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EXHIBIT 10.37
GPCR LICENSE AND USER AGREEMENT
THIS GPCR LICENSE AND USER AGREEMENT is made and entered into as of July 7,
2000, by and between 3-Dimensional Pharmaceuticals, Inc., a Delaware corporation
with an office at Eagleview Corporate Center, 665 Stockton Drive, Suite 104,
Exton, PA 19341 ("3DP"), and Bristol-Myers Squibb Company, a Delaware
corporation having a principal place of business at Route 206, P.O. Box 4000,
Princeton, New Jersey 08543 ("BMS"). 3DP and BMS may be referred to herein as a
"Party" or, collectively, as the "Parties."
BACKGROUND
WHEREAS, 3DP owns or controls certain proprietary rights and know-how relating
to certain GPCR Structures, GPCR Homology Models and related analysis
technologies; and
WHEREAS, 3DP has compiled and is compiling, and owns, certain information and
data regarding certain GPCR Structures and GPCR Homology Models in a proprietary
database which may be useful in the study of biological phenomena and design and
discovery of new pharmaceutical and diagnostic products; and
WHEREAS, BMS desires to obtain access to 3DP's Proteomica Database, and to
obtain certain licenses under certain of 3DP's proprietary rights and know-how,
to conduct research and development with respect to certain GPCR Structures that
have applicability in the development and commercialization of diagnostics and
pharmaceuticals.
NOW THEREFORE, in consideration of the covenants, representations and warranties
contained herein, and intending to be legally bound hereby, the Parties agree as
follows:
ARTICLE 1
DEFINITIONS
In addition to the capitalized terms defined throughout this Agreement, the
following terms when used herein shall have the respective meanings assigned to
them below:
1.1 "Access Term" means the period commencing on the commencement of
Contract Year One and ending on termination or expiration of this
Agreement, during which BMS shall have access to the Proteomica
Database under the terms and conditions of this Agreement.
1.2 "Affiliate" means, with respect to either Party, any corporation or
other business entity which controls, is controlled by, or is under
common control with such Party. A corporation or other entity shall be
regarded as in control of another corporation or other entity if it
owns or directly or indirectly controls at least 50% of the voting
stock or other ownership interest of the other corporation or entity
(or alternatively, if it owns the maximum such ownership interest
permitted by law), or if it possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies
of the corporation or other entity, or the
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
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power to elect or appoint at least 50% of the members of the governing
body of the corporation or other entity.
1.3 "Agreement" means this GPCR License and User Agreement including its
Exhibits, as may be amended from time to time.
1.4 "BMS Preferred Target List" means the list of GPCR targets set forth
as Exhibit B, as such list may be amended from time to time by BMS in
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its sole determination. While the GPCR targets [**] the content of
the BMS Preferred Target List, and that [**].
1.5 "BMS Site" means only (a) the BMS pharmaceutical research and
development facilities located in Lawrenceville, New Jersey, U.S.A.;
Hopewell, New Jersey, U.S.A.; Wallingford, Connecticut, U.S.A.;
Candiac, Quebec, Canada; (b) [**] in the United States, Canada or a
country in the European Union, [**] excepting [**] that has been [**],
and [**] prior to BMS having access to the Proteomica(TM) Database at
[**] and (c) [**] in the United States, Canada or a country in the
European Union [**] prior to BMS having access to the Proteomica(TM)
Database [**].
1.6 "Business Day" means any day, Monday through Friday, on which banking
institutions in New York, New York are open for business.
1.7 "Confidential Information" means all proprietary technical and/or
commercial information that has or could have commercial value or
other utility in a Party's business, or the unauthorized disclosure of
which could be detrimental to the Party's interests, including
information, inventions, know-how, data and materials relating to the
Database Information and shall include without limitation research,
technical, clinical development, manufacturing, marketing, financial,
personnel and other business information and plans, whether in oral,
written, graphic or electronic form, except to the extent that it can
be established by the Receiving Party (as defined in Section 7.4) that
such Confidential Information: (a) was already known to the Receiving
Party, other than under an obligation of confidentiality from the
Disclosing Party; (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
this Agreement; (d) was subsequently lawfully disclosed to the
Receiving Party by a Third Party; (e) can be shown by written records
to have been independently developed by the Receiving Party without
reference to the Confidential Information received from the Disclosing
Party (as defined in Section 7.4) and without breach of any of the
provisions of this Agreement; or (f) is information that the
Disclosing Party has specifically agreed in writing that the Receiving
Party may disclose. For the purposes of this Agreement, the BMS
Preferred Target List shall be presumed to be Confidential Information
of BMS and the Proteomica Database shall be presumed Confidential
Information of 3DP.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
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1.8 "Contract Year One" means the one year period commencing on the date
on which a Proteomica(TM) Database is installed at any BMS Site by 3DP
containing: (i) the [**] for at least [**] and (ii) an initial set of
at least [**] provided that BMS retains the right to accept [**] than
that defined as [**] in which case Contract Year One shall commence.
1.9 "Contract Year Three" means the one-year period commencing immediately
following the end of Contract Year Two.
1.10 "Contract Year Two" means the one-year period commencing immediately
following the end of Contract Year One.
1.11 "Control" or "Controlled" means possession of the ability to grant a
license or sublicense of any patent rights, Know-how or other
intangible rights as provided for herein without violating the terms
of any contract or other agreement with a Third Party.
1.12 "Database Information" means all or any part of the information
associated with individual GPCR Structures and GPCR Homology Models in
the Proteomica(TM) Database, but does not include [**] including, but
not necessarily limited to, [**].
1.13 "Documentation" means all documentation, technical manuals, operator
and user manuals, flow diagrams, file descriptions and other written
information describing the functions, operational characteristics and
specifications of the software associated with the Proteomica(TM)
Database, or explaining how to install, use maintain and/or support
the Proteomica(TM) Database, as the same may be provided by 3DP and
amended by 3DP from time to time in connection with its release of any
maintenance updates and upgrades. The Parties acknowledge that all or
part of such documentation may be electronic.
1.14 "Effective Date" means the later of: (a) date of this Agreement as set
forth above; or (b) the date on which all of the following documents
between the Parties have been executed: this Agreement, the 3DP PERT
Internal Use License and Option Agreement, the DiscoverWorks(TM)
Nonexclusive License and Purchase Agreement, and the DiscoverWorks
Drug Discovery Collaboration Agreement.
