CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
Exhibit 10.13
Third Amendment To
Screening Services Agreement
This Third Amendment To Screening Services Agreement (this "TRAP Third
Amendment") is made and dated as of February 14, 2001, (the "Third Amendment
Effective Date"), by and between Sanwa Kagaku Kenkyusho Co., Ltd., a Japanese
corporation ("Sanwa") and Telik Inc., a Delaware corporation ("Telik").
RECITALS
--------
A. Sanwa and Telik are parties to that Screening Services Agreement dated
as of December 20, 1996 as amended by that First Amendment to Screening Services
Agreement dated September 24, 1997 and that Second Amendment to Screening
Services Agreement dated October 29, 1998 (the "TRAP Agreement").
B. Sanwa and Telik are entering into a Master Amendment Agreement of even
date herewith in connection with which, as one of the conditions to Sanwa paying
Telik the amount set forth therein, the parties have agreed to execute and
deliver this TRAP Third Amendment.
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the parties hereby agree as follows:
1. Amendments. The TRAP Agreement is hereby amended as follows:
-----------
A. Section 1.1 is hereby revised in its entirety to read as follows:
1.1 Selected Targets. From time to time during the term of this
Agreement, Sanwa may notify Telik of a Sanwa Target, or pursuant to
the terms of Section 1.5, a Third Party Target, (collectively
"Selected Target") which Sanwa wishes to use in screening compounds
submitted by Telik; provided, however, Sanwa may not submit more than
[*] Selected Targets (not including Excluded Targets) during the term
of this Agreement as set forth in Section 7.1 hereof.
B. Section 1.2 is hereby revised in its entirety to read as follows:
1.2 Screening.
(a) Within [*] of receipt of a notice from Sanwa in accordance
with Subsection 1.1, subject to Subsection 1.3 below, Telik shall,
based upon its knowledge of the Telik Library and using the TRAPTM
technology, select and provide to Sanwa, or a third party pursuant to
an Approved Agreement [*] compounds ("Initial Compounds") from the
Telik Library that Telik believes, in its sole discretion, represent
maximum chemical compound diversity in the Telik
1.
Library. Sanwa shall, or a third party pursuant to an Approved
Agreement may, screen each Initial Compound for selected activity in
relation to the Selected Target and provide Telik the data resulting
therefrom ("Initial Results"), including but not limited to the
concentration at which each Initial Compound elicits a response
which is 50% of the maximum response in the Selected Assay (the
"EC50") resulting therefrom.
(b) Promptly after receipt of the Initial Results Telik shall,
based upon the Initial Results and using the TRAPTM Technology or any
other search technology available to Telik, select and provide to
Sanwa, or a third party pursuant to an Approved Agreement, [*]
compounds ("Secondary Compounds") from the Telik Library that Telik
believes, in its sole discretion, will exhibit the greatest likelihood
of activity in relation to the Selected Target. Sanwa shall, or a
third party pursuant to an Approved Agreement may, screen each
Secondary Compound for selected activity in relation to the Selected
Target and provide Telik the data resulting therefrom ("Secondary
Results"), including but not limited to the EC50 for each Secondary
Compound.
(c) If [*] that further screening activity is necessary, then
based upon the Initial Results and Secondary Results and using the
TRAPTM Technology or any other search technology available to Telik,
Telik shall select and provide to Sanwa, or a third party pursuant to
an Approved Agreement [*] compounds ("Tertiary Compounds") from the
Telik Library that Telik believes, in its sole discretion, will
exhibit the greatest likelihood of additional assay activity in
relation to the Selected Target. Sanwa will, or a third party
pursuant to an Approved Agreement may, screen each Tertiary Compound
for selected activity in relation to the Selected Target and provide
Telik the data resulting therefrom ("Tertiary Results"), including but
not limited to the EC50 for each Tertiary Compound.
