1
Confidential Treatment Requested
Under 17 C.F.R. Section 200.80 (b)(4),
200.83 and 230.406.
EXHIBIT 10.47
COLLABORATION AGREEMENT
BETWEEN
GENE LOGIC INC.
AND
HOECHST SCHERING AGREVO GMBH
DATED AS OF JUNE 30, 1998
2
TABLE OF CONTENTS
(CONTINUED)
PAGE
1. DEFINITIONS...............................................................1
1.1 "Acquired Technology"..............................................1
1.2 "Affiliate"........................................................1
1.3 "Agreement Date"...................................................2
1.4 "Agreement Term"...................................................2
1.5 "AgrEvo Background Technology".....................................2
1.6 "Agricultural Product".............................................2
1.7 "Alliance".........................................................2
1.8 "Alliance Director"................................................2
1.9 "Base Information".................................................2
1.10 "cDNA".............................................................2
1.11 "Chairman".........................................................2
1.12 "Change of Control"................................................2
1.13 "Claim"............................................................2
1.14 "Commercial Field".................................................2
1.15 "Confidential Information".........................................2
1.16 "Control"..........................................................3
1.17 "Crop".............................................................3
1.18 "Database Development and Technology Fees".........................3
1.19 "Database Maintenance Fees"........................................3
1.20 "Disclosing Party".................................................3
1.21 "Effective Date"...................................................3
1.22 "Exclusive Extension"..............................................3
1.23 "1st Non-Exclusive Extension"......................................3
1.24 "Flow-thru Chip Technology"........................................3
1.25 "Foreground Technology"............................................3
1.26 "Further Development"..............................................3
1.27 "Gene Logic Assay".................................................3
1.28 "Gene Logic Background Technology".................................3
1.29 "Gene Logic Future Technology".....................................4
i
3
TABLE OF CONTENTS
(CONTINUED)
PAGE
1.30 "Gene Logic Software"..............................................4
1.31 "Gene Product".....................................................4
1.32 "Genetic Target"...................................................4
1.33 "Initial Term".....................................................4
1.34 "Invention"........................................................4
1.35 "Licensee Revenues"................................................4
1.36 "Milestone Fee"....................................................5
1.37 "MuST Technology"..................................................5
1.38 "Net Sales"........................................................5
1.39 "Patent Rights"....................................................5
1.40 "Program Material".................................................5
1.41 "Publishing Party".................................................5
1.42 "READS Technology".................................................5
1.43 "Receiving Party"..................................................5
1.44 "Reports"..........................................................6
1.45 "Research Database"................................................6
1.46 "Research Field"...................................................6
1.47 "Research Plan"....................................................6
1.48 "Research Program".................................................6
1.49 "Research Term"....................................................6
1.50 "Responsible Party"................................................6
1.51 "Reviewing Party"..................................................6
1.52 "RMC"..............................................................6
1.53 "Samples"..........................................................6
1.54 "Scientific FTE"...................................................6
1.55 "2nd Non-Exclusive Extension"......................................6
1.56 "Signing Fee"......................................................6
1.57 "Technology Transfer Date".........................................6
1.58 "Technology Use Fee"...............................................6
1.59 "Third Party"......................................................7
ii
4
TABLE OF CONTENTS
(CONTINUED)
PAGE
2. RESEARCH PROGRAM..........................................................7
2.1 Undertaking and Scope..............................................7
2.2 Exclusivity........................................................7
2.3 Personnel and Resources............................................7
2.4 Information and Reports Concerning the Research
Program; Delivery of Program Materials.............................8
2.5 Samples............................................................8
2.6 Term of the Research Program.......................................8
2.7 Selection of Genetic Targets.......................................9
2.8 Flow-thru Chip....................................................10
2.9 AgrEvo Right of First Negotiation on Acquired
Technology During Exclusivity Period..............................11
2.10 Notice of Acquired Technology During Other Periods................11
2.11 Visiting AgrEvo Employees.........................................11
2.12 Notice of Gene Logic Future Technology............................12
3. RESEARCH MANAGEMENT COMMITTEE; ALLIANCE DIRECTORS;
DISPUTE RESOLUTION.......................................................12
3.1 Research Management Committee.....................................12
3.2 RMC Meetings......................................................12
3.3 Alliance Directors................................................12
3.4 Dispute Resolution................................................13
4. PATENTS, KNOW-HOW RIGHTS AND INVENTIONS..................................13
4.1 Inventorship......................................................13
4.2 Ownership of Gene Logic Background Technology,
Gene Logic Future Technology, Flow-thru Chip
Technology, Gene Logic Assays and Acquired
Technology........................................................13
4.3 Ownership of Improvements to Gene Logic
Background Technology, Gene Logic Future
Technology, Flow-thru Chip Technology, Gene Logic
Assays and Acquired Technology....................................13
4.4 Ownership of AgrEvo Background Technology.........................13
4.5 Ownership of Improvements to AgrEvo Background
Technology........................................................14
4.6 Ownership of Foreground Technology................................14
iii
5
TABLE OF CONTENTS
(CONTINUED)
PAGE
4.7 Patent Protection.................................................15
4.8 Infringement by Third Parties.....................................16
4.9 Allegations of Infringement by Third Parties......................16
5. LICENSES.................................................................16
5.1 Research Database License to AgrEvo...............................16
5.2 Exclusive License to AgrEvo in the Event of a
Technology Transfer...............................................17
5.3 Non-Exclusive License to AgrEvo Following a
Change of Control.................................................18
5.4 License of AgrEvo Background Technology...........................18
5.5 Gene Logic Background Technology Patent Rights....................18
5.6 Diligence.........................................................18
5.7 Reports...........................................................18
6. RIGHTS TO BASE INFORMATION...............................................19
6.1 [...***...] Rights................................................19
6.2 [...***...] Rights................................................19
7. PAYMENTS AND ROYALTIES...................................................19
7.1 Signing Fee.......................................................19
7.2 Database Development and Technology Fees..........................20
7.3 Database License Maintenance Fees.................................20
7.4 Research Support..................................................21
7.5 Genetic Target Fees...............................................21
7.6 Royalties Payable by AgrEvo.......................................21
7.7 Milestone Payments................................................22
7.8 Currency of Payment...............................................23
7.9 Payment and Reporting.............................................24
7.10 Records and Audits................................................24
8. SECURITY AND CONFIDENTIALITY.............................................24
8.1 Security of Research Database and Gene Logic
Software..........................................................24
8.2 Confidentiality...................................................25
8.3 Permitted Disclosures.............................................26
8.4 Publication.......................................................26
* CONFIDENTIAL TREATMENT REQUESTED
iv
6
TABLE OF CONTENTS
(CONTINUED)
PAGE
8.5 Press Release.....................................................26
9. REPRESENTATIONS AND WARRANTIES...........................................27
9.1 Legal Authority...................................................27
9.2 Valid Licenses....................................................27
9.3 No Conflicts......................................................27
9.4 Disclaimer........................................................27
9.5 Limitation on Liability...........................................27
10. TERM; TERMINATION........................................................27
10.1 Term..............................................................27
10.2 Termination for Breach............................................27
10.3 Effect of Bankruptcy..............................................28
10.4 Remedies..........................................................28
10.5 Survival..........................................................28
11. DISPUTE RESOLUTION.......................................................28
11.1 Arbitration.......................................................28
11.2 Procedure.........................................................28
12. GENERAL PROVISIONS.......................................................29
12.1 Mutual Indemnification............................................29
12.2 Change of Control.................................................29
12.3 Assignment........................................................30
12.4 Non-Waiver........................................................30
12.5 Governing Law.....................................................30
12.6 Partial Invalidity................................................30
12.7 Notice............................................................31
12.8 Headings..........................................................31
12.9 No Implied Licenses or Warranties.................................31
12.10 Force Majeure.....................................................31
12.11 Entire Agreement..................................................32
12.12 Amendments........................................................32
12.13 Independent Contractors...........................................32
12.14 Counterparts......................................................32
v
7
An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
8
COLLABORATION AGREEMENT
THIS COLLABORATION AGREEMENT ("Agreement") is made as of June 30, 1998,
by and between GENE LOGIC INC., a Delaware corporation ("Gene Logic"), and
HOECHST SCHERING AGREVO GMBH ("AgrEvo"), a corporation organized under the laws
of Germany.
WITNESSETH:
WHEREAS, Gene Logic has developed technologies and know-how with respect
to high throughput analysis of gene expression and gene regulation for use in
the identification of genetic targets with potential application in the
discovery of products for agricultural plant protection and of genetically
improved plants;
WHEREAS, AgrEvo is a company engaged in the development and
commercialization of products for agricultural plant protection (i.e.,
herbicides, fungicides and insecticides) and plant improvement;
WHEREAS, AgrEvo and Gene Logic wish to enter into a collaborative effort
(the "Alliance") directed toward the development of a Research Database (as
defined herein) for identification of genetic targets for use in research and
development of Agricultural Products (as defined herein); and
WHEREAS, through the Research Program (as defined herein), AgrEvo
intends to discover leads for new genetic targets for the development and
commercialization of Agricultural Products
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises, covenants and conditions contained herein, Gene Logic and
AgrEvo agree as follows:
1. DEFINITIONS.
The following capitalized terms shall have the meanings indicated for
purposes of this Agreement:
1.1 "ACQUIRED TECHNOLOGY" shall mean (a) all discoveries,
inventions, information, data, know-how, trade secrets and biological or other
materials (whether or not patentable) that (i) are not included in the Gene
Logic Background Technology or Flow-thru Chip(TM) Technology, (ii) do not
constitute a Gene Logic Assay or part thereof, and (iii) become Controlled by
Gene Logic after the Agreement Date as a result of a transaction (or series of
transactions relating to the same technology) in which Gene Logic pays aggregate
consideration for such discoveries, inventions, information, data, know-how,
trade secrets and materials in excess of [ * * * ], (b) all enhancements or
improvements thereto, and (c) all Patent Rights or other intellectual property
rights Controlled by Gene Logic covering the foregoing.
1.2 "AFFILIATE" shall mean any corporation, association or other
entity which directly or indirectly controls, is controlled by or is under
common control with the party in question; provided, however, that with respect
to AgrEvo, "Affiliate" shall not include either Hoechst AG
1.
* CONFIDENTIAL TREATMENT REQUESTED
9
or Schering AG. Except as otherwise provided in the proviso in the preceding
sentence, as used in this definition of "Affiliate," the term "control" shall
mean direct or indirect beneficial ownership of more than 50% of the voting or
income interest in such corporation, association or other entity.
1.3 "AGREEMENT DATE" shall mean the date of this Agreement first
written above.
1.4 "AGREEMENT TERM" shall mean the period from the Agreement Date
until, with respect to each Agricultural Product, the expiration of the last
royalty obligation owed by AgrEvo to Gene Logic with respect to such
Agricultural Product, or until this Agreement is otherwise terminated pursuant
to its terms.
1.5 "AGREVO BACKGROUND TECHNOLOGY" shall mean (a) any and all
discoveries, inventions, information, data, know-how, trade secrets and
biological or other materials (including but not limited to Samples), whether or
not patentable, that are Controlled by AgrEvo or its Affiliates as of the
Agreement Date or during the Research Term and that are disclosed to or used by
Gene Logic in furtherance of and in the course of the Research Program; (b) all
enhancements and improvements to the foregoing; and (c) all Patent Rights or
other intellectual property rights Controlled by AgrEvo or its Affiliates
covering any of the foregoing.
1.6 "AGRICULTURAL PRODUCT" shall mean (a) any seed (including any
seedling or other planting material) of agricultural, horticultural or forestry
plants, which plants are modified with respect to the structure, function or
expression of one or more Genetic Targets; or (b) any other product for plant
protection, or for plant improvement in agriculture, horticulture or forestry
that is identified through its effect on one or more Genetic Targets.
1.7 "ALLIANCE" shall have the meaning set forth in the preamble.
1.8 "ALLIANCE DIRECTOR" shall have the meaning set forth in Section
3.3.
1.9 "BASE INFORMATION" shall mean all sequence information
pertaining to nucleic acids and proteins generated by Gene Logic from Samples
under the Research Program. "Base Information" does not include other
information from the Research Database, including without limitation methods,
expression profiles and Sample annotations.
1.10 "cDNA" shall mean a DNA copy of part or all of a mRNA.
1.11 "CHAIRMAN" shall have the meaning set forth in Section 3.1.
1.12 "CHANGE OF CONTROL" shall have the meaning set forth in Section
12.2(b).
1.13 "CLAIM" shall have the meaning set forth in Section 12.1.
