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Dyax Corp. has requested that the highlighted portions of this document be accorded confidential treatment pursuant to Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
PRODUCT DEVELOPMENT AND LICENSE AGREEMENT
BY AND BETWEEN
CMIC CO. LTD.
DATED AS OF SEPTEMBER 28, 2010
Confidential materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote such omission.
PRODUCT DEVELOPMENT AND LICENSE AGREEMENT
This Product Development and License Agreement (this " Agreement ") is made effective as of September 28, 2010 (the " Effective Date ") by and between Dyax Corp., with offices at 300 Technology Square, Cambridge, Massachusetts 02139, U.S.A. (" Dyax "), and CMIC Co. Ltd., with offices at Kongo Bldg, 7-10-4 Nishigotanda, Shinagawa-ku, Tokyo 141-0031 (" CMIC ").
WHEREAS, Dyax owns or controls certain patents, know-how and other rights related to its proprietary novel plasma kallikrein inhibitor known as DX-88 (ecallantide);
WHEREAS, CMIC is engaged in the development and commercialization of pharmaceutical products in Japan;
WHEREAS, CMIC desires to obtain a license from Dyax to develop products incorporating DX-88 for the treatment of angioedemas in the CMIC Territory (as such term is defined herein); and
WHEREAS, Dyax is willing to grant CMIC such a license on the terms and conditions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, Dyax and CMIC hereby agree as follows:
As used in this Agreement, the following terms shall have the meanings set forth below:
1.1 " Affiliate ". Affiliate shall mean with respect to any Person, any Person controlling, controlled by or under common control with the former Person. For the purposes of this Section 1.1, "control" shall mean (a) in the case of a Person that is a corporate entity, the direct or indirect ownership of more than fifty percent (50%) of the stock, shares or ownership interest having the right to vote for the election of directors of such Person and (b) in the case of a Person that is an entity, but is not a corporate entity, the direct or indirect possession of the power to direct, or cause the direction of, the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
1.2 " Alliance Manager ". Alliance Manager shall have the meaning given to that term under Section 2.6.
1.3 " Bankruptcy Code ". The Bankruptcy Code shall mean Title 11 of the United States Code.
1.4 " Batch ". Batch shall mean a quantity of Drug Substance manufactured by Dyax (or its CMO) that (a) is expected to have a uniform character and quality within specified limits, and (b) is produced according to a single manufacturing run during the same cycle.
1.5 " Blocking Third Party Patent Rights ". Blocking Third Party Patent Rights shall mean, with respect to any country in the CMIC Territory, on a country-by-country basis, the Patent Rights in such country owned or controlled by a Third Party that would Cover Product or its Manufacture or Commercialization in the Field. Notwithstanding the foregoing, the [******].
1.6 " Breaching Party ". Breaching Party shall have the meaning given to that term under Section 12.2(b).
1.7 " Business Day ". Business Day shall mean a day that is not a Saturday, Sunday or a day on which banking institutions in Cambridge, Massachusetts, USA or Tokyo, Japan remain closed.
1.8 " Calendar Quarter ". Calendar Quarter shall mean each of the periods ending on March 31, June 30, September 30 and December 31 of any year.
Confidential materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote such omission.
1.9 " Challenging Party ". Challenging Party shall have the meaning given to that term under Section 12.2(d).
1.10 " CMIC Development Data ". CMIC Development Data shall mean, as it pertains to Product or its use, all pharmacology and toxicology data and information, pre-clinical study data, clinical trial data, protocols, safety data, quality data and other regulatory information and reports, whether in written or electronic form, generated or developed by CMIC or any of its Affiliates in the course of performing the activities under this Agreement during the Term.
1.11 " CMIC Intellectual Property ". CMIC Intellectual Property shall mean CMIC Know-How and CMIC Patent Rights, collectively.
1.12 " CMIC Know-How ". CMIC Know-How shall mean any Know-How that (a) [******], and (b) is useful for the Development, Manufacture and/or Commercialization of Compound or Product as contemplated by this Agreement.
