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Exhibit 10.2
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
BIOINFORMATICS ACCESS AND LICENSE AGREEMENT
This Bioinformatics Access and License Agreement (the "Agreement") is
dated as of August 1, 1996 (the "Effective Date"), and is entered by and
between Millennium Pharmaceuticals, Inc., a Delaware corporation with its
principal offices at 640 Memorial Drive, Cambridge, MA 02139-4815
("Millennium") and American Home Products Corporation, a Delaware corporation
acting through its Wyeth-Ayerst Research Division, with its principal offices
at 555 East Lancaster Pike, St. Davids, PA 19087 ("AHP").
WHEREAS, Millennium has developed and owns certain bioinformatics
computer software and other related technology; and
WHEREAS, AHP desires to use such software and other technology and
Millennium is willing to deliver copies to AHP of such software and other
technology and assist AHP in the installation and implementation thereof,
together with a grant to AHP of a nonexclusive right to use such software and
other technology on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of these premises and the mutual
covenants herein contained, Millennium and AHP hereby agree as follows:
1. Definitions
1.1 Affiliate" means any corporation, company partnership, joint venture
and/or firm which controls, is controlled by or is under common control with a
Party. For purposes of this Section 1.1, "control" shall mean, (a) in the case
of corporate entities, direct or indirect ownership of at least fifty percent
(50%) of the stock or shares having the right to vote for the election of
directors, and (b) in the case of non-corporate entities, direct or indirect
ownership of at least fifty percent (50%) of the equity interest with the power
to direct the management and policies of such non-corporate entities, provided,
however, that the foregoing shall not include any entity with respect to which
there is a contractual restriction on the right to elect a majority of the
directors.
1.2 "Bioinformatics Joint Management Team" or "Bioinformatics JMT" means
a joint management team, as described in Section 7.1.
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1.3 "CNS Agreement" shall mean the CNS Research, Collaboration and
License Agreement between the Parties hereto that was executed on even date
herewith.
1.4 "Confidential Information" means all materials, know-how or other
information, including, without limitation, proprietary information and
materials (whether or not patentable or copyrightable) regarding a Party's
technology, products, business information or objectives, which is designated
as confidential in writing by the disclosing Party, whether by letter or by
the use of an appropriate stamp or legend, prior to or at the time any such
material, trade secret or other information is disclosed by the disclosing
Party to the other Party. Notwithstanding the foregoing, materials, know-how
or other information which is orally, electronically or visually disclosed by
a Party, or is disclosed in writing without an appropriate letter, stamp or
legend, shall constitute Confidential Information if the disclosing Party,
within thirty (30) days after such disclosure, delivers to the other Party a
written document or documents describing the materials, know-how or other
information and referencing the place and date of such oral, visual,
electronic or written disclosure and the names of the persons to whom such
disclosure was made, provided, however, that (i) the Millennium Bioinformatics
Technology shall constitute Confidential Information, and (ii) any technical
information disclosed at a meeting of the Bioinformatics JMT or the Steering
Committee shall constitute Confidential Information, even if not identified as
confidential, unless otherwise specified.
1.5 "Documentation" means the software documentation identified in
Exhibit A (as modified from time to time in hard copy and/or electronic
format) delivered by Millennium to AHP for use in association with the
Millennium Bioinformatics Technology.
1.6 "Management Committee(s)" means the Bioinformatics JMT and/or the
Steering Committee.
1.7 "Millennium Bioinformatics Patent Rights and Copyrights" means a
patent or copyright which covers Millennium Bioinformatics Technology that is
owned or controlled by Millennium and as to which Millennium has the right to
grant licenses without violating the terms of any agreement with a third
party.
1.8 "Millennium Bioinformatics Technology" means integrated software
tools, in object code form only, the current version of which is identified in
Exhibit A (such Exhibit A to be modified from time to time to include new
functionality in general use by
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
the relevant researchers at Millennium for the *********
************************************************************ which (a) are (i)
developed by or for Millennium or (ii) acquired by Millennium and with respect
to which Millennium has the right to grant licenses or sublicenses (if AHP
bears any incremental costs incurred by Millennium in connection with the
grant of the license or sublicense to AHP) without violating the terms of any
agreement with a third party, and (b) are delivered to AHP for the *********
************************************************** (regardless of
************************************************* including but not limited to
software tools used (1) to analyze ************** *** and ******************
(2) to predict ******************* and ********************* and ********* of
the **************** by ***** and (3) to identify the
************************* of ***** from proprietary databases or from publicly
available databases, provided, however, that Millennium Bioinformatics
Technology shall not include (A) metatools (i.e., software tools used to
develop the Millennium Bioinformatics Technology itself), (B) source code, (C)
any software tools used in high throughput genotyping, or (D) software
delivered pursuant to the TPT Agreement.
1.9 "Party" means AHP or Millennium; "Parties" means AHP and Millennium.
1.10 "Platform" means the hardware and software configuration broadly
specified in Exhibit A (as modified from time to time by the Bioinformatics
JMT in accordance with Section 7.1) that is required to use the Millennium
Bioinformatics Technology.
1.11 "Requisite Majority" means, with respect to any Management
Committee, a majority of the members of such Management Committee, provided
that such majority must include at least two (2) representatives of each
Party.
1.12 "Steering Committee" shall have the meaning ascribed to such term
in the CNS Agreement.
1.13 "Term" means the term of this Agreement as set forth in Section
9.1.
1.14 "Third Party Software" means software, listed in Exhibit A,
licensed to Millennium by a third party which AHP is required to license
directly from such third party.
1.15 "TPT Agreement" shall mean the Transcription Profiling Technology
Access and License Agreement between the Parties hereto that was executed on
even date herewith.
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1.16 "Upgrade" means a revision of the Millennium Bioinformatics
Technology or Documentation (including for example, error corrections,
modifications, or enhancements) that Millennium has installed at and is in
productive use at Millennium.
1.17 "Wholly-Owned Subsidiary" means any corporation, company
partnership, joint venture and/or firm which is completely controlled by a
party hereto. For purposes of this Section 1.17, "complete control" shall
mean, (a) in the case of corporate entities, direct or indirect ownership of
at least ninety-five percent (95%) of the stock or shares having the right to
vote for the election of directors, and (b) in the case of non-corporate
entities, direct or indirect ownership of at least ninety-five percent (95%)
of the equity interest with the power to direct the management and policies of
such non-corporate entities.
2. Licenses.
2.1 Internal Use License. Subject to the terms and conditions
contained herein, Millennium grants AHP and its Wholly-Owned Subsidiaries a
nonexclusive, nontransferable right and license (without the right to
sublicense any of such rights) to (a) use, copy and internally distribute
(exclusively to facilities of AHP and its Wholly-Owned Subsidiaries ("AHP
Facilities") for use exclusively by employees and agents of AHP and its Wholly-
Owned Subsidiaries) the Millennium Bioinformatics Technology and (b) to
prepare derivative works of the Millennium Bioinformatics Technology for the
purpose of merging or interfacing the Millennium Bioinformatics Technology
with software of AHP and of its Wholly-Owned Subsidiaries, provided, however,
that AHP shall not have the right to use any source code of the Millennium
Bioinformatics Technology to prepare such derivative works and AHP shall not
have the right to distribute such derivative works to third parties other than
agents of AHP working on behalf of AHP. AHP shall inform Millennium, in
writing, of all AHP Facilities at which Millennium Bioinformatics Technology
is being used or otherwise accessed, whether by installation or through
electronic data access.
2.2 Documentation. Subject to the terms and conditions contained
herein, Millennium grants AHP and its Wholly-Owned Subsidiaries a
nonexclusive, nontransferable right and license to (a) use, copy, internally
distribute exclusively to and for use exclusively by employees and agents of
AHP and its Wholly-Owned Subsidiaries and (b) prepare derivative works of the
Documentation solely for use with the Millennium Bioinformatics Technology.