1.14 "COMMERCIAL FIELD" shall mean (a) plant protection and (b)
plant improvement in agriculture, horticulture and forestry, including without
limitation plant improvements for human food and animal feed applications.
1.15 "CONFIDENTIAL INFORMATION" shall have the meaning set forth in
Section 8.2(a).
2.
10
1.16 "CONTROL" shall mean possession of the ability to grant the
licenses or sublicenses or to make the assignments as provided for herein
without violating the terms of any agreement or other arrangement with any Third
Party.
1.17 "CROP" shall have the meaning set forth in Section 7.7(e).
1.18 "DATABASE DEVELOPMENT AND TECHNOLOGY FEES" shall have the
meaning set forth in Section 7.2.
1.19 "DATABASE MAINTENANCE FEES" shall have the meaning set forth in
Section 7.3.
1.20 "DISCLOSING PARTY" shall have the meaning set forth in Section
8.2(a).
1.21 "EFFECTIVE DATE" shall mean the date on which the RMC approves
the initial Research Plan pursuant to Section 2.1.
1.22 "EXCLUSIVE EXTENSION" shall have the meaning set forth in
Section 2.6(b)(iii).
1.23 "1ST NON-EXCLUSIVE EXTENSION" shall have the meaning set forth
in Section 2.6(b)(ii).
1.24 "FLOW-THRU CHIP TECHNOLOGY" shall mean Gene Logic's technology
for the use of a chip employing a substrate traversed by a grid of
micro-channels for high-throughput analysis of changes in the expression of
known genes.
1.25 "FOREGROUND TECHNOLOGY" shall mean all discoveries, inventions,
information, data, know-how, trade secrets and biological or other materials
(whether or not patentable) arising out of the Research Program that are
conceived, generated or reduced to practice during the Research Term other than
such discoveries, inventions, information, data, know-how, trade secrets or
materials that constitute Gene Logic Background Technology, Gene Logic Assays or
AgrEvo Background Technology. "Foreground Technology" includes, without
limitation, Base Information, Program Material, Gene Products, Genetic Targets
and any material, information and products obtained by utilizing any of the
foregoing.
1.26 "FURTHER DEVELOPMENT" shall mean (a) with respect to a Gene
Product that may have utility in the development of a seed product, the "Elite
Event Selection" process as more fully disclosed in the memorandum prepared by
AgrEvo and submitted to Gene Logic prior to the Agreement Date; or (b) with
respect to a Gene Product that may have utility in the development of all other
Agricultural Products, the commencement of high throughput chemical screening
using such Gene Product.
1.27 "GENE LOGIC ASSAY" shall mean the high-throughput analysis of
changes in gene expression using a chip containing a panel of Gene Products,
which utilizes the Flow-thru Chip Technology, and related tools and procedures.
1.28 "GENE LOGIC BACKGROUND TECHNOLOGY" shall mean (a) all
discoveries, inventions, information, data, know-how, trade secrets and
biological or other materials (whether or not patentable) that are Controlled by
Gene Logic as of the Agreement Date or during the
3.
11
Research Term and that pertain to (i) the READS(TM) Technology, (ii) the
MuST(TM) Technology, (iii) the Gene Logic Software, (iv) upon the election by
the RMC in accordance with the terms of this Agreement, any Gene Logic Assay or
Gene Logic Future Technology selected by the RMC, and (v) the database
architecture and design of, and the analytical tools within, the Research
Database, (b) all enhancements and improvements thereto, and (c) all Patent
Rights or other intellectual property rights Controlled by Gene Logic covering
the foregoing. "Gene Logic Background Technology" does not include any
information that results from the application of any Gene Logic Background
Technology in the course of the Research Program (other than to the extent such
information constitutes an improvement to or enhancement of Gene Logic
Background Technology).
1.29 "GENE LOGIC FUTURE TECHNOLOGY" shall mean (a) all discoveries,
inventions, information, data, know-how, trade secrets and biological or other
materials (whether or not patentable) that (i) are not included in the Gene
Logic Background Technology, Flow-thru Chip Technology, or Acquired Technology,
(ii) do not constitute a Gene Logic Assay or part thereof, (iii) are neither
AgrEvo Background Technology nor Foreground Technology, (iv) relate to the field
of analysis of gene expression and the selection and prioritization of genes as
targets, and (v) become Controlled by Gene Logic after the Agreement Date,
whether as a result of internal development, acquisition or licensing-in, (b)
all enhancements and improvements thereto, and (c) all Patent Rights or other
intellectual property rights Controlled by Gene Logic covering the foregoing.
1.30 "GENE LOGIC SOFTWARE" shall mean Gene Logic's software programs
for the analysis of gene expression and gene regulation and the identification
and prioritization of genes as targets that are Controlled by Gene Logic as of
the Agreement Date or during the Research Term.
1.31 "GENE PRODUCT" shall mean (a) any gene that (i) is selected
through the use of the Research Database and (ii) encodes a mRNA present in a
Sample, (b) any RNA, cDNA or protein encoded wholly or in part by such gene and
(c) any part of such gene.
1.32 "GENETIC TARGET" shall mean any Gene Product that AgrEvo uses
for Further Development during the Research Term or within seven years from the
end of the Research Term.
1.33 "INITIAL TERM" shall mean the period commencing on the
Effective Date and ending upon the third anniversary of the Effective Date.
1.34 "INVENTION" shall mean any discovery, invention, information,
data, know-how, trade secret or biological or other material (whether or not
patentable) arising out of the Research Program that is conceived, generated or
reduced to practice during the Research Term.
1.35 "LICENSEE REVENUES" shall mean all royalties received by AgrEvo
or its Affiliates for the sale of Agricultural Products or license of Genetic
Targets from any Third Party to whom AgrEvo or its Affiliates licenses any
Agricultural Product or Genetic Targets; provided, however, that "Licensee
Revenues" shall include all Technology Use Fees received by AgrEvo or its
Affiliates from Third Parties not included in Net Sales.
4.
12
1.36 "MILESTONE FEE" shall have the meaning set forth in Section
7.7.
1.37 "MUST TECHNOLOGY" shall mean Gene Logic's Multiplex Selection
of Transcription Factors technology for identifying the nucleotide sequences of
the transcription factor binding sites through which the expression of genes is
regulated.
1.38 "NET SALES" shall mean the aggregate revenues effectively
received by AgrEvo or its Affiliates for the sale of an Agricultural Product,
less the following deductions:
(1) Prompt payment or other trade or quantity discounts
actually allowed and taken in such amounts as are customary in the trade;
(2) Amounts repaid or credited by reason of timely
rejections or returns;
(3) Taxes on the sale of a Agricultural Product (other
than franchise or income taxes on the income of the seller) actually paid or
withheld;
(4) Transportation and delivery charges, including
insurance premiums, actually incurred.
Notwithstanding the foregoing, amounts received by AgrEvo or its Affiliates for
the sale of Agricultural Products among AgrEvo and its Affiliates whether for
their internal use or for resale or other disposition will not be included in
the computation of Net Sales hereunder.
"Net Sales" shall also include Technology Use Fees received by AgrEvo or its
Affiliates from Third Parties in connection with sales of seeds by AgrEvo or its
Affiliates to the extent such Technology Use Fees cover only one growing cycle.
1.39 "PATENT RIGHTS" shall mean, with respect to Gene Logic or
AgrEvo, all United States and foreign patents (including all reissues,
extensions, confirmations, registrations, re-examinations, and inventor's
certificates) and patent applications (including, without limitation, all
substitutions, continuations, continuations-in-part and divisionals thereof)
necessary for the purposes of this Agreement Controlled by Gene Logic or AgrEvo
at any time during the Agreement Term.
1.40 "PROGRAM MATERIAL" shall mean any biological or biologically
derived material obtained by Gene Logic in the course of the Research Program
during the Research Term, including without limitation processed RNA samples and
cDNAs.
1.41 "PUBLISHING PARTY" shall have the meaning set forth in Section
8.4.
1.42 "READS TECHNOLOGY" shall mean Gene Logic's Restriction Enzyme
Analysis of Differentially-expressed Sequences technology for measuring gene
expression by detecting mRNA gene transcripts present in the cell or tissue
sample, generating gene expression profiles, comparing profiles between
different samples and generating data for databases.
1.43 "RECEIVING PARTY" shall have the meaning set forth in Section
8.2(a).
5.
13
1.44 "REPORTS" shall have the meaning set forth in Section 5.7.
1.45 "RESEARCH DATABASE" shall mean the database created by Gene
Logic using the Gene Logic Background Technology pursuant to the Research Plan
and containing data derived from experiments conducted with respect to Samples.
The structure and organization of the Research Database is more fully described
in the memorandum prepared by Gene Logic and submitted to AgrEvo prior to the
Agreement Date.
1.46 "RESEARCH FIELD" shall mean the application of Gene Logic
Background Technology to discover genes for use in the development of products
for the Commercial Field. "Research Field" shall not include the application of
any high throughput analysis technologies based on arrays of micro-channels,
such as the Flow-thru Chip Technology, and will not include the application of
any Acquired Technology.
1.47 "RESEARCH PLAN" shall have the meaning set forth in Section
2.1.
1.48 "RESEARCH PROGRAM" shall mean that program of research
performed during the Research Term by the parties pursuant to Section 2 for the
analysis and processing of Samples and for the creation of the Research
Database.
1.49 "RESEARCH TERM" shall mean the Initial Term, subject to
extension or earlier termination as set forth herein.
1.50 "RESPONSIBLE PARTY" shall have the meaning set forth in Section
4.7(a).
1.51 "REVIEWING PARTY" shall have the meaning set forth in Section
8.4.
1.52 "RMC" shall have the meaning set forth in Section 3.1.
1.53 "SAMPLES" shall mean tissue samples, cell lines or RNA
preparations provided to Gene Logic by AgrEvo for analysis pursuant to the
Research Plan.
1.54 "SCIENTIFIC FTE" shall mean the equivalent of a full-time
researcher's or program manager's work time over a 12-month period (including
normal vacations, sick days and holidays).
1.55 "2ND NON-EXCLUSIVE EXTENSION" shall have the meaning set forth
in Section 2.6(b)(ii).
1.56 "SIGNING FEE" shall have the meaning set forth in Section 7.1.
1.57 "TECHNOLOGY TRANSFER DATE" shall have the meaning set forth in
Section 2.6(b)(iv).
1.58 "TECHNOLOGY USE FEE" shall mean the amount of fees effectively
received by AgrEvo or its Affiliates (after deducting any amounts paid to Third
Parties collecting such fees on behalf of AgrEvo or its Affiliates for such
collection activity) as remuneration for the license or use of Genetic Targets
in seed (and not simply consideration for the purchase of the seed),
6.
14
which fees are paid by the farmer, grower or another Third Party (such as a
distributor or dealer) that purchased the seed.
1.59 "THIRD PARTY" shall mean any party other than AgrEvo or Gene
Logic or an Affiliate of either of them.
2. RESEARCH PROGRAM.
2.1 UNDERTAKING AND SCOPE. During the period commencing on the
Agreement Date and ending on August 15, 1998, AgrEvo and Gene Logic will work to
develop a plan for the creation and use of the Research Database. The RMC will
review and, in its discretion, approve or modify the general direction of such
plan. Such plan, as approved by the RMC for any year of the Research Program, is
referred to herein as the "Research Plan." The primary deliverables for the
Research Program are set forth in Schedule 2.1 attached hereto. At least 120
days before each anniversary of the Effective Date during the Research Term,
AgrEvo and Gene Logic will jointly develop and propose to the RMC a Research
Plan to govern further development of the Research Database during the following
year of the Research Program, with input as appropriate from Gene Logic, and the
RMC shall review, modify if appropriate, and approve such Research Plan by the
date 90 days before such anniversary. At any time, the RMC may modify or amend
any such Research Plan as appropriate or necessary to reflect the parties'
experiences in performing the Research Program. Each party agrees to use all
reasonable efforts to perform the activities detailed in the Research Plan in a
professional and timely manner.
2.2 EXCLUSIVITY.
(a) Neither AgrEvo nor its Affiliates will during the
Initial Term directly or indirectly conduct, contract or fund any activity
involving the application of gel-based, high throughput mRNA-based expression
profiling technologies for the analysis of tissue samples or RNA preparations
for use in the development of products in the Commercial Field, except in
accordance with this Agreement, without the prior written consent of Gene Logic.
(b) Neither Gene Logic nor its Affiliates during the
Initial Term will directly or indirectly conduct, contract or fund any activity
in the Research Field, except in accordance with this Agreement, without the
prior written consent of AgrEvo.
(c) If Alternative C is elected under Section 2.6(b)(iii),
exclusivity under Sections 2.2(a) and (b) will continue during the Exclusive
Extension.