1.15 "GPCR" means G-Protein Coupled Receptor.
1.16 "GPCR Class" means a collection of one or more GPCR Sequences
comprising a distinct subfamily of the entire GPCR family of gene
products, as defined in Exhibit A, that uses a classification based on
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[**].
1.17 "GPCR Higher Resolution Structure" means a GPCR Structure refined
against a data set of [**].
1.18 "GPCR Homology Model" means a three-dimensional structure of a GPCR
that is defined by a set of atomic x, y, z coordinates derived from an
experimentally
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
3
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determined GPCR Structure, by comparison of the GPCR Sequence
associated with the experimentally determined GPCR Structure with a
Putative GPCR Sequence or different GPCR Sequence.
1.19 "GPCR Sequence" means the cDNA sequence that corresponds to the gene
for a GPCR that is characterized and defined by being the
physiological receptor for an endogenous ligand or exogenous compound.
1.20 "GPCR Structure" means a set of atomic x, y, z coordinates and (B)-
factors, in 3DP's Control, for an experimentally determined three-
dimensional structure of a gene product corresponding to a particular
GPCR Sequence, together with certain structure determination
statistics [**] to allow users the opportunity to access the quality
of such a GPCR Structure. GPCR Structure may be derived from, among
other things, the GPCR Sequence of a native ("apo-", unliganded) GPCR,
or of [**] of such GPCR. A GPCR Structure may also be derived from the
co-crystallization of such GPCR with a small molecule ligand or
another protein, from a post-translational modification of such GPCR,
or from the soaking of an apo-receptor crystal with a small molecule
ligand. A GPCR Structure will be determined from [**].
1.21 "GPCR Suite" means a collection of two or more GPCR Structures for a
particular GPCR that may preferably include representatives of the
following [**].
1.22 "Know-how" means unpatented technical and other information which is
not in the public domain relating to GPCR Structures in the Proteomica
Database, specifically limited to [**].
1.23 "Person" or "person" means any corporation, partnership, limited
liability company, joint venture, other entity or natural person.
1.24 "Proteomica Database" means 3DP's proprietary database containing
Database Information pertaining to one or more GPCR Structures for one
or more particular GPCRs and [**] GPCR Homology Models derived from
GPCR Structures.
1.25 "Putative GPCR Sequence" means a cDNA sequence that represents a gene
and, by virtue of sequence homology with cDNA sequences of known
GPCRs, is generally believed to express a gene product that is a
member of the GPCR family of gene products.
1.26 "Third Party" means any person or entity other than a Party.
1.27 "3DP Consulting Services" means 3DP's services to provide general
training in the use of the Proteomica(TM) Database and to provide
consultation to BMS at its request with regard to access and use of
data pertaining to particular GPCR Structures and GPCR Homology
Models.
1.28 "3DP Interfaces" means the software that provides (a) the content and
aggregation interface for the Proteomica(TM) Database (used in
conjunction with external browser software) and the functional modules
incorporated therein, (b) the associated analytic and data processing
engines used to process and analyze
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
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the data, (c) the ad-hoc query tool, and (d) any maintenance updates
and upgrades developed, created or owned by 3DP during the term of
this Agreement and provided to BMS.
ARTICLE 2
OWNERSHIP; ACCESS TO THE PROTEOMICA DATABASE.
2.1 Access Grant. 3DP hereby grants to BMS and its Affiliates a non-
transferable, royalty-free, non-exclusive license, without the right
of sublicense, to have installed, use, execute and access the
Proteomica(TM) Database at BMS Sites solely for the purpose of BMS's
internal research use in the Field (which shall be deemed to include
any research and development activities being undertaken [**] for the
Access Term. In furtherance of this access grant, and in no event
later than the commencement of Contract Year One, 3DP shall provide
the Proteomica(TM) Database to BMS in machine readable form and the
then-current Know-how and Documentation.
2.2 Inclusion of GPCR Structures in Proteomica(TM) Database. Upon the
commencement of Contract year One: (a) from time to time, [**] GPCR
structures except those obtained through collaborations with Third
Parties, [**] shall be included in the Proteomica(TM) Database that is
accessible to BMS, and at such time 3DP will provide BMS [**] (b) in
the event that 3DP solves any GPCR Structure [**] with or without a
ligand [**] 3DP shall include such GPCR Structure in the
Proteomica(TM) Database within [**] of 3DP solving such GPCR
Structure, and at such time 3DP will provide BMS with [**] and (c) in
the event that [**] 3DP shall use all reasonable efforts [**] and 3DP
shall [**] include such GPCR Structures in the Proteomica(TM) Database
installed at BMS. 3DP shall provide to BMS, reasonably upon BMS'
request, [**].
2.3 Ownership of Proteomica(TM) Database. BMS hereby acknowledges that (a)
3DP has expended significant resources and efforts to develop the
Proteomica(TM) Database and the Database Information, (b) the
Proteomica(TM) Database represents a highly valuable and confidential
asset, and is a principal product of 3DP, (c) 3DP is willing to grant
BMS access to the Proteomica(TM) Database in reliance upon the
assurance by BMS that it shall use all reasonable efforts (including
not less than those efforts that BMS uses to protect its own
confidential information of like character) to protect the
Proteomica(TM) Database from unauthorized disclosure and use at each
BMS Site, and (d) the Proteomica(TM) Database is, and at all times
during the term of this Agreement shall remain, the sole and exclusive
property of 3DP.
2.4 Use at a BMS Site.
2.4.1 While 3DP anticipates that access to the Proteomica(TM)
Database shall be accomplished over extranet or other secure
internet access, if the Proteomica(TM) Database is installed
at any BMS Site, then the Proteomica(TM) Database shall only
be installed at the BMS Sites on designated 3DP approved
client computers, such approval not to be unreasonably
withheld or delayed.
2.4.2 BMS will install the Proteomica(TM) Database on approved
computers in a manner, and taking such security measures and
back-up procedures, as BMS uses internally for its own
internally-developed proprietary software and information
control.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
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2.4.3 All Proteomica(TM) Database access shall be consistent with
the terms set forth in Exhibit C.
