Assignment and License Agreement - Eli Lilly & Co. and Cubist Pharmaceuticals Inc.
CONFIDENTIAL TREATMENT
ASSIGNMENT AND LICENSE AGREEMENT
This Agreement is made this 6th day of October, 2000 (the "Effective
Date"), by and between ELI LILLY & COMPANY having its principal place of
business at Lilly Corporate Center, Indianapolis, Indiana 46285 and its
Affiliates (collectively, "ELI LILLY") and Cubist Pharmaceuticals Incorporated,
a Delaware corporation having its principal place of business at 24 Emily
Street, Cambridge, MA 02139 and its Affiliates (collectively "CUBIST") as
follows:
RECITALS
WHEREAS, CUBIST and ELI LILLY have entered into a License Agreement for
Daptomycin on November 7, 1997 granting CUBIST limited rights under Lilly
patents to make, use and sell only Daptomycin for use in the Field of infectious
disease excluding induced colitis;
WHEREAS, CUBIST and ELI LILLY now desire to terminate such November 7,
1997, License Agreement in order that they may enter into this Assignment and
License Agreement whereby CUBIST will obtain expanded rights under the ELI LILLY
patents;
WHEREBY, CUBIST will obtain an exclusive license under ELI LILLY
Know-How and Patents) to make, use and sell Daptomycin for use in the Field of
infectious disease no longer excluding induced colitis; and
WHEREBY, CUBIST will obtain an assignment to other ELI LILLY Assigned
Patents giving CUBIST complete ownership, control and all rights to the subject
matter claimed therein for all compounds and all uses;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties intending to be bound, agree as
follows:
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ARTICLE 1
DEFINITIONS
As used throughout this Agreement, the following terms shall have the
meanings indicated in this Article.
1.00 "Affiliate" means any corporation or other entity which directly
or indirectly controls, is controlled by or is under common control with a party
to this Agreement. A corporation or other entity shall be regarded as in control
of another corporation or entity if it owns or directly or indirectly controls
more than fifty percent (50%) of the outstanding voting stock or other ownership
interest of the other corporation or entity, or if it possesses, directly or
indirectly, the power to manage, direct or cause the direction of the management
and policies of the corporation or other entity or the power to elect or appoint
fifty percent (50%) or more of the members of the governing body of the
corporation or other entity. Any such other relationship as in fact results in
actual control over the management, business and affairs of a corporation or
other entity shall also be deemed to constitute control.
1.01 "Assigned Patents" shall mean those patents and patent
applications listed in Exhibit 3 which have been assigned to CUBIST by ELI
LILLY.
1.02 "Average Market Price" shall mean the average closing price for
CUBIST common stock for twenty consecutive trading days, the last day of which
is immediately prior to five days prior to the event that triggered such payment
of CUBIST common stock to ELI LILLY.
1.03 "Compound" means [ ]* or a pharmaceutically acceptable salt
thereof or a pharmaceutically acceptable formulation thereof which is in Lilly's
possession on November 7, 1997.
1.04 "Confidential Information" means any information and data received
by a party from the other party, as well as the terms of this Agreement.
Notwithstanding the foregoing, Confidential Information shall not include any
part of such Confidential Information that: (i) is or becomes part of the public
domain other than by unauthorized acts of the party obligated not to disclose
such Confidential Information; (u) can be shown by written documents to have
been disclosed to the receiving party by a third party, provided such
Confidential Information was not obtained by such third party directly or
indirectly from the disclosing party with an obligation for such third party to
maintain the confidentiality of such information; (iii) prior to disclosure
under this Agreement, was already in the possession of the receiving party and
such possession can be evidenced by written documents, provided such
Confidential Information was not obtained directly or indirectly from the
disclosing party with an obligation to maintain the confidentiality of such
information; (iv) can be shown by written documents to
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have been independently developed by the receiving party without breach of any
of the provisions of this Agreement and such independent development can be
evidenced by written documents; or (v) is disclosed by the receiving party
pursuant to interrogatories, requests for information or documents, subpoena,
civil investigative demand issued by a court or governmental agency or as
otherwise required by law, provided, however, that the receiving party notifies
the disclosing party immediately upon receipt thereof, giving such disclosing
party sufficient advance notice to permit it to seek a protective order or other
similar order with respect to such Confidential Information and provided,
further, that the receiving party furnishes only that portion of the
Confidential Information which it is advised by counsel is legally required
whether or not a protective order or other similar order is obtained by the
disclosing party.
1.05 "ELI LILLY Program" shall mean a research, development and/or
marketing project that ELT LILLY, its Affiliates, and/or a third party, pursuant
to an Agreement with ELI LILLY, have been committing non-trivial financial
and/or human resources to advance.
1.06 "Field" shall mean the treatment of infectious diseases.
1.07 "Know-How" means all information and data reasonably useful for
the development, process development, regulatory approval, manufacture, use,
formulation or sale of Compound in the Field which (i) is in the possession of
ELI LILLY as of the November 7, 1997 or is created by ELI LILLY after the
November 7, 1997, (u) ELI LILLY can provide using reasonable efforts and (iii)
ELI LILLY is free to provide without obligation to any third party. Such
Know-How may include information that is secret, whether or not patentable,
relating to materials, methods, processes, procedures, protocols, techniques,
formulae and data reasonably useful for the development, regulatory approval,
manufacture or use of Compound in the Field.
1.08 "Major Market Country" shall mean the United States, Canada,
Japan, the United Kingdom, Germany, France, Italy, Spain, Switzerland,
Netherlands and Belgium.
1.09 "Net Sales" means the amounts received by CUBIST and/or its
sublicensees on sales or other transfers for commercial use of Compound, and
products incorporating Compound, to independent third parties in bona fide arms
length transactions, less the following deductions actually allowed and taken by
such independent third parties and not otherwise recovered by or reimbursed by
CUBIST or its sublicensees:
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(a) trade, cash and quantity discounts, including, without
limitation, chargebacks and rebates;
(b) taxes, duties and other governmental charges set forth
separately in the amount invoiced;
(c) freight, insurance and other transportation expenses to
the extent added to the sales prices and set forth separately as such
in the total amount invoiced; and
(d) credits or allowances on account of refunds, returns,
rejections, or price adjustments.