1.13 " CMIC Patent Rights ". CMIC Patent Rights shall mean any Patent Rights that (a) claim CMIC Know-How, and (b) [******]. CMIC Patent Rights shall include CMIC's rights in Joint Patent Rights as well as any Patent Rights covering CMIC Sole Inventions.
1.14 " CMIC Product Trademarks ". CMIC Product Trademarks shall have the meaning given to that term under Section 8.8(d)
1.15 " CMIC Promotional Materials ". CMIC Promotional Materials shall have the meaning given to that term in Section 5.2.
1.16 " CMIC Sole Inventions ". CMIC Sole Inventions shall have the meaning given to that term under Section 8.1(b).
1.17 " CMIC Territory ". CMIC Territory shall mean Japan. Furthermore, if, pursuant to the Right of Second Offer described in Section 3.6, Dyax and CMIC reach a full agreement on the terms and conditions of a license to develop, manufacture and/or commercialize Product in the People's Republic of China, then, subject to such terms and conditions, CMIC Territory shall thereafter include the People's Republic of China.
1.18 " CMO ". CMO shall mean a contract manufacturing organization contracting with Dyax to supply Dyax or CMIC with Drug Substance or Drug Product pursuant to Article VI.
1.19 " Commercialization " or " Commercialize ". Commercialization or Commercialize shall mean the activities to market, promote, store, import, export, offer to sell and sell Product, including conducting any Post-Approval Studies to support Commercialization. Commercialization shall not include any activities that are covered by the definitions of "Development", "Manufacturing" or "Post-Filing Activities".
1.20 " Commercially Reasonable Efforts ". Commercially Reasonable Efforts shall mean the conduct and completion of an activity by a Party in a diligent and commercially reasonable manner, using efforts not less than the efforts the Party uses to other similar activities, based on conditions then prevailing and any other technical, legal, scientific, medical or commercial factors that the Party deems in good faith to be relevant.
1.21 " Competitive Infringement ". Competitive Infringement shall have the meaning given to that term under Section 8.3(a).
1.22 " Competitive Product ". Competitive Product shall mean [******].
1.23 " Complaint ". Complaint shall mean any information concerning any side effect, injury, toxicity or sensitivity reaction, or any unexpected incident, adverse drug experience (as that term is defined in Section 505-1 of the FDCA) or adverse event (as that term is defined under the ICH Guidelines) in or involving a subject or, in the case of pre-clinical studies, an animal in a toxicology study, and the seriousness thereof, whether or not determined to be attributable to Compound or Product, including any such information received by either Party from its Related Parties or other Third Parties.
Confidential materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote such omission.
1.24 " Compound ". Compound shall mean the compound known as DX-88 (ecallantide) with the amino acid sequence described in Exhibit A .
1.25 " Confidential Information ". Confidential Information shall have the meaning given to that term under Section 9.1.
1.26 " Confidentiality Agreement ". Confidentiality Agreement shall mean the Confidentiality Agreement executed by and between the parties hereto as of June 2, 2009.
1.27 " Control " or " Controlled ". Control or Controlled shall mean, with respect to any intellectual property right or other intangible property, or Know-How, the possession (whether by license granted to or ownership vested in a Party or its Affiliate, other than pursuant to this Agreement) by the Party of the ability to grant to the other Party access, ownership and/or a license or sublicense as provided for herein without violating the terms and conditions of any agreement with any Third Party [******].
For clarity, this proviso shall not apply to any In-License of Blocking Third Party Patent Rights.
1.28 " Cover ", " Covering " or " Covered ". Cover, Covering or Covered shall mean, with respect to Compound, Product and/or technology, that (a) in the absence of a license granted under a Valid Claim of an issued patent, the making, use, offering for sale, sale, or importation of Compound or Product, or the practice of such technology would infringe such Valid Claim, and (b) in the absence of a license granted under a Valid Claim of a patent application, the making, use, offering for sale, sale, or importation of Compound or Product, or the practice of such technology would infringe such Valid Claim if it were to issue in a patent.
