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EXHIBIT 10.2
COMMERCIALISATION AGREEMENT
This Commercialisation on Agreement (the "AGREEMENT") is entered into as of 13th
August, 1998 (the "EFFECTIVE DATE") by and between AMERSHAM PHARMACIA BIOTECH
AB, a Swedish company having its principal office at Bjorkgatan 30, S-751 84
Uppsala, Sweden and ARQULE, INC. ("ARQULE"), a Delaware Company having its
principal office at 200 Boston Avenue, Medford, MA 02155, USA.
RECITALS
WHEREAS, AP Biotech and ArQule entered into the Research Collaboration and
License Agreement of even date herewith (as herein defined);
WHEREAS, pursuant to the Research Collaboration and License Agreement, AP
Biotech and ArQule have agreed to conduct a Collaborative Research Program with
the aim [*];
WHEREAS, AP Biotech and ArQule have agreed to jointly market the [*] thus
developed.
NOW, THEREFORE, in consideration of the foregoing and the covenants and promises
set forth herein, AP Biotech and ArQule hereby agree as follows:
1. DEFINITIONS
Terms which is not expressly defined in this Agreement shall have same meaning
as is given to it in the Research Collaboration and License Agreement.
1.1 "AFFILIATE" means any legal entity (such as a corporation, partnership,
or limited liability company) that is controlled by a party. For the purposes of
this definition, the term "control" means (i) beneficial ownership of at least
fifty percent (50%) of the voting securities of a corporation or other business
organization with voting securities or (ii) a fifty percent (50%) or greater
interest in the net assets or profits of a partnership or other business
organisation without voting securities.
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1.2 "BIOMOLECULES" means polypeptides, proteins, oligonucleotides,
polynucleotides, oligosaccharides, polysaccharides or any combination of such
molecules, whether produced by natural means or by organic synthesis on solid
support or in solution.
1.3 [*].
1.4 CONFIDENTIAL INFORMATION" has the meaning set forth in Section 6.1.
1.5 "CUSTOMER CONTRACT" means the contract between AP Biotech and the
customer and which specifies the terms and conditions for a particular Customer
Project.
1.6 "CUSTOMER PROJECT" means the project undertaken by AP Biotech in
collaboration with ArQule in respect of a particular customer which shall
specify the development work to be performed by AP Biotech and ArQule as defined
in clause 2.3.
1.7 "CUSTOMER ROYALTIES" mean the royalties to be paid by a customer on its
sales of a product which has utilized the [*].
1.8 [*].
1.9 "KAM" means the Key Account Managers employed or otherwise engaged by
AP Biotech and/or its Affiliates to market its industrial separation products to
key accounts, such as major pharmaceutical companies.
1.10 "MARKETING MANAGER" means the individual designated by AP Biotech to
supervise and have the overall responsibility in relation to AP Biotech for the
marketing and sales activities relating to [*].
1.11 "MARKETING PLAN" means the plan which shall describe the marketing and
sales efforts to be undertaken by AP Biotech and its Affiliates in each of AP
Biotech's marketing regions, Europe, International, Japan and North America, to
achieve firstly the Commercial Milestones, and thereafter to maximize the market
penetration and sales of Media Products.
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1.12 [*].
1.13 "RESEARCH COLLABORATION AND LICENSE AGREEMENT" means that particular
agreement of even date herewith between the parties of even date hereof which
provides for the perfection of the [*] technology platform and the grant of
certain licensing rights from and to both parties.
1.14 "STEERING COMMITTEE" means the Steering Committee defined in the
Research Collaboration and License Agreement.
1.15 "TECHNOLOGY ACCESS, R&D AND SUCCESS FEES" means the fees to be paid by
a customer in consideration of the development services offered to the customer
under a Customer Contract.
2. JOINT MARKETING AND PROMOTION
2.1 CO-MARKETING AND PROMOTION. The parties agree to co-operate in the
joint introduction, promotion and marketing of the [*] concept to all potential
customers on a world wide basis. In doing so AP Biotech shall have the primary
responsibility for the promotion, marketing and sales activities. ArQule shall
Actively Participate with AP Biotech in such sales and marketing activities, in
particular relating to the ligand design and synthesis, in the marketing and
sales process and in Customer Projects. Further, ArQule shall perform all
research and development work to adapt ArQule Compounds to the needs of the
customers in accordance with a Customer Project. The promotion and marketing
efforts will include visits and presentations to individual customers,
participation in international scientific conferences and exhibitions,
publications in external and internal scientific journals, advertisements in
media, product leaflets and other appropriate means.
