Exhibit 10.1

Certain identified information has been excluded from this exhibit because it is both not material and is the type that
the registrant treats as private or confidential. [***] indicates that information has been redacted.

COLLABORATION, OPTION AND LICENSE AGREEMENT

This Collaboration, Option and License Agreement (together with all Exhibits and Schedules attached hereto, this “Agreement”) is made as of August 23, 2021 (the “Effective Date”), by and between RubrYc Therapeutics, Inc., a corporation organized and existing under the laws of Delaware, located at 733 Industrial Road, San Carlos, CA 94070 (“RubrYc”), and iBio, Inc., a corporation organized under the laws of the State of Texas, located at 8800 HSC Pkwy, Bryan, TX 77807 (“iBio”). RubrYc and iBio are referred to in this Agreement individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, RubrYc is a biotechnology company specializing in the field of discovery of biotherapeutics and other pharmaceutical therapies;

WHEREAS, iBio is a biotechnology company, which engages in the development and manufacture of biotherapeutics;

WHEREAS, iBio and RubrYc wish to collaborate to discover and develop novel antibody therapeutics; and

WHEREAS, RubrYc wishes to grant to iBio, and iBio wishes to be granted, the right to develop and commercialize Collaboration Products in the Field and the Territory (each as defined herein) in accordance with the terms and conditions set forth below.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

Article 1
DEFINITIONS

Unless specifically set forth to the contrary herein, the following terms, whether used in the singular or plural, shall have the respective meanings set forth below:

1.1.            “Additional Compound Notice” shall have the meaning set forth in Section 2.2(c) (Additional Collaborations).

1.2.            “Additional Compound Election Period” shall have the meaning set forth in Section 2.2(c) (Additional Collaborations).

1.3.            “Additional Compound Rights Period” shall have the meaning set forth in Section 2.2(c) (Additional Collaborations).

1.4.            “Additional Compound Rights” shall have the meaning set forth in Section 2.2(c) (Additional Collaborations).

1.5.            “Additional Developments” shall have the meaning set forth in Section 6.1(d) (Additional Developments).

1.6.            “Affiliate” means, with respect to a specified Person, any entity that directly or indirectly controls, is controlled by or is under common control with such Person. As used in this Section 1.6 (Affiliate), “control” (and, with correlative meanings, the terms “controlled by” and “under common control with”) means, in the case of a corporation, the ownership of fifty percent (50%) or more of the outstanding voting securities thereof or, in the case of any other type of entity, an interest that results in the ability to direct or cause the direction of the management and policies of such party or the power to appoint fifty percent (50%) or more of the members of the governing body of the party or, where ownership of fifty percent (50%) or more of such securities or interest is prohibited by law, ownership of the maximum amount legally permitted. Notwithstanding the foregoing, Affiliates of a Party shall exclude Persons who are financial investors in such Person or under common control of such investors other than such Person and its parent and subsidiary entities.

1.7.            “Agreement” shall have the meaning set forth in the preamble to this agreement.

1.8.            “Applicable Laws” means all statutes, ordinances, regulations, rules or orders of any kind whatsoever of any Governmental Authority that may be in effect from time to time and applicable to the relevant activities contemplated by this Agreement.

1.9.            “Background IP” shall have the meaning set forth in Section 6.1(a) (Background IP).

1.10.        “Backup Compound” shall have the meaning set forth in Section 3.2(c) (Effects of Option Exercise).

1.11.        “Biologics License Application” or “BLA” means a Biologics License Application in the United States as described in Section 351(a) of the United States Public Health Service Act (PHS Act), an abbreviated Biological License Application as described in Section 351(k) of the PHS Act, or equivalent application filed with the applicable Regulatory Authority in another country or regulatory jurisdiction in the Territory.

1.12.        “Biosimilar Product” means, with respect to a Collaboration Product, and on a country-by-country basis, any product (including a generic product, biogeneric, follow-on biologic, follow-on biological product, follow-on protein product, similar biological medicinal product, or biosimilar product) that has received Regulatory Approval by way of: (a) a Regulatory Approval process governing approval of interchangeable or biosimilar biologics as described in 42 U.S.C. § 262 (or its foreign equivalents, as applicable) based on the Collaboration Product, or is the subject of a notice with respect to such Collaboration Product under 42 U.S.C. § 262(l)(2) (or its foreign equivalents, as applicable); or (b) an abbreviated regulatory mechanism or equivalent process for Regulatory Approval to those set forth in subsection (a) by the relevant Regulatory Authority in a country, where such approval referred to or relied on (1) the Marketing Approval for such Collaboration Product held by iBio or Sublicensee in such country or (2) the data contained or incorporated by reference in the Marketing Approval for such Collaboration Product held by iBio or a Sublicensee in such country, and that in each case: (i) is sold in the same country (or is commercially available in the same country) as such Collaboration Product by any Third Party that is not a Sublicensee and that did not purchase such product in a chain of distribution that included any of iBio or any of Sublicensees; and (ii) either (A) contains an active ingredient that is “highly similar” to such Collaboration Product (as the phrase “highly similar” is used in 42 U.S.C. § 262(i)(2), and subject to the factors set forth in FDA’s Guidance for Industry, “Quality Considerations in Demonstrating Biosimilarity of a Therapeutic Protein Collaboration Product to a Reference Collaboration Product,” (April 2015), at Section V, and any successor FDA guidance thereto), or (B) meets the equivalency determination by the applicable Regulatory Authority in any country or jurisdiction outside the United States (including a determination that the product is “comparable,” “interchangeable,” “bioequivalent,” “biosimilar” or other term of similar meaning, with respect to the Collaboration Product).

1.13.        “Business Day” means a day other than Saturday or Sunday, or any day on which banks located in New York, NY are authorized or obligated to close. Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified.

1.14.        “Calendar Quarter” means the respective periods of three consecutive calendar months ending on March 31st, June 30th, September 30th and December 31st.

1.15.        “Calendar Year” means each twelve (12) month period commencing on January 1st.

1.16.        “Challenge” shall have the meaning set forth in Section 10.2(e) (Termination for Patent Challenge).

1.17.        “Claim” shall have the meaning set forth in Section 9.1 (By iBio).

1.18.        “Clinical and Regulatory Activities” means any clinical drug or biological development activities occurring after Development, including test method development and stability testing, toxicology, formulation, quality assurance/quality control development, statistical analysis, as needed for Clinical Trials and to obtain Regulatory Approvals, Pricing and Reimbursement Approvals and Regulatory Exclusivity.

1.19.        “Clinical Trial” means any clinical testing (regardless of who sponsors or initiates the clinical testing) of a product in human subjects, including Phase I Clinical Study, Phase II Clinical Study, and Phase III Clinical Study.

1.20.        Each “Collaboration” means all pre-clinical activities and collaboration conducted by the Parties to discover and further Develop novel antibody therapeutics, including Stage 1, Stage 2, Stage 3 and Stage 4, for the applicable Target. For clarity, the Collaboration for a Target commences on execution of a Discovery Collaboration Plan for such Target and, unless earlier terminated, such “Collaboration” ends in relation to such Target at the earlier of: (a) the Option Decline Date, or (b) six (6) months after the Option Evaluation Period ends, in each of (a)-(b) for such Target.

1.21.        “Collaboration and License Agreement” means the Collaboration and License Agreement between the Parties dated of even date herewith.

1.22.        “Collaboration Hit Candidate” means, for each Collaboration, each putative antibody hit candidate for Collaboration Product(s) discovered by RubrYc using the RubrYc Discovery Engine and Targeted MEMs for such Collaboration and selected by the Parties via MEM-Programmed In Vitro Selection or MEM-Steered Immunization as part of performing under the Discovery Collaboration Plan for such Collaboration.

1.23.        “Collaboration Product” means any pharmaceutical product containing or using any Selected Compound alone or with other active ingredients, in all forms, presentations, formulations and dosage forms. Collaboration Product(s) anticipates initial therapeutic product(s) in IgG format containing or using one or more of the Selected Compounds, but any derivative, fragment, conjugation, or other format(s) that leverage Selected Compound(s) sequences, regardless of source are also Collaboration Products (and are “Distinct Product(s)”).

1.24.        “Commercialization” or “Commercialize” means those activities directed to marketing, distribution, pricing, promoting or selling of products (including importing and exporting activities in connection therewith).

1.25.        “Commercial License” shall have the meaning set forth in Section 3.3(a) (Commercial Licenses).

1.26.        “Commercially Reasonable Efforts” means, with respect to iBio, those efforts exercised by iBio that are commensurate with those efforts commonly used in the biopharmaceutical industry by a company of comparable size with comparable resources in connection with the development, manufacturing or commercialization of products that are of similar market or profit potential and strategic value and of a stage in development or product lifecycle comparable to that of the applicable Selected Compound or Collaboration Product, as determined based on conditions then prevailing, taking into account all relevant factors including safety, efficacy, competitive considerations within the marketplace, projected market size, intellectual property protection and duration, manufacturing costs, resource allocation, pricing, re-importation concerns, regulatory requirements, payments under this Agreement, and other relevant scientific, technical, legal, operational, commercial and regulatory considerations, and in any event consistent with the efforts and resources normally used by iBio or its Affiliates in the exercise of its reasonable business discretion relating to the development of a potential pharmaceutical product or the commercialization of a pharmaceutical product, in each case owned by it or to which it has exclusive rights, with similar commercial and market potential as the Collaboration Products, taking into account all relevant factors noted above. Where applicable, Commercially Reasonable Efforts will be determined on a country-by-country and Indication-by-Indication basis for the applicable Selected Compound or Collaboration Product, and are anticipated to change over time, reflecting changes in the status of the applicable market or country involved.

1.27.        “Confidential Information” means all confidential information of the Disclosing Party, regardless of its form or medium as provided to the Receiving Party in connection with this Agreement, including all such information provided under the Mutual Non-Disclosure Agreement entered into by the Parties on March 5, 2021 (“NDA”), whether or not so marked; provided that, Confidential Information shall not include any information that the Receiving Party can show by competent written evidence: (a) was already known to the Receiving Party at the time it was disclosed to the Receiving Party by the Disclosing Party without an obligation of confidentiality and not through a prior disclosure by the Disclosing Party; (b) was or becomes generally known to the public through no act or omission of the Receiving Party in violation of the terms of this Agreement; (c) was lawfully received by the Receiving Party from a Third Party without restriction on its disclosure and without, to the reasonable knowledge of the Receiving Party, a breach by such Third Party of an obligation of confidentiality to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party. The terms of this Agreement that are not publicly disclosed through a press release or by filings to financial regulatory authorities, as permitted herein, shall be the Confidential Information of both Parties.

1.28.        “Control” or “Controlled” means, with respect to any Intellectual Property or Intellectual Property Rights, that a Party has the legal authority or right (whether by ownership, license or otherwise, other than by way of this Agreement) to grant a license, sublicense, access or right to use (as applicable) under such Intellectual Property or Intellectual Property Rights, on the terms and conditions set forth herein, in each case without breaching the terms of any agreement with a Third Party.

1.29.        “Cover”, “Covered” or “Covering” means, (a) with respect to any Patent, that at least one Valid Claim of such Patent would be infringed by the development, manufacture, use, import, offer for sale, or sale of a product, method, or device, as applicable, and (b) with respect to any other Intellectual Property Right, that the development, manufacture, use, import, offer for sale, sale, reproduction, distribution, public performance or display or making derivative works of a product, method, or device would infringe or misappropriate such rights, as applicable, in each case ((a) or (b)) in the absence of the ownership of, or licensed rights granted under, such Patent or other Intellectual Property Right.

1.30.        “Derive” or “Derived” and cognates thereof means to develop, invent, discover, create, synthesize, conceive, reduce to practice, design or otherwise generate (whether directly or indirectly, or in whole or in part).

1.31.        “Develop” or “Development” or “Developing” means research, discovery, and preclinical drug or biological development activities, including test method development and stability testing, toxicology, formulation, quality assurance/quality control development, statistical analysis, and preclinical studies. For clarity, Development does not include Clinical and Regulatory Activities.

1.32.        “Development Report” shall have the meaning set forth in Section 4.2 (Development Reports).

1.33.        “Disclosing Party” shall have the meaning set forth in Section 7.1 (Non-Disclosure Obligation).

1.34.        “Discovery Collaboration Plan” shall have the meaning set forth in Section 2.1 (Discovery Collaboration Plan), and each Discovery Collaboration Plan is attached hereto as an Exhibit A.

1.35.        “Discovery Subcontractors” shall have the meaning set forth in Section 2.3 (Subcontracting).

1.36.        “Dispute” shall have the meaning set forth in Section 11.1 (General).

1.37.        “Distinct Product” is defined in Section 1.23 (Collaboration Product).

1.38.        “Effective Date” shall have the meaning set forth in the preamble in this Agreement.

1.39.        “Excluded Targets” are (i) latent TGFβ1 and/or latent TGFβ1 in complex with other members of the large latent complex, (ii) PD-1, and (iii) any other proteins which are the subject of a written term sheet or agreement between RubrYc and its Affiliates or a Third Party.

1.40.        “Executive Officers” shall have the meaning set forth in Section 2.2(i) (Decision-Making).

1.41.        “Existing Compound” shall have the meaning set forth in Section 3.6 (Additional Option).

1.42.        “Existing Compound Option” shall have the meaning set forth in Section 3.6 (Additional Option).

1.43.        “Existing Compound Option Period” shall have the meaning set forth in Section 3.6 (Additional Option).

1.44.        “Exploit” shall have the meaning set forth in Section 3.3(a) (Commercial Licenses).

1.45.        “FD&C Act” means the U.S. Federal Food, Drug and Cosmetic Act, as amended.

1.46.        “FDA” means the U.S. Food and Drug Administration or any successor entity.

1.47.        “Field” for each Program means the research, diagnosis, treatment, prevention, or management of any disease or medical condition.

1.48.        “First Commercial Sale” means, with respect to any Collaboration Product, the first arm’s-length sale of such Collaboration Product to a Third Party in a country by iBio or its Sublicensee(s) following Marketing Approval. Sales prior to receipt of marketing and pricing approvals, such as so-called “treatment IND sales,” “named patient sales” and “compassionate use sales” and any sales to any government, foreign or domestic, including purchases for immediate sale or stockpiling purposes, are not a First Commercial Sale in that country.

1.49.        “GAAP” means the United States generally accepted accounting principles, consistently applied.

1.50.        “GCP” means all applicable Good Clinical Practice standards for the design, conduct, performance, monitoring, auditing, recording, analyses and reporting of Clinical Trials, including, as applicable (a) as set forth in the International Conference on Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use Harmonized Tripartite Guideline for Good Clinical Practice (CPMP/ICH/135/95) and any other guidelines for good clinical practice for trials on medicinal products in the Territory, (b) the Declaration of Helsinki (2004) as last amended at the 52nd World Medical Association in October 2000 and any further amendments or clarifications thereto, (c) U.S. Code of Federal Regulations Title 21, Parts 50 (Protection of Human Subjects), 56 (Institutional Review Boards) and 312 (Investigational New Drug Application), as may be amended from time to time, and (d) the equivalent Applicable Laws in the country in the Territory, each as may be amended and applicable from time to time and in each case, that provide for, among other things, assurance that the clinical data and reported results are credible and accurate and protect the rights, integrity, and confidentiality of trial subjects.

1.51.        “GLP” means all applicable Good Laboratory Practice standards, including, as applicable, as set forth in the then current good laboratory practice standards promulgated or endorsed by the U.S. Food and Drug Administration as defined in 21 C.F.R. Part 58, or the equivalent Applicable Laws in other jurisdictions in the Territory, each as may be amended and applicable from time to time.

1.52.        “GMP” or “Good Manufacturing Practices” means the then-current Good Manufacturing Practices required by the FDA, as set forth in the FD&C Act and the regulations promulgated thereunder, for the manufacture and testing of pharmaceutical materials, and comparable laws and regulations applicable to the manufacture and testing of pharmaceutical materials promulgated by other Regulatory Authorities, as they may be updated from time to time.

1.53.        “Governmental Authority” means any court, commission, authority, department, ministry, official or other instrumentality of, or being vested with public authority under any law of, any country, region, state or local authority or any political subdivision thereof, or any association of countries.

1.54.        “Hit Panel” means, for each Collaboration, the initial panel consisting of Collaboration Hit Candidate(s) selected by the JSC during Stage 1 according to the Stage 1 Success Criteria set forth in a Discovery Collaboration Plan (Exhibit A).

1.55.        “iBio” shall have the meaning set forth in the preamble of this Agreement.

1.56.        “iBio Indemnitee(s)” shall have the meaning set forth in Section 9.2 (By RubrYc).

1.57.        “iBio-Owned Foreground IP” shall have the meaning set forth in Section 6.1(c) (iBio-Owned Foreground IP).

1.58.        “iBio Stock” means iBio’s Common Stock at a price equal to the 30 day trailing average purchase price or the previous day’s closing price, whichever is higher for publicly traded iBio’s Common Stock. iBio’s Stock shall be subject to an escrow between RubrYc and iBio for 6 months on terms to be negotiated in good faith.

1.59.        “IND” means an investigational new drug application or equivalent application filed with the applicable Regulatory Authority, which application is required to commence Clinical Trials in the applicable country or regulatory jurisdiction.

1.60.        “Indemnifying Party” shall have the meaning set forth in Section 9.3 (Defined Indemnification Terms).

1.61.        “Indemnitee” shall have the meaning set forth in Section 9.3 (Defined Indemnification Terms).

1.62.        “Indication” means a separate and distinct disease or condition, sign or symptom of a disease or medical condition, or with respect to a cancer indication, a different tissue origin. For clarity, (a) different lines of treatment, (b) the treatment of separate stages or forms of the same disease or medical condition, (c) the treatment of the same disease or medical condition in different patient populations, in all cases (a) through (c), shall not constitute separate Indications.

1.63.        “Intellectual Property” means any and all apparatus, biological materials, compounds, compositions, conceptions, data, databases, designs, discoveries, documentation, equipment, formulae, formulations, ideas, information, innovations, inventions, knowledge, Know-How, machines, methods, molecules, peptides, plans, practices, processes, procedures, production systems, products, programs, results, show-how, software, specifications, studies, systems, techniques, works of authorship, and other intellectual property or technologies.

1.64.        “Intellectual Property Rights” or “IPR” means any and all legal rights in Intellectual Property, whether protected, created or arising under the laws of the United States or any foreign jurisdiction, including the following: (a) Patents; (b) copyrights, mask work rights, database rights and design rights, whether or not registered, published or unpublished, and registrations and applications for registration thereof, and all rights therein whether provided by international treaties or conventions or otherwise; (c) trade secret rights; (d) moral rights; (e) trademarks, service marks, trade names, service names, corporate names, trade dress, logos, and other identifiers of source, including all goodwill associated therewith and all common law rights, registrations and applications for registration thereof, and all rights therein provided by international treaties or conventions, and all reissues, extensions and renewals of any of the foregoing, and all intellectual property rights arising from or in respect of domain names, domain name registrations and reservations; and (f) other applications and registrations related to any of the rights set forth in the foregoing clauses (a) – (e) above which subsist now or will subsist in the future together with all rights of action, powers and benefits arising from ownership of any such rights.

1.65.        “Inter Partes/Post-Grant Proceeding” means any interference, derivation, opposition, re-issue, reexamination, invalidation proceedings, revocation, nullification, or cancellation proceeding relating to a Patent.

1.66.        “Joint Steering Committee” or “JSC” shall have the meaning set forth in Section 2.2(a) (Formation).

1.67.        “Know-How” means any know-how and information, including physical, chemical, biological, toxicological, pharmacological, safety data, dosage regimens, control assays, and product specifications.

1.68.        “Knowledge” means, with respect to a Party, the actual knowledge of any of the senior management team members of such Party.

1.69.        “Lead Candidates” means, for each Collaboration, a reasonable number of Collaboration Hit Candidates from the Lead Panel (which may or may not be Optimized) selected by the JSC to be subject to Stage 4 in accordance with the Stage 3 Success Criteria and as set forth in a Discovery Collaboration Plan (Exhibit A).

1.70.        “Lead Compound” shall have the meaning set forth in Section 3.2(c) (Effects of Option Exercise).

1.71.        “Lead Panel” means, for each Collaboration, the panel of the number of Collaboration Hit Candidates from the Hit Panel selected by the JSC during Stage 2 according to the Stage 2 Success Criteria set forth in a Discovery Collaboration Plan (Exhibit A).

1.72.        “Licensed Know-How” means, for each Program, all Know-How related to the Licensed Patents for such Program that is Controlled by RubrYc or its Affiliates as of the date the Discovery Collaboration Plan for the Collaboration in such Program is executed or during the Term (other than as a result of a license from iBio) that is necessary or reasonably useful for iBio’s Manufacture or Commercialization of the Selected Compound(s) in, or for use in, a Collaboration Product(s) in the Field and Territory as permitted by the terms of this Agreement, but specifically excluding any Know-How related to the RubrYc Discovery Engine (including any MEMs, antibody library design and single-cell antibody library screening).

1.73.        “Licensed Patent(s)” means, for each Program, all Patents Controlled by RubrYc or its Affiliates as of the date the Discovery Collaboration Plan for the Collaboration in such Program is executed or during the Term (other than as a result of a license from iBio) that Exploitation of the Selected Compound(s) for such Program in, or for use in, a Collaboration Product in the Field and Territory as permitted by the terms of this Agreement would infringe but for the Commercial License for such Program. Licensed Patents existing as of the date the Discovery Collaboration Plan is executed will be set forth in Schedule 1.73 (Licensed Patents) broken out by Program. The Parties shall update Schedule 1.73 (Licensed Patents) from time-to-time as new Patents that are Licensed Patents for a Program are filed and issued, but failure to do so shall not affect the status of a Patent as included among the Licensed Patents.

1.74.        “Losses” shall have the meaning set forth in Section 9.1 (By iBio).

1.75.        “Major Market” means each of (a) the United States of America (but not its territories or possessions), (b) the People’s Republic of China, (c) Japan, and (d) at least two of France, Germany, Spain, Italy, and the United Kingdom.

1.76.        “Manufacture” or “Manufacturing” or “Manufactured” means all operations directed to the manufacturing, filling and finishing, quality control testing (including in-process, release and stability testing, if applicable), storage, releasing and packaging.

1.77.        “Marketing Approval” means all approvals, licenses, registrations or authorizations of any Regulatory Authority in a country or region, necessary for the Commercialization of a product in such country or region, including the approval of a BLA, other Regulatory Approvals and any Pricing and Reimbursement Approvals (to the extent such Pricing and Reimbursement Approvals are required in such country or region for the Commercialization of a product).

1.78.        “MEM” means meso-scale engineered molecule, which is an engineered molecule comprised of a designed scaffold that supports the structure and presentation of a pre-determined natural epitope.

1.79.        “MEM-Programmed In Vitro Selection” means the selection of antibodies, fragments, and derivatives from appropriate molecular libraries using Targeted MEMs as antigens.

1.80.        “MEM-Steered Immunization” means the priming and/or boosting of animal immunization to elicit antibodies, fragments, and derivatives from appropriate host animals using MEMs as immunogens, whether independently formulated for immunization or conjugated to carrier proteins, nanoparticles, or the like, including immunization strategies where MEMs are used in combination with corresponding full-length antigen or corresponding antigen expressed on cells.

1.81.        “Milestone Events” shall have the meaning set forth in Section 5.4 (Collaboration Product Milestone Payments).

1.82.        “Milestone Payment” shall have the meaning set forth in Section 5.4 (Collaboration Product Milestone Payments).

1.83.        “Net Sales” means the gross price billed or invoiced on sales of the Collaboration Product(s) by iBio, its Affiliates, or other Sublicensees (each, a “Selling Entity”) to a Third Party, less (without duplication) usual and customary:

(a)           cash, trade or quantity discounts actually granted and deducted solely on account of sales of such Collaboration Product, including early payment discounts;

(b)           rebates and chargebacks or price reductions made to individual or group purchasers of such Collaboration Product that are solely on account of or reasonably allocated to the purchase of such Collaboration Product;

(c)            allowances or credits actually granted upon claims, returns or rejections of the Collaboration Product, including recalls, regardless of the party requesting such recall;

(d)           charges included in the gross sales price for freight, insurance, transportation, postage, handling and any other charges relating to the sale, transportation, delivery or return of the Collaboration Product;

(e)            bad debt written off under GAAP or the applicable legitimate accounting standard of the Selling Entity, consistently applied, with reasonable collection efforts and added back to the gross amount invoiced/billed if collected;

(f)             taxes (including, but not limited to sales, value added, consumption and similar taxes; but excluding income taxes and cross-border withholding taxes) actually incurred, paid or collected and remitted to the relevant tax authority for the sale of such Collaboration Product; provided that any amount of such taxes refunded, recovered or credited back by the relevant tax authority shall be included in Net Sales; and

(g)           any other similar amounts normally deducted from the gross invoice price in the reporting of revenues in order to arrive at the calculation of Net Sales in line with GAAP or the applicable Selling Entity’s legitimate accounting standards, consistently applied, across the relevant reporting period.

Each of the amounts set forth above shall be determined from the books and records of the Selling Entities, maintained in accordance with GAAP or applicable legitimate accounting standard, consistently applied, and any amounts that are deducted from Net Sales pursuant to one subsection may not be deducted pursuant to another subsection (i.e., a deduction may only be taken once).

The transfer of a Collaboration Product to a Sublicensee or other Third Party (i) in connection with the Development or testing of a Collaboration Product (including the conduct of Clinical Trials), (ii) for purposes of distribution as promotional samples as customary to business in the applicable country, (iii) for indigent or similar public support or compassionate use programs, or (iv) by and between iBio and its Sublicensees that is not for end use purposes, shall not, in any case, be considered a Net Sale of a Collaboration Product under this Agreement. If a Selling Entity sells a Collaboration Product for consideration other than monetary consideration in an arm’s-length transaction, Net Sales shall be calculated as if such Collaboration Product was sold in an arm’s-length transaction for monetary consideration in the country of such sale based on amounts earned in such country from sales for monetary consideration at arm’s length.

For the purposes of determining Net Sales, a sale shall be deemed to have occurred when an invoice is generated for such Collaboration Product.

1.84.        “Optimization” or “Optimized” means the modification and optimization of the selected Collaboration Hit Candidates in the Lead Panel by the Parties, either by themselves or through Discovery Subcontractors, intended to improve the probability of successful preclinical and clinical development, including, but not limited to, humanization of non-human derived mAbs, replacement of unstable amino acid motifs, affinity maturation, changes to the Fc region to improve Fc-mediated functional activity, and/or other mutually agreeable developability assessment(s).

1.85.        “Option” shall have the meaning set forth in Section 3.1 (Exclusive Options).

1.86.        “Option Decline Date” shall have the meaning set forth in Section 3.5 (Effects of Option Decline).

1.87.        “Option Evaluation Period” shall have the meaning set forth in Section 3.1 (Exclusive Options).

1.88.        “Option Exercise Date” shall have the meaning set forth in Section 3.1 (Exclusive Options).

1.89.        “Option Exercise Fee” shall have the meaning set forth in Section 5.3 (Option Exercise Fee).

1.90.        “Option Exercise Notice” shall have the meaning set forth in Section 3.1 (Exclusive Options).

1.91.        “Party” or “Parties” shall have the meaning set forth in the preamble to this Agreement.

1.92.        “Patent(s)” means (a) all national, regional and international patents and patent applications, including any provisional patent application, (b) any patent application claiming priority from such patent application or provisional patent applications, including divisions, continuations, continuations-in-part, (c) any patent that has issued or in the future issues from any of the foregoing patent applications, including any utility or design patent or certificate of invention, and (d) re-issues, renewals, extensions, substitutions, re-examinations or restorations, registrations and revalidations, and supplementary protection certificates and equivalents to any of the foregoing.

1.93.        “Person” means any individual, sole proprietorship, corporation, joint venture, limited liability company, partnership, limited partnership, limited liability partnership, trust or any other private, public or governmental entity.

1.94.        “Phase I Clinical Study” means any Clinical Trial(s) the principal purpose of which is a preliminary determination of safety in healthy individuals or patients, that would satisfy the requirement of 21 C.F.R. § 312.21(a), or its foreign equivalent, as may be amended from time to time, or any analogous Clinical Trial described or defined in Applicable Laws.

1.95.        “Phase II Clinical Study” means any Clinical Trial(s) of a pharmaceutical or biologic product in patients with the primary objective of characterizing its activity in a specific disease state as well as generating more detailed safety, tolerability, and pharmacokinetics information, that would satisfy the requirement of 21 C.F.R. § 312.21(b), or its foreign equivalent, as may be amended from time to time, or any analogous Clinical Trial described or defined in Applicable Laws.

1.96.        “Phase III Clinical Study” means any Clinical Trial(s) designed to (a) establish that a pharmaceutical or biologic product is safe and efficacious for its intended use; (b) define warnings, precautions and adverse reactions that are associated with such pharmaceutical or biologic product in the dosage range to be prescribed; and (c) be a pivotal study for submission of an application to obtain Regulatory Approval for such product in any country or regulatory jurisdiction; each as defined in 21 C.F.R. § 312.21(c), or its foreign equivalent, as may be amended from time to time, or any analogous Clinical Trial described or defined in Applicable Laws.

1.97.        “Pricing and Reimbursement Approval” means such governmental approval, agreement, determination or decision establishing prices for a product that can be charged or reimbursed in regulatory jurisdictions where the applicable Governmental Authorities approve or determine the price of or reimbursement for pharmaceutical products.