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2.3 License Restrictions. AHP shall not and its Wholly-Owned
Subsidiaries shall not:
(a) decompile, disassemble or otherwise reverse engineer the
Millennium Bioinformatics Technology;
(b) use, copy or distribute the Millennium Bioinformatics
Technology or Documentation directly or indirectly, except as expressly
permitted under this Agreement;
(c) use the Millennium Bioinformatics Technology or
Documentation for any purpose for the benefit of any other person or entity,
provided, however, that this restriction shall not prevent AHP from
manufacturing or distributing any compounds or other products developed using
the Millennium Bioinformatics Technology;
(d) enhance, modify or prepare derivative works (except as
provided above in Section 2.1) of the Millennium Bioinformatics Technology.
3. Delivery, Installation and Acceptance.
3.1 Delivery. Millennium shall, within fifteen (15) days of the
Effective Date, provide to AHP one (1) master hard copy of the Documentation.
3.2 Installation. Millennium agrees to install the Millennium
Bioinformatics Technology at a facility of AHP in the United States
(designated by AHP), provided that AHP has purchased and installed the
Platform (including obtaining necessary licenses from third parties) specified
in Exhibit A hereto. If the Platform is not installed at the time the
Millennium Bioinformatics Technology is delivered to AHP, Millennium shall
have thirty (30) days from the date it is notified by AHP that such Platform
is installed at AHP to install the Millennium Bioinformatics Technology. The
cost of such initial installation is included in the license fee; provided,
however, that Millennium shall not be under any obligation to acquire any
Third Party Software for AHP or obtain any other software required to complete
the Platform. Millennium shall install Upgrades as determined by the
Bioinformatics JMT and AHP shall use its reasonable efforts to enable the
installation of Upgrades as soon as available from Millennium.
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
3.3 Acceptance.
(a) Millennium shall only be obligated to install the Millennium
Bioinformatics Technology at one AHP Facility, and if AHP elects to have the
Millennium Bioinformatics Technology installed at any other AHP Facility, AHP
shall install the Millennium Bioinformatics Technology itself or, if Millennium
agrees, pay Millennium at Millennium's then standard rates to install the
Millennium Bioinformatics Technology at such additional facility or facilities.
(b) The Bioinformatics JMT shall define specific acceptance criteria
(the "Acceptance Criteria"), which will be approved by the Steering Committee,
and which will be used by the Bioinformatics JMT to determine when each item of
Millennium Bioinformatics Technology has been *****************************
******************************************* other AHP Facilities selected by AHP
and approved by the Bioinformatics JMT, which approval shall not be unreasonably
withheld. Such criteria shall be based on the following factors:
(1) The Millennium Bioinformatics Technology shall
**************************************
**************************************** Millennium.
(2) The Millennium Bioinformatics Technology shall
***************************************************
************************************************ AHP
Facility.
(3) Millennium has provided or made reasonable offers to
provide at least ******************** training sessions
for ****** persons referred to in Section 6.4 of this
Agreement.
(c) When Millennium notifies the Bioinformatics JMT that it has
installed the Millennium Bioinformatics Technology, the Bioinformatics JMT shall
then determine in good faith whether such installation satisfies the Acceptance
Criteria.
4. Ownership of Software and Source Code Escrow.
4.1 Millennium Bioinformatics Technology. Millennium and its licensors shall
retain all their respective rights, title and interest in the Millennium
Bioinformatics Technology, Millennium Bioinformatics Patent Rights and
Copyrights and Documentation and
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
Millennium shall retain all rights, title and interest in all modifications
and derivative works thereof made by Millennium during the term of this
Agreement, and AHP and its Wholly-Owned Subsidiaries shall not take any action
inconsistent with such title and ownership. AHP and its Wholly-Owned
Subsidiaries shall retain all of its/their rights, title and interest, subject
to Millennium's rights in the underlying Millennium Bioinformatics Technology,
in any derivative works it prepares pursuant to Section 2.1 of this Agreement.
4.2 Intellectual Property Protection. AHP and its Wholly-Owned Subsidiaries
shall maintain the Millennium Bioinformatics Technology in strict confidence
under the terms and conditions of Article 8 hereof and shall not alter or remove
any printed or on-screen copyright, trade secret, proprietary and/or other legal
notices contained on or in copies of the Millennium Bioinformatics Technology or
Documentation.
4.3 Source Code Escrow. The Parties shall enter into a software escrow
agreement with Data Securities International or another mutually acceptable
escrow agent in substantially the form attached hereto as Exhibit B. Millennium
shall deposit the source code for the Millennium Bioinformatics Technology in a
source code escrow account with the escrow agent within thirty (30) days after
the Bioinformatics JMT determines that the installation of the Millennium
Bioinformatics Technology has satisfied the Acceptance Criteria. Millennium
shall also deposit the source code for any Upgrades of the Millennium
Bioinformatics Technology which it delivers to AHP. All costs associated with
such escrow shall be borne by Millennium. Such source code shall be released
only upon an uncured material breach by Millennium of any Section of this
Agreement other than Section 8 or upon any intentional or grossly negligent
disclosure of Confidential Information of AHP. In the event that such escrow
agreement is terminated, at the election of AHP, the Parties shall enter into a
new escrow agreement with another mutually agreeable escrow agent.
4.4 Third Party Software. AHP shall obtain its own licenses to the Third
Party Software at its expense.
5. Payments.
5.1 License Fee. In consideration of the licenses granted herein, AHP shall
pay Millennium a total of *********** payable in nine (9) installments as
follows:
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
(a) ******************************** upon the Bioinformatics JMT determining
that the Millennium Bioinformatics Technology has been installed and that
Acceptance Criteria have been met;
(b) ****************************************************** on the first day
of each of eight (8) consecutive quarters beginning on the first anniversary of
the Effective Date of this Agreement, each of such payments being contingent
upon continuation of the Agreement up to the date the payment is due.
5.2 Support and Maintenance Fees. In consideration of the support and
maintenance services provided by Millennium pursuant to Section 6, AHP shall pay
to Millennium a service fee of ******** for the first year with such payment due
and payable on the date the Bioinformatics JMT determines that the Millennium
Bioinformatics Technology satisfies the Acceptance Criteria. In the event that
the Millennium Bioinformatics Technology has not met the Acceptance Criteria
within sixty (60) days after AHP notifies Millennium that the Platform has been
installed, the ******** service fee shall be reduced by one twelfth (1/12) for
each month after the expiration of such sixty (60) day period that the
Millennium Bioinformatics Technology has not yet met the Acceptance Criteria.
Thereafter, for the remainder of the initial Term starting on the first
anniversary of the Effective Date of this Agreement, AHP shall pay to Millennium
a service fee of ******** due and payable on the first day of each calendar
quarter unless this Agreement is terminated prior to the applicable payment
date.
5.3 Extension Fees. In the event AHP extends the Term of this Agreement
pursuant to Section 9.1, beyond its initial five (5) year term, AHP shall pay an
annual extension fee which shall be calculated as follows. The first annual
extension fee shall be the ************************************* adjusted by the
cumulative percentage change in the ************************** *****. Subsequent
annual extension fees shall be subject to an annual adjustment equal to the
**********************************
*************************************************************
******************************************************.
5.4 Payment Terms. All payments due under this Agreement shall be made in
U.S. dollars, and, at Millennium's election, (i) shall be mailed to Millennium's
principal office identified above or (ii) shall be made by wire transfer to such
bank account as Millennium may designate from time to time.
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
6. Support, Training and Consulting
6.1 Support. Millennium shall provide the support services to AHP described
in this Article 6 for the support and maintenance fee set forth in Section 5.2
or Section 5.3 or such other support services as the Parties may find mutually
agreeable. Any revisions to the Millennium Bioinformatics Technology made by
Millennium in connection with such support services shall be treated for all
purposes under this Agreement as Millennium Bioinformatics Technology and all
intellectual property rights therein shall be retained by Millennium.
