Exhibit 10.5
WHENEVER CONFIDENTIAL INFORMATION IS OMITTED HEREIN (SUCH OMISSIONS ARE DENOTED
BY AN ASTERISK *) SUCH CONFIDENTIAL INFORMATION HAS BEEN SUBMITTED SEPARATELY TO
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
LICENSE AGREEMENT
This agreement (the "Agreement"), dated the [
]th day of [October], 2008
(the "Effective Date"), is by and between [PURCHASER], a Delaware corporation
("Purchaser"), and [THE COMPANY], a Delaware corporation (the "Company").
INTRODUCTION
1.
The Company owns the Product
Intellectual Property (as such term is defined herein).
2.
The Purchaser is in the business of
developing and marketing pharmaceutical products.
3.
The Company and the Purchaser are
interested in establishing a licensing relationship pursuant to which the
Company shall grant the Purchaser certain rights and licenses under the Product
Intellectual Property.
NOW, THEREFORE, the Purchaser and the Company agree as follows:
Article I
Definitions
When used in this Agreement, each of the following terms shall have the meanings
set forth in this Article I:
SECTION 1.1
"AFFILIATE" MEANS, WITH RESPECT
TO A PARTY, ANY PERSON THAT CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON
CONTROL WITH SUCH PARTY. FOR PURPOSES OF THIS SECTION 1.1, "CONTROL" SHALL REFER
TO (A) IN THE CASE OF A PERSON THAT IS A CORPORATE ENTITY, DIRECT OR INDIRECT
OWNERSHIP OF FIFTY PERCENT (50%) OR MORE OF THE STOCK OR SHARES HAVING THE RIGHT
TO VOTE FOR THE ELECTION OF DIRECTORS OF SUCH PERSON AND (B) IN THE CASE OF A
PERSON THAT IS NOT A CORPORATE ENTITY, THE POSSESSION, DIRECTLY OR INDIRECTLY,
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.
SECTION 1.2
"BANKRUPTCY CODE" MEANS 11
U.S.C §§ 101-1330, AS AMENDED.
SECTION 1.3
"CONFIDENTIAL INFORMATION"
MEANS NON-PUBLIC INFORMATION DISCLOSED BY THE COMPANY TO THE PURCHASER RELATING
TO THE PRODUCTS, LICENSED PATENT RIGHTS OR LICENSED KNOW-HOW, BUT SPECIFICALLY
EXCLUDING PRODUCT CLINICAL DATA DISCLOSED IN CONNECTION WITH THE CLINICAL
DEVELOPMENT OF, OR REGULATORY APPROVAL FOR, A PRODUCT.
*CONFIDENTIAL TREATMENT REQUESTED
1
SECTION 1.4
"CONTROL" AND COGNATES THEREOF
MEANS, WITH RESPECT TO ANY LICENSED KNOW-HOW, PATENT RIGHTS OR CONFIDENTIAL
INFORMATION, THE POSSESSION BY A PARTY, WHETHER DIRECTLY OR THROUGH AFFILIATES
OF SUCH PARTY, OF THE ABILITY TO GRANT THE RIGHT TO ACCESS OR USE, OR TO GRANT A
LICENSE OR THE RIGHT TO DISCLOSE OR TRANSFER SUCH LICENSED KNOW-HOW, PATENT
RIGHTS OR CONFIDENTIAL INFORMATION, WITHOUT VIOLATING THE TERMS OF ANY AGREEMENT
OR OTHER WRITTEN ARRANGEMENT WITH, OR THE RIGHTS OF ANY THIRD PARTY.
SECTION 1.5
"COVER" AND COGNATES THEREOF
MEANS, WITH RESPECT TO A PRODUCT, THAT, BUT FOR A LICENSE GRANTED TO A PARTY
UNDER A VALID CLAIM, THE DEVELOPMENT OR COMMERCIALIZATION OF SUCH PRODUCT WOULD
INFRINGE SUCH VALID CLAIM.
SECTION 1.6
"FDA" MEANS THE U.S. FOOD AND
DRUG ADMINISTRATION.
SECTION 1.7
"GOVERNMENTAL AUTHORITY" MEANS
ANY COURT, TRIBUNAL, ARBITRATOR, ARBITRATIONAL PANEL OR AUTHORITY, AGENCY,
COMMISSION, OFFICIAL OR OTHER INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
COUNTRY, OR