1.98.        “Product Infringement” means any infringement or threatened infringement by a Third Party of any Licensed Patent, which infringing activity involves the using, making, importing, offering for sale or selling of a Collaboration Product.

1.99.        Each “Program” means (a) the Collaboration for a specific Target, and (b) if the Option Exercise Date occurs with respect to such Collaboration, all activities hereunder associated with the Commercial License for such Collaboration’s Selected Compound(s) and Collaboration Product(s) that contain or use any such Selected Compound(s).

1.100.    “Prosecution and Maintenance” means the responsibility and authority for (a) preparing, filing and prosecuting applications (of all types) for any Patent, (b)  deciding to abandon Patent(s), (c) listing in regulatory publications (as applicable), and (d) patent term extension.

1.101.    “Receiving Party” shall have the meaning set forth in Section 7.1 (Non-Disclosure Obligation).

1.102.    “Regulatory Approvals” means all approvals necessary for the Manufacture and Commercialization of a product for one or more Indications in a country or regulatory jurisdiction, which may include satisfaction of all applicable regulatory and notification requirements. Regulatory Approvals include approvals by Regulatory Authorities of INDs and BLAs, but excludes Pricing and Reimbursement Approvals.

1.103.    “Regulatory Authority” means any applicable Governmental Authority responsible for granting Regulatory Approvals for products, including the FDA, the National Medical Products Administration of the People’s Republic of China (the “NMPA”), the European Medicines Agency (the “EMA”), and any corresponding national or regional regulatory authorities.

1.104.    “Regulatory Exclusivity” means any exclusive marketing rights or data exclusivity rights conferred by any Regulatory Authority with respect to a product other than Patents, including conferred in the U.S. under the FDA Modernization Act of 1997 (including pediatric exclusivity), orphan drug exclusivity, or rights similar thereto outside the U.S.

1.105.    “Royalty Payment” shall have the meaning set forth in Section 5.5(a) (Royalty Payment).

1.106.    “Royalty Report” shall have the meaning set forth in Section 5.5(d) (Royalty Reports and Royalty Payments).

1.107.    “Royalty Term” shall have the meaning set forth in Section 5.5(b) (Royalty Term).

1.108.    “RubrYc” shall have the meaning set forth in the preamble of this Agreement.

1.109.    “RubrYc Discovery Engine” means RubrYc’s antibody discovery platform that includes RubrYc’s machine-learning Intellectual Property, scFv/scFv-Fc/Fab/antibody libraries, MEM-Steered Immunization, and MEMs by which antibodies are selected and/or raised, and any of RubrYc’s associated in vitro and in vivo selection methods that depend on MEMs, including the Targeted MEMs, as updated from time to time.

1.110.    “RubrYc-Owned Foreground IP” shall have the meaning set forth in Section 6.1(b) (RubrYc-Owned Foreground IP).

1.111.    “RubrYc Indemnitee(s)” shall have the meaning set forth in Section 9.1 (By iBio).

1.112.    “RubrYc Licensed IP” means the Licensed Know-How and Licensed Patents.

1.113.    “RubrYc Series A2 Financing” means RubrYc’s sale of Series A-2 Preferred Stock pursuant to the Series A-2 Preferred Stock Purchase Agreement dated August 23, 2021.

1.114.    “Sale” or “sold” (whether or not capitalized) means the transfer, disposition, or first market sale of a product for value, whether in the form of cash payments, royalties, fees, stock, or any other form of compensation.

1.115.    “Selected Compound” means, for each Collaboration (and Program), each of the two (2) Lead Candidates with respect to which iBio exercises an Option pursuant to Section 3.1 (Exclusive Options), including any derivative, fragment, or variant of such Lead Candidates (including bispecific antibody, multispecific antibody, and antibody drug conjugates). The Parties may add Selected Compounds upon mutual written agreement.

1.116.    “Selling Entity” shall mean an entity that generates Net Sales as defined in Section 1.83 (Net Sales).

1.117.    “Stage” means each stage of a Collaboration as further described in a Discovery Collaboration Plan (Exhibit A), and numbered Stages 1-4.

1.118.    “Stage 1 Success Criteria” is a Success Criteria and means the criteria for the selection of Collaboration Hit Candidates for inclusion in the Hit Panel during Stage 1 of a Collaboration, as set forth in a Discovery Collaboration Plan (Exhibit A).

1.119.    “Stage 2 Milestone Payment” shall have the meaning set forth in Section 5.1 (Stage 2 Milestone Payment).

1.120.    “Stage 2 Success Criteria” is a Success Criteria and means the criteria for the selection of Collaboration Hit Candidates from the Hit Panel for inclusion in the Lead Panel during Stage 2 of a Collaboration, which would depend on evaluation of Collaboration Hit Candidates’ performance in in vitro assays, as set forth in a Discovery Collaboration Plan (Exhibit A).

1.121.    “Stage 3 Milestone Payment” shall have the meaning set forth in Section 5.2 (Stage 3 Milestone Payment).

1.122.    “Stage 3 Success Criteria” is a Success Criteria and means the criteria for the selection of Lead Candidates from the Lead Panel during Stage 3 of a Collaboration, as set forth in a Discovery Collaboration Plan (Exhibit A).

1.123.    “Stage 4 Non-GLP POC Study” means the non-GLP proof of concept study to prove efficacy in vivo for a reasonable number of Lead Candidates as part of the Stage 4 of a Collaboration, as defined in a Discovery Collaboration Plan (Exhibit A).

1.124.    “Sublicensee” means a Third Party or Affiliate of iBio which is granted a sublicense by iBio under a Commercial License or which otherwise has been granted by iBio a right to Exploit any Collaboration Product. For clarity, a Third Party or Affiliate(s) of iBio who was granted a sublicense by a Sublicensee shall also be deemed a Sublicensee.

1.125.    “Success Criteria” means the success criteria for each Stage, which, when met, means the Stage is “complete”, as set forth in a Discovery Collaboration Plan (Exhibit A).

1.126.    “Target” means each protein selected by the Parties pursuant to Section 2.2(b) (Role).

1.127.    “Targeted MEM” means any MEM that is derived from or depends on the structure of the Target, whether conjugated or independently in solution for in vitro selection as part of MEM-Programmed In Vitro Selection, or chemically conjugated to, produced as fusion protein with carrier protein(s), nanoparticle(s), or the like as part of MEM-Steered Immunization.

1.128.    “Term” shall have the meaning set forth in Section 10.1 (Term).

1.129.    “Territory” means worldwide.

1.130.    “Third Party” means an entity other than (a) iBio and its Affiliates or (b) RubrYc and its Affiliates.

1.131.    “U.S. Dollars”, “Dollars” or “$” means United States dollars, the lawful currency of the United States.

1.132.    “Valid Claim” means (a) a claim of an issued and unexpired Patent that has not been permanently revoked or held unenforceable or invalid by a decision of a Governmental Authority of competent jurisdiction, which decision is not appealable or is not appealed within the time allowed for appeal, and has not been abandoned, disclaimed or admitted to be invalid or unenforceable through reissue, disclaimer or otherwise or (b) a claim of a pending patent application that (i) has not been pending for more than ten (10) years from its earliest priority date, and (ii) (A) has not been cancelled, withdrawn or abandoned or (B) finally rejected by an administrative agency action from which no appeal can be taken or that has not been appealed within the time allowed for appeal.

Article 2
DISCOVERY COLLABORATION

2.1.            Discovery Collaboration Plans. The Parties will carry out each Collaboration pursuant to written collaboration plans, which set forth as to each Target the specific research and pre-clinical discovery activities, required resources, and target timelines for Stages 1–4 of the Collaboration, as well as the Success Criteria (each, a “Discovery Collaboration Plan”). Generally, a Discovery Collaboration Plan shall, to the extent applicable, qualitatively specify and quantitatively define the resources to be deployed and time to be allocated by each Party to accomplish all the activities for Stages 1–4 of the Collaboration. The initial Discovery Collaboration Plan, as agreed between the Parties, will be attached hereto as Exhibit A (Discovery Collaboration Plan) within sixty (60) days of the Effective Date. If the Parties have not agreed to a Discovery Collaboration Plan within ninety (90) days of the Effective Date, the Parties will escalate the matter as contemplated by Section 2.2(i) (Decision-Making). The JSC will review and discuss whether to update each Discovery Collaboration Plan (that has not yet been terminated) and its Success Criteria at each quarterly JSC meeting, and each Party may propose ad hoc updates or amendments to those Discovery Collaboration Plans to the JSC for consideration. A Discovery Collaboration Plan shall terminate upon the Option Exercise Date or the Option Decline Date for that Collaboration, whichever comes earlier, or upon mutual agreement of the Parties. In the event of a conflict between the main body of this Agreement and a Discovery Collaboration Plan, the terms of the main body of this Agreement shall control.

2.2.            Joint Steering Committee.

(a)               Formation. Within twenty (20) days after the Effective Date, the Parties shall establish a joint steering committee to cooperate, coordinate, integrate, monitor and oversee the activities under the Collaborations (the “Joint Steering Committee” or the “JSC”). Each Party shall appoint two (2) representatives each having requisite budget authority and technical expertise to the JSC. Each Party will appoint one (1) of its representatives to serve as a co-chair for the JSC. Each Party may replace its JSC representatives upon written notice to the other Party.

(b)               Role. The JSC will: (i) provide a forum for the discussion of the Parties’ activities during the Collaborations; (ii) decide whether to approve the Target proposed by iBio for each Discovery Collaboration Plan as described in Section 2.2(c) (Additional Collaborations); (iii) review, discuss and coordinate the strategies for the research and discovery activities to be set forth in each Discovery Collaboration Plan; (iv) review, discuss and determine whether to approve any updates and amendments to each Discovery Collaboration Plan; (v) review and discuss the data, results and other information generated from the research and discovery activities during the Collaborations; and (vi) perform such other functions as expressly set forth in this Agreement or allocated to it by the Parties’ mutual written agreement.

(c)               Additional Collaborations. Subject to the terms of this Section, during the period commencing on the Effective Date and ending on the earlier of (a) the five (5) year anniversary of the Effective Date or (b) the date the Parties have executed five (5) Discovery Collaboration Plans under this Agreement (including the initial Discovery Collaboration Plan referenced in Section 2.1 (Discovery Collaboration Plans)), even if not completed (the “Additional Compound Rights Period”), within thirty (30) days of the later of each anniversary of the Effective Date or the termination of any then-current Discovery Collaboration Plan (each the “Additional Compound Election Period”), iBio shall have the right to initiate a new Discovery Collaboration Plan directed against one (1) Target of iBio’s choosing in the Field, and shall notify RubrYc in writing within such period whether it elects to exercise such right as well as the identity of the proposed Target (“Additional Compound Notice”). Within ten (10) Business Days of receipt of such Additional Compound Notice, RubrYc may reject any Target that is one of the Excluded Targets by delivery of written notice to iBio rejecting any such Target. iBio shall have the right to propose an alternative Target and Field within thirty (30) days after any such rejection, and the foregoing process shall apply until the Target selected is not one of the Excluded Targets. If iBio elects to exercise the foregoing rights during the Additional Compound Election Period (as extended for rejections), the JSC shall evaluate whether to approve the Target proposed by iBio (such approval not to be unreasonably withheld), and if approved shall create a Discovery Collaboration Plan in relation to each such Target within sixty (60) days of such approval. If the JSC has not approved the Target within such 60-day period or has not agreed to a Discovery Collaboration Plan within ninety (90) days of the approval of a Target, the Parties will escalate the matter as contemplated by Section 2.2(i) (Decision-Making). Each such agreed Discovery Collaboration Plan shall thereafter be added to Exhibit A (Discovery Collaboration Plans). If RubrYc determines that it is unable to initiate a new Discovery Collaboration Plan in any given year, it may promptly notify iBio in writing of such inability. If RubrYc provides such notification of its inability to initiate a new Discovery Collaboration Plan, except for the Excluded Targets, RubrYc agrees not to enter into a new agreement utilizing the RubrYc Discovery Engine with any Third Party during the 12-month period following such notification. The foregoing rights in this Section 2.2(c) (Additional Collaborations) are the “Additional Compound Rights”. On expiration or termination of the Additional Compound Rights, this Section 2.2(c) (Additional Collaborations) shall have no further force or effect; provided, however, that such termination shall not affect any Program or Collaboration then in effect.

(d)               Limitation of Authority. The JSC shall only have the powers expressly assigned to it in this Section 2.2 (Joint Steering Committee) and elsewhere in this Agreement and shall not have the authority to: (i) modify or amend the terms and conditions of this Agreement (except a Discovery Collaboration Plan); (ii) waive either Party’s compliance with the terms and conditions of this Agreement including any Discovery Collaboration Plan; (iii) determine any such issue in a manner that would conflict with the express terms and conditions of this Agreement; or (iv) impose any other obligations on either Party without the prior written consent of such Party.

(e)               Meetings. The JSC shall hold meetings at such times as it elects to do so, but in no event shall such meetings be held less frequently than once every Calendar Quarter until the completion of all activities for the Collaboration set forth in all agreed Discovery Collaboration Plans. Each Party may call additional ad hoc JSC meetings as needs arise with reasonable advance notice to the other Party. Meetings of the JSC may be held in person, by audio or video teleconference. In-person JSC meetings shall be held at locations selected alternately by the Parties. Each Party shall be responsible for such Party’s expenses of participating in the JSC meetings. No action taken at any JSC meeting shall be effective unless at least two (2) representatives of each Party are participating in such JSC meeting.

(f)                Non-Member Attendance. Each Party may from time to time invite a reasonable number of participants relevant to items on the issued agenda, in addition to its representatives, to attend the JSC meetings in a non-voting capacity; provided that if either Party intends to have any Discovery Subcontractor attend such a meeting, such Party shall provide prior written notice to the other Party and, if the other Party reasonably objects to such attendance prior to the applicable meeting, such attendance is not authorized and shall not occur.

(g)               Exchange of Information. The Parties shall cooperate through the JSC to exchange data, results and other information with respect to the research and discovery activities conducted by each Party and their Discovery Subcontractors. Such exchange shall include summaries of all research and discovery activities of the Collaboration Hit Candidates as reasonably requested by the other Party.

(h)               Discontinuation of JSC. The JSC will continue its operations in relation to each Collaboration until the first to occur of (i) the Option Exercise Date for that Collaboration, (ii) the Option Decline Date for that Collaboration, (iii) the Parties agreeing to disband the JSC, or (iv) termination of this Agreement, at which time the JSC will be dissolved.

(i)                 Decision-Making. All decisions of the JSC shall be made by majority vote, except that RubrYc shall have final decision-making authority with respect to discovery of Targeted MEMs, characterization of Targeted MEMs, and any improvements or modifications to the RubrYc Discovery Engine. If after reasonable discussion and good faith consideration of each Party’s view on a particular matter before the JSC, the JSC cannot reach a decision as to such matter within thirty (30) days after such matter was brought to the JSC for resolution, the matter will be escalated to the Chief Executive Officer of RubrYc (or a senior officer designated by the Chief Executive Officer of RubrYc) and the Chief Executive Officer of iBio (or a senior officer designated by the Chief Executive Officer of iBio) (the “Executive Officers”) for resolution. Following completion of the Stage 4 – Non-GLP Proof of Concept for a Collaboration, any such matter would be referred to iBio’s Chief Executive Officer for resolution subject to RubrYc’s final decision-making authority noted above.

2.3.            Subcontracting. During each Collaboration, each Party may, at its discretion, contract with preferred Affiliates, vendors and suppliers to conduct activities in relation to the discovery of the Collaboration Hit Candidates (the “Discovery Subcontractors”). Each Party will only contract with Discovery Subcontractors who are subject to written agreements that contain terms and conditions that are consistent with this Agreement. The Party engaging any Discovery Subcontractor will be responsible for any activities delegated to any Discovery Subcontractor and shall be the sole point of contact under this Agreement. All activities conducted by any Discovery Subcontractor shall be in compliance with this Agreement including the applicable Discovery Collaboration Plan.

2.4.            Costs of Discovery Activities. Each Party will cover its own respective costs and expenses for all activities carried out by it and its Discovery Subcontractors (if any) in furtherance of Stages 1 -3; provided, however, the Parties will share in the cost of freedom-to-operate and other legal analyses that the JSC agrees are germane to the selection and commercialization of Collaboration Hit Candidates. iBio shall be responsible for the costs and expenses for all activities in Stage 4.

2.5.            Records. Each Party shall maintain appropriate records in either tangible or electronic form of all discovery activities conducted in the performance of a Discovery Collaboration Plan, and related results and other material information generated therefrom, in each case in accordance with its usual documentation and record retention practices. Such records shall be in sufficient detail to properly reflect, in a good scientific manner, all significant work done, and the results of studies and trials undertaken and, further, shall be at a level of detail appropriate for patent and regulatory purposes. Upon a Party’s reasonable request, the other Party shall, and shall cause its Discovery Subcontractors, to provide to the requesting Party copies of such records (including access to relevant portions of databases, if any) to the extent necessary or helpful for the coordination of the applicable Collaboration activities or for regulatory and patent purposes. All such records, reports, information and data provided shall be subject to the confidentiality provisions of ARTICLE 7 (Confidentiality; Publication).

2.6.            Discovery Collaboration Licenses

(a)               To iBio. Solely for the purposes of the Collaboration pursuant to a Discovery Collaboration Plan, and subject to the terms and conditions in this Agreement, RubrYc hereby grants to iBio a nonexclusive, non-transferable (except to the extent this Agreement is assigned pursuant to Section 12.2 (Assignment)), non-sublicensable (except to Discovery Subcontractors subject to the terms of Section 2.3 (Subcontracting)), fully paid-up license to use (i) the Collaboration Hit Candidates delivered to iBio hereunder, and (ii) if applicable, such of RubrYc’s Controlled Background IP, as well as RubrYc-Owned Foreground IP and RubrYc’s Additional Developments, in each case of (i)-(ii) solely to perform iBio’s obligations set forth in a Discovery Collaboration Plan, except that the foregoing license grant does not include a license to the RubrYc Discovery Engine.

(b)               To RubrYc. Solely for the purposes of the Collaboration pursuant to a Discovery Collaboration Plan, and subject to the terms and conditions in this Agreement, iBio hereby grants to RubrYc a nonexclusive, non-transferable (except to the extent this Agreement is assigned pursuant to Section 12.2 (Assignment)), non-sublicensable (except to Discovery Subcontractors subject to the terms of Section 2.3 (Subcontracting)), fully paid-up license to use iBio’s Controlled Intellectual Property Rights described in the Discovery Collaboration Plan, as well as iBio-Owned Foreground IP and iBio’s Additional Developments, in each case solely to perform RubrYc’s obligations set forth in a Discovery Collaboration Plan.

(c)               Technical Assistance. In connection with the license grants set forth in this Section 2.6 (Discovery Collaboration Licenses), at the other Party’s reasonable request, each Party shall cooperate with the other Party to provide such reasonable technical assistance as may be necessary to enable the other Party to practice the Intellectual Property Rights licensed under this Section 2.6 (Discovery Collaboration Licenses) and to carry out the applicable research and discovery activities using such Intellectual Property Rights.

Article 3
IBIO OPTIONS AND LICENSES

3.1.            Exclusive Options. Subject to the terms and conditions of this Agreement, with respect to each Collaboration, RubrYc hereby grants to iBio an exclusive option to obtain the license set forth in Section 3.3 (Commercial Licenses) with respect to two (2) of the Lead Candidates resulting from such Collaboration, and the exclusive right to such two (2) selected Lead Candidates (which would be the Selected Compounds for such Collaboration) (for each Collaboration, the “Option”), exercisable by iBio up to ninety (90) days following the completion of Stage 4 of the applicable Collaboration (for such Collaboration, the “Option Evaluation Period”) of that Collaboration. iBio will exercise an Option, if at all, by delivering a written notice to RubrYc electing to exercise such Option at any time during the applicable Option Evaluation Period (the “Option Exercise Notice”) of that Collaboration. If iBio so delivers the Option Exercise Notice to exercise an Option, then iBio will pay to RubrYc the applicable Option Exercise Fee in accordance with Section 5.3 (Option Exercise Fee) (the date of payment of such Option Exercise Fee by iBio after or with the Option Exercise Notice for such Option is, for such Option the “Option Exercise Date”).

3.2.            Effects of Option Exercise. Upon the applicable Option Exercise Date of each Collaboration:

(a)               each of the two (2) Lead Candidates subject to such Option exercised by iBio will be considered a “Selected Compound” for the purpose of this Agreement with respect to such Collaboration;

(b)               the license grant in Section 3.3 (Commercial Licenses) will become effective with respect to such Selected Compound(s);

(c)               with respect to such Option, iBio shall have the full discretion (i) to select one (1) of the Selected Compounds as the lead compound for further Development, Clinical and Regulatory Activities, Manufacturing and Commercialization under this Agreement (the “Lead Compound”), and (ii) to decide whether to further so develop, including to conduct Clinical and Regulatory Activities for, Manufacture and Commercialize the other Selected Compound (the “Backup Compound”) at all;

(d)               the work of the JSC shall cease as to that Discovery Collaboration Plan (or the JSC shall dissolve if all prior/other Discovery Collaboration Plans have been terminated and iBio no longer has the right to propose a new Target under the Additional Compound Rights); and

(e)               the Parties shall destroy all Collaboration Hit Candidates not selected as the Selected Compounds in any Collaboration and shall not use or disclose any information relating to them (except as negative references in research).

3.3.            Commercial Licenses.

(a)               Effective and contingent upon an Option Exercise Date occurring and subject to the terms and conditions of this Agreement, during the Term, and only with respect to the Selected Compounds under the applicable Collaboration for which the Option Exercise Date applies, RubrYc hereby grants to iBio an exclusive, sublicensable (through multiple tiers but subject to the terms of Section 3.3(b)), royalty-bearing license, under the RubrYc Licensed IP, to make, have made, use, sell, have sold and import (collectively, “Exploit”) such Selected Compounds in, or for use in, Collaboration Products for all uses in the Field and Territory (each a “Commercial License”). For clarity, no rights are granted to iBio hereunder outside of such Selected Compounds in, or for use in, Collaboration Products, outside the Field or if the applicable Option Exercise Date does not occur as to a potential Selected Compound. The Commercial License includes at no additional cost the right to use any Intellectual Property Controlled by RubrYc that is necessary to enable iBio and its Sublicensee(s) to exercise the rights set forth in this Section.

(b)               Each Commercial License is only assignable and transferable in the event of an assignment and transfer of this Agreement pursuant to Section 12.2 (Assignment). Each Commercial License includes the right for iBio to issue written sublicenses (through multiple tiers) to Sublicensees. iBio shall promptly inform RubrYc of the existence of any such Sublicensee and shall promptly deliver to RubrYc copies of each sublicensing agreement with such Sublicensee, provided that iBio may redact any financial information and any sensitive or proprietary information that is not necessary to ascertain compliance with this Agreement. Granting a sublicense does not relieve iBio of any of its obligations under this Agreement, and iBio hereby agrees not to grant a sublicense to any Sublicensee unless iBio binds such Sublicensee in writing to terms no less protective of RubrYc than those set forth herein. iBio shall deliver all payments and reports due RubrYc in connection with the sublicense granted to any Sublicensee.

(c)               All rights not specifically granted by a Party herein are reserved to such Party, which may at all times fully and freely exercise the same.

3.4.            Negative Covenants. The Parties agree not to use any Collaboration Hit Candidates not selected as Selected Compounds (including following the conclusion of each applicable Stage, i.e. if not selected to the Hit Panel, then the Lead Panel, then as Lead Candidates) except under the applicable Collaboration in accordance with a Discovery Collaboration Plan, subject to RubrYc’s right to advance any Collaboration Hit Candidate pursuant to Section 3.5 (Effects of Option Decline). In addition, RubrYc will not during the term of any Program undertake (either itself or with any Third Party) to identify or develop any compound that is directed at the same protein as a Target that is the subject of a Discovery Collaboration Plan that has not been terminated.

3.5.            Effects of Option Decline. In the event iBio (a) notifies RubrYc in writing during the applicable Option Evaluation Period for a Collaboration that it declines to exercise the Option for such Collaboration, or (b) (1) does not deliver an Option Exercise Notice to RubrYc before the expiration of such Option Evaluation Period, (2) does not timely make payment of an Option Exercise Fee for such Option, or (3) any of Stages 1–4 for such Collaboration are not completed within the timelines stipulated in the applicable Discovery Collaboration Plan, then iBio shall be deemed to have declined the Option for such Collaboration as of such date (such applicable date in (a)-(b), the “Option Decline Date”). Upon the Option Decline Date as to any Collaboration: (i) the Discovery Collaboration Plan and Collaboration (and so the Program) to which such Option relates shall be deemed terminated; (ii) all relevant terms of this Agreement with respect to such Collaboration shall be deemed terminated; (iii) the work of the JSC as to that Collaboration will cease; (iv) iBio’s rights with respect to all Collaboration Hit Candidates, RubrYc Licensed IP, and any of RubrYc’s Additional Developments relating to that Collaboration will terminate and, for clarity, there shall be no Selected Compounds and no Commercial License; (v) iBio shall destroy all Collaboration Hit Candidates in its possession that are subject to the terminated Collaboration; and (vi) RubrYc will have the right, but not the obligation, to further research, develop, make, have made, manufacture, use, distribute, sell import, export and otherwise exploit Collaboration Hit Candidates subject to such terminated Collaboration and any products containing such Collaboration Hit Candidates unencumbered. For clarity and without limiting any other provision of this Agreement, upon the Option Decline Date as to the final Discovery Collaboration Plan agreed by the Parties and if iBio no longer has the right to propose a new Target under the Additional Compound Rights, then RubrYc’s obligations to perform Discovery activities under Article 2.1 (Discovery Collaboration Plans) and Article 2.2(c) (Additional Collaborations) shall terminate.

3.6.            Additional Option. Subject to the terms and conditions of this Agreement, for a period of one year after the Effective Date (“Existing Compound Option Period”), in the event that RubrYc independently develops (or has already developed) any antibody therapeutic compound that is not subject to a written term sheet under active negotiation, option, license or rights of assignment to any Third Party (and that is not any of the Collaboration Hit Candidates) (“Existing Compound”), RubrYc shall so notify iBio in writing, and at iBio’s election, iBio may exercise an option (in addition to the options set forth in Section 3.1 (Exclusive Options)) to obtain exclusive, worldwide, royalty-bearing rights to such Existing Compound (“Existing Compound Option”). If iBio so elects the Existing Compound Option in writing within the Existing Compound Option Period as to any Existing Compound, the Existing Compound would be subject to the same terms and conditions as though it were a Selected Compound developed under this Agreement. iBio may exercise this option, if at all, by delivering a written notice electing to exercise the option to RubrYc at any time during the Existing Compound Option Period (which notice is also an “Option Exercise Notice”). If iBio so timely delivers the Option Exercise Notice, then iBio will pay to RubrYc an Option Exercise Fee in accordance with Section 5.3 (Option Exercise Fee) (the date of payment of Option Exercise Fee by iBio after or with such Option Exercise Notice, is also the “Option Exercise Date”). Thereafter, the other terms and conditions of this Agreement shall apply to the Existing Compound subject to such Existing Compound Option, which shall be deemed a Selected Compound. For clarity, this Section does not apply to any compounds that are developed by RubrYc in collaboration with, or pursuant to funding from, any Affiliate of RubrYc or Third Party. In the event (a) iBio notifies RubrYc in writing prior to the end of the Existing Compound Option Period that it declines to exercise the Existing Compound Option, (b) iBio does not deliver an Option Exercise Notice to RubrYc before the expiration of the Existing Compound Option Period, or (c) iBio does not timely make payment of the applicable Option Exercise Fee, then, in each case of subsections (a)-(c), iBio shall be deemed to have declined the Existing Compound Option as to all applicable Existing Compound(s) as of such date.

3.7.            Co-commercialization of RubrYc Services. To the extent RubrYc has available capacity to conduct additional target-directed discovery projects using the RubrYc Discovery Engine beyond iBio’s exercisable right outlined in Section 2.2(c) (Additional Collaborations), the Parties will discuss in good faith a co-commercialization arrangement whereby iBio would provide assistance to RubrYc in identifying and executing potential partnerships with Third Parties, and whereby the Parties would share the revenue resulting from such Third Party partnerships.

Article 4
DEVELOPMENT, CLINICAL AND REGULATORY, MANUFACTURE AND COMMERCIALIZATION

4.1.            iBio Diligence Obligations. Effective and contingent upon the applicable Option Exercise Date, iBio shall use Commercially Reasonable Efforts to (i) Develop the Selected Compounds for use in the Collaboration Product(s), (ii) Develop the Collaboration Product(s), (iii) perform Clinical and Regulatory Activities for the Collaboration Product(s), (iv) Manufacture and Commercialize the Collaboration Product(s), in each case of (i)-(v) in the Field and Territory. Except as set forth in Article 2 (Discovery Collaboration), iBio shall be solely responsible for and have sole control and discretion over such activities at its sole expense. Without limiting the foregoing, or any other rights RubrYc may have, or obligations iBio may have under this Agreement, in the event the following milestones are missed for each Program, RubrYc has the right to receive a $[***]payment from iBio on the date each milestone is missed, and each anniversary of such date until the milestone is achieved, provided that the milestone was missed due to iBio’s failure to exercise Commercially Reasonable Efforts.