1.29 " Development " or " Develop ". Development or Develop shall mean, in respect of Compound or Product, pre-clinical and clinical research and drug development activities, including toxicology, test method development and stability testing and studies, process development, formulation development, delivery system development, quality assurance and quality control development, statistical analysis, clinical studies (other than post-approval studies), regulatory affairs, and product approval and regulatory activities (excluding regulatory activities directed to obtaining pricing and reimbursement approvals).
1.30 " Development Costs ". Development Costs shall mean, with respect to Compound or Product, all of the out-of-pocket and internal costs and expenses incurred by or on behalf of the Parties after the Effective Date in connection with the Development of Compound or Product for use in the Field. Development Costs shall consist of:
Development Costs shall not include any costs associated with Post-Filing Activities or Post-Approval Studies, which shall be included in Regulatory Activities Costs.
1.31 " Development Plan ". Development Plan shall mean (i) the HAE Development Plan approved by the JSC under Section 4.1 and (ii) any Other Angioedema Development Plan approved by the JSC under Section 4.2.
1.32 " Drug Product ". Drug Product shall mean the finished Product formulation containing Drug Substance filled into unlabelled vials.
1.33 " Drug Product Order Limit ". Drug Product Order Limit shall mean, with respect to any order for Drug Product placed during a Calendar Quarter, a quantity equal to [******].
1.34 " Drug Substance ". Drug Substance shall mean Compound in bulk form manufactured for use as an active pharmaceutical ingredient in Drug Product.
1.35 " Drug Substance Inventory ". Drug Substance Inventory shall mean Drug Substance that (i) has been Manufactured by Dyax (and for which quality release has been completed) pursuant to an order placed by CMIC in accordance with Section 6.1(c), and (ii) is being held by Dyax (or its contractor) on behalf of CMIC for use in the Manufacture of Drug Product ordered by CMIC in accordance with Section 6.1(d).
1.36 " Drug Substance Order Limit ". Drug Substance Order Limit shall mean, with respect to any order for Drug Substance placed during a Calendar Quarter, a quantity equal to the lower of:
1.37 " Dyax Development Data ". Dyax Development Data shall mean, as it pertains to Product or its use in Field, all pharmacology and toxicology data and information, pre-clinical study data, clinical trial data, protocols, safety data, quality data and other regulatory information and reports, whether in written or electronic form, generated or developed by Dyax or its Affiliates in the course of developing Product in Field.
1.38 " Dyax Intellectual Property ". Dyax Intellectual Property shall mean Dyax Know-How and Dyax Patent Rights.
1.39 " Dyax Know-How ". Dyax Know-How shall mean any Know-How that (a) either is owned or Controlled by Dyax on the Effective Date [******] and (b) is necessary for the Development, Manufacture and/or Commercialization of Product as contemplated by this Agreement, including all Know-How generated or developed by or for Dyax or its Affiliates in the course of Development of Product. Notwithstanding the foregoing, Dyax Know-How shall specifically exclude:
1.40 " Dyax Patent Rights ". Dyax Patent Rights shall mean any Patent Rights that (a) Cover Dyax Know-How and (b) are owned or Controlled by Dyax on the Effective Date or come within Dyax's Control during the Term, including Existing Dyax Patent Rights, Dyax's rights in Joint Patent Rights, and any Patent Rights applicable to Dyax Sole Inventions. Notwithstanding the foregoing, Dyax Patent Rights shall specifically exclude [******].
1.41 " Dyax Product Trademarks ". Dyax Product Trademarks shall have the meaning given to that term under Section 8.8(b).
1.42 " Dyax Sole Inventions ". Dyax Sole Inventions shall have the meaning given to that term under Section 8.1(b).
