affiliates, licensees or sub-licensees
(the "Receiver") which the Discloser deems to be confidential and
proprietary to the Discloser, other than information which the
Receiver can show to the reasonable satisfaction of the Discloser:
(i) was already in the possession or control of the
Receiver prior to the time of disclosure;
(ii) is at the time of disclosure or thereafter becomes
available to the public otherwise than as the result
of any fault or omission by the Receiver or any
employee of the Receiver contrary to the terms of this
Agreement;
(iii) is disclosed to the Receiver by a third party who did
not acquire it directly or indirectly from the
Discloser in confidence;
(iv) is approved for release by the Discloser.
7.2 Each of the parties hereto agrees that it will not use any
Confidential Information disclosed to it by the other party except
for the purposes of the development, registration, manufacture, use
and sale of Products produced from the Compound pursuant to the terms
of this Agreement and that, except as required by law it will not
disclose the Confidential Information to any Third Party without the
consent of the Discloser PROVIDED HOWEVER that such consent shall be
deemed to have been given to disclosure of the Confidential
Information to those of its Affiliates, or sub-licensees or to those
of its officers or employees, or officers or employees of such
Affiliates, licensees or sub-licensees who require to have the
Confidential Information in connection with the development,
registration, manufacture, use or sale of the Products produced from
the Compound, but only if such Affiliates, licensees, sub-licensees,
officers or employees are bound by obligations of confidentiality no
less strict than those set out herein.
-12-
14
7.3 Each of the parties agrees to notify the Discloser forthwith in the
event that it should become aware of the disclosure or use of the
Discloser's Confidential Information contrary to the terms hereof.
7.4 All proprietary rights (including, but not limited to, patent rights
and trade secrets) in and to the Confidential Information shall
remain the property of the Discloser.
7.5 The obligations set out in this Clause 7 shall remain binding on the
parties hereto either for the term of this Agreement and for a period
of five (5) years thereafter or for a term of ten (10) years from the
date hereof, whichever is the longer.
8. PUBLIC ANNOUNCEMENTS
Except as required by law, neither the existence nor the terms of this
Agreement nor the arrangements contemplated herein shall be disclosed by
any party to any Third Party or made public without the prior written
agreement of the other party, such agreement not to be unreasonably
withheld or delayed.
9. TERM AND TERMINATION
9.1 This Agreement shall come into operation on the date hereof, and,
subject to the provisions for earlier termination set out herein,
shall remain in force until the expiry of the last to expire of the
OSI Patents in the Territory.
9.2 The 1993 Agreement is hereby terminated.
9.3 Each of the parties shall be entitled to terminate this Agreement
with immediate effect by notice in writing to the other in either of
the following events:
(i) If the other party owes an obligation hereunder, and should
commit or permit a material breach of such obligation and
shall fail or be unable to cure such breach within 60 days
of receipt of notice specifying the breach;
(ii) If the other party should go into liquidation otherwise
than for the purpose of reconstruction or amalgamation; or
if a petition should be presented for its dissolution or
winding up and such petition should not be withdrawn or
dismissed within 60 days of its presentation; or if a
receiver or manager should be appointed of its assets; or
if it should enter into any composition with its creditors.
9.4 Termination or expiry of this Agreement shall not affect the rights
of any party against the other party in respect of any antecedent
breach of the terms hereof, nor the rights or obligations of any
party pursuant to the provisions of Clause 5 with regard to royalty
payments in respect of Net Sales of the Products up to the date of
termination or expiry, Clause 7 in respect of confidentiality and
Clause 10 in respect of indemnities.
-13-
15
9.5 The expiration or termination of this Agreement, if brought about as
referred to in Clause 9.2 by the expiry of the Patents or if
CIBA-GEIGY should terminate this Agreement pursuant to Clause 9.2,
shall not terminate the night of CIBA-GEIGY to continue to use OSI
Know-How or to manufacture, have manufactured, use and sell the
Products in the Territory.
9.6 Notwithstanding expiry of this Agreement by effluxion of time or
termination pursuant to Clause 4.3 hereof, if at the relevant time
CIBA-GEIGY is supplying ONCOGENE SCIENCE with its requirements of the
Compound, it will continue to do so on the same terms as to supply as
are then in force. In such case and if so requested by CIBA-GEIGY,
ONCOGENE SCIENCE will enter into a formal Supply Agreement
incorporating such terms.