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2.5 Use Restrictions. Except as permitted under Section 2.1 and 2.3:
2.5.1 BMS shall have the right to use the Proteomica(TM) Database
and Database Information solely for its own internal use by
Authorized Personnel of BMS and not as any part of providing
separate services or sublicenses to any Third Party
(including, without limitation, providing, directly or
indirectly, the same or similar services to any Third
Party). Such use shall only take place at a BMS Site in
accordance with the terms and conditions of this Agreement
for the Access Term. "Authorized Personnel" shall refer to
BMS employees, BMS temporary employees and BMS consultants
who have signed an agreement with BMS in which such person
acknowledges such person's obligation to protect the
Proteomica(TM) Database and Database Information.
2.5.2 BMS shall have no access to or right to use the
Proteomica(TM) Database except at any BMS Site under the
terms and conditions of this Agreement.
2.5.3 Except as otherwise agreed by 3DP in writing, and except as
provided in Section 2.5.4, BMS shall not (i) reverse
engineer, decompile, disassemble, re-engineer or otherwise
recreate or permit or assist others to recreate the
Proteomica(TM) Database or its structural framework or
distribute copies (by any means whatsoever whether now known
or hereafter invented) of the Proteomica(TM) Database,
including any substantial portion of the Database
Information from any field of the database, for any purpose
except as expressly permitted under this Agreement; (ii)
develop any products for commercial sale that are the same
or similar to the Proteomica(TM) Database and (iii) except
through the use of 3DP personnel, BMS shall not modify,
enhance or otherwise change the Proteomica(TM) Database.
2.5.4 BMS retains the right to create for its internal use
databases of protein structures that may include GPCR
structures. Any GPCR structures that have been obtained
through the Proteomica(TM) Database will be treated under
the same conditions of confidentiality.
2.5.5 BMS shall comply with all other use restrictions contained
in Exhibit C. Exhibit C shall be prepared by, and reasonably
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agreed upon, the Parties, and appended to this Agreement, as
soon as reasonably necessary prior to the first installation
of the Proteomica(TM) Database at a BMS Site.
2.6 Third Party Components. Unless stated otherwise and agreed to by the
Parties in writing, 3DP shall be responsible for securing all licenses
required from Third Parties for the incorporation of Third Party
Software Components for use in
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
6
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conjunction with the Proteomica(TM) Database, and for paying all
license and other fees in connection therewith. As used herein, "Third
Party Software Components" means Third Party software tools that 3DP
either licenses in or otherwise approves for inclusion in the
Proteomica(TM) Database.
2.7 Loss, Theft, Unauthorized Disclosure or Use. BMS promptly shall notify
3DP of any loss, theft or unauthorized disclosure or use of the
Proteomica(TM) Database or the Database Information that comes to
BMS's attention.
2.8 3DP Retained Rights. Any rights of 3DP not expressly granted to BMS
under the provisions of this Agreement shall be retained by 3DP.
2.9 Pre-Release Prior to Publication of BMS GPCR Structures. In the event
that BMS intends to publish any GPCR Structures solved by BMS, BMS
shall make such GPCR Structures available to 3DP for inclusion in the
Proteomica(TM) Database as soon as reasonably practicable and in no
event later than [**] prior to any public release of such GPCR
Structures by BMS under Section 7.3. [**]
ARTICLE 3
PROGRAM DIRECTORS; DEVELOPMENT PROTEOMICA(TM) DATABASE
3.1 Program Directors.
3.1.1 Upon commencement of the Access Term, each Party will
provide the other, in writing, with the name of its "Program
Director." The Program Directors will act as the primary
liaison in coordinating the activities under this Agreement.
3.1.2 The Program Directors will serve to (i) oversee and
coordinate the installation and usage of the Proteomica(TM)
Database at the BMS Sites; (ii) monitor adherence to the
user terms and conditions set forth in this Agreement; and
(iii) require all employees and consultants who have access
to the Proteomica(TM) Database at a BMS Site to execute, and
monitor adherence to, the user terms and conditions set
forth in Exhibit C.
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3.1.3 The Program Directors shall meet with such frequency and at
such time and location as may be reasonably necessary to
accomplish installation of and access to the Proteomica(TM)
Database.
3.1.4 Each Party shall bear the costs and expenses of its
respective Program Director.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
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3.2 Proteomica(TM) Database Development. 3DP shall use commercially
reasonable efforts to develop the Proteomica(TM) Database in a manner
reasonably consistent with the following three year development
program:
3.2.1 In Contract Year One, 3DP will use commercially reasonable
efforts to constitute the first GPCR Suite, add additional
GPCR Structures and/or GPCR Suites, and increase the number
of GPCR Homology Models in the Proteomica(TM) Database.
3.2.2 In Contract Year Two, 3DP will use commercially reasonable
efforts to [**] and the number of GPCR Structures, GPCR
Suites and GPCR Homology Models in the Proteomica(TM)
Database.
3.2.3 In Contract Year Three, 3DP will use commercially reasonable
efforts to [**] and to enhance the number of GPCR
Structures, GPCR Suites and GPCR Homology Models in the
Proteomica(TM) Database and specifically [**].
3.2.4 3DP shall have sole discretion in all development decisions
relating to the Proteomica(TM) Database; provided, however,
3DP shall work with BMS and other subscribers of the
Proteomica(TM) Database to obtain meaningful input regarding
the further development of the Proteomica(TM) Database, in
terms of the choice of both GPCR Structures and GPCR
Homology Models.
3.3 Testing During the Course of the Proteomica(TM) Development Program.
BMS acknowledges that the 3DP Interface provided under this Agreement
may be pre-commercial release Beta versions, and that BMS's access may
be to a developmental test site for the Proteomica(TM) Database.
3.4 Installation. At dates and times mutually acceptable, 3DP agrees to
provide BMS with on-site access to the Proteomica(TM) Database at the
BMS Sites.
ARTICLE 4
PROTEOMICA DATABASE MAINTENANCE AND SUPPORT SERVICES
4.1 General Obligation. 3DP shall use commercially reasonable efforts to
provide BMS with maintenance and support services for the
Proteomica(TM) Database all as specified in this Article 4
("Maintenance and Support Services").