1.43 " Dyax Territory ". Dyax Territory shall mean all the countries of the world outside CMIC Territory.
1.44 " Executive Officers ". Executive Officers shall mean the Chief Executive Officer of Dyax (or a senior executive officer of Dyax designated by Dyax's Chief Executive Officer) and the Chief Executive Officer of CMIC (or a senior executive officer of CMIC designated by CMIC's Chief Executive Officer).
1.45 " Existing Dyax Patent Rights ". Existing Dyax Patent Rights shall mean those Dyax Patent Rights specifically listed on Exhibit B .
1.46 " FDA ". FDA shall mean the United States Food and Drug Administration or any successor agency thereto.
1.47 " FDCA ". FDCA shall mean the United States Federal Food, Drug and Cosmetic Act, as amended.
1.48 " Field ". Field shall mean use in the HAE and Other Angioedema Indications. Notwithstanding anything to the contrary contained herein, in no event shall Field include any use in any other Indications (including any Indications in Opthalmic Field or Surgical Field, which are specifically excluded from the rights granted to CMIC under this Agreement).
1.49 " First Commercial Sale ". First Commercial Sale shall mean, with respect to Product in a country, the first commercial sale of Product in the country.
1.50 " GAAP ". GAAP shall mean (a) with respect to Dyax, generally accepted accounting principles in the United States as consistently applied by Dyax in the preparation of its financial statements and (b) with respect to CMIC, generally accepted accounting principles in Japan as consistently applied by CMIC in the preparation of its financial statements.
1.51 " HAE ". HAE shall mean hereditary angioedema.
1.52 " HAE Development Plan ". HAE Development Plan shall have the meaning given to that term under Section 4.1.
1.53 " ICH Guidelines ". ICH Guidelines shall mean the International Conference on Harmonisation guidelines, including E2A, E2B, E2C and E2D thereof as amended and any replacement thereof.
1.54 " IND ". IND shall mean an Investigational New Drug Application filed with FDA or a similar application to conduct clinical studies filed with an applicable Regulatory Authority outside of the United States.
1.55 " Indemnified Parties ". Indemnified Parties shall have the meaning given to that term under Section 11.3.
1.56 " Indemnifying Parties ". Indemnifying Parties shall have the meaning given to that term under Section 11.3.
1.57 " Indication ". Indication shall mean a specified therapeutic use of a Product, which use has been approved by a Regulatory Authority (whether through a label expansion or a separate Regulatory Approval).
1.58 " In-License ". In-License shall mean an agreement between a Party or its Affiliate and a Third Party pursuant to which the Party or its Affiliate has been granted a license to Blocking Third Party Patent Rights for use by either Party or both Parties in accordance with Section 3.4.
1.59 " Invention ". Invention shall mean any Know-How or Patent Right that is generated, conceived, reduced to practice and/or developed during the Term in relation to Compound or Product (or the use thereof).
1.60 " Joint Intellectual Property ". Joint Intellectual Property shall mean Joint Know-How and Joint Patent Rights, collectively.
1.61 " Joint Inventions ". Joint Inventions shall have the meaning given to that term under Section 8.1(c).
1.62 " Joint Know-How ". Joint Know-How shall mean any Know-How that is generated, conceived, reduced to practice, developed or acquired jointly by the Parties in the course of performing the activities under this Agreement, including Joint Inventions.
1.63 " Joint Patent Rights ". Joint Patent Rights shall mean the Patent Rights that Cover Joint Know-How.
1.64 " Joint Steering Committee" or "JSC ". Joint Steering Committee or JSC shall have the meaning given to that term under Section 2.1(a).
1.65 " Know-How ". Know-How shall mean any information, whether proprietary or not and whether patentable or not, including ideas, concepts, inventions, formulas, methods, protocols, procedures, knowledge, know-how, trade secrets, processes, assays, skills, experience, techniques, designs, compositions, plans, documents, results of experimentation and testing, including pharmacological, toxicological, and pre-clinical and clinical test data and analytical and quality control data, improvements, discoveries and works of authorship.