If CUBIST or its sublicensees sell or transfer Compound, or any
products incorporating Compound for commercial use, other than (i) reasonable
quantities of promotional samples or (u) to an independent third party in a bona
fide arm's length transaction, Net Sales shall be determined based upon the
resale or other retransfer to an independent third party in an arm's length
transaction by the entity to whom such Compound, or product, was sold or
transferred by Cubist or its sublicensee. If there is no such resale or
retransfer, Net Sales shall be determined based on the average Net Sales price
as determined in the immediately preceding royalty accounting period as set
forth in Section 4.02.
In the event Compound is sold as a component of a combination of
functional elements, Net Sales for purposes of determining royalty payments on
such combination shall be calculated by multiplying the Net Sales price of such
combination by the fraction A over A+B, in which "A" is the gross selling price
of the Compound portion of the combination when sold separately during the
accounting period in which the sale was made, and "B" is the gross selling price
of the non-Compound portion of the combination sold separately during the
accounting period. In the event no separate sale of either such above-designated
Compound or such above-designated non-Compound portion of the combination is
made during the accounting period in which the sale of the combination was made.
Net Sales shall be calculated by multiplying the Net Sales price of the
combination by the fraction C over C+D, in which "C" is the standard fully
allocated cost of the Compound portion of such combination, and "D" is the
standard fully allocated cost of the other component(s). For purposes of the
foregoing sentence, "fully allocated cost" shall mean all direct and indirect
labor and overhead, materials and supplies, fringe benefits, taxes and charges
and direct and indirect general and administration charges incurred by CUBIST or
its sublicensees, and accounted for according to CUBIST's or its sublicensees'
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standard accounting practices consistent with generally accepted accounting
principles.
1.10 "Patent(s)" means any of ELI LILLY's patents, pending patent
applications, and future patent applications, including, but not limited to,
those set forth on Exhibit 2 attached hereto, which claim Compound, formulations
of Compound, processes for preparing Compound or use of Compound in the Field,
any United States or foreign counterpart patents and applications, and any
continuing, divisional, reissue, re-examination and substitute patents and
applications based, in whole or in part, on any of the foregoing patents and
patent applications, together with all continuations, continuations-in-part,
divisions, patents of addition, reissues, renewals, extensions, supplementary
protection certificates and complementary protection certificates of any of the
foregoing which are owned by ELI LILLY and under which ELI LILLY has rights to
grant a sub-licenses.
1.11 "Phase II Clinical Trial" shall mean clinical studies conducted in
accordance with Good Clinical Practices ("GCPs") in a small number of healthy
volunteers to establish efficacy and obtain a preliminary indication of the
dosage of Compound.
1.12 "Phase BI Clinical Trial" shall mean large scale clinical studies
in patients conducted in accordance with GCPs primarily to establish safety and
efficacy of Compound.
1.13 "Valid Claim" shall mean a claim of an issued and unexpired
Assigned Patent and/or Patent which has not been withdrawn, canceled, revoked,
disclaimed, or held invalid, unenforceable or unpatentable by a final and
unappealed (within the time allowed for appeals) or unappealable judgment or
decision of a court or other governmental agency of competent jurisdiction
ARTICLE 2
LICENSE GRANT
2.00 As of the Effective Date, ELI LILLY shall assign, transfer, convey
and deliver to CUBIST all rights to Assigned Patents in a separate assignments)
for each of such Assigned Patents. ELI LILLY shall further file copies of such
assignments) in the United States Patent and Trademark Office. Such assignments
shall be treated by both parties as sales for United States federal income tax
purposes.
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2.01 ELI LILLY grants to CUBIST the following worldwide, exclusive
licenses subject to the conditions set forth herein below in Section 2.02:
(a) Under the Patents, to develop, manufacture, formulate,
have manufactured, import, use, distribute for sale, market and sell
Compound in the Field; and
(b) To use the Know-How for the development, manufacture,
formulation, use, distribution for sale, marketing, and sale of
Compound consistent with the terms of this Agreement.
2.02 (i) Subject to Section 2.02(u) below, CUBIST shall have the right
to grant sublicenses under the Patents and Know-How, for use in the Field;
provided that the terms and conditions of such sub-licenses are consistent with
and no less restrictive than the terms and conditions of this Agreement, and any
such disclosure or transfer of Compound shall be limited to use solely in the
Field.
(ii) In the event that, during the term of this Agreement, CUBIST
actively seeks to grant a sub-license to a third party for the development of
the Compound in the Field, which sublicense includes, but is not necessarily
limited to, the right to develop and/or commercialize an oral or intravenous
formulation of the Compound, CUBIST agrees to inform ELI LILLY of such
determination by written notice, which notice shall include (a) a description in
reasonable detail of the subject matter of the proposed sub-license and (b) the
terms on which CUBIST would be willing to grant ELI LILLY such rights (the
"Sublicense Notice"). ELI LILLY shall thereupon have a period of [ ]* days (the
"Notice Period") to either accept CUBIST's terms in writing or to make a written
counter-proposal. If ELI LILLY accepts CUBIST's proposal or makes a
counter-proposal, the parties will, for a period of up to [ ]* days from receipt
by ELI LILLY of the Sublicense Notice (the "Negotiation Period"), seek in good
faith to enter into a definitive agreement for such rights. If ELI LILLY does
not by the expiration of the Notice Period either accept CUBIST'S proposal or
make a counter-proposal, or if the parties negotiate in good faith and fail to
reach agreement by the expiration of the Negotiation Period, CUBIST shall be
free to enter into a sub-license for such rights with a third party, provided
that such sub-license is granted on no better terms to the sub-licensee, taken
as a whole, than the terms for such rights, if any, which ELI LILLY last offered
to CUBIST during the Negotiation Period.
2.03 CUBIST shall notify ELI LILLY within [ ]* days of the identity of
each sublicensee together with a summary of the principal terms of any
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sub-license, and shall take all reasonable steps in the event of a breach of any
sub-license by the sub-licensee to enforce the same.
2.04 CUBIST acknowledges that ELI LILLY has disclosed certain Know-How
to CUBIST prior to the execution of this Agreement and CUBIST shall treat such
Know-How in accordance with the terms of this Agreement. During the term of this
Agreement, ELI LILLY shall disclose to CUBIST such other Know-How as is directly
related to CUBIST'S activities under the license granted in Article 2.01 and
which ELI LILLY can provide to CUBIST using reasonable efforts.
2.05 Promptly after the Effective Date, ELI LILLY may provide CUBIST
with reasonable access to consult with pertinent ELI LILLY employees that have
had prior experience working with Compound in the Field at ELI LILLY to enhance
the preclinical or clinical development and manufacturing of the Compound,
provided that such consultation shall occur at a mutually agreeable time and
place and that ELI LILLY will only provide such access to current employees
which are reasonably able to provide CUBIST with ELI LILLY Know-How relating to
the scaleup, manufacture, or formulation of Compound for use in the Field.
