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(a) In the event of a termination of this Agreement in its entirety or on an Exclusively Licensed DUB-by-Exclusively Licensed DUB basis (all such Exclusively Licensed DUBs so terminated, collectively "Terminated DUBs") by AbbVie pursuant to Section 9.2 or by Mission pursuant to Section 9.3, 9.4(a), 9.5 or 9.6 the follo... |
(i) all rights and licenses granted by Mission hereunder shall terminate in the event this Agreement is terminated in its entirety (except all rights and licenses granted by Mission pursuant to clause (vii) below shall survive in full force and effect), or if this Agreement is partially terminated with respect to an Ex... |
(ii) all rights and licenses granted by AbbVie hereunder shall terminate in the event this Agreement is terminated in its entirety, or if this Agreement is partially terminated with respect to an Exclusively Licensed DUB, all rights and licenses granted by AbbVie hereunder shall automatically be deemed to be amended to... |
(iii) solely with respect to a Terminated DUB (or with respect to all Exclusively Licensed DUBs in the event this Agreement is terminated in its entirety), AbbVie shall, and hereby does effective as of the effective date of termination, grant to Mission an exclusive royalty-free license, with the right to sublicense, u... |
(iv) to the extent that AbbVie has taken over the prosecution and/or maintenance of any Patent within the Mission Background Patents, Mission Product Patents, Joint Program Patents or Other Mission Patents that relate to the Terminated DUB, Terminated Compounds and/or Terminated Licensed Products then, upon termination... |
(v) except as may otherwise be agreed in writing by the Parties, AbbVie shall either, as directed by Mission on an activity-by activity basis, (y) wind-down such ongoing Development activities (including any Clinical Studies) of AbbVie and its Affiliates and Sublicensees with respect to such Terminated DUB (except in r... |
(vi) AbbVie may continue the research, Development or Commercialization of any Compound that is an AbbVie Compound and any Licensed Product containing any AbbVie Compound which is a DUB Hit in respect of the Terminated DUB provided that it shall be obliged to continue making payments provided for in ARTICLE 6 in respec... |
(vii) solely in the event this Agreement is terminated in its entirety, Mission shall, and hereby does effective as of the effective date of such termination, grant to AbbVie an exclusive royalty-free license, with the right to sublicense, under Mission's rights under the Joint Program IP, to research, Develop or Explo... |
(b) In the event of a termination of this Agreement in its entirety or on an Exclusively Licensed DUB-by-Exclusively Licensed DUB basis by AbbVie pursuant to Section 9.4(a) or 9.6: |
(i) all rights and licenses granted by AbbVie hereunder shall terminate in the event this Agreement is terminated in its entirety, or if this Agreement is partially terminated with respect to an Exclusively Licensed DUB, all rights and licenses granted by AbbVie hereunder shall automatically be deemed to be amended to ... |
(ii) solely with respect to a Terminated DUB (or with respect to all Exclusively Licensed DUBs in the event this Agreement is terminated in its entirety), AbbVie shall, and hereby does effective as of the effective date of termination, grant to Mission an exclusive royalty-free license, with the right to sublicense, un... |
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AbbVie be required to provide a license grant to Exploit any Unrestricted Mission Compound not otherwise identified as such pursuant to Section 9.8(b)(iii) below; |
(iii) within twenty (20) days after the effective date of termination, AbbVie shall provide Mission all Mission Derived Compounds in its possession that have not previously been subjected to a DUB Selectivity Screen. Based on the samples provided by AbbVie, Mission shall generate a list within six (6) months after the ... |
(iv) solely in the event this Agreement is terminated in its entirety, Mission shall, and hereby does effective as of the effective date of such termination, grant to AbbVie an exclusive royalty-free license, with the right to sublicense, under Mission's rights under the Joint Program IP, to research, Develop or Exploi... |
(v) AbbVie may continue the research, Development or Commercialization of any Compound that is an AbbVie Compound and any Licensed Product containing an AbbVie Compound which is a DUB Hit in respect of the Terminated DUB provided that it shall be obliged to continue making payments provided for in ARTICLE 6 in respect ... |
(vi) all the licenses granted by Mission hereunder shall terminate except solely in the event of a termination of this Agreement in its entirety or on an Exclusively Licensed DUB-by-Exclusively Licensed DUB basis by AbbVie pursuant to Section 9.4(a) due to an uncured breach of Mission's exclusivity obligations in Secti... |