1.66 " Knowledge ." Knowledge shall mean, with respect to a Party or its Affiliates, the actual awareness of a certain fact or information by an officer or senior manager or other employee with a similar responsibility, regardless of title, of the Party or its Affiliate.
1.67 " Manufacturing " or " Manufacture ". Manufacturing or Manufacture shall mean the activities directed to producing, manufacturing, processing, filling and finishing (including packaging and labeling) any Product or component thereof.
1.68 " Manufacturing Costs ". Manufacturing Costs shall mean with respect to Drug Substance or Drug Product, the manufacturing Party's [******] costs, determined in accordance with GAAP by the manufacturing Party in the ordinary course of its business and incurred in the course of Manufacturing the Drug Substance or Drug Product, which costs shall include:
1.69 " Marketing Authorization Application ". Marketing Authorization Application shall mean the application submitted to the competent government agency to manufacture, market and sell Product in Field in one or more countries within Territory.
1.70 " Net Sales ". Net Sales shall mean, with respect to Product, the gross invoiced sales price of the Product in CMIC Territory by CMIC and its Related Parties, less the following deductions to the extent included in the gross invoiced sales price for the Product or otherwise directly paid or incurred by CMIC or its Related Parties with respect to the sale of the Product:
In the case of any sale or other disposal of Product between or among CMIC, it's Affiliates or Sublicensees for resale to Third Party, the Net Sales of the Product shall be calculated as above only on the value charged or invoiced on the first arm's-length sale or other disposition of the Product to Third Party.
Notwithstanding the foregoing, in any case where Product is sold or otherwise disposed of in a transaction that is not the arm's length sale of Product only in cash that is separate from any sale or disposition of other products or of services, the Net Sales of the Product shall mean the greatest of:
1.71 " Non-Breaching Party ". Non-Breaching Party shall have the meaning given to that term under Section 12.2(b).
1.72 " Ophthalmic Field ". Ophthalmic Field shall mean all uses in the therapeutic treatment or prevention of any ophthalmic disease, infection or other ophthalmic condition.
1.73 " Other Angioedema ". Other Angioedema shall mean acquired angioedema, drug-induced angioedema and idiopathic angioedema.
1.74 " Parties ". Parties shall mean Dyax and CMIC.
1.75 " Party ". Party shall mean either Dyax or CMIC.
1.76 " Patent Rights ". Patent Rights shall mean any and all patents and patent applications anywhere in the world, including provisional, utility, substitution, divisional, continuation and continuation-in-part applications, and reissues, reexaminations and extensions thereof, patents of addition and any Supplementary Protection Certificates, restoration of patent term and other similar rights.
1.77 " PMDA ". PMDA shall mean the Pharmaceuticals and Medical Devices Agency or any successor agency thereto responsible for reviewing the application for Regulatory Approval in Japan.
1.78 " Person ". Person shall mean any natural person, corporation, firm, business trust, limited liability company, joint venture, association, organization, company, partnership or other business entity, or any government, or any agency or political subdivisions thereof.
1.79 " Post-Approval Studies ". Post-Approval Studies shall mean those studies and activities subsequent to the granting of Regulatory Approval that are required or necessary for the maintenance of the Regulatory Approval.
1.80 " Post-Filing Activities ". Post-Filing Activities shall mean all the studies and activities subsequent to filing an application for Regulatory Approval in the CMIC Territory but prior to obtaining the Regulatory Approval that are required, or are necessary to comply with the requirements by the Regulatory Authority for obtaining the Regulatory Approval in the CMIC Territory.
1.81 " Product ". Product shall mean any pharmaceutical product containing Compound for subcutaneous administration.
1.82 " Product Competitor ". Product Competitor shall mean any [******]. As of the Effective Date, Product Competitors consist of: [******].