10. INDEMNITIES
10.1 Each of the parties hereto shall hold harmless and indemnify the
other party hereto from and against any claim for damages for human
bodily injury or death resulting from the ingestion or use of any
products produced from the Compound and sold by the indemnifying
party or its Affiliates or sub-licensees except to the extent that
such injury or death is attributable to the negligence or intentional
misconduct of the party seeking indemnity.
10.2 The party seeking indemnity shall promptly notify the indemnifying
party of any such claim, and shall allow the indemnifying party
and/or its insurers the opportunity to assume the direction and
control of the defense of such claim, including, without limitation,
the settlement thereof at the sole discretion of the indemnifying
party or its insurers, except to the extent that the indemnifying
party alleges that there has been negligence or intentional
misconduct on the part of the party seeking indemnity. The party
seeking indemnity shall cooperate with the indemnifying party and/or
its insurers in the defense and disposition of any such claim.
11. ASSIGNMENT
11.1 Each party hereto may assign the whole or any part of its rights and
obligations under this Agreement to any of its Affiliates or to any
successor to the whole of its pharmaceutical business. Save as
mentioned in this Clause 11.1, none of the parties hereto may assign
its rights and obligations hereunder to any Third Party without first
obtaining the written consent of the other party hereto.
11.2 If so requested by the other party, the party assigning its rights
and obligations hereunder shall procure that the assignee will
undertake directly with the other party to perform the obligations
assigned to it. Pending the giving of such undertaking, the
assigning party shall remain responsible for the performance of such
obligations by the assignee.
11.3 Written notice of any assignment permitted under Clause 11.1 hereof
shall be given by the assigning party to the other within seven (7)
days after the date of such assignment.
-14-
16
11.4 CIBA-GEIGY shall be entitled to grant sub-licenses to any of its
Affiliates and to Third Parties to manufacture or have manufactured,
use and sell the Products in any country of the Territory.
CIBA-GEIGY will ensure that the terms of any such sub-license impose
on the sub-licensee obligations no less onerous than those accepted
by it hereunder, including, but not limited to, obligations relating
to the keeping of records, provision and verification of sales
returns, payment of royalties, indemnities and confidentiality.
12. MISCELLANEOUS
12.1 APPLICABLE LAW, ETC. This Agreement shall be construed and applied
in accordance with the laws of the State of New York. Venue shall be
New York.
12.2 NOTICES. Any notices required or authorized to be served hereunder
shall be deemed to have been properly served if delivered by hand, or
sent by registered or certified mail, or sent by facsimile
transmission confirmed by registered or certified mail, to the party
to be served at the address specified by such party for that purpose,
or, if no such address is specified, at the address given at the head
of this Agreement.
12.3 ENTIRE AGREEMENT. This Agreement represents the entire agreement and
understanding between the parties relating to the subject matter
hereof, and supersedes all documents or verbal consents or
understandings (if any) given or made between the parties prior to
the date hereof. None of the terms hereof may be amended or modified
except by an instrument in writing signed by authorized
representatives of the parties hereto.
12.4 WAIVERS. Any delay or omission on the part of any party in the
exercise of its strict rights hereunder will not impair those rights
nor will it constitute a renunciation or waiver of those rights. Any
waiver by any party of any term or condition of this Agreement in any
one instance shall not be deemed or construed to be a waiver of such
term or condition for any other instance in the future (whether
similar or dissimilar) or of any subsequent breach hereof. All
rights, remedies, undertakings, obligations and agreements contained
in this Agreement shall be cumulative, and none of them shall be a
limitation of any other right, remedy, undertaking, obligation, or
agreement of any of the parties.
12.5 FORCE MAJEURE. None of the parties hereto shall be liable to the
other party for any failure to perform any obligation on its part
hereunder to the extent that such failure is due to circumstances
beyond its reasonable control, including in particular war, act of
God, strike, lock-out, Government intervention, riot or civil
commotion, plant breakdown and scarcity or nonavailability of raw
materials. It shall however notify the other party as soon as
practicable of the occurrence of any such circumstance, and the
parties shall meet to consider what steps, if any, can be taken to
overcome any difficulties thereby occasioned.
12.6 HEADINGS. Headings in this Agreement are included for ease of
reference only and have no legal effect.