9.9 Return of Confidential Information. The provisions of Section 8.8 shall apply on termination of this Agreement in respect of each Terminated DUB and each Terminated Compound and Terminated Licensed Product. |
9.10 Transition Assistance. |
(a) In the event of termination of this Agreement, whether in its entirety or with respect to a Terminated DUB by AbbVie pursuant to Section 9.2 or by Mission pursuant to Section 9.3, 9.4(a), 9.5 or 9.6, Mission and AbbVie shall negotiate in good faith the terms and conditions of a written transition agreement (the "Tr... |
termination of this Agreement (in its entirety or with respect to the Terminated DUB, as applicable) as and to the extent set forth in this ARTICLE 9. |
(b) The Transition Agreement shall provide that in the event of a termination of this Agreement in its entirety or with respect to a Terminated DUB by AbbVie pursuant to Section 9.2 or by Mission pursuant to Section 9.3, 9.4(a), 9.5 or 9.6, AbbVie shall: |
(i) upon Mission's written request, provide Mission with copies of Regulatory Materials then owned by AbbVie and in its name applicable to the Terminated Licensed Products in the Territory that are subject of the license grant in Section 9.8(a)(iii). Where permitted by Applicable Law, AbbVie shall either assign to Miss... |
(ii) upon Mission's written request, provide to Mission copies of all material related documentation, including material preclinical and clinical data that are held by and reasonably available to AbbVie with respect to the Terminated Compounds and Terminated Licensed Products in the Territory that are subject of the li... |
(iii) notify the applicable Regulatory Authorities and take any other action reasonably necessary to effect the transfer set forth in clause (i) above. |
9.11 Other Remedies. Termination or expiration of this Agreement for any reason shall not release either Party from any liability or obligation that already has accrued prior to such expiration or termination, nor affect the survival of any provision hereof to the extent it is expressly stated to survive such terminati... |
9.12 Accrued Rights; Surviving Obligations. |
(a) Termination or expiration of this Agreement shall not affect rights or obligations of the Parties under this Agreement that have accrued prior to the date of termination or expiration of this Agreement. Such termination or expiration shall not relieve a Party from obligations that are expressly indicated to survive... |
(i) The following Sections shall survive termination or expiration of this Agreement for any reason: Section 2.4, the first and second sentences of Section 3.6 (with respect to reports covering activities taking place during the Term), Sections 4.4(b) (except where termination has been by AbbVie pursuant to Sections 9.... |
(ii) The following Sections shall survive termination of this Agreement by AbbVie pursuant to Section 9.4 due to an uncured breach of Mission's exclusivity obligations in Section 4.10: Section 4.7 and subparagraph (i) of Section 4.10(d) (for the duration of the Royalty Term with respect to any royalties payable by AbbV... |
(iii) Section 9.1, Section 4.1(b) and Section 4.2 shall survive the expiration of this Agreement but not its termination. |
(b) Notwithstanding the termination of AbbVie's licenses and other rights under this Agreement, AbbVie, its Affiliates and Sublicensees shall be entitled to continue to sell (but not to actively promote after the effective date of termination) any existing inventory and any in-progress inventory of Terminated Licensed ... |
ARTICLE 10 REPRESENTATIONS AND WARRANTIES |
10.1 Mutual Representations and Warranties. Mission and AbbVie each represents and warrants to the other, as of the Effective Date, and covenants, as follows: |
(a) Organization. It is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, and has all requisite power and authority, corporate or otherwise, to execute, deliver, and perform this Agreement. |
(b) Authorization. The execution and delivery of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action, and do not violate (i) such Party's charter documents, bylaws, or other organizational documents, (ii) in any material respect, a... |
(c) Binding Agreement. This Agreement is a legal, valid, and binding obligation of such Party enforceable against it in accordance with its terms and conditions, subject to the effects of bankruptcy, insolvency, or other laws of general application affecting the enforcement of creditor rights, judicial principles affec... |
(d) No Inconsistent Obligation. It is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in any material respect with the terms of this Agreement, or that would impede the diligent and complete fulfillment of its obligations hereunder. |