1.83 " Product Manufacturing Process ". Product Manufacturing Process shall mean the processes used to complete the Manufacture of unlabeled vials of Product for CMIC under this Agreement, which processes shall include the Manufacture of Drug Substance and Drug Product.
1.84 " Product Trademark(s) ". Product Trademark(s) shall mean the trademark(s) and service mark(s) distinguishing Product, and used in connection with the Commercialization and/or any other distribution, marketing, promotion and sale activities of or for Product according to Section 8.8, and/or accompanying logos, trade dresses and/or indicia of origin.
1.85 " Prosecuting Party ". Prosecuting Party shall have the meaning given to that term under Section 8.2(a).
1.86 " Quality Agreement ". Quality Agreement shall have the meaning given to that term under Section 6.5.
1.88 "[******] License Agreement ". [******] License Agreement shall mean the License Agreement effective [******] between [******].
1.89 " [******] Intellectual Property ". [******] Intellectual Property shall mean the "[******] Expression System", the "[******] Expression Technology" and the "[******] Patent Rights" as such terms are defined in Paragraphs 1.3, 1.5 and 1.8 of [******] License Agreement.
1.90 " Regulatory Activities ". Regulatory Activities shall mean all of the activities associated with the submission of Regulatory Filings, including (i) preparing and drafting of the reports for and the correspondence with Regulatory Authorities, (ii), holding meetings and conversations with Regulatory Authorities, (iii) Post-Filing Activities, (iv) the activities relating to the maintenance of Regulatory Approval and (v) the performance of Post-Approval Studies.
1.91 " Regulatory Activities Costs ". Regulatory Activities Costs shall mean all the costs and expenses (excluding Development Costs) for Regulatory Activities, including (i) the fully allocated costs of both Parties' internal clinical, regulatory and technical personnel engaged in the Regulatory Activities, (ii) the fees and other amounts to be paid to Regulatory Authority in connection therewith, and (iii) the costs associated with any Post-Filing Activities or Post-Approval Studies.
1.92 " Regulatory Approval ". Regulatory Approval shall mean all the governmental and regulatory approvals required to Commercialize Product for a particular indication in a particular country, including any permit, authorization, license or approval (or waiver) from any Regulatory Authority required for the Commercialization of Product and separate pricing and/or reimbursement approvals from Regulatory Authorities even if not legally required for the Commercialization of Product.
1.93 " Regulatory Authority ". Regulatory Authority shall mean any federal, national, multinational, state, provincial or local regulatory agency, department, bureau or other governmental entity with authority over the clinical trial, marketing and/or sale of a pharmaceutical product in a country, including FDA in the United States and PMDA in Japan.
1.94 " Regulatory Exclusivity ". Regulatory Exclusivity shall have the meaning given to that term under Section 8.6.
1.95 " Regulatory Filings ". Regulatory Filings shall mean all the applications and registrations, including any INDs, submitted to any Regulatory Authority with respect to Product to obtain the Regulatory Approval of the Product in a country.
1.96 " Related Party ". Related Party shall mean any of a Party's Affiliates and Sublicensees.
1.97 " Royalty Term ". Royalty Term shall be the time-period during which CMIC shall pay royalties to Dyax under Section 7.5(b).
1.98 " Safety Data ". Safety Data shall mean adverse event or adverse experience information, as defined under 21 C.F.R. §600.80 or ICH Guidelines, as applicable, or their equivalent under any other applicable law, and other information regarding health risks posed by Product, including Complaints.
1.99 " Sole Inventions ". Sole Inventions shall have the meaning given to that term under Section 8.1(b).
1.100 " Specifications ". Specifications shall mean the specifications, including the necessary documentation, certificates of analysis and test results, for Drug Substance and Drug Product, as mutually agreed upon by the Parties. For the sake of clarity, the Specifications for Drug Substance and Drug Product may vary by country, depending on the countries in which Product is Developed or in which Product is Commercialized.