-15-
17
AS WITNESS the signatures of the representatives of the parties hereto the day
and year first above written.
ONCOGENE SCIENCE, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
CIBA-GEIGY Limited
By:
Names: M. Sundman R.E. Walker
Titles: Head of Business Development Division Counsel
-16-
18
SCHEDULE 1
List of OSI Patents
COUNTRY APPLICATION/PATENT NO. FILING DATE EXPIRY DATE
Australia 600230 21.04.1986 21.04.2002
Australia 620795 19.10.1987 19.10.2003
Australia 57293/90 17.05.1990 17.05.2006
Australia 81828/91 25.06.1991 25.06.2007
Australia 83958/91 25.06.1991 25.06.2007
Austria 200090 (E) 15.04.1986 15.04.2006
Austria 384494 (E) 20.10.1987 20.10.2007
Austria 508883 (E) 17.04.1990 17.04.2010
Austria 536275 (E) 25.06.1991 25.06.2011
Austria 538395 (E) 25.06.1991 25.06.2011
Belgium 200090 (E) 15.04.1986 15.04.2006
Belgium 384494 (E) 20.10.1987 20.10.2007
Belgium 508983 (E) 17.04.1990 17.04.2010
Belgium 536275 (E) 25.06.1991 25.06.2011
Belgium 538395 (E) 25.06.1991 25.06.2011
Canada 1274471 18.04.1986 18.04.2006
Canada 549582-2 20.10.1987 20.10.2007
Canada 2056981-6 17.05.1990 17.05.2010
Canada 2084992 25.06.1991 25.06.2011
Canada 2084510 25.06.1991 25.06.2011
Denmark 536275 (E) 25.06.1991 25.06.2011
Denmark 538395 (E) 25.06.1991 25.06.2011
EPO 200090 (E) 15.04.1986 15.04.2006
EPO 384494 (E) 20.10.1987 20.10.2007
EPO 508983 (E) 17.04.1990 17.04.2010
EPO 536275 (E) 25.06.1991 25.06.2011
EPO 538395 (E) 25.06.1991 25.06.2011
France 200090 (E) 15.04.1986 15.04.2006
France 384494 (E) 20.10.1987 20.10.2007
France 508983 (E) 17.04.1990 17.04.2010
France 536275 (E) 25.06.1991 25.06.2011
France 538395 (E) 25.06.1991 25.06.2011
Germany 36 87 241 15.04.1986 15.04.2006
Germany 384494 (E) 20.10.1987 20.10.2007
Germany 508983 (E) 17.04.1990 17.04.2010
Germany 536275 (E) 25.06.1991 25.06.2011
Germany 538395 (E) 25.06.1991 25.06.2011
Great Britain 200090 (E) 15.04.1986 15.04.2006
Great Britain 384494 (E) 20.10.1987 20.10.2007
Great Britain 508983 (E) 17.04.1990 17.04.2010
Great Britain 536275 (E) 25.06.1991 25.06.2011
-17-
19
Schedule 1 (continued)
List of OSI Patents
Great Britain 538395 (E) 25.06.1991 25.06.2011
Greece 384494 (E) 20.10.1987 20.10.2007
Greece 536275 (E) 25.06.1991 25.06.2011
Greece 538395 (E) 25.06.1991 25.06.2011
Ireland 971/86 14.04.1986 14.04.2006
Ireland 2809/87 19.10.1987 19.10.2007
Israel (Div.) 103617 20.04.1986 20.04.2006
Israel 78546 20.04.1986 20.04.2006
Israel 84211 19.10.1987 19.10.2007
Italy 20732BE/93 15.04.1986 15.04.2006
Italy 384494 (E) 20.10.1987 20.10.2007
Italy 509983 (E) 17.04.1990 17.04.2010
Italy 536275 (E) 25.06.1991 25.06.2011
Italy 538395 (E) 25.06.1991 25.06.2011
Japan 089844/86 18.04.1986
Japan 265201/87 20.10.1987
Japan 514242/91 25.06.1991
Japan 513051/91 25.06.1991
Japan 508246/90 17.05.1990
Liechtenstein 200090 (E) 15.04.1986 15.04.2006
Liechtenstei n384494 (E) 20.10.1987 20.10.2007
Liechtenstein 509983 (E) 17.04.1990 17.04.2010
Liechtenstein 536275 (E) 25.06.1991 25.06.2011
Liechtenstein 538395 (E) 25.06.1991 25.06.2011
Luxembourg 200090 (E) 15.04.1986 15.04.2006
Luxembourg 384494 (E) 20.10.1987 20.10.2007
Luxembourg 508983 (E) 17.04.1990 17.04.2010
Luxembourg 538395 (E) 25.06.1991 25.06.2011
Luxembourg 536275 (E) 25.06.1991 25.06.2011
Netherlands 200090 (E) 15.04.1986 15.04.2006
Netherlands 384494 (E) 20.10.1987 20.10.2007
Netherlands 508983 (E) 17.04.1990 17.04.2010
Netherlands 536275 (E) 25.06.1991 25.06.2011