For the purposes of this Agreement the term "Actively Participate" means the
contribution of knowledgeable resources in marketing and selling activities
(e.g. customer visits, participation in scientific conferences and external and
internal seminars, Customer Project planning and reviews), organised or
initiated by APB, and for the production of promotion material (e.g. prints,
manuscripts, pictures, text material) relating to ArQule Technology, Joint
Technology and [*].
2.2 SALES AND MARKETING PROCEDURE. The marketing and sales activities under
this Agreement will consist of the following;
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(i) Lead generation and identification of customers. AP Biotech
shall engage its KAM's and its world wide marketing and sales
organisation to identify the customers who have or may develop an
interest to participate in the [*] concept execute a Customer
Contract. Both AP Biotech and ArQule shall inform the Steering
Committee and the other party of any actual or potential lead which may
be generated or discovered by it in pursuit of its regular business.
(ii) Qualification of customers, presentation of the [*] concept to
the customer, and technical feasibility of a customer project. Any such
potential project shall be reported to the marketing Manager, who shall
initiate a detailed description of the [*] concept and a proposal to be
presented to the customer.
(iii) Presentation to the customer of a proposal for a Customer
Project, and negotiations and development of a tentative Customer
Project Plan.
(iv) Agreement between AP Biotech and ArQule on the technical and
commercial terms for the Customer Project approved by the Steering
Committee to be negotiated with the customer and the final negotiations
with the customer. ArQule shall be bound to perform the research and
development activities thus allocated to and agreed by it. In the event
that ArQule chooses not to participate together with AP Biotech in the
final negotiations together with the customer ArQule shall be bound to
the reasonable outcome negotiated by AP Biotech based on such agreement
between AP Biotech and ArQule.
(v) Final negotiations with the customer.
(vi) Initiation of the Customer Project
2.3 CUSTOMER PROJECTS. The parties anticipate that a Customer Project will
consist of the following elements:
[*]
2.4 INFORMATION. Both AP Biotech and ArQule shall inform each other of
their respective activities under this or relating to this Agreement. Further
both parties shall at the request of the other provide such reasonable
additional information as will enhance the co-marketing activities described
herein.
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2.5 PERSONNEL. In addition to the Marketing Manager designated by AP
Biotech, each party agrees to assign to the marketing and sales activities under
this Agreement such qualified and competent members of its staff as may be
required to achieve the goals set forth in the Commercial Milestones and the
Marketing Plan and in each Customer Project Plan.
2.6 PAYMENT OF COSTS AND EXPENSES. Each party shall bear the costs and
expenses of its respective activities in connection with its performance
hereunder.
3. CUSTOMER CONTRACTS, CUSTOMER FEES AND ROYALTIES, AND SUPPLY OF [*]
3.1 CUSTOMER CONTRACTS. AP Biotech shall be the contracting party with the
customer in respect of the Customer Contracts approved by the Steering
Committee, but ArQule shall have the right to be informed of the development of
the negotiation thereof and the right to participate in such negotiations. The
Customer Contracts shall be based on a template agreement agreed to by the
parties and shall cover [*] as described in clause 2.3 above.
3.2 TECHNOLOGY ACCESS, R&D AND SUCCESS FEES, AND CUSTOMER ROYALTIES. The
parties shall introduce to the customers and shall in their marketing and sales
effort present the value added of the [*] in consideration of which the customer
will be required to pay Technology Access, R&D and Success Fees, as well as
Customer Royalties, as further defined in the template Customer Contract. Such
fees should be in amount of [*] aiming at an average of [*] during the first [*]
of the term of this Agreement. In the event that the customer does not accept to
pay fees in such amount or any royalties, AP Biotech and ArQule shall agree on a
joint approach to jointly negotiate the terms of the Customer Contract with such
customer. AP Biotech and ArQule shall share all such fees with [*] thereof being
due to AP Biotech and [*] to ArQule, and [*] of all Customer Royalties being due
to each of AP Biotech and ArQule.