For the avoidance of doubt, the foregoing development milestones relate to the first Collaboration Product in the first country in the Territory (not every Collaboration Product or each country in the Territory) for each Program.

4.2.            Development Reports. Within thirty (30) days after the end of each Calendar Quarter and upon the achievement of each of the foregoing milestones in Section 4.1 (iBio Diligence Obligations), iBio will provide RubrYc with a report (each, a “Development Report”) setting forth the main activities and progress for the Collaboration Product(s), including the progress if iBio elects to pursue a Backup Compound. In addition, iBio will make available to RubrYc such additional information about its activities for the Collaboration Product(s) as may be reasonably requested by RubrYc from time to time. All Development Reports and further information outside of the Development Reports provided by iBio pursuant to this Section 4.2 (Development Reports) that iBio considers to be its Confidential Information may be identified as such and will be treated subject to the confidentiality provisions of ARTICLE 7 (Confidentiality; Publication). The obligations set forth in this Section shall cease as to each Program upon the occurrence of the First Commercial Sale of each such Collaboration Product in such Program.

4.3.            Regulatory Assistance. Upon iBio’s reasonable request, RubrYc will cooperate with and assist, and will cause its Affiliates or its or their employees to cooperate with and assist, iBio with respect to the preparation of filings or submissions to seek or maintain Intellectual Property Rights and to conduct Clinical and Regulatory Activities relating to any Collaboration Products in the Field in the Territory, including providing any data, results or information in possession of RubrYc or its Affiliates that may be reasonably necessary to be included in such activities, filings or submission, all at iBio’s expense.

4.4.            Regulatory Responsibilities. With respect to each Program, iBio shall be solely responsible to obtain and maintain any Regulatory Approvals, Pricing and Reimbursement Approval, and Marketing Approval that may be necessary for its activities in relation to the Collaboration Products in the Field in the Territory. Without limiting the terms of Section 4.1 (iBio Diligence Obligations), iBio will be obligated to, at its sole expense, itself or through Sublicensees, use Commercially Reasonable Efforts to complete such further Development, conduct Clinical and Regulatory Activities, and obtain Marketing Approval, for at least one (1) Collaboration Product per Program in the Field in each of the Major Markets.

4.5.            Manufacture. With respect to each Program, iBio shall be solely responsible for the Manufacturing of the Selected Compounds and Collaboration Products in the Field in the Territory, or arranging for the Manufacturing of the Selected Compounds and Collaboration Products in the Field in the Territory, at its sole expense. iBio may conduct such Manufacturing activities itself or through a Sublicensee.

4.6.            Commercialization Responsibilities. With respect to each Program, iBio shall be solely responsible for the Commercialization of Collaboration Products in the Field in the Territory, at its sole expense. iBio may conduct such Commercialization activities itself or through a Sublicensee.

4.7.            Commercialization Diligence. With respect to each Program, iBio shall use Commercially Reasonable Efforts to Commercialize at least one (1) Collaboration Product in the Field in each Major Market where such Collaboration Product has obtained all necessary Marketing Approvals.

Article 5
PAYMENTS

5.1.            Stage 2 Milestone Payment. Within thirty (30) days after the start of Stage 2 as set forth in a Discovery Collaboration Plan, iBio shall pay to RubrYc an irrevocable, one time only (with respect to each Collaboration), non-refundable, non-creditable amount of four hundred thousand U.S. Dollars ([$***]) (each a “Stage 2 Milestone Payment”).

5.2.            Stage 3 Milestone Payment. Within thirty (30) days after the start of Stage 3 as set forth in a Discovery Collaboration Plan, iBio shall pay to RubrYc an irrevocable, one time only (with respect to each Collaboration), non-refundable, non-creditable amount of five hundred thousand U.S. Dollars ([$***]) (each a “Stage 3 Milestone Payment”).

5.3.            Option Exercise Fee. For each Option Exercise Notice(s) that iBio delivers to RubrYc during the applicable Option Evaluation Period pursuant to Section 3.1 (Exclusive Options) or during an Existing Compound Option Period pursuant to Section 3.6 (Additional Option), then, each time, RubrYc shall promptly issue an invoice to iBio for an irrevocable, non-refundable, non-creditable amount of [***] U.S. Dollars ([$***]) (each an “Option Exercise Fee”), and iBio shall pay each such Option Exercise Fee to RubrYc within thirty (30) days after receiving such invoice from RubrYc.

5.4.            Collaboration Product Milestones Payments. In partial consideration of the rights granted herein, when each Collaboration Product (including each Distinct Product) first achieves in any country in the Territory the milestone events set forth below (each such event, a “Milestone Event”), iBio shall pay to RubrYc the following irrevocable, non-refundable, non-creditable milestone payments (each such payment, a “Milestone Payment”) within sixty (60) days of the achievement of the corresponding Milestone Event.

Milestone Payments shall be payable (by iBio) regardless of whether the applicable Milestone Event was achieved by iBio or by another Selling Entity (or by a successor or assign of any of them) (provided that, for clarity, the foregoing reference to “successor or assign” does not limit the application to a Party’s successors or assigns of any other provision of this Agreement where “successor or assign” is not expressly stated). For the avoidance of doubt, (i) each Milestone Payment shall be payable on the first occurrence of the corresponding Milestone Event for each Program, and (ii) none of the Milestone Payments shall be payable more than once for each Program. For the avoidance of doubt, for each Program there are four (4) Milestone Payments in this Section, and the maximum amount to be paid by iBio pursuant to this Section is $15,000,000 for each Program.

5.5.            Royalties.

(a)               Royalty Payment. During the Royalty Term, iBio shall pay to RubrYc tiered royalties as calculated by multiplying the applicable royalty rate set forth in the table below by the corresponding amount of incremental, aggregated Net Sales of a Collaboration Product (including each Distinct Product) in a Program in the Territory in a Calendar Year (a “Royalty Payment”). For clarity, the table below applies on a per Program basis. With respect to any Existing Compounds that become Selected Compounds pursuant to Section 3.6 (Additional Option), the Net Sales of Collaboration Products containing such Existing Compounds as Selected Compounds shall be subject to a separate table with the same tiers as below, rather than added to the Net Sales for Collaboration Products using other Selected Compounds. The tiered royalty rates on Net Sales shall be as set forth below:

(b)               Royalty Term. The Royalty Payments payable under this Section 5.5 (Royalties) shall be payable on a country-by-country and Collaboration Product-by-Collaboration Product basis from the First Commercial Sale of a Collaboration Product in a country until, with respect to such Collaboration Product in such country, the later of:

(i)                 the expiration of the last-to-expire Valid Claim of a Licensed Patent in such country that Covers a Selected Compound in such Collaboration Product in such country;

(ii)              the expiry of the Regulatory Exclusivity for such Collaboration Product in such country; or

(iii)            the close of business of the day that is exactly ten (10) years after the date of the First Commercial Sale of such Collaboration Product in such country, provided that no Biosimilar Product has been approved in such country; (the “Royalty Term”).

(c)               Royalty Adjustment for Third Party License Payments. If iBio or its Sublicensee, in its reasonable judgment, is required to obtain from a Third Party a license under any Patent to make, have made, use, offer for sale, sell or import any Collaboration Product in the Field in any country in the Territory with respect to the use of the Selected Compound in such Collaboration Product, then the amount of royalties payable under Section 5.5(a) (Royalty Payment) shall be reduced by up to fifty percent (50%) of the amount of such payments to such Third Party on account of the sale of the Collaboration Products in such country, but in no event shall the amount of royalties otherwise payable under Section 5.5(a) (Royalty Payment) be reduced as a result thereof by more than fifty percent (50%). For the avoidance of doubt, this royalty reduction shall also be available for any other active ingredient or other component if the licensed Third Party technology is (in the reasonable judgment of iBio or its Sublicensee) necessary to render the Collaboration Product medically and commercially viable, unless a non-infringing alternative of the other active ingredient or component is available. iBio may not carry forward to subsequent Calendar Quarters any deductions that it was not able to deduct as a result of the foregoing proviso.

(d)               Royalty Reports and Royalty Payments. Within thirty (30) days after the end of each Calendar Quarter, commencing with the Calendar Quarter during which the First Commercial Sale of the first Collaboration Product is made anywhere in the Territory, iBio shall provide RubrYc with a report that contains the following information for the applicable Calendar Quarter, on a Program-by-Program, Collaboration Product-by-Collaboration Product and country-by-country basis (each such report, a “Royalty Report”): (i) the amount of Net Sales of each Collaboration Product sold during such Calendar Quarter reporting period by all Selling Entities including supporting calculations showing the gross invoices/billings and the permitted deductions; (ii) a calculation of the Royalty Payment due on such Net Sales, including supporting calculations showing the applicable royalty rate; and (iii) the exchange rate used for converting any Net Sales and any supporting calculations recorded in a currency other than U.S. Dollars. Promptly following the delivery of the applicable quarterly Royalty Report, RubrYc shall invoice iBio for the royalties due to RubrYc with respect to Net Sales for such Calendar Quarter, and iBio shall pay such amounts to RubrYc in Dollars within thirty (30) days following iBio’s receipt of such invoice. If no royalty is due for any Calendar Quarter following commencement of the reporting obligation, iBio shall so report.

5.6.            Payment.

(a)               Mode of Payment. All payments to be made under this Agreement shall be made in U.S. Dollars and shall be paid by electronic transfer in immediately available funds to such bank account in the United States as is designated in writing by RubrYc. All payments shall be free and clear of any transfer fees or charges. Notwithstanding the foregoing, the Parties agree that iBio shall be deemed to have a one-time credit of $[***]that it may use to offset the first $[***]of Milestone Payments or any other payments due hereunder or under the Collaboration and License Agreement until such credit is depleted. Moreover, notwithstanding the foregoing, the Parties agree that iBio may in its sole discretion make certain Milestone Payments in iBio Stock rather than cash, as specified in Section 5.4 (Collaboration Product Milestone Payments).

(b)               Currency Exchange Rate. The rate of exchange to be used in computing the amount of currency equivalent in U.S. Dollars for calculating Net Sales in a Calendar Quarter (for purposes of the royalty calculation) shall be made at the average of the closing exchange rate as published by The Wall Street Journal (U.S. Eastern Edition) for the first, middle, and last Business Days in New York, NY of such Calendar Quarter, or such other source as the Parties may agree in writing.

(c)               Payment Timeline. Except as otherwise provided in this Agreement, all payments to be made by one Party to the other Party under this Agreement shall be due within thirty (30) days following such Party’s receipt of an invoice from the other Party.

5.7.            Records and Audits.

(a)               iBio shall keep, and shall require its Sublicensees to keep (all in accordance with GAAP or the applicable legitimate accounting standard, consistently applied), for a period not less than five (5) years complete and accurate records in sufficient detail to properly reflect Net Sales and to enable any Milestone Payment payable hereunder to be determined.

(b)               Upon the written request of RubrYc, iBio shall permit, and shall cause its Sublicensees to permit, an independent certified public accounting firm of nationally recognized standing selected by RubrYc and reasonably acceptable to iBio, at RubrYc’s expense, to have access during normal business hours to such records of iBio and its Sublicensees as may be reasonably necessary to verify the accuracy of the payments hereunder for any Calendar Year ending not more than three (3) years prior to the date of such request. These rights with respect to any Calendar Year shall terminate three (3) years after the end of any such Calendar Year, and the exercise of this audit right shall be limited to once each Calendar Year (provided that the foregoing frequency limit shall not apply if RubrYc provides iBio a reasonable basis to believe that a Royalty Report issued within the prior three (3) years is materially inaccurate). RubrYc shall provide iBio with a copy of the accounting firm’s written report within thirty (30) days of completion of such report. If such accounting firm correctly concludes that an underpayment was made, then iBio shall pay the amount due, including interest thereon at the rate set forth in Section 5.8 (Interest), within thirty (30) days of the date RubrYc delivers to iBio such accounting firm’s written report so correctly concluding. If such accounting firm correctly concludes that an overpayment was made, then such overpayment shall be credited against any future payment due to RubrYc hereunder (if there is no future payment due, then RubrYc shall promptly refund such overpayment to iBio). RubrYc shall bear the full cost of such audit unless such audit correctly discloses that iBio underpaid for the audited period by more than five percent (5%) of the amount properly due for that audited period, in which case iBio shall pay the reasonable fees and expenses charged by the accounting firm.

(c)               RubrYc shall treat all financial information, subject to review under this Section 5.7 (Records and Audits) as iBio’s Confidential Information in accordance with the confidentiality provisions of ARTICLE 7 (Confidentiality; Publication), and, prior to commencing such audit, shall cause its accounting firm to enter into a confidentiality agreement (reasonably acceptable to iBio) with iBio obligating it to treat all such financial information in confidence pursuant to such confidentiality provisions. Such accounting firm shall not disclose iBio’s Confidential Information to RubrYc, except to the extent such disclosure is necessary to verify the accuracy of the financial reports furnished by iBio or the amount of payments to or by iBio under this Agreement.

5.8.            Interest. If any payment due is not paid by the due date, RubrYc may charge interest on any outstanding amount of such payment, accruing as of the original due date, at an annual rate equal to the rate of prime (as reported in The Wall Street Journal, U.S. Eastern Edition) plus two percentage points or the maximum rate allowable by Applicable Law, whichever is less. The payment of such interest shall not foreclose a Party from exercising any other rights it may have because any payment is overdue.

5.9.            Taxes.

(a)               Each Party will be responsible for all taxes, fees, duties, levies or similar amounts imposed on its own income, assets, capital, employment, personnel, and right or license to do business; provided, however, that if Applicable Laws require iBio to withhold any taxes from payments made to RubrYc under this Agreement, then such taxes shall be paid by iBio to the proper tax authorities and such amounts shall be deducted by iBio from the amounts due hereunder.

(b)               The Parties shall cooperate with one another and use reasonable and legal efforts to reduce, or obtain a credit, refund, or recovery for, any and all income or other taxes required by Applicable Laws to be withheld or deducted from any Royalty Payments, Milestone Payments or other payments made by iBio to RubrYc under this Agreement, including by completing all reasonable procedural steps, and taking all reasonable measures, to ensure that any withholding tax is reduced, eliminated, credited, or recovered to the extent permitted under Applicable Laws, including income tax treaty provisions and related procedures for claiming treaty relief.

Article 6
INTELLECTUAL PROPERTY

6.1.            Inventions; Ownership.

(a)               Background IP. As between the Parties, and subject to the rights, licenses and assignments expressly set forth under this Agreement, each Party shall own or continue to own all right, title and interest in and to any and all Intellectual Property and Intellectual Property Rights that were Controlled by such Party prior to the Effective Date, or that are generated by or for (by a Third Party or such Party’s Affiliates) such Party, or to which such Party obtains rights, outside performance of a Collaboration and without use of the other Party’s Controlled Intellectual Property or Intellectual Property Rights (each Party’s “Background IP”). Without limiting the foregoing, the RubrYc Discovery Engine (except for the Targeted MEMs which are RubrYc-Owned Foreground IP) is RubrYc’s Background IP.

(b)               RubrYc-Owned Foreground IP. As between the Parties, excluding iBio’s Background IP and the iBio-Owned Foreground IP, RubrYc shall own all right, title and interest in and to any of the following, including all Intellectual Property Rights therein, Derived by or on behalf of either Party or its Discovery Subcontractors during performance of a Collaboration (collectively, “RubrYc-Owned Foreground IP”): (i) the RubrYc Discovery Engine (including any Optimizations or other modifications or improvements thereto); and (ii) Collaboration Hit Candidates (including any Optimizations or other modifications or improvements thereto). iBio will and hereby does assign to RubrYc all of its right, title and interest in and to such RubrYc-Owned Foreground IP to effectuate the ownership terms herein, and will take (and will cause its Discovery Subcontractors to take) such further actions reasonably requested by RubrYc to evidence such assignments.

(c)               iBio-Owned Foreground IP. As between the Parties, excluding RubrYc’s Background IP and the RubrYc-Owned Foreground IP, iBio shall own all right, title and interest in and to any of the following, including all Intellectual Property Rights therein, Derived by or on behalf of either Party or its Discovery Subcontractors during performance of a Collaboration (collectively, “iBio-Owned Foreground IP”): iBio’s existing documented technologies (including any modifications or improvements thereto). RubrYc will and hereby does assign to iBio all of its right, title and interest in and to such iBio-Owned Foreground IP to effectuate the ownership terms herein and will take (and will cause its Discovery Subcontractors to take) such further actions reasonably requested by iBio to evidence such assignments.

(d)               Additional Developments. Subject to the Background IP, iBio-Owned Foreground IP, and RubrYc-Owned Foreground IP, the ownership of any other Intellectual Property, including all Intellectual Property Rights therein, Derived by or on behalf of either Party or its Discovery Subcontractors during performance of a Collaboration (each Party’s “Additional Developments”), shall follow inventorship or authorship. In the event Additional Developments are jointly invented or authored by personnel of both Parties (including their respective Discovery Subcontractors), such Additional Developments shall be owned by iBio. RubrYc will and hereby does assign to iBio all of its right, title and interest in and to any jointly invented or authored Additional Developments to effectuate the ownership terms herein, and will take (and will cause its Discovery Subcontractors to take) such further actions reasonably requested by iBio to evidence such assignments.

(e)               Disclosure. During each Collaboration, iBio shall promptly disclose to RubrYc all RubrYc-Owned Foreground IP and any of iBio’s Additional Developments useful for the Collaboration, in each case Derived by or on behalf of iBio during the performance of the Collaboration, including all invention disclosures or other similar documents submitted to iBio by its Discovery Subcontractors’ employees, agents, or independent contractors relating thereto, and shall also promptly respond to reasonable requests from RubrYc for additional information relating thereto. RubrYc shall promptly disclose to iBio all iBio-Owned Foreground IP and any of RubrYc’s Additional Developments useful for a Collaboration, in each case Derived by or on behalf of RubrYc during the performance of the Collaboration, including all invention disclosures or other similar documents submitted to RubrYc by its or Discovery Subcontractors’ employees, agents, or independent contractors relating thereto, and shall also promptly respond to reasonable requests from iBio for additional information relating thereto.

6.2.            Prosecution and Maintenance.

(a)               Generally. Each Party shall have the right of Prosecution and Maintenance with respect to its Background IP and its respective owned RubrYc-Owned Foreground IP, iBio-Owned Foreground IP and Additional Developments, through counsel of its choosing and at its expense, subject to Section 6.2(b) (Right to Consult) and the following sentence. Contingent on an Option Exercise Date, until termination of this Agreement or a Program with respect to a Selected Compound, iBio shall have the right (effective upon the occurrence of the foregoing condition precedent) of, and shall use Commercially Reasonable Efforts to perform, Prosecution and Maintenance with respect to the Licensed Patents Covering the Selected Compound(s), including prosecution of genus claims directed to antibodies that bind to Targeted MEMs, under such Program through counsel of its choosing and at its expense, subject to Section 6.2(b) (Right to Consult).

(b)               Right to Consult. With respect to Prosecution and Maintenance of the Patents Covering any Selected Compound or any Additional Developments, the filing Party shall consult with the other Party and keep the other Party reasonably informed of such Prosecution and Maintenance and shall provide the other Party with all material correspondence received from any patent authority in connection therewith. In addition, the filing Party shall provide the other Party with drafts of all proposed material filings and correspondence to any patent authority in the Territory in connection with such Prosecution and Maintenance for the other Party’s review and comment prior to the submission of such proposed filings and correspondence. The filing Party shall provide drafts to the other Party not less than thirty (30) days prior to filing in the case of new Patents and not less than fourteen (14) days prior to filing in the case of amendments and responses to office actions. The filing Party shall consider in good faith the other Party’s comments, including comments with respect to fields outside the Field, but shall have final decision-making authority over the Prosecution and Maintenance of the rights it owns. The Parties will cooperate with each other in good faith to facilitate the Prosecution and Maintenance of the Patents Covering any Selected Compound or any Additional Developments, including executing any relevant instruments and making its employees, agents and consultants reasonably available to the other Party (or to the other Party’s authorized attorneys, agents or representatives), to the extent reasonably necessary to enable the appropriate Party hereunder to undertake its Prosecution or Maintenance responsibilities.

(c)               Limits. Neither Party shall, without the express prior written consent of the other Party, claim the other Party’s Intellectual Property or Intellectual Property Rights or disclose the other Party’s Confidential Information in any patent applications, amendments, office actions and responses thereto, issued patents, related correspondence, and other related documents with respect thereto.

6.3.            Patent Enforcement.

(a)               Notice. Each Party shall notify the other within five (5) Business Days of becoming aware (including if its Affiliates become aware) of any Product Infringement or Inter Partes/Post-grant Proceeding relating to a Licensed Patent. Following such notification, the Parties will confer. In the event a Third Party asserts that the Selected Compound(s), Collaboration Products or other activities of the Parties in connection with a Program infringe such Third Party’s rights, the Parties shall work together in good faith to develop an approach to address the Third Party’s assertion subject to subsection (b) below. In the event a Third Party commences an Inter Partes/Post-grant Proceeding relating to a Licensed Patent, the Parties shall work together in good faith to develop an approach to address such Inter Partes/Post-grant Proceeding subject to subsection (c) below

(b)               Enforcement Rights. After an Option Exercise Date, as between the Parties, iBio shall have the first right, but not the obligation, to bring and control any legal action against any Person engaged in a Product Infringement, at its own expense and by counsel of its own choice. If iBio fails to bring an action or proceeding against the Product Infringement within three (3) months following receipt or delivery (as applicable) of the notice of or becoming aware of alleged Product Infringement, then RubrYc shall have the second option to, but shall be under no obligation to, take such legal action as RubrYc deems necessary at its own expense and by counsel of its own choice and, if RubrYc does so, RubrYc will provide a meaningful, good faith opportunity to iBio to participate in any such action. Subject to the foregoing, each Party shall have the first right to bring and control any legal action to enforce the Patents it Controls (except if licensed from the other Party) at its own expense and by counsel of its own choice as it reasonably determines appropriate, and such Party shall consider in good faith the interests of the other Party in such enforcement. The Party bringing legal action shall not enter into any settlement admitting the invalidity of, or otherwise impairing, any Licensed Patents impacting Collaboration Products without the prior written consent of the other Party. Neither Party shall enter into any settlement that would have the effect of admitting liability of the other Party without the prior written consent of the other Party.

(c)               Inter Partes/Post-grant Proceedings. Each Party shall have the right to conduct Inter Partes/Post-grant Proceedings with respect to its Background IP and its respective owned RubrYc-Owned Foreground IP, iBio-Owned Foreground IP and Additional Developments, through counsel of its choosing and at its expense, subject to the following. As between the Parties, iBio shall have the first right, but not the obligation, to bring or defend any Inter Partes/Post-grant Proceeding relating to the Licensed Patents, at its own expense and by counsel of its own choice. If iBio fails to bring or defend any such Inter Partes/Post-grant Proceeding within three (3) months following notice of the possibility or requirement to do so (or within half the statutory period of time to do so), then RubrYc shall have the second option to, but shall be under no obligation to, bring or defend such Inter Partes/Post-grant Proceeding at its own expense and by counsel of its own choice and, if RubrYc does so, RubrYc will provide a meaningful, good faith opportunity to iBio to participate in any such action. The Party bringing or defending any such Inter Partes/Post-grant Proceeding shall not enter into any settlement admitting the invalidity of, or otherwise impairing, any Licensed Patents impacting Selected Compounds or Collaboration Products without the prior written consent of the other Party.

(d)               Cooperation. Each Party shall provide reasonable assistance in connection with any legal action contemplated by this Section, including by executing reasonably appropriate documents, cooperating in discovery and joining as a party to the action if required by Applicable Laws to pursue such action or if the Parties agree it is necessary to maximize the claim, at no out-of-pocket cost to the cooperating/joining Party.

(e)               Recoveries. Except as otherwise agreed by the Parties as part of a cost-sharing arrangement, any recovery or damages realized as a result of an action or proceeding contemplated by this Section shall be used first to reimburse the Parties’ reasonable documented out-of-pocket legal expenses relating to the action or proceeding, subject to a cap that will be agreed by the Parties with regard to legal expenses of the Party that did not bring and control the action or proceeding, and any remaining recovery shall be retained by the Party that brought and controlled such action or proceeding. In the case that iBio brought and controlled such action or proceeding, the remaining recovery constituting a reasonable royalty shall (if so treated under applicable tax law) be deemed to be Net Sales subject to royalty payments to RubrYc in accordance with the royalty provisions of Section 5.5 (Royalties), with any additional amount retained by iBio for its own account.

6.4.            Patent Marking. iBio and its Sublicensees shall mark all Collaboration Products and packaging (a) intended for sale in the United States in accordance with 35 U.S.C. § 287(a) or any other successor statute in the United States and (b) intended for sale in a country outside the United States in accordance with the applicable Patent marking laws of such country.

6.5.            Trademarks. iBio shall own and be responsible for all trademarks, trade names, branding or logos related to Collaboration Products in the Field in the Territory. iBio shall be responsible for selecting, registering, prosecuting, defending, and maintaining all such marks at iBio’s sole cost and expense.

6.6.            No Implied Licenses; Negative Covenant. Except as set forth herein, neither Party or its Affiliates shall acquire any license or other intellectual property interest, by implication or otherwise, under any Intellectual Property or Intellectual Property Rights of the other Party or its Affiliates. Each Party shall not, and shall not permit any of its Affiliates or sublicensees to, practice any Intellectual Property Rights licensed to it by the other Party outside the scope of the licenses granted to it under this Agreement. Nothing herein shall be construed to limit or restrict, in any manner, RubrYc’s ability to use or exploit, or allow any Person to use or exploit, the RubrYc Discovery Engine.

6.7.            No Alienation. Neither Party may sell, transfer, or otherwise alienate or encumber any Intellectual Property licensed to the other Party under this Agreement in such a manner as to interfere with the ability of such Party to enjoy the licenses granted under this Agreement. RubrYc shall not sell, transfer, or otherwise alienate or encumber the RubrYc Discovery Engine in such a manner as to interfere with RubrYc’s ability to perform its obligations under this Agreement using the RubrYc Discovery Engine. Any purported action in contravention of this Section shall be null and void.

Article 7
CONFIDENTIALITY; PUBLICATION

7.1.            Nondisclosure Obligation. For the Term of this Agreement and five (5) years thereafter, the Party receiving the Confidential Information of the other Party (such receiving Party or a Party’s Affiliate, the “Receiving Party”) shall keep confidential and not publish, make available or otherwise disclose any Confidential Information to any Affiliate or Third Party, without the express prior written consent of the Party that disclosed such Confidential Information (such disclosing Party or a Party’s Affiliate, the “Disclosing Party”); provided however, the Receiving Party may disclose the Confidential Information to those of its Affiliates, officers, directors, employees, agents, consultants or independent contractors (including sublicensees, Sublicensees, and Discovery Subcontractors) who need to know the Confidential Information in connection with this Agreement and are bound by confidentiality obligations with respect to such Confidential Information no less onerous than the terms herein. The Receiving Party shall exercise at a minimum the same degree of care it would exercise to protect its own Confidential Information (and in no event less than a reasonable standard of care) to keep confidential the Disclosing Party’s Confidential Information. The Receiving Party shall use the Confidential Information solely in connection with the purposes of this Agreement and shall not use the Disclosing Party’s Confidential Information for any other purpose. Notwithstanding anything to the contrary, RubrYc’s Background IP, the RubrYc-Owned Foreground IP and RubrYc’s Additional Developments are the Confidential Information of RubrYc, and iBio’s Background IP, the iBio-Owned Foreground IP and iBio’s Additional Developments are the Confidential Information of iBio, unless they meet one of the exceptions in the definition of “Confidential Information.” This ARTICLE 7 (Confidentiality; Publication) does not limit or expand the scope of any licenses granted in this Agreement. To the extent there is any conflict between this ARTICLE 7 (Confidentiality; Publication) and any other agreement related to Confidential Information entered into between the Parties, the terms of this ARTICLE 7 (Confidentiality; Publication) shall control with respect to disclosures made under or in connection with this Agreement.

7.2.            Authorized Disclosure. It shall not be considered a breach of this Agreement if the Receiving Party discloses Confidential Information of the Disclosing Party in order to comply with a lawfully issued court or governmental order or with a requirement of Applicable Laws (including any such disclosures as are required by a Regulatory Authority in connection with seeking Regulatory Approval, Pricing and Reimbursement Approval, or import authorization with respect to Collaboration Products) or the rules of any internationally recognized stock exchange; provided that: (a) unless it is unlawful to do so, the Receiving Party gives prompt written notice of such disclosure requirement to the Disclosing Party and cooperates with the Disclosing Party’s efforts to oppose such disclosure or obtain a protective order for such Confidential Information; and (b) if such disclosure requirement is not quashed or a protective order is not obtained, the Receiving Party shall only disclose those portions of the Confidential Information that it is legally required to disclose and shall make a reasonable effort to obtain confidential treatment for the disclosed Confidential Information.

7.3.            Competitive Products. The Parties agree that each Party may develop information internally or receive information from Affiliates or Third Parties that may be similar to the other Party’s Confidential Information. So long as a Party does not breach the terms of this Agreement, neither Party is prohibited by this Agreement from developing (or having others develop) products or services that compete with the Selected Compounds or Collaboration Product(s).