6.2 Millennium Support and Maintenance Obligations.
Subject to payment of the Support Fee identified in Section 5.2 or Section
5.3, Millennium shall provide the following Support Services for the Millennium
Bioinformatics Technology (but not the Third Party Software):
(a) Problem reporting, tracking and monitoring by electronic mail via
the Internet;
(b) Reasonable telephone support for problem determination, verification
and resolution on a call-back basis during Millennium's normal business hours of
9 a.m. to 5 p.m. Eastern Standard Time; and
(c) Upgrades installed and in productive use at Millennium which
Millennium shall deliver and install in accordance with the instructions of the
Bioinformatics JMT no more frequently than semi-annually;
(d) Training pursuant to Section 6.4;
(e) Diligent work to promptly resolve defects and errors in the
Millennium Bioinformatics Technology or Documentation in accordance with the
following schedule:
ERROR PRIORITY (1) RESPONSE (2) CLOSURE (3)
Emergency (A) ******** ******
Critical (B) ****** *******
Non-Critical (C) ******* ************
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(1) Priority:
-A- Catastrophic product or module failures that do not have a
viable detour or work around available.
-B- Problems that have been substantiated as resulting in
substantial impairment of functionality to users. This includes any
priority A failure for which a viable detour or work around is
available.
-C- All other problems which the user can easily avoid or detour
and for which there is no urgency for a resolution.
(2) Response: Response consists of providing, as appropriate,
one of the following to AHP: an existing correction; a new correction;
a viable detour or work around; a request for more information to
complete analysis of the problems, or a reasonable plan on how the
problem will be corrected. In addition, for Emergency priority errors,
Millennium shall devote full-time attention to developing a response
until Closure.
(3) Closure: Closure consists of installing a final correction
or work around of the problem, including Upgrades and revised or new
Documentation as necessary.
The maintenance and technical support described above shall be provided by
Millennium only for the then current release level of the Millennium
Bioinformatics Technology unless the maintenance and technical support of an
earlier release could be provided by Millennium with substantially the same
effort required by Millennium to maintain and support the current version.
Notwithstanding the previous sentence, while a new Upgrade is being installed
at AHP, Millennium shall continue to support the earlier release until the
Bioinformatics JMT determines that the Upgrade has been successfully installed
at AHP. In addition, in the event that any problem is the result of a
derivative work prepared by AHP, Millennium shall have the right to charge AHP
at Millennium's standard rates for the time spent resolving such problem.
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
6.3 AHP Obligations.
AHP agrees:
(a) that the designated contact person(s) identified on Exhibit
C (or such other replacement individual as AHP may designate) shall be the sole
contact for the coordination and receipt of the Support Services set forth in
Section 6.2, which person shall be knowledgable and trained on the Millennium
Bioinformatics Technology;
(b) to maintain for the term of this Agreement, an electronic
mail link-up with Millennium via the Internet and dial-in access for Millennium
to the systems of AHP running the Millennium Bioinformatics Technology to enable
Millennium to test and verify reported problems;
(c) to provide reasonable supporting data to and aid in the
identification and correction of reported problems;
(d) to treat all periodic software Upgrades delivered under this
Agreement as Millennium Bioinformatics Technology and as Confidential
Information under Section 8.
6.4 Training. Millennium shall train AHP employees and/or employees and
agents of AHP's Wholly-Owned Subsidiaries in the use of the Millennium
Bioinformatics Technology during the initial term of this Agreement. In the
first year of this Agreement, such training shall consist of
****************************** ********** (to train reasonably appropriately
skilled persons) training sessions for up to *********** employees and agents
per session. Thereafter, Millennium shall conduct **************** *******
training sessions per year for up to twelve (12) employees and agents per
session. In addition, Millennium shall conduct *** *************** training
sessions for up to *********** employees and agents each for each Upgrade
delivered to AHP. In the event that AHP requires any additional training
sessions to be conducted, if Millennium agrees, such training sessions shall be
provided at Millennium's then standard rates. All training shall be conducted at
Millennium's or AHP's offices as determined by the Bioinformatics JMT to be most
efficient for the Parties.
6.5 Consulting Services. Millennium shall provide AHP and AHP's
Wholly-Owned Subsidiaries with up to ****************** days per year of
consulting services related to the use of the Millennium Bioinformatics
Technology, including services provided in connection with the integration of
the Millennium
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Bioinformatics Technology into the informatics systems of AHP
and of AHP's Wholly-Owned Subsidiaries, including networking to remote sites.
Such consulting services shall be provided at the facilities of AHP or
Millennium or by telephone as mutually agreed to by the Parties.
6.6 Quarterly Update. Millennium shall deliver to AHP a report detailing
developments and enhancements to the Millennium Bioinformatics Technology
developed or under development by Millennium during the prior calendar quarter.
Such report shall be provided to each AHP representative on the Bioinformatics
JMT within thirty (30) days after the end of each calendar quarter during the
term of the Agreement.
7. Project Management.
7.1 The Bioinformatics JMT.
(a) As soon as practicable after the Effective Date, the Parties shall
establish a Bioinformatics JMT, consisting of four (4) representatives
designated by AHP and four (4) representatives designated by Millennium. Each
Party shall make its initial designation of its representatives not later than
thirty (30) days after the Effective Date.
(b) The Bioinformatics JMT shall be responsible for coordinating and
insuring the successful transfer to AHP of the Millennium Bioinformatics
Technology and any subsequent Upgrades delivered to AHP. The Bioinformatics JMT
shall also be responsible for approving the details of the Platform and such
approval must be obtained before the Platform shall be treated as installed by
AHP. Once the Bioinformatics JMT approves the details of the Platform, the
Platform specified in Exhibit A shall be considered modified to include such
details.
7.2 Steering Committee. The Steering Committee shall be responsible for
the definition of global priorities and the approval of the decision of the
Bioinformatics JMT relating to the Acceptance Criteria. The Steering Committee
shall also be responsible for resolving any disputes arising out of this
Agreement not resolved by the Bioinformatics Joint Management Team.
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7.3 Management Committee Decisions.
The Parties agree that the objective of the Management Committees shall
be to resolve all matters unanimously. However, in the absence of unanimity,
the following rules shall apply:
(a) Bioinformatics JMT. The agreement of a Requisite Majority of
the Bioinformatics JMT shall be required for the Bioinformatics JMT to take any
action. Any member of the Bioinformatics JMT who is not present at any meeting
either in person or by designated alternate may appoint another representative
or alternate as his/her proxy on his/her behalf on all matters coming to a vote.
The Bioinformatics JMT may conduct meetings by telephone or video conference. If
the Bioinformatics JMT is unable to reach agreement by a Requisite Majority on
any issue within its purview, such issue shall be referred to the Steering
Committee.
(b) The Steering Committee. The agreement of a Requisite
Majority of the members of the Steering Committee shall be required for the
Steering Committee to take any action. Any member of the Steering Committee who
is not present at any meeting either in person or by designated alternate may
appoint another representative or alternate as his/her proxy on his/her behalf
on all matters coming to a vote. The Steering Committee may conduct meetings by
telephone or video conference. If the Steering Committee is unable to reach a
decision by a Requisite Majority on any issue within its purview, including
without limitation unresolved issues referred to it by the Bioinformatics JMT,
such issue shall be referred to the President of Wyeth-Ayerst Research
Laboratories and the Chief Executive Officer of Millennium (the "Executive
Officers") for resolution.
(c) Decisions by Executive Officers. It is the intention of the
Parties that any issue referred by the Steering Committee to the Executive
Officers shall be resolved by negotiation in good faith as soon as practicable
but no later than thirty (30) days after its referral. Each Executive Officer
shall have the right to engage the services of any number of independent experts
in the field in question (the individual so engaged by each Executive Officer to
be reasonably acceptable to the other Executive Officer in terms of independence
and expertise, and shall be engaged under obligations of confidentiality) to
assist the Executive Officer in making a joint determination in the best
interests of the collaboration, and each Executive Officer shall be obligated to
consider in good faith the analyses and opinions of any such independent experts
engaged by either of them in
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making a determination. Such resolution, if any, of a referred issue shall be
final and binding on the Parties, and the Parties shall instruct the members of
the Steering Committee designated by them to approve such resolution.
