CureVac – GSK, COVID-19 Vaccine Collaboration and License Agreement

Provision Language

Definitionsstrong>em>p>
“Enhanced Diligent Efforts ” b>means, with respect to GSK, marketing efforts that are equal to, or which exceed, in all material respects, those marketing efforts undertaken by GSK for the commercialization of any New Non–mRNA COVID Product, taking into account issues of safety and efficacy, product profile, public health, the competitiveness of the marketplace, the proprietary position of the compound or product, the regulatory structure involved, product reimbursement, and other relevant factors such as technical, legal, scientific, or medical factors. Enhanced Diligent Efforts shall be determined on a market–by–market and indication–by– indication basis for each COVID Product, and it may change over time.span>p>
2. Licenses; Exclusivityb>span>p>
2.7 Existing Agreements and future Government and NGO Contracts. b>p>
2.7.1 Existing Agreements.span>span> Prior to the Effective Date, CureVac has entered into: (i) the Government and NGO Contracts listed in Exhibit 1.102 [exhibit content redacted], and (ii) the [*****] Agreement.span>p>
2.7.2 GSK Consent for Supply of COVID Vaccine Products under Government and NGO Contracts.span>span> Without prejudice to the rights of CureVac for the CureVac Territory under Section 6 and subject to Section 2.7.4, any supply of Collaboration COVID Vaccine Products under a Government and NGO Contract (including through an amendment of such Government and NGO Contract) is subject to prior approval by decision of the JSC. The allocation of Collaboration COVID Vaccine, and, as of the Option Exercise, the First–Gen COVID Vaccine Product, across the GSK Territories and the CureVac Territories shall be conducted in a fair, reasonable and non–discriminatory manner, and in accordance with the allocation principles endorsed by the JSC pursuant to Section 5.2.2. span>p>
2.7.3 Assignment and Transfer of Government and NGO Contracts.span>span> Upon receipt of the Option Exercise Notice by CureVac, GSK and CureVac will discuss and agree in good faith [*****] (i) on whether and to what extent it is [*****] that certain Government and NGO Contracts will be partially or wholly transferred to GSK, provided that the Parties also agree on a transfer of associated regulatory responsibilities and a supply chain for the relevant COVID Products enabling GSK’s fulfilment of such Government and NGO Contracts, and subject to CureVac’s rights to <a href=”#kt“>Commercialize a> in the CureVac Territory and consent of the respective Third Party to such assignment and transfer, or (ii) on whether and to what extent it is [*****] that certain Government and NGO Contracts remain with CureVac, and, in that case, on the involvement of GSK in the Manufacturing of the COVID Products (at COGS) and the provision by GSK of regulatory services, pharmacovigilance services, quality and supply chain management services required by CureVac to meet its binding obligations under the Government and NGO Contracts; the Option Exercise being conditioned upon agreement to either (i) or (ii), as further set forth in Section 3.3.6 below. For clarity, if and to the extent GSK supplies COVID Products to CureVac, the COGS for the supply of such COVID Products and the SG&A for providing the services will be included in the calculation of Net Profits in accordance with Section 8.2.3 (except to the extent relating to a Pathogen Combination Product).span>p>
2.7.4 Future Government and NGO Contracts.span>span>p>
a. Prior to the effective date of Option Exercise, CureVac is free to amend the Government and NGO Contracts with respect to First–Gen COVID Vaccine Products, or to enter into further Government and NGO Contracts with respect to the First–Gen COVID Vaccine Products, but, subject to clause b) below, not with respect to Collaboration COVID Vaccine Products or Pathogen Combination Products , provided that such Government and NGO Contracts may not deprive GSK of its rights in connection with the Collaboration COVID Vaccine Products or Pathogen Combination Products under this Agreement or the 2020 Collaboration Agreement. CureVac will notify GSK promptly after (and provide a copy of the executed agreement, if necessary in redacted form), execution of any such amended or further Government and NGO Contracts with respect to the First–Gen COVID Vaccine Products. 