C. Section 1.3 is hereby revised in its entirety to read as follows:
1.3 Excluded Targets. Notwithstanding anything herein to the
contrary, Telik shall not be obligated to perform any of the services
described in Section 1.2 with respect to any proposed Selected Targets
that Telik determines are identical to or in conflict with biological
targets included in any research collaboration between Telik and a
third party corporate entity or any other biological targets which
Telik is already actively pursuing, prior to receipt of a notice
pursuant to Section 1.1 or Section 1.5 identifying such Selected
Target ("Excluded Targets"). Telik shall notify Sanwa if a proposed
Selected Target is an Excluded Target promptly after receipt of
Sanwa's notice under Section 1.1 or Section 1.5 relating thereto.
2.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
D. Section 1.4 is hereby revised to read as follows:
1.4 Lead Optimization
(a) Telik shall diligently undertake a maximum of [*] Lead
Optimization Projects (as defined below) concurrent for Sanwa at any
given time, each with respect to a Family of Compounds (as defined
below) as Sanwa shall select by providing written notice to Telik.
For a period of [*] commencing on [*], Telik shall undertake, [*], a
Lead Optimization Project for the [*] Family of Compounds. If Telik
completes such Lead Optimization Project in less than [*], or if Sanwa
notifies Telik that it wishes to substitute another Lead Optimization
Project in place of a previously selected Lead Optimization Project,
Telik shall undertake such new or substitute Lead Optimization Project
as Sanwa may select, taking into account the scientific advice of the
"RMC," as such term is defined in the Collaboration Agreement between
Telik and Sanwa dated December 20, 1996, as amended ("Collaboration
Agreement"), by providing written notice to Telik, until the
expiration of the above [*] period [*]. Telik shall also diligently
undertake concurrent with the Lead Optimization Project for the [*]
Family of Compounds a [*] Lead Optimization Project as selected by
Sanwa including, for example, a Lead Optimization Project for the [*]
Family of Compounds. If Sanwa requests that Telik undertake a [*] Lead
Optimization Project at any time during the [*] period described
above, or continue a Lead Optimization Project after the expiration of
the [*] period described above, both after taking into account the
scientific advice of the RMC, Sanwa shall pay Telik [*], working
through the RMC.
(b) Upon commencement of the [*] of the Lead Optimization Project
for the [*] Family of Compounds, Telik shall (i) devote the
appropriate personnel, equipment and other resources as necessary to
ensure that the Lead Optimization Project proceeds in such a manner as
to allow Telik to apply for the patents referred to in Section 4.5 by
the dates set forth therein and ensure the availability of Active
Compounds and necessary information related thereto to enable Sanwa to
use such Active Compounds in preclinical and clinical studies as soon
as possible and (ii) identify the appropriate personnel, equipment and
other resources as necessary to allow Telik to diligently undertake a
[*] Lead Optimization Project. Subject to the following requirements
with respect to a [*] Lead Optimization Project, Telik shall ensure
[*] a [*] Lead Optimization Project that Telik shall undertake for
Sanwa pursuant to this Section 1.4. At any time during the term
hereof, Sanwa may request Telik to commence work on Preliminary Tasks
for a [*] Lead Optimization Project. In such case, Sanwa and Telik
will discuss and attempt in good faith to reach agreement on a work
plan and scheduling for, and Telik shall diligently undertake the
Preliminary Tasks necessary to commence, such [*] Lead Optimization
Project. For the avoidance of doubt, Telik will not be obligated to
undertake a [*] Lead Optimization Project unless and until (x) the
parties have agreed on a work plan and scheduling for such [*] Lead
Optimization Project and (y) Telik has received from Sanwa sufficient
funding to support such [*] Lead Optimization Project.
3.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
(c) For purposes of this Agreement,
(i) [*] means that Family of Compounds that includes, and
shall include, without limitation, the following: [*] and related
analogs and homologs ("Group 1"), [*] and related analogs and
homologs ("Group 2") and [*] and related analogs and homologs
("Group 3"); and
(ii) [*] means that certain Family of Compounds as
identified by [*] and related analogs and homologs.
(d) For purposes of this Agreement, the term "Family of
Compounds" shall mean Active Compounds that [*], and that can be
starting candidates for Lead Optimization Projects.