8. Confidentiality
8.1 Confidential Information. No Confidential Information disclosed by one
Party to the other during the term of this Agreement shall be used by the
receiving Party except as provided in this Agreement. Such Confidential
Information shall be maintained in confidence by the receiving Party, and shall
not otherwise be disclosed by the receiving Party to any other person, firm, or
agency, governmental or private, without the prior written consent of the
disclosing Party, except to the extent that the Confidential Information:
(a) was known or used by the receiving Party prior to its date of
disclosure to the receiving Party; or
(b) either before or after the date of the disclosure to the receiving
Party is lawfully disclosed to the receiving Party by sources other than the
disclosing Party rightfully in possession of the Confidential Information;
or
(c) either before or after the date of the disclosure to the receiving
Party becomes published or generally known to the public through no fault or
omission on the part of the receiving Party; or
(d) is independently developed by or for the receiving Party without
reference to or reliance upon the Confidential Information; or
(e) is required to be disclosed by the receiving Party to comply with
applicable laws, to defend or prosecute litigation or to comply with
governmental regulations, provided that the receiving Party provides prior
written notice of such disclosure to the other Party and takes reasonable
and lawful actions to avoid and/or minimize the degree of such disclosure.
8.2 Employee Obligations. Each of the Parties agrees to provide
Confidential Information received from the other Party only to such Party's
employees, consultants and advisors, and to
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CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
the employees, consultants, and advisors of such Party's Wholly-Owned
Subsidiaries, who have a need to know and have an obligation to treat such
information and materials as confidential.
8.3 Term. All obligations of confidentiality imposed under this
Article 8 for all Confidential Information other than any source code for the
Bioinformatics Technology shall expire five (5) years following expiration or
termination of this Agreement, including any renewals thereof.
9. Term and Termination.
9.1 Term. This Agreement shall commence on the Effective Date and shall
expire on the fifth anniversary of the Effective Date (the "Term"), unless
earlier terminated pursuant to Section 9.2. Upon expiration of the initial five
year Term of this Agreement, AHP may elect to renew this Agreement for
successive renewal terms of ************* subject to the payment obligations of
Section 5.3. In order to renew the Agreement, AHP shall notify Millennium of
such intent at least ninety (90) days prior to the end of the initial Term or
any renewal term.
9.2 Termination. This Agreement may be terminated, prior to the expiration
of its term only under the following circumstances:
(a) By AHP, if the Millennium Research Program (as that term is defined
in the CNS Agreement) or the CNS Agreement in its entirety is terminated by AHP;
(b) By Millennium, if Millennium terminates the CNS Agreement;
(c) By either Party in the event the other Party materially breaches a
provision of this Agreement and the breaching Party either (i) fails to cure
such breach within ninety (90) days of the receipt of notice of such breach from
the non-breaching Party or (ii) if such breach is not susceptible to cure within
ninety (90) days of the receipt of notice, the breaching Party is not diligently
pursuing a cure (unless the breach, by its nature, is incurable in which case
the Agreement may be terminated immediately);
(d) By AHP, if AHP has installed the Platform in its facilities and
****************************************** ************************* which
satisfies the Acceptance Criteria
****************************************************************
******************************************************.
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9.3 Breach of License Restrictions. Without limiting what may constitute
a material breach of this Agreement, any intentional or grossly negligent
transfer or distribution of Millennium Bioinformatics Technology or
Documentation by AHP or any of AHP's Wholly-Owned Subsidiaries outside of AHP
and AHP's Wholly-Owned Subsidiaries shall constitute an incurable, material
breach of the Agreement pursuant to which Millennium may immediately terminate
this Agreement.
9.4 Compensation Upon Termination. Except as provided herein, Millennium
shall not be responsible to AHP for compensation, damages or otherwise by reason
of termination of this Agreement at any time. In addition, if the Agreement is
terminated by Millennium pursuant to Section 9.2(b) or 9.3, in addition to other
remedies that may be available to Millennium, AHP shall immediately pay to
Millennium in a lump sum, any license fees payable under Section 5.1 that have
not been paid as of the date of termination.
9.5 Effects of Termination.
(a) Upon expiration or termination of this Agreement for any reason, all
rights, obligations and licenses of Millennium, AHP and AHP's Wholly-Owned
Subsidiaries hereunder shall cease, except as provided in Section 9.5(c) below
and except that AHP's liability for any charges, payments or expenses due to
Millennium which accrued prior to the termination date shall not be extinguished
by termination, and such amounts (if not otherwise due on an earlier date) shall
be immediately due and payable on the termination date.
(b) Upon expiration of this Agreement or upon termination of this
Agreement for breach by AHP, AHP and its Wholly-Owned Subsidiaries shall have no
further right to copy or use the Millennium Bioinformatics Technology or
Documentation, and immediately after such termination or expiration date hereof,
AHP and its Wholly-Owned Subsidiaries shall deliver to Millennium, at AHP's
expense, all originals and copies of the Millennium Bioinformatics Technology
and Documentation, including all translations and partial copies, whether or not
modified or merged into other software or documentation, in the possession or
under the control of AHP or an AHP Wholly-Owned Subsidiary. At Millennium's
request, AHP shall certify in writing to Millennium within ten (10) days
following termination that it has complied with this Section 9.5(b).
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(c) Upon termination of this Agreement for breach by Millennium, AHP and
its Wholly-Owned Subsidiaries shall have the right to continue to use the
Millennium Bioinformatics Technology pursuant to the terms and conditions of
this Agreement for the remainder of the term of the license granted in this
Agreement.
(d) The provisions of Sections 10 (Warranty), 11 (Infringement
Indemnification), 12 (Limitations on Liability), 13 (Compliance with Laws), 14
(General Provisions) and this Section 9 shall survive any termination or
expiration of this Agreement according to their terms.
10. Warranty and Disclaimer of Warranty.
10.1 Warranty. To Millennium's knowledge, the Millennium Bioinformatics
Technology does not infringe, at the time of delivery to AHP, any patents,
trademarks, copyrights, trade secrets or other intellectual property rights of
any third party.
10.2 LIMITATION OF WARRANTY. EXCEPT AS PROVIDED IN SECTION 10.1 THE
MILLENNIUM BIOINFORMATICS TECHNOLOGY, AND DOCUMENTATION ARE BEING PROVIDED "AS
IS" WITHOUT WARRANTY OF ANY KIND AND MILLENNIUM HEREBY DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE MILLENNIUM
BIOINFORMATICS TECHNOLOGY, AND DOCUMENTATION INCLUDING, WITHOUT LIMITATION, ALL
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
11. Infringement Indemnification.
11.1 Except as provided below, Millennium shall defend, indemnify and hold
harmless AHP from and against any damages, liabilities, costs and expenses
(including reasonable attorneys' fees, judgments and settlements) arising out of
any claim that the Millennium Bioinformatics Technology or Documentation
infringes a valid patent or copyright or misappropriates a trade secret of a
third party, provided that (i) AHP shall have promptly provided Millennium
written notice thereof and reasonable cooperation, information, and assistance
in connection therewith, and (ii) Millennium shall have sole control and
authority with respect to the defense, settlement, or compromise thereof. Should
any Millennium Bioinformatics Technology and Documentation become or, in
Millennium's opinion, be likely to become the subject of an injunction
preventing its use as contemplated herein, Millennium may, at its option, (1)
procure for AHP the right to continue using such Millennium Bioinformatics
Technology and Documentation
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at no additional cost to AHP, (2) replace or modify such Millennium
Bioinformatics Technology and Documentation so that it becomes non-infringing at
no additional cost to AHP, provided that such replaced or modified Millennium
Bioinformatics Technology operates in a reasonably equivalent manner. If (1) and
(2) are not reasonably available to Millennium, and AHP is not otherwise able to
procure the right to continue using such Millennium Bioinformatics Technology
and Documentation, Millennium shall, at its election, be released from its
obligations under Section 6 and this Section 11.1 and, if Millennium is released
in such case, AHP shall be released from its obligations under Section
6.3(a)-(c).