(d) If Alternative D is elected under Section 2.6(b)(iv),
exclusivity under Section 2.2(b) will continue to apply to Gene Logic
perpetually (subject to the payment by AgrEvo of the amounts set forth in
Section 2.6(b)(iv)).
7.
15
2.3 PERSONNEL AND RESOURCES. Each party agrees to commit the
personnel, facilities, technology and other resources necessary to perform its
obligations under the Research Plan; provided, however, that neither party
warrants that the Research Program shall achieve any of the research objectives
contemplated by them. During the Research Term, AgrEvo and Gene Logic will each
maintain the number of Scientific FTEs, which in the case of Gene Logic shall
not be fewer than [ * * * ] Scientific FTEs, devoted to cooperative work as are
required under the Research Plan. The scientific priorities and direction of the
work of such Scientific FTEs will be determined by the RMC. Gene Logic agrees to
consult with the RMC with regard to its personnel employed in the Research
Program. AgrEvo will provide funding to support Gene Logic's performance of its
obligations under the Research Plan as set forth in Section 7. The use of
consultants, agents or subcontractors by Gene Logic to conduct activities under
the Research Program is subject to prior approval by the RMC.
2.4 INFORMATION AND REPORTS CONCERNING THE RESEARCH PROGRAM;
DELIVERY OF PROGRAM MATERIALS. All information, technology or inventions in the
Research Field made by Gene Logic in the course of the Research Program will be
disclosed promptly to AgrEvo. In addition, Gene Logic will grant AgrEvo access
to the results obtained by Gene Logic in the Research Program as set forth in
the memorandum referred to in Section 1.45 and in Schedule 2.1. When reporting
on enhancements or improvements on Gene Logic Background Technology, Gene Logic
will inform AgrEvo of the intellectual property status of such enhancements or
improvements. All Foreground Technology conceived, generated or reduced to
practice by AgrEvo in the course of the Research Program will be disclosed to
Gene Logic as soon as practicable, as necessary to enable Gene Logic to conduct
the Research Program. All information, technology or inventions that constitute
enhancements or improvements on Gene Logic Background Technology made by AgrEvo
or its Affiliates in the course of the Research Program will be disclosed
promptly to Gene Logic. When reporting on enhancements or improvements on Gene
Logic Background Technology, AgrEvo will inform Gene Logic of the intellectual
property status of such enhancements or improvements. Upon the request of
AgrEvo, Gene Logic will transfer any Program Material to AgrEvo.
2.5 SAMPLES. AgrEvo shall supply Samples to Gene Logic, as well as,
at AgrEvo's discretion, background information with respect to such Samples and
related experimental protocols, for Gene Logic to develop the Research Database
and otherwise carry out the purposes of this Agreement and the Research Plan.
Gene Logic will, and will take reasonable steps to ensure that its employees
and, if the use of consultants or agents is approved by the RMC, its consultants
and agents, use the Samples and background information in a manner that is
consistent with the terms of this Agreement and the Research Plan. Gene Logic
will use the Samples for no purpose other than in furtherance of the Research
Program, and at the end of the Research Term, Gene Logic will destroy or return
to AgrEvo any Sample or other Program Material remaining.
8.
* CONFIDENTIAL TREATMENT REQUESTED
16
2.6 TERM OF THE RESEARCH PROGRAM.
(a) Work under the Research Program will commence as of
the Effective Date and will terminate upon expiration or termination of the
Research Term. Except as provided in Section 2.6(b)(iii), AgrEvo may elect to
terminate the Research Term by providing written notice to Gene Logic at least
six months prior to the date such termination is to take effect, which date
shall be no earlier than 18 months after the Effective Date.
(b) At least 90 days prior to the end of the Initial Term,
AgrEvo shall provide written notice to Gene Logic of its election of one of the
following alternatives.
(i) ALTERNATIVE A - TERMINATION: AgrEvo may elect
to terminate the Research Term effective as of the last day of the Initial Term.
In the event that AgrEvo does not provide written notice by the date that is 90
days prior to the end of the Initial Term, AgrEvo shall be deemed to have
elected Alternative A.
(ii) ALTERNATIVE B - NON-EXCLUSIVE EXTENSION:
AgrEvo may elect to extend the Research Term for one two-year extension (the
"1st Non-Exclusive Extension") on the same basic terms applicable to the Initial
Term. In the event that AgrEvo has elected the 1st Non-Exclusive Extension, at
least 90 days prior to the end of the 1st Non-Exclusive Extension AgrEvo shall
provide written notice to Gene Logic of its election to either (A) extend the
Research Term for a second two-year extension (the "2nd Non-Exclusive
Extension") on the same basic terms applicable to the Initial Term or (B)
terminate the Research Term effective as of the last day of the 1st
Non-Exclusive Extension. In the event that AgrEvo does not provide written
notice by the date that is 90 days prior to the end of the 1st Non-Exclusive
Extension, AgrEvo shall be deemed to have elected to terminate the Research
Term. During each of the 1st Non-Exclusive Extension and the 2nd Non-Exclusive
Extension, the obligations of both parties set forth in Section 2.2 shall cease
to apply.
(iii) ALTERNATIVE C - EXCLUSIVE EXTENSION: AgrEvo
may elect to extend the Research Term for a period of five years (the "Exclusive
Extension") on the same basic terms applicable to the Initial Term, except as
provided in Sections 7.2(d), 7.3(b) and 7.4(a). AgrEvo will make a [ * * * ]
up-front payment upon commencement of the Exclusive Extension. If AgrEvo has
elected the Exclusive Extension, AgrEvo may thereafter elect to terminate the
Research Term by providing written notice to Gene Logic at least six months
prior to the date such termination is to take effect, which date shall be no
earlier than 30 months from the commencement of the Exclusive Extension.
9.
* CONFIDENTIAL TREATMENT REQUESTED
17
(iv) ALTERNATIVE D - TECHNOLOGY TRANSFER: AgrEvo
may elect to terminate the Research Program effective as of the last day of the
Initial Term and have Gene Logic grant to AgrEvo an exclusive license to the
Gene Logic Background Technology as set forth in Section 5.2. In the event that
AgrEvo elects this Alternative D, AgrEvo will pay to Gene Logic [ * * * ] upon
the last day of the Initial Term (the "Technology Transfer Date") and [ * * * ]
upon the first anniversary of the Technology Transfer Date. AgrEvo shall pay to
Gene Logic [ * * * ] on the Technology Transfer Date and each of the first,
second, third and fourth anniversaries of the Technology Transfer Date in order
to maintain the license under Section 5.2. Gene Logic will use commercially
reasonable efforts to cooperate with AgrEvo to the extent AgrEvo desires to
sublicense its rights under such license to the Gene Logic Background Technology
in the Research Field and the Commercial Field. In addition, during the one-year
period following the Technology Transfer Date, AgrEvo will pay to Gene Logic on
a quarterly basis, in arrears, for those Gene Logic Scientific FTEs necessary to
complete the transfer of technology based on a technology transfer plan agreed
by the parties up to a maximum of [ * * * ] Gene Logic Scientific FTEs.
2.7 SELECTION OF GENETIC TARGETS.
(a) During the course of the Research Program, Gene
Products will be identified and prioritized as potential Genetic Targets using
information from the Research Database. Gene Logic will work to develop
plant-specific techniques and protocols to process the Samples in accordance
with the Research Plan. Under the direction of the RMC, Gene Logic will use
commercially reasonable efforts (within the constraints of the Scientific FTE
allocation set forth in the Research Plan) to obtain partial and full length
cDNA sequences. Based upon AgrEvo's standard, internal research and development
criteria, AgrEvo will, in its sole discretion, decide whether to commence
Further Development with regard to a particular Gene Product. AgrEvo shall
notify Gene Logic in writing and make the payment described in Section 7.5 prior
to using any Genetic Target in Further Development.
(b) AgrEvo agrees to keep laboratory notebooks that record
whether information obtained from the Research Database has been used in the
selection of Gene Products as targets for further development and to provide an
independent Third Party, reasonably acceptable to both parties, with access to
such laboratory notebooks upon reasonable prior notice and during normal
business hours (but not more than once a year) for the sole purpose of
confirming whether Gene Products have become Genetic Targets. The laboratory
notebooks shall constitute Confidential Information of AgrEvo. The costs
associated with the appointment of an independent Third Party pursuant to this
Section 2.7(b) shall be borne by Gene Logic unless, as a result of such
investigation, AgrEvo is obligated to pay any additional amounts under Section
7, in which case AgrEvo shall reimburse Gene Logic for such costs.
10.
* CONFIDENTIAL TREATMENT REQUESTED
18
2.8 FLOW-THRU CHIP.
(a) Gene Logic shall use commercially reasonable and
diligent efforts (as defined in Section 5.6(a)) to develop the Flow-thru Chip
Technology for application in the Research Program. AgrEvo may request that Gene
Logic develop one or more Gene Logic Assays and run such Gene Logic Assays with
respect to one or more Gene Products within the Research Database for AgrEvo for
the purpose of discovery or discovering the utility of Agricultural Products.
Gene Logic shall advise AgrEvo of the anticipated schedule and budget to develop
such Gene Logic Assay and, following approval of such schedule and budget by
AgrEvo in writing, shall commence the development of such Gene Logic Assay;
provided, however, that it is understood that Gene Logic shall use commercially
reasonable and diligent efforts to comply with any such request consistent with
Gene Logic's internal development of the technology necessary to implement such
requests. In the event that AgrEvo makes a request pursuant to this Section
2.8(a) and subject to the other conditions set forth herein, the RMC shall
review the Research Plan to determine the resources to be allocated to develop
such Gene Logic Assay, including the number of Scientific FTEs to be dedicated
to such task, and shall make such modifications to the Research Plan as are
necessary and appropriate to implement such request.
(b) In the event that Gene Logic develops a Gene Logic
Assay pursuant to AgrEvo's request pursuant to Section 2.8(a) and the technology
necessary to enable Gene Logic to capture the data generated by Gene Logic
Assays in the Research Database becomes available, either internally or from a
Third Party on commercially reasonable terms and conditions, the RMC shall
review the Research Plan to determine the resources to be allocated to
implement, develop or otherwise acquire such technology, which shall become Gene
Logic Background Technology for purposes of this Agreement, and shall make such
modifications to the Research Plan as are necessary and appropriate to
accomplish such task.
2.9 AGREVO RIGHT OF FIRST NEGOTIATION ON ACQUIRED TECHNOLOGY DURING
EXCLUSIVITY PERIOD.
(a) For the duration of the period that the Alliance is
exclusive as determined in accordance with Section 2.2 and subject to the terms
and conditions set forth in this Section 2.9, Gene Logic hereby grants to AgrEvo
a right of first negotiation to expand the Research Program to include any
Acquired Technology with application within the Commercial Field.
(b) Within 30 days of Acquired Technology becoming
Controlled by Gene Logic, Gene Logic shall provide written notice to AgrEvo of
such event. Such notice shall contain a reasonable summary of such Acquired
Technology. AgrEvo shall provide written notice to Gene Logic as soon as
practicable as to whether AgrEvo wishes to exercise this right of first
negotiation with respect to such Acquired Technology; provided, that if AgrEvo
does not provide such notice by the date that is 30 days after Gene Logic's
notice, AgrEvo shall be deemed to have elected not to exercise this right.
(c) If AgrEvo elects not to exercise this right of first
negotiation with respect to such Acquired Technology, Gene Logic shall be free
to utilize the Acquired Technology, with or without one or more Third Parties,
without further obligation to AgrEvo with respect thereto.
11.
19
(d) If AgrEvo timely elects to exercise this right of
first negotiation with respect to such Acquired Technology, then for a period of
up to 90 days after Gene Logic's notice as provided in Section 2.9(b), Gene
Logic and AgrEvo shall negotiate in good faith commercially reasonable terms for
such expansion of the Research Program to include such Acquired Technology;
provided, however, that if at the end of such 90-day period, the parties have
not reached a mutually acceptable agreement with respect to such terms as
evidenced by a written instrument signed by both parties, then AgrEvo shall have
no further rights with respect to such Acquired Technology under this Section
2.9, and Gene Logic shall be free to utilize the Acquired Technology, with or
without one or more Third Parties, without further obligation to AgrEvo with
respect thereto; provided further, that if Gene Logic enters into an agreement
with one or more Third Parties with respect to such Acquired Technology within
one year after the end of such 90-day period, the terms of such agreement, taken
as a whole, shall be no more favorable to such Third Parties than those proposed
by Gene Logic to AgrEvo during such 90-day period.