(e) No Litigation. There is no action or proceeding pending or, to the knowledge of such Party, threatened that could reasonably be expected to impair or delay the ability of such Party to perform its obligations under this Agreement. |
10.2 Additional Representations, Warranties and Covenants of Mission. Except as disclosed to AbbVie, Mission further represents and warrants to AbbVie, as of the Effective Date, and covenants, as follows: |
(a) All Mission Background Patents existing as of the Effective Date are listed on Schedule 1.108 (the "Existing Patents"). |
(b) There are no judgments, or settlements against, or amounts with respect thereto, owed by Mission or any of its Affiliates relating to the Existing Patents or the Mission Background Know-How. Mission has not received any written claim or threat nor is it party to any litigation brought by any Person alleging, and Mi... |
(c) Mission is the sole and exclusive owner of the entire right, title and interest in the Existing Patents and the Mission Background Know-How, free of any encumbrance, lien, or claim of ownership by any Third Party. |
(d) To Mission's Knowledge, Mission has the right to use all Information and Patents necessary to conduct the Research Plan. Mission has the right to grant the licenses specified herein. |
(e) During the Term, neither Mission nor any of its Affiliates shall grant any right to a Third Party that would result in it being unable to comply with its obligations hereunder. |
(f) The Existing Patents have been filed and maintained in good faith and all applicable fees have been paid on or before the due date for payment. |
(g) To the Knowledge of Mission, wherever required by Applicable Law, Mission and its Affiliates have presented all relevant references, documents, or other information of which it is aware and, in good faith, considers material to the patentability of such Existing Patents to the relevant patent examiner at the releva... |
(h) Neither Mission nor any of its Affiliates has assigned or granted any rights or licenses that would conflict with the scope of this Agreement in respect of any Patent or other intellectual property or proprietary right or Information that would be an Existing Patent or Mission Background Know-How and included with ... |
(i) To Mission's Knowledge, no Person is infringing or misappropriating the Existing Patents or the Mission Background Know-How. |
(j) True, complete, and correct copies of the file wrapper and other documents and materials relating to the prosecution, defense, maintenance, validity, and enforceability of the Existing Patents have been provided or made available to AbbVie prior to the Effective Date. |
(k) The conception, development, and reduction to practice of the Existing Patents and Mission Background Know-How existing as of the Effective Date have not constituted or involved the misappropriation of trade secrets or other rights or property of any Person. |
(l) The Existing Patents represent all Patents within Mission's or its Affiliates' ownership or Control relating to the Mission Compounds, Mission Derived Compounds, or the Licensed Products, or the Exploitation thereof, as of the Effective Date. There is no Information owned or Controlled by Mission or any of its Affi... |
(m) Each of the Existing Patents properly identifies each and every inventor of the claims thereof as determined in accordance with the laws of the jurisdiction in which such Existing Patent is issued or such application is pending. |
(n) Mission does not require the consent of any Third Party for AbbVie to exercise its rights and perform its obligations under this Agreement. |
(o) Mission has obtained the right (including under any Patents and other intellectual property rights) to use all Information and all other materials developed or delivered by any Third Party under any agreements between Mission and any such Third Party with respect to the Mission Compounds and Mission Derived Compoun... |
(p) To the Knowledge of Mission, no Third Party has breached in any material respects the terms of confidentiality under which the Mission Background Know-How has been disclosed to such Third Party by Mission. |
(q) To the Knowledge of Mission, all Mission Background Know-How and other Information regarding or related to the Mission Compounds, Mission Derived Compounds, or the Licensed Products made available to AbbVie by Mission are (and, if made available after the Effective Date, will be) true, complete, and correct. |
(r) There are no agreements between Mission (or its Affiliates, as applicable) and a Third Party pursuant to which such Third Party licenses to Mission (or its Affiliates, as applicable) any Patents or Know-How included in the Mission IP. There are no amounts that will be required to be paid to a Third Party as a resul... |