11.2 Millennium shall have no liability or obligation to AHP hereunder with
respect to any patent, copyright or trade secret infringement claim by a third
party based upon (i) use of the Millennium Bioinformatics Technology and
Documentation by AHP in combination with devices or products other than as
required by Millennium, (ii) use of the Millennium Bioinformatics Technology, or
Documentation in an application or environment for which such Millennium
Bioinformatics Technology and Documentation were not designed or contemplated,
(iii) modifications, alterations or enhancements of the Millennium
Bioinformatics Technology and Documentation not created by Millennium, (iv) use
of the Millennium Bioinformatics Technology and Documentation by AHP with
elements of the Platform which AHP failed to license from third parties, or (v)
any claims of infringement of a patent, copyright or trade secret in which AHP
or any Affiliate of AHP has an ownership interest. AHP shall indemnify and hold
Millennium harmless from all costs, damages and expenses (including reasonable
attorneys' fees) arising from any claim enumerated in clauses (i) through (iv)
above.
11.3 In the event that an infringement claim is brought against AHP which
AHP in its good faith business judgment believes will result in an injunction
preventing AHP from using the Millennium Bioinformatics Technology, AHP shall
have the right, but not the obligation, to terminate this Agreement on ninety
(90) days notice to Millennium unless within such ninety (90) days period
Millennium can obtain rights for AHP to continue using the Millennium
Bioinformatics Technology at no additional cost to AHP or can modify the
Millennium Bioinformatics Technology so that it no longer infringes at no
additional cost of AHP provided such replaced or modified Millennium
Bioinformatics Technology operates in a reasonably equivalent manner. In the
event of any termination pursuant to this Section 11.3, AHP shall not be
entitled to a refund of any payments made prior to the date of termination.
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11.4 The foregoing states the entire liability of Millennium with respect
to infringement of patents, copyrights and trade secrets by the Millennium
Bioinformatics Technology and Documentation or any part thereof or by their
operation.
12. Limitations on Liability.
12.1 EXCEPT AS PROVIDED IN SECTION 11, MILLENNIUM'S LIABILITY FOR DAMAGES
TO AHP FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION,
SHALL NOT EXCEED THE AGGREGATE LICENSE FEES, PAID BY AHP FOR THE MILLENNIUM
BIOINFORMATICS TECHNOLOGY UNDER THIS AGREEMENT. MILLENNIUM SHALL IN NO EVENT BE
LIABLE FOR ANY LOSS OF DATA, PROFITS OR USE OF THE MILLENNIUM BIOINFORMATICS
TECHNOLOGY, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE MILLENNIUM
BIOINFORMATICS TECHNOLOGY AND/OR DOCUMENTATION.
12.2 AHP will immediately inform Millennium as soon as AHP becomes aware of
any threatened or actual liability claim by a third party relating to the
Millennium Bioinformatics Technology.
13. Compliance with Laws.
13.1 Export. AHP shall not export, directly or indirectly, Millennium
Bioinformatics Technology or Documentation, or other information or materials
provided by Millennium hereunder, to any country for which the United States or
any other relevant jurisdiction requires any export license or other
governmental approval at the time of export without first obtaining such license
or approval. It shall be AHP's responsibility to comply with the latest United
States export regulations, and AHP shall defend and indemnify Millennium from
and against any damages, fines, penalties, assessments, liabilities, costs and
expenses (including reasonable attorneys' fees and court costs) arising out of
any claim that Millennium Bioinformatics Technology or Documentation, or other
information or materials provided by Millennium hereunder were exported or
otherwise shipped or transported in violation of applicable laws and
regulations.
13.2 Compliance with Laws of Other Jurisdictions. AHP shall comply with all
laws, legislation, rules, regulations, and governmental requirements, with
respect to the Millennium Bioinformatics Technology and Documentation, and the
performance by AHP of its obligations hereunder, existing in any jurisdiction in
which AHP uses, directly or indirectly, the Millennium Bioinformatics Technology
or Documentation. In the event that
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this Agreement is required to be registered with any governmental authority, AHP
shall cause such registration to be made and shall bear any expense or tax
payable in respect thereof.
14. General Provisions.
14.1 Notices. All notices, instructions and other communications hereunder
or in connection herewith shall be in writing and shall be (i) delivered
personally, (ii) sent by registered or certified mail, return receipt requested,
postage prepaid, (iii) sent via a reputable overnight courier service, or (iv)
sent by facsimile transmission, in each case to an address set forth below. Any
such notice, instruction or communication shall be deemed to have been delivered
upon receipt if delivered by hand, five business days after it is sent by
registered or certified mail, return receipt requested, postage prepaid, one
business day after it is sent via a reputable overnight courier service, or when
transmitted with electronic confirmation of receipt, if transmitted by facsimile
(if such transmission is on a business day; otherwise, on the next business day
following such transmission).
Notices to Millennium shall be addressed to:
Millennium Pharmaceuticals, Inc.
640 Memorial Drive
Cambridge, Massachusetts 02139-4815
Attention: Chief Executive Officer
Facsimile No.: (617) 621-0264
with a copy to:
Attention: Legal Department
Facsimile No.: (617) 374-0074
Notices to AHP shall be addressed to:
Wyeth-Ayerst Research
555 East Lancaster Pike
St. Davids, PA 19087
Attention: Office of the Senior Vice President
Global Business Development
Facsimile No.: (610) 688-9498
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with a copy to:
American Home Products Corporation
Five Giralda Farms
Madison, NJ 07940
Attention: Associate General Counsel
Facsimile No.: (201) 660-7155
Either Party may change its address by giving notice to the other Party in the
manner herein provided.
14.2 Force Majeure. No failure or omission by the Parties hereto in the
performance of any obligation of this Agreement shall be deemed a breach of this
Agreement or create any liability if the same shall arise from any cause or
causes beyond the control of the Parties, including, but not limited to, the
following: acts of God; acts or omissions of any government; any rules,
regulations or orders issued by any governmental authority or by any officer,
department, agency or instrumentality thereof; fire; storm; flood; earthquake;
accident; war; rebellion; insurrection; riot; and invasion and provided that
such failure or omission resulting from one of the above causes is cured as soon
as is practicable after the occurrence of one or more of the above- mentioned
causes.
14.3 No Waiver. The waiver of a breach hereunder may be effected only by a
writing signed by the waiving Party and shall not constitute a waiver of any
other breach.
14.4 Independent Contractors. It is understood and agreed that the
relationship between the Parties hereunder is that of independent contractors
and that nothing in this Agreement shall be construed as authorization for
either AHP or Millennium to act as agent for the other. Members of the
Bioinformatics JMT and the Steering Committee shall be, and shall remain,
employees of Millennium or AHP, as the case may be. Neither Party shall incur
any liability for any act or failure to act by members of the Bioinformatics JMT
and the Steering Committee who are employees of the other Party.
14.5 Governing Law. This Agreement shall be construed and the respective
rights of the Parties hereto determined according to the substantive laws of the
State of Delaware notwithstanding the provisions governing conflict of laws
under such Delaware law to the contrary, except matters of intellectual property
law which shall be determined in accordance with the relevant national
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intellectual property laws of the intellectual property in question.
14.6 Section 365(n) of the Bankruptcy Code. All rights and licenses granted
under or pursuant to any Section of this Agreement are, and shall otherwise be,
deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, licenses of
rights to "intellectual property" as defined under Section 101(35A) of the
Bankruptcy Code. The Parties shall retain and may fully exercise all of their
respective rights and elections under the Bankruptcy Code. Upon the bankruptcy
of either Party, the non-bankrupt Party shall further be entitled to a complete
duplicate of (or complete access to, as appropriate) any such intellectual
property, and such, if not already in its possession, shall be promptly
delivered to the non-bankrupt Party, provided, however, that in the event that
Millennium is the bankrupt Party, Millennium shall have the right to continue to
fulfill its obligations under Section 6.2 until the end of the Term in order to
prevent any source code from being released from escrow or otherwise being
delivered to AHP and for so long as Millennium continues to fulfill its
obligations under Sections 6.2, 6.4 and 6.5, AHP shall not be entitled to
request the release of the source code from escrow.