3.3 PAYMENTS TO ARQULE. AP Biotech shall pay to ArQule its share of the
fees and the royalties in United States dollar. Payments shall be made within
sixty (60) days of AP Biotech's receipt of such fees from the customer.
Conversion of foreign currency to US dollars shall be made at the conversion
rate quoted by a first class commercial bank in Sweden on the due date for
payment to ArQule.
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3.4 LATE PAYMENTS. Any payments by AP Biotech that are not paid on or
before the due date for payment under this Agreement shall bear interest, to the
extent permitted by law, at two percentage unit above the 3 month LIBOR for USD.
3.5 CONTRACTS FOR THE SUPPLY OF [*]. Upon completion of the development
work described in the Customer Contract AP Biotech will negotiate and enter into
a supply contract with the customer for the supply of [*]. AP Biotech shall pay
to ArQule the royalties on such sales as are defined in the Research
Collaboration and License Agreement.
4. TRADE NAME
The parties shall agree on a suitable trade name for the [*] concept and shall
promote and market the [*] under such name. AP Biotech shall register the trade
name as a trademark in such countries as the parties may agree. AP Biotech shall
pay the reasonable costs to obtain such registrations. AP Biotech shall grant to
ArQule a co-exclusive license to use the trademark in its performance under this
Agreement.
5. STEERING COMMITTEE
5.1 MEETING OF STEERING COMMITTEE. The Steering Committee shall hold
regular meetings at the intervals specified in Article 3.2(d) of the Research
Collaboration and License Agreement.
5.2 RESPONSIBILITY OF STEERING COMMITTEE. The Steering Committee shall be
responsible for the co-ordination between the parties and the supervision of the
sales and marketing activities and this Agreement.
5.3 DECISION OF STEERING COMMITTEE AND REPORTS. The Steering Committee
shall take its decision as specified in Article 3.2(c and d) of the Research
Collaboration and License Agreement.
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6. CONFIDENTIAL INFORMATION
6.1 DEFINITION OF CONFIDENTIAL INFORMATION. Confidential Information shall
mean any technical or business information furnished by one party (the
"Disclosing Party") to the other party (the "Receiving Party") in connection
with this Agreement. Such Confidential information may include, without
limitation, the ArQule Background Technology, the AP Biotech Background
Technology or the Joint Technology, the use of a chemical compound, as well as
trade secrets, know-how, inventions, technical data or specifications, testing
methods, business or financial information, research, and development
activities, Research and Steering Committee reports or minutes, product and
marketing plans, and customer and supplier information.
6.2 OBLIGATIONS. The Receiving Party agrees that it shall:
(i) maintain all Confidential Information in strict confidence,
except that the Receiving Party may disclose or permit the disclosure
of any Confidential Information to its directors, officers, employees,
consultants, and advisors who are obligated to maintain the
confidential nature of such Confidential information and who need to
know such Confidential Information for the purposes set forth in this
Agreement;
(ii) allow its directors, officers, employees, consultants, and
advisors to reproduce the Confidential Information only to the extent
necessary to effect the purpose set forth in this Agreement, with all
such reproductions being considered Confidential Information.
6.3 EXCEPTIONS. The obligations of the Receiving Party under Section 6.1
(ii) above shall not apply to the extent that the Receiving Party can
demonstrate that certain Confidential Information:
(i) was in the public domain prior to the time of its disclosure
under this Agreement;
(ii) entered the public domain prior to the time of its disclosure
under this Agreement; through means the public domain after the time of
its disclosure under this Agreement through means other than an
unauthorized disclosure resulting from an act or omission by the
Receiving Party;
(iii) was independently developed or discovered by the Receiving
Party without use of the Confidential Information;
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(iv) is or was disclosed to the Receiving party at any time,
whether prior to or after the time of its disclosure under this
Agreement, by a third party having an no fiduciary relationship with
the Disclosing Party and having no obligation of confidentiality with
respect to such Confidential Information; or
(v) is required to be disclosed to comply with applicable laws or
regulations, or with a court or administrative order, provided, that
the Disclosing Party receives prior written notice of such disclosure
and that the Receiving Party takes all reasonable and lawful actions to
obtain confidential treatment for such disclosure and, if possible, to
minimize the extent of such disclosure.