(e) Nothing in this Section 2.9 shall affect the
exclusivity obligations set forth in Section 2.2.
2.10 NOTICE OF ACQUIRED TECHNOLOGY DURING OTHER PERIODS. During any
period that the Alliance is not exclusive under Section 2.2, within 30 days of
Acquired Technology becoming Controlled by Gene Logic, Gene Logic shall provide
written notice to AgrEvo of such event. Such notice shall contain a reasonable
summary of such Acquired Technology. AgrEvo shall not have a right of first
negotiation with respect to such Acquired Technology.
2.11 VISITING AGREVO EMPLOYEES. Pursuant to the Research Plan,
AgrEvo may request that up to [ * * * ] scientific employees of AgrEvo or its
Affiliates work at Gene Logic during the Research Term. The nature and scope of
the work to be accomplished by such employees at Gene Logic shall be determined
by the RMC, and such employees shall be subject to periodic performance
evaluations by the RMC. All costs incurred by Gene Logic in connection with the
work of such employees shall be reimbursed by AgrEvo semi-annually within 30
days following receipt by AgrEvo of the documentation of such costs reasonably
satisfactory to AgrEvo, which reimbursement shall be in addition to any payments
to Gene Logic under Section 7. Such employees will enter into such agreements
regarding proprietary information and inventions as Gene Logic may reasonably
request.
2.12 NOTICE OF GENE LOGIC FUTURE TECHNOLOGY. Gene Logic shall
provide notice to the RMC of the availability of new Gene Logic Future
Technology. Such notice shall contain a reasonable summary of such Gene Logic
Future Technology.
3. RESEARCH MANAGEMENT COMMITTEE; ALLIANCE DIRECTORS; DISPUTE RESOLUTION.
3.1 RESEARCH MANAGEMENT COMMITTEE. Promptly after the Agreement
Date, AgrEvo and Gene Logic will each appoint three representatives to a
research management committee (the "RMC"). Attached as Schedule 3.1 is a list of
representatives the parties intend to appoint to the RMC. One of the AgrEvo
representatives shall be identified as chairman of the RMC (the "Chairman"). The
RMC will review, direct and supervise all operational and
12.
* CONFIDENTIAL TREATMENT REQUESTED
20
scientific aspects related to the creation of the Research Database, including
whether any new Gene Logic Future Technology should be incorporated into the
Research Program. The duties of the RMC shall include approving the Research
Plan, agreeing to resource allocations at Gene Logic necessary to conduct the
Research Program and monitoring the parties' progress under the Research Plan.
The RMC will meet quarterly, or more frequently if mutually agreed, and will
alternate sites of meetings between Gene Logic's offices and AgrEvo's offices.
Each party recognizes the importance of the RMC in the success of the Research
Program and will use diligent efforts to cause all of its representatives to
such committee to attend all meetings of such committee. A party may change any
of its appointments to the RMC at any time upon giving written notice to the
other party.
3.2 RMC MEETINGS. The RMC may meet by telephone or video conference
or in person at such times as are agreeable to the members of such committee.
Attendance at meetings shall be at the respective expense of the participating
parties. The chairman of the RMC shall assure that agendas and minutes are
prepared for each of its meetings. All actions taken and decisions made by the
RMC shall be by unanimous agreement; provided, however, that in the event that
the RMC cannot reach a unanimous agreement on an action or decision regarding
the Research Plan, the Chairman may cast the deciding vote with respect to such
action or decision. If personal attendance is not possible for valid reasons,
voting by proxy is permissible.
3.3 ALLIANCE DIRECTORS. Each party shall designate at least one of
its employees as an alliance director (each an "Alliance Director") for all of
the activities contemplated under this Agreement. Such Alliance Directors will
be responsible for the day-to-day coordination of the performance of the
Research Program and will serve to facilitate communication between the parties
with respect thereto.
3.4 DISPUTE RESOLUTION. During the Research Term, disputes or
disagreements between the parties arising hereunder will be referred to the RMC.
If the RMC is unable to resolve a dispute or disagreement after 30 days or if a
dispute or disagreement arises after the Research Term, such dispute or
disagreement will be referred to the Chief Executive Officer of Gene Logic on
the one hand and the Head of Research, Agrochemicals and the Head of Research
and Development, Biotechnology/Seeds of AgrEvo on the other hand for good faith
resolution, for a period of 90 days. If such dispute is not resolved by the end
of such 90-day period, then such issue shall be submitted for arbitration within
30 days after either party requests arbitration, according to the terms set
forth in Section 11.
4. PATENTS, KNOW-HOW RIGHTS AND INVENTIONS.
4.1 INVENTORSHIP. Inventorship or authorship or any similar
intellectual property right with respect to any Invention shall be determined in
accordance with the applicable laws.
4.2 OWNERSHIP OF GENE LOGIC BACKGROUND TECHNOLOGY, GENE LOGIC
FUTURE TECHNOLOGY, FLOW-THRU CHIP TECHNOLOGY, GENE LOGIC ASSAYS AND ACQUIRED
TECHNOLOGY. Gene Logic shall own all rights to the Gene Logic Background
Technology, Gene Logic Future Technology and Gene Logic Assays (subject to the
grant of intellectual property rights to AgrEvo under the licenses granted under
Section 5) and the Flow-thru Chip Technology and Acquired Technology. The
filing, prosecution and maintenance of Patent Rights, copyrights and
13.
21
other proprietary rights directed at the protection of all rights to the Gene
Logic Background Technology, Gene Logic Future Technology, Flow-thru Chip
Technology, Gene Logic Assays and the Acquired Technology shall be the
responsibility of, and at the discretion of, Gene Logic.
4.3 OWNERSHIP OF IMPROVEMENTS TO GENE LOGIC BACKGROUND TECHNOLOGY,
GENE LOGIC FUTURE TECHNOLOGY, FLOW-THRU CHIP TECHNOLOGY, GENE LOGIC ASSAYS AND
ACQUIRED TECHNOLOGY. Gene Logic Background Technology, Gene Logic Future
Technology, Flow-thru Chip Technology, Gene Logic Assays and Acquired Technology
shall also include any enhancements or improvements thereto discovered by either
party during the course of the Research Program. AgrEvo hereby irrevocably
assigns to Gene Logic all right, title and interest in and to enhancements or
improvements to such Gene Logic Background Technology, Gene Logic Future
Technology, Flow-thru Chip Technology, Gene Logic Assays and Acquired Technology
discovered by AgrEvo. If AgrEvo has any rights that cannot be assigned to Gene
Logic, AgrEvo waives the enforcement of such rights, and if AgrEvo has any
rights that cannot be assigned or waived, AgrEvo hereby grants to Gene Logic an
exclusive, irrevocable, perpetual, worldwide, fully-paid license, with right to
sublicense through multiple tiers of sublicense, to such rights. The filing,
prosecution and maintenance of such assigned or licensed Patent Rights,
copyrights and other proprietary rights directed at the protection of all rights
to the enhancements or improvements to the Gene Logic Background Technology,
Gene Logic Future Technology, Flow-thru Chip Technology, Gene Logic Assays and
Acquired Technology shall be the responsibility of, and at the discretion of,
Gene Logic.
14.
22
4.4 OWNERSHIP OF AGREVO BACKGROUND TECHNOLOGY. AgrEvo shall own all
rights to the AgrEvo Background Technology (subject to the grant of intellectual
property rights to Gene Logic under the license granted under Section 5). The
filing, prosecution and maintenance of Patent Rights, copyrights and other
proprietary rights directed at the protection of all rights to the AgrEvo
Background Technology shall be the responsibility of, and at the discretion of,
AgrEvo.
4.5 OWNERSHIP OF IMPROVEMENTS TO AGREVO BACKGROUND TECHNOLOGY.
AgrEvo Background Technology shall also include any enhancements or improvements
to the AgrEvo Background Technology discovered by either party during the course
of the Research Program. Gene Logic hereby irrevocably assigns to AgrEvo all
right, title and interest in and to enhancements or improvements to such AgrEvo
Background Technology discovered by Gene Logic. If Gene Logic has any rights
that cannot be assigned to AgrEvo, Gene Logic waives the enforcement of such
rights, and if Gene Logic has any rights that cannot be assigned or waived, Gene
Logic hereby grants to AgrEvo an exclusive, irrevocable, perpetual, worldwide,
fully-paid license, with right to sublicense through multiple tiers of
sublicense, to such rights. The filing, prosecution and maintenance of such
assigned or licensed Patent Rights, copyrights and other proprietary rights
directed at the protection of all rights to the enhancements or improvements to
the AgrEvo Background Technology shall be the responsibility of, and at the
discretion of, AgrEvo.
4.6 OWNERSHIP OF FOREGROUND TECHNOLOGY.
(a) Subject to the grant of intellectual property rights
to [ * * * ] under the licenses granted under Section 6 or except as otherwise
provided in Sections 4.2 and 4.3, [ * * * ] shall own all rights to any and all
Foreground Technology. [ * * * ] hereby irrevocably assigns to [ * * * ]all
right, title and interest of [ * * * ] in and to the Foreground Technology. If [
* * * ]has any rights that cannot be assigned to [ * * * ], waives the
enforcement of such rights, and if [ * * * ] has any rights that cannot be
assigned or waived, [ * * * ] hereby grants to [ * * * ] an exclusive,
irrevocable, perpetual, worldwide, fully-paid license, with right to sublicense
through multiple tiers of sublicense, to such rights. The filing, prosecution
and maintenance of Patent Rights, copyrights and other proprietary rights
directed at the protection of all rights to such Foreground Technology shall be
the responsibility of, and at the discretion of, [ * * * ] may notify
[ * * * ]of the subject matter of any patent application it proposes to file or
has filed with respect to a Foreground Technology, and [ * * * ] agrees to
inform [ * * * ]of whether [ * * * ]has previously filed a patent application
covering such subject matter or, subject to any obligation of confidentiality,
has been granted rights by a Third Party under a published patent application or
issued patent covering such subject matter.
(b) With respect to Patent Rights, copyrights or other
proprietary rights directed at the protection of the Foreground Technology,
[ * * * ] may, at its option, provide drafts of documents to be submitted to any
governmental patent agency or other authority with respect to initial filings
and other filings in the United States and Europe to [ * * * ] for review and
comment prior to submission.
(c) That part of the Research Database that consists of
[ * * * ] Background Technology shall be owned by [ * * * ], and that part of
the Research Database that consists of [ * * * ] Background Technology or
Foreground Technology shall be owned by [ * * * ].
15.
* CONFIDENTIAL TREATMENT REQUESTED
23
4.7 PATENT PROTECTION.
(a) RIGHTS TO FILE, PROSECUTE AND MAINTAIN PATENT RIGHTS.
The party designated as responsible for the filing, prosecution and maintenance
of Patent Rights and other proprietary rights pursuant to Section 4.2, 4.3, 4.4,
4.5 or 4.6, as applicable, or AgrEvo if not otherwise indicated (the
"Responsible Party") shall have the right, at its option and expense, to
prepare, file and prosecute any patent applications or other appropriate filings
with respect to the matters described in the respective sections and to maintain
any patents issued thereon, copyrights or other similar rights.
(b) COOPERATION AND COMMUNICATION. Each party agrees to
reasonably assist the Responsible Party, both during and after the Agreement
Term, in the preparation, prosecution and defense of all patent applications or
other appropriate filings contemplated by this Agreement and in the maintenance
of and litigation involving any patents, copyrights or other similar rights
issued thereon; provided, however, that, following the Research Term, the
Responsible Party shall reimburse the other party for its out-of-pocket expenses
incurred in connection with such assistance. Such assistance will include the
execution of all documents necessary or desirable for the Responsible Party to
fulfill its obligations hereunder (including without limitation assignment
documents), giving depositions and testifying, in any country of the world. Each
party will cause its employees and consultants who are inventors on an Invention
for which the other party is the Responsible Party to comply with this Section
4.7(b) during the term of their employment or consultancy and will use all
reasonable efforts to ensure such compliance after termination of their
employment or consultancy (including without limitation by having the inventors
sign appropriate contractual obligations and by taking reasonable steps to
enforce such contractual obligations, if necessary). Gene Logic will use
non-publicly available AgrEvo Background Technology or Foreground Technology in
support of the preparation and prosecution of a patent application or other
filing only after prior written approval of AgrEvo, which approval will not be
unreasonably withheld. AgrEvo will use non-publicly available Gene Logic
Background Technology or Flow-thru Chip Technology in support of the preparation
and prosecution of a patent application or other filing only after prior written
approval of Gene Logic, which approval will not be unreasonably withheld.