CUBIST shall be responsible for all reasonable expenses its own personnel and
ELI LILLY personnel incur in association with any such consultations. Upon
CUBIST's request, ELI LILLY shall provide CUBIST and its sublicensees with all
Know-How, information and data owned by ELI LILLY which ELI LILLY can provide
using reasonable efforts to the extent such Know-How, information and data is
reasonably required to further CUBIST's or its sub-licensees' ability to
develop, scale-up, obtain regulatory approval for, manufacture, distribute, use,
formulate or sell Compound for use in the Field. CUBIST agrees to treat all
Know-How disclosed to it as Confidential Information of ELI LILLY. .
2.06 ELI LILLY shall deliver to CUBIST, ELI LILLY's available inventory
of Compound. ELI LILLY shall not be required to perform any manufacturing of
Compound for CUBIST.
ARTICLE 3
DILIGENCE AND REGULATORY
3.00 CUBIST shall use commercially reasonable efforts to develop and
test the Compound in the Field, to perform all pre-clinical, clinical and other
studies of such Compound necessary to obtain regulatory approval for the
manufacture, use and sale of Compound, and to market and sell Compound in the
Field in all countries in which it is commercially reasonable to market such
Compound. CUBIST shall fully fund these efforts, as well as
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any other work that is required for CUBIST to develop and market Compound in the
Field.
CUBIST has prepared and provided to ELI LILLY a preliminary development
plan as of November 7, 1997, which contained CUBIST's estimate, based upon data
currently available to CUBIST concerning the subject matter of this Agreement,
of the probable course of Compound development hereunder. CUBIST will provide
ELI LILLY with bi-annual status reports regarding the development progress of
the Compound; however, any material events or changes in the Compound
development plan will be reported to ELI LILLY as soon as reasonably possible
after such event occurs.
3.01 CUBIST represents that it intends to conduct clinical testing of
Compounds to the extent that such testing is supported by safety and efficacy
data required by the applicable regulatory agency.
3.02 ELI LILLY hereby grants CUBIST the right of reference to the
Investigational New Drug Application filed with the United States Food and Drug
Administration ("FDA") relating to the Compound, and ELI LILLY agrees to provide
to CUBIST copies of all related contact reports, minutes and other regulatory
correspondence filed with or communicated to the FDA. ELI LILLY shall transfer
all reasonably transferable information used in regulatory filings, laboratory
data, clinical data, toxicology data, and scale-up, manufacturing and
formulation information relating to Compound to CUBIST in a commercially
reasonable time frame.
3.03 CUBIST shall comply with all applicable laws and regulations
regarding the care and use of experimental animals, in a country where the
development is carried out. All animals used to evaluate Compound shall be
provided humane care and treatment in accordance with the most acceptable
veterinary practices.
ARTICLE 4
PAYMENTS
4.00 CUBIST will pay to ELI LILLY the following payments:
(a) [ ]* as a license fee, to be paid upon the earlier of (i)
completion of CUBIST or CUBIST'S sub-licensee's first Phase II Clinical
Trial in a Major Market Country or (u) upon the initiation of CUBIST or
CUBIST's sub-licensees of patient dosing in the first Phase III
Clinical Trial in a Major Market Country; said license fee to
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be paid in CUBIST common stock based on the Average Market Price for
such CUBIST common stock;
(b) [ ]* as a license fee, to be paid upon the date of
CUBIST'S or CUBIST'S sub-licensee's first regulatory submission in a
Major Market Country for a license to market Compound, said license fee
to be paid in CUBIST common stock, based on the Average Market Price
for such CUBIST Common Stock; and
(c) [ ]* as a license fee, to be paid upon the date of
CUBIST's or CUBIST'S sub-licensee's first regulatory approval in a
Major Market Country for their application to market Compound, said
license fee to be paid in CUBIST common stock, based on the Average
Market Price for such CUBIST Common Stock.
4.01 During the first [ ]* months after the first commercial sale of
Compound in a Major Market Country, CUBIST will pay ELI LILLY royalties of [ ]*
on the first [ ]* of aggregate annual Net Sales of Compounds and [ ]* on
aggregate Net Sales between [ ]* and [ ]* on aggregate annual Net Sales in
excess of [ ]* in all countries ("Protected Countries") for so long as (a) the
manufacture, use or sale of Compound is covered by a Valid Claim, or (b) there
is no significant generic competition which causes a reduction of Net Sales of
Compound by [ ]* percent or more in any twelve month period.
4.02 After the expiration of the first [ ]* months after first
commercial sale in a Major Market Country, CUBIST will pay ELI LILLY royalties
of [ ]* on the first [ ]* of aggregate annual Net Sales of Compound and 13.5% on
aggregate annual Net Sales between [ ]* and [ ]* in aggregate annual Net Sales
in excess of [ ]* in all countries ("Protected Countries") for so long as (a)
the manufacture, use or sale of a Compound is covered by a Valid Claim, or (b)
there is no significant generic competition which causes a reduction of Net
Sales of Compound by [ ]* percent or more in any twelve month period.
4.03 For a period often [ ]* years following first commercial sale in a
Major Market Country, CUBIST will pay ELI LILLY royalties of [ ]* of aggregate
annual Net Sales in all countries that are not Protected Countries, but where
the manufacture, use, sale or transfer of Compound utilizes Know-How provided to
CUBIST by ELI LILLY. [ ]* of Net Sales in countries that are not Protected
Countries shall be included in aggregate annual Net Sales of Compound calculated
pursuant to Section 4.02 for purposes of determining the appropriate royalty
percentage in Section 4.02.
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4.04 In the event that CUBIST can demonstrate that external factors
beyond its control (such as government-imposed price controls) have materially
reduced CUBIST'S profitability on sales of Compound in any Country, ELI LILLY
agrees to consider in good faith an equitable reduction in the royalty rate
applicable to such country under Section 4.02 or 4.03, as applicable.
4.05 The first payment under Articles 4.01, 4.02 and 4.03 shall be due
within [ ]* days after December 31 or June 30, whichever such date occurs first
after the first commercial sale or transfer of Compound. Thereafter, payments
under Articles 4.01, 4.02 or 4.03 shall be made within [ ]* days of each of
December 31 and June 30 of each year. Payments shall be accompanied by a report
showing all facts necessary to the calculation of amounts due.