(e) For purposes of this Agreement, "Lead Optimization Project"
shall mean a series of studies which the RMC shall agree upon and
which, by way of example, includes identification and selection of
Advanced Lead Compounds with similar elements as those set forth in
Phase 1 of the Research Plan (as defined in the Collaboration
Agreement), and Selection of Clinical Candidates as set forth in Phase
2 of the Research Plan (as defined in the Collaboration Agreement),
and encompasses all of the [*], that are required until one or more
Active Compounds are discovered which Sanwa determines may be suitable
for use in clinical studies.
(f) For purposes of this Agreement, "Preliminary Tasks" shall
mean planning tasks, patent searches, review of relevant research
papers, trade publications and other materials, development of
scheduling and task lists and other preliminary tasks necessary for
the parties to develop a plan for and carry out a [*] Lead
Optimization Project.
E. A new Section 1.5 is hereby added to the TRAP Agreement as follows:
1.5 Third Party Targets.
(a) Except as otherwise may be agreed in writing by the parties,
Sanwa has the right to submit biological targets identified by third
parties to Telik as Selected Targets pursuant to this Agreement, and
shall submit such targets to Telik prior to Sanwa and any such third
party entering into an Approved Agreement ("Third Party Target").
(b) Sanwa shall submit all proposed Third Party Targets to Telik
as soon as reasonably possible under the circumstances relating to
such Third Party Target and Telik agrees to treat all such Third Party
Targets as Confidential Information for purposes of this Agreement.
(c) With respect to all agreements, including without limitation
screening agreements and commercialization and license agreements that
either Sanwa or Telik proposes to enter into relating to Third Party
Targets to be submitted as Selected Targets pursuant to this Agreement
("Proposed
4.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
Agreements") the party proposing to enter into such Proposed
Agreement shall provide the other party with information sufficient
to gauge the timeliness, extent and seriousness of the
commercialization effort related to compounds that may be discovered
as a result of the screening services performed by Telik pursuant to
this Agreement, without jeopardizing the transaction with the third
party to such Proposed Agreement and subject always to such third
party's written consent.
(d) Sanwa shall provide a draft of any Proposed Agreement
relating to the screening services to be provided by Telik pursuant to
Section 1.2 to Telik as soon as reasonably practicable, but in any
event prior to signature by Sanwa. All such drafts of such Proposed
Agreements and any Approved Agreement signed by Sanwa shall include
the text of the provisions set forth on Exhibit A attached hereto if
in English or, if such Proposed Agreements or Approved Agreement are
in Japanese, a Japanese translation of the text of the provisions set
forth on Exhibit A that shall be attached hereto as Exhibit A-1 after
preparation by Sanwa and approval by Telik, which approval shall not
be unreasonably withheld or delayed. Sanwa shall have the right,
subject to the obligation in Section 1.5(c) to redact the key
financial and commercial terms of all such Proposed Agreements. Sanwa
shall have no obligation to translate any draft Proposed Agreement.
Sanwa shall also provide Telik the opportunity to meet with each third
party signatory to a Proposed Agreement prior to Sanwa signing such
Proposed Agreement or any binding preliminary agreements, letters of
intent or the like.