7.4.            Scientific Publication. iBio may publish, unilaterally or jointly with RubrYc, with respect to the data, results and information generated from Collaboration activities.  iBio shall provide RubrYc with the opportunity to review and comment on any such publication, and iBio will consider in good faith any comments that RubrYc provides and shall comply with RubrYc’s reasonable requests to remove any and all of RubrYc’s Confidential Information from such proposed publication. To the extent RubrYc proposes to make a unilateral publication with respect to the data, results and information generated from Collaboration activities or anything related to the Collaboration Product, RubrYc shall request approval for such publication to iBio, and iBio shall consider such requests in good faith. RubrYc shall not make unilateral publications concerning this subject matter without iBio’s written approval. For clarity, iBio shall have ultimate decision-making authority with respect to publications arising from Collaboration activities or any other work relating to the Collaboration Product. The foregoing ceases to apply for a Collaboration on the Option Decline Date, and on a Program when the Program ends or is terminated with respect to a Selected Compound.

7.5.            Publicity; Use of Names.

(a)               Each of the Parties agrees not to disclose to any Third Party or Affiliates (except as permitted by Section 7.1 (Nondisclosure Obligations)) the terms and conditions of this Agreement without the prior approval of the other Party, except to (i) advisors (including consultants, financial advisors, attorneys and accountants), in each case under circumstances that reasonably protect the confidentiality thereof (ii) actual or bona fide potential and existing investors and acquirers on a need to know basis, in each case under circumstances that reasonably protect the confidentiality thereof, (iii) to the extent necessary to comply with the terms of agreements with Third Parties or Affiliates, or (iv) to the extent required by Applicable Laws, including securities laws and regulations; provided that any disclosures pursuant to (i)–(iii) shall be pursuant to terms of a written non-disclosure/non-use agreement with terms and conditions at least as protective of the Confidential Information as those set forth in this ARTICLE 7 (Confidentiality; Publication) (or, in the case of attorneys, to a duty and obligation of nondisclosure or nonuse pursuant to applicable rules of the profession). Notwithstanding the foregoing, the Parties agree that at the request of either Party both Parties may together issue a mutually approved press release to announce the execution of this Agreement; thereafter, RubrYc and iBio may each disclose to Third Parties and their Affiliates the information contained in such initial press release without the need for further approval by the other.

(b)               Notwithstanding any provisions to the contrary contained in this ARTICLE 7 (Confidentiality; Publication), iBio may make disclosures from time to time with respect to the Clinical and Regulatory Activities and Commercialization for Selected Compounds and the Collaboration Products in the Field and Territory, including achievement of significant events in the Clinical and Regulatory Activities or Commercialization of a Collaboration Product for use in the Field in the Territory; provided that such disclosures do not include any Confidential Information of RubrYc, and shall be accurate and compliant with Applicable Laws and regulatory guidance documents.

(c)               Each Party acknowledges the other Party’s need to keep investors and others informed regarding such Party’s business under this Agreement, including as required by the rules of a recognized stock exchange. To the extent a Party is publicly listed or becomes publicly listed, and subject to the rest of this Section 7.5 (Publicity; Use of Names), such Party may issue press releases or make disclosures to the SEC or other applicable agency as it determines, based on advice of counsel, as reasonably necessary to comply with Applicable Laws or for appropriate market disclosure; provided that each Party shall provide the other Party with advance notice of disclosures to the extent practicable. The Parties shall consult with each other on the provisions of this Agreement to be redacted in any filings made by a Party with the SEC or as otherwise required by Applicable Laws; provided that each Party shall have the right to make any such filing as it reasonably determines necessary under Applicable Laws.

(d)               Each Party will have the right to use the other Party’s name and logo in presentations, its website, collateral materials, and corporate overviews to describe the Collaborations and Program relationships; provided that neither Party will use the other Party’s name or logo in such a manner as to harm the distinctiveness, reputation, or validity of the other Party’s rights in such name or logo, and each Party’s use shall be consistent with best practices used by such other Party for its own use of its name and logo. Except as permitted under this Section 7.5 (Publicity; Use of Names) or with the prior express written permission of the other Party, neither Party will use the name, trademark, trade name, or logo of the other Party or its Affiliates or their respective employees in any publicity, promotion, news release, or disclosure relating to this Agreement or its subject matter except as may be required by Applicable Law.

Article 8
REPRESENTATIONS, WARRANTIES, AND COVENANTS

8.1.            Representations and Warranties of Each Party. Each Party represents and warrants to the other Party as of the Effective Date that:

(a)               it is a company or corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is incorporated, and has full corporate power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including the right to grant the licenses granted by it hereunder;

(b)               (i) it has the corporate power and authority and the legal right to enter into this Agreement and perform its obligations hereunder; (ii) it has taken all necessary corporate action on its part required to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; and (iii) this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, and binding obligation of such Party that is enforceable against it in accordance with its terms;

(c)               it is not a party to any agreement or bound by any order or other legal obligation that would prevent it from granting the rights granted to the other Party under this Agreement, conflict with the rights granted, or prevent it from performing its obligations under this Agreement; and

(d)               all consents, approvals and authorization from all Governmental Authorities or other Third Parties required to be obtained by such Party in connection with this Agreement have been obtained.

8.2.            Additional Representations and Warranties of RubrYc. RubrYc represents and warrants to iBio that, as of the Effective Date, to RubrYc’s Knowledge, (a) the use of the RubrYc Discovery Engine as contemplated herein does not infringe on any Third Party’s Intellectual Property Rights, and (b) the Licensed Patents are valid and in good standing, and no interference, opposition, cancellation or other protest proceeding has been filed against the Licensed Patents.

8.3.            Covenants of Each Party. Each Party covenants to the other Party that in the course of performing its obligations or exercising its rights under this Agreement, it shall, and shall cause its Affiliates, Sublicensees, and Discovery Subcontractors to, use commercially reasonable efforts to comply with the Discovery Collaboration Plans and all agreements referenced herein (without modifying any obligations to use Commercially Reasonable Efforts hereunder), and shall not employ or engage any party who has been debarred by any Regulatory Authority, or, to such Party’s Knowledge, is the subject of debarment proceedings by a Regulatory Authority. Each Party covenants to the other Party that in the course of performing its obligations or exercising its rights under this Agreement, it shall, and shall cause its Affiliates, Sublicensees, and Discovery Subcontractors to comply with all Applicable Laws.

8.4.            NO OTHER REPRESENTATIONS OR WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 8 (REPRESENTATIONS, WARRANTIES, AND COVENANTS), NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR NON-MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, ARE MADE OR GIVEN BY OR ON BEHALF OF A PARTY. ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.

Article 9
INDEMNIFICATION

9.1.            By iBio. iBio shall indemnify and hold harmless RubrYc, its Affiliates, and their directors, officers, employees and agents (individually and collectively, the “RubrYc Indemnitee(s)”) from and against all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) (individually and collectively, “Losses”) awarded to Third Parties, or agreed to in settlement by iBio, arising after the Effective Date to the extent arising out of Third Party claims or suits (each, a “Claim”) against any RubrYc Indemnitee related to: (a) the breach of any covenant, warranty or representation made by iBio under this Agreement; (b) the gross negligence or willful misconduct of iBio or any of its Affiliates or other Sublicensees; (c) the Development, Clinical and Regulatory Activities, Manufacture or Commercialization of the Selected Compound(s) or any Collaboration Product(s) by or on behalf of iBio or Sublicensees, including any product liability claims or infringement claims; (d) any research or discovery activities conducted by or on behalf of iBio or its Affiliates or Discovery Subcontractors during any Collaboration; or (e) violation of Applicable Laws by any iBio Indemnitees, iBio’s Discovery Subcontractors or Sublicensees; in each case of clauses (a) through (e) above, except to the extent such Losses arise from, are based on, or result from any activity or occurrence for which RubrYc is obligated to indemnify the iBio Indemnitees under Section 9.2 (By RubrYc).

9.2.            By RubrYc. RubrYc shall indemnify and hold harmless iBio, its Affiliates, and their directors, officers, employees and agents (individually and collectively, the “iBio Indemnitee(s)”) from and against all Losses awarded to Third Parties, or agreed to in settlement by RubrYc, arising after the Effective Date to the extent arising out of Claims against any iBio Indemnitee related to: (a) the breach of any covenant, warranty or representation made by RubrYc under this Agreement; (b) the gross negligence or willful misconduct of RubrYc or any of its Affiliates; (c) any research or discovery activities conducted by or on behalf of RubrYc or its Affiliates or Discovery Subcontractors during any Collaboration, including without limitation any use of the RubrYc Discovery Engine; or (d) violation of Applicable Laws by any RubrYc Indemnitees or RubrYc’s Discovery Subcontractors; in each case of clauses (a) through (d) above, except to the extent Losses arise from, are based on, or result from any activity or occurrence for which iBio is obligated to indemnify the RubrYc Indemnitees under Section 9.1 (By iBio).

9.3.            Defined Indemnification Terms. Either of the iBio Indemnitee or the RubrYc Indemnitee shall be an “Indemnitee” for the purpose of this ARTICLE 9 (Indemnification), and the Party that is obligated to indemnify the Indemnitee under Section 9.1 (By iBio) or Section 9.2 (By RubrYc) shall be the “Indemnifying Party.”

9.4.            Notice; Defense. If any Claim is made against an Indemnitee under Section 9.1 (By iBio) or 9.2 (By RubrYc), the Indemnitee shall notify the Indemnifying Party promptly of such Claim and shall reasonably cooperate with all reasonable requests of the Indemnifying Party with respect thereto at the Indemnifying Party’s expense. The Indemnitee shall be defended at the Indemnifying Party’s sole expense by counsel selected by the Indemnifying Party, provided that the Indemnitee may, at its own expense, also be represented by counsel of its own choosing. The Indemnifying Party shall have the sole right to control the defense of any such claim or action, subject to the terms of this ARTICLE 9 (Indemnification).

9.5.            Settlement. The Indemnifying Party may settle any such claim, demand, action or other proceeding or otherwise consent to an adverse judgment (a) with prior written notice to the Indemnitee but without the consent of the Indemnitee where the only liability to the Indemnitee is the payment of money and the Indemnifying Party makes such payment, or (b) in all other cases, only with the prior written consent of the Indemnitee, such consent not to be unreasonably withheld or delayed; provided that the Indemnifying Party shall not enter into any settlement admitting the invalidity of, or otherwise impairing, any Intellectual Property Rights of the other Party without the prior written consent of the other Party.

9.6.            Permission by Indemnifying Party. The Indemnitee may not settle any such Claim or otherwise consent to an adverse judgment in any such Claim or make any admission as to liability or fault without the express written permission of the Indemnifying Party.

9.7.            LIMITATION OF LIABILITY. SUBJECT TO AND WITHOUT LIMITING (A) THE INDEMNIFICATION OBLIGATIONS OF EACH PARTY WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTIONS 9.1 (BY IBIO) OR 9.2 (BY RUBRYC), (B) LIABILITY AS A RESULT OF A BREACH OF SECTION 3.4 (NEGATIVE COVENANTS), (C) LIABILITY AS A RESULT OF A BREACH OF ARTICLE 7 (CONFIDENTIALITY; PUBLICATION), OR (D) LIABILITY FOR MISAPPROPRIATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY OWNED OR CONTROLLED BY A PARTY INCLUDING BREACH OF LICENSE RIGHTS OR RESTRICTIONS, NEITHER PARTY OR ANY OF ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, MULTIPLIED OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

9.8.            Insurance. Each Party shall procure and maintain insurance adequate to cover its obligations hereunder and consistent with normal business practices of prudent companies similarly situated. The insurance maintained by a Party shall include clinical and/or product liability insurance at all times during which any Collaboration Product is being clinically tested in human subjects, Manufactured or Commercialized and for the six (6) year period thereafter. It is understood that such insurance shall not be construed to create a limit of either Party’s liability with respect to its indemnification obligations under this ARTICLE 9 (Indemnification). Each Party shall provide the other Party with written evidence of such insurance upon request. Each Party shall provide the other Party with written notice at least thirty (30) days prior to the cancellation, non-renewal or material change in such insurance.

Article 10
TERM AND TERMINATION

10.1.        Term. This Agreement shall be effective as of the Effective Date, and unless earlier terminated as set forth herein, shall remain in effect, until the later of (i) the expiration or termination of the Additional Compound Rights Period or, if later, until all Option Evaluation Periods have expired, or (ii) effective and contingent upon each Option Exercise Date for each Program, (a) the expiration of the last to expire of the Licensed Patents, or (b) on a country-by-country and a Collaboration Product-by-Collaboration Product basis, until the expiration of the Royalty Term of such Collaboration Product in such country (the “Term”). If any Program or Collaboration is terminated pursuant to the terms hereunder (and not this Agreement in its entirety), the Agreement shall remain in full force and effect with respect to the other Program(s) or Collaboration(s) until such Program(s) or Collaboration(s) expire or are terminated as set forth herein.

10.2.        Termination. In addition to the other termination rights set forth in this Agreement:

(a)               Termination for Convenience. iBio shall have the right to terminate this Agreement in its entirety, or with respect to a Program, Collaboration or Selected Compound for any or no reason upon ninety (90) days’ written notice to RubrYc.

(b)               Termination for Material Breach. This Agreement in its entirety may be terminated at any time upon sixty (60) days’ written notice by either Party if the other Party materially breaches this Agreement and, if such breach is curable, such breach has not been cured within sixty (60) days (thirty (30) days in the event of non-payment) of such written notice. A Program or Collaboration, and all relevant terms of this Agreement with respect to such Program or Collaboration, may be terminated at any time during the Term upon sixty (60) days’ written notice by either Party if the other Party materially breaches this Agreement with respect to such Program or Collaboration and, if such breach is curable, such breach has not been cured within ninety (90) days (forty-five (45) days in the event of non-payment) of such written notice.

(c)               Termination for Failure to Raise [***] Dollars. If RubrYc is unable to complete a financing of [$***] (not including the RubrYc Series A2 Financing) by the first anniversary of the closing of the RubrYc Series A2 Financing, iBio may terminate both this Agreement and the Collaboration and License Agreement in their entirety upon written notice to RubrYc within thirty (30) days of the end of such period, and, effective upon such termination, in addition to the rights set forth in Section 10.2(c) (Termination for Failure to Raise [***]) of the Collaboration and License Agreement: (i) RubrYc shall and hereby does (effective upon the occurrence of the foregoing condition precedent) assign to iBio exclusive ownership of the Collaboration Hit Candidates that are in the panel (whether it be the Hit Panel or Lead Panel, or, if thereafter, the Lead Candidates) for the then-current Stage in each then-current (un-terminated) Discovery Collaboration Plan hereunder, including all Intellectual Property of RubrYc relevant to such Collaboration Hit Candidates excluding the RubrYc Discovery Engine, regulatory submissions and interactions, data from all studies performed, and all other materials owned by RubrYc that are related to the Collaboration Hit Candidates without further financial obligation; provided, however, that, the foregoing obligation shall not apply to any Collaboration Hit Candidates with respect to which the Collaboration has been terminated prior to the end of such 30-day period; and (ii) subject to the terms and conditions of this Agreement, RubrYc shall and hereby does (effective upon the occurrence of the foregoing condition precedent) grant to iBio a worldwide, non-exclusive, fully paid-up license, under RubrYc’s Background IP and RubrYc-Owned Foreground IP, to utilize the RubrYc Discovery Engine.

(d)               Termination for Insolvency. Each Party shall have the right to terminate this Agreement in its entirety upon delivery of written notice to the other Party in the event that (i) such other Party files in any court or agency pursuant to any statute or regulation of any jurisdiction a petition in bankruptcy or insolvency or for reorganization under the Chapter 7 of the United States of Bankruptcy Code or other similar Applicable Laws or similar arrangement for the benefit of creditors or for the appointment of a receiver or trustee of such other Party or its assets, (ii) such other Party is served with an involuntary petition against it in any insolvency proceeding and such involuntary petition has not been stayed or dismissed within ninety (90) days of its filing, or (iii) such other Party makes an assignment of substantially all of its assets for the benefit of its creditors. All rights and licenses granted under or pursuant to this Agreement are and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction, licenses of right to “intellectual property” as defined under Section 101 of the U.S. Bankruptcy Code. The Parties agree that the Parties, as licensees of such rights under this Agreement, shall retain and may fully exercise all of their rights and elections under the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction.

(e)               Termination for Patent Challenge. To the extent the following clause is permitted by Applicable Law, RubrYc may, but shall not be required to, terminate any Program, Collaboration, or rights of iBio with regard to any Selected Compound with immediate effect upon written notice to iBio if iBio or Sublicensee(s), directly or indirectly, challenge in a legal or administrative proceeding the patentability, enforceability or validity of any claim of any Licensed Patent that is licensed to iBio in connection with such Program, Collaboration or Selected Compound (such a challenge is, a “Challenge”); provided, however, that RubrYc shall not have the right to terminate a Program, Collaboration or rights of iBio with regard to any Selected Compound under this Section 10.2(e) (Termination for Patent Challenge), if such Challenge was brought by a Third Party Sublicensee and iBio has terminated such Sublicensee’s sublicense with respect to such Licensed Patent within sixty (60) days of RubrYc’s notice to iBio under this Section 10.2(e) (Termination for Patent Challenge). If, upon a Challenge, at least one claim of a Licensed Patent, which Licensed Patent is subject to the Challenge, survives the Challenge not being found invalid or unenforceable, then iBio agrees to pay all costs and expenses incurred by RubrYc or its Affiliates (including attorney’s fees) in connection with defending the Challenge in relation to that Licensed Patent.

10.3.        Effect of Termination of a Program or this Agreement.

(a)               Payments. Termination of this Agreement shall not impact the amounts due under ARTICLE 5 (Payments) to the extent Collaboration Products are still being Exploited by any Selling Entity (notwithstanding the terms of Section 10.3(b) (License Grants)).

(b)               License Grants. Upon the termination of this Agreement in its entirety by RubrYc due to an uncured material breach by iBio or pursuant to Section 10.2(a) (Termination for Convenience) by iBio, all rights and licenses granted to a Party herein, and all rights and licenses granted by iBio to Sublicensees with respect to the Commercial License, shall immediately terminate; provided, however, that in the event of termination under Section 10.2(c) (Termination for Failure to Raise [***]) the license to the RubrYc Discovery Engine in Section 10.2(c) (Termination for Failure to Raise [***]) shall survive termination of this Agreement for so long as iBio complies with its terms. Upon any other termination of this Agreement in its entirety, except as provided in Section 10.2(c) (Termination for Failure to Raise [***]), iBio shall retain the licenses granted to it herein subject to the obligation to make Royalty Payments. Upon the termination of this Agreement solely with respect to a Program, Collaboration or Selected Compound by RubrYc due to an uncured material breach by iBio, all rights and licenses granted to a Party herein, and all rights and licenses granted by iBio to Sublicensees with respect to the Commercial License, if in effect, with respect to the Program, Collaboration or Selected Compound(s) shall immediately terminate. Upon any other termination of this Agreement solely with respect to a Program, Collaboration or Selected Compound, iBio shall retain the licenses granted to it herein with respect to such Program, Collaboration or Selected Compound subject to the obligation to make Royalty Payments.

(c)               Other Obligations. Termination of this Agreement or a Program for any reason shall not release either Party of any obligation or liability which, at the time of such termination, has already accrued to the other Party or which is attributable to a period prior to such termination. Notwithstanding anything herein to the contrary, termination of this Agreement or a Program by a Party shall be without prejudice to other remedies such Party may have at law or equity.

(d)               Return of Confidential Information. At the Disclosing Party’s election and request, the Receiving Party shall return (at Disclosing Party’s expense) or destroy all tangible materials comprising, bearing, or containing any Confidential Information of the Disclosing Party that are in the Receiving Party’s or its Affiliates’ or Sublicensees’ possession or control and provide written certification of such destruction (except to the extent any information is the Confidential Information of both Parties or to the extent that the Receiving Party has the continuing right to use the Confidential Information under this Agreement); provided that the Receiving Party may retain one (1) copy of such Confidential Information for its legal archives, the access to which shall be limited to such Party’s legal, compliance or auditing teams. Notwithstanding anything to the contrary set forth in this Agreement, the Receiving Party shall not be required to destroy electronic files containing such Confidential Information that are made in the ordinary course of its business information back-up procedures. Any such retained Confidential Information shall be retained subject to confidentiality and non-use.

(e)               Other Remedies. Termination or expiration of this Agreement or a Program for any reason shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages or otherwise, that a Party may have hereunder or that may arise out of or in connection with such termination or expiration.

10.4.        Survival. The following provisions shall survive the termination or expiration of a Program, a Collaboration, a Selected Compound or this Agreement for any reason: ARTICLE 1 (Definitions), Section 2.4 (Cost of Discovery Activities), Section 3.5 (Effects of Option Decline), ARTICLE 5 (Payments), Section 6.1 (Inventions; Ownership); Section 6.6 (No Implied Licenses; Negative Covenant), ARTICLE 7 (Confidentiality; Publication), Section 8.4 (No Other Representations or Warranties), ARTICLE 9 (Indemnification), Section 10.3 (Effect of Termination)(to the extent applicable), Section 10.4 (Survival), ARTICLE 11 (Dispute Resolution), ARTICLE 12 (Miscellaneous), and any other provisions that by their nature would be understood to survive termination or expiration of a Program, a Collaboration, a Selected Compound, or this Agreement.

Article 11
DISPUTE RESOLUTION

11.1.        General. The Parties recognize that a dispute may arise relating to this Agreement (a “Dispute”). Any Dispute, including Disputes that may involve the Affiliates of any Party, shall be resolved in accordance with this ARTICLE 11 (Dispute Resolution). Disputes shall not modify either Party’s right to terminate hereunder.

11.2.        Escalation. Any claim, Dispute, or controversy as to the breach, enforcement, interpretation or validity of this Agreement, including any disputes escalated to the Executive Officers pursuant to Section 2.2(i) (Decision-Making), shall be referred to the Executive Officers for attempted resolution. In the event the Executive Officers are unable to resolve such Dispute (including any disputes escalated to the Executive Officers pursuant to Section 2.2(i) (Decision-Making)) within thirty (30) days of such Dispute being referred to them, then either Party may institute a suit, action or proceeding in the courts located in Wilmington, Delaware. Each of the Parties hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of Wilmington, Delaware for such suit, action or proceeding and each of the Parties hereby irrevocably and unconditionally waives any objection to the laying of venue of such suit, action or proceeding in the courts located in Wilmington, Delaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit, action or proceeding sought in any such court has been brought in an inconvenient forum.

11.3.        Equitable Relief. Each Party recognizes that the licenses and restrictions on use herein, and the terms of ARTICLE 7 (Confidentiality; Publication) and their continued performance as set forth in this Agreement are necessary and critical to protect the legitimate interests of the other Party, that each other Party would not have entered into this Agreement in the absence of such licenses, covenants and agreements and the assurance of continued performance thereof as set forth in this Agreement, and that a Party’s breach or threatened breach of such licenses, covenants or agreements may cause the other Party irreparable harm and significant injury, the amount of which will be extremely difficult to estimate and ascertain, thus potentially making any remedy at law or in damages inadequate. Therefore, each Party confirms and agrees that, notwithstanding Section 11.2 (Escalation), the other Party shall be entitled to seek on an interim or permanent basis an order for specific performance, an order restraining any breach or threatened breach of such licenses, covenants or agreements, and any other equitable relief (including but not limited to temporary, preliminary and/or permanent injunctive relief), all without need to post any bond or other security, and in addition to and not exclusive of any other remedy available to such other Party at law or in equity, from any court located in Wilmington, Delaware.

Article 12
MISCELLANEOUS

12.1.        Force Majeure. Neither Party shall be held liable to the other Party nor be deemed to have defaulted under or breached this Agreement for failure or delay in performing any obligation under this Agreement to the extent such failure or delay is caused by or results from causes beyond the reasonable control of the affected Party including embargoes, war, acts of war (whether war be declared or not), insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, fire, floods, epidemic, pandemic or other acts of God or any other deity, or acts, omissions or delays in acting by any Governmental Authority. The affected Party shall notify the other Party of such force majeure circumstances as soon as reasonably practical, and shall promptly undertake all reasonable efforts necessary to cure such force majeure circumstances. Such excuse from performance under this Agreement shall be continued so long as the condition constituting force majeure continues and the nonperforming Party uses reasonable efforts to remove the condition. The Parties agree the effects of the COVID-19 pandemic that is ongoing as of the Effective Date may be invoked as a force majeure for the purposes of this Agreement solely to the extent such effect was not reasonably foreseeable by the Party invoking force majeure as of the Effective Date.

12.2.        Assignment. Neither Party may assign this Agreement to a Third Party or its Affiliate(s) without the other Party’s prior written consent (such consent not to be unreasonably withheld); except that either Party may with written notice promptly after such event make such an assignment without the other Party’s prior written consent to a successor to substantially all of the business of such Party to which this Agreement relates (whether by merger, sale of stock, sale of assets, exclusive license or other transaction). This Agreement shall inure to the benefit of and be binding on the Parties’ successors and permitted assignees. Any assignment or transfer in violation of this Section 12.2 (Assignment) shall be null and void and wholly invalid, the assignee or transferee in any such assignment or transfer shall acquire no rights whatsoever, and the non-assigning non-transferring Party shall not recognize, nor shall it be required to recognize, such assignment or transfer.

12.3.        Performance by Affiliates. Each Party may discharge any obligations and exercise any right hereunder through any of its Affiliates and each Party hereby guarantees the performance by its Affiliates of such Party’s obligations and exercise of such Party’s rights under this Agreement, and shall cause its Affiliates to comply with the provisions of this Agreement in connection with such performance and the exercise of any rights hereunder.

12.4.        Severability. If any one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, unless the absence of the invalidated provision(s) adversely affects the substantive rights of the Parties. The Parties shall in such an instance use their best efforts to replace the invalid, illegal or unenforceable provision(s) with valid, legal and enforceable provision(s) which, insofar as practical, implement the purposes of this Agreement.

12.5.        Notices. Any notice, request, demand, waiver, consent, approval or other communication permitted or required under this Agreement shall be in writing, shall refer specifically to this Agreement and shall be deemed given only if delivered by hand by overnight delivery service that maintains records of delivery, addressed to the Parties at their respective addresses specified in this Section 12.5 (Notices) or to such other address as the Party to whom notice is to be given may have provided to the other Party in accordance with this Section 12.5 (Notices), with a courtesy copy sent by email, which will not constitute notice. Such notice shall be deemed to have been given as of the date delivered by hand or on the second (2nd) Business Day (at the place of delivery) after deposit with an overnight delivery service. This Section 12.5 (Notices) is not intended to govern the day-to-day business communications necessary between the Parties in performing their obligations under the terms of this Agreement.

If to RubrYc:

RubrYc Therapeutics, Inc.
Address: 733 Industrial Road, San Carlos, CA 94070, U.S.A.
Attn: Isaac Bright
Email: Isaac.bright@rubryc.com

with a copy to:

Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402-1498
Attn: Rhona E. Schmidt
Email: Schmidt.Rhona@dorsey.com

If to iBio:

iBio, Inc.
Address: 8800 HSC Pkwy, Bryan, TX 77807

Attn: Thomas Isett
Email: tisett@ibioinc.com

with a copy to:

Venable LLP

750 East Pratt Street

Baltimore, MD 21202

Attn: Charles J. Morton, Jr., Esq.

Email: CJMorton@Venable.com

12.6.        Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to any rules of conflict of laws.

12.7.        Entire Agreement; Amendments. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof. All express or implied agreements and understandings, either oral or written, with regard to the subject matter hereof (including the licenses granted hereunder) are superseded by the terms of this Agreement. Neither Party is relying on any representation, promise, nor warranty not expressly set forth in this Agreement. This Agreement, including the Discovery Collaboration Plan, may be amended, or any term hereof modified, only by a written instrument duly executed by authorized representatives of both Parties hereto. The NDA is hereby terminated, and all obligations under it relating to confidentiality and non-use are replaced by the terms of this Agreement.

12.8.        Headings. The captions to the several Sections hereof are not a part of this Agreement, but are merely for convenience to assist in locating and reading the Sections of this Agreement.

12.9.        Independent Contractors. It is expressly agreed that RubrYc and iBio shall be independent contractors and that the relationship between the two Parties shall not constitute a partnership, joint venture or agency. RubrYc will report any payments received under this Agreement as payments from iBio. Neither RubrYc nor iBio shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior written consent of the other Party.

12.10.    Further Actions. Each Party agrees to execute, acknowledge, and deliver such further instruments, and to do all such other acts, as necessary or appropriate in order to carry out the purposes and intent of this Agreement.

12.11.    Waiver. The waiver by either Party of any right hereunder, or the failure of the other Party to perform, or a breach by the other Party, shall not be deemed a waiver of any other right hereunder or of any other breach or failure by such other Party whether of a similar nature or otherwise.

12.12.    Waiver of Rule of Construction. Each Party has had the opportunity to consult with counsel in connection with the review, drafting and negotiation of this Agreement. Accordingly, the rule of construction that any ambiguity in this Agreement shall be construed against the drafting Party shall not apply.