4.06 All royalty payments to ELI LILLY shall be in United States
dollars. Royalty payments based on Net Sales in currencies other than United
States dollars shall be converted to US dollars according to the average
official rate of exchange for that currency as published in the Wall Street
Journal on the first and last days of the six-month period in which that royalty
accrued (or, if not published on that day, the first and last publication days
for the Wall Street Journal during that six month period). If such exchange rate
is not published in the Wall Street Journal, then the rate shall be determined
using average conversion rates that are accepted in the industry on the first
and last days of the six month period in which the royalty accrued. All payments
that are not to be made in CUBIST common stock, as specified herein, shall be
paid in United States dollars.
4.07 If by law, regulation, or fiscal policy of a particular country,
conversion into United States dollars or transfer of funds of a convertible
currency to the United States is restricted or forbidden, CUBIST shall give ELI
LILLY prompt written notice and shall pay the royalty due under this Article 4
through such means or methods as are lawful in such country as ELI LILLY may
reasonably designate. Failing the designation by ELI LILLY of such lawful means
or methods within [ ]* days after such written notice is given to ELI LILLY,
CUBIST shall deposit such royalty payment in local currency to the credit of ELI
LILLY in a recognized banking institution designated by ELI LILLY, or if none is
designated by ELI LILLY within the [ ]* day period described above, in a
recognized banking institution selected by CUBIST and identified in a written
notice to ELI LILLY by CUBIST, and such deposit shall fulfill all obligations of
CUBIST with respect to such royalties.
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4.08 CUBIST and its sub-licensees, if any, shall maintain complete and
accurate books and records with respect to sale and use of Compound and all
other information necessary to permit calculation and verification of amounts
due under this Article 4 and Article 5 and Article 6, set forth below. Upon
reasonable prior written notice to CUBIST, ELI LILLY may cause an independent
agent to audit the books and records of CUBIST and its sub- licensees, if any,
pertaining to the payment to ELI LILLY hereunder, for the sole propose of
confirming the amounts due, and the accuracy of the payments and reports;
provided that no such audit shall be permitted for periods exceeding thirty six
(36) months prior to the date CUBIST receives such written notice. Any such
audit shall be performed at ELI LILLY'S expense during normal business hours and
shall, if so required by CUBIST, be performed by a firm of independent public
accountants reasonably acceptable to CUBIST. The independent agent shall report
only such information as would properly be included in such a report. In the
event of an underpayment, CUBIST shall promptly remit to ELI LILLY all amounts
due. CUBIST shall require any sub-licensee to agree to comply with all of the
terms of this paragraph, including but not limited to making such report,
maintaining such records, and permitting such audit.
If such audit reveals that CUBIST has underpaid ELI LILLY by greater
than [ ]* then CUBIST shall reimburse ELI LILLY for the reasonable cost of the
audit.
4.09 Any late payments due to ELI LILLY shall be subject to interest
charges which rate shall be established at [ ]* on the date that such payment
was first due to ELI LILLY.
ARTICLE 5
MINIMUM ROYALTIES
5.00 Sixty (60) days after December 31 or June 30, whichever date
occurs first, following the first twelve (12) month period after the first
commercial sale of Compound in a Major Market Country, CUBIST will pay ELI LILLY
the greater of the balance of payments due for such twelve (12) month period
under Articles 4.01 and 4.02 of this Agreement or the balance of [ ]* less
royalties already paid for such twelve (12) month period pursuant to Articles
4.01 and 4.02, as a minimum royalty.
5.01 Sixty (60) days after December 31 or June 30, whichever date
occurs first, following the second twelve (12) month period after the first
commercial sale of Compound in a Major Market Country, CUBIST will pay to ELI
LILLY the greater of the balance of payments due for such twelve (12)
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month period Articles 4.01 and 4.02 of this Agreement or the balance of [ ]*,
less royalties already paid for such twelve (12) month period the preceding
calendar year pursuant to Articles 4.01 and 4.02; as a minimum royalty.
5.02 Sixty (60) days after December 31 or June 30, whichever date
occurs first, following the third twelve (12) month period after the first
commercial sale of Compound in a Major Market Country, CUBIST will pay ELI LILLY
the greater of the balance of payments due for such twelve (12) month period
under Articles 4.01 and 4.02 of this Agreement or the balance of [ ]* less
royalties already paid for such twelve (12) month period the preceding calendar
year pursuant to Articles 4.01 and 4.02, as a minimum royalty.
5.03 CUBIST shall deduct any withholding taxes from the payments agreed
upon under this Agreement and pay them to the proper tax authorities as required
by applicable law. CUBIST shall maintain official receipts of any withholding
taxes and forward these receipts to ELI LILLY. The parties will exercise their
best efforts to ensure that any withholding taxes imposed are reduced as far as
legally possible under the provisions of any treaties applicable to any payment
made hereunder.
ARTICLE 6
INDEMNIFICATION, INSURANCE AND LIMITATION OF DAMAGES
6.00 CUBIST shall indemnify ELI LILLY and its directors, officers,
employees and agents, as set forth in Article 6.02, with respect to (a) any
third party claim or action against ELI LILLY based on CUBIST'S or CUBIST'S
sublicensee's developing, making, distributing, selling, marketing, using or
otherwise transferring Compound and (b) breach of any representation or warranty
contained in Article 7 by CUBIST, provided, however that CUBIST shall have no
duty to indemnify ELI LILLY to the extent that any such claim or action is
subject to ELI LILLY's duty of indemnification set forth in Article 6.01.
6.01 ELI LILLY shall indemnify CUBIST, as set forth in Article 6.02,
with respect to (a) any third party claim or action against CUBIST based on (i)
activities of ELI LILLY, its employees, or its agents with respect to Compound
prior to the Effective Date, (u) the negligence or willful misconduct of ELI
LILLY, its employees and agents, and (b) breach of any representation or
warranty contained in Article 7 by ELI LILLY, provided, however, that ELI LILLY
shall have no duty to indemnify CUBIST to the extent that any such claim or
action is subject to CUBIST'S duty of indemnification set forth in Article 6.00.