4.2 Correction of Nonconformities. BMS shall promptly notify 3DP, in
writing or by telephone (confirmed in writing), of any nonconformity
in the 3DP Interfaces. 3DP will respond to and correct any confirmed
nonconformities in the 3DP Interfaces within a reasonable time and as
prioritized by the Program Directors.
4.3 Maintenance Updates. 3DP shall provide BMS with any known solutions to
problems occurring with the 3DP Interfaces, including, without
limitation, any maintenance updates, at the time 3DP first releases
corresponding solutions and maintenance updates for 3DP Interface. BMS
agrees to accept all solutions and installations of maintenance
updates.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
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4.4 Training and Consulting Services. 3DP shall provide up to an aggregate
of [**] of (i) training and support services to qualified BMS
personnel during [**] pertaining to the operation and support of the
Proteomica(TM) Database, at no additional charge to BMS, and (ii)
Consulting Services (pursuant to Article 5). Any such training and
support will be provided at such times and in such places and in such
form as may be mutually agreeable to the Parties.
4.5 Remote Access. If necessary, each Party shall provide the other with
reasonable access, via modem, the Internet or some other remote
communications method mutually agreed-upon by the Parties, to such
Party's development, data and/or application servers for the sole and
limited purpose of assisting the other Party in fulfilling its
obligations under this Agreement. Said access shall be subject to
each Party's reasonable standards and procedures for the security of
computer systems and data.
4.6 Reuse of Developed Code. 3DP shall be free, at any time, to
incorporate software code written by 3DP in the course of implementing
the Proteomica(TM) Database in any product, including a standard
Proteomica(TM) Database, or a customized or modified version thereof.
No compensation shall be due to BMS for any such reuse of software
code written by 3DP in performing services for BMS hereunder.
ARTICLE 5
3DP CONSULTING SERVICES
5.1 Performance of Consulting Services. In addition to the training and
support services provided in Section 4.4, 3DP will provide BMS with
3DP Consulting Services as specifically set forth in work orders
agreed to in writing by the Parties and attached hereto from time to
time (each, a "Work Order"). Such Work Orders shall specify, at a
minimum, the scope of work to be performed, the timeline, any 3DP
Consulting Services' deliverables, any BMS participation or inputs
required, and fees due from BMS for such 3DP Consulting Services. 3DP
shall use commercially reasonable efforts to complete performance of
the relevant 3DP Consulting Services on or before the targeted date(s)
for completion set forth in the timeline.
5.2 Provision of 3DP Services. All 3DP Consulting Services required to be
delivered by 3DP to BMS under any Work Order shall be delivered to BMS
as specified in the applicable Work Order or as otherwise mutually
agreed to by the Parties in writing.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
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ARTICLE 6
FEES AND PAYMENTS
6.1 User Fees and Expenses. BMS will pay 3DP an "Annual User Fee" for
access to the Proteomica(TM) Database at BMS Sites described in
Sections 1.5(a) and 1.5(b), in accordance with the following schedule:
6.1.1 Within thirty (30) days of the Effective Date: $1,500,000
(U.S.)
6.1.2 Upon the commencement of Contract Year Two:
(a) [**] (U.S.) if the Proteomica(TM) Database contains at
least one GPCR Suite, or [**] or one additional GPCR
Structure[**].
(b) [**] (U.S.) if the Proteomica(TM) Database does not
contain at least one GPCR Suite, or [**] or one
additional GPCR Structure [**].
6.1.3 Upon the commencement of Contract Year Three:
(a) [**] (U.S.), if the Proteomica(TM) Database contains
[**] GPCR Suites, such that each GPCR Suite relates to
a different GPCR Sequence, and contains [**], with the
[**] structures being [**] or
(b) [**], if the Proteomica(TM) Database contains at least
[**] GPCR Suites containing [**] including at least
[**]; or
(c) [**] (U.S.), if the Proteomica(TM) Database contains at
least [**] GPCR Suites (containing any GPCR
Structures), [**] or
(d) If the Proteomica(TM) Database does not contain GPCR
Suites or GPCR Structures which meet any of the
foregoing, then [**].
(e) In the event that the criteria set forth in clauses (a)
through (c) have not been met at the commencement of
Contract Year Three, but are thereafter met during
Contract Year Three, BMS shall pay the difference
between the amount paid at the time of the commencement
of Contract Year Three and the amount that would have
been due to 3DP if the criteria that is met during
Contract Year Three had been met at the commencement of
Contract Year Three.
6.1.4 Any payment to be made pursuant to Section 6.1.2 or 6.1.3
shall be due within thirty (30) days after the commencement
of Contract Year Two or Contract Year Three, as the case may
be.
6.2 Additional Site Fees. BMS will pay to 3DP an "Annual User Fee" for
access to the Proteomica(TM) Database at any BMS Site described in
Section 1.5(c) of [**] if BMS identifies such BMS Site during the
First Contract Year, and [**] of the then-current fee, according to
the provisions of Section 6.1.2 or Section 6.1.3, respectively, if BMS
identifies such BMS Site during Contract Year Two or Contract Year
Three. BMS shall make such payment to 3DP within 30 days of
identifying such BMS Site to 3DP, according to the provisions of
Section 1.5.
6.3 Additional Fees.
6.3.1 Maintenance and Support Fees. BMS will be responsible for
the expenses of 3DP personnel engaged in any training and
support or 3DP Consulting Services provided under this
Agreement.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
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6.3.2 Installation/Integration Fees. BMS will be responsible for
the expenses associated with additional installations
required for BMS for the Proteomica(TM) Database after the
initial installation at each BMS
Site.
6.4 Mode of Payment. All payments to 3DP hereunder shall be made by wire
transfer of United States Dollars in the requisite amount to such bank
account as 3DP may designate by notice to BMS. Payments shall be free
and clear of any taxes, fees or charges, to the extent applicable.
6.5 Late Payments. All amounts payable by BMS hereunder, shall be paid by
BMS to 3DP in full, without any right of set-off or deduction. BMS
shall pay interest on all amounts past due at the rate of one percent
(1%) over the prime rate of interest reported in The Wall Street
Journal for the date such amount was due.