6.4 RETURN OF CONFIDENTIAL INFORMATION. Upon the termination of this
Agreement, at the request of the Disclosing Party, the Receiving Party shall
return to the Disclosing Party all originals, copies, and summaries of
documents, materials, and other tangible manifestations of Confidential
Information in the possession or control of the Receiving Party, except that the
Receiving Party may retain one copy of the Confidential Information in the
possession of its legal counsel solely for the purpose of monitoring its
obligations under this Agreement.
6.5 SURVIVAL OF OBLIGATIONS. The obligations set forth in this Article 6
shall remain in effect for a period of [*] after termination of this Agreement,
except that the obligations of the Receiving Party to return Confidential
Information to the Disclosing Party and the obligations of the Materials
Recipient to return or destroy Proprietary Materials received from the Materials
Provider shall survive until fulfilled.
7. EXCLUSIVE RELATIONSHIP
The parties agree to work with each other exclusively as described in detail in
the Research Collaboration and License Agreement to provide [*] based on small
organic molecule ligands in the field of [*] to third party customers in the
bioseparations market.
8. EXPIRATION AND TERMINATION
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8.1 TERM OF AGREEMENT. Unless sooner terminated pursuant to this Article 8
or by mutual Agreement by the parties, this Agreement shall continue until
terminated by mutual agreement in writing of the parties.
8.2 DEFAULT BY EITHER PARTY. An Event of Default by either party shall have
occurred upon; (i) the occurrence of a breach of a material term of this if the
breaching party fails to remedy such breach within ninety (90) days after
written notice thereof by the non-breaching party or (ii) the bankruptcy,
insolvency, dissolution or winding up of a party.
8.3 DEFAULT BY AP BIOTECH. An Event of Default by AP Biotech shall have
occurred if AP Biotech fails to make payments due hereunder within thirty (30)
days after ArQule delivers written notice thereof to AP Biotech specifying such
failure and its claim of right to terminate, unless AP Biotech makes such
payments plus interest within such thirty (30) day period.
8.4 REMEDIES AVAILABLE. If an Event of Default described in Section 8.3 or
8.2 occurs relating to either party and the party in default fails to cure such
default during any applicable cure period, the other party shall have the right,
at its option exercisable in its sole discretion, in addition to any other
rights or remedies available to it at law or in equity, and subject to the
limitations of Section 13.12, to terminate this Agreement upon written notice
thereof the party in default.
8.5 SURVIVAL. The expiration of termination of this Agreement shall not
relieve the parties of any obligation accruing prior to such expiration or
termination. The provisions of Articles 6, 9, and 10, and Sections 11.1, 11.10
and 11.12 shall survive the expiration or termination of this Agreement.
9. REPRESENTATION AND WARRANTIES
9.1 REPRESENTATION, WARRANTIES AND COVENANTS OF ARQULE. ArQule represents
and warrants to and covenants with AP Biotech that:
(i) ArQule is a corporation duly organized, validly existing and
in corporate good standing under the laws of the State of Delaware;
(ii) ArQule has the legal right, authority and power to enter into
this Agreement, and to extend the rights and licenses granted to AP
Biotech in this Agreement;
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(iii) ArQule has taken all necessary action to authorize the
execution, delivery and performance of this Agreement;
(iv) upon the execution and delivery of this Agreement, this
Agreement shall constitute a valid and binding obligation of ArQule
enforceable in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganisation,
moratorium or similar laws affecting creditor's and contracting
parties' rights generally and except as enforceability may be subject
to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(v) the performance of its obligations under this Agreement will
not conflict with its charter documents or result in a breach of any
agreements, contracts or other arrangements to which it is a party; and
(vi) ArQule will not during the term of this Agreement enter into
any agreements, contracts or other arrangements that would be
inconsistent with its obligations under this Agreement.
9.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF AP BIOTECH. AP Biotech
represents and warrants to and covenants with ArQule that:
(i) AP Biotech is a corporation duly organized, validly existing
and in corporate good standing under the laws of Sweden;
(ii) AP Biotech has the legal right, authority and power to enter
into this Agreement, and to extend the rights and licenses granted to
ArQule in this Agreement;
(iii) AP Biotech has taken all necessary action to authorize the
execution, delivery and performance of this Agreement:
(iv) upon the execution and delivery of this Agreement, this
Agreement shall constitute a valid and binding obligation of AP Biotech
enforceable in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganisation,
moratorium or similar laws affecting creditors and contracting parties'
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
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(v) the performance of its obligations under this Agreement will
not conflict with AP Biotech's charter documents or result in a breach
of any agreements, contracts or other arrangements to which it is a
party; and
(vi) AP Biotech will not after the Effective Date enter into any
agreements, contract or other arrangements that would be inconsistent
with its obligations under this Agreement.