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6.02 With respect to the claims and actions referenced in Articles 6.00
and 6.01 above, the indemnifying party shall defend any such claim or action
against the indemnified party and shall pay all damages, judgments, costs,
expenses (including attorneys' fees, but only to the extent that the
indemnifying party fails to promptly assume the defense of such claims and
actions) and liability awarded against the indemnified party, or settlements
entered into, with respect to such claim or action, provided that the
indemnified party (a) provides prompt written notice to the indemnifying party
of any such claim or action; (b) allows the indemnifying party to assume the
defense and settlement thereof, with counsel of its choice; and (c) provides
reasonable assistance to the indemnifying party in connection with the defense
and settlement thereof.
6.03 Prior to administration of Compound to any human, CUBIST shall
provide to ELI LILLY an endorsement verifying customary levels of insurance for
damages, judgments, costs, expenses (including attorneys' fees) and liability
with respect to any third party claim or action based on CUBIST's or CUBIST'S
sublicensee's manufacture, distribution, use, marketing or sale of Compound,
naming Eli Lilly and Company, its directors, officers and employees as
additional insureds on the policy, and shall have copies of such insurance
policies delivered to ELI LILLY as soon as reasonably practical. In addition,
evidence of insurance in the form of such endorsement shall be furnished to ELI
LILLY at the inception of each subsequent phase of human clinical trials, as
well as upon granting of NDA and PLA, but in no event less than annually upon
the insurance policy renewal date. Such insurance shall remain in effect at
customary levels throughout the term of this Agreement. ELI LILLY shall be
informed thirty (30) days prior to any cancellation of or material decrease in
the amount of coverage of such insurance by CUBIST or any other action that
CUBIST reasonably should believe will result in decrease or cancellation of such
insurance, or immediately upon receipt by CUBIST of a notice of cancellation of
such insurance, on the effective date of which cancellation or decrease,
clinical use of Compound must immediately cease, subject to CUBIST obtaining
adequate replacement insurance. The foregoing shall not be interpreted to limit
the scope or amount of CUBIST'S indemnification obligation under Article 6.00.
Notwithstanding the foregoing, CUBIST shall be entitled to adopt an
insurance program containing self insurance elements, to the extent that CUBIST
is able to demonstrate to the reasonable satisfaction of ELI LILLY that such a
program is not unusual in the industry for companies similarly situated
(including financial condition to support such a program) or with respect to
products with a risk profile similar to products licensed hereunder.
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6.04 Other than as set forth elsewhere in this Agreement, in no event
shall either party be liable for any special, consequential, indirect, or
incidental damages, however caused and on any theory of liability, arising out
of this Agreement. These limitations shall apply notwithstanding any failure of
essential purpose of any limited remedy.
ARTICLE 7
REPRESENTATIONS, WARRANTIES AND DISCLAIMER
7.00 Each party represents and warrants to the other party that (a) it
has the right to enter into this Agreement; (b) this Agreement has been duly
authorized by all necessary action of such party; and (c) the execution of this
Agreement by the party will not conflict with or breach any other agreement to
which it is a party or by which it is bound.
7.01 ELI LILLY represents that (a) there is no agreement known to ELI
LILLY to which it is a party and by which it is bound that would conflict with
or be breached by ELI LILLY granting the license in Article 2, (b) except as
previously disclosed in writing to CUBIST, no other person or entity has
claimed, or to ELI LILLY's knowledge has, any rights to or interest in the
Patents and the Know- How in the Field to be licensed hereunder, and that to its
knowledge, the manufacture, use, distribution, marketing or sale of the
Compounds) can be performed without infringing the patent rights of any third
party, and (c) as of the Effective Date ELI LILLY is conducting no development
program relating to analogs or derivatives of the Compound, provided that ELI
LILLY shall be free to commence and conduct any such program at any time
hereafter.
7.02 ELI LILLY makes no representation or warranty that Compound made,
used, or sold under the licenses granted herein is or will be free of claims of
infringement of the patent rights of any third party (although it represents and
warrants that it has no knowledge of (i) such infringement not heretofore
disclosed to CUBIST and (u) any payment obligations that CUBIST will have to
third parties in connection with CUBIST's development, manufacturing, marketing
or sale of Compound) and makes no warranty or representation that any of the
Patents to be licensed hereunder are valid or enforceable.
7.03 EXCEPT AS SET FORTH IN ARTICLES 7.00 AND 7.01 ABOVE, ELI LILLY
EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION
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WARRANTIES OF MERCHANTABILTTY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT.
7.04 CUBIST acknowledges that the Compounds) are highly experimental in
nature and it is fully aware that Compounds) may prove to be ineffective and/or
unsafe when used in humans.
7.05 CUBIST warrants that all CUBIST common stock to be paid to ELI
LILLY pursuant to this Agreement shall be properly issued and all legal
requirements associated with such issuance to ELI LILLY shall be fulfilled.
The number of shares of CUBIST common stock payable to ELI LILLY shall
be determined by dividing the payment amount by the Average Market Price to
determine the number of shares.
For illustration purposes only, upon completion of CUBIST's first Phase
II Clinical Trial, CUBIST shall pay ELI LILLY [ ]* in CUBIST common stock. The
number of shares to be transferred to ELI LILLY shall be determined by dividing
[ ]* by the Average Market Price.
ARTICLE 8
PATENTS AND KNOW-HOW
8.00 In the event either of the parties shall learn of the
infringement, or a challenge to the validity, enforceability, or title of any
Patent (including any action for a declaratory judgment) right licensed
hereunder, or an action for unauthorized use or misappropriation of Know-How
licensed hereunder, such party shall promptly notify the other party thereof in
writing and shall provide the other party with any evidence in its possession of
such infringement, challenge or action.
8.01 (a) During the term of this Agreement, ELI LILLY shall have the
sole right, but no obligation, to bring or defend any suit or action relative to
the patenting or patent enforcement directly relating to Patent(s), including
the right to recover for past infringement, or the unauthorized use or
misappropriation of Know-How in the Field. If ELI LILLY finds it necessary or
desirable to join CUBIST in such suit or action, CUBIST shall execute all papers
and perform such other acts as may reasonably be required, at ELI LILLY's
expense, to join CUBIST in such suit or action. CUBIST may, at its option, join
as a party to such suit and be, at its expense, represented by counsel of its
choice, provided that ELI LILLY shall continue to control the prosecution or
defense of such suit. Unless CUBIST and ELI LILLY otherwise agree, any amount
recovered in any such action, whether by
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judgment or settlement, after deducting ELI LILLY's reasonable expenses
(including attorneys' fees), and payment to CUBIST of damages in respect of
CUBIST'S lost profits for which ELI LILLY recovers payment and CUBIST's
reasonable expenses (including attorneys' fees) incurred in connection with an
action or suit in which ELI LILLY requested that CUBIST be joined or in which
CUBIST voluntarily joined, shall be paid to or retained by ELI LILLY.