12.13.    Construction. Except where the context expressly requires otherwise, (a) the use of any gender herein shall be deemed to encompass references to either or both genders, and the use of the singular shall be deemed to include the plural (and vice versa); (b) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”; (c) the word “will” shall be construed to have the same meaning and effect as the word “shall”; (d) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein); (e) any reference herein to any person shall be construed to include the person’s successors and assigns; (f) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof; (g) all references herein to Sections, Schedules, or Exhibits shall be construed to refer to Sections, Schedules or Exhibits of this Agreement, and references to this Agreement include all Schedules and Exhibits hereto; (h) the word “notice” means notice in writing (whether or not specifically stated) and shall include notices, consents, approvals and other written communications contemplated under this Agreement; (i) provisions that require that a Party, the Parties or any committee hereunder “agree”, “consent” or “approve” or the like shall require that such agreement, consent or approval be specific and in writing, whether by written agreement, letter, approved minutes or otherwise (but excluding e-mail and instant messaging); (j) references to any specific law, rule or regulation, or Section, section or other division thereof, shall be deemed to include the then-current amendments thereto or any replacement or successor law, rule or regulation thereof; (k) the term “or” shall be interpreted in the inclusive sense commonly associated with the term “and/or” where applicable; and (l) the word “day” or “year” means a calendar day or year unless otherwise specified.

12.14.    Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and e-mailed copies of signatures shall be deemed to be originals for purposes of the effectiveness of this Agreement. Electronic, facsimile or PDF image signatures shall be treated as original signatures, with the understanding that each Party expressly agrees that such Party shall be bound by its own electronically transmitted signature and shall accept the electronically transmitted signature of the other Party (including through the use of eSignature platforms such as DocuSign®).

[Signature Page Follows]

IN WITNESS WHEREOF, the Parties intending to be bound have caused this Collaboration, Option and License Agreement to be executed by their duly authorized representatives as of the Effective Date.

[Signature Page to Collaboration, Option and License Agreement]

Exhibit A
Discovery Collaboration Plans

[***]

Exhibit 10.2

Certain identified information has been excluded from this exhibit because it is both not material and is the type that
the registrant treats as private or confidential. [***] indicates that information has been redacted.

.COLLABORATION AND LICENSE AGREEMENT

This Collaboration and License Agreement (together with all Exhibits and Schedules attached hereto, this “Agreement”) is made as of August 23 2021 (the “Effective Date”), by and between RubrYc Therapeutics, Inc., a corporation organized and existing under the laws of Delaware, located at 733 Industrial Road, San Carlos, CA 94070 (“RubrYc”), and iBio, Inc., a corporation organized under the laws of the State of Texas, located at 8800 HSC Pkwy, Bryan, TX 77807 (“iBio”). RubrYc and iBio are referred to in this Agreement individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, RubrYc is a biotechnology company specializing in the field of discovery of biotherapeutics and other pharmaceutical therapies;

WHEREAS, iBio is a biotechnology company, which engages in the development and manufacture of biotherapeutics;

WHEREAS, iBio and RubrYc wish to collaborate to further develop RubrYc’s discovery and development compounds in its RTX-003 campaign, which represents all of RubrYc’s current and future anti-CD25 work; and

WHEREAS, RubrYc wishes to grant to iBio, and iBio wishes to be granted, the right to develop and commercialize Licensed Products containing such Licensed Compounds in the Field and the Territory (each as defined herein) in accordance with the terms and conditions set forth below.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

Article 1
DEFINITIONS

Unless specifically set forth to the contrary herein, the following terms, whether used in the singular or plural, shall have the respective meanings set forth below:

1.1.            “Additional Developments” shall have the meaning set forth in Section 6.1(d) (Additional Developments).

1.2.            “Affiliate” means, with respect to a specified Person, any entity that directly or indirectly controls, is controlled by or is under common control with such Person. As used in this Section 1.2 (Affiliate), “control” (and, with correlative meanings, the terms “controlled by” and “under common control with”) means, in the case of a corporation, the ownership of fifty percent (50%) or more of the outstanding voting securities thereof or, in the case of any other type of entity, an interest that results in the ability to direct or cause the direction of the management and policies of such party or the power to appoint fifty percent (50%) or more of the members of the governing body of the party or, where ownership of fifty percent (50%) or more of such securities or interest is prohibited by law, ownership of the maximum amount legally permitted. Notwithstanding the foregoing, Affiliates of a Party shall exclude Persons who are financial investors in such Person or under common control of such investors other than such Person and its parent and subsidiary entities.

1.3.            “Agreement” shall have the meaning set forth in the preamble to this agreement.

1.4.            “Applicable Laws” means all statutes, ordinances, regulations, rules or orders of any kind whatsoever of any Governmental Authority that may be in effect from time to time and applicable to the relevant activities contemplated by this Agreement.

1.5.            “Background IP” shall have the meaning set forth in Section 6.1(a) (Background IP).

1.6.            “Biologics License Application” or “BLA” means a Biologics License Application in the United States as described in Section 351(a) of the United States Public Health Service Act (PHS Act), an abbreviated Biological License Application as described in Section 351(k) of the PHS Act, or equivalent application filed with the applicable Regulatory Authority in another country or regulatory jurisdiction in the Territory.

1.7.            “Biosimilar Product” means, with respect to a Licensed Product, and on a country-by-country basis, any product (including a generic product, biogeneric, follow-on biologic, follow-on biological product, follow-on protein product, similar biological medicinal product, or biosimilar product) that has received Regulatory Approval by way of: (a) a Regulatory Approval process governing approval of interchangeable or biosimilar biologics as described in 42 U.S.C. § 262 (or its foreign equivalents, as applicable) based on the Licensed Product, or is the subject of a notice with respect to such Licensed Product under 42 U.S.C. § 262(l)(2) (or its foreign equivalents, as applicable); or (b) an abbreviated regulatory mechanism or equivalent process for Regulatory Approval to those set forth in subsection (a) by the relevant Regulatory Authority in a country, where such approval referred to or relied on (1) the Marketing Approval for such Licensed Product held by iBio or Sublicensee in such country or (2) the data contained or incorporated by reference in the Marketing Approval for such Licensed Product held by iBio or a Sublicensee in such country, and that in each case: (i) is sold in the same country (or is commercially available in the same country) as such Licensed Product by any Third Party that is not a Sublicensee and that did not purchase such product in a chain of distribution that included any of iBio or any of Sublicensees; and (ii) either (A) contains an active ingredient that is “highly similar” to such Licensed Product (as the phrase “highly similar” is used in 42 U.S.C. § 262(i)(2), and subject to the factors set forth in FDA’s Guidance for Industry, “Quality Considerations in Demonstrating Biosimilarity of a Therapeutic Protein Collaboration Product to a Reference Collaboration Product,” (April 2015), at Section V, and any successor FDA guidance thereto), or (B) meets the equivalency determination by the applicable Regulatory Authority in any country or jurisdiction outside the United States (including a determination that the product is “comparable,” “interchangeable,” “bioequivalent,” “biosimilar” or other term of similar meaning, with respect to the Licensed Product).

1.8.            “Business Day” means a day other than Saturday or Sunday, or any day on which banks located in New York, NY are authorized or obligated to close. Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified.

1.9.            “Calendar Quarter” means the respective periods of three consecutive calendar months ending on March 31st, June 30th, September 30th and December 31st.

1.10.        “Calendar Year” means each twelve (12) month period commencing on January 1st.

1.11.        “CD25 MEMs” are MEMs that are designed to recapitulate the structure and dynamic motion of particular epitopes on the surface of CD25.

1.12.        “Challenge” shall have the meaning set forth in Section 10.2(e) (Termination for Patent Challenge).

1.13.        “Claim” shall have the meaning set forth in Section 9.1 (By iBio).

1.14.        “Clinical and Regulatory Activities” means any clinical drug or biological development activities occurring after Development, including test method development and stability testing, toxicology, formulation, quality assurance/quality control development, statistical analysis, as needed for Clinical Trials and to obtain Regulatory Approvals, Pricing and Reimbursement Approvals and Regulatory Exclusivity.

1.15.        “Clinical Trial” means any clinical testing (regardless of who sponsors or initiates the clinical testing) of a product in human subjects, including Phase I Clinical Study, Phase II Clinical Study, and Phase III Clinical Study.

1.16.        “Collaboration” means the collaboration conducted by the Parties to further Develop the Licensed Compounds. For clarity, unless earlier terminated, the “Collaboration” ends when the Collaboration Plan is terminated or expires.

1.17.        “Collaboration Plan” shall have the meaning set forth in Section 2.2 (Collaboration Plan) and is attached hereto as Exhibit A.

1.18.        “Collaboration, Option and License Agreement” means the Collaboration, Option and License Agreement between the Parties dated of even date herewith.

1.19.        “Collaboration Subcontractors” shall have the meaning set forth in Section 2.3 (Subcontracting).

1.20.        “Commercialization” or “Commercialize” means those activities directed to marketing, distribution, pricing, promoting or selling of products (including importing and exporting activities in connection therewith).

1.21.        “Commercial License” shall have the meaning set forth in Section 3.1 (Commercial License).

1.22.        “Commercially Reasonable Efforts” means, with respect to iBio, those efforts exercised by iBio that are commensurate with those efforts commonly used in the biopharmaceutical industry by a company of comparable size with comparable resources in connection with the development, manufacturing or commercialization of products that are of similar market or profit potential and strategic value and of a stage in development or product lifecycle comparable to that of the applicable Licensed Product, as determined based on conditions then prevailing, taking into account all relevant factors including safety, efficacy, competitive considerations within the marketplace, projected market size, intellectual property protection and duration, manufacturing costs, resource allocation, pricing, re-importation concerns, regulatory requirements, payments under this Agreement, and other relevant scientific, technical, legal, operational, commercial and regulatory considerations, and in any event consistent with the efforts and resources normally used by iBio or its Affiliates in the exercise of its reasonable business discretion relating to the development of a potential pharmaceutical product or the commercialization of a pharmaceutical product, in each case owned by it or to which it has exclusive rights, with similar commercial and market potential as the Licensed Products, taking into account all relevant factors noted above. Where applicable, Commercially Reasonable Efforts will be determined on a country-by-country and indication-by-indication basis for the applicable Licensed Product, and are anticipated to change over time, reflecting changes in the status of the applicable market or country involved.

1.23.        “Confidential Information” means all confidential information of the Disclosing Party, regardless of its form or medium, as provided to the Receiving Party in connection with this Agreement, including all such information provided under the Mutual Non-Disclosure Agreement entered into by the Parties on March 5, 2021 (“NDA”), whether or not so marked; provided that, Confidential Information shall not include any information that the Receiving Party can show by competent written evidence: (a) was already known to the Receiving Party at the time it was disclosed to the Receiving Party by the Disclosing Party without an obligation of confidentiality and not through a prior disclosure by the Disclosing Party; (b) was or becomes generally known to the public through no act or omission of the Receiving Party in violation of the terms of this Agreement; (c) was lawfully received by the Receiving Party from a Third Party without restriction on its disclosure and without, to the reasonable knowledge of the Receiving Party, a breach by such Third Party of an obligation of confidentiality to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party. The terms of this Agreement that are not publicly disclosed through a press release or by filings to financial regulatory authorities, as permitted herein, shall be the Confidential Information of both Parties.

1.24.        “Control” or “Controlled” means, with respect to any Intellectual Property or Intellectual Property Rights, that a Party has the legal authority or right (whether by ownership, license or otherwise, other than by way of this Agreement) to grant a license, sublicense, access or right to use (as applicable) under such Intellectual Property or Intellectual Property Rights, on the terms and conditions set forth herein, in each case without breaching the terms of any agreement with a Third Party.

1.25.        “Cover”, “Covered” or “Covering” means, (a) with respect to any Patent, that at least one Valid Claim of such Patent would be infringed by the development, manufacture, use, import, offer for sale, or sale of a product, method, or device, as applicable, and (b) with respect to any other Intellectual Property Right, that the development, manufacture, use, import, offer for sale, sale, reproduction, distribution, public performance or display or making derivative works of a product, method, or device would infringe or misappropriate such rights, as applicable, in each case ((a) or (b)) in the absence of the ownership of, or licensed rights granted under, such Patent or other Intellectual Property Right.

1.26.        “Derive” or “Derived” and cognates thereof means to develop, invent, discover, create, synthesize, conceive, reduce to practice, design or otherwise generate (whether directly or indirectly, or in whole or in part).

1.27.        “Develop” or “Development” or “Developing” means research and development activities, including test method development and stability testing, toxicology, formulation, quality assurance/quality control development, statistical analysis, and preclinical studies. For clarity, Development does not include Clinical and Regulatory Activities.

1.28.        “Disclosing Party” shall have the meaning set forth in Section 7.1 (Non-Disclosure Obligation).

1.29.        “Dispute” shall have the meaning set forth in Section 11.1 (General).

1.30.        “Effective Date” shall have the meaning set forth in the preamble in this Agreement.

1.31.        “Executive Officers” means the Chief Executive Officer of RubrYc (or a senior officer designated by the Chief Executive Officer of RubrYc) and the Chief Executive Officer of iBio (or a senior officer designated by the Chief Executive Officer of iBio).

1.32.        “FD&C Act” means the U.S. Federal Food, Drug and Cosmetic Act, as amended.

1.33.        “FDA” means the U.S. Food and Drug Administration or any successor entity.

1.34.        “Field” means all fields, including research, bioprocessing, diagnostic and therapeutic uses.

1.35.        “First Commercial Sale” means, with respect to any Licensed Product, the first arm’s-length sale of such Licensed Product to a Third Party in a country by iBio or its Sublicensee(s) following Marketing Approval. Sales prior to receipt of marketing and pricing approvals, such as so-called “treatment IND sales,” “named patient sales” and “compassionate use sales” and any sales to any government, foreign or domestic, including purchases for immediate sale or stockpiling purposes, are not a First Commercial Sale in that country.

1.36.        “GAAP” means the United States generally accepted accounting principles, consistently applied.

1.37.        “GCP” means all applicable Good Clinical Practice standards for the design, conduct, performance, monitoring, auditing, recording, analyses and reporting of Clinical Trials, including, as applicable (a) as set forth in the International Conference on Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use Harmonized Tripartite Guideline for Good Clinical Practice (CPMP/ICH/135/95) and any other guidelines for good clinical practice for trials on medicinal products in the Territory, (b) the Declaration of Helsinki (2004) as last amended at the 52nd World Medical Association in October 2000 and any further amendments or clarifications thereto, (c) U.S. Code of Federal Regulations Title 21, Parts 50 (Protection of Human Subjects), 56 (Institutional Review Boards) and 312 (Investigational New Drug Application), as may be amended from time to time, and (d) the equivalent Applicable Laws in the country in the Territory, each as may be amended and applicable from time to time and in each case, that provide for, among other things, assurance that the clinical data and reported results are credible and accurate and protect the rights, integrity, and confidentiality of trial subjects.

1.38.        “GLP” means all applicable Good Laboratory Practice standards, including, as applicable, as set forth in the then current good laboratory practice standards promulgated or endorsed by the U.S. Food and Drug Administration as defined in 21 C.F.R. Part 58, or the equivalent Applicable Laws in other jurisdictions in the Territory, each as may be amended and applicable from time to time.

1.39.        “GMP” or “Good Manufacturing Practices” means the then-current Good Manufacturing Practices required by the FDA, as set forth in the FD&C Act and the regulations promulgated thereunder, for the manufacture and testing of pharmaceutical materials, and comparable laws and regulations applicable to the manufacture and testing of pharmaceutical materials promulgated by other Regulatory Authorities, as they may be updated from time to time.

1.40.        “Governmental Authority” means any court, commission, authority, department, ministry, official or other instrumentality of, or being vested with public authority under any law of, any country, region, state or local authority or any political subdivision thereof, or any association of countries.

1.41.        “iBio” shall have the meaning set forth in the preamble of this Agreement.

1.42.        “iBio Indemnitee(s)” shall have the meaning set forth in Section 9.2 (By RubrYc).

1.43.        “iBio-Owned Foreground IP” shall have the meaning set forth in Section 6.1(c) (iBio-Owned Foreground IP).

1.44.        “iBio Stock” means iBio’s Common Stock at a price equal to the 30 day trailing average purchase price or the previous day’s closing price, whichever is higher for publicly traded iBio’s Common Stock. iBio’s Stock shall be subject to an escrow between RubrYc and iBio for 6 months on terms to be negotiated in good faith.

1.45.        “IND” means an investigational new drug application or equivalent application filed with the applicable Regulatory Authority, which application is required to commence Clinical Trials in the applicable country or regulatory jurisdiction.

1.46.        “Indemnifying Party” shall have the meaning set forth in Section 9.3 (Defined Indemnification Terms).

1.47.        “Indemnitee” shall have the meaning set forth in Section 9.3 (Defined Indemnification Terms).

1.48.        “Intellectual Property” means any and all apparatus, biological materials, compounds, compositions, conceptions, data, databases, designs, discoveries, documentation, equipment, formulae, formulations, ideas, information, innovations, inventions, knowledge, know-how, machines, methods, molecules, peptides, plans, practices, processes, procedures, production systems, products, programs, results, show-how, software, specifications, studies, systems, techniques, works of authorship, and other intellectual property or technologies.

1.49.        “Intellectual Property Rights” or “IPR” means any and all legal rights in Intellectual Property, whether protected, created or arising under the laws of the United States or any foreign jurisdiction, including the following: (a) Patents; (b) copyrights, mask work rights, database rights and design rights, whether or not registered, published or unpublished, and registrations and applications for registration thereof, and all rights therein whether provided by international treaties or conventions or otherwise; (c) trade secret rights; (d) moral rights; (e) trademarks, service marks, trade names, service names, corporate names, trade dress, logos, and other identifiers of source, including all goodwill associated therewith and all common law rights, registrations and applications for registration thereof, and all rights therein provided by international treaties or conventions, and all reissues, extensions and renewals of any of the foregoing, and all intellectual property rights arising from or in respect of domain names, domain name registrations and reservations; and (f) other applications and registrations related to any of the rights set forth in the foregoing clauses (a) – (e) above which subsist now or will subsist in the future together with all rights of action, powers and benefits arising from ownership of any such rights.

1.50.        “Inter Partes/Post-Grant Proceeding” means any interference, derivation, opposition, re-issue, reexamination, invalidation proceedings, revocation, nullification, or cancellation proceeding relating to a Patent.

1.51.        “Knowledge” means, with respect to a Party, the actual knowledge of any of the senior management team members of such Party.

1.52.        “Licensed Compound” means each of RubrYc’s current and future CD25 antibody compounds, including without limitation any and all antibodies developed by RubrYc that target any of RubrYc’s current and future CD25 MEMs, such as those described in PCT/US2019/061552 and PCT/US2019/061567, as well as US 63/113,784. For the avoidance of doubt, the CD25 MEMs are not Licensed Compounds.

1.53.        “Licensed Patent” means any Patents Controlled by RubrYc or its Affiliates as of the Effective Date or during the Term (other than as a result of a license from iBio) that Cover any Licensed Compound, including without limitation the patent applications listed in Schedule 1.53 (Licensed Patents) and any continuing applications of the foregoing including divisions, substitutions and continuation-in-part applications (but only with respect to the subject matter relating to the Licensed Compound(s)), any patents issuing on said applications or continuing applications including reissues, re-examinations and extensions, and any corresponding foreign applications or patents. The Parties shall update Schedule 1.53 (Licensed Patents) from time-to-time as new Patents are filed and issued, but failure to do so shall not affect the status of a Patent as included among the Licensed Patents.

1.54.        “Licensed Product” means any pharmaceutical product containing or using a Licensed Compound (or any derivative, fragment, conjugation or other format thereof where such derivative, fragment, conjugation or other format would, but for a license granted hereunder, infringe a Licensed Patent), alone or with other active ingredients, in any form, presentation, formulation or dosage form.

1.55.        “Losses” shall have the meaning set forth in Section 9.1 (By iBio).

1.56.        “Major Market” means each of (a) the United States of America (but not its territories or possessions), (b) the People’s Republic of China, (c) Japan, and (d) at least two of France, Germany, Spain, Italy, and the United Kingdom.

1.57.        “Manufacture” or “Manufacturing” or “Manufactured” means those operations directed to the manufacturing, filling and finishing, quality control testing (including in-process, release and stability testing, if applicable), storage, releasing and packaging.

1.58.        “Marketing Approval” means all approvals, licenses, registrations or authorizations of any Regulatory Authority in a country or region, necessary for the Commercialization of a product in such country or region, including the approval of a BLA, other Regulatory Approvals and any Pricing and Reimbursement Approvals (to the extent such Pricing and Reimbursement Approvals are required in such country or region for the Commercialization of a product).

1.59.        “MEM” means meso-scale engineered molecule, which is an engineered molecule comprised of a designed scaffold that supports the structure and presentation of a pre-determined natural epitope.

1.60.        “MEM-Steered Immunization” means the priming and/or boosting of animal immunization to elicit antibodies, fragments, and derivatives from appropriate host animals using MEMs as immunogens, whether independently formulated for immunization or conjugated to carrier proteins, nanoparticles, or the like, including immunization strategies where MEMs are used in combination with corresponding full-length antigen or corresponding antigen expressed on cells.

1.61.        “Milestone Events” shall have the meaning set forth in Section 5.1 (Milestone Payments).

1.62.        “Milestone Payment” shall have the meaning set forth in Section 5.1 (Milestone Payments).

1.63.        “Net Sales” means the gross price billed or invoiced on sales of the Licensed Product(s) by iBio, its Affiliates, or other Sublicensees (each, a “Selling Entity”) to a Third Party, less (without duplication) usual and customary:

(a)               cash, trade or quantity discounts actually granted and deducted solely on account of sales of such Licensed Product, including early payment discounts;

(b)               rebates and chargebacks or price reductions made to individual or group purchasers of such Licensed Product that are solely on account of or reasonably allocated to the purchase of such Licensed Product;

(c)               allowances or credits actually granted upon claims, returns or rejections of the Licensed Product, including recalls, regardless of the party requesting such recall;

(d)               charges included in the gross sales price for freight, insurance, transportation, postage, handling and any other charges relating to the sale, transportation, delivery or return of the Licensed Product;

(e)               bad debt written off under GAAP or the applicable legitimate accounting standard of the Selling Entity, consistently applied, with reasonable collection efforts and added back to the gross amount invoiced/billed if collected;

(f)                taxes (including, but not limited to sales, value added, consumption and similar taxes; but excluding income taxes and cross-border withholding taxes) actually incurred, paid or collected and remitted to the relevant tax authority for the sale of such Licensed Product; provided that any amount of such taxes refunded, recovered or credited back by the relevant tax authority shall be included in Net Sales; and

(g)               any other similar amounts normally deducted from the gross invoice price in the reporting of revenues in order to arrive at the calculation of Net Sales in line with GAAP or the applicable Selling Entity’s legitimate accounting standards, consistently applied, across the relevant reporting period.

Each of the amounts set forth above shall be determined from the books and records of the Selling Entities, maintained in accordance with GAAP or applicable legitimate accounting standard, consistently applied, and any amounts that are deducted from Net Sales pursuant to one subsection may not be deducted pursuant to another subsection (i.e., a deduction may only be taken once).

The transfer of a Licensed Product to a Sublicensee or other Third Party (i) in connection with the Development or testing of a Licensed Product (including the conduct of Clinical Trials), (ii) for purposes of distribution as promotional samples as customary to business in the applicable country, (iii) for indigent or similar public support or compassionate use programs, or (iv) by and between iBio and its Sublicensees that is not for end use purposes, shall not, in any case, be considered a Net Sale of a Licensed Product under this Agreement. If a Selling Entity sells a Licensed Product for consideration other than monetary consideration in an arm’s-length transaction, Net Sales shall be calculated as if such Licensed Product was sold in an arm’s-length transaction for monetary consideration in the country of such sale based on amounts earned in such country from sales for monetary consideration at arm’s length.

For the purposes of determining Net Sales, a sale shall be deemed to have occurred when an invoice is generated for such Licensed Product.

1.64.        “Party” or “Parties” shall have the meaning set forth in the preamble to this Agreement.

1.65.        “Patent(s)” means (a) all national, regional and international patents and patent applications, including any provisional patent application, (b) any patent application claiming priority from such patent application or provisional patent applications, including divisions, continuations, continuations-in-part, (c) any patent that has issued or in the future issues from any of the foregoing patent applications, including any utility or design patent or certificate of invention, and (d) re-issues, renewals, extensions, substitutions, re-examinations or restorations, registrations and revalidations, and supplementary protection certificates and equivalents to any of the foregoing.

1.66.        “Person” means any individual, sole proprietorship, corporation, joint venture, limited liability company, partnership, limited partnership, limited liability partnership, trust or any other private, public or governmental entity.

1.67.        “Phase I Clinical Study” means any Clinical Trial(s) the principal purpose of which is a preliminary determination of safety in healthy individuals or patients, that would satisfy the requirement of 21 C.F.R. § 312.21(a), or its foreign equivalent, as may be amended from time to time, or any analogous Clinical Trial described or defined in Applicable Laws.

1.68.        “Phase II Clinical Study” means any Clinical Trial(s) of a pharmaceutical or biologic product in patients with the primary objective of characterizing its activity in a specific disease state as well as generating more detailed safety, tolerability, and pharmacokinetics information, that would satisfy the requirement of 21 C.F.R. § 312.21(b), or its foreign equivalent, as may be amended from time to time, or any analogous Clinical Trial described or defined in Applicable Laws.

1.69.        “Phase III Clinical Study” means any Clinical Trial(s) designed to (a) establish that a pharmaceutical or biologic product is safe and efficacious for its intended use; (b) define warnings, precautions and adverse reactions that are associated with such pharmaceutical or biologic product in the dosage range to be prescribed; and (c) be a pivotal study for submission of an application to obtain Regulatory Approval for such product in any country or regulatory jurisdiction; each as defined in 21 C.F.R. § 312.21(c), or its foreign equivalent, as may be amended from time to time, or any analogous Clinical Trial described or defined in Applicable Laws.

1.70.        “Pricing and Reimbursement Approval” means such governmental approval, agreement, determination or decision establishing prices for a product that can be charged or reimbursed in regulatory jurisdictions where the applicable Governmental Authorities approve or determine the price of or reimbursement for pharmaceutical products.

1.71.        “Product Infringement” means any infringement or threatened infringement by a Third Party of any Licensed Patent, which infringing activity involves the using, making, importing, offering for sale or selling of a Licensed Product.

1.72.        “Prosecution and Maintenance” means the responsibility and authority for (a) preparing, filing and prosecuting applications (of all types) for any Patent, (b) deciding to abandon Patent(s), (c) listing in regulatory publications (as applicable), and (d) patent term extension.

1.73.        “Receiving Party” shall have the meaning set forth in Section 7.1 (Non-Disclosure Obligation).

1.74.        “Regulatory Approvals” means all approvals necessary for the Manufacture and Commercialization of a product for one or more indications in a country or regulatory jurisdiction, which may include satisfaction of all applicable regulatory and notification requirements. Regulatory Approvals include approvals by Regulatory Authorities of INDs and BLAs, but excludes Pricing and Reimbursement Approvals.

1.75.        “Regulatory Authority” means any applicable Governmental Authority responsible for granting Regulatory Approvals for products, including the FDA, the National Medical Products Administration of the People’s Republic of China (the “NMPA”), the European Medicines Agency (the “EMA”), and any corresponding national or regional regulatory authorities.

1.76.        “Regulatory Exclusivity” means any exclusive marketing rights or data exclusivity rights conferred by any Regulatory Authority with respect to a product other than Patents, including conferred in the U.S. under the FDA Modernization Act of 1997 (including pediatric exclusivity), orphan drug exclusivity, or rights similar thereto outside the U.S.

1.77.        “Report” shall have the meaning set forth in Section 4.2 (Reports).

1.78.        “Royalty Payment” shall have the meaning set forth in Section 5.2(a) (Royalty Payment).

1.79.        “Royalty Report” shall have the meaning set forth in Section 5.2(d) (Royalty Reports and Royalty Payments).

1.80.        “Royalty Term” shall have the meaning set forth in Section 5.2(b) (Royalty Term).

1.81.        “RubrYc” shall have the meaning set forth in the preamble of this Agreement.

1.82.        “RubrYc Discovery Engine” means RubrYc’s antibody discovery platform that includes RubrYc’s machine-learning Intellectual Property, scFv/scFv-Fc/Fab/antibody libraries, MEM-Steered Immunization, and MEMs by which antibodies are selected and/or raised, and any of RubrYc’s associated in vitro and in vivo selection methods that depend on MEMs, as updated from time to time.

1.83.        “RubrYc-Owned Foreground IP” shall have the meaning set forth in Section 6.1(b) (RubrYc-Owned Foreground IP).

1.84.        “RubrYc Indemnitee(s)” shall have the meaning set forth in Section 9.1 (By iBio).

1.85.        “RubrYc Series A2 Financing” means RubrYc’s sale of Series A-2 Preferred Stock pursuant to the Series A-2 Preferred Stock Purchase Agreement dated August 23, 2021.

1.86.        “Sale” or “sold” (whether or not capitalized) means the transfer, disposition, or first market sale of a product for value, whether in the form of cash payments, royalties, fees, stock, or any other form of compensation.

1.87.        “Selling Entity” shall mean an entity that generates Net Sales as defined in Section 1.63 (Net Sales).

1.88.        “Sublicensee” means a Third Party or Affiliate of iBio which is granted a sublicense by iBio under the Commercial License or which otherwise has been granted by iBio a right to research, develop, make, have made, manufacture, use, distribute, sell, offer for sale, import, and export any Licensed Product. For clarity, a Third Party or Affiliates of iBio who was granted a sublicense by a Sublicensee shall also be deemed a Sublicensee.

1.89.        “Term” shall have the meaning set forth in Section 10.1 (Term).