6.6 Taxes. Each Party shall pay all sales, use, personal property, and
other similar taxes associated with the license rights granted and/or
services provided to such Party hereunder, except taxes based on the
other Party's gross or net income, net worth or assets, which shall be
the sole responsibility of such other Party. If either Party claims an
exemption from any applicable sales or use taxes, the Parties shall
cooperate with each other, including, without limitation, in the
filing of appropriate certificates of tax exemption, (i) to ensure
that any withholding payments required to be made by the other Party
are reduced to the fullest extent permitted by law, and (ii) to seek
credit for withholding payments previously made by such other Party.
6.7 Most Favored Provision. Upon the commencement of Contract Year One and
until the expiration or termination of this Agreement, if 3DP enters
into an agreement with a Third Party and such agreement provides for
[**] on more favorable financial terms than are applicable to BMS
hereunder, then 3DP agrees to apply those more favorable financial
terms to BMS for the remainder of the term of the Agreement. 3DP shall
promptly notify BMS in writing if it has executed such an agreement,
[**].
ARTICLE 7
PUBLICATION; CONFIDENTIALITY
7.1 Notification. Each Party recognizes that the other Party may wish to
publish the results of its work relating to GPCR Structures. However,
each Party also recognizes the importance of preserving the
proprietary nature of these GPCR Structures. Consequently, any
proposed publication relating to GPCR Structures by either Party shall
comply with this Section 7. At least 90 days before a manuscript is
to be submitted to a publisher, the publishing Party will provide to
the nonpublishing Party with a copy of the manuscript and any GPCR
Structures disclosed therein. If the publishing Party wishes to make
an oral presentation, it will provide the other Party with a copy of
the abstract (if one is submitted) at least 60 days before it is to be
submitted. The publishing Party will also provide to the other Party
a copy of the text of the presentation, including all slides, posters,
and any other visual aids, at least 60 days before the presentation is
made.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
11
<PAGE>
7.2 Review of Proposed Publications. The other Party will review the
manuscript, abstract, text or any other material provided under
Section 7.1 to determine if any confidential or proprietary
information is being disclosed, then the Parties will consult to
arrive at an agreement on mutually acceptable modifications to the
proposed publication to avoid such disclosure.
7.3 GPCR Structure Disclosure. If either Party is required to submit the
GPCR Structure coordinates to a public database as a condition of
publication, then such party shall subject such submission to a [**]
BMS shall not otherwise distribute such GPCR Structure coordinates
publicly or privately. 3DP shall not otherwise distribute such GPCR
Structure coordinates publicly, but may make them available as part of
the Proteomica(TM) Database to other parties [**].
7.4 Confidentiality Obligations. The Parties agree that, for the term of
this Agreement and for 10 years thereafter, either Party that receives
Confidential Information (a "Receiving Party") from the other Party (a
"Disclosing Party") shall keep, and shall ensure that its officers,
directors and employees keep, completely confidential and shall not
publish or otherwise disclose and shall not use for any purpose
(except as expressly permitted hereunder) any Confidential Information
furnished to it by the Disclosing Party pursuant to this Agreement
(including, without limitation, know-how).
7.5 Written Assurances and Permitted Uses of Confidential Information.
7.5.1 The Receiving Party may disclose Confidential Information to
the extent the Receiving Party is compelled to disclose such
information by a court or other tribunal of competent
jurisdiction; provided however, that in such case the
Receiving Party shall immediately give notice to the
Disclosing Party so that the Disclosing Party may seek a
protective order or other remedy from said court or
tribunal. In any event, the Receiving Party shall disclose
only that portion of the Confidential Information that, in
the opinion of its legal counsel, is legally required to be
disclosed and will exercise reasonable efforts to ensure
that any such information so disclosed will be accorded
confidential treatment by said court or tribunal.
7.5.2 The existence and the terms and conditions of this Agreement
which the Parties have not specifically agreed to disclose
pursuant to this Section 7.5 shall be treated by each Party
as Confidential Information of the other Party.
7.5.3 If a Party is required to make any disclosure of the other
Party's Confidential Information, it will give at least
thirty (30) days written, advance notice to the latter Party
of such disclosure requirement. If a Party is required to
disclose Confidential Information to comply with applicable
laws or governmental regulations, including but not limited
to submitting information to tax authorities or to comply
with any discovery or similar request for production of
documents in litigation or similar alternative dispute
resolution proceedings, such Party may make such disclosure
provided it gives prompt notice to the other Party, and
provided it makes all reasonable efforts to comply with all
administrative or other
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
12
<PAGE>
procedures or to establish a reasonable protective or
similar order under which the confidential nature of the
information will be maintained.
7.6 Permitted Disclosures for Business Development Purposes.
Notwithstanding the foregoing, or any other provision in this
Agreement to the contrary, 3DP may describe the financial terms of
this Agreement in confidence, in connection with capital raising or
financing activities; provided, however, any such recipient of such
Confidential Information shall agree in writing to keep such terms
confidential for the same time periods and to the same extent as 3DP
is required to keep Confidential Information confidential under this
Agreement. Furthermore, BMS acknowledges that 3DP may be obligated to
disclose terms of this Agreement and make public a copy of this
Agreement in the event it files a registration statement with respect
to its shares or it becomes a public company as required by applicable
U.S. law; provided however, the terms of this Agreement and the copy
submitted to the applicable governmental agency shall be redacted such
that the extent of any such disclosure shall be limited to that which
in the opinion of 3DP's and BMS's legal counsel is legally required to
be disclosed.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
8.1 Authority. Each Party represents and warrants that as of the Effective
Date it has full right, power and authority to enter into this
Agreement, this Agreement has been duly executed by such Party and
constitutes a legal, valid and binding obligation of such Party,
enforceable in accordance with its terms.
8.2 No Conflicts. Each Party represents and warrants that the execution,
delivery and performance of this Agreement does not conflict with, or
constitute a breach or default under any of its charter or
organizational documents, any law, order, judgment or governmental
rule or regulation applicable to it, or any material agreement,
contract, commitment or instrument to which it is a Party.