(e) Telik shall promptly review and within [*] provide any
proposed revisions that Telik may have to all drafts of Proposed
Agreements provided by Sanwa to Telik pursuant to Section 1.5 (d) to
ensure that the provisions set forth on Exhibit A or Exhibit A-1 as
appropriate are embodied in such Proposed Agreement and that such
Proposed Agreement does not contain any terms that conflict with or
are inconsistent with the terms set forth on Exhibit A or Exhibit A-1
as appropriate. If (i) Telik does not provide Sanwa in writing with
such revisions to a Proposed Agreement within such [*] time period, or
(ii) Sanwa revises a Proposed Agreement to incorporate Telik's
proposed revisions directed solely to ensuring that the provisions set
forth on Exhibit A or Exhibit A-1 as appropriate are embodied in such
Proposed Agreement and that such Proposed Agreement does not contain
any terms that conflict with or are inconsistent with the terms set
forth on Exhibit A or Exhibit A-1 as appropriate , and Telik does not
reject Third Party Target pursuant to Section 1.3 hereof, then Sanwa
may sign such Proposed Agreement. Telik shall sign all Proposed
Agreements (a) as to which Telik has not rejected the Proposed Target
pursuant to Section 1.3, indicating that such Proposed Target is
acceptable to Telik and (b) which contain the provisions set forth on
Exhibit A or Exhibit A-1, as appropriate. A Proposed Agreement signed
by both Sanwa and Telik, or a Proposed Agreement signed by Sanwa
pursuant to the preceding sentence will constitute an "Approved
Agreement" for purposes of this Agreement. For the avoidance of doubt,
Sanwa's failure to incorporate any Telik proposed revisions that are
not directed solely to ensuring that the provisions set forth on
Exhibit A or Exhibit A-1, as appropriate,
5.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
are embodied in such Proposed Agreement and that such Proposed
Agreement does not contain any terms that conflict with or are
inconsistent with the terms set forth on Exhibit A or Exhibit A-1 as
appropriate shall not affect the treatment of such Proposed
Agreement as an Approved Agreement for purposes of this Agreement.
(f) Sanwa shall have [*] to make any payments to Telik as a
result of entering into or with respect to any Approved Agreement.
(g) Telik may, subject to the agreement of Sanwa regarding the
content and timing thereof and subject to the consent of the relevant
third party, issue a press release jointly with Sanwa announcing an
Approved Agreement. Sanwa shall not, and shall cause the relevant
third party not to issue a press release identifying Telik, TRAP, or
other proprietary Telik technology in any way without Telik's consent.
F. Sections 4.2, 4.3 and 4.4 shall be revised in their entirety to read
as follows:
4.2 Sanwa Territory. Sanwa will have the exclusive rights to exploit
the Joint Inventions and information concerning Active Compounds in
the Sanwa Territory including, without limitation, the right to grant
licenses to third parties to practice the Joint Inventions and develop
and commercialize Active Compounds, without any obligation [*]. For
purposes of this Section, "Sanwa Territory" shall mean Japan, Korea,
Taiwan, and the People's Republic of China.
4.3 Telik Territory. Telik will have exclusive rights to exploit the
Joint Inventions and information concerning Active Compounds in North
America and South America ("Telik Territory") including, without
limitation, the right to grant licenses to third parties to practice
the Joint Inventions and develop and commercialize Active Compounds,
without any obligation to make any payments to Sanwa with respect
thereto.
4.4 Joint Inventions. Sanwa and Telik will [*] revenues from the
exploitation of the Joint Inventions and information concerning Active
Compounds in the rest of the world, will consult with one another
prior to entering into any agreement therefore and will take
appropriate measures to assure [*] in each case. If either Sanwa or
Telik has the opportunity to enter into a world-wide agreement or an
agreement that would include, in the case of Telik countries outside
the Telik Territory, or in the case of Sanwa, countries outside the
Sanwa Territory to exploit in any manner all or any portion of the
Joint Inventions and information concerning the Active Compounds or,
in the case of Sanwa, which relates to a Third Party Target, then the
parties shall negotiate in good faith the terms applicable to such
agreement.
6.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
G. A new Section 4.5 is added to the TRAP Agreement as follows:
4.5 Patent Applications. Consistent with reasonable commercial
practice and contingent on receiving the necessary biological
information from Sanwa, Telik shall:
(a) Use commercially reasonable best efforts to apply for one or
more United States provisional patents for Group 1 by [*];
(b) Apply for at least one definitive United States patent
covered by the provisional patent described in (a) by [*];
(c) Use commercially reasonable best efforts to apply for one or
more United States provisional patents for Group 2 by [*];
(d) Apply for at least one definitive United States patent
covered by the provisional patent described in (c) by [*];
(e) Use commercially reasonable best efforts to apply for one or
more United States provisional patents for Group 3 by [*];
(f) Apply for at least one United States definitive patent
covered by the provisional patents described in (e) by [*].
H. Section 6.2 (f) is revised by amending the word "sublicensees" to read
"licensees, sublicensees...."