1.90.        “Territory” means worldwide.

1.91.        “Third Party” means an entity other than (a) iBio and its Affiliates or (b) RubrYc and its Affiliates.

1.92.        “U.S. Dollars”, “Dollars” or “$” means United States dollars, the lawful currency of the United States.

1.93.        “Valid Claim” means (a) a claim of an issued and unexpired Patent that has not been permanently revoked or held unenforceable or invalid by a decision of a Governmental Authority of competent jurisdiction, which decision is not appealable or is not appealed within the time allowed for appeal, and has not been abandoned, disclaimed or admitted to be invalid or unenforceable through reissue, disclaimer or otherwise or (b) a claim of a pending patent application that (i) has not been pending for more than ten (10) years from its earliest priority date, and (ii) (A) has not been cancelled, withdrawn or abandoned or (B) finally rejected by an administrative agency action from which no appeal can be taken or that has not been appealed within the time allowed for appeal.

Article 2
COLLABORATION

2.1.            Overview. Subject to the terms and conditions of this Agreement, as between the Parties, iBio shall be solely responsible for the Development of the Licensed Compound for use in Licensed Products as well as the Licensed Products themselves, in the Field in the Territory, and shall bear all costs and expenses in connection therewith after the Effective Date.

2.2.            Collaboration Plan. The Parties will carry out the Collaboration pursuant to a written collaboration plan, which sets forth the specific development activities, required resources, and target timelines for the Collaboration (the “Collaboration Plan”); except as may be set forth in the Collaboration Plan, iBio will perform all activities required by the Collaboration Plan. The initial Collaboration Plan, as agreed between the Parties, is attached hereto as Exhibit A (Collaboration Plan). The Parties may agree in writing on updates or amendments to the Collaboration Plan. The Collaboration Plan shall continue for the term set forth therein or terminate upon mutual agreement of the Parties. In the event of a conflict between the main body of this Agreement and the Collaboration Plan, the terms of the main body of this Agreement shall control.

2.3.            Subcontracting. During the Collaboration, each Party may, at its discretion, contract with preferred Affiliates, vendors and suppliers to conduct activities in relation to the Development activities (the “Collaboration Subcontractors”). Each Party will only contract with Collaboration Subcontractors who are subject to written agreements that contain terms and conditions that are consistent with this Agreement. The Party engaging any Collaboration Subcontractor will be responsible for any activities delegated to any Collaboration Subcontractor and shall be the sole point of contact under this Agreement. All activities conducted by any Collaboration Subcontractor shall be in compliance with this Agreement including the Collaboration Plan.

2.4.            Costs of Collaboration Activities. iBio will cover all costs and expenses for all activities carried out by it and its Collaboration Subcontractors (if any) in furtherance of the Collaboration, and RubrYc will perform its activities at the rates set forth in the Collaboration Plan.

2.5.            Records. Each Party shall maintain appropriate records in either tangible or electronic form of all Development activities conducted in the performance of the Collaboration Plan, and related results and other material information generated therefrom, in each case in accordance with its usual documentation and record retention practices. Such records shall be in sufficient detail to properly reflect, in a good scientific manner, all significant work done, and the results of studies and trials undertaken and, further, shall be at a level of detail appropriate for patent and regulatory purposes. Upon a Party’s reasonable request, the other Party shall, and shall cause its Collaboration Subcontractors to, provide to the requesting Party copies of such records (including access to relevant portions of databases, if any) to the extent necessary or helpful for the coordination of the Collaboration activities or for regulatory and patent purposes. All such records, reports, information and data provided shall be subject to the confidentiality provisions of ARTICLE 7 (Confidentiality; Publication).

2.6.            Collaboration Licenses

(a)               To iBio. Solely for the purposes of the Collaboration pursuant to the Collaboration Plan, and subject to the terms and conditions in this Agreement, RubrYc hereby grants to iBio a nonexclusive, non-transferable (except to the extent this Agreement is assigned pursuant to Section 12.2 (Assignment)), non-sublicensable (except to Collaboration Subcontractors subject to the terms of Section 2.3 (Subcontracting)), fully paid-up license to use such of RubrYc’s Controlled Background IP, as well as RubrYc-Owned Foreground IP, and any RubrYc Additional Developments solely to perform iBio’s Development activities set forth in the Collaboration Plan, except that the foregoing license grant does not include a license to the RubrYc Discovery Engine.

(b)               To RubrYc. Solely for the purposes of the Collaboration pursuant to the Collaboration Plan, and subject to the terms and conditions in this Agreement, iBio hereby grants to RubrYc a nonexclusive, non-transferable (except to the extent this Agreement is assigned pursuant to Section 12.2 (Assignment)), non-sublicensable (except to Collaboration Subcontractors subject to the terms of Section 2.3 (Subcontracting)), fully paid-up license to use iBio’s Controlled Background IP identified in the Collaboration Plan, as well as iBio-Owned Foreground IP and any iBio Additional Developments solely to perform RubrYc’s Development activities set forth in the Collaboration Plan.

(c)               Technical Assistance. In connection with the license grants set forth in this Section 2.6 (Collaboration Licenses), at the other Party’s reasonable request, each Party shall cooperate with the other Party to provide such reasonable technical assistance as may be necessary to enable the other Party to practice the Intellectual Property Rights licensed under this Section 2.6 (Collaboration Licenses) and to carry out the applicable Development activities using such Intellectual Property Rights.

Article 3
COMMERCIAL LICENSE

3.1.            Commercial License. Contingent on receipt of funding under the RubrYc Series A2 Financing, and subject to the terms and conditions of this Agreement, during the Term, RubrYc hereby grants to iBio (effective upon the occurrence of the foregoing condition precedent) an exclusive, sublicensable (through multiple tiers but subject to the terms of Section 3.2 (Assignment and Sublicense Rights)), royalty-bearing license, under the Licensed Patents, to research, develop, make, have made, manufacture, use, distribute, sell, offer for sale, import, and export the Licensed Compounds in, or for use in, Licensed Products for all uses in the Field and Territory (the “Commercial License”). The Commercial License includes at no additional cost the right to use any Intellectual Property Controlled by RubrYc that is necessary to enable iBio and its Sublicensee(s) to exercise the rights set forth in this Section.

3.2.            Assignment and Sublicense Rights. The Commercial License is only assignable and transferable in the event of an assignment and transfer of this Agreement pursuant to Section 12.2 (Assignment). The Commercial License includes the right for iBio to issue written sublicenses (through multiple tiers) to Sublicensees. iBio shall promptly inform RubrYc of the existence of any such Sublicensee and shall promptly deliver to RubrYc copies of each sublicensing agreement with such Sublicensee, provided that iBio may redact any financial information and any sensitive or proprietary information that is not necessary to ascertain compliance with this Agreement. Granting a sublicense does not relieve iBio of any of its obligations under this Agreement, and iBio hereby agrees not to grant a sublicense to any Sublicensee unless iBio binds such Sublicensee in writing to terms no less protective of RubrYc than those set forth herein. iBio shall deliver all payments and reports due RubrYc in connection with the sublicense granted to any Sublicensee.

3.3.            Reservation of Rights. All rights not specifically granted by a Party herein are reserved to such Party, which may at all times fully and freely exercise the same.

3.4.            Funding. For clarity, all terms in this Agreement relating to the Commercial License and Licensed Patents shall only apply contingent on receipt of funding under the RubrYc Series A2 Financing, whether or not stated.

Article 4
DEVELOPMENT, CLINICAL AND REGULATORY, MANUFACTURE AND COMMERCIALIZATION

4.1.            iBio Diligence Obligations. iBio shall use Commercially Reasonable Efforts to (i) Develop the Licensed Compounds for use in Licensed Products, (ii) Develop the Licensed Products, (iii) perform Clinical and Regulatory Activities for the Licensed Products, and (iv) Manufacture and Commercialize the Licensed Products, in each case of (i)-(iv) in the Field and Territory. Except as set forth in Article 2 (Collaboration), iBio shall be solely responsible for and have sole control and discretion over such activities at its sole expense. Without limiting the foregoing, or any other rights RubrYc may have, or obligations iBio may have under this Agreement, in the event the following milestones are missed, RubrYc has the right to receive a $[***] payment from iBio on the date the milestone is missed, and each anniversary of such date until the milestone is achieved, provided that the milestone was missed due to iBio’s failure to exercise Commercially Reasonable Efforts.

For the avoidance of doubt, the foregoing development milestones relate to the first Licensed Product in the first country in the Territory (not every Licensed Product or each country in the Territory).

4.2.            Reports. Within thirty (30) days after the end of each Calendar Quarter and upon the achievement of each of the foregoing milestones in Section 4.1 (iBio Diligence Obligations), iBio will provide RubrYc with a report (each, a “Report”) setting forth the main activities and progress for the Licensed Product(s). In addition, iBio will make available to RubrYc such additional information about its activities for the Licensed Product(s) as may be reasonably requested by RubrYc from time to time. All Reports and further information outside of the Reports provided by iBio pursuant to this Section 4.2 (Reports) that iBio considers to be its Confidential Information may be identified as such and will be treated subject to the confidentiality provisions of ARTICLE 7 (Confidentiality; Publication). The obligations set forth in this Section shall cease upon the occurrence of the First Commercial Sale.

4.3.            Regulatory Assistance. Upon iBio’s reasonable request, RubrYc will cooperate with and assist, and will cause its Affiliates or its or their employees to cooperate with and assist, iBio with respect to the preparation of filings or submissions to seek or maintain Intellectual Property Rights and to conduct Clinical and Regulatory Activities relating to Licensed Products in the Field in the Territory, including providing any data, results or information in possession of RubrYc or its Affiliates that may be reasonably necessary to be included in such activities, filings or submission, all at iBio’s expense.

4.4.            Regulatory Responsibilities. iBio shall be solely responsible to obtain and maintain any Regulatory Approvals, Pricing and Reimbursement Approval, and Marketing Approval that may be necessary for its activities in relation to the Licensed Products in the Field in the Territory. Without limiting the terms of Section 4.1 (iBio Diligence Obligations), iBio will be obligated to, at its sole expense, itself or through Sublicensees, use Commercially Reasonable Efforts to complete such further Development, conduct Clinical and Regulatory Activities, and obtain Marketing Approval, for at least one (1) Licensed Product in the Field in each of the Major Markets.

4.5.            Manufacture. iBio shall be solely responsible for the Manufacturing of the Licensed Products in the Field in the Territory, or arranging for the Manufacturing of the Licensed Products in the Field in the Territory, at its sole expense. iBio may conduct such Manufacturing activities itself or through a Sublicensee.

4.6.            Commercialization Responsibilities. iBio shall be solely responsible for the Commercialization of Licensed Products in the Field in the Territory, at its sole expense. iBio may conduct such Commercialization activities itself or through a Sublicensee.

4.7.            Commercialization Diligence. iBio shall use Commercially Reasonable Efforts to Commercialize at least one (1) Licensed Product in the Field in each Major Market where such Licensed Product has obtained all necessary Marketing Approvals.

Article 5
PAYMENTS

5.1.            Milestones Payments. In partial consideration of the rights granted herein, when each Licensed Product first achieves in any country in the Territory the milestone events set forth below (each such event, a “Milestone Event”), iBio shall pay to RubrYc the following irrevocable, non-refundable, non-creditable milestone payments (each such payment, a “Milestone Payment”) within sixty (60) days of the achievement of the corresponding Milestone Event.

Milestone Payments shall be payable (by iBio) regardless of whether the applicable Milestone Event was achieved by iBio or by another Selling Entity (or by a successor or assign of any of them) (provided that, for clarity, the foregoing reference to “successor or assign” does not limit the application to a Party’s successors or assigns of any other provision of this Agreement where “successor or assign” is not expressly stated). For the avoidance of doubt, (i) each Milestone Payment shall be payable on the first occurrence of the corresponding Milestone Event, and (ii) none of the Milestone Payments shall be payable more than once. For the avoidance of doubt, there are four (4) Milestone Payments in this Section, and the maximum amount to be paid by iBio pursuant to this Section is $15,000,000.

5.2.            Royalties.

(a)               Royalty Payment. During the Royalty Term, on a Calendar Quarterly basis, iBio shall pay to RubrYc royalties at the royalty rate of [***]% as calculated by multiplying the royalty rate of [***]% by the corresponding amount of Net Sales of a Licensed Product in the Territory in the Calendar Quarter (a “Royalty Payment”).

(b)               Royalty Term. The Royalty Payments payable under this Section 5.2 (Royalties) shall be payable on a country-by-country and Licensed Product-by-Licensed Product basis from the First Commercial Sale of a Licensed Product in a country until, with respect to such Licensed Product in such country, the later of:

(i)                 the expiration of the last-to-expire Valid Claim of a Licensed Patent in such country that Covers a Licensed Compound in such Licensed Product in such country;

(ii)              the expiry of the Regulatory Exclusivity for such Licensed Product in such country; or

(iii)            the close of business of the day that is exactly ten (10) years after the date of the First Commercial Sale of such Licensed Product in such country, provided that no Biosimilar Product has been approved in such country; (the “Royalty Term”).

(c)               Royalty Adjustment for Third Party License Payments. If iBio or its Sublicensee, in its reasonable judgment, is required to obtain from a Third Party a license under any Patent to make, have made, use, offer for sale, sell or import any Licensed Product in the Field in any country in the Territory with respect to the use of the Licensed Compound in such Licensed Product, then the amount of royalties payable under Section 5.2(a) (Royalty Payment) shall be reduced by up to fifty percent (50%) of the amount of such payments to such Third Party on account of the sale of the Licensed Products in such country, but in no event shall the amount of royalties otherwise payable under Section 5.2(a) (Royalty Payment) be reduced as a result thereof by more than fifty percent (50%). For the avoidance of doubt, this royalty reduction shall also be available for any other active ingredient or other component if the licensed Third Party technology is (in the reasonable judgment of iBio or its Sublicensee) necessary to render the Collaboration Product medically and commercially viable, unless a non-infringing alternative of the other active ingredient or component is available. iBio may not carry forward to subsequent Calendar Quarters any deductions that it was not able to deduct as a result of the foregoing proviso.

(d)               Royalty Reports and Royalty Payments. Within thirty (30) days after the end of each Calendar Quarter, commencing with the Calendar Quarter during which the First Commercial Sale of the first Licensed Product is made anywhere in the Territory, iBio shall provide RubrYc with a report that contains the following information for the applicable Calendar Quarter, on a Licensed Product-by-Licensed Product and country-by-country basis (each such report, a “Royalty Report”): (i) the amount of Net Sales of each Licensed Product sold during such Calendar Quarter reporting period by all Selling Entities including supporting calculations showing the gross invoices/billings and permitted deductions; (ii) a calculation of the Royalty Payment due on such Net Sales; and (iii) the exchange rate used for converting any Net Sales and any supporting calculations recorded in a currency other than U.S. Dollars. Promptly following the delivery of the applicable quarterly Royalty Report, RubrYc shall invoice iBio for the royalties due to RubrYc with respect to Net Sales for such Calendar Quarter, and iBio shall pay such amounts to RubrYc in Dollars within thirty (30) days following iBio’s receipt of such invoice. If no royalty is due for any Calendar Quarter following commencement of the reporting obligation, iBio shall so report.

5.3.            Payment.

(a)               Mode of Payment. All payments to be made under this Agreement shall be made in U.S. Dollars and shall be paid by electronic transfer in immediately available funds to such bank account in the United States as is designated in writing by RubrYc. All payments shall be free and clear of any transfer fees or charges. Notwithstanding the foregoing, the Parties agree that iBio shall be deemed to have a one-time credit of $[***] that it may use to offset the first $[***] of Milestone Payments or any other payments due hereunder or under the Collaboration, Option and License Agreement until such credit is depleted. Moreover, notwithstanding the foregoing, the Parties agree that iBio may in its sole discretion make certain Milestone Payments in iBio Stock rather than cash, as specified in Section 5.1 (Milestone Payments).

(b)               Currency Exchange Rate. The rate of exchange to be used in computing the amount of currency equivalent in U.S. Dollars for calculating Net Sales in a Calendar Quarter (for purposes of the royalty calculation) shall be made at the average of the closing exchange rate as published by The Wall Street Journal (U.S. Eastern Edition) for the first, middle, and last Business Days in New York, NY of such Calendar Quarter, or such other source as the Parties may agree in writing.

(c)               Payment Timeline. Except as otherwise provided in this Agreement, all payments to be made by one Party to the other Party under this Agreement shall be due within thirty (30) days following such Party’s receipt of an invoice from the other Party.

5.4.            Records and Audits.

(a)               iBio shall keep, and shall require its Sublicensees to keep (all in accordance with GAAP or the applicable legitimate accounting standard, consistently applied), for a period not less than five (5) years complete and accurate records in sufficient detail to properly reflect Net Sales and to enable any Milestone Payment payable hereunder to be determined.

(b)               Upon the written request of RubrYc, iBio shall permit, and shall cause its Sublicensees to permit, an independent certified public accounting firm of nationally recognized standing selected by RubrYc and reasonably acceptable to iBio, at RubrYc’s expense, to have access during normal business hours to such records of iBio and its Sublicensees as may be reasonably necessary to verify the accuracy of the payments hereunder for any Calendar Year ending not more than three (3) years prior to the date of such request. These rights with respect to any Calendar Year shall terminate three (3) years after the end of any such Calendar Year, and the exercise of this audit right shall be limited to once each Calendar Year (provided that the foregoing frequency limit shall not apply if RubrYc provides iBio a reasonable basis to believe that a Royalty Report issued within the prior three (3) years is materially inaccurate). RubrYc shall provide iBio with a copy of the accounting firm’s written report within thirty (30) days of completion of such report. If such accounting firm correctly concludes that an underpayment was made, then iBio shall pay the amount due, including interest thereon at the rate set forth in Section 5.5 (Interest), within thirty (30) days of the date RubrYc delivers to iBio such accounting firm’s written report so correctly concluding. If such accounting firm correctly concludes that an overpayment was made, then such overpayment shall be credited against any future payment due to RubrYc hereunder (if there is no future payment due, then RubrYc shall promptly refund such overpayment to iBio). RubrYc shall bear the full cost of such audit unless such audit correctly discloses that iBio underpaid for the audited period by more than five percent (5%) of the amount properly due for that audited period, in which case iBio shall pay the reasonable fees and expenses charged by the accounting firm.

(c)               RubrYc shall treat all financial information, subject to review under this Section 5.4 (Records and Audits) as iBio’s Confidential Information in accordance with the confidentiality provisions of ARTICLE 7 (Confidentiality; Publication), and, prior to commencing such audit, shall cause its accounting firm to enter into a confidentiality agreement (reasonably acceptable to iBio) with iBio obligating it to treat all such financial information in confidence pursuant to such confidentiality provisions. Such accounting firm shall not disclose iBio’s Confidential Information to RubrYc, except to the extent such disclosure is necessary to verify the accuracy of the financial reports furnished by iBio or the amount of payments to or by iBio under this Agreement.

5.5.            Interest. If any payment due is not paid by the due date, RubrYc may charge interest on any outstanding amount of such payment, accruing as of the original due date, at an annual rate equal to the rate of prime (as reported in The Wall Street Journal, U.S. Eastern Edition) plus two percentage points or the maximum rate allowable by Applicable Law, whichever is less. The payment of such interest shall not foreclose a Party from exercising any other rights it may have because any payment is overdue.

5.6.            Taxes.

(a)               Each Party will be responsible for all taxes, fees, duties, levies or similar amounts imposed on its own income, assets, capital, employment, personnel, and right or license to do business; provided, however, that if Applicable Laws require iBio to withhold any taxes from payments made to RubrYc under this Agreement, then such taxes shall be paid by iBio to the proper tax authorities and such amounts shall be deducted by iBio from the amounts due hereunder.

(b)               The Parties shall cooperate with one another and use reasonable and legal efforts to reduce, or obtain a credit, refund, or recovery for, any and all income or other taxes required by Applicable Laws to be withheld or deducted from any Royalty Payments, Milestone Payments or other payments made by iBio to RubrYc under this Agreement, including by completing all reasonable procedural steps, and taking all reasonable measures, to ensure that any withholding tax is reduced, eliminated, credited, or recovered to the extent permitted under Applicable Laws, including income tax treaty provisions and related procedures for claiming treaty relief.

Article 6
INTELLECTUAL PROPERTY

6.1.            Inventions; Ownership.

(a)               Background IP. As between the Parties, and subject to the rights, licenses and assignments expressly set forth under this Agreement, each Party shall own or continue to own all right, title and interest in and to any and all Intellectual Property and Intellectual Property Rights that were Controlled by such Party prior to the Effective Date, or that are generated by or for (by a Third Party or such Party’s Affiliates) such Party, or to which such Party obtains rights, outside performance of the Collaboration and without use of the other Party’s Controlled Intellectual Property or Intellectual Property Rights (each Party’s “Background IP”). Without limiting the foregoing, the RubrYc Discovery Engine is RubrYc’s Background IP.

(b)               RubrYc-Owned Foreground IP. As between the Parties, excluding iBio’s Background IP and the iBio-Owned Foreground IP, RubrYc shall own all right, title and interest in and to any of the following, including all Intellectual Property Rights therein, Derived by or on behalf of either Party or its Collaboration Subcontractors during performance of the Collaboration (collectively, “RubrYc-Owned Foreground IP”): (i) the RubrYc Discovery Engine (including any optimizations or other modifications or improvements thereto); and (ii) the Licensed Compounds (including any optimizations or other modifications or improvements thereto). iBio will and hereby does assign to RubrYc all of its right, title and interest in and to such RubrYc-Owned Foreground IP to effectuate the ownership terms herein, and will take (and will cause its Collaboration Subcontractors to take) such further actions reasonably requested by RubrYc to evidence such assignments.

(c)               iBio-Owned Foreground IP. As between the Parties, excluding RubrYc’s Background IP and the RubrYc-Owned Foreground IP, iBio shall own all right, title and interest in and to any of the following, including all Intellectual Property Rights therein, Derived by or on behalf of either Party or its Collaboration Subcontractors during performance of a Collaboration (collectively, “iBio-Owned Foreground IP”): iBio’s existing documented technologies (including any modifications or improvements thereto). RubrYc will and hereby does assign to iBio all of its right, title and interest in and to such iBio-Owned Foreground IP to effectuate the ownership terms herein, and will take (and will cause its Collaboration Subcontractors to take) such further actions reasonably requested by iBio to evidence such assignments.

(d)               Additional Developments. Subject to the Background IP, iBio-Owned Foreground IP, and RubrYc-Owned Foreground IP, the ownership of any other Intellectual Property, including all Intellectual Property Rights therein, Derived by or on behalf of either Party or its Collaboration Subcontractors during performance of the Collaboration (each Party’s “Additional Developments”), shall follow inventorship or authorship. In the event Additional Developments are jointly invented or authored by personnel of both Parties (including their respective Collaboration Subcontractors), such Additional Developments shall be owned by iBio. RubrYc will and hereby does assign to iBio all of its right, title and interest in and to any jointly invented or authored Additional Developments to effectuate the ownership terms herein, and will take (and will cause its Collaboration Subcontractors to take) such further actions reasonably requested by iBio to evidence such assignments.

(e)               Disclosure. During the Collaboration, iBio shall promptly disclose to RubrYc all RubrYc-Owned Foreground IP and any of iBio’s Additional Developments useful for the Collaboration, in each case Derived by or on behalf of iBio during the performance of the Collaboration, including all invention disclosures or other similar documents submitted to iBio by its Collaboration Subcontractors’ employees, agents, or independent contractors relating thereto, and shall also promptly respond to reasonable requests from RubrYc for additional information relating thereto. RubrYc shall promptly disclose to iBio all iBio-Owned Foreground IP and any of RubrYc’s Additional Developments useful for the Collaboration, in each case Derived by or on behalf of RubrYc during the performance of the Collaboration, including all invention disclosures or other similar documents submitted to RubrYc by its Collaboration Subcontractors’ employees, agents, or independent contractors relating thereto, and shall also promptly respond to reasonable requests from iBio for additional information relating thereto.

6.2.            Prosecution and Maintenance.

(a)               Generally. Each Party shall have the right of Prosecution and Maintenance with respect to its Background IP and its respective owned RubrYc-Owned Foreground IP, iBio-Owned Foreground IP and Additional Developments, through counsel of its choosing and at its expense, subject to Section 6.2(b) (Right to Consult) and the following sentence. Contingent on receipt of funding under the RubrYc Series A2 Financing, until termination of this Agreement with respect to a Licensed Compound, iBio shall have the right (effective upon the occurrence of the foregoing condition precedent) of, and shall use Commercially Reasonable Efforts to perform, Prosecution and Maintenance with respect to the Licensed Patents Covering the Licensed Compound(s), including prosecution of genus claims directed to antibodies that bind to CD25 MEMs, through counsel of its choosing and at its expense, subject to Section 6.2(b) (Right to Consult).

(b)               Right to Consult. With respect to Prosecution and Maintenance of the Patents Covering any Licensed Compound or any Additional Developments, the filing Party shall consult with the other Party and keep the other Party reasonably informed of such Prosecution and Maintenance and shall provide the other Party with all material correspondence received from any patent authority in connection therewith. In addition, the filing Party shall provide the other Party with drafts of all proposed material filings and correspondence to any patent authority in the Territory in connection with such Prosecution and Maintenance for the other Party’s review and comment prior to the submission of such proposed filings and correspondence. The filing Party shall provide drafts to the other Party not less than thirty (30) days prior to filing in the case of new Patents and not less than fourteen (14) days prior to filing in the case of amendments and responses to office actions. The filing Party shall consider in good faith the other Party’s comments but shall have final decision-making authority over the Prosecution and Maintenance of the rights it owns. The Parties will cooperate with each other in good faith to facilitate the Prosecution and Maintenance of the Patents Covering any Licensed Compound or any Additional Developments, including executing any relevant instruments and making its employees, agents and consultants reasonably available to the other Party (or to the other Party’s authorized attorneys, agents or representatives), to the extent reasonably necessary to enable the appropriate Party hereunder to undertake its Prosecution or Maintenance responsibilities.

(c)               Limits. Neither Party shall, without the express prior written consent of the other Party, claim the other Party’s Intellectual Property or Intellectual Property Rights or disclose the other Party’s Confidential Information in any patent applications, amendments, office actions and responses thereto, issued patents, related correspondence, and other related documents with respect thereto.

6.3.            Patent Enforcement.

(a)               Notice. Each Party shall notify the other within five (5) Business Days of becoming aware (including if its Affiliates become aware) of any Product Infringement or Inter Partes/Port-grant Proceeding relating to a Licensed Patent. Following such notification, the Parties will confer. In the event a Third Party asserts that the Licensed Compound(s), Licensed Products or other activities of the Parties in connection with the Collaboration infringe such Third Party’s rights, the Parties shall work together in good faith to develop an approach to address the Third Party’s assertion subject to subsection (b) below. In the event a Third Party commences an Inter Partes/Post-grant Proceeding relating to a Licensed Patent, the Parties shall work together in good faith to develop an approach to address such Inter Partes/Post-grant Proceeding subject to subsection (c) below.

(b)               Enforcement Rights. As between the Parties, iBio shall have the first right, but not the obligation, to bring and control any legal action against any Person engaged in a Product Infringement, at its own expense and by counsel of its own choice. If iBio fails to bring an action or proceeding against the Product Infringement within three (3) months following receipt or delivery (as applicable) of the notice of or becoming aware of alleged Product Infringement, then RubrYc shall have the second option to, but shall be under no obligation to, take such legal action as RubrYc deems necessary at its own expense and by counsel of its own choice and, if RubrYc does so, RubrYc will provide a meaningful, good faith opportunity to iBio to participate in any such action. Subject to the foregoing, each Party shall have the first right to bring and control any legal action to enforce the Patents it Controls (except if licensed from the other Party) at its own expense and by counsel of its own choice as it reasonably determines appropriate, and such Party shall consider in good faith the interests of the other Party in such enforcement. The Party bringing legal action shall not enter into any settlement admitting the invalidity of, or otherwise impairing, any Licensed Patents impacting Licensed Compounds or Licensed Products without the prior written consent of the other Party. Neither Party shall enter into any settlement that would have the effect of admitting liability of the other Party without the prior written consent of the other Party.

(c)               Inter Partes/Post-grant Proceedings. Each Party shall have the right to conduct Inter Partes/Post-grant Proceedings with respect to its Background IP and its respective owned RubrYc-Owned Foreground IP, iBio-Owned Foreground IP and Additional Developments, through counsel of its choosing and at its expense, subject to the following. As between the Parties, iBio shall have the first right, but not the obligation, to bring or defend any Inter Partes/Post-grant Proceeding relating to a Licensed Patent, at its own expense and by counsel of its own choice. If iBio fails to bring or defend any such Inter Partes/Post-grant Proceeding within three (3) months following notice of the possibility or requirement to do so (or within half the statutory period of time to do so), then RubrYc shall have the second option to, but shall be under no obligation to, bring or defend the Inter Partes/Post-grant Proceeding at its own expense and by counsel of its own choice and, if RubrYc does so, RubrYc will provide a meaningful, good faith opportunity to iBio to participate in any such action. The Party bringing or defending any Inter Partes/Post-grant Proceeding relating to a Licensed Patent shall not enter into any settlement admitting the invalidity of, or otherwise impairing, any Licensed Patents impacting Licensed Compounds or Licensed Products without the prior written consent of the other Party.