8.3 Disclaimer of Warranties. 3DP MAKES NO REPRESENTATIONS AND EXTENDS NO
WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH
RESPECT TO THE PROTEOMICA(TM) DATABASE OR THE DATABASE INFORMATION
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
8.4 Warranties Repeated at Installation. The representations and
warranties set forth in this Article 8 shall be true and correct on
the Effective Date, as well as on the date of installation of the
Proteomica(TM) Database.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
13
<PAGE>
ARTICLE 9
DISPUTE RESOLUTION
9.1 Dispute Resolution. Any dispute concerning or arising out of this
Agreement or concerning the existence or validity hereof, shall be
determined by the following procedure:
9.1.1 Both Parties understand and appreciate that their long term
mutual interest will be best served by affecting a rapid and
fair resolution of any claims or disputes which may arise out
of services performed under this Agreement or from any dispute
concerning the terms of this Agreement. Therefore, both Parties
agree to use their best efforts to resolve all such disputes as
rapidly as possible on a fair and equitable basis. Toward this
end, both Parties agree to develop and follow a process for
presenting, rapidly assessing, and settling claims on a fair
and equitable basis that takes into account the precise subject
and nature of the dispute.
9.1.2 If any dispute or claim arising under this Agreement cannot be
readily resolved by the Parties pursuant to the process
described above, then the Parties agree to refer the matter to
a panel consisting of the Chief Executive Officer ("CEO") of
3DP and the Senior Vice President of Early Discovery and
Applied Technology for BMS, or a comparable position selected
by either Party from time to time, for review and a non-binding
resolution. A copy of the terms of this Agreement, agreed upon
facts (and areas of disagreement), and concise summary of the
basis for each side's contentions will be provided to both such
officers who shall review the same, confer, and attempt to
reach a mutual resolution of the issue.
9.1.3 If the matter has not been resolved utilizing the foregoing
process, and the Parties are unwilling to accept the non-
binding decision of the indicated panel, either or both Parties
may elect to pursue definitive resolution through binding
arbitration, which the Parties agree to accept in lieu of
litigation or other legally available remedies (with the
exception of injunctive relief where such relief is necessary
to protect a Party from irreparable harm pending the outcome of
any such arbitration proceeding). Binding arbitration shall be
settled in accordance with the Commercial Arbitration Rules of
the American Arbitration Association by a panel of three
arbitrators chosen in accordance with these Rules. This
Agreement shall be governed by and construed in accordance with
the substantive laws of the State of Delaware without regard to
the conflicts of laws provisions of Delaware. The arbitration
will be held in Wilmington, Delaware. Judgment upon the award
rendered may be entered in any court having jurisdiction and
the Parties hereby consent to the said
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
14
<PAGE>
jurisdiction and venue, and further irrevocably waive any
objection which either Party may have now or hereafter to the
laying of venue of any proceedings in said courts and to any
claim that such proceedings have been brought in an
inconvenient forum, and further irrevocably agree that a
judgment or order in any such proceeding shall be conclusive
and binding upon the Parties and may be enforced in the courts
of any other jurisdiction.
ARTICLE 10
TERM AND TERMINATION; SURVIVAL
10.1 Term. The term of the Agreement shall be from the Effective Date until
the expiration of Contract Year Three. Within six (6) months prior to
the expiration date, the Parties will negotiate in good faith to
provide BMS continued access to the Proteomica(TM) Database; such
negotiations will be based on the then prevailing pricing structure
for customer access to the Proteomica(TM) Database.
10.2 For Any Reason. Subject to the provisions of Section 10.3, BMS may
terminate this Agreement for any reason by providing sixty (60) days
written notice after the beginning of Contract Year Two.
10.3 Return of Confidential Information. Upon termination prior to
expiration of the term of this Agreement:
10.3.1 If the termination occurs before the receipt of payment under
Section 6.1.2, then BMS must return or destroy any Confidential
Information received from 3DP over the course of the term of
the Agreement and return the Proteomica(TM) Database and any
related Confidential Information.
10.3.2 If the termination occurs after the receipt of payment under
Section 6.1.2, then BMS may either:
10.3.2.1 return or destroy any Confidential Information
received from 3DP over the course of the term of the
Agreement and return the Proteomica(TM) Database and
any related Confidential Information, or
10.3.2.2 return any Confidential Information received from 3DP
over the course of the term of the Agreement which is
not part of the Proteomica(TM) Database [**] but keep
the then current copy of the Proteomica(TM) Database,
and [**].
10.3.3 In either event, upon termination or expiration of
this Agreement, BMS shall thereafter continue to have
all rights to [**] obtained by BMS under this
Agreement during the Access term.
10.4 Termination for Material Breach. The failure by a Party to comply with
any of the material obligations contained in this Agreement shall
entitle the other Party to give written notice to have the default
cured. If such default (i) is not cured within 60 days after the
receipt of such notice or (ii) is not susceptible to cure within 60
days after receipt of such notice (unless such default, by its nature,
is incurable, in which case the Agreement may be terminated
immediately upon
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
15
<PAGE>
written notice) or (iii) diligent steps are not taken to cure if by
its nature such default could not be cured within 60 days, the
notifying Party shall be entitled, without prejudice to any of its
other rights conferred on it by this Agreement, and in addition to any
other remedies that may be available to it, to terminate this
Agreement. Such rights to terminate will be in addition to, and
without prejudice to the exercise of, any other remedies available in
law or equity.
10.5 Insolvency or Bankruptcy.
10.4.1 Either Party may, in addition to any other remedies available
by law or in equity, terminate this Agreement by written
notice to the other Party in the event the latter Party shall
have become insolvent or bankrupt, or shall have an assignment
for the benefit of its creditors, or there shall have been
appointed a trustee or receiver of the other Party or for all
or a substantial part of its property or any case or
proceeding shall have been commenced or other action taken by
or against the other Party in bankruptcy or seeking
reorganization, liquidation, dissolution, winding-up,
arrangement or readjustment of its debts or any other relief
under any bankruptcy, insolvency, reorganization or other
similar act or law of any jurisdiction now or hereafter in
effect, or there shall have been issued a warrant of Exhibit,
execution, restraint or similar process against any
substantial part of the property of the other Party, and any
such event shall have continued for 90 days undismissed,
unbonded and undischarged.