9.3 DISCLAIMER. NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THE ACTIVITIES TO BE UNDERTAKEN UNDER THIS AGREEMENT. THERE ARE
NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
BY EITHER PARTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY
MAKES ANY WARRANTIES THAT THE USE OF THE ARQULE BACKGROUND TECHNOLOGY, THE AP
BIOTECH BACKGROUND TECHNOLOGY OR THE JOINT TECHNOLOGY WILL NOT INFRINGE ANY
PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
10. INDEMNIFICATION AND INSURANCE
10.1 GENERAL INDEMNIFICATION. Each party (the "INDEMNIFYING PARTY") shall
indemnify and hold harmless the other party, and their respective directors,
officers, employees and agents (collectively, the "INDEMNITEES") from and
against all claims, expenses or liability of whatever nature arising from or
alleged to arise from (i) any default, act, omission or negligence of the
Indemnifying party, or the failure of the Indemnifying party or such persons to
comply with any applicable laws, rules, regulations, codes, ordinances or
directive of governmental authorities, in each case to the extent the same are
related, directly or indirectly, to the sales and marketing activities described
herein, and/or the sale of License Products and/or the provision of Licenses
Service; (ii) any theory of product liability (including, but not limited to,
actions in the form of tort, warranty or strict liability) concerning any
License Product sold or Licensed Service rendered by such party; or (iii) a
breach by such party of any of its representations of warranties made pursuant
to Article 9 hereof; provided, however, that in no event shall the Indemnifying
party be obligated under this section to indemnify the Indemnitees where such
claim, expense or liability results solely from any omission, fault, negligence,
or other misconduct of any of the Indemnitees.
10.2 PROCEDURE. The Indemnitees agree to provide the Indemnifying Party with
prompt written notice of any claim, suit, action, demand, or judgment for which
indemnification is sought under this Agreement. If an Indemnitee fails to
provide such notice within a reasonable time, and if such failure prejudicially
affects the ability of the Indemnifying Party to defend such action, the
Indemnifying Party shall be relieved of its liability to such Indemnitee under
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this Article 10. The Indemnifying Party agrees, at its own expense, to provide
attorneys reasonably acceptable to the Indemnitees to defend against any such
claim. The Indemnitees shall co-operation fully with the Indemnifying Party in
such defense and will permit the Indemnifying Party to conduct and control such
defense and the disposition of such claim, suit or action (including all
decisions relative to litigation, appeal, and settlement); provide, however,
that any Indemnitee shall have the right to retain its own counsel, at the
expense of the Indemnifying Party, if representation of such Indemnitee by the
counsel retained by the Indemnifying Party would be inappropriate because of
actual or potential differences in the interests of such Indemnitee and any
other party represented by such counsel. The Indemnifying Party agrees to keep
the other party informed of the progress in the defense and disposition of such
claim and to consult with such party with regards to any proposed settlement.
10.3 INSURANCE. AP Biotech shall maintain adequate product liability
insurance with respect to development, manufacture, and sale of Licensed
Products and Licensed Services by AP Biotech in such amount as it customarily
maintains with respect to sales of its other products, and in no event less than
a reasonable amount. AP Biotech shall maintain such insurance for so long as it
continuos to manufacture or sell Licensed Products and/or to provide Licensed
Services, and thereafter for so long AP Biotech customarily maintains such
insurance for itself covering such manufacture or sale.
11. MISCELLANEOUS
11.1 PUBLICITY. No press release, advertising, promotional sales literature,
or other promotional oral or written statements to the public in connection with
or alluding to work performed under this Agreement or the relationship between
the parties created by it, having or containing any reference to ArQule or AP
Biotech, shall be made by either party without the prior written approval of the
other party, except for restatements of previously-approve statements and
disclosures required by applicable law or regulations.
11.2 RELATIONSHIP OF PARTIES. For the purposes of this Agreement, each party
is an independent contractor and not an agent or employee of the other party.