(d)               Cooperation. Each Party shall provide reasonable assistance in connection with any legal action contemplated by this Section, including by executing reasonably appropriate documents, cooperating in discovery and joining as a party to the action if required by Applicable Laws to pursue such action or if the Parties agree it is necessary to maximize the claim, at no out-of-pocket cost to the cooperating/joining Party.

(e)               Recoveries. Except as otherwise agreed by the Parties as part of a cost-sharing arrangement, any recovery or damages realized as a result of an action or proceeding contemplated by this Section shall be used first to reimburse the Parties’ reasonable documented out-of-pocket legal expenses relating to the action or proceeding, subject to a cap that will be agreed by the Parties with regard to legal expenses of the Party that did not bring and control the action or proceeding, and any remaining recovery shall be retained by the Party that brought and controlled such action or proceeding, and in the case that iBio brought and controlled such action or proceeding, the remaining recovery constituting a reasonable royalty shall (if so treated under applicable tax law) be deemed to be Net Sales subject to royalty payments to RubrYc in accordance with the royalty provisions of Section 5.2 (Royalties), with any additional amount retained by iBio for its own account.

6.4.            Patent Marking. iBio and its Sublicensees shall mark all Licensed Products and packaging (a) intended for sale in the United States in accordance with 35 U.S.C. § 287(a) or any other successor statute in the United States and (b) intended for sale in a country outside the United States in accordance with the applicable Patent marking laws of such country.

6.5.            Trademarks. iBio shall own and be responsible for all trademarks, trade names, branding or logos related to Licensed Products in the Field in the Territory. iBio shall be responsible for selecting, registering, prosecuting, defending, and maintaining all such marks at iBio’s sole cost and expense.

6.6.            No Implied Licenses; Negative Covenant. Except as set forth herein, neither Party or its Affiliates shall acquire any license or other intellectual property interest, by implication or otherwise, under any Intellectual Property or Intellectual Property Rights of the other Party or its Affiliates. Each Party shall not, and shall not permit any of its Affiliates or sublicensees to, practice any Intellectual Property Rights licensed to it by the other Party outside the scope of the licenses granted to it under this Agreement. Nothing herein shall be construed to limit or restrict, in any manner, RubrYc’s ability to use or exploit, or allow any Person to use or exploit, the RubrYc Discovery Engine.

6.7.            No Alienation. Neither Party may sell, transfer, or otherwise alienate or encumber any Intellectual Property licensed to the other Party under this Agreement in such a manner as to interfere with the ability of such Party to enjoy the licenses granted under this Agreement. Any purported action in contravention of this Section shall be null and void.

Article 7
CONFIDENTIALITY; PUBLICATION

7.1.            Nondisclosure Obligation. For the Term of this Agreement and five (5) years thereafter, the Party receiving the Confidential Information of the other Party (such receiving Party or a Party’s Affiliate, the “Receiving Party”) shall keep confidential and not publish, make available or otherwise disclose any Confidential Information to any Affiliate or Third Party, without the express prior written consent of the Party that disclosed such Confidential Information (such disclosing Party or a Party’s Affiliate, the “Disclosing Party”); provided however, the Receiving Party may disclose the Confidential Information to those of its Affiliates, officers, directors, employees, agents, consultants or independent contractors (including sublicensees, Sublicensees, and Collaboration Subcontractors) who need to know the Confidential Information in connection with this Agreement and are bound by confidentiality obligations with respect to such Confidential Information no less onerous than the terms herein. The Receiving Party shall exercise at a minimum the same degree of care it would exercise to protect its own Confidential Information (and in no event less than a reasonable standard of care) to keep confidential the Disclosing Party’s Confidential Information. The Receiving Party shall use the Confidential Information solely in connection with the purposes of this Agreement and shall not use the Disclosing Party’s Confidential Information for any other purpose. Notwithstanding anything to the contrary, RubrYc’s Background IP, the RubrYc-Owned Foreground IP and RubrYc’s Additional Developments are the Confidential Information of RubrYc, and iBio’s Background IP, the iBio-Owned Foreground IP and iBio’s Additional Developments are the Confidential Information of iBio, unless they meet one of the exceptions in the definition of “Confidential Information.” This ARTICLE 7 (Confidentiality; Publication) does not limit or expand the scope of any licenses granted in this Agreement. To the extent there is any conflict between this ARTICLE 7 (Confidentiality; Publication) and any other agreement related to Confidential Information entered into between the Parties, the terms of this ARTICLE 7 (Confidentiality; Publication) shall control with respect to disclosures made under or in connection with this Agreement.

7.2.            Authorized Disclosure. It shall not be considered a breach of this Agreement if the Receiving Party discloses Confidential Information of the Disclosing Party in order to comply with a lawfully issued court or governmental order or with a requirement of Applicable Laws (including any such disclosures as are required by a Regulatory Authority in connection with seeking Regulatory Approval, Pricing and Reimbursement Approval, or import authorization with respect to Licensed Products) or the rules of any internationally recognized stock exchange; provided that: (a) unless it is unlawful to do so, the Receiving Party gives prompt written notice of such disclosure requirement to the Disclosing Party and cooperates with the Disclosing Party’s efforts to oppose such disclosure or obtain a protective order for such Confidential Information; and (b) if such disclosure requirement is not quashed or a protective order is not obtained, the Receiving Party shall only disclose those portions of the Confidential Information that it is legally required to disclose and shall make a reasonable effort to obtain confidential treatment for the disclosed Confidential Information.

7.3.            Competitive Products. The Parties agree that each Party may develop information internally or receive information from Affiliates or Third Parties that may be similar to the other Party’s Confidential Information. So long as a Party does not breach the terms of this Agreement, neither Party is prohibited by this Agreement from developing (or having others develop) products or services that compete with the Licensed Compounds or Licensed Products.

7.4.            Scientific Publication. iBio may publish, unilaterally or jointly with RubrYc, with respect to the data, results and information generated from Collaboration activities.  iBio shall provide RubrYc with the opportunity to review and comment on any such publication, and iBio will consider in good faith any comments that RubrYc provides and shall comply with RubrYc’s reasonable requests to remove any and all of RubrYc’s Confidential Information from such proposed publication. To the extent RubrYc proposes to make a unilateral publication with respect to the data, results and information generated from Collaboration activities or anything related to the Licensed Compounds, RubrYc shall request approval for such publication to iBio, and iBio shall consider such requests in good faith. RubrYc shall not make unilateral publications concerning this subject matter without iBio’s written approval. For clarity, iBio shall have ultimate decision-making authority with respect to publications arising from Collaboration activities or any other work relating to the Licensed Compounds. The foregoing ceases to apply when this Agreement ends or is terminated with respect to a Licensed Compound.

7.5.            Publicity; Use of Names.

(a)               Each of the Parties agrees not to disclose to any Third Party or Affiliates (except as permitted by Section 7.1 (Nondisclosure Obligations)) the terms and conditions of this Agreement without the prior approval of the other Party, except to (i) advisors (including consultants, financial advisors, attorneys and accountants), in each case under circumstances that reasonably protect the confidentiality thereof, (ii) actual or bona fide potential and existing investors and acquirers on a need to know basis, in each case under circumstances that reasonably protect the confidentiality thereof, (iii) to the extent necessary to comply with the terms of agreements with Third Parties or Affiliates, or (iv) to the extent required by Applicable Laws, including securities laws and regulations; provided that any disclosures pursuant to (i)–(iii) shall be pursuant to terms of a written non-disclosure/non-use agreement with terms and conditions at least as protective of the Confidential Information as those set forth in this ARTICLE 7 (Confidentiality; Publication) (or, in the case of attorneys, to a duty and obligation of nondisclosure or nonuse pursuant to applicable rules of the profession). Notwithstanding the foregoing, the Parties agree that at the request of either Party both Parties may together issue a mutually approved press release to announce the execution of this Agreement; thereafter, RubrYc and iBio may each disclose to Third Parties and their Affiliates the information contained in such initial press release without the need for further approval by the other.

(b)               Notwithstanding any provisions to the contrary contained in this ARTICLE 7 (Confidentiality; Publication), iBio may make disclosures from time to time with respect to the Clinical and Regulatory Activities and Commercialization for the Licensed Products in the Field and Territory, including achievement of significant events in the Clinical and Regulatory Activities or Commercialization of a Licensed Product for use in the Field in the Territory; provided that such disclosures do not include any Confidential Information of RubrYc, and shall be accurate and compliant with Applicable Laws and regulatory guidance documents.

(c)               Each Party acknowledges the other Party’s need to keep investors and others informed regarding such Party’s business under this Agreement, including as required by the rules of a recognized stock exchange. To the extent a Party is publicly listed or becomes publicly listed, and subject to the rest of this Section 7.5 (Publicity; Use of Names), such Party may issue press releases or make disclosures to the SEC or other applicable agency as it determines, based on advice of counsel, as reasonably necessary to comply with Applicable Laws or for appropriate market disclosure; provided that each Party shall provide the other Party with advance notice of disclosures to the extent practicable. The Parties shall consult with each other on the provisions of this Agreement to be redacted in any filings made by a Party with the SEC or as otherwise required by Applicable Laws; provided that each Party shall have the right to make any such filing as it reasonably determines necessary under Applicable Laws.

(d)               Each Party will have the right to use the other Party’s name and logo in presentations, its website, collateral materials, and corporate overviews to describe the Collaboration and license relationship; provided that neither Party will use the other Party’s name or logo in such a manner as to harm the distinctiveness, reputation, or validity of the other Party’s rights in such name or logo, and each Party’s use shall be consistent with best practices used by such other Party for its own use of its name and logo. Except as permitted under this Section 7.5 (Publicity; Use of Names) or with the prior express written permission of the other Party, neither Party will use the name, trademark, trade name, or logo of the other Party or its Affiliates or their respective employees in any publicity, promotion, news release, or disclosure relating to this Agreement or its subject matter except as may be required by Applicable Law.

Article 8
REPRESENTATIONS, WARRANTIES, AND COVENANTS

8.1.            Representations and Warranties of Each Party. Each Party represents and warrants to the other Party as of the Effective Date that:

(a)               it is a company or corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is incorporated, and has full corporate power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including the right to grant the licenses granted by it hereunder;

(b)               (i) it has the corporate power and authority and the legal right to enter into this Agreement and perform its obligations hereunder; (ii) it has taken all necessary corporate action on its part required to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; and (iii) this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, and binding obligation of such Party that is enforceable against it in accordance with its terms;

(c)               it is not a party to any agreement or bound by any order or other legal obligation that would prevent it from granting the rights granted to the other Party under this Agreement, conflict with the rights granted, or prevent it from performing its obligations under this Agreement; and

(d)               all consents, approvals and authorization from all Governmental Authorities or other Third Parties required to be obtained by such Party in connection with this Agreement have been obtained.

8.2.            Additional Representations and Warranties of RubrYc. RubrYc represents and warrants to iBio that, as of the Effective Date, to RubrYc’s Knowledge, (a) the use of the Licensed Compounds as contemplated herein does not infringe on any Third Party’s Intellectual Property Rights, and (b) the Licensed Patents are valid and in good standing, and no interference, opposition, cancellation or other protest proceeding has been filed against the Licensed Patents.

8.3.            Covenants of Each Party. Each Party covenants to the other Party that in the course of performing its obligations or exercising its rights under this Agreement, it shall, and shall cause its Affiliates, Sublicensees, and Collaboration Subcontractors to, use commercially reasonable efforts to comply with the Collaboration Plan and all agreements referenced herein (without modifying any obligations to use Commercially Reasonable Efforts hereunder), and shall not employ or engage any party who has been debarred by any Regulatory Authority, or, to such Party’s Knowledge, is the subject of debarment proceedings by a Regulatory Authority. Each Party covenants to the other Party that in the course of performing its obligations or exercising its rights under this Agreement, it shall, and shall cause its Affiliates, Sublicensees, and Collaboration Subcontractors to comply with all Applicable Laws.

8.4.            NO OTHER REPRESENTATIONS OR WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 8 (REPRESENTATIONS, WARRANTIES, AND COVENANTS), NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR NON-MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, ARE MADE OR GIVEN BY OR ON BEHALF OF A PARTY. ALL SUCH REPRESENTATIONS AND WARRANTIES, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.

Article 9
INDEMNIFICATION

9.1.            By iBio. iBio shall indemnify and hold harmless RubrYc, its Affiliates, and their directors, officers, employees and agents (individually and collectively, the “RubrYc Indemnitee(s)”) from and against all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) (individually and collectively, “Losses”) awarded to Third Parties, or agreed to in settlement by iBio, arising after the Effective Date to the extent arising out of Third Party claims or suits (each, a “Claim”) against any RubrYc Indemnitee related to: (a) the breach of any covenant, warranty or representation made by iBio under this Agreement; (b) the gross negligence or willful misconduct of iBio or any of its Affiliates or other Sublicensees; (c) the Development, Clinical and Regulatory Activities, Manufacture or Commercialization of the Licensed Product(s) (or the Licensed Compounds used therein) by or on behalf of iBio or Sublicensees, including any product liability claims or infringement claims; (d) any development activities conducted by or on behalf of iBio or its Affiliates or Collaboration Subcontractors during the Collaboration; or (e) violation of Applicable Laws by any iBio Indemnitees, iBio’s Collaboration Subcontractors or Sublicensees; in each case of clauses (a) through (e) above, except to the extent such Losses arise from, are based on, or result from any activity or occurrence for which RubrYc is obligated to indemnify the iBio Indemnitees under Section 9.2 (By RubrYc).

9.2.            By RubrYc. RubrYc shall indemnify and hold harmless iBio, its Affiliates, and their directors, officers, employees and agents (individually and collectively, the “iBio Indemnitee(s)”) from and against all Losses awarded to Third Parties, or agreed to in settlement by RubrYc, arising after the Effective Date to the extent arising out of Claims against any iBio Indemnitee related to: (a) the breach of any covenant, warranty or representation made by RubrYc under this Agreement; (b) the gross negligence or willful misconduct of RubrYc or any of its Affiliates; (c) any development activities conducted by or on behalf of RubrYc or its Affiliates or Collaboration Subcontractors during the Collaboration, including without limitation any use of the RubrYc Discovery Engine ; or (d) violation of Applicable Laws by any RubrYc Indemnitees or RubrYc’s Collaboration Subcontractors; in each case of clauses (a) through (d) above, except to the extent Losses arise from, are based on, or result from any activity or occurrence for which iBio is obligated to indemnify the RubrYc Indemnitees under Section 9.1 (By iBio).

9.3.            Defined Indemnification Terms. Either of the iBio Indemnitee or the RubrYc Indemnitee shall be an “Indemnitee” for the purpose of this ARTICLE 9 (Indemnification), and the Party that is obligated to indemnify the Indemnitee under Section 9.1 (By iBio) or Section 9.2 (By RubrYc) shall be the “Indemnifying Party.”

9.4.            Notice; Defense. If any Claim is made against an Indemnitee under Section 9.1 (By iBio) or 9.2 (By RubrYc), the Indemnitee shall notify the Indemnifying Party promptly of such Claim and shall reasonably cooperate with all reasonable requests of the Indemnifying Party with respect thereto at the Indemnifying Party’s expense. The Indemnitee shall be defended at the Indemnifying Party’s sole expense by counsel selected by the Indemnifying Party, provided that the Indemnitee may, at its own expense, also be represented by counsel of its own choosing. The Indemnifying Party shall have the sole right to control the defense of any such claim or action, subject to the terms of this ARTICLE 9 (Indemnification).

9.5.            Settlement. The Indemnifying Party may settle any such claim, demand, action or other proceeding or otherwise consent to an adverse judgment (a) with prior written notice to the Indemnitee but without the consent of the Indemnitee where the only liability to the Indemnitee is the payment of money and the Indemnifying Party makes such payment, or (b) in all other cases, only with the prior written consent of the Indemnitee, such consent not to be unreasonably withheld or delayed; provided that the Indemnifying Party shall not enter into any settlement admitting the invalidity of, or otherwise impairing, any Licensed Patents without the prior written consent of the other Party.

9.6.            Permission by Indemnifying Party. The Indemnitee may not settle any such Claim or otherwise consent to an adverse judgment in any such Claim or make any admission as to liability or fault without the express written permission of the Indemnifying Party.

9.7.            LIMITATION OF LIABILITY. SUBJECT TO AND WITHOUT LIMITING (A) THE INDEMNIFICATION OBLIGATIONS OF EACH PARTY WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTIONS 9.1 (BY IBIO) OR 9.2 (BY RUBRYC), (B) LIABILITY AS A RESULT OF A BREACH OF ARTICLE 7 (CONFIDENTIALITY; PUBLICATION), OR (C) LIABILITY FOR MISAPPROPRIATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY OWNED OR CONTROLLED BY A PARTY INCLUDING BREACH OF LICENSE RIGHTS OR RESTRICTIONS, NEITHER PARTY OR ANY OF ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, MULTIPLIED OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

9.8.            Insurance. Each Party shall procure and maintain insurance adequate to cover its obligations hereunder and consistent with normal business practices of prudent companies similarly situated. The insurance maintained by a Party shall include clinical and/or product liability insurance at all times during which any Licensed Product is being clinically tested in human subjects, Manufactured or Commercialized and for the six (6) year period thereafter. It is understood that such insurance shall not be construed to create a limit of either Party’s liability with respect to its indemnification obligations under this ARTICLE 9 (Indemnification). Each Party shall provide the other Party with written evidence of such insurance upon request. Each Party shall provide the other Party with written notice at least thirty (30) days prior to the cancellation, non-renewal or material change in such insurance.

Article 10
TERM AND TERMINATION

10.1.        Term. This Agreement shall be effective as of the Effective Date, and, unless earlier terminated as set forth in this Agreement, shall remain in effect until the later of (a) the expiration of the last to expire of the Licensed Patents, or (b) on a country-by-country and a Licensed Product-by-Licensed Product basis, until the expiration of the Royalty Term of such Licensed Product in such country (the “Term”).

10.2.        Termination. In addition to the other termination rights set forth in this Agreement:

(a)               Termination for Convenience. iBio shall have the right to terminate this Agreement in its entirety or with respect to a specific Licensed Compound for any or no reason upon ninety (90) days’ written notice to RubrYc.

(b)               Termination for Material Breach. This Agreement may be terminated at any time upon sixty (60) days’ written notice by either Party if the other Party materially breaches this Agreement and, if such breach is curable, such breach has not been cured within sixty (60) days (thirty (30) days in the event of non-payment) of such written notice.

(c)               Termination for Failure to Raise [***]. If RubrYc is unable to complete a financing of $[***] (not including the RubrYc Series A2 Financing) by the first anniversary of the closing of the RubrYc Series A2 Financing, iBio may terminate both this Agreement and the Collaboration, Option and License Agreement in their entirety upon written notice to RubrYc within thirty (30) days of the end of such period, and, effective upon such termination, in addition to the rights set forth in Section 10.2(c) (Termination for Failure to Raise [***]) of the Collaboration, Option and License Agreement, RubrYc shall and hereby does (effective upon the occurrence of the foregoing condition precedent) assign to iBio exclusive ownership of the Licensed Compounds, including all Intellectual Property of RubrYc relevant to such Licensed Compounds, regulatory submissions and interactions, data from all studies performed, and all other materials owned by RubrYc that are related to the Licensed Compounds without further financial obligation, excluding the RubrYc Discovery Engine; provided, however, that, the foregoing obligation shall not apply to any Licensed Compound with respect to which this Agreement has been terminated prior to the end of such 30-day period.

(d)               Termination for Insolvency. Each Party shall have the right to terminate this Agreement upon delivery of written notice to the other Party in the event that (i) such other Party files in any court or agency pursuant to any statute or regulation of any jurisdiction a petition in bankruptcy or insolvency or for reorganization under the Chapter 7 of the United States of Bankruptcy Code or other similar Applicable Laws or similar arrangement for the benefit of creditors or for the appointment of a receiver or trustee of such other Party or its assets, (ii) such other Party is served with an involuntary petition against it in any insolvency proceeding and such involuntary petition has not been stayed or dismissed within ninety (90) days of its filing, or (iii) such other Party makes an assignment of substantially all of its assets for the benefit of its creditors. All rights and licenses granted under or pursuant to this Agreement are and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction, licenses of right to “intellectual property” as defined under Section 101 of the U.S. Bankruptcy Code. The Parties agree that the Parties, as licensees of such rights under this Agreement, shall retain and may fully exercise all of their rights and elections under the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction.

(e)               Termination for Patent Challenge. To the extent the following clause is permitted by Applicable Law, RubrYc may, but shall not be required to, terminate this Agreement with immediate effect upon written notice to iBio if iBio or Sublicensee(s), directly or indirectly, challenge in a legal or administrative proceeding the patentability, enforceability or validity of any claim of any Licensed Patent (such a challenge is, a “Challenge”); provided, however, that RubrYc shall not have the right to terminate this Agreement under this Section 10.2(e) (Termination for Patent Challenge), if such Challenge was brought by a Third Party Sublicensee and iBio has terminated such Sublicensee’s sublicense with respect to such Licensed Patent within sixty (60) days of RubrYc’s notice to iBio under this Section 10.2(e) (Termination for Patent Challenge). If, upon a Challenge, at least one claim of a Licensed Patent, which Licensed Patent is subject to the Challenge, survives the Challenge not being found invalid or unenforceable, then iBio agrees to pay all costs and expenses incurred by RubrYc or its Affiliates (including attorney’s fees) in connection with defending the Challenge.

10.3.        Effect of Termination.

(a)               Payments. Termination of this Agreement shall not impact the amounts due under ARTICLE 5 (Payments) to the extent Licensed Products are still being researched, developed, made, have made, manufactured, used, distributed, sold, offered for sale, imported, and exported by any Selling Entity (notwithstanding the terms of Section 10.3(b) (License Grants)).

(b)               License Grants. Upon the termination of this Agreement by RubrYc due to an uncured material breach by iBio or pursuant to Section 10.2(a) (Termination for Convenience) by iBio, all rights and licenses granted to a Party herein, and all rights and licenses granted by iBio to Sublicensees with respect to the Commercial License, shall immediately terminate. Upon the termination of this Agreement with respect to a Licensed Compound by iBio pursuant to Section 10.2(a) (Termination for Convenience), all rights and licenses granted to a Party herein, and all rights and licenses granted by iBio to Sublicensees with respect to the Commercial License, with respect to the Licensed Compound(s) shall immediately terminate. Upon any other termination of this Agreement, iBio shall retain the licenses granted to it herein subject to the obligation to make Royalty Payments.

(c)               Other Obligations. Termination of this Agreement for any reason shall not release either Party of any obligation or liability which, at the time of such termination, has already accrued to the other Party or which is attributable to a period prior to such termination. Notwithstanding anything herein to the contrary, termination of this Agreement by a Party shall be without prejudice to other remedies such Party may have at law or equity.

(d)               Return of Confidential Information. At the Disclosing Party’s election and request, the Receiving Party shall return (at Disclosing Party’s expense) or destroy all tangible materials comprising, bearing, or containing any Confidential Information of the Disclosing Party that are in the Receiving Party’s or its Affiliates’ or Sublicensees’ possession or control and provide written certification of such destruction (except to the extent any information is the Confidential Information of both Parties or to the extent that the Receiving Party has the continuing right to use the Confidential Information under this Agreement); provided that the Receiving Party may retain one (1) copy of such Confidential Information for its legal archives, the access to which shall be limited to such Party’s legal, compliance or auditing teams. Notwithstanding anything to the contrary set forth in this Agreement, the Receiving Party shall not be required to destroy electronic files containing such Confidential Information that are made in the ordinary course of its business information back-up procedures. Any such retained Confidential Information is retained subject to confidentiality and non-use.

(e)               Other Remedies. Termination or expiration of this Agreement for any reason shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages or otherwise, that a Party may have hereunder or that may arise out of or in connection with such termination or expiration.

10.4.        Survival. The following provisions shall survive the termination or expiration of this Agreement for any reason: ARTICLE 1 (Definitions), Section 2.4 (Cost of Collaboration Activities), ARTICLE 5 (Payments), Section 6.1 (Inventions; Ownership); Section 6.6 (No Implied Licenses; Negative Covenant), ARTICLE 7 (Confidentiality; Publication), Section 8.4 (No Other Representations or Warranties), ARTICLE 9 (Indemnification), Section 10.3 (Effect of Termination)(to the extent applicable), Section 10.4 (Survival), ARTICLE 11 (Dispute Resolution), ARTICLE 12 (Miscellaneous), and any other provisions that by their nature would be understood to survive termination or expiration of the Agreement.

Article 11
DISPUTE RESOLUTION

11.1.        General. The Parties recognize that a dispute may arise relating to this Agreement (a “Dispute”). Any Dispute, including Disputes that may involve the Affiliates of any Party, shall be resolved in accordance with this ARTICLE 11 (Dispute Resolution). Disputes shall not modify either Party’s right to terminate hereunder.

11.2.        Escalation. Any claim, Dispute, or controversy as to the breach, enforcement, interpretation or validity of this Agreement shall be referred to the Executive Officers for attempted resolution. In the event the Executive Officers are unable to resolve such Dispute within thirty (30) days of such Dispute being referred to them, then either Party may institute a suit, action or proceeding in the courts located in Wilmington, Delaware. Each of the Parties hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of Wilmington, Delaware for such suit, action or proceeding and each of the Parties hereby irrevocably and unconditionally waives any objection to the laying of venue of such suit, action or proceeding in the courts located in Wilmington, Delaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit, action or proceeding sought in any such court has been brought in an inconvenient forum.

11.3.        Equitable Relief. Each Party recognizes that the licenses and restrictions on use herein, and the terms of ARTICLE 7 (Confidentiality; Publication) and their continued performance as set forth in this Agreement are necessary and critical to protect the legitimate interests of the other Party, that each other Party would not have entered into this Agreement in the absence of such licenses, covenants and agreements and the assurance of continued performance thereof as set forth in this Agreement, and that a Party’s breach or threatened breach of such licenses, covenants or agreements may cause the other Party irreparable harm and significant injury, the amount of which will be extremely difficult to estimate and ascertain, thus potentially making any remedy at law or in damages inadequate. Therefore, each Party confirms and agrees that, notwithstanding Section 11.2 (Escalation), the other Party shall be entitled to seek on an interim or permanent basis an order for specific performance, an order restraining any breach or threatened breach of such licenses, covenants or agreements, and any other equitable relief (including but not limited to temporary, preliminary and/or permanent injunctive relief), all without need to post any bond or other security, and in addition to and not exclusive of any other remedy available to such other Party at law or in equity, from any court located in Wilmington, Delaware.

Article 12
MISCELLANEOUS

12.1.        Force Majeure. Neither Party shall be held liable to the other Party nor be deemed to have defaulted under or breached this Agreement for failure or delay in performing any obligation under this Agreement to the extent such failure or delay is caused by or results from causes beyond the reasonable control of the affected Party including embargoes, war, acts of war (whether war be declared or not), insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, fire, floods, epidemic, pandemic, or other acts of God or any other deity, or acts, omissions or delays in acting by any Governmental Authority. The affected Party shall notify the other Party of such force majeure circumstances as soon as reasonably practical, and shall promptly undertake all reasonable efforts necessary to cure such force majeure circumstances. Such excuse from performance under this Agreement shall be continued so long as the condition constituting force majeure continues and the nonperforming Party uses reasonable efforts to remove the condition. The Parties agree the effects of the COVID-19 pandemic that is ongoing as of the Effective Date may be invoked as a force majeure for the purposes of this Agreement solely to the extent such effect was not reasonably foreseeable by the Party invoking force majeure as of the Effective Date.

12.2.        Assignment. Neither Party may assign this Agreement to a Third Party or its Affiliate(s) without the other Party’s prior written consent (such consent not to be unreasonably withheld); except that either Party may with written notice promptly after such event make such an assignment without the other Party’s prior written consent to a successor to substantially all of the business of such Party to which this Agreement relates (whether by merger, sale of stock, sale of assets, exclusive license or other transaction). This Agreement shall inure to the benefit of and be binding on the Parties’ successors and permitted assignees. Any assignment or transfer in violation of this Section 12.2 (Assignment) shall be null and void and wholly invalid, the assignee or transferee in any such assignment or transfer shall acquire no rights whatsoever, and the non-assigning non-transferring Party shall not recognize, nor shall it be required to recognize, such assignment or transfer.

12.3.        Performance by Affiliates. Each Party may discharge any obligations and exercise any right hereunder through any of its Affiliates and each Party hereby guarantees the performance by its Affiliates of such Party’s obligations and exercise of such Party’s rights under this Agreement, and shall cause its Affiliates to comply with the provisions of this Agreement in connection with such performance and the exercise of any rights hereunder.

12.4.        Severability. If any one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, unless the absence of the invalidated provision(s) adversely affects the substantive rights of the Parties. The Parties shall in such an instance use their best efforts to replace the invalid, illegal or unenforceable provision(s) with valid, legal and enforceable provision(s) which, insofar as practical, implement the purposes of this Agreement.

12.5.        Notices. Any notice, request, demand, waiver, consent, approval or other communication permitted or required under this Agreement shall be in writing, shall refer specifically to this Agreement and shall be deemed given only if delivered by hand or by overnight delivery service that maintains records of delivery, addressed to the Parties at their respective addresses specified in this Section 12.5 (Notices) or to such other address as the Party to whom notice is to be given may have provided to the other Party in accordance with this Section 12.5 (Notices), with a courtesy copy sent by email, which will not constitute notice. Such notice shall be deemed to have been given as of the date delivered by hand or on the second (2nd) Business Day (at the place of delivery) after deposit with an overnight delivery service. This Section 12.5 (Notices) is not intended to govern the day-to-day business communications necessary between the Parties in performing their obligations under the terms of this Agreement.