I. Article 8 is hereby deleted and replaced in its entirety by the
following:
8. ACCRUED RIGHTS; SURVIVING OBLIGATIONS.
8.1 Termination of this Agreement shall not affect any accrued
rights of either party. The terms of Articles 4, 6 and 9 shall
survive termination of this Agreement. Except to the extent
reasonably necessary to allow the Parties to exploit their
respective rights pursuant to Section 4, promptly after
termination of this Agreement, each party shall return or dispose
of any know-how or proprietary information of the other party
(including in the case of Telik know-how or other materials of
third party signatories of Approved Agreements) in accordance
with the instructions of the other party, including, without
limitation, any compounds, assays or other biological or chemical
materials.
2. Defined Terms; Incorporation. Unless otherwise expressly provided herein,
-----------------------------
defined terms used in this TRAP Third Amendment shall have the same meaning as
set forth in the TRAP Agreement, and all terms herein shall be incorporated into
the TRAP Agreement. From and after the Third Amendment Effective Date all
reference to the "TRAP Agreement" in all other documents delivered in connection
with the TRAP Agreement shall refer to the TRAP Agreement, as amended hereby.
7.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
3. Counterparts: Facsimile. This TRAP Third Amendment may be executed in
------------------------
counterparts and by facsimile.
IN WITNESS WHEREOF, the parties have executed this TRAP Third Amendment
effective as of the date first set forth above.
TELIK, INC. SANWA KAGAKU KENKYUSHO CO., LTD.
/s/ Michael M. Wick /s/ Keiji Tanimoto
---------------------------------- ----------------------------------------
By: Michael M. Wick, M.D. Ph.D. By: Keiji Tanimoto
Its: Chairman and CEO Its: President
8.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
EXHIBIT A
SKK shall cause the following provisions to be included in any Proposed
Agreements as described in Section 1.5(e), and the defined terms set forth in
the provisions below shall have the same meaning as ascribed to them in the
Screening Services Agreement. Where the term [Third Party] appears, SKK shall
substitute the name of the other party to the relevant Proposed Agreement.
"Restrictions on Use." Without prior written consent of SKK or Telik,
[Third Party] shall not use any of the Initial, Secondary or Tertiary
Compounds or any of the information to be provided by SKK to [Third Party]
relating to the identity of the Active Compounds for the relevant targets,
or the chemical structures of any Active Compounds, for any purposes except
as provided by this Agreement. This Section shall survive termination of
this Agreement."
"SHARING OF PROPERTY RIGHTS."
Ownership of Joint Inventions. [Third Party] acknowledges and agrees that
the rights to any data, inventions or discoveries (whether patentable or
not) which: (i) are related to Active Compounds that exhibit activity with
respect to the [Third Party] Target, and (ii) arise from the activities of
[Third Party], Telik or SKK during the term of or in connection with this
Agreement shall be jointly owned by SKK and Telik in accordance with the
provisions of that certain Screening Services Agreement entered into
between SKK and Telik on December 20, 1996, as amended ("Joint
Inventions").
Patent Applications. [Third Party] acknowledges and agrees that Telik shall
have the sole fight and obligation to file, prosecute and maintain all
patent applications and patents for the Joint Inventions. [Third Party]
shall cooperate with SKK and Telik in the registration, defense and
enforcement of intellectual property rights relating to the Joint
Inventions.
Survival. This Article shall survive termination of this Agreement."
Information Provided. [Third Party] represents and warrants that all
documentation and other information it has conveyed or provided under this
Agreement was, at the time it was conveyed or provided, accurate and
complete in light of the purposes for which it was intended."
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
1.
"CONFIDENTIAL INFORMATION"
Protection. Except to the extent expressly authorized by this Agreement or
otherwise agreed in writing, each Party shall for the term of this
Agreement and for [ * ] after its expiration or termination keep
confidential and not publish, otherwise disclose or use for any purpose
other than as provided for in this Agreement any Confidential Information
(defined below) furnished to it by the other Party, unless the receiving
Party can demonstrate by adequate written documentation that such
Confidential Information:
(a) was already known to the receiving Party, other than under an
obligation of confidentiality, at the time of disclosure;
(b) was generally available to the public or otherwise part of the public
domain at the time of its disclosure to the receiving Party;
(c) became generally available to the public or otherwise part of the
public domain after its disclosure and other than through any act or
omission of the receiving Party in breach of an obligation of
confidentiality;
(d) was disclosed to the receiving Party, other than under an obligation
of confidentiality to a third party, by a third party who had no
obligation to the disclosing Party not to disclose such information to
others; or
(e) was independently discovered or developed by the receiving Party
without the use of Confidential Information belonging to the
disclosing Party.