14.7 Amendments. This Agreement and the attached Exhibits constitute the
entire agreement relating to the Millennium Bioinformatics Technology between
the Parties and supersedes all previous arrangements relating to the Millennium
Bioinformatics Technology whether written or oral. Any amendment or modification
to this Agreement shall be made in writing signed by both Parties.
14.8 Headings. The captions or headings of the Sections or other
subdivisions hereof are inserted only as a matter of convenience or for
reference and shall have no effect on the meaning of the provisions hereof.
14.9 Assignment. Neither Party may assign this Agreement in whole or in
part without the consent of the other, except to a Wholly-Owned Subsidiary, or
except if such assignment occurs in connection with the sale or transfer of all
or substantially all of the business and assets of Millennium or AHP to which
the subject matter of this Agreement pertains.
14.10 Consents Not Unreasonably Withheld. Whenever provision is made in
this Agreement for either Party to secure the consent or approval of the other,
that consent or approval shall not unreasonably be withheld, and whenever in
this Agreement
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provisions are made for one Party to object to or disapprove a matter, such
objection or disapproval shall not unreasonably be exercised.
14.11 No Strict Construction. This Agreement has been prepared jointly
and shall not be strictly construed against either Party.
14.12 Severance of Clauses. Each Party agrees that, should any
provision of this Agreement be determined by a court of competent jurisdiction
to violate or contravene any applicable law or policy, such provision will be
severed or modified by the court to the extent necessary to comply with the
applicable law or policy, and such modified provision and the remainder of the
provisions hereof will continue in full force and effect.
14.13 Consents. All necessary consents, approvals and authorizations of
all government authorities and other persons required to be obtained by such
party in connection with execution, delivery and performance of this Agreement
have been and shall be obtained.
14.14 No Conflict. Notwithstanding anything to the contrary in this
Agreement, the execution and delivery of this Agreement and the performance of
such Party's obligations hereunder (a) do not conflict with or violate any
requirement of applicable laws or regulations and (b) do not and shall not
conflict with, violate or breach or constitute a default or require any consent
under, any contractual obligation of such Party.
14.15 Knowledge of Pending or Threatened Litigation. Each Party
represents and warrants to the other that it is not aware of any pending or
threatened litigation (and has not received any communication) which alleges
that such Party's activities related to bioinformatics software to date have
violated, or by conducting its business as currently proposed to be conducted
would violate, any of the intellectual property rights of any other person. To
the best of each Party's knowledge, there is no material unauthorized use,
infringement or misappropriation of any of the intellectual property rights
licensed hereunder.
14.16 Employee Obligations. Each Party represents and warrants that all
of its employees, officers, and consultants have executed agreements or have
existing obligations under law requiring, in the case of employees and officers,
assignment to such Party of all inventions made during the course of and as the
result of their association with such Party and obligating the
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individual to maintain as confidential such Party's Confidential Information
as well as confidential information of a third party which such Party may
receive, to the extent required to support such Party's obligations under this
Agreement.
14.17 Full Disclosure. Each Party has disclosed to the other in good
faith, all material information such Party believes is relevant to the subject
matter of this Agreement, and to such Party's ability to observe and perform its
obligations hereunder.
14.18 Compliance with Applicable Laws and Regulations. Each Party
represents and warrants to the other Party that it will comply with all
applicable laws and regulations in the delivery or use of the Millennium
Bioinformatics Technology hereunder.
14.19 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of such together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement is executed this ___ day of July,
1996, to be effective as of the Effective Date.
WYETH-AYERST RESEARCH DIVISION MILLENNIUM PHARMACEUTICALS, INC.
OF AMERICAN HOME PRODUCTS
CORPORATION
- ---------------------------- -------------------------------
Steven H. Holtzman
Chief Business Officer
- ---------------------------- -------------------------------
Title Title
- ---------------------------- -------------------------------
Date Date
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EXHIBIT A
MILLENNIUM BIOINFORMATICS TECHNOLOGY,
PLATFORM AND THIRD PARTY SOFTWARE
Millennium Bioinformatics Technology:
CONFIDENTIAL MATERIALS OMITTED
AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION
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NON-MILLENIUM SOFTWARE OBTAINED FROM MILLENIUM
CONFIDENTIAL MATERIALS OMITTED
AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION
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EXHIBIT B
SOURCE CODE ESCROW AGREEMENT
This Agreement (the "Agreement") is made as of July, 1996 among
Millennium Pharmaceuticals, Inc., a Delaware corporation with its principal
offices at 640 Memorial Drive, Cambridge, Massachusetts 02139-4815
("Millennium"), American Home Products Corporation, a Delaware corporation
acting through its Wyeth-Ayerst Research Division, with its principal offices
at 555 East Lancaster Pike, St. Davids, PA 19087 ("AHP"), and Data Securities
International, Inc., a ____________ corporation with its principal offices at
_____________________ ("Escrow Agent").
1. Background. Millennium has licensed or will license the Licensed
Program(s) (as defined below) to AHP pursuant to a written software license
agreement (a "License Agreement"). Millennium has agreed to place in escrow the
Source Code (as defined below) for the Licensed Program, to be released to AHP
upon the occurrence of certain events as hereinafter described.
2. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) Licensed Program. The computer program(s), consisting of a series
of instructions or statements in machine readable, object code form only,
licensed to AHP by Millennium pursuant to a License Agreement.
(b) Source Code. The version of the source code used by Millennium to
generate the Licensed Program, contained on one or more magnetic tapes or other
media, together with a print-out of the source code listing.
(c) Documentation. Explanatory information, whether in
machine-readable form or otherwise, which would assist a software engineer in
understanding the structure, purpose and operation of the Source Code.
(d) Information. The Source Code and the Documentation, collectively.
(e) Update Event. The delivery to AHP of any new release of the
Licensed Program or the expiration of twelve months since the most recent Update
Event if the Source Code has been modified in the interim.
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(f) Update Information. All information, including without limitation
additional and/or replacement Source Code and Documentation, necessary to bring
the Information in escrow prior to an Update Event into compliance with the
definition of Information contained in Section 2(d) after the occurrence of such
Update Event. The term "Information" shall be deemed to include any such Update
Information for the purposes of this Agreement.
3. Appointment of Escrow Agent. Escrow Agent is hereby appointed and
accepts appointment to act as escrow agent hereunder.
4. Fees of Escrow Agent.
(a) All fees of Escrow Agent in connection with its duties hereunder
shall be paid by Millennium.
(b) Escrow Agent's fees for the initial year of service are due in
full within sixty (60) days after the execution of this Agreement. Annual
renewal fees will be due in full upon the receipt of invoice unless otherwise
specified by the invoice. Late payments are subject to interest at the rate of
one and one-half percent per month (18% per annum) from the due date.
(c) Escrow Agent's fees will be as specified in its standard fee
schedule as modified from time to time. Escrow Agent shall notify Millennium at
least ninety (90) days prior to any increase in its fees. For any service not
listed on its standard fee schedule, Escrow Agent shall provide a price
quotation prior to rendering such service.
5. Representations and Warranties. Millennium represents and warrants to
AHP as follows:
(a) Millennium has the right to enter into and perform this
Agreement, to grant to AHP the license granted pursuant to Section 10(a) of this
Agreement and to deposit the Information under the terms of this Agreement.
(b) The Information initially deposited hereunder is reasonably
sufficient to enable a software engineer, skilled in the art of computer
programming and without recourse to collateral sources of assistance other than
commercially available computer programs, to independently compile the Licensed
Program and to modify the Licensed Program.