(c) COMMUNICATION REGARDING PATENT PROTECTION. Gene Logic
will prepare, prosecute and maintain (and shall keep the other party currently
informed of all steps to be taken in such preparation, prosecution and
maintenance of) all Patent Rights, copyrights or other similar rights with
respect to which it is responsible and shall furnish AgrEvo with copies of
documentation of such Patent Rights, copyrights or other similar rights and
other related correspondence relating thereto with respect to which it is
responsible to and from governmental patent agencies or other authorities.
(d) REIMBURSEMENT FOR CERTAIN PATENT EXPENSES. In the
event that AgrEvo receives the grant pursuant to Section 5.2 of an exclusive
license to Patent Rights and other proprietary rights, AgrEvo shall reimburse
Gene Logic for out-of-pocket expenses with respect to such Patent Rights and
other proprietary rights incurred by Gene Logic during the term of such license
within 30 days of receipt of an invoice therefor, provided that such Patent
Rights and other proprietary rights are predominately useful for the Commercial
Field.
16.
24
4.8 INFRINGEMENT BY THIRD PARTIES. In the event Gene Logic or
AgrEvo becomes aware of any actual or threatened infringement of any Patent
Right, copyright, trademark, trade secret or other intellectual property right
of either party which claims an Invention, that party shall promptly notify the
other party, and (i) Gene Logic shall have the right, at its option and expense,
to determine how to proceed in connection with any such actual or threatened
infringement of any Patent Right, copyright, trademark, trade secret or other
intellectual property right with respect to which Gene Logic is the Responsible
Party, and (ii) AgrEvo shall have the right, at its option and expense, to
determine how to proceed in connection with any such actual or threatened
infringement of any Patent Right, copyright, trademark, trade secret or other
intellectual property right with respect to which AgrEvo is the Responsible
Party. Notwithstanding the foregoing, in the event of any actual or threatened
infringement of any Patent Right, copyright, trademark, trade secret or other
intellectual property right which claims Foreground Technology, which
infringement interferes with any of the rights granted to Gene Logic under
Section 6 but does not interfere with AgrEvo's use of such Patent Right,
copyright, trademark, trade secret or other intellectual property right, then
Gene Logic shall have the right, at its option and expense, to determine how to
proceed in connection with any such actual or threatened infringement. Any
recovery realized as a result of any patent infringement action under this
Section 4.8 shall belong to the party who brought the action.
4.9 ALLEGATIONS OF INFRINGEMENT BY THIRD PARTIES.
(a) The parties acknowledge that, in order to exploit the
rights contained herein, AgrEvo may require licenses under Third Party patent
rights that may be infringed by the use by AgrEvo of the rights granted herein
and it is hereby agreed that it shall be AgrEvo's responsibility to satisfy
itself as to the need for such licenses (other than licenses to Third Party
patent rights that are infringed by the Gene Logic Background Technology) and,
if necessary, to obtain such licenses.
(b) AgrEvo shall be solely responsible for any threatened
or actual claims for Third Party patent infringement or other Third Party
intellectual property right arising out of the manufacture, use, sale or
importation of a Agricultural Product sold by AgrEvo, its Affiliates or
sublicensees. Upon receiving notice of such actual or threatened claims, and to
the extent such claims involve any element of Gene Logic Background Technology,
Flow-thru Chip Technology or a Gene Logic Assay, AgrEvo shall promptly meet with
Gene Logic to discuss the course of action to be taken to resolve or defend any
such infringement litigation.
5. LICENSES.
5.1 RESEARCH DATABASE LICENSE TO AGREVO. Subject to the terms and
conditions of this Agreement, including without limitation the timely payment by
AgrEvo to Gene Logic of the Signing Fee set forth in Section 7.1 and all of the
applicable Database Development and Technology Fees set forth in Section 7.2,
Gene Logic hereby grants to AgrEvo and its Affiliates rights to use the Research
Database as follows:
(a) Gene Logic hereby grants to AgrEvo and its Affiliates
an exclusive, worldwide license to use the Research Database solely for their
internal research purposes in the Commercial Field during the Research Term.
17.
25
(b) If AgrEvo elects to terminate the Research Term early
pursuant to Section 2.6(a) effective upon the earliest date that termination may
be effective under such Section, upon the payment of the Database License
Maintenance Fee set forth in Section 7.3(a), Gene Logic hereby grants to AgrEvo
and its Affiliates a perpetual, exclusive, worldwide license to use the Research
Database solely for their internal research purposes in the Commercial Field
following such early termination of the Research Term.
(c) If AgrEvo elects to terminate the Research Term early
pursuant to Section 2.6(a) effective at any time after the earliest date that
termination may be effective under such Section or if any of Alternative A,
Alternative B or Alternative C has been elected under Section 2.6(b)(i), (ii) or
(iii), upon the payment of the Database License Maintenance Fee set forth in
Section 7.3(b) (and, in the case of Alternative C, subject to the timely payment
of the amount set forth in Section 2.6(b)(iii)), Gene Logic hereby grants to
AgrEvo and its Affiliates a perpetual, exclusive, worldwide license to use the
Research Database solely for their internal research purposes in the Commercial
Field following the Research Term.
(d) If Alternative D has been elected under Section
2.6(b)(iv), effective upon the Technology Transfer Date and subject to the
timely payment of the amounts set forth in Section 2.6(b)(iv), Gene Logic hereby
grants to AgrEvo and its Affiliates a perpetual, exclusive, worldwide license to
use the Research Database solely for their internal research purposes in the
Commercial Field following the Research Term.
(e) With respect to each of the licenses set forth in
clauses (a) through (d) of this Section 5.1 and coterminous therewith, Gene
Logic hereby grants to AgrEvo a worldwide, non-exclusive license, with no right
to sublicense, in the Research Field to the Gene Logic Background Technology
solely to the extent necessary to allow AgrEvo and its Affiliates to use the
Research Database as set forth in the applicable license in clauses (a) through
(d).
(f) AgrEvo and its Affiliates will have no right to
sublicense to Third Parties under any rights granted under this Section 5.1 and
shall not provide the Research Database, or any Gene Logic Background Technology
with respect thereto, to any Third Party (other than consultants to whom
disclosure is permitted under Section 8.3) without prior written consent of Gene
Logic.
(g) This Section 5.1 shall not restrict AgrEvo or its
Affiliates from freely using the Foreground Technology.
5.2 EXCLUSIVE LICENSE TO AGREVO IN THE EVENT OF A TECHNOLOGY
TRANSFER. If Alternative D is elected under Section 2.6(b)(iv), effective upon
the Technology Transfer Date and subject to the timely payment of the amounts
set forth in Section 2.6(b)(iv), Gene Logic hereby grants to AgrEvo a perpetual,
worldwide, exclusive license, with right to sublicense, in the Research Field
and the Commercial Field to the Gene Logic Background Technology, including all
improvements to such Gene Logic Background Technology in the Research Field and
the Commercial Field Controlled by Gene Logic through the fifth anniversary of
the Technology Transfer Date.
18.
26
5.3 NON-EXCLUSIVE LICENSE TO AGREVO FOLLOWING A CHANGE OF CONTROL.
If Alternative E is elected under Section 12.2, effective upon the last day of
the Research Term and subject to the timely payment of the amounts set forth in
Section 12.2(a), Gene Logic hereby grants to AgrEvo a perpetual, worldwide,
non-exclusive license, with no right to sublicense, in the Research Field and
the Commercial Field to the Gene Logic Background Technology, including all
improvements to such Gene Logic Background Technology in the Research Field and
the Commercial Field Controlled by Gene Logic through the fifth anniversary of
the last day of the Research Term.
5.4 LICENSE OF AGREVO BACKGROUND TECHNOLOGY. AgrEvo grants to Gene
Logic a non-exclusive, fully-paid, worldwide license under the AgrEvo Background
Technology to use and analyze any Samples provided by AgrEvo and the data and
progeny derived therefrom solely for purposes of the Research Program during the
Research Term.
5.5 GENE LOGIC BACKGROUND TECHNOLOGY PATENT RIGHTS. Gene Logic
agrees not to assert against AgrEvo, its Affiliates or their respective
licensees any Patent Rights or other intellectual property rights Controlled by
Gene Logic and covering Gene Logic Background Technology to preclude the
development, production, use or commercialization of any product in the
Commercial Field utilizing any element of Foreground Technology.
5.6 DILIGENCE.
(a) During the Research Term, Gene Logic shall use
commercially reasonable and diligent efforts, consistent with the Research
Program, to perform analysis of the Samples using the Gene Logic Background
Technology (including, but not limited to, analysis of gene expression,
hybridization array techniques, gene sequencing and generation of expressed
sequence tags) to develop the Research Database. For purposes of this Agreement,
"commercially reasonable and diligent efforts" will mean, unless the parties
agree otherwise, those efforts consistent with the exercise of prudent
scientific and business judgment, as applied to other research efforts and to
products of similar scientific and commercial potential within such party's
relevant research programs and product lines.
(b) During the Research Term, AgrEvo shall use
commercially reasonable and diligent efforts to conduct active, ongoing research
activities utilizing the Research Database.
(c) Without limiting the foregoing, AgrEvo (or its
Affiliates or sublicensees) shall use commercially reasonable and diligent
efforts to develop and commercialize Agricultural Products. Gene Logic may
provide 30 days written notice to AgrEvo if, in Gene Logic's opinion, AgrEvo (or
its Affiliates or sublicensees) is not using commercially reasonable and
diligent efforts with regard to Agricultural Products, whereupon the parties
agree to hold a meeting, attended by individuals with decision-making authority,
to attempt in good faith to negotiate a resolution of the dispute. If, within
120 days after such meeting, the parties have not succeeded in negotiating a
resolution of the dispute, then such dispute shall be submitted for resolution
according to the terms set forth in Section 11.
19.
27
5.7 REPORTS. AgrEvo shall keep Gene Logic informed on a reasonable
basis of its efforts to select Genetic Targets and to develop Agricultural
Products, and to provide written reports to Gene Logic on an annual basis (the
"Reports"). The Reports shall provide, as applicable, the following information:
(i) a listing of the Gene Products which AgrEvo has identified as prospects for
Further Development, (ii) a status update on AgrEvo's progress toward selection
of particular Gene Products as Genetic Targets, (iii) AgrEvo's decisions for
Further Development with regard to selected Genetic Targets, (iv) AgrEvo's
progress in Further Development of Genetic Targets, and (v) a listing of
Agricultural Products then available for sale. The Reports shall constitute
Confidential Information of AgrEvo, and Gene Logic will provide copies of such
Reports only to Gene Logic officers and employees on a need-to-know basis.
6. RIGHTS TO BASE INFORMATION.
6.1 [...***...] RIGHTS.
(a) For the duration of the period that the Alliance is
exclusive as determined in accordance with Section 2.2, [...***...] and its
Affiliates hereby grant to [...***...] and its Affiliates a non-exclusive,
irrevocable, perpetual, worldwide, fully paid license, with right to sublicense
through multiple tiers of sublicense, under any Patent Rights and other
proprietary rights Controlled by [...***...] to all Base Information claimed
therein solely for inclusion of such Base Information in research databases
developed by [...***...] outside of the Research Field and the Commercial Field;
provided that sequence information substantially identical to such Base
Information was identified by [...***...] or any of its Affiliates or any Third
Party engaged in a bona fide research collaboration with [...***...] or any of
its Affiliates independent of the Research Program.
(b) During any period that the Alliance is not exclusive
under Section 2.2, [...***...] and its Affiliates hereby grant to [...***...]
and its Affiliates a non-exclusive, irrevocable, perpetual, worldwide, fully
paid license, with right to sublicense through multiple tiers of sublicense,
under any Patent Rights and other proprietary rights Controlled by [...***...]
to all Base Information claimed therein solely for inclusion of such Base
Information in research databases developed by [...***...] without limitation to
either the Research Field or the Commercial Field; provided that sequence
information substantially identical to such Base Information was identified by
[...***...] or any of its Affiliates or any Third Party engaged in a bona fide
research collaboration with [...***...] or any of its Affiliates independent of
the Research Program.
6.2 [...***...] RIGHTS. [...***...] and its Affiliates
hereby grant to [...***...] and its Affiliates a non-exclusive, irrevocable,
perpetual, worldwide, fully paid license, with right to sublicense through
multiple tiers of sublicense, under any Patent Rights and other proprietary
rights Controlled by [...***...] to sequence information substantially identical
to Base Information solely for inclusion of such sequence information in the
Research Database within the Research Field and the Commercial Field.
20.