Authorized Disclosure. Each Party may disclose Confidential Information
belonging to the other Party to the extent such disclosure is reasonably
necessary in the following instances:
(a) filing or prosecuting patents relating to clinical candidates or,
licensed products;
(b) regulatory filings;
(c) prosecuting or defending litigation;
(d) complying with applicable governmental regulations;
(e) conducting preclinical or clinical trials of clinical candidates;
(f) disclosure to affiliates, employees, consultants, or agents each of
whom prior to disclosure must be bound by similar obligations of
confidentiality and non-use at least equivalent in scope to those set
forth in this Section __; and,
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
2.
(g) disclosure to investment bankers; provided, however, that no such
disclosure shall be made of SKK Confidential Information without its
written consent, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, in the event a Party is required to make a
disclosure of the other Party's Confidential Information pursuant to this
Section ---- it will, except where impracticable, give reasonable advance
notice to the other Party of such disclosure and use its best efforts to
secure confidential treatment of such information. In any event, the
Parties agree to take all reasonable action to avoid disclosure of
Confidential Information. For the avoidance of doubt, no provision in this
Agreement shall in any manner limit or restrict Sanwa's ability to disclose
to Telik any information conveyed to SKK by [Third Party] relating to any
data, inventions or discoveries (whether patentable or not) which are
related to Active Compounds and arise from the activities of [Third Party],
SKK or Telik during the term hereof.
Scope. In this Agreement, "Confidential Information" means any and all
knowledge, know-how, screening results, compound structures, practices,
processes, trade secrets and such other information as the disclosing Party
maintains as confidential.
Survival. This Article shall survive the expiration of this Agreement in
accordance with paragraph -- hereof."
"Entirety of Agreement." This Agreement embodies the entire, final and
complete agreement and understanding between the Parties and replaces and
supersedes all prior discussions and agreements between them with respect
to its subject matter except as expressly stated herein. No modification or
waiver of any terms or conditions hereof shall be effective unless made in
writing and signed by a duly authorized representative of each Party."
SKK shall have the option, exercisable in its reasonable discretion, to use any
one of the following three alternative provisions in any Proposed Agreement with
a Third Party:
Alternative 1:
"Assignment." Except as otherwise provided in this Section, neither Party
may assign its rights or obligations under this Agreement without the prior
written consent of the other Party, such consent not to be unreasonably
withheld, except that a Party may assign its rights or obligations to a
third party in connection with the merger, consolidation, reorganization or
acquisition of stock or assets affecting substantially all of the assets or
actual voting control of the assigning Party. This agreement shall be
binding upon the successors and permitted assigns of the Parties. Any
attempted delegation or assignment not in accordance with this Section
shall be of no force or effect."
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
3.
Alternative 2:
"Assignment." Except as otherwise provided in this Section, neither Party
may assign its rights or obligations under this Agreement without the prior
written consent of the other Party, such consent not to be unreasonably
withheld, except that SKK may assign its rights or obligations to a third
party in connection with the merger, consolidation, reorganization or
acquisition of stock or assets affecting substantially all of the assets or
actual voting control of SKK. This agreement shall be binding upon the
successors and permitted assigns of the Parties. Any attempted delegation
or assignment not in accordance with this Section shall be of no force or
effect."
Alternative 3:
"Assignment." Except as otherwise provided in this Section, neither Party
may assign its rights or obligations under this Agreement without the prior
written consent of the other Party. This agreement shall be binding upon
the successors and permitted assigns of the Parties. Any attempted
delegation or assignment not in accordance with this Section shall be of no
force or effect."
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
4.