(b) In the event ELI LILLY fails to take action with respect to
such Patents) infringement, or challenge to validity, enforceability or title,
or action for unauthorized use or misappropriation of Know-How in the Field
which materially affect intellectual property rights of ELI LILLY that relate to
an active ELI LILLY program, within a reasonable period, no less than three (3)
months, following receipt by ELI LILLY of reliable evidence of infringement,
CUBIST shall have the right, but no obligation, to bring, or defend any such
suit or action. ELI LILLY may, at its option, join as a party to such suit and
be, at its expense, represented by counsel of its choice, provided that CUBIST
shall continue to control the prosecution or defense of such shit. If CUBIST
finds it necessary to join ELI LILLY in such suit or action, ELI LILLY shall
execute all papers and perform such other acts as may be reasonably required at
CUBIST's expense. Unless CUBIST and ELI LILLY otherwise agree, any amount
recovered in any such action or suit, whether by judgment or settlement, after
deducting CUBIST'S reasonable expenses (including attorneys' fees) and, after
payment to ELI LILLY of damages in respect of ELI LILLY's lost royalties for
which CUBIST recovers payment and after payment to ELI LILLY of its reasonable
expenses (including reasonable attorneys' fees) incurred in connection with an
action or suit in which CUBIST requested that ELI LILLY be joined or which ELI
LILLY voluntarily joined, shall be paid to or retained entirely by CUBIST.
(iii) Notwithstanding anything to the contrary in this Section 8.01,
should ELI LILLY receive a certification pursuant to the Drug Price Competition
and Patent Restoration Act of 1984 (Public Law 98-417) as amended; or its
equivalent in a country other than the United States of America with respect to
a Patent, then (i) ELI LILLY shall immediately provide CUBIST and its
sublicensee with a copy of such certification and identify the date on which ELI
LILLY received such certification (the "Certification Date"), and (u) ELI LILLY
shall have twenty (20) days from the Certification Date to provide CUBIST and
its sublicensee with written notice whether ELI LILLY will bring suit within a
forty five (45) day period (or any other mandatory time period) from the
Certification Date. Should such twenty (20) day period pass without ELI LILLY
bringing suit, then CUBIST or its sublicensee shall be free to immediately bring
suit for patent infringement in its name and, at its sole option, in the name of
ELI LILLY. Accordingly, ELI LILLY hereby agrees to become party to the suit, at
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CUBIST's request. If CUBIST or its sublicensee initiates suit pursuant to this
section, it will promptly notify ELI LILLY.
8.02 If CUBIST determines in good faith in consultation with ELI LILLY
that the manufacture, use or sale of Compound in the Field would infringe the
intellectual property rights of a third party unaffiliated with either CUBIST or
ELI LILLY, and it therefore becomes necessary to pay a royalty, license fee or
other compensation to that party to avoid a claim of infringement, then CUBIST
and ELI LILLY shall each bear one-half of that royalty, license fee or other
compensation obligation provided that ELI LILLY's share of such obligation shall
be deducted from CUBIST's royalty payments due to ELI LILLY, and further
provided that CUBIST'S payment, pursuant to this Agreement, to ELI LILLY in any
one (1) year would never be reduced by more than [ ]*. If, as a result of the
preceding sentence, CUBIST bears more than [ ]* of the royalty, license fee or
other compensation due to a third party under this Section 8.04, the amount of
the excess may be carried forward and used by CUBIST as a credit against
royalties due ELI LILLY in subsequent royalty periods, provided that in no event
shall CUBIST's royalty payments to ELI LILLY be reduced by more than [ ]*.
8.03 Each patty agrees to cooperate with the other in legal action
taken to enforce, defend or maintain a Patent licensed hereunder or concerning
Know-How licensed hereunder, including litigation proceedings.
8.04 ELI LILLY shall take all steps necessary to maintain the Patents
in the Field, including without limitation the preparation, filing and
prosecution of new patent applications, through an attorney of their choice.
(a) If CUBIST reasonably believes that ELI LILLY is failing to
maintain one or more of its Patents in the Field, CUBIST shall provide
ELI LILLY sixty (60) days written notice of its intent to assume
maintenance of such Patents itself. If ELI LILLY fails to resume
maintenance of the Patents in the Field that CUBIST reasonably believes
that ELI LILLY is failing to maintain or to provide reasonable evidence
demonstrating that ELI LILLY is maintaining these Patents in the Field
at the expiration of such sixty (60) day period, CUBIST may, through an
attorney of their choice, take all necessary actions to maintain the
Patents, and shall be entitled to deduct [ ]* of the costs and expenses
incurred from any of CUBIST's payments pursuant to Article 4.04. In
such event, ELI LILLY shall complete all acts and execute and deliver
all instruments and other documents and render CUBIST assistance as is
necessary or desirable for CUBIST to assume the filing, prosecution and
maintenance of such
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Patents in the Field that ELI LILLY has not resumed maintenance of or
demonstrated that it is maintaining.
(b) ELI LILLY shall keep CUBIST currently advised as to the
status of all patents and patent applications which relate to Patents
and to supply CUBIST promptly with copies of all patents, patent
applications, substantive patent office actions, substantive responses
received or filed in connection with such applications. CUBIST may
itself or through its attorney offer comments and suggestions with
respect to the matters that are the subject of this Article 8.06, and
ELI LILLY agrees to consider carefully such comments and suggestions;
however, nothing herein shall obligate ELI LILLY to follow such
comments or suggestions.
(c) ELI LILLY shall notify CUBIST of their intention to
abandon a patent or patent application which relates to Patents (either
a total series of Patents or patent applications or on a country by
country basis). At CUBIST's option, CUBIST may maintain such patent or
patent application relating to Patent that ELI LILLY plans to abandon
(either a total series of Patents or patent applications or on a
country by country basis) at CUBIST's sole expense, and CUBIST shall
receive title to such patent or patent application and such patent
shall no longer then be considered a Patent for purposes of this
Agreement.
8.05 (a) CUBIST shall take all steps necessary to maintain its Assigned
Patents.
(b) CUBIST shall keep ELI LILLY currently advised as to the status
of all Assigned Patents.