* CONFIDENTIAL TREATMENT REQUESTED
28
7. PAYMENTS AND ROYALTIES.
7.1 SIGNING FEE. AgrEvo shall pay Gene Logic [ * * * ] (the
"Signing Fee"), of which [ * * * ] will be paid upon the Agreement Date and
[ * * * ] will be paid by the execution and delivery by AgrEvo to Gene Logic of
a promissory note substantially in the form attached hereto as Exhibit 7.1.
7.2 DATABASE DEVELOPMENT AND TECHNOLOGY FEES. The following
payments ("Database Development and Technology Fees") will be made to Gene
Logic:
(a) AgrEvo shall pay Gene Logic [ * * * ] upon the first
anniversary of the Effective Date during the Initial Term to defray research
costs associated with creating the Research Database and analyzing Samples
pursuant to the Research Plan during the initial 24 months of the Initial Term.
(b) AgrEvo shall pay Gene Logic [ * * * ] upon the second
anniversary of the Effective Date during the Initial Term to defray research
costs associated with creating the Research Database and analyzing Samples
pursuant to the Research Plan during the last 12 months of the Initial Term.
(c) If Alternative B is elected under Section 2.6(b)(ii),
AgrEvo shall pay Gene Logic [ * * * ] upon the last day of the Initial Term and
thereafter upon each anniversary of the Effective Date during the Research Term,
as extended (other than with respect to such anniversary when it falls on the
last day of the Research Term), to defray research costs associated with
creating the Research Database and analyzing Samples pursuant to the Research
Plan during the extended Research Term.
(d) If Alternative C is elected under Section 2.6(b)(iii),
AgrEvo shall pay Gene Logic [ * * * ] upon the last day of the Initial Term and
thereafter upon each anniversary of the Effective Date during the Research Term,
as extended (other than with respect to such anniversary when it falls on the
last day of the Research Term), to defray research costs associated with
creating the Research Database and analyzing Samples pursuant to the Research
Plan during the extended Research Term.
7.3 DATABASE LICENSE MAINTENANCE FEES. If AgrEvo elects to maintain
its exclusive license to the Research Database following the Research Term under
Section 5.1, the following payments ("Database Maintenance Fees") will be made
to Gene Logic:
(a) If early termination of the Research Term has been
elected by AgrEvo pursuant to Section 2.6(a) effective upon the earliest date
that termination may be effective under such Section, AgrEvo shall pay Gene
Logic [ * * * ] upon the date the Research Term terminates in order to maintain
the license under Section 5.1(b).
(b) If early termination of the Research Term has been
elected by AgrEvo pursuant to Section 2.6(a) effective at any time after the
earliest date that termination may be effective under such Section or if any of
Alternative A, Alternative B or Alternative C has been elected under Section
2.6(b)(i), (ii) or (iii), AgrEvo shall pay Gene Logic [ * * * ] upon the
21.
* CONFIDENTIAL TREATMENT REQUESTED
29
date the Research Term terminates or expires, as applicable, in order to
maintain the license under Section 5.1(c).
7.4 RESEARCH SUPPORT.
(a) During the Research Term, AgrEvo shall provide Gene
Logic with financial support for the Research Program for Gene Logic's
Scientific FTEs at a rate of [ * * * ] per Scientific FTE. The FTE payment rate
payable pursuant to this Section 7.4(a) shall be reevaluated annually on each
anniversary of the Effective Date and adjusted to reflect cost-of-living
increases based upon a mutually acceptable indicator. The number of Scientific
FTEs for each year of the Research Term will be set forth in the applicable
Research Plan; provided that such number shall not be less than [ * * * ]
Scientific FTEs in any one-year period; provided further that, if Alternative C
is elected under Section 2.6(b)(iii), such number shall not be less than
[ * * * ] Scientific FTEs in any one-year period during the term of the
Exclusive Extension.
(b) Research funding payments shall be made in advance in
four quarterly installments during each year of the Research Term (i.e., on or
before April 1, July 1, October 1 and January 1 of each year for use in the next
quarter). An initial installment will be made within 15 days of the Effective
Date, pro-rated to cover the remainder of such calendar quarter. The last such
installment for the Research Program shall be pro-rated to the end of the
Research Term.
(c) If the Research Program is terminated by AgrEvo
pursuant to Section 2.6(a), AgrEvo shall continue to pay Gene Logic the
applicable research funding installment payments provided in the then applicable
Research Plan as otherwise provided in this Section 7.4 until the effective date
of the termination.
7.5 GENETIC TARGET FEES. AgrEvo shall pay [ * * * ] to GeneLogic
for each Genetic Target which AgrEvo selects for Further Development pursuant to
Section 2.7; provided, however, that in any calendar year, if AgrEvo has paid
such fee with respect to at least [ * * * ] Genetic Targets selected for Further
Development in such year, such fee shall be due and payable only with respect to
the first [ * * * ] Genetic Targets selected in such year; provided further,
that in the event that AgrEvo fails to use commercially reasonable and diligent
efforts (as such term is defined in Section 5.6(a)) with respect to the
development of any Genetic Target for which the fee has been waived pursuant to
the preceding proviso, Gene Logic shall be entitled to receive such fee with
respect to such Genetic Target. The [ * * * ] payment shall be made to Gene
Logic prior to commencement of Further Development using such Genetic Target.
7.6 ROYALTIES PAYABLE BY AGREVO.
(a) AgrEvo will pay Gene Logic a royalty of [ * * * ] on
Net Sales of each Agricultural Product by AgrEvo or its Affiliates; provided,
however, that with respect to each Agricultural Product that is a seed product,
such royalty shall be [ * * * ] on Net Sales in the event that AgrEvo and/or its
Affiliates pay additional royalties to Third Parties for such Agricultural
Product in the aggregate of at least [ * * * ]; provided further, that the
[ * * * ] royalty set forth in the preceding proviso shall not apply to the
amount by which Net Sales of
22.
* CONFIDENTIAL TREATMENT REQUESTED
30
such Agricultural Product exceed [ * * * ] in any calendar year in which the
aggregate Net Sales for such Agricultural Product exceeds [ * * * ].
(b) On a country-by-country basis, royalties payable on
Net Sales of any Agricultural Product in a country for which AgrEvo or its
Affiliates have no Patent Rights with respect to such Agricultural Product or
any of the Genetic Targets embodied in such Agricultural Product shall be
[ * * * ].
(c) In the event that AgrEvo licenses an Agricultural
Product, or any Genetic Target, to a Third Party, AgrEvo will pay Gene Logic a
royalty of [ * * * ] on Licensee Revenues with respect to such Agricultural
Product or Genetic Target; provided, however, that with respect to each
Agricultural Product that is a seed product (or Genetic Target embodied
therein), such royalty shall be [ * * * ] on Licensee Revenues in the event that
AgrEvo and/or its Affiliates pay additional royalties to Third Parties for such
Agricultural Product (or Genetic Target) in the aggregate of at least [ * * * ];
provided further, that the [ * * * ] royalty set forth in the preceding proviso
shall not apply to the amount by which net sales of the Agricultural Product
exceed [ * * * ] in any calendar year in which the aggregate net sales for such
Agricultural Product exceeds [ * * * ].
(d) Royalties shall be payable on Net Sales and Licensee
Revenues with respect to any Agricultural Product (or license of a Genetic
Target) for the period of time commencing on the date such Agricultural Product
is first sold commercially (or such Genetic Target is licensed) in any country
and ending on the earlier of (i) on a country-by-country basis, 10 years from
the date of such first commercial sale of such Agricultural Product (or license
of such Genetic Target) in such country or (ii) 15 years from the date of first
commercial sale of any Agricultural Product based on a Genetic Target on which
such Agricultural Product is based (or first license of such Genetic Target).
AgrEvo shall remain responsible for all royalty payments payable to Gene Logic
pursuant to this Section 7.6 whether AgrEvo or its Affiliates or sublicensees
sells such Agricultural Product (or licenses such Genetic Target).
7.7 MILESTONE PAYMENTS.
(a) AgrEvo shall pay Gene Logic [ * * * ] (the "Milestone
Fee"):
(i) for each Agricultural Product that is a seed
product, upon the submission by AgrEvo, its Affiliates or their respective
licensees of an application for deregulated status or consent to market or the
equivalent approval procedure for such Agricultural Product; provided that each
of the following criteria are met:
(1) such Agricultural Product has at
least one trait that results from the modification of the structure, function or
expression of at least one Genetic Target; and
(2) such submission is the first such
submission relating to at least one of such traits for the applicable Crop (as
defined herein);
provided, however, that in the event that AgrEvo has previously made at least [
* * * ] Milestone Fee payments to Gene Logic with respect to the same Genetic
Target, the structure,
23.
* CONFIDENTIAL TREATMENT REQUESTED
31
function or expression of which has been modified in one or more Agricultural
Products (for one or more Crops), the Milestone Fee shall be [ * * * ] for each
additional Agricultural Product that has at least one trait that results from
the modification of the structure, function or expression of such Genetic
Target.
(ii) for each Agricultural Product that is not a
seed product, upon the designation for development through the standard AgrEvo
development decision approval process (or, if not subject to the standard AgrEvo
development decision approval process, the substantially equivalent process for
an Affiliate of AgrEvo or a licensee of AgrEvo or an Affiliate, as the case may
be); provided, however, that AgrEvo shall not be required to pay a Milestone Fee
with respect to such Agricultural Product if such designation for development
relates to an improved compound that has the same use and is based on the same
Genetic Target as a compound for which a Milestone Fee has been paid previously
pursuant to this Section 7.7(a)(ii); provided further, that in the event that
AgrEvo has previously made at least [ * * * ] Milestone Fee payments to Gene
Logic with respect to Agricultural Products identified through their effect on
the same Genetic Target, the Milestone Fee shall be [ * * * ] for each
additional Agricultural Product that is identified through its effect on such
Genetic Target.
(b) Notwithstanding the provisions of Section 7.7(a), in
the event that AgrEvo is obligated to make milestone payments to Third Parties
upon the designation for development with respect to an Agricultural Product in
an aggregate amount of at least [ * * * ], the Milestone Fee shall be [ * * * ].
(c) Notwithstanding the other provisions of this Section
7.7, AgrEvo shall not be required to pay Milestone Fees with respect to any
additional Agricultural Product based on a specific Genetic Target after 15
years from the date the first Milestone Fee was paid by AgrEvo with respect to
an Agricultural Product based on such Genetic Target.
(d) Milestone payments made under this Section 7.7 shall
be non-refundable and non-creditable against any other payments due under this
Agreement.
(e) For purposes of this Section 7.7, "Crop" shall mean a
collection of germplasm between which conventional breeding is possible.
24.
* CONFIDENTIAL TREATMENT REQUESTED
32
7.8 CURRENCY OF PAYMENT. All payments to be made under this
Agreement shall be made in United States dollars in the United States to a bank
account designated by Gene Logic; the bank account initially designated by Gene
Logic is set forth in Schedule 7.9. All amounts payable by AgrEvo to Gene Logic
pursuant to this Section 7 shall be non-refundable and non-creditable against
any other payments due under this Agreement. Royalties shall be determined in
the currency of the country in which they are earned and then converted to its
equivalent in United States currency. The buying rates involved for the currency
of the United States into which the currencies involved are being exchanged
shall be the one quoted by The Wall Street Journal (or, if not available, by
Citibank (or its successor) in New York, New York) at the close of business on
the last business day of the calendar year in which the royalties were earned to
determine any such conversion.
7.9 PAYMENT AND REPORTING. Royalties due to Gene Logic pursuant to
Section 7.6 will be paid by AgrEvo to Gene Logic on or before March 31 of the
calendar year immediately following the year in which such royalties were
earned. AgrEvo will provide to Gene Logic with each annual royalty payment a
statement of Net Sales and/or Licensee Revenues for each Agricultural Product
sold during the applicable calendar year on a country-by-country basis,
including a calculation of the royalty amount payable for each Agricultural
Product and supporting data sufficient for Gene Logic to confirm the accuracy of
such calculations. Such reports shall constitute Confidential Information under
this Agreement. If provision is made in law or regulation for withholding, such
tax shall be deducted from the payments to be made by AgrEvo and shall be paid
by AgrEvo to the proper taxing authority and a receipt of payment of the tax
secured and promptly delivered to Gene Logic. Each party agrees to assist the
other party in claiming exemption from or credit for such deductions or
withholdings under any double taxation or similar agreement or treaty from time
to time in force. All amounts payable to Gene Logic pursuant to this Agreement
shall be made by wire transfer pursuant to the instructions set forth on
Schedule 7.9.