(s) The inventions claimed or covered by the Existing Patents (a) were not conceived, discovered, developed, or otherwise made in connection with any research activities funded, in whole or in part, by the federal government of the United States or any agency thereof, (b) are not a "subject invention" as that term is d... |
10.3 Mutual Warranty. Each Party represents that: (a) it has not been debarred by the FDA pursuant to its authority under Sections 306(a) and (b) of the U.S. Food, Drug, and Cosmetic Act (21 U.S.C.. § 335(a) and (b)) and, to such Party's Knowledge, is not the subject of any investigation or proceeding which may result ... |
10.4 No Other Representations or Warranties. EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 10 OR ELSEWHERE IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR GRANTS ANY WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,... |
ARTICLE 11 INDEMNIFICATION AND LIMITATION OF LIABILITY |
11.1 Indemnification by Mission for Third Party Claims. Mission shall defend, indemnify, and hold AbbVie, its Affiliates, and their respective officers, directors, employees, and agents (the "AbbVie Indemnitees") harmless from and against any and all losses, damages, liabilities, penalties, costs and expenses payable t... |
(a) a breach of any of Mission's representations, warranties, covenants and obligations under this Agreement; |
(b) the gross negligence or willful misconduct of any Mission Indemnitees in the performance of this Agreement; |
(c) the research or pre-clinical Development of Compounds in connection with activities before the Effective Date or in connection with the activities performed by Mission under the Research Plan; or |
(d) the research, Development, manufacture, storage, handling, use, sale, offer for sale, importation and commercialization of Unrestricted Mission Compounds by Mission or its Affiliates, or sublicensees (including product liability claims (including failures to warn, misuse and strict liability claims) and claims for ... |
The foregoing indemnity obligations shall not apply to the extent that any AbbVie Claim is subject to indemnity pursuant to Section 11.2. |
11.2 Indemnification by AbbVie for Third Party Claims. AbbVie shall defend, indemnify, and hold Mission, its Affiliates, and each of their respective officers, directors, employees, and agents, (the "Mission Indemnitees") harmless from and against any and all losses, damages, liabilities, penalties, costs and expenses ... |
(a) the research, Development, manufacture, storage, handling, use, sale, offer for sale, importation and Commercialization of Compounds or Licensed Products by AbbVie or its Affiliates, or Sublicensees (including product liability claims (including failures to warn, misuse and strict liability claims) and, subject to ... |
(b) a breach of any of AbbVie's representations, warranties, covenants and obligations under this Agreement; or |
(c) the gross negligence or willful misconduct of any AbbVie Indemnitees, except to the extent that such failure is attributable to a breach by Mission of its obligations under this Agreement. |
The foregoing indemnity obligations shall not apply to the extent that any Mission Claim is subject to indemnity pursuant to Section 11.1. |
11.3 Indemnification Procedures. In order for a party claiming indemnity under this ARTICLE 11 (the "Indemnified Party") to be entitled to any indemnification provided for under this ARTICLE 11, the Indemnified Party shall give written notice to the Party from whom indemnity is being sought (the "Indemnifying Party") w... |
11.4 Limitation of Liability. EXCEPT (A) WILLFUL MISCONDUCT, (B) TO THE EXTENT ANY DAMAGES ARE REQUIRED TO BE PAID TO A THIRD PARTY BY AN INDEMNIFIED PARTY FOR WHICH THE INDEMNIFIED PARTY IS ENTITLED TO INDEMNIFICATION UNDER THIS ARTICLE 11, AND/OR (C) FOR A PARTY'S BREACH OF ITS OBLIGATIONS UNDER 4.10 (EXCLUSIVITY) OR... |
11.5 Insurance. AbbVie shall maintain a program of self-insurance sufficient to fulfill its obligations under this Agreement. Mission shall procure and maintain such type and amounts of insurance covering its Research Program activities hereunder which are consistent with normal business practices of prudent companies ... |
ARTICLE 12 DISPUTE RESOLUTION |
12.1 Dispute Resolution. Except for disputes resolved by the procedures set forth in Section 2.1(f) or 6.11, if a dispute arises between the Parties in connection with or relating to this Agreement or any document or instrument delivered in connection herewith (a "Dispute"), it shall be resolved pursuant to this Sectio... |