EXCEPT AS STATED ABOVE, MILLENNIUM DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE INFORMATION,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS
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FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL MILLENNIUM BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, ARISING OUT OF OR WITH RESPECT TO
THIS AGREEMENT OR THE INFORMATION.
6. Deposit of Information into Escrow. Within thirty (30) days after the
Bioinformatics JMT (created in accordance with the License Agreement) determines
that the Information has satisfied the Acceptance Criteria set forth in the
License Agreement, Millennium shall deliver to Escrow Agent one copy of the
Information in one or more sealed packages (a "Deposit"), each of which shall be
separately labeled and accompanied by a separate written list of its contents in
the form of Exhibit B-2 attached hereto (an "Exhibit B-2"). Thereafter, within
thirty (30) days after the occurrence of any Update Event, Millennium shall
deliver one copy of the Update Information in a sealed package to Escrow Agent
accompanied by an Exhibit B-2. Each Exhibit B-2 shall be signed by Millennium
prior to submission to Escrow Agent. Upon the delivery of any Update Information
to Escrow Agent, Millennium may instruct Escrow Agent to return to it any
previously delivered Information (other than the most recent and one previous
versions of the Information) which is no longer necessary to satisfy
Millennium's obligations under this Agreement.
7. Acceptance and Storage of Information.
(a) Upon receipt of any Information hereunder, Escrow Agent shall
visually match the accompanying Exhibit B-2 to the labels on the Deposit. Escrow
Agent shall not be responsible for verifying the contents of the Deposit or
validating the accuracy of Millennium's labeling of the Deposit. If Escrow Agent
determines that there is a discrepancy between the Exhibit B-2 and the labels on
the Deposit, Escrow Agent shall notify Millennium within five (5) days after
receipt thereof, and Millennium shall promptly correct such discrepancy.
Acceptance of the Information shall occur when Escrow Agent determines that the
Exhibit B-2 matches the labels on the Deposit. Upon acceptance, Escrow Agent
shall sign the Exhibit B-2 and mail copies thereof to Millennium and AHP.
(b) After acceptance, Escrow Agent shall store and maintain the
Information in such an environment or facility as Escrow Agent determines, in
its discretion, is suitable for the safekeeping of the Information. Escrow Agent
shall not permit any person to have access to the Information other than in
accordance with this Agreement, and shall maintain security measures, in
accordance with reasonable professional standards, to prevent unauthorized
access to the Information. Escrow Agent shall not
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release the Information except in accordance with the provisions of this
Agreement.
8. Inspection of Information. AHP shall have the right at its sole
expense from time to time during the term of this Agreement, upon reasonable
notice to Escrow Agent and Millennium, to designate a representative to inspect,
test and review the Information in the presence of a representative of Escrow
Agent and a representative of Millennium, if Millennium so chooses, during
normal business hours for the purpose of determining the completeness and
adequacy of the Information. Such representative shall be an independent
accounting or consulting firm, not employed or regularly retained by or
affiliated with AHP, as may be reasonably acceptable to Millennium. As a
condition to such inspection, such representative shall execute a
confidentiality agreement in form and substance reasonably acceptable to
Millennium.
9. Release and Delivery of Information.
(a) AHP may request in writing that Escrow Agent deliver the
Information to AHP upon the occurrence of any of the following events (a
"Triggering Event"):
(i) If Millennium materially breaches any Section of the License
Agreement between Millennium and AHP other than Section 8 or intentionally or
with gross negligence discloses Confidential Information of AHP and (A) such
breach remains uncured for ninety (90) days after delivery of written notice
thereof to Millennium or (B) if such breach is not susceptible to cure within
ninety (90) days of the receipt of notice, Millennium is not diligently pursuing
a cure; or
(ii) If Millennium ceases to offer support and maintenance
services for the Licensed Program and such cessation continues for ninety (90)
days after delivery of written notice thereof to Millennium, unless Millennium
shall have made arrangements for the continuation of support and maintenance
services for the Licensed Program by another qualified party; or
(iii) Any failure by Millennium to deliver to Escrow Agent any
required Update Information within ninety (90) days after an Update Event, which
failure remains uncured for thirty (30) days after delivery of written notice
thereof to Millennium.
(b) Upon receipt by Escrow Agent of notice from AHP of a Triggering
Event together with the applicable release request fee, Escrow Agent shall
promptly deliver a copy of such notice to Millennium. Escrow Agent shall, ten
(10) days after delivery of
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such notice to Millennium, deliver the Information to AHP, unless within such
ten (10) day period Millennium shall have delivered to Escrow Agent and AHP a
written denial that such Triggering Event has occurred. If Escrow Agent receives
such denial within such ten (10) day period, AHP's entitlement to receive the
Information under this Agreement shall be resolved by arbitration pursuant to
Section 15 of this Agreement, and Escrow Agent shall retain possession of the
Information pending the final determination by the Arbitration Panel, which
determination may be relied upon by Escrow Agent without further inquiry.
10. Possession, Use and Protection of the Information.
(a) If the Information is released to AHP pursuant to this Agreement,
Millennium hereby grants to AHP and its Wholly-Owned Subsidiaries a
non-exclusive, royalty-free, fully paid-up, perpetual, non-assignable license to
possess and use the Information solely for the internal support and maintenance
of the Licensed Program. Except as set forth in Section 10(b), AHP shall not
disclose, market, license, sell, distribute, sublicense or in any other manner
make the Information available to third parties. AHP shall not under any
circumstances copy, duplicate or otherwise reproduce any Information except as
required for the internal support and maintenance of the Licensed Program.
(b) AHP acknowledges and agrees that title to the Information shall
remain with Millennium at all times and that the Information shall remain
confidential and proprietary to Millennium. If the Information is released to
AHP pursuant to this Agreement, the Information shall be received and held by
AHP in confidence until it falls into the public domain without breach of this
Agreement by AHP. AHP shall limit use of and access to the Information to such
of its employees (or third parties reasonably acceptable to Millennium) as are
directly involved in the internal support and maintenance of the Licensed
Program and who are bound by written agreement to preserve the confidentiality
thereof. AHP shall promptly report to Millennium any actual or suspected
violation of this Section 10 and shall take all reasonable further steps
requested by Millennium to prevent or remedy any such violation.
11. Termination.
(a) This Agreement shall continue in effect with respect to AHP until
the termination or expiration of the License Agreement between Millennium and
AHP unless sooner terminated by the written agreement of Millennium and AHP or
for non-payment of Escrow Agent's fees pursuant to Section 11(b) below.
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(b) This Agreement shall have an initial term of one year, commencing
on the date set forth above in the first sentence of this Agreement (the
"Effective Date"). This Agreement shall automatically be renewed for additional
one-year periods upon receipt by Escrow Agent of the specified renewal fees. The
initial "Renewal Date" of this Agreement is one year from the Effective Date and
in succeeding years is one year from the most recent Renewal Date. In the event
that the renewal fees are not received within thirty (30) days prior to the
Renewal Date, Escrow Agent shall notify Millennium and AHP that this Agreement
will expire on the Renewal Date unless the renewal fees are paid. If Escrow
Agent does not receive the renewal fees by the Renewal Date, this Agreement
shall expire on the Renewal Date without further notice and without liability of
Escrow Agent to the parties to this Agreement.
(c) If this Agreement expires or is otherwise terminated with respect
to AHP, all duties and obligations of Escrow Agent to AHP and Millennium shall
terminate. If Millennium requests the return of the Information upon expiration
or termination of this Agreement, Escrow Agent shall return the Information to
Millennium only after Escrow Agent's outstanding invoices and deposit return
fees have been paid. If such fee(s) are not received by Escrow Agent within
thirty (30) days after expiration or termination of this Agreement Escrow Agent
shall, at its option, destroy or return the Information to Millennium.