10.4.2 All rights and licenses granted under or pursuant to this
Agreement by BMS or 3DP are, and shall otherwise be deemed to
be, for purposes of Section 365(n) of the U.S. Bankruptcy
Code, licenses of right to "Intellectual Property" as defined
under Section 101 of the U.S. Bankruptcy Code. The Parties
agree that the Parties as licensees of such rights under this
Agreement, shall retain and may fully exercise all of their
rights and elections under the U.S. Bankruptcy Code. The
Parties further agree that, in the event of the commencement
of a bankruptcy proceeding by or against either Parties under
the U.S. Bankruptcy Code, the Parties hereto which is not a
Party to such proceeding shall be entitled to a complete
duplicate of (or complete access to, as appropriate) any such
intellectual property and all embodiments of such intellectual
property, and same, if not already in their possession, shall
be promptly delivered to them (i) upon any such commencement
of a bankruptcy proceeding upon their written request
therefor, unless the Party subject to such proceedings elects
to continue to perform all of their obligations under this
Agreement or (ii) if not delivered under (i) above, upon the
rejection of this Agreement by or on behalf of the Party
subject to such proceeding upon written request therefor by a
nonsubject Party.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
16
<PAGE>
10.6 No Waiver. The right of a Party to terminate this Agreement shall not
be affected in any way by its waiver or failure to take action with
respect to any prior default.
10.7 Survival of Obligations. The termination or expiration of this
Agreement shall not relieve the Parties of any obligations accruing
prior to such termination, and any such termination shall be without
prejudice to the rights of either Party against the other. The
provisions of Article 7, Section 8.3, Article 9, Section 10.6, Section
10.7, Article 11 and Article 12 (except Section 12.5) shall survive
any expiration or termination of this Agreement.
ARTICLE 11
INDEMNIFICATION
11.1 Direct Indemnity. Each Party (the "indemnifying Party") shall
indemnify and hold the other Party, its trustees, officers, agents,
and employees (the "indemnified Parties"), harmless from and against
all losses, liabilities, damages and expenses (including attorney's
fees and costs) arising out of a breach of the indemnifying Party's
warranties or out of the negligence or willful misconduct of the
indemnifying Party in connection with activities under this Agreement
except to the extent such losses, liabilities, damages and expenses
(including attorney's fees and costs) resulted from the negligent or
willful misconduct of the indemnified Party. BMS acknowledges and
agrees that, with respect to the nature of the Proteomica(TM)
Database, there may be no adequate remedy at law for any breach of
BMS's obligations under the security provisions of this Agreement,
that any such breach may result in irreparable harm to 3DP, and
therefore, that upon any such breach, 3DP may be entitled to seek
appropriate equitable relief in addition to whatever remedies it might
have at law, including injunctive relief, specific performance or such
other relief as 3DP may request to enjoin or otherwise restrain any
act prohibited hereby, as well as the recovery of all costs and
expenses, including attorneys' fees incurred. 3DP shall be entitled to
indemnification by BMS from any losses, liabilities, damages and
expenses (including attorneys' fees and costs), in connection with
such unauthorized use or release of Confidential Information of 3DP.
3DP shall be entitled to indemnification by BMS from any losses,
liabilities, damages and expenses (including attorneys' fees and
costs) in connection with any Third Party infringement action arising
with respect to the Database Information as it may pertain to BMS's
use of such Database Information. BMS shall be entitled to
indemnification by 3DP from any losses, liabilities, damages and
expenses (including attorneys' fees and costs) in connection with any
Third Party infringement action arising with respect to BMS's use of
the Proteomica(TM) Database as it may pertain to claims that the
Proteomica(TM) Database infringes such Third Party's proprietary
rights.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
17
<PAGE>
11.2 Procedure. Upon the assertion of any such claim or suit, the
indemnified Party shall promptly notify the indemnifying Party thereof
and shall permit the indemnifying Party to assume direction and
control of the defense of the claim (including the selection of
counsel and the sole right to settle it at the sole discretion of the
indemnifying Party, provided that such settlement does not impose any
material obligation on the indemnified Parties), and shall cooperate
as requested (at the expense of the indemnifying Party) in the defense
of the claim.
ARTICLE 12
MISCELLANEOUS
12.1 Entire Agreement. This Agreement, and the DiscoverWorks(TM) Drug
Discovery Collaboration Agreement, the DiscoverWorks(TM) Non-exclusive
License and Purchase Agreement and the PERT Internal Use License and
Option Agreement all entered into simultaneously with this Agreement,
and each of the Exhibits thereto constitute and contain the entire
understanding and agreement of the Parties respecting the subject
matters of these respective Agreement and cancels and supersedes any
and all prior negotiations, correspondence, understandings and
agreements between the Parties, whether oral or written, regarding
such subject matters.
12.2 Further Actions. Each Party agrees to execute, acknowledge and deliver
such further instruments and to do all such other acts as may be
necessary or appropriate in order to carry out the purposes and intent
of this Agreement.
12.3 Binding Effect. This Agreement and the rights granted herein shall be
binding upon and shall inure to the benefit of 3DP, BMS and their
permitted assigns.
12.4 Assignment. Neither Party shall assign this Agreement without the
prior written consent of the other Party; provided, however, that
either Party may assign this Agreement without the prior written
consent of the other Party in connection with the sale or transfer of
substantially all of its assets that relate to this Agreement, or in
the event of its merger or consolidation or change of control or
similar transaction. Any permitted assignee shall assume all
obligations of its assignor under this Agreement.
12.5 Restrictions on Unsolicited Activities. In consideration of the
licenses granted hereunder, BMS agrees that for the term of this
Agreement, without the prior written consent of the board of directors
of 3DP, neither BMS nor any of its respective Affiliates (including
any person or entity directly or indirectly, through one or more
intermediaries, controlling one of these entities, or controlled by
one of these entities or under common control with one of these
entities) will (i) purchase, offer or agree to purchase, or announce
an intention to purchase, directly or indirectly, any securities or
assets of 3DP; (ii) make, or in any way
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
18
<PAGE>
participate, directly or indirectly, in any "solicitation" of
"proxies" to vote or "consents" (as such terms are used in the rules
and regulations of the Securities and Exchange Commission), or seek to
advise or influence any person with respect to the voting of any
voting securities of 3DP or any Affiliate thereof; (iii) initiate or
support, directly or indirectly, any stockholder proposal with respect
to 3DP; (iv) directly or indirectly make any public announcement with
respect to, or submit a proposal for, or offer of (with or without
conditions) any extraordinary transaction involving 3DP or its
securities or assets, or any Affiliate thereof, or of any successor to
or person in control of 3DP or any of its businesses, or any assets of
3DP any Affiliate or division thereof, or of any such successor or
controlling person; or (v) form, join or in any way participate in a
"group" as defined in Section 13(d)(3) of the Exchange Act in
connection with any of the foregoing. Nothing contained in this
Section 12.5 shall prohibit the ownership by BMS of up to 1% of any
class of securities of 3DP which are registered pursuant to the
Exchange Act.