(a) General. Any Dispute shall first be referred to the Senior Officers of the Parties, who shall confer in good faith on the resolution of the issue. Any final decision mutually agreed to by the Executive Officers shall be conclusive and binding on the Parties. If the Executive Officers are not able to agree on the re... |
(b) Jurisdiction. The Parties hereby agree that any Dispute relating to this Agreement shall be subject to the exclusive jurisdiction of the courts in New York City, New York. |
(c) Intellectual Property Disputes. In the event that a Dispute arises with respect to the validity, scope, enforceability, inventorship or ownership of any Patent, Trademark or other intellectual property rights, and such Dispute cannot be resolved in accordance with Section 12.1(a), except as otherwise provided in Se... |
(d) Expert Arbitration. If, following written notice from Mission pursuant to Section 9.3(a), AbbVie disputes that a DUB Failure has occurred, such Dispute shall take place pursuant to the following procedures: |
(i) A proceeding pursuant to this Section 12.1(d) shall begin upon AbbVie's written notice to Mission of the Dispute to be resolved pursuant to this Section 12.1(d). Within thirty (30) days following such written notice to Mission, the Parties shall select a mutually acceptable independent, impartial and conflicts-free... |
(ii) No earlier than thirty (30) days or later than sixty (60) days after selection of the Neutral, the Neutral shall hold a hearing to resolve the Dispute. Such proceeding shall take place at a location agreed upon by the Parties. If the Parties cannot agree, the Neutral shall designate a location other than the princ... |
(iii) The Neutral shall rule on the Dispute within fourteen (14) days following completion of the hearing. |
(iv) In the event that AbbVie is the prevailing Party: |
(1) In the case of a Stage 1A DUB Failure, AbbVie will have the right to substitute one (1) Pre-Selected DUB (the "New Initially Selected DUB") in place of an existing Initially Selected DUB selected by AbbVie pursuant to Section 9.3(a) (the "Replaced Initially Selected DUB") at any time within three (3) months followi... |
(2) In the case of a Stage 1B DUB Failure AbbVie will have the right to substitute one (1) Initially Selected DUB (the "New Selected DUB") in place of an existing Selected DUB selected by AbbVie pursuant to Section 9.3(a) (the "Replaced Selected DUB") at any time within three (3) months following Mission's completion o... |
(v) In the event that Mission is the prevailing Party and AbbVie has selected any Initially Selected DUBs or Selected DUBs pursuant to Section 9.3(a), any such Initially Selected DUBs or Selected DUBs shall remain Initially Selected DUBs or Selected DUBs, as applicable. |
(vi) The fees and expenses of the Neutral, along with the reasonable legal fees and expenses of the prevailing Party, and any expenses for a hearing room, shall be paid by the losing Party. |
(vii) The rulings of the Neutral and the allocation of fees and expenses shall be binding, non-reviewable, and non-appealable, and may be entered as a final judgment in any court having jurisdiction. |
(viii) Except as provided in clause (vii) of this Section 12.1(d), the existence of the Dispute, any settlement negotiations, the proceeding, any submissions, and the rulings shall be deemed Confidential Information of both Parties. |
(e) Interim Relief. Notwithstanding anything herein to the contrary, nothing in this Section 12.1 shall preclude either Party from seeking interim or provisional relief, including a temporary restraining order, preliminary injunction or other interim equitable relief concerning a Dispute, if necessary to protect the in... |
ARTICLE 13 MISCELLANEOUS |
13.1 Force Majeure. Neither Party shall be held liable or responsible to the other Party or be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement (other than an obligation to make payments) when such failure or delay is caused by or resu... |
13.2 Export Control. The Parties acknowledge that certain products, technology, technical data and software (including certain services and training) and certain transactions may be subject to export controls and/or sanctions under Applicable Law (including the Export Administration Regulations, 15 C.F.R. §§730-774, th... |
13.3 Assignment. Without the prior written consent of the other Party, neither Party shall sell, transfer, assign, delegate, pledge, or otherwise dispose of, whether voluntarily, involuntarily, by operation of law or otherwise, this Agreement or any of its rights or duties hereunder to any Third Party except (a) to an ... |
13.4 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, and if the rights or obligations of either Party under this Agreement will not be materially and adversely affected thereby, (i) such provision shall be fully severable, (ii) this Agre... |
13.5 Governing Law and Service. |
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