b. [*****].span>p>
3.3 Exclusive Option for First–Gen COVID Vaccine Products. b>p>
3.3.1 [*****] Options.span>span> CureVac and [*****] collaborate with respect to the development , manufacture and supply of the First–Gen COVID Vaccine Products, and CureVac has granted to [*****] two exclusive options under the [*****] Agreement: (i) to negotiate exclusive licenses for the Commercialization of First–Gen COVID Vaccine Products (excluding the First–Gen COVID Booster Vaccines) in certain territories (the span>“span>i>First [*****] Optioni>b>”span>i>); and (ii) to negotiate licenses to develop , manufacture and commercialize the First–Gen COVID Booster Vaccines (the span>“span>i>Second [*****] Optioni>b>”span>i>, together with the First [*****] Option, the span>“span>i>[*****] Optionsi>b>”span>i>). [*****]: span>p>
3.3.2 First–Gen Exclusive Option.span>span> Until [*****] (span>“span>i>Option Periodi>b>”span>i>), subject to paras (ii) and (iii) of the Disclosure Letter, and the Government and NGO Agreements (to the extent entered into strictly in accordance with Section 2.7.4), CureVac hereby grants to GSK, and GSK hereby accepts, the exclusive option to obtain exclusive licenses under the CureVac Technology to Develop , Manufacture and Commercialize (in addition to the Collaboration COVID Vaccine Products and the Pathogen Combination Products ) the First–Gen COVID Vaccine Products [*****] (span>“span>i>Exclusive Optioni>b>”span>i>).span>p>
3.3.3 Option Exercise Notice.span>span> If GSK intends to exercise its Exclusive Option, GSK shall send within the Option Period a written notice to CureVac exercising such Exclusive Option (span>“span>i>Option Exercise Noticei>b>”span>i>). Following receipt of the Option Exercise Notice by CureVac, the Parties shall as soon as reasonably practicable agree a COVID R&D Plan and/or Commercialization plan, as applicable, for the further <a href=”#kt“>Developmenta>, <a href=”#kt“>Manufacturea> and Commercialization of the First–Gen COVID Vaccine Products. span>p>
3.3.4 Access to Information.span>span> Upon GSK’s reasonable request at reasonable intervals during the Option Period, but in any event no more than once every [*****], provided that no restriction shall apply during the [*****] period that ends on the final day of the Option Period, CureVac will disclose to GSK (subject to its confidentiality obligations vis-à-vis Third Parties) all existing agreements and commitments with respect to the development , manufacture and commercialization of the First–Gen COVID Vaccine Products that would survive the exercise of the Exclusive Option by GSK, as well as all data, documents and information reasonably required by GSK to assess whether it wishes to exercise its Exclusive Option, as well as CureVac’s then–current calculation of the Option Exercise Fee.span>p>
3.3.5 Option Exercise Feespan>.span>span> If GSK exercises its Exclusive Option, GSK shall pay to CureVac a fee equal to [*****] of: (i) all reasonable and demonstrable: (A) costs and expenses of scientific, medical, technical personnel directly engaged in development (including regulatory) activities (which costs shall be determined based on the applicable FTE Rate), and (B) out–of– pocket expenses and other costs and expenses paid to Third Parties for the development (including regulatory activities) of the First–Gen COVID Vaccine Products, in each case which were incurred or forecast to be incurred before the effective date of Option Exercise in accordance with Section 3.3.6, including for pre–clinical research and development activities to design and develop the First–Gen COVID Vaccine Products, the CMC Development, the performance of Clinical Studies, the manufacture of clinical study material, safety monitoring, regulatory filing and regulatory approvals, and all support services relating hereto; [*****], and in each case which were incurred or forecast to be incurred before the effective date of Option Exercise in accordance with Section 3.3.6; and (iii) any amounts paid to Third Parties under In–Licensing Agreements for the development of the First–Gen COVID Vaccine Products (whether as upfront payments, milestone payments, royalties or any other form of payment) were incurred or forecast to be incurred before the effective date of Option Exercise in accordance with Section 3.3.6 (the span>“span>i>Option Exercise Feei>b>”span>i>). There shall be no double counting of any amounts to be paid by GSK to CureVac pursuant to this Section 3.3.5. For purposes of this Section 3.3.5, and to the extent allowed for under the applicable funding agreement, development costs shall be net of any subsidies, grants or other non–refundable external Third Party funding received by CureVac for the development or manufacture of