12.6 No Implied Licenses. No rights to any other patents, know-how or
technical information, or other intellectual property rights, other
than as explicitly identified herein, are granted or deemed granted by
this Agreement. No right, expressed or implied, is granted by this
Agreement to a Party to use in any manner the name or any other trade
name or trademark of the other Party in connection with the
performance of this Agreement.
12.7 No Waiver. No waiver, modification or amendment of any provision of
this Agreement shall be valid or effective unless made in writing and
signed by a duly authorized officer of each Party. The failure of
either Party to assert a right hereunder or to insist upon compliance
with any term or condition of this Agreement shall not constitute a
waiver of that right or excuse a similar subsequent failure to perform
any such term or condition.
12.8 Force Majeure. The failure of a Party to perform any obligation under
this Agreement by reason of acts of God, acts of governments, riots,
wars, strikes, accidents or deficiencies in materials or
transportation or other causes of a similar magnitude beyond its
control shall not be deemed to be a breach of this Agreement.
12.9 Independent Contractors. Both Parties are independent contractors
under this Agreement. Nothing contained in this Agreement is intended
nor is to be construed so as to constitute 3DP or BMS as partners or
joint venturers with respect to this Agreement. Neither Party shall
have any express or implied right or authority to assume or create any
obligations on behalf of or in the name of the other Party or to bind
the other Party to any other contract, agreement, or undertaking with
any Third Party.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
19
<PAGE>
12.10 Notices and Deliveries. Any formal notices, request, delivery,
approval or consent required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been
sufficiently given when it is received, whether delivered in person,
transmitted by facsimile with contemporaneous confirmation,
delivered by registered letter (or its equivalent) or delivered by
certified overnight courier service (receipt required), to the Party
to which it is directed at its address shown below or such other
address as such Party shall have last given by notice to the other
Parties.
If to BMS:
Bristol-Myers Squibb Company
Route 206 & Province Line Road
P.O. Box 4000
Princeton, New Jersey 08543
ATTN: Vice President and Senior Counsel,
Pharmaceutical Research Institute
If to 3DP: with a copy to:
3-Dimensional Pharmaceuticals, Inc. Morgan, Lewis & Bockius LLP
Eagleview Corporate Center 502 Carnegie Center
665 Stockton Drive, Suite 104 Princeton, New Jersey 08540
Exton, PA 10341
ATTN: Chief Executive Officer ATTN: Randall B. Sunberg, Esq.
12.11 Public Announcements. The Parties shall consult with each other and
reach mutual written agreement before making any public announcement
concerning this Agreement or its subject matter. Notwithstanding the
foregoing, the Parties may disclose the existence and general nature
of this Agreement and may make disclosures for purposes of
satisfying legal and regulatory requirements in accordance with
Article 7; however, neither Party shall use the name of the other
Party for promotional purposes.
12.12 Headings. The captions to the sections in this Agreement are not a
part of this Agreement, and are included merely for convenience of
reference only and shall not affect its meaning or interpretation.
12.13 Severability. If any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force
and effect without said provision, so long as the Agreement, taking
into account said voided provision(s), continues to provide the
Parties with the same practical economic benefits as the Agreement
containing said voided provision(s) did on the Effective Date. If,
after taking into
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
20
<PAGE>
account said voided provision(s), the Parties are unable to realize
the practical economic benefit contemplated on the Effective Date,
the Parties shall negotiate in good faith to amend this Agreement to
reestablish the practical economic benefit provided the Parties on
the Effective Date.
12.14 Applicable Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Delaware without
reference to its conflicts of laws provisions.
12.15 Advice of Counsel. BMS and 3DP have each consulted with counsel of
their choice regarding this Agreement, and each acknowledges and
agrees that this Agreement shall not be deemed to have been drafted
by one Party or another and will be construed accordingly.
12.16 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY OR ANY OF
ITS RESPECTIVE AFFILIATES BE LIABLE TO THE OTHER PARTY OR ANY OF ITS
AFFILIATES FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT
LIABILITY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS OR REVENUE, OR CLAIMS OF CUSTOMERS OF ANY OF THEM OR OTHER
THIRD PARTIES FOR SUCH OTHER DAMAGES.
12.17 Counterparts. This Agreement may be executed in counterparts, or
facsimile versions, each of which shall be deemed to be an original,
and both of which together shall be deemed to be one and the same
agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their respective duly authorized officers as of the Effective Date, each copy of
which shall for all purposes be deemed to be an original.
3-DIMENSIONAL PHARMACEUTICALS, INC. BRISTOL-MYERS SQUIBB COMPANY
By: /s/ David C. U'Prichard By: /s/ Marilyn Hartig
Name: David C. U'Prichard, Ph.D. Name: Marilyn Hartig, Ph.D.
Title: Chief Executive Officer Title: VP, External Sciences
& Technology
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
21
<PAGE>
EXHIBIT A
---------
GPCR Sequence Subtypes
----------------------
[**]
** This page and the next three pages of this Exhibit have been omitted based
upon a request for confidential treatment that has been filed with the
Commission. The omitted pages have been filed separately with the Commission.
22
<PAGE>
EXHIBIT B
---------
BMS Preferred GPCR Targets
--------------------------
[**]
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
23
<PAGE>
EXHIBIT C
---------
Database Access Terms
---------------------
Only authorized personnel from BMS shall be entitled to download GPCR
Structure or GPCR Homology Model coordinates from the Proteomica Database
solely for the purpose of modeling such GPCRs using software tools external
to the Proteomica Database. BMS shall maintain a list of such authorized
personnel, which may be inspected by 3DP upon reasonable cause, BMS
considering access to names of staff and their expertise to be proprietary
to BMS.
BMS shall not transfer the Proteomica Database or the Database Information,
or any portion thereof, from the BMS Sites.
Other terms to be added by mutual agreement of the parties.
** Certain portions of this Exhibit have been omitted based upon a request for
confidential treatment that has been filed with the Commission. The omitted
portions have been filed separately with the Commission.
24