12. Responsibilities and Liabilities of Escrow Agent. Escrow Agent shall
not be liable under this Agreement with respect to the condition or contents of
the Information or for any action taken or omitted in compliance with this
Agreement in good faith and in the exercise of Escrow Agent's own good judgment
or in reliance on advice of Escrow Agent's counsel or for any other cause unless
a court of competent jurisdiction finds that Escrow Agent's conduct was (i)
willful misconduct, (ii) fraudulent, (iii) grossly negligent, (iv) in bad faith
or (v) in disregard of or contrary to the terms of this Agreement. Escrow Agent
shall be obligated only for the performance of such duties as are specifically
set forth in this Agreement and may rely and shall be protected in relying on or
refraining from acting on any order or instrument reasonably and actually
believed by it to be genuine and to have been signed or presented by the proper
party or parties. Escrow Agent shall not be responsible for or be required to
enforce any of the terms or conditions of any agreement between Millennium and
AHP. Escrow Agent shall not be responsible or liable in any manner whatsoever
for the performance by Millennium or AHP of their respective obligations under
this Agreement.
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13. Resignation and Discharge; Successor Escrow Agent.
(a) Escrow Agent may resign at any time, effective on such date
specified in a written notice of resignation delivered to Millennium and AHP at
least ninety (90) days prior to such effective date. Escrow Agent may be
discharged at any time, with or without cause, by written agreement of
Millennium and AHP, effective upon receipt of written notice of such discharge
from Millennium. The resignation or discharge of Escrow Agent shall not affect
the right of Escrow Agent to be paid for its services through the date of
resignation or discharge.
(b) In the event of the resignation or discharge of Escrow Agent,
Millennium shall appoint a successor Escrow Agent who shall be reasonably
acceptable to AHP, and such successor Escrow Agent shall assume the rights,
powers and responsibilities of Escrow Agent hereunder upon its written agreement
to act as Escrow Agent hereunder and to become a party hereto.
(c) Escrow Agent's obligations hereunder shall terminate upon the
effective date of its resignation or discharge, except that it shall continue to
hold the Information in accordance with this Agreement until a successor Escrow
Agent is appointed, at which time Escrow Agent shall deliver the Information to
such successor Escrow Agent. If no successor Escrow Agent is appointed within
thirty (30) days after the effective date of such resignation or discharge,
Escrow Agent shall deliver the Information to the Arbitration Panel pursuant to
Section 15, shall give written notice of the same to Millennium and AHP and
shall have no further responsibility with respect thereto.
14. Indemnification. Millennium and AHP, jointly and severally, agree to
indemnify and hold Escrow Agent harmless against any loss, liability or expense
incurred by Escrow Agent as a result of any action taken or omitted in
compliance with this Agreement in good faith and in the exercise of Escrow
Agent's own good judgment or in reliance on advice of Escrow Agent's counsel or
for any other cause unless a court of competent jurisdiction finds that Escrow
Agent's conduct was (i) willful misconduct, (ii) fraudulent, (iii) grossly
negligent, (iv) in bad faith or (v) in disregard of or contrary to the terms of
this Agreement.
15. Arbitration. Any dispute regarding the occurrence or non-occurrence
of a Triggering Event shall be submitted to arbitration before a panel of
arbitrators selected in accordance with the commercial rules of the American
Arbitration Association (the "Arbitration Panel"). If the Arbitration Panel
determines that a Triggering Event has occurred with respect to AHP, Escrow
Agent shall immediately release the Information to AHP, provided that if it is
subsequently determined pursuant to a final adjudication of the dispute that a
Triggering Event has not occurred, AHP shall immediately cease use of the
Information, shall return the Information to Escrow Agent, and shall destroy all
other copies of the Information, or any part thereof, in its possession. If the
Arbitration Panel determines that a Triggering Event has not occurred, Escrow
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Agent shall continue to hold the Information in accordance with this Agreement.
The proceedings of the Arbitration Panel shall be held, and any determination of
the Arbitration Panel shall be deemed to have been made, in Boston,
Massachusetts. All questions of law shall be decided in accordance with the laws
of the Commonwealth of Massachusetts.
16. Notices. All notices required or permitted hereunder shall be given
in writing and shall be deemed delivered upon (i) delivery by messenger or
overnight courier service or (ii) three (3) days following the date of mailing
by registered or certified mail, postage prepaid, addressed to Millennium, AHP
or Escrow Agent at the applicable address set forth in Exhibit B-1 attached
hereto. Any party may change its address by ten (10) days' written notice given
to the other party in the manner set forth in this Section 16.
17. Governing Law. This Agreement is made in and shall be construed in
accordance with the laws of the Commonwealth of Massachusetts.
18. No Waiver. No delay or omission by any party in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by a party on any one occasion shall be effective only
in that instance and shall not be construed as a bar or waiver of any right on
any other occasion.
19. Severability. In the event that any provision of this Agreement
shall be invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
20. Successors and Assigns. Neither Millennium nor AHP may assign this
Agreement without the written consent of the other, except that no such consent
shall be required for an assignment in connection with the sale of all or
substantially all of a party's business by merger, sale of stock, sale of assets
or otherwise. Escrow Agent may not assign this Agreement without the written
consent of Millennium and AHP. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the
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parties, their respective executors, administrators, successors and assigns.
21. Amendment. This Agreement may be amended or modified only by a
written instrument executed by Escrow Agent, Millennium and AHP.
22. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
but one agreement binding on the parties.
23. Captions. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a
sealed instrument as of the day and year set forth above.
MILLENNIUM PHARMACEUTICALS, INC. AMERICAN HOME PRODUCTS
CORPORATION
By:____________________________ By:_________________________
Title:_________________________ Title:_______________________
DATA SECURITIES INTERNATIONAL, INC.
By:________________________________
Title:_____________________________
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Exhibit B-1
DESIGNATED REPRESENTATIVES
Notices to Millennium Invoices should
should be addressed to: be addressed to:
Address: _________________ _______________________
_________________ _______________________
_________________ _______________________
Designated
Representative: _________________ _______________________
Telephone: _________________ _______________________
Notices to AHP
should be addressed to:
Address: _________________
_________________
_________________
Designated
Representative: _________________ _______________________
Telephone: _________________ _______________________
Deposits and notices to Escrow Invoice inquiries and
Agent should be addressed to: payments to Escrow Agent
should be addressed to:
Escrow Agent: __________________ _______________________
Address: __________________ _______________________
__________________ _______________________
__________________ _______________________
Designated
Representative: __________________
Telephone: __________________
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Exhibit B-2
DESCRIPTION OF DEPOSIT MATERIALS
Deposit Account Number: ___________________________
Account Name: _____________________________________
Exhibit B-2 Number: _________________________________
Millennium, pursuant to a Source Code Escrow Agreement dated ______________,
19___ among Millennium, AHP and Escrow Agent (as defined therein), hereby
deposits the below described materials into the above-referenced Deposit
Account. The Deposit type is: (check space that applies)
____ Initial ____ Supplemental ____ Replacement
Deposit Deposit Deposit
If Replacement then destroy Deposit _____ or return Deposit _____
If no Deposit type has been checked, the materials will be deemed to be an
Initial or Supplemental Deposit.
DEPOSIT MATERIALS
Name:__________________________________ Version:________________________
Date:__________________________________ Compiler:_______________________
Application:_____________________________________________________________
Utilities needed:________________________________________________________
Special operating instructions:__________________________________________
_________________________________________________________________________
_________________________________________________________________________
Item Description Media Quantity
- ---------------- ----- --------
Millennium certifies that the Accepted:
above described materials
have been delivered/sent to
Escrow Agent
By:___________________________________ By:___________________________________
Name:_________________________________ Name:_________________________________
Title:________________________________ Title:________________________________
For:__________________________________ For:__________________________________
Date:_________________________________ Date:_________________________________
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EXHIBIT C
Designated Contacts
Primary Contact: ____________________
Phone number: _________________
E-Mail address:_________________
Secondary Contact: ____________________
Phone number: _________________
E-Mail address:_________________
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