Netherlands 538395 (E) 25.06.1991 25.06.2011
New Zealand 215887 18.04.1986 18.04.2002
New Zealand 222168 14.10.1987 14.10.2003
Spain 554177 18.04.1986 18.04.2006
Spain 8702981 19.10.1987 19.10.2007
Spain 508983 (E) 17.04.1990 17.04.2010
Spain 536275 (E) 25.06.1991 25.06.2011
Spain 538395 (E) 25.06.1991 25.06.2011
Sweden 384494 (E) 20.10.1987 20.10.2007
Sweden 508983 (E) 17.04.1990 17.04.2010
Sweden 536275 (E) 25.06.1991 25.06.2011
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20
Schedule 1 (continued)
List of OSI Patents
Sweden 538395 (E) 25.06.1991 25.06.2011
Switzerland 200090 (E) 15.04.1986 15.04.2006
Switzerland 384494 (E) 20.10.1987 20.10.2007
Switzerland 508983 (E) 17.04.1990 17.04.2010
Switzerland 536275 (E) 25.06.1991 25.06.2011
Switzerland 538395 (E) 25.06.1991 25.06.2011
USA 08/344519 19.04.1986*
USA 08/317283 19.04.1985*
USA 07/960925 20.04.1988*
USA 5262319 25.06.1990 16.11.2010
USA 08/071223 25.06.1990*
USA 07/992479 21.09.1992*
USA 08/210232 21.09.1992*
USA 08/115519 21.09.1992*
USA 08/118197 19.04.1985*
USA 08/294061 19.04.1985*
* Effective filing date
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21
SCHEDULE 2
LIST OF CG PATENTS
COUNTRY APPLICATION/PATENT NO. FILING DATE EXPIRY DATE
Australia 67018/90 27.11.1990 27.11.2006
Austria 433225 (E) 27.11.1990 27.11.2010
Belgium 433225 (E) 27.11.1990 27.11.2010
Canada 2031430 04.12.1990 04.12.2010
Denmark 433225 (E) 27.11.1990 27.11.2010
Finland 905956 03.12.1990 03.12.2010
France 433225 (E) 27.11.1990 27.11.2010
Germany 433225 (E) 27.11.1990 27.11.2010
Great Britain 433225 (E) 27.11.1990 27.11.2010
Greece 433225 (E) 27.11.1990 27.11.2010
Hungary 8084/1990 05.12.1990 05.12.2010
Ireland 4386/90 05.12.1990 05.12.2010
Israel 96549 05.12.1990 05.12.2010
Italy 433225 (E) 27.11.1990 27.11.2010
Japan 330871/90 30.11.1990
Korea 19881/90 05.12.1990
Luxembourg 433225 (E) 27.11.1990 27.11.2010
Mexico 23579 04.12.1990 04.12.2010
Netherlands 433225 (E) 27.11.1990 27.11.2010
New Zealand 236333 04.12.1990 04.12.1990
Norway P905264 05.12.1990 05.12.2010
Pakistan 132484 10.11.1990 06.12.2005
Philippines 41681 05.12.1990
Philippines 47025 05.12.1991
Philippines 48001 05.12.1990
Portugal 96068 04.12.1990
South Africa 9762/90 05.12.1990 05.12.2010
Spain 433225 (E) 27.11.1990 27.11.2010
Sweden 433225 (E) 27.11.1990 27.11.2010
Switzerland 433225 (E) 27.11.1990 27.11.2010
Taiwan 56999NI 13.11.1990 11.06.2007
USA 621502/07 03.12.1990
USA 960309/07 (Cont.) 13.10.1992
USA 201703/08 25.02.1994
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22
SCHEDULE 3
LIST OF THIRD PARTY PATENTS
LICENSOR
(1) The Board of Trustees of the Leland Stanford Junior University
PATENT NO. DATE OF ISSUE/FILING
US Patent No. 4,237,224 2nd December, 1980
US Patent No. 4,468,464 28th August, 1984
US Patent Application No. 602,294 20th April, 1984
(2) Brookhaven National Laboratory
PATENT NO. DATE OF ISSUE/FILING
US Patent No. 4,952,496 28th August, 1990
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23
SCHEDULE 4
Example of calculation for the purposes of Clause 3.5(c)
(N.B.: All figures used are hypothetical)
CIBA-GEIGY supplies three batches of Compound to ONCOGENE SCIENCE in 1996. The
Manufacturing Cost ("MC") of the first batch of 10 grams is SFr. 125/mg (total
cost SFr. 1,250,000); the MC of the second batch of 12 grams is SFr. 75/mg
(total cost SFr. 900,000); the MC of the third batch of 16 grams is also SFr.