Neither party shall have authority to make any statements, representations, or
commitments of any kind, or to take any action which shall be binding on the
other party, except as may explicitly provided for herein or authorized in
writing.
11.3 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.
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11.4 HEADINGS. All headings in this Agreement are for convenience only and
shall not affect the meaning of any provision hereof.
11.5 BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective lawful successors and assigns.
11.6 ASSIGNMENT. This Agreement may not be assigned by either party without
the prior written consent of the other party, except that either of the parties
may assign this Agreement to an Affiliate or successor in connection with the
merger, consolidation, or sale of all or substantially all of its assets or that
portion of its business pertaining to the subject matter of this Agreement.
11.7 FORCE MAJEURE. Neither party will be responsible for delays resulting
from acts beyond the control of such party, provided, that the non-performing
party uses commercially reasonable efforts to avoid or remove such causes of
non-performance and continues performance hereunder with reasonable dispatch
whenever such causes are removed.
11.8 NOTICES. All notices, requests, demands and other communications
required or permitted to be given pursuant to this Agreement shall be in writing
and shall be deemed to have been duly given upon the date of receipt if
delivered by hand, recognised national overnight courier, confirmed facsimile
transmission, or registered or certified mail, return receipt requested, postage
prepaid, to the following addresses or facsimile numbers:
If to AP Biotech: Amersham Pharmacia Biotech AB
S-751 84 Uppsala
Sweden
Attention: Johan von Heijne
Telephone: +46 18 16 50 00
Facsimile: +46 18 16 53 22
with a copy (which shall not constitute notice) to:
Ulf Lundberg
General Counsel
S-751 84 Uppsala
Sweden
Telephone: +46 18 16 50 00
Facsimile: +46 18 16 53 22
If to ArQule: ArQule, Inc
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200 Boston Avenue
Medford, MA 02155
Attn: President
Telephone: (781) 395-4100
Facsimile: (781) 393 8321
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with a copy (which shall not constitute notice) to:
ArQule, Inc.
200 Boston Avenue
Medford, MA 02155
Attn: Legal Department
Telephone: (781) 395 4100
Facsimile: (781) 393 8321
Either party may change its designated address and facsimile number by notice to
the other party in the manner provided in this Section 13.7.
11.9 AMENDMENT AND WAIVER. This Agreement may be amended, supplemented, or
otherwise modified at any time, but only by means of a written instrument signed
by both parties. Any waiver of any rights or failure to act in a specific
instance shall related only to such instance and shall not be construed as an
agreement to waive any rights or fail to act in any other instance, whether or
not similar.
11.10 GOVERNING LAW. This Agreement and the legal relations among the parties
shall be governed by and construed in accordance with the laws of the State of
New York irrespective of any conflict of laws principles.
11.11 SEVERABILITY. In the event that any provision of this Agreement shall,
for any reason, be held to be invalid or unenforceable in any respect, such
invalidity or unenforceability shall not affect any other provision hereof, and
this Agreement shall be construed as if such invalid or unenforceable provision
had not been included herein.
11.12 DISPUTE RESOLUTION. Any disputes between the parties that arise under
or relate to this Agreement and are not resolved by the Steering Committee shall
be resolved in accordance with the following procedures. The parties shall first
attempt in good faith to resolve the matter among themselves. If the matter
remains unresolved after a period of thirty (30) days after the dispute first
arose, the dispute shall be referred to a member of senior management from each
party, who shall meet at a mutually acceptable time and location. If the matter
remains unresolved within sixty (60) days after the dispute first arose, the
dispute shall be finally settled by binding arbitration in London, England under
the Rules of Conciliation and Arbitration of the International Chamber of
Commerce.
11.13 ENTIRE AGREEMENT. This Agreement, together with the Research
Collaboration and License Agreement, constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes any and all
prior or contemporaneous oral and prior written agreements and understandings
including, without limitation, the Prior Research and Development Agreement.
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IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement as a sealed instrument effective as of the date first above written.
AMERSHAM PHARMACIA BIOTECH AB
By: /s/ Ingvar Wiberger
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Name: Ingvar Wiberger
Title: Vice President Separations
ARQULE, INC.
By: /s/ Eric B. Gordon
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Name: Eric B. Gordon
Title: President and Chief Executive Officer