the CureVac First–Gen COVID Vaccine Products, provided that such subsidies, grants or other non–refundable external Third Party funding: (i) would not be repayable or forfeited by CureVac under the terms of the relevant funding agreement as a result of being applied to the calculation of Net Profit under this Agreement, and (ii) are not made as a pre–payment of consideration for the future supply of vaccines. The Parties agree that the payments received by CureVac under the [*****] Agreement and the [*****] Agreement are made as a pre–payment of consideration for the future supply of vaccines under the [*****] Agreement and [*****] Agreement, as applicable, and shall therefore not be considered for the calculation of the Option Exercise Fee. CureVac shall notify GSK of any subsidies, grants or other non–refundable external Third Party funding that are eligible to be credited against the development costs of First Gen COVID Vaccine Products under this Section 3.3.5. For clarity, the costs for the development of the First–Gen COVID Vaccine Products shall not include the costs for constructing and upscaling Manufacturing facilities to Manufacture the First–Gen COVID Vaccine Products. The Option Exercise Fee is to be paid by GSK to CureVac within [*****] after receipt of an invoice from CureVac, with supportive documentation reasonably detailing the development (including regulatory) costs and expenses incurred by CureVac. For clarity, each of (i) the Option Exercise Fee and (ii) any repayment by CureVac of any pre–payment or consideration retained by CureVac for the future supply of vaccines in accordance with this Section 3.3.5 shall not be included in the calculation of Net Profits in accordance with Section 8.2.3. In addition to the Option Exercise Fee, GSK shall bear up–front all costs [*****], provided that these costs shall be included in the calculation of Net Profits in accordance with Section 8.2.3 (except to the extent relating to a Pathogen Combination Product). span>p>
3.3.6 Option Exercise.span>span> Upon (i) receipt of an Option Exercise Notice by CureVac; (ii) full payment of the Option Exercise Fee due from GSK to CureVac; (iii) the Parties having agreed a COVID R&D Plan and/or Commercialization plan (as applicable) to further Develop , Manufacture and Commercialize the First–Gen COVID Vaccine Products for which the Option was exercised; and (iv) the Parties having agreed in relation to each Government and NGO Contract on (x) either the whole or partial transfer of that Government and NGO Contract from CureVac to GSK, or (y) the retention of that Government and NGO Contract by CureVac, each in accordance with Section 2.7.2, the First–Gen COVID Vaccine Products shall become COVID Products from (A) [*****] or (B) [*****] (span>“span>i>Option Exercisei>b>”span>i>). Upon the effective date of Option Exercise, and unless set forth otherwise, such First–Gen COVID Vaccine Product shall become a COVID Product under this Agreement and all terms and conditions relevant for the Development, Manufacture and Commercialization of the Collaboration COVID Vaccine Products shall apply to the respective First–Gen COVID Vaccine Products including licenses, sharing of Development Costs, profit sharing arrangement and royalties (but only in relation to the period after the effective date of Option Exercise). span>p>
3.3.7 Exclusivity during Option Period.span>span> During the Option Period, subject to the [*****] Agreement, and CureVac’s right to enter into further Government and NGO Contracts regarding the development , manufacturing and/or supply of First–Gen COVID Vaccine Products in accordance with Section 2.7.4, CureVac shall not grant any rights to a Third Party for the commercialization of First–Gen COVID Vaccine Products in the Field without GSK’s express, written waiver of its rights under the Exclusive Option, which GSK may grant or withhold in its sole discretion. As between the Parties, if GSK does not exercise its Exclusive Option within the Option Period, CureVac shall have no further obligations towards GSK regarding the licensing of any rights for Development, Manufacture or Commercialization of the First–Gen COVID Vaccine Products, and shall be free to develop , manufacture and commercialize the First–Gen COVID Vaccine Products solely or in collaboration with Third Parties. span>p>
3.3.8 Provision of Services instead of Option Exercise.span>span> In case GSK does not exercise its Exclusive Option, upon the request of CureVac, the Parties shall negotiate in good faith a service agreement under which GSK will provide to CureVac [*****].span>p>
b>5. Manufacturing And Commercialization b>span>p>