1.101 " Sublicensee ". Sublicensee shall mean any Third Party to whom a license or sublicense under any Dyax Intellectual Property or CMIC Intellectual Property, as the case may be, has been granted pursuant to this Agreement to Develop, Manufacture or Commercialize products containing Compound.
1.102 " Sublicensee Development Data ". Sublicensee Development Data shall, as it pertains to Product or its use, mean all the pharmacology and toxicology data and information, pre-clinical study data, clinical trial data, protocols, safety data, quality data and other regulatory information and reports, whether in written or electronic form, generated or developed by Sublicensee of either Party, in the course of performing activities under this Agreement during the Term.
1.103 " Subsidiary ". Subsidiary shall mean any Person (a) of which CMIC or Dyax (as applicable) is the direct or indirect owner of over fifty percent (50%) of the voting share capital or ownership interest, and/or (b) of which CMIC or Dyax (as applicable) has the ability to control the policies (or to control the recruitment and dismissal of the management who determine the policies) through a voting agreement or other contract or through the articles of association, bylaws or other internal regulations.
1.104 " Supply Agreement ". Supply Agreement shall have the meaning given to that term under Section 6.5.
1.105 " Surgical Field ". Surgical Field shall mean use of a product to prevent or treat bleeding during the conduct of any procedure involving the use of instruments (including lasers) to cut, abrade, suture or otherwise physically change body tissues and/or organs. Notwithstanding anything to the contrary, Surgical Field shall specifically exclude all uses in the treatment of HAE and/or other angioedemas (even during surgery).
1.106 " Term ". Term shall have the meaning given to that term under Section 12.1.
1.107 " Territory ". Territory shall mean CMIC Territory or Dyax Territory, as the context requires.
1.108 " Third Party ". Third Party shall mean any Person other than Party or any of its Affiliates.
1.109 " Transfer Price ". Transfer Price shall mean, with respect to any amount of the Drug Substance or Drug Product delivered to CMIC by Dyax for use in the Development, Manufacture or Commercialization of Product, the [******].
1.110 " United States ". The United States shall mean the United States of America and its territories and possessions.
1.111 " Valid Claim ". Valid Claim shall mean a claim (a) of any issued, unexpired patent that has not been revoked or held unenforceable or invalid by a decision of a court or governmental agency of competent jurisdiction from which no appeal can be taken, or with respect to which an appeal is not taken within the time allowed for the appeal, and that has not been disclaimed or admitted to be invalid or unenforceable through reissue, disclaimer or otherwise or (b) of any patent application that has not been cancelled, withdrawn or abandoned or been pending for [******].
MANAGEMENT OF AGREEMENT ACTIVITIES
2.1 Joint Steering Committee .
2.2 Working Groups . From time to time, the JSC may establish working groups (each, a " Working Group ") to oversee the particular projects or activities hereunder, and each Working Group shall be constituted and shall operate as the JSC determines.
2.3 Membership . Each of the JSC and any Working Group shall be composed of an equal number of representatives appointed by each of Dyax and CMIC. The JSC shall initially have three (3) representatives of each Party, but the JSC may change its size of the JSC from time to time by the mutual consent of the members of the JSC. Each Party may replace its JSC and Working Group representatives at any time upon written notice to the other Party. The JSC shall be chaired by a representative of Dyax. The JSC chairperson shall be responsible for calling its meetings, preparing and circulating an agenda for the JSC meeting in advance of the meeting, and preparing and issuing the minutes of the meeting within [******]thereafter. The JSC meetings shall be called by its chairperson upon the request of either Party.
2.4 Decision-Making . The JSC and any Working Group shall [******]. With respect to the decisions of the JSC and any Working Group, the representatives of each Party shall have collectively one vote on behalf of such Party. Should the members of a Working Group maintain their disagreement on any matter [******].