75/mg (cost SFr. 1,200,000). The average MC per gram of Compound is SFr.
3,350,000 divided by 38 = SFr. 88,157.9. ONCOGENE SCIENCE's Net Sales of
Product during 1996 total SFr. 60,000,000. The total amount of Compound
contained in the Product sold in 1996 is 24 grams and therefore the average Net
Sales Value per active gram of Product is SFr. 2,500,000. The MC is only
3.526316% of the Net Sales Value of Product, i.e. less than 4% by 0.473684.
Therefore ONCOGENE SCIENCE pays to CIBA-GEIGY one half of 0.473684% of SFr.
60,000,000 = SFr. 142,105.2.
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24
SCHEDULE 5
STOCK SUBSCRIPTION AND PURCHASE AGREEMENT
19th April, 1995
The Board of Directors of
Oncogene Science, Inc.
Dear Sirs:
The undersigned, Ciba-Geigy Limited ("the Purchaser") hereby
subscribes for and purchases 909,091 shares ("the Shares") of Common Stock,
$.01 par value per share, of Oncogene Science, Inc., a Delaware corporation
("the Company"), for a total consideration of U.S. $5,000,000.50 in cash, such
consideration to be paid and the Shares to be issued to the Purchaser within 10
business days of the date hereof.
Certain of the capitalised terms used herein are defined in the
Collaborative Agreement between the Purchaser and the Company dated as of the
19th April, 1995.
The Purchaser hereby agrees, represents, and warrants to the Company
that.
(1) The Purchaser is acquiring the Shares for its own account (and
not for the account of others) for investment and not with a view to the
distribution or resale thereof,
(2) By virtue of its position, the Purchaser has access to the same
kind of information which would be available in a registration statement filed
under the Securities Act of 1933;
(3) The Purchaser is a sophisticated investor;
(4) The Purchaser shall have the registration rights set forth in
the Registration Rights Agreement between the Purchaser and the Company dated
as of the 19th April, 1995. The Purchaser agrees that if any of the Shares are
sold prior to the 19th April, 1999 without the written consent of the Company,
the option set forth in Section 5.8 of the Collaborative Agreement to include
all other indications for the Compound in the Licensed Indications shall lapse.
If at the time of the sale of the Shares such option has already been
exercised, then such other indications shall thereupon be removed from the
Licensed Indications.
-23-
25
(5) The Purchaser understands that it may not sell or otherwise
dispose of such shares in the absence of either a registration statement under
the Securities Act of 1933 or an exemption from the registration provisions of
the Securities Act of 1933; and
(6) The certificates representing the Shares may contain a legend to
the effect of (5) above, and the Company may place stop-transfer orders with
the transfer agent of the Company's securities with respect to the Shares in
the event of any sale or disposal, or purported sale or disposal, of the Shares
contrary to (5) above .
This Stock Subscription and Purchase Agreement shall be binding upon
the successors and assigns of the undersigned, and may not be amended or
modified except by any agreement in writing signed by the parties hereto. This
Stock Subscription and Purchase Agreement shall be governed by the laws of the
State of New York, without regard to principles of conflicts of laws.
Yours faithfully,
CIBA-GEIGY Limited
Accepted:
ONCOGENE SCIENCE, INC.
By:
----------------------------
Name:
Title:
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