7.10 RECORDS AND AUDITS. During the Agreement Term and for a period
of five years thereafter, AgrEvo shall keep complete and accurate records
pertaining to the development and sale or other disposition of Agricultural
Products in sufficient detail to permit Gene Logic to confirm the accuracy of
all payments due hereunder. Gene Logic shall have the right to cause an
independent, certified public accountant reasonably acceptable to AgrEvo to
audit such records to confirm Net Sales and Licensee Revenues and royalty and
other payments for the preceding year. Such audits may be exercised during
normal business hours once a year upon at least 30 working days' prior written
notice to AgrEvo. Gene Logic shall bear the full cost of such audit unless such
audit discloses a variance of more than 10% from the amount of the Net Sales or
royalties or other payments due under this Agreement. In such case, AgrEvo shall
bear the full cost of such audit and Gene Logic shall have the right to audit
all prior years not previously audited.
8. SECURITY AND CONFIDENTIALITY.
8.1 SECURITY OF RESEARCH DATABASE AND GENE LOGIC SOFTWARE. The
parties agree that the following additional terms and conditions apply to the
information and data contained in or derived from the Research Database that are
disclosed and Gene Logic Software that is provided under the provisions of this
Agreement:
25.
33
(a) AgrEvo and its Affiliates may use the Research
Database and the Gene Logic Software only for their own internal use in secure
work facilities by authorized personnel and shall not make any copies of the
Research Database as an entirety (or a substantial portion thereof) or the Gene
Logic Software.
(b) AgrEvo and its Affiliates will be provided with access
to the Research Database and the Gene Logic Software only through a secure,
encrypted link to Gene Logic's computer system.
(c) Gene Logic will use commercially reasonable efforts to
maintain the security of the Research Database and to hold the Samples in
safekeeping.
(d) Each party will promptly notify the other party of any
(i) loss, theft or unauthorized disclosure of information or data derived from
the Research Database or the Gene Logic Software and (ii) unauthorized access to
the Research Database or the Gene Logic Software.
(e) Upon termination of the Research Program as provided
in Section 2.6, AgrEvo shall immediately discontinue use of the Gene Logic
Software, and AgrEvo shall (i) cooperate with Gene Logic to terminate the
encrypted link to Gene Logic's computer system and (ii) promptly deliver to Gene
Logic copies of the Gene Logic Software.
(f) Upon termination, if any, of the applicable license as
provided in Section 5.1, AgrEvo shall immediately discontinue use of the
Research Database, and AgrEvo shall cooperate with Gene Logic to terminate the
encrypted link to Gene Logic's computer system, if not already terminated.
8.2 CONFIDENTIALITY.
(a) Except as specifically permitted hereunder, each party
hereby agrees to hold in confidence and not use on behalf of itself or others
all technology, data, samples, technical information, commercialization,
research strategies, know-how and trade secrets provided by the other party (the
"Disclosing Party") during the Agreement Term and all data, results and
information developed pursuant to the Research Program and solely owned by the
Disclosing Party (collectively the "Confidential Information"), except that the
term "Confidential Information" shall not include:
(i) information that is or becomes part of the
public domain through no fault of the party that receives such Confidential
Information (the "Receiving Party") or its Affiliates;
(ii) information that is obtained after the date
hereof by the Receiving Party or one of its Affiliates from any Third Party
which is lawfully in possession of such Confidential Information and not in
violation of any contractual or legal obligation to the Disclosing Party with
respect to such Confidential Information;
26.
34
(iii) information that is known to the Receiving
Party or one or more of its Affiliates prior to disclosure by the Disclosing
Party, as evidenced by the Receiving Party's written records;
(iv) information which has been independently
developed by the Receiving Party or one of its Affiliates without the use of
such Confidential Information, as evidenced by the Receiving Party's written
records; and
(v) information that is required to be disclosed
to any governmental authorities or pursuant to any regulatory filings, but only
to the limited extent of such legally required disclosure.
(b) The obligations of this Section 8.2 shall survive for
a period of 10 years from the completion or termination of the Research Program
with respect to Confidential Information resulting from the Research Program and
for a period of five years following the date of disclosure with respect to any
other Confidential Information.
8.3 PERMITTED DISCLOSURES. Confidential Information may be
disclosed to employees, agents, consultants or sublicensees of the Receiving
Party or its Affiliates but only to the extent required to accomplish the
purposes of this Agreement and only if the Receiving Party obtains prior
agreement from its employees, agents, consultants and sublicensees to whom
disclosure is to be made to hold in confidence and not make use of such
information for any purpose other than those permitted by this Agreement. Each
party will use at least the same standard of care as it uses to protect
proprietary or confidential information of its own to ensure that such
employees, agents, consultants and sublicensees do not disclose or make any
unauthorized use of the Confidential Information. Notwithstanding any other
provision of this Agreement, each party may disclose the terms of this Agreement
to lenders, investment bankers and other financial institutions of its choice
solely for purposes of financing the business operations of such party either
(i) upon the written consent of the other party or (ii) if the disclosing party
obtains a signed confidentiality agreement with such financial institution with
respect to such information, upon terms substantially similar to those contained
in this Section 8.
8.4 PUBLICATION. The parties shall cooperate in appropriate
publication of the results of research and development work performed pursuant
to this Agreement, but subject to the predominating interest to obtain patent
protection for any patentable subject matter. To this end, prior to any public
disclosure of such results, the party proposing disclosure (the "Publishing
Party") shall send the other party (the "Reviewing Party") a copy of the
information to be disclosed, and shall allow the Reviewing Party 30 days from
the date of receipt in which to determine whether the information to be
disclosed contains subject matter for which patent protection should be sought
prior to disclosure, or otherwise contains Confidential Information of the
Reviewing Party. The Publishing Party shall be free to proceed with the
disclosure unless prior to the expiration of such 30-day period the Reviewing
Party notifies the Publishing Party that the disclosure contains subject matter
for which patent protection should be sought or Confidential Information of the
Reviewing Party, and the Publishing Party shall then delay public disclosure of
the information for an additional period of up to six months to permit the
preparation and filing of a patent application on the subject matter to be
disclosed or for the parties to determine a mutually acceptable modification to
such publication to protect the
27.
35
Confidential Information of the Reviewing Party adequately. The Publishing Party
shall thereafter be free to publish or disclose the information. The
determination of authorship for any paper shall be in accordance with accepted
scientific practice.
8.5 PRESS RELEASE. The parties agree that a press release
announcing the matters covered by this Agreement will be prepared in advance and
will be subject to the mutual approval of the parties, which approval will not
unreasonably be withheld; provided, however, that nothing herein shall prohibit
a party from disclosing the terms of this Agreement to the extent required to
comply with applicable securities laws.
9. REPRESENTATIONS AND WARRANTIES.
9.1 LEGAL AUTHORITY. Each party represents and warrants to the
other that it has the legal power, authority and right to enter into this
Agreement and to perform its respective obligations set forth herein.
9.2 VALID LICENSES. Each party represents and warrants that it has
authority to grant the rights and licenses set forth in this Agreement.
9.3 NO CONFLICTS. Each party represents and warrants that as of the
Agreement Date it is not a party to any agreement or arrangement with any Third
Party or under any obligation or restriction, including pursuant to its
Certificate of Incorporation or By-Laws or other charter documents, which in any
way limits or conflicts with its ability to fulfill any of its obligations under
this Agreement. Each party further represents and warrants to the other party
that it has not entered and will not enter into any agreement, arrangement or
understanding with any Third party which in any way limits or conflicts with its
ability to fulfill any of its obligations under this Agreement.
9.4 DISCLAIMER. Except as expressly set forth in this Agreement,
EACH PARTY MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF THE
INFORMATION, MATERIALS, SOFTWARE AND OTHER TECHNOLOGY PROVIDED HEREUNDER WILL
NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER RIGHTS OF ANY THIRD
PARTY. NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND AS TO THE PATENTABILITY OF
ANY DISCOVERY MADE OR TECHNOLOGY DEVELOPED UNDER THIS AGREEMENT. EACH PARTY
ACKNOWLEDGES THAT THIS AGREEMENT PROVIDES FOR AN INNOVATIVE PROGRAM UTILIZING
NEW TECHNOLOGIES AND THAT NO WARRANTY IS MADE AS TO THE UTILITY OF ANY
INFORMATION, MATERIALS, SOFTWARE OR OTHER TECHNOLOGY PROVIDED HEREUNDER.
9.5 LIMITATION ON LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY
INDIRECT, SPECIAL, REMOTE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFIT
IN CONNECTION WITH THIS AGREEMENT AND ITS IMPLEMENTATION.
28.
36
10. TERM; TERMINATION.
10.1 TERM. The term of this Agreement shall commence upon the
Agreement Date and shall expire upon the expiration of the Agreement Term.
10.2 TERMINATION FOR BREACH.
(a) BREACH BY GENE LOGIC. If Gene Logic breaches a
material term of this Agreement at any time, and has not cured such breach
within 60 days after written notice thereof from AgrEvo, then AgrEvo shall have
the right to terminate this Agreement effective upon written notice thereof,
whereupon all rights and obligations of the parties under this Agreement shall
terminate except as set forth in Section 10.5 and subject to the following: (i)
the licenses granted to AgrEvo under Section 5 shall remain in full force and
effect for so long as AgrEvo is not in breach of its obligations to Gene Logic
under this Agreement and (ii) Gene Logic shall return to AgrEvo all Confidential
Information of AgrEvo.
(b) BREACH BY AGREVO. If AgrEvo breaches a material term
of this Agreement at any time, and has not cured such breach within 60 days (or
within 30 days in the event of a material breach by AgrEvo of its obligations to
make any payments due) after written notice thereof from Gene Logic, then Gene
Logic shall have the right to terminate this Agreement effective upon written
notice thereof, whereupon all rights and obligations of the parties under this
Agreement shall terminate except as set forth in Section 10.5 and subject to the
following: (i) the licenses granted to AgrEvo pursuant to Section 5 shall
terminate, and (ii) AgrEvo shall return to Gene Logic all Confidential
Information of Gene Logic.
10.3 EFFECT OF BANKRUPTCY. If, during the Research Term, either
party files a voluntary petition in bankruptcy, is adjudicated a bankrupt, makes
a general assignment for the benefit of creditors, admits in writing that it is
insolvent or fails to discharge within 15 days an involuntary petition in
bankruptcy filed against it, then the Research Term and the entirety of this
Agreement may be immediately terminated by the other party.
10.4 REMEDIES. In the event of any breach of any provision of this
Agreement, in addition to the termination rights set forth herein, each party
shall have all other rights and remedies at law or equity to enforce this
Agreement.
10.5 SURVIVAL. Sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7(a),
4.7(b), 5.7, 6, 8.2, 8.3, 9, 10.2 (including the provisions therein that are
contemplated to continue following termination) 10.4, 10.5, 11 and 12 shall
survive the termination or expiration of this Agreement; provided, however, that
if Alternative D has been elected under Section 2.6(b)(iv), Section 4.7(d) shall
also survive the termination or expiration of this Agreement; and provided
further that if AgrEvo has been granted one of the licenses set forth in Section
5.1(b), 5.1(c), 5.1(d), 5.2 or 5.3, the Section setting forth such license and
Sections 5.1(e), 5.1(f) and 5.1(g) shall also survive the termination or
expiration of this Agreement until such time as the Agreement is terminated
pursuant to Section 10.2(b).
29.
37
11. DISPUTE RESOLUTION.
11.1 ARBITRATION. Any controversy arising under or related to this
Agreement, and any disputed claim by either party against the other under this
Agreement, excluding any dispute relating to patent validity or infringement
arising under this Agreement, shall be settled by arbitration in accordance with
the then existing commercial arbitration rules of the American Arbitration
Association.
11.2 PROCEDURE. Upon request by either party, arbitration will be by
a Third Party arbitrator mutually agreed upon in writing by Gene Logic and
AgrEvo within 30 days of such arbitration request. In any such arbitration, Gene
Logic and AgrEvo shall select an arbitrator with relevant experience in the
agricultural biotechnology industry. The parties shall be entitled to all
discovery in like manner as determined by the arbitrator. Any arbitration shall
be held in Wilmington, Delaware unless the parties hereto mutually agree in
writing to another place. Judgment upon the award rendered by the arbitrator
shall be final and nonappealable and may be entered in any court having
jurisdiction thereof.