5.5 Commercialization of COVID Products; Diligence. b>Subject to the terms and conditions of this Agreement, GSK shall have the rights and the responsibility for the Commercialization of COVID Products in the Field in the GSK Territory. Unless terminated or replaced in accordance with this Agreement, GSK will use <a href=”#kt“>Diligent Efforts a> to Commercialize the COVID Products in the Field in the Major Markets [definition redacted] (other than Germany, unless waived by CureVac pursuant to Section 6.1), subject to obtaining <a href=”#kt“>Regulatory Approvala> in the relevant Major Market, and subject to CureVac agreeing to, in the JSC, and supporting the COVID R&D Plans that are necessary for the Regulatory Approval for the marketing of the COVID Products in each Major Market. Without limiting the generality of and conditions for the Diligent Efforts obligations under this Section 5.5, GSK shall: span>p>
(i) on a COVID Product–by–COVID Product basis make the <a href=”#kt“>First Commercial Salea> of a COVID Product in a country as soon as reasonably practicable following the issuance of the Regulatory Approval for such COVID Product in such country;span>p>
(ii) Commercialize at least [*****] Collaboration COVID Vaccine Product (besides Pathogen Combination Products ) in the Major Markets in the GSK Territory; 
span>p>
(iii) in addition to the reports provided by GSK to CureVac under Section 8.2, beginning with the First Commercial Sale of the first COVID Product in the Territory and continuing until expiry of the payment obligations under Article 8, provide CureVac, at least once annually by March 31 of each Calendar Year, with a confidential, non–binding sales forecast for that Calendar Year for discussion in the JSC (or the Commercialization sub–committee, as applicable) of the estimated aggregate (x) sales of COVID Products in the GSK Territory and (y) sales of COVID Products in each Major Market, provided that GSK shall not be required to provide supporting materials in relation to such forecast; and 
span>p>
(iv) in countries where GSK commercializes a New Non–mRNA COVID Product, the level of diligence that GSK must apply regarding the Commercialization of COVID Products in that country shall be increased to Enhanced Diligent Efforts .span>p>
6. Commercialization Of COVID Products In The Curevac Territoryb>span>p>
6.1 Commercialization in CureVac Territory. b>CureVac shall have the sole and exclusive right to Commercialize the COVID Products in the Field in the CureVac Territory. On a COVID Product–by–COVID Product basis, until the execution of a Distribution Agreement between the Parties under Section 6.2 for a COVID Product, CureVac shall have the right to waive its right to Commercialize such COVID Product in the CureVac Territory by giving written notice to GSK. Upon receipt of such waiver notice by GSK, with respect to the respective COVID Product, the CureVac Territory shall become part of the GSK Territory, and GSK shall have the right to Commercialize the COVID Product in such extended GSK Territory, and the obligation to use Diligent Efforts to Commercialize the COVID Products in Germany, subject to and in accordance with the terms and conditions of this Agreement. Section 8 below sets forth the financial terms of Commercialization of COVID Products by CureVac in the CureVac Territories, more specifically with respect to the profit–share for COVID Products (other than Pathogen Combination Products ) and the royalties to be paid by CureVac to GSK for Pathogen Combination Products . span>p>
6.2 Distribution Agreement. b>On a COVID Product–by–COVID Product and on a CureVac Territory by CureVac Territory basis, upon request of CureVac, but no later than [*****] prior to the estimated First Commercial Sale of the respective COVID Product in the Field in any CureVac Territory, the Parties shall negotiate and agree in good faith on a distribution agreement under which CureVac has the exclusive rights to Commercialize such COVID Product in the Field in the CureVac Territory in accordance with the terms and conditions set forth in the key distribution terms in span>Exhibit 6.2 b>(“span>Distribution Agreementi>b>”). Article 8 below sets forth the financial terms of such distribution, i.e., with respect to the profit–share for COVID Products (other than Pathogen Combination Products ) and to the royalties to be paid by CureVac to GSK for Pathogen Combination Products . CureVac shall comply with all policies, practices, standards, guidelines, codes and requirements generally inferred by the GlaxoSmithKline group on distributors of its products in the CureVac Territory, which shall be further detailed in the Distribution Agreement and compliance with which shall be subject to audit by GSK as specified in the Distribution Agreement. span>p>

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