2.5 Meetings of the JSC and Working Groups . The JSC and each Working Group shall hold meetings at such times as the JSC and such Working Group may determine, but in no event shall the meetings of the JSC be held less frequently than [******]. The JSC and any Working Groups shall meet alternately at Dyax's facilities in Cambridge, Massachusetts, USA and CMIC's facilities in Tokyo, Japan or at such locations as the Parties may otherwise agree. Other representatives of each Party or, with approval of the JSC and subject to the confidentiality and limited-usage obligations which are no less stringent than those set forth in Article IX of this Agreement, representatives of Third Parties involved in the Development, Manufacture or Commercialization of Product (or the conduct of Regulatory Activities relating thereto), may attend the meetings of the JSC or such Working Group as nonvoting observers. Meetings of the JSC and any Working Groups may be held by audio or video teleconference with the consent of each Party. Each Party shall be responsible for all of its own costs and expenses of participating in the JSC and any Working Groups. No action taken at a meeting of the JSC or a Working Group shall be effective unless a representative of each Party is present or participating in the meeting.
2.6 Alliance Managers . Each Party shall designate a single alliance manager, who may be a member of the JSC and/or any Working Group (the " Alliance Manager "), for all of the activities contemplated under this Agreement. The Alliance Managers shall be responsible for the day-to-day worldwide coordination of the activities contemplated by this Agreement and shall serve to facilitate communication between the Parties. The Alliance Managers shall have the experience and knowledge appropriate to manage such project management responsibilities. Each Party may change its designated Alliance Manager from time to time upon written notice to the other Party.
2.7 Third Party Performance of Agreement Activities . CMIC shall be entitled to utilize the services of Third Parties to Develop, Manufacture (to the extent permitted under Article VI) and Commercialize Product (and conduct Regulatory Activities in connection therewith) under the following conditions:
LICENSE GRANTS; TRANSFERS AND ASSIGNMENTS
3.1 Dyax Grants .
For clarity, any Know-How and Patent Rights so assigned or licensed to CMIC by any such Affiliate or Third Party shall be deemed to be CMIC Intellectual Property hereunder;
3.2 Grant Back License .
For clarity, any Patent Rights or Know-How so licensed or assigned to Dyax by any such Affiliate or Third Party shall be deemed to be Dyax Intellectual Property hereunder;
3.3 Retained Rights . Any rights of a Party that are not expressly granted by such Party to the other Party under this Agreement shall be retained by such Party. Furthermore, if any right which is granted by a Party to the other Party is expressly restricted or limited under this Agreement, then any right outside of the scope of such restriction or limitation shall also be retained by such Party. Without limiting the generality of the immediately preceding sentence, Dyax shall retain the right to (i) exploit and license Dyax Intellectual Property to Develop, Manufacture and Commercialize Compound and Product for use in Field in Dyax Territory, without any duty to account to CMIC or to obtain CMIC's consent for such exploitation or license; (ii) exploit and license Dyax Intellectual Property to Develop, Manufacture and Commercialize Compound and Product outside Field in CMIC Territory, without any duty to account to CMIC or obtain CMIC's consent for such exploitation or license, (iii) exploit Dyax Intellectual Property for the purposes unrelated to Compound or Product without any duty to account to CMIC or obtain CMIC's consent for such exploitation or license, and (iv) otherwise exercise Dyax's rights and perform Dyax's obligations under this Agreement.
3.5 Scope of Agreement; Activities in the Dyax Territory . The Parties acknowledge and agree that, unless otherwise expressly stated herein:
3.6 Right of Second Offer; China . In the event that Dyax has first offered to Defiante Farmaceutica S.A. (“Defiante”) certain terms and conditions (the “Original Terms”) of a license to Develop, Manufacture and/or Commercialize Product in the People’s Republic of China, and if the Original Terms have not been accepted by Defiante within [******] of such offer or if the Original Terms have been accepted by Defiante within such [******] period, however, a final and definite agreement on the full terms and conditions of such license have not been executed by Dyax and Defiante within [******] of such offer, Dyax shall secondly offer the Original Terms to CMIC (t