12. GENERAL PROVISIONS.
12.1 MUTUAL INDEMNIFICATION. Each party agrees to defend, indemnify
and hold harmless the other party and its Affiliates, employees, agents,
officers, directors and permitted from and against any judgments, settlements,
damages, awards, costs (including attorneys' fees and costs) and other expenses
arising out of any claims, actions or other proceedings by a Third Party
(collectively a "Claim") arising out of or resulting from the development,
manufacture, use, promotion, marketing, handling, storage or sale of any
Agricultural Product, except to the extent that (i) such Claim arises out of or
results from the negligence or misconduct of the party claiming a right of
indemnification under this Section 12.1, (ii) such Claim arises out of or
results from infringement of the patent rights of any Third Party by the Gene
Logic Background Technology if Gene Logic is the party claiming a right of
indemnification under this Section 12.1 or (iii) such Claim arises out of or
results from infringement of the patent rights of any Third Party by the AgrEvo
Background Technology if AgrEvo is the party claiming a right of indemnification
under this Section 12.1. In the event either party seeks indemnification under
this Section 12.1, it shall inform the other party of a Claim as soon as
reasonably practicable after it receives notice of the Claim, shall permit the
other party to assume direction and control of the defense of the Claim
(including the right to settle the Claim solely for monetary consideration), and
shall cooperate as requested (at the expense of the other party) in the defense
of the Claim. The obligations set forth in this Section 12.1 shall survive the
expiration or termination of this Agreement.
30.
38
12.2 CHANGE OF CONTROL.
(a) In the event of a Change in Control, as that term is
defined in Section 12.2(b), of Gene Logic during the Research Term, then Gene
Logic shall notify AgrEvo of any such Change of Control as soon as the Change in
Control may be publicly announced. In the event that Gene Logic is acquired by a
Third Party in any manner described in Section 12.2(b) that in the good faith
determination of the Board of Directors of AgrEvo is hostile to the interests of
AgrEvo in the Commercial Field, then AgrEvo shall have the right to give notice
to Gene Logic within 90 days after receipt of Gene Logic's notification that
AgrEvo elects (i) to continue the Agreement, or (ii) Alternative E - to
terminate the Research Term and have Gene Logic grant to AgrEvo a non-exclusive
license to the Gene Logic Background Technology as set forth in Section 5.3. In
the event that AgrEvo does not provide written notice within such 90-day period,
AgrEvo shall be deemed to have elected to continue the Research Term. In the
event that AgrEvo elects Alternative E, AgrEvo will pay to Gene Logic (or its
successor) [ * * * ] upon the last day of the Research Term. AgrEvo shall also
pay to Gene Logic (or its successor) [ * * * ] on the fifth anniversary of the
last day of the Research Term in order to maintain the license under Section
5.3. In addition, during the one-year period following the Research Term, AgrEvo
will pay to Gene Logic on a quarterly basis, in arrears, for those Gene Logic
Scientific FTEs necessary to complete the establishment of the license based on
a plan agreed by the parties.
(b) For purposes of this Agreement, a "Change in Control"
of Gene Logic shall be deemed to have occurred in the event of (i) a merger or
consolidation of Gene Logic with another corporation, not including any merger
or consolidation if immediately thereafter the stockholders of Gene Logic
immediately before such transaction own shares representing more than 50% of the
outstanding voting securities of the surviving corporation, (ii) a sale of
shares by the stockholders of Gene Logic if immediately thereafter the
stockholders of Gene Logic immediately before such sale own shares representing
50% or less of the outstanding voting securities of the surviving corporation,
or (iii) a sale of all or substantially all of Gene Logic's assets.
12.3 ASSIGNMENT. This Agreement shall not be assignable by either
party without the prior written consent of the other party, such consent not to
be unreasonably withheld or delayed, except a party may make such an assignment
without the other party's consent to Affiliates or to a successor to
substantially all of the business of such party, whether in merger, sale of
stock, sale of assets or other transaction; provided, however, that in the event
of such transaction, no intellectual property rights of any Affiliate or Third
Party that is an acquiring party shall be included in the technology licensed
hereunder. This Agreement shall be binding upon and inure to the benefit of the
parties' successors, legal representatives and assigns.
12.4 NON-WAIVER. The waiver by either of the parties of any breach
of any provision hereof by the other party shall not be construed to be a waiver
of any succeeding breach of such provision or a waiver of the provision itself.
12.5 GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Maryland other than
those provisions governing conflicts of law.
31.
* CONFIDENTIAL TREATMENT REQUESTED
39
12.6 PARTIAL INVALIDITY. If and to the extent that any court or
tribunal of competent jurisdiction holds any of the terms or provisions of this
Agreement, or the application thereof to any circumstances, to be invalid or
unenforceable in a final nonappealable order, the parties shall use their best
efforts to reform the portions of this Agreement declared invalid to realize the
intent of the parties as fully as practicable, and the remainder of this
Agreement and the application of such invalid term or provision to circumstances
other than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each of the remaining terms and provisions of this
Agreement shall remain valid and enforceable to the fullest extent of the law.
12.7 NOTICE. Any notice to be given to a party under or in
connection with this Agreement shall be in writing and shall be (i) personally
delivered, (ii) delivered by a nationally recognized overnight courier, (iii)
delivered by certified mail, postage prepaid, return receipt requested or (iv)
delivered via facsimile, with receipt confirmed, to the party at the address set
forth below for such party:
To AgrEvo: To Gene Logic:
Hoechst Schering AgrEvo GmbH Gene Logic Inc.
Werk Hochst, H 872 N 708 Quince Orchard Road
D-65926 Frankfurt am Main Gaithersburg, Maryland 20878
GERMANY UNITED STATES OF AMERICA
Attn: Head of Research, Agrochemicals Attn: President
Phone: 49-69-305-7814 Phone: 1-301-987-1700
Fax: 49-69-305-17768 Fax: 1-301-987-1701
with a copy to: with a copy to:
Plant Genetics Systems N.V. Cooley Godward LLP
Jozef Plateaustraat 22 4365 Executive Dr., Suite 1100
B 9000 Gent San Diego, CA 92121
BELGIUM UNITED STATES OF AMERICA
Attn: Head of Research and Development, Attn: D. Bradley Peck, Esq.
Biotechnology/Seeds
Phone: 32-9-235-8520 Phone: 1-619-550-6000
Fax: 32-9-224-0694 Fax: 1-619-453-3555
or to such other address as to which the party has given written notice thereof.
Such notices shall be deemed given upon receipt.
12.8 HEADINGS. The headings appearing herein have been inserted
solely for the convenience of the parties hereto and shall not affect the
construction, meaning or interpretation of this Agreement or any of its terms
and conditions.
12.9 NO IMPLIED LICENSES OR WARRANTIES. No right or license under
any patent application, issued patent, know-how or other proprietary information
is granted or shall be granted by implication. All such rights or licenses are
or shall be granted only as expressly provided in the terms of this Agreement.
Neither party warrants that (a) the Research Program
32.
40
shall achieve any of the research objectives contemplated by them, (b) any
Genetic Target will be identified or go into Further Development or (c) any
Agricultural Product will be commercialized.
12.10 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 nor shall it create any liability if the same shall arise from
any cause or causes beyond the reasonable control of the affected party,
including, but not limited to, the following, which for purposes of this
Agreement shall be regarded as beyond the control of the party in question: acts
of nature; 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; invasion; strikes; and labor lockouts;
provided that the party so affected shall use its best efforts to avoid or
remove such causes of nonperformance and shall continue performance hereunder
with the utmost dispatch whenever such causes are removed.
12.11 ENTIRE AGREEMENT. This Agreement, including the exhibits and
schedules hereto, constitutes the entire understanding between the parties with
respect to the subject matter contained herein and supersedes any and all prior
agreements, understandings and arrangements whether oral or written between the
parties relating to the subject matter hereof, except for the Mutual
Confidential Disclosure Agreement dated September 9, 1997, as amended on January
19, 1998.
12.12 AMENDMENTS. No amendment, change, modification or alteration of
the terms and conditions of this Agreement shall be binding upon either party
unless in writing and signed by the party to be charged.
12.13 INDEPENDENT CONTRACTORS. It is understood that both parties
hereto are independent contractors and are engaged in the operation of their own
respective businesses, and neither party hereto is to be considered the agent or
partner of the other party for any purpose whatsoever. Neither party has any
authority to enter into any contracts or assume any obligations for the other
party or make any warranties or representations on behalf of the other party.
12.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
33.
41
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GENE LOGIC INC. HOECHST SCHERING AGREVO GMBH
By: /s/ Mark D. Gessler By: /s/ Jan Leemans
------------------------------------------- --------------------------------------------
Mark D. Gessler Jan Leemans
Senior Vice President, Corporate Member of the Board
Development and Chief Financial Officer
By: /s/ Jurgen A(beta)hauer
--------------------------------------------
Jurgen A(beta)hauer
Member of the Board
34.
42
SCHEDULE 2.1
RESEARCH PROGRAM DELIVERABLES
[ * * * * ]
* CONFIDENTIAL TREATMENT REQUESTED
43
SCHEDULE 3.1
RMC REPRESENTATIVES
AGREVO:
Marc Cornelissen
Arno Schulz
Frank Schmidt or Frank Meulewaeter
GENE LOGIC:
Greg Lennon
Dan Passeri
Mark Noel
44
EXHIBIT 7.1
PROMISSORY NOTE
[ * * * ] June 30, 1998
Gaithersburg, Maryland
FOR VALUE RECEIVED, HOECHST SCHERING AGREVO GMBH, a corporation
organized under the laws of Germany ("Borrower"), hereby unconditionally
promises to pay to the order of GENE LOGIC INC., a Delaware corporation
("Lender"), in lawful money of the United States of America and in immediately
available funds, the principal sum of [ * * * ] (the "Loan"), payable on the
dates and in the manner set forth below.
This Promissory Note is the Note referred to in, and is executed and
delivered in connection with, that certain Collaboration Agreement dated as of
even date herewith, by and between Borrower and Lender (as the same may from
time to time be amended, modified or supplemented, the "Collaboration
Agreement"). All terms defined in the Collaboration Agreement shall have the
same definitions when used herein, unless otherwise defined herein.
1. PRINCIPAL REPAYMENT. The outstanding principal amount of the
Loan and all accrued interest shall be due and payable, unless earlier as
provided in paragraph 4 below, upon January 15, 1999 (the "Maturity Date").
2. NO INTEREST. No interest shall be due on the outstanding
principal amount hereof at any time.
3. PLACE OF PAYMENT. All amounts payable hereunder shall be
payable in accordance with Section 7.8 of the Collaboration Agreement.
4. DEFAULT. Each of the following shall be an "Event of Default"
hereunder:
(a) Borrower fails to pay any of the principal amount due
under this Note on the date the same becomes due and payable or within five (5)
calendar days thereafter;
(b) Borrower files any petition or action for relief
under any bankruptcy, reorganization, insolvency or moratorium law, or any other
law for the relief of, or relating to, debtors, now or hereafter in effect, or
makes any assignment for the benefit of creditors, or takes any corporate action
in furtherance of any of the foregoing; or
(c) An involuntary petition is filed against Borrower
(unless such petition is dismissed or discharged within sixty (60) days), under
any bankruptcy statute now or hereafter in effect, or a custodian, receiver,
trustee, assignee for the benefit of creditors (or other similar official) is
appointed to take possession, custody or control of any property of Borrower.
Upon the occurrence of an Event of Default hereunder, all unpaid principal and
other amounts owing hereunder shall, at the option of Lender, be immediately
collectible by Lender pursuant to applicable law.
* CONFIDENTIAL TREATMENT REQUESTED
45
5. WAIVER. Borrower waives presentment and demand for payment,
notice of dishonor, protest and notice of protest of this Note, and shall pay
all costs of collection when incurred, including, without limitation, reasonable
attorneys' fees, costs and other expenses.
The right to plead any and all statutes of limitations as a defense to
any demands hereunder is hereby waived to the full extent permitted by law.
6. GOVERNING LAW. This Note shall be governed by, and construed
and enforced in accordance with, the laws of the State of Maryland, excluding
conflict of laws principles that would cause the application of laws of any
other jurisdiction.
7. SUCCESSORS AND ASSIGNS. The provisions of this Note shall inure
to the benefit of and be binding on any successor to Borrower and shall extend
to any holder hereof.
BORROWER: LENDER:
HOECHST SCHERING AGREVO GMBH GENE LOGIC INC.
By: /s/ Jan Leemans By: /s/ Mark D. Gessler
----------------------------------- ---------------------------------------
Jan Leemans Mark D. Gessler
Member of the Board Senior Vice President, Corporate
Development and Chief
Financial Officer
By: /s/ Jurgen A(beta)hauer
-----------------------------------
Jurgen A(beta)hauer
Member of the Board
46
SCHEDULE 7.9
WIRE TRANSFER PAYMENT INSTRUCTIONS
Bank: [ * * * ]
Location:
ABA #:
For further credit to client funds #:
Account Name:
Account #:
* CONFIDENTIAL TREATMENT REQUESTED