ARTICLE 9
ASSIGNMENT
9.00 Neither party may assign or delegate any of its rights or duties
under this Agreement without the prior written consent of the other, except that
either party may assign this Agreement to a person or party that has purchased
or succeeded to all or substantially all of the business and assets of the
assignor to which the Agreement relates, and that has assumed in writing or by
operation of law such party's obligations under this Agreement, provided that
CUBIST shall be permitted to sub-license its rights hereunder as provided under
Section 2.01 above. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective
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successors and assigns insofar as this Agreement is assignable. The assignor of
this Agreement shall guarantee the performance of the obligation of this
Agreement by such successor or assigns. Nothing herein is intended to confer on
any person other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement.
ARTICLE 10
TERM AND TERMINATION
10.00 The term of this Agreement shall be for the period commencing as
of the Effective Date and ending on the later of (a) the expiration of the last
of the Assigned Patents or Patents to expire or (b) the end of the [ ]* from the
date of first sale in the first Major Market Country where Know-How royalties
are due, unless and until earlier terminated as provided in this Article. Upon
the expiration of this Agreement, CUBIST shall retain a fully paid-up, royalty
free license under the Know-How for purposes consistent with this Agreement and
limited to use in the Field.
10.01 If both CUBIST and any sub-licensees substantially cease all
development activities pursuant to the then-current development plan for a
period of [ ]*, then ELI LILLY shall have an exclusive right to acquire back all
rights relating to Compound pursuant to this Agreement. The terms under which
ELI LILLY shall acquire back such rights shall be the subject of a separate
agreement to be negotiated in good faith by the parties.
10.02 If either party defaults in the performance of its material
obligations hereunder, including but not limited to CUBIST's failure to use
commercially reasonable efforts to develop Compound (provided, however, that
this shall not be construed as a guarantee that any Compound will be
successfully developed), and if any such default is not corrected within sixty
(60) days after it shall have been called to the attention of the defaulting
party, in writing, by the other party, then the other party, at its option, may,
in addition to any other remedies it may have, thereupon terminate this
Agreement by giving written notice of termination to the defaulting party.
10.03 This Agreement may be terminated by either party, on notice, (i)
upon the institution by the other party of insolvency, receivership or
bankruptcy proceedings, (u) upon the institution of such proceedings against the
other party, which are not dismissed or otherwise resolved in such party's favor
within sixty (60) days thereafter, and (iii) upon the other party's dissolution
or ceasing to do business in the normal course.
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10.04 CUBIST may terminate this Agreement at any time, upon thirty (30)
days prior written notice to ELI LILLY and upon a reasonable determination by
CUBIST that continued development of the Compound hereunder is not commercially
reasonable. In such event, CUBIST shall refrain from the manufacture, marketing
or sale of a Compound for a period of at least [ ]*.
10.05 Termination of this Agreement for any reason shall not result in
any obligation by ELI LILLY to repay any payments made to it by CUBIST prior to
such termination.
10.06 Upon termination of this Agreement for any reason, the
sub-licenses shall be automatically assigned to ELI LILLY, and ELI LILLY shall
be bound by the terms of such sublicenses provided that the sub-licensees
continue to perform in accordance with their respective sub-license agreements.
Notwithstanding the foregoing, ELI LILLY's obligations to any such sub-licensee
shall not be interpreted to extend beyond any obligations to CUBIST hereunder
with respect to the subject matter of the sub-license.
10.07 (a) Upon termination of this Agreement for any reason, except for
termination caused by material breach by ELI LILLY, all licenses granted to
CUBIST pursuant to Section 2.01 shall terminate, CUBIST furthermore shall,
except subject to Section 10.01 where applicable, transfer to ELI LILLY all
regulatory filings and regulatory correspondence, patent filings and patent
office correspondence, any and all other clinical and non-clinical data, records
and tabulations related to the Compound; and shall execute any and all documents
of such patent offices and/or patent receiving offices, and/or regulatory
agencies, including the US FDA, so as to allow ELI LILLY to make immediate use
of such data, records, patent applications and/or patents and regulatory
filings. ELI LILLY shall not be obligated to treat such information received
pursuant to this Section 10.06 as Confidential Information and may use such
information, data and know-how for any purpose at ELI LILLY's discretion.
(b) If CUBIST terminates this Agreement due to ELI LILLY's
material breach, CUBIST'S licenses pursuant to Article 2 shall continue for so
long as CUBIST continues to fulfill their payment obligations pursuant to
Articles 4 and 5.
10.08 Termination of this Agreement for any reason shall not terminate
the provisions set forth in Article 6 with respect to actions arising with
respect to periods prior to termination, as well as Articles 7, 10, 13, 15,
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and 17 hereof. The obligations of those Articles shall continue in full force
and effect following any such termination.
10.09 Upon termination of this Agreement for any reason, neither party
shall be relieved of obligations with respect to periods prior thereto,
including any obligation to make payments, including but not limited to
obligations pursuant to Articles 4, 5, 6 or 10, or reports regarding sale prior
to such termination.
10.10 If CUBIST determines that it will not develop or market Compound
in one or more countries, either by itself or through the efforts of a
sublicensee, or if ELI LILLY makes written request to CUBIST to develop or sell
Compound in one or more countries and in which countries CUBIST either by itself
or through the efforts of a sublicensee, has taken no action, all rights
including rights to develop, market and sell Compound in that country(ies) shall
revert to ELI LILLY one year after CUBIST receives written notice of ELI LILLY's
intent to pursue those rights is received by CUBIST if CUBIST either by itself
or through the efforts of a sublicensee, has taken no action toward such
development or marketing prior to the end of that year.
ARTICLE 11
FORCE MAJEURE
11.00 If the performance of this Agreement or any obligations
hereunder, except the making of payments, is prevented, restricted or interfered
with by reason of fire or other casualty or accident, earthquake, supplier
delay, strikes or labor disputes, war or other violence, any law, order,
proclamation, regulations, ordinance, demand or requirement of any government
agency, or any other act or condition beyond the reasonable control of the
parties hereto ("Event of Force Majeure"), the party so affected upon giving
prompt notice to the other party shall be excused from such performance to the
extent of such prevention, restriction, or interference; provided that the party
so affected shall use its reasonable best efforts to avoid or remove such causes
of nonperformance and shall continue performance hereunder with the utmost
dispatch and that such party exercises due diligence to overcome such
circumstances.
11.01 The party suffering an Event of Force Majeure shall notify the
other party within fifteen (15) days of the occurrence of such Events of Force
Majeure and within thirty (30) days shall furnish the other party with a
recovery plan of action. Without limiting the foregoing, a party suffering an
Event of Force Majeure shall use its reasonable best efforts to limit the
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impact of the Event of Force Majeure on such party's performance of this
Agreement.
ARTICLE 12
NOTICES
12.00 Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been sufficiently given for all
purposes five (5) days after having been mailed by first class certified or
registered mail, postage prepaid or by fax which is confirmed by certified mail.
Unless otherwise specified in writing, the mailing addresses of the parties
shall be as described below.
For ELI LILLY:
ELI LILLY & COMPANY
Attn: Legal Division
Lilly Corporate Center
Indianapolis, Indiana 46285
For CUBIST:
Alan D. Watson, Ph.D.
Senior Vice President, Corporate Development
Cubist Pharmaceuticals Incorporated
24 Emily Street
Cambridge, MA 02139
with a copy to:
CUBIST'S Legal Counsel:
Michael Lytton
Palmer & Dodge
One Beacon Street
Boston, MA 02108
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ARTICLE 13
GOVERNING LAW
13.00 This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Indiana, United States of America, without
reference to conflict of laws principles.
In the event of any action, controversy or claim arising out of or
relating to any provision of this Agreement or the breach, termination or
enforceability thereof, ELI LILLY and CUBIST shall make all efforts to settle
those conflicts amicably between themselves. Should they fail to agree, the
parties may assert any remedy available at law or in equity to enforce its
rights under this Agreement.
ARTICLE 14
PARTIAL VALIDITY
14.00 If any provision of this Agreement shall be found or be held to
be invalid or unenforceable by a court of competent jurisdiction in which this
Agreement is being performed, then the meaning of said provision shall be
construed, to the extent feasible, so as to render the provision enforceable,
and if no feasible interpretation would save such provision, it shall be severed
from the remainder of this Agreement, which shall remain in full force and
effect. In such event, the parties shall negotiate, in good faith, a substitute,
valid and enforceable provision which most nearly effects the parties' intent in
entering into this Agreement.
ARTICLE 15
CONFIDENTIALITY.
15.00 Except as otherwise provided in this Article 15, during the term
of this Agreement and for a period of [ ]* years thereafter, the parties shall
maintain the Confidential Information in confidence and use it only for purposes
specifically authorized under this Agreement. To the extent it is reasonably
necessary or appropriate to fulfill its obligations or exercise its rights under
this Agreement: (i) a party may disclose Confidential Information it is
otherwise obligated under this Article 15 not to disclose to third parties, on a
need-to- know basis and on condition that such entities or persons agree to keep
the Confidential Information confidential for the same time periods and to the
same extent as such party is required to keep the Confidential Information
confidential hereunder; and (ii) a party may disclose
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such Confidential Information to government or other regulatory authorities as
required by law or statute. The parties hereto understand and agree that
remedies at law may be inadequate to protect against any breach of any of the
provisions of this Article 15 by either party or their employees, agents,
officers or directors or any other person acting in concert with it or on its
behalf. Accordingly, each party shall be entitled to, but not limited to, the
granting of injunctive relief by a court of competent jurisdiction against any
action that constitutes any such breach of this Article 15.
15.01 Notwithstanding the provisions of Section 15.00 above, CUBIST
shall be free to make disclosures to third parties of Confidential Information
of ELI LILLY consisting of data regarding the Compound in the Field under
circumstances where, in CUBIST'S reasonable business judgment, such disclosures
will (i) further the development and commercialization of the Compound and (u)
not adversely affect any patent rights of ELI LILLY of which it is aware;
PROVIDED, HOWEVER, that in the case of (a) technical papers disclosing such
Confidential Information, or (b) other disclosures where ELI LILLY'S name is
used or would reasonably be implied from the context, CUBIST will provide a copy
of the proposed paper or disclosure to ELI LILLY at least two (2) weeks in
advance of publication and will not proceed with such publication or disclosure
without the consent of ELI LILLY, which consent will not be unreasonably
withheld; and FURTHER, PROVIDED, that in the case of all other written
disclosures of Confidential Information, CUBIST will provide to ELI LILLY a copy
of the material incorporating such disclosure as promptly as is practicable, and
in no event later than one (1) week after the disclosure takes place.
15.02 ELI LILLY will make no public pronouncements referencing this
Agreement or CUBIST without CUBIST's express written approval. No license or
rights are granted to either party to use the name of the other without express
written approval. CUBIST shall not release any information regarding the
existence or terms of this Agreement that is not required by law.
ARTICLE 16
ENTIRE AGREEMENT
16.00 The terms and conditions herein contained, including the Exhibits
hereto, constitute the entire agreement and understanding of the parties
relating to the subject matter of this Agreement and supersedes all previous
communications, proposals, representations, and agreements (including the
License Agreement dated November 7, 1997) whether oral or written, relating to
the subject matter of this Agreement.
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No agreement or understanding varying or extending the same shall be
binding upon either party hereto unless in a written document which expressly
refers to this Agreement and which is signed by both parties to be bound
thereby.
ARTICLE 17
MISCELLANEOUS
17.00 It is understood and agreed that each party shall have the status
of an independent contractor under this Agreement and that nothing in this
Agreement shall be construed as authorization for either ELI LILLY or CUBIST to
act as agent for the other. Nothing contained herein or done in pursuance of
this Agreement shall constitute either party the agent of the other party for
any purpose or in any sense whatsoever, or constitute the parties as partners or
joint venturers.
17.01 The failure of either party to enforce at any time any of the
provisions of this Agreement, or the failure to require at any time performance
by the other party of any of the provisions of this Agreement, shall in no way
be construed to be a present or future waiver of such provisions, nor in any way
affect the validity of either party to enforce each and every such provision
thereafter.
17.02 The headings set forth at the beginning of the various Articles
of this Agreement are for reference and convenience and shall not affect the
meanings of the provisions of this Agreement.
17.03 During the term of this Agreement, ELI LILLY shall not, directly
or indirectly through or in connection with any third party, conduct research,
develop, make or market Compound for use in the Field.
17.04 This Agreement may not be amended, supplemented, or otherwise
modified except by an instrument in writing signed by both parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed in duplicate by duly authorized officers or representatives as of the
date first above written.
ELI LILLY & COMPANY CUBIST PHARMACEUTICALS
INCORPORATED
By: /s/ M.E. DANIELS, JR. By: /s/ ALAN WATSON
--------------------- ---------------------
Print name: M.E. Daniel, Jr. Print name: Alan Watson
Title: Sr. Vice President Title: Senior Vice President
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