If to RubrYc:

RubrYc Therapeutics, Inc.
Address: 733 Industrial Road, San Carlos, CA 94070, U.S.A.
Attn: Isaac Bright
Email: Isaac.bright@rubryc.com

with a copy to:

Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402-1498
Attn: Rhona E. Schmidt
Email: Schmidt.Rhona@dorsey.com

If to iBio:

iBio, Inc.
Address: 8800 HSC Pkwy, Bryan, TX 77807

Attn: Thomas Isett
Email: tisett@ibioinc.com

with a copy to:

Venable LLP

750 East Pratt Street

Baltimore, MD 21202

Attn: Charles J. Morton, Jr., Esq.

Email: CJMorton@Venable.com

12.6.        Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to any rules of conflict of laws.

12.7.        Entire Agreement; Amendments. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof. All express or implied agreements and understandings, either oral or written, with regard to the subject matter hereof (including the licenses granted hereunder) are superseded by the terms of this Agreement. Neither Party is relying on any representation, promise, nor warranty not expressly set forth in this Agreement. This Agreement, including the Collaboration Plan, may be amended, or any term hereof modified, only by a written instrument duly executed by authorized representatives of both Parties hereto. The NDA is hereby terminated, and all obligations under it relating to confidentiality and non-use are replaced by the terms of this Agreement.

12.8.        Headings. The captions to the several Sections hereof are not a part of this Agreement, but are merely for convenience to assist in locating and reading the Sections of this Agreement.

12.9.        Independent Contractors. It is expressly agreed that RubrYc and iBio shall be independent contractors and that the relationship between the two Parties shall not constitute a partnership, joint venture or agency. RubrYc will report any payments received under this Agreement as payments from iBio. Neither RubrYc nor iBio shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior written consent of the other Party.

12.10.    Further Actions. Each Party agrees to execute, acknowledge, and deliver such further instruments, and to do all such other acts, as necessary or appropriate in order to carry out the purposes and intent of this Agreement.

12.11.    Waiver. The waiver by either Party of any right hereunder, or the failure of the other Party to perform, or a breach by the other Party, shall not be deemed a waiver of any other right hereunder or of any other breach or failure by such other Party whether of a similar nature or otherwise.

12.12.    Waiver of Rule of Construction. Each Party has had the opportunity to consult with counsel in connection with the review, drafting and negotiation of this Agreement. Accordingly, the rule of construction that any ambiguity in this Agreement shall be construed against the drafting Party shall not apply.

12.13.    Construction. Except where the context expressly requires otherwise, (a) the use of any gender herein shall be deemed to encompass references to either or both genders, and the use of the singular shall be deemed to include the plural (and vice versa); (b) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”; (c) the word “will” shall be construed to have the same meaning and effect as the word “shall”; (d) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein); (e) any reference herein to any person shall be construed to include the person’s successors and assigns; (f) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof; (g) all references herein to Sections, Schedules, or Exhibits shall be construed to refer to Sections, Schedules or Exhibits of this Agreement, and references to this Agreement include all Schedules and Exhibits hereto; (h) the word “notice” means notice in writing (whether or not specifically stated) and shall include notices, consents, approvals and other written communications contemplated under this Agreement; (i) provisions that require that a Party, the Parties or any committee hereunder “agree”, “consent” or “approve” or the like shall require that such agreement, consent or approval be specific and in writing, whether by written agreement, letter, approved minutes or otherwise (but excluding e-mail and instant messaging); (j) references to any specific law, rule or regulation, or Section, section or other division thereof, shall be deemed to include the then-current amendments thereto or any replacement or successor law, rule or regulation thereof; (k) the term “or” shall be interpreted in the inclusive sense commonly associated with the term “and/or” where applicable; and (l) the word “day” or “year” means a calendar day or year unless otherwise specified.

12.14.    Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and e-mailed copies of signatures shall be deemed to be originals for purposes of the effectiveness of this Agreement. Electronic, facsimile or PDF image signatures shall be treated as original signatures, with the understanding that each Party expressly agrees that such Party shall be bound by its own electronically transmitted signature and shall accept the electronically transmitted signature of the other Party (including through the use of eSignature platforms such as DocuSign®).

[Signature Page Follows]

IN WITNESS WHEREOF, the Parties intending to be bound have caused this Collaboration and License Agreement to be executed by their duly authorized representatives as of the Effective Date.

[Signature Page to Collaboration and License Agreement]

Exhibit A
Collaboration Plan

[***]

Schedule 1.53

Licensed Patents

[***]

Exhibit 10.3

Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. [***] indicates that information has been redacted.

RUBRYC THERAPEUTICS, INC.

SERIES A-2 PREFERRED STOCK PURCHASE AGREEMENT

August 23, 2021

TABLE OF CONTENTS

Page

TABLE OF CONTENTS
(continued)

Certain identified information has been excluded from this exhibit because it is both not material and is the type that
the registrant treats as private or confidential. [***] indicates that information has been redacted.

SERIES A-2 PREFERRED STOCK PURCHASE AGREEMENT

THIS SERIES A-2 PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”), is made as of August 23, 2021, by and among RubrYc Therapeutics, Inc., a Delaware corporation (the “Company”), and the investors listed on Exhibit A attached to this Agreement (each a “Purchaser” and together the “Purchasers”).

The parties hereby agree as follows:

1.                  Purchase and Sale of Series A-2 Preferred Stock.

1.1              Sale and Issuance of Series A-2 Preferred Stock.

(a)               The Company shall adopt and file with the Secretary of State of the State of Delaware on or before the Initial Closing (as defined below) an Amended and Restated Certificate of Incorporation in the form of Exhibit B attached to this Agreement (the “Restated Certificate”).

(b)               Subject to the terms and conditions of this Agreement, each Purchaser, severally and not jointly, agrees to purchase at the Initial Closing, and the Company agrees to sell and issue to each Purchaser at the Initial Closing, that number of shares of the Company’s Series A-2 Preferred Stock, $0.0001 par value per share (“Series A-2 Preferred Stock”), set forth opposite such Purchaser’s name on Exhibit A, at a purchase price of $2.6184 per share (the “Per Share Purchase Price”). The shares of Series A-2 Preferred Stock issued to the Purchasers pursuant to this Agreement (including any shares issued at the Initial Closing and any Additional Shares, as defined below) shall be referred to in this Agreement as the “Shares.”

1.2              Initial Closing; Delivery.

(a)               The initial purchase and sale of the Shares shall take place remotely via the exchange of documents and signatures, at 10:00 a.m. Central Time on the date hereof or at such other time and place as the Company and the Purchasers mutually agreed upon, orally or in writing (which time and place are designated as the “Initial Closing”). In the event there is more than one closing, the term “Closing” shall apply to each such closing unless otherwise specified.

(b)               At each Closing, the Company shall, as applicable, deliver to each Purchaser a certificate representing the Shares being purchased by such Purchaser at such Closing to such Purchaser hereunder, against payment of the purchase price therefor by check payable to the Company, by wire transfer to a bank account designated by the Company, by cancellation or conversion of indebtedness of the Company to Purchaser (including interest), or by any combination of such methods.

1.3              Milestone Closing. Upon the achievement of the milestones set forth in Exhibit C attached hereto (the “Second Tranche Milestone”), each Purchaser shall have an obligation to purchase, and the Company shall sell to its Purchaser, its respective Second Tranche Shares. Within ten (10) days after the achievement of a Second Tranche Milestone, the Company shall deliver to each Purchaser a written notice setting forth such obligation (the “Second Tranche Notice”). The Second Tranche Notice shall include a date, time and place for the closing of the issuance and purchase of the Second Tranche Shares (the “Second Tranche Closing”), which date shall be no less than ten (10) days after the delivery of the Second Tranche Notice to the Purchasers; provided, however, that such date and time of the Second Tranche Closing may be changed to another date by the written consent of the Company and those Purchasers who are acquiring at least a majority of the Second Tranche Shares to be acquired by all Purchasers who are participating in such Second Tranche Closing.

1.4              Use of Proceeds. In accordance with the directions of the Company’s Board of Directors, as it shall be constituted in accordance with the Voting Agreement, the Company will use the proceeds from the sale of the Shares for product development, including by entering into a collaboration and licensing agreement with iBio, Inc., and other general corporate purposes, which shall be in accordance with the budget approved by the Company’s Board of Directors.

1.5              Defined Terms Used in this Agreement. In addition to the terms defined above and below, the following terms used in this Agreement shall be construed to have the meanings set forth in this Subsection 1.5.

(a)               “Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.

(b)               “Code” means the Internal Revenue Code of 1986, as amended.

(c)               “Company Intellectual Property” means all patents, patent applications, trademarks, trademark applications, service marks, service mark applications, tradenames, copyrights, trade secrets, domain names, mask works, information and proprietary rights and processes, similar or other intellectual property rights, subject matter of any of the foregoing, tangible embodiments of any of the foregoing, licenses in, to and under any of the foregoing, and in each and all such cases that are owned or used by the Company in the conduct of the Company’s business.

(d)               “Founder Series Preferred Stock” means shares of the Company’s Founder Series Preferred Stock, par value $0.0001 per share.

(e)               “Indemnification Agreement” means the agreement between the Company and a member of the Company’s Board of Directors in the form of Exhibit D attached to this Agreement.

(f)                “Investors’ Rights Agreement” means the agreement among the Company and the Purchasers as amended and restated effective as of the date of the Initial Closing, in the form of Exhibit E attached to this Agreement.

(g)               “Key Employees” means Isaac Bright, Matthew Greving, and Ramesh Baliga.

(h)               “Knowledge” including the phrase “to the Company’s knowledge” shall mean the actual knowledge after reasonable investigation of the Key Employees.

(i)                 “Material Adverse Effect” means a material adverse effect on the business, assets (including intangible assets), liabilities, financial condition, property, prospects or results of operations of the Company.

(j)                 “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

(k)               “Purchaser” means each of the Purchasers who is initially a party to this Agreement and any Additional Purchaser who becomes a party to this Agreement at a subsequent Closing under Subsection 1.3.

(l)                 “Right of First Refusal and Co-Sale Agreement” means the agreement among the Company, the Purchasers, and certain other stockholders of the Company, as amended as restated effective as of the date of the Initial Closing, in the form of Exhibit F attached to this Agreement.

(m)             “Second Tranche Shares” means, for each Purchaser, the number of Second Tranche Shares identified for such Purchaser on Exhibit A.

(n)               “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

(o)               “Transaction Agreements” means this Agreement, the Investors’ Rights Agreement, the Right of First Refusal and Co-Sale Agreement and the Voting Agreement.

(p)               “Voting Agreement” means the agreement among the Company, the Purchasers and certain other stockholders of the Company, as amended and restated effective as of the date of the Initial Closing, in the form of Exhibit G attached to this Agreement.

2.                  Representations and Warranties of the Company. The Company hereby represents and warrants to each Purchaser that, except as set forth on the Disclosure Schedule attached as Exhibit H to this Agreement, which exceptions shall be deemed to be part of the representations and warranties made hereunder, the following representations are true and complete as of the date of each Closing, including for Second Tranche Shares, except as otherwise indicated. The Disclosure Schedule shall be arranged in sections corresponding to the numbered and lettered sections and subsections contained in this Section 2, and the disclosures in any section or subsection of the Disclosure Schedule shall qualify other sections and subsections in this Section 2 only to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections and subsections.

For purposes of these representations and warranties (other than those in Subsections 2.2, 2.3, 2.4, 2.5, and 2.6), the term the “Company” shall include any subsidiaries of the Company, unless otherwise noted herein.

2.1              Organization, Good Standing, Corporate Power and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect.

2.2              Capitalization.

(a)               The authorized capital of the Company consists, upon the Initial Closing, of:

(i)                 48,765,990 shares of common stock, $0.0001 par value per share (“Common Stock”), [***]shares of which will be issued and outstanding as of the Initial Closing. All of the outstanding shares of Common Stock have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws.

(ii)              43,219,784 shares of preferred stock, $0.0001 par value per share, of which shares 1,480,079 have been designated Founder Series Preferred Stock, [***]shares of which are issued and outstanding as of the Initial Closing. In addition, 38,875,360 shares designated as Series A Preferred Stock, of which [***] shares are issued and outstanding as of the Initial Closing, and 2,864,345 shares designated as Series A-2 Preferred Stock, [***]of which are issued and outstanding as of the Initial Closing (together with the Founder Series Preferred Stock and the Series A Preferred Stock, the “Preferred Stock”). The rights, privileges and preferences of the Preferred Stock are as stated in the Restated Certificate and as provided by the Delaware General Corporation Law.

(b)               The Company has reserved 2,173,000 shares of Common Stock for issuance to officers, directors, employees and consultants of the Company pursuant to its 2018 Equity Incentive Plan duly adopted by the Board of Directors and approved by the Company’s stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, no options to purchase shares of Common Stock have been granted or are currently outstanding, and 15,488 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. The Company has furnished to the Purchasers complete and accurate copies of the Stock Plan and forms of agreements used thereunder.

(c)               Section 2.2(c) of the Disclosure Schedule sets forth the capitalization of the Company immediately following the Initial Closing, by each security holder, the number of shares of the following: (i) issued and outstanding Common Stock, including with respect to restricted Common Stock, vesting schedule and repurchase price; (ii) granted stock options (including vesting schedule and repurchase price); (iii) shares of Common Stock reserved for future award grants under the Stock Plan; (iv) issued and outstanding Preferred Stock; and (v) warrants or stock purchase rights, if any. Except for (A) the rights provided in Section 4 of the Investors’ Rights Agreement, and (B) the securities and rights described in Subsection 2.2(b) of this Agreement and Section 2.2(c) of the Disclosure Schedule, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Common Stock or Preferred Stock, or any securities convertible into or exchangeable for shares of Common Stock or Preferred Stock. All outstanding shares of the Company’s Common Stock and all shares of the Company’s Common Stock underlying outstanding options are subject to (i) a right of first refusal in favor of the Company upon any proposed transfer (other than transfers for estate planning purposes); and (ii) a lock-up or market standoff agreement of not less than one hundred eighty (180) days following the Company’s initial public offering pursuant to a registration statement filed with the Securities and Exchange Commission under the Securities Act.

(d)               The Company has never adjusted or amended the exercise price of any stock options previously awarded, whether through amendment, cancellation, replacement grant, repricing, or any other means. Except as set forth in the Restated Certificate, the Company has no obligation (contingent or otherwise) to purchase or redeem any of its capital stock.

(e)               Any “nonqualified deferred compensation plan” (as such term is defined under Section 409A(d)(1) of the Code and the guidance thereunder) under which the Company makes, is obligated to make or promises to make, payments (each, a “409A Plan”) complies in all material respects, in both form and operation, with the requirements of Section 409A of the Code and the guidance thereunder. No payment to be made under any 409A Plan is, or will be, subject to the penalties of Section 409A(a)(1) of the Code.

(f)                The Company has obtained valid waivers of any rights by other parties to purchase any of the Shares covered by this Agreement.

2.3              Subsidiaries. The Company does not currently own or control, directly or indirectly, any interest in any other corporation, partnership, trust, joint venture, limited liability company, association, or other business entity. The Company is not a participant in any joint venture, partnership or similar arrangement.

2.4              Authorization. All corporate action required to be taken by the Company’s Board of Directors and stockholders in order to authorize the Company to enter into the Transaction Agreements, and to issue the Shares at each Closing and the Common Stock issuable upon conversion of the Shares, has been taken or will be taken prior to such Closing. All action on the part of the officers of the Company necessary for the execution and delivery of the Transaction Agreements, the performance of all obligations of the Company under the Transaction Agreements to be performed as of each Closing, and the issuance and delivery of the Shares has been taken or will be taken prior to such Closing. The Transaction Agreements, when executed and delivered by the Company, shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms.

2.5              Valid Issuance of Shares. The Shares, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement, will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the Transaction Agreements, applicable state and federal securities laws and liens or encumbrances created by or imposed by a Purchaser. Assuming the accuracy of the representations of the Purchasers in Section 3 of this Agreement and subject to the filings described in Subsection 2.7(ii) below, the Shares will be issued in compliance with all applicable federal and state securities laws. The Common Stock issuable upon conversion of the Shares has been duly reserved for issuance, and upon issuance in accordance with the terms of the Restated Certificate, will be validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the Transaction Agreements, applicable federal and state securities laws and liens or encumbrances created by or imposed by a Purchaser. Based in part upon the representations of the Purchasers in Section 3 of this Agreement, and subject to Section 2.6 below, the Common Stock issuable upon conversion of the Shares will be issued in compliance with all applicable federal and state securities laws.

2.6              No Disqualification Event. No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to the Company or, following due inquiry, to the Company’s knowledge, any Company Covered Person, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3), is applicable.

2.7              Governmental Consents and Filings. Assuming the accuracy of the representations made by the Purchasers in Section 3 of this Agreement, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in connection with the consummation of the transactions contemplated by this Agreement, except for (i) the filing of the Restated Certificate, which will have been filed as of the Initial Closing, and (ii) filings pursuant to Regulation D of the Securities Act, and applicable state securities laws, which have been made or will be made in a timely manner.

2.8              Litigation. There is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or, to the Company’s knowledge, currently threatened (i) against the Company or any officer, director or Key Employee of the Company arising out of their employment or board relationship with the Company; (ii) that questions the validity of the Transaction Agreements or the right of the Company to enter into them, or to consummate the transactions contemplated by the Transaction Agreements; or (iii) that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Neither the Company nor, to the Company’s knowledge, any of its officers, directors or the Key Employees is a party or is named as subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality (in the case of officers, directors or the Key Employees, such as would adversely affect the Company). There is no action, suit, proceeding or investigation by the Company pending or which the Company intends to initiate. The foregoing includes, without limitation, actions, suits, proceedings or investigations pending or threatened in writing (or any basis therefor known to the Company) involving the prior employment of any of the Company’s employees, their services provided in connection with the Company’s business, any information or techniques allegedly proprietary to any of their former employers or their obligations under any agreements with prior employers.

2.9              Intellectual Property. The Company owns or possesses all Intellectual Property without any known conflict with, or infringement of, the rights of others. To the Company’s knowledge, no product or service marketed or sold (or proposed to be marketed or sold) by the Company violates or will violate any license or infringes or will infringe any intellectual property rights of any other party. Other than with respect to commercially available software products under standard end-user object code license agreements, there are no outstanding options, licenses, agreements, claims, encumbrances or shared ownership interests of any kind relating to the Company Intellectual Property, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, proprietary rights and processes of any other Person. The Company has not received any communications alleging that the Company has violated, or by conducting its business, would violate any of the patents, trademarks, service marks, tradenames, copyrights, trade secrets, mask works or other proprietary rights or processes of any other Person. The Company has obtained and possesses valid licenses to use all of the software programs present on the computers and other software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the Company’s business. It will not be necessary to use any invention of any of the Company’s employees or consultants (or Persons it currently intends to hire) made prior to their employment or engagement by the Company, as applicable. Each employee and consultant has assigned to the Company all intellectual property rights he or she owns that are related to the Company’s business as now conducted and as presently proposed to be conducted. Section 2.9 of the Disclosure Schedule lists (i) all Company patents, patent applications, trademarks, trademark applications, service marks, service mark applications, tradenames, and copyrights and (ii) all agreements, understandings, instruments or contracts to which the Company is a party or by which it is bound that involve the license of any patent, copyright, trademark, trade secret or other proprietary right to or from the Company. The Company has not embedded any open source, copyleft or community source code in any of its products generally available or in development, including but not limited to any libraries or code licensed under any General Public License, Lesser General Public License or similar license arrangement.

2.10          Compliance with Other Instruments and Law. The Company is not in violation or default (i) of any provisions of its Restated Certificate or Bylaws, (ii) of any instrument, judgment, order, writ or decree, (iii) under any note, indenture or mortgage, (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound that is required to be listed on the Disclosure Schedule, or (v) of any provision of federal or state statute, rule or regulation applicable to the Company, the violation of which would have a Material Adverse Effect. The execution, delivery and performance of the Transaction Agreements and the consummation of the transactions contemplated by the Transaction Agreements will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either (i) a default under any such provision, instrument, judgment, order, writ, decree, contract or agreement; or (ii) an event which results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to the Company.

2.11          Agreements; Actions.

(a)               Except for the Transaction Agreements and as provided on the Disclosure Schedules, there are no agreements, understandings, instruments, contracts or proposed transactions to which the Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 per annum, (ii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other Person that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iii) indemnification by the Company with respect to infringements of proprietary rights.

(b)               The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $25,000 or in excess of $50,000 in the aggregate, (iii) made any loans or advances to any Person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. For the purposes of (b) and (c) of this Subsection 2.11, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same Person (including Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection.

(c)               The Company is not a guarantor or indemnitor of any indebtedness of any other Person.

2.12          Certain Transactions.

(a)               Other than (i) standard employee benefits generally made available to all employees, (ii) standard director and officer indemnification agreements approved by the Board of Directors, and (iii) the issuance of options to purchase shares of the Company’s Common Stock, in each instance, approved in the written minutes of the Board of Directors (previously provided to the Purchasers or their counsel), there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, consultants or Key Employees, or any Affiliate thereof.

(b)               The Company is not indebted, directly or indirectly, to any of its directors, officers or employees or to their respective spouses or children or to any Affiliate of any of the foregoing, other than in connection with expenses or advances of expenses incurred in the ordinary course of business or employee relocation expenses and for other customary employee benefits made generally available to all employees. None of the Company’s directors, officers or employees, or any members of their immediate families, or any Affiliate of the foregoing are, directly or indirectly, indebted to the Company, or, to the Company’s knowledge, have any (i) material commercial, industrial, banking, consulting, legal, accounting, charitable or familial relationship with any of the Company’s customers, suppliers, service providers, joint venture partners, licensees and competitors, (ii) direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation which competes with the Company except that directors, officers, employees or stockholders of the Company may own stock in (but not exceeding two percent (2%) of the outstanding capital stock of) publicly traded companies that may compete with the Company; or (iii) financial interest in any material contract with the Company.

2.13          Rights of Registration and Voting Rights. Except as provided in the Investors’ Rights Agreement, the Company is not under any obligation to register under the Securities Act any of its currently outstanding securities or any securities issuable upon exercise or conversion of its currently outstanding securities. To the Company’s knowledge, except as contemplated in the Voting Agreement, no stockholder of the Company has entered into any agreements with respect to the voting of shares of the Company’s capital stock.

2.14          Property. The property and assets that the Company owns are free and clear of all mortgages, deeds of trust, liens, loans and encumbrances, except for statutory liens for the payment of current taxes that are not yet delinquent and encumbrances and liens that arise in the ordinary course of business and do not materially impair the Company’s ownership or use of such property or assets. With respect to the property and assets it leases, the Company is in compliance with such leases and holds a valid leasehold interest free of any liens, claims or encumbrances other than those of the lessors of such property or assets. The Company does not own any real property.

2.15          Financial Statements.

(a)       The Company has delivered to the Investors its audited financial statements as of and for the periods ended December 31, 2019 and December 31, 2020 (the “Company Financial Statements”). The Company Financial Statements have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) and the Company Financial Statements fairly present in all material respects the financial condition and operating results of the Company as of the date thereof.

(b)       The Company has delivered to the Investors its unaudited balance sheet as of June 30, 2021, (the “Interim Balance Sheet”). The Interim Balance Sheet has been prepared in accordance with GAAP applied on a consistent basis throughout the period indicated, and the Interim Balance Sheet fairly presents in all material respects the financial condition and operating results of the Company as of the date thereof, except that the Interim Balance Sheet is unaudited, does not contain footnotes, and is subject to nonrecurring year-end adjustments resulting upon audit of the Company, which adjustments in the aggregate will not be material to the financial condition of the Company. Except as set forth in the Interim Balance Sheet, the Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to the date of the Interim Balance Sheet, and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under GAAP to be reflected in the Interim Balance Sheet, which, in both cases, individually or in the aggregate, are not material to the financial condition or operating results of the Company. Except as set forth in the Interim Balance Sheet, the Company is not a guarantor or indemnitor of any indebtedness of any person, firm, or corporation

2.16          Changes. Since the date of the Interim Balance Sheet, there has not been:

(a)               any damage, destruction or loss, whether or not covered by insurance, that would have a Material Adverse Effect;

(b)               any waiver or compromise by the Company of a valuable right or of a material debt owed to it;

(c)               any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by the Company, except in the ordinary course of business and the satisfaction or discharge of which would not have a Material Adverse Effect;

(d)               any material change to a material contract or agreement by which the Company or any of its assets is bound or subject;

(e)               any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;

(f)                any resignation or termination of employment of any officer or Key Employee of the Company;

(g)               any mortgage, pledge, transfer of a security interest in, or lien, created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable and liens that arise in the ordinary course of business and do not materially impair the Company’s ownership or use of such property or assets;

(h)               any loans or guarantees made by the Company to or for the benefit of its employees, officers or directors, or any members of their immediate families, other than travel advances and other advances made in the ordinary course of its business;

(i)                 any declaration, setting aside or payment or other distribution in respect of any of the Company’s capital stock, or any direct or indirect redemption, purchase, or other acquisition of any of such stock by the Company;

(j)                 any sale, assignment or transfer of any Company Intellectual Property that could reasonably be expected to result in a Material Adverse Effect;

(k)               receipt of notice that there has been a loss of, or material order cancellation by, any major customer of the Company;

(l)                 to the Company’s knowledge, any other event or condition of any character, other than events affecting the economy or the Company’s industry generally, that could reasonably be expected to result in a Material Adverse Effect; or

(m)             any arrangement or commitment by the Company to do any of the things described in this Subsection 2.16.

2.17          Employee Matters.

(a)               As of the date hereof, the Company employs 10 full-time employees and no part-time employees and engages no consultants or independent contractors. The Company has made available to the Purchasers a schedule that sets forth a detailed description of all compensation, including salary, bonus, severance obligations and deferred compensation paid or payable for each officer, employee, consultant and independent contractor of the Company who is anticipated to receive compensation in excess of $100,000 for the fiscal year ending December 31, 2021.

(b)               To the Company’s knowledge, none of its employees is obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, that would materially interfere with such employee’s ability to promote the interest of the Company or that would conflict with the Company’s business. Neither the execution or delivery of the Transaction Agreements, nor the carrying on of the Company’s business by the employees of the Company, nor the conduct of the Company’s business as now conducted and as presently proposed to be conducted, will, to the Company’s knowledge, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any contract, covenant or instrument under which any such employee is now obligated.

(c)               The Company has complied in all material respects with all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification and collective bargaining. The Company has withheld and paid to the appropriate governmental entity or is holding for payment not yet due to such governmental entity all amounts required to be withheld from employees of the Company and is not liable for any arrears of wages, taxes, penalties or other sums for failure to comply with any of the foregoing.

(d)               To the Company’s knowledge, no Key Employee intends to terminate employment with the Company or is otherwise likely to become unavailable to continue as a Key Employee, nor does the Company have a present intention to terminate the employment of any of the foregoing. The employment of each employee of the Company is terminable at the will of the Company. Except as set forth in Section 2.17(d)(i) of the Disclosure Schedule or as required by law, upon termination of the employment of any such employees, no severance or other payments will become due. Except as set forth in Section 2.17(d)(ii) of the Disclosure Schedule, the Company has no policy, practice, plan or program of paying severance pay or any form of severance compensation in connection with the termination of employment services.

(e)               The Company has not made any representations regarding equity incentives to any officer, employee, director or consultant that are inconsistent with the share amounts and terms set forth in the minutes of meetings of the Company’s board of directors.

(f)                Each former employee whose employment was terminated by the Company has entered into an agreement with the Company providing for the full release of any claims against the Company or any related party arising out of such employment.

(g)               Section 2.17(g) of the Disclosure Schedule sets forth each employee benefit plan maintained, established or sponsored by the Company, or which the Company participates in or contributes to, which is subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The Company has made all required contributions and has no liability to any such employee benefit plan, other than liability for health plan continuation coverage described in Part 6 of Title I(B) of ERISA, and has complied in all material respects with all applicable laws for any such employee benefit plan.

(h)               The Company is not bound by or subject to (and none of its assets or properties is bound by or subject to) any written or oral, express or implied, contract, commitment or arrangement with any labor union, and no labor union has requested or, to the knowledge of the Company, has sought to represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company pending, or to the Company’s knowledge, threatened, nor is the Company aware of any labor organization activity involving its employees.

(i)                 To the Company’s knowledge, neither any Key Employee nor any of the directors of the Company has been (a) subject to voluntary or involuntary petition under the federal bankruptcy laws or any state insolvency law or the appointment of a receiver, fiscal agent or similar officer by a court for his business or property; (b) convicted in a criminal proceeding or named as a subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (c) subject to any order, judgment or decree (not subsequently reversed, suspended, or vacated) of any court of competent jurisdiction permanently or temporarily enjoining him from engaging, or otherwise imposing limits or conditions on his engagement in any securities, investment advisory, banking, insurance, or other type of business or acting as an officer or director of a public company; or (d) found by a court of competent jurisdiction in a civil action or by the Securities and Exchange Commission or the Commodity Futures Trading Commission to have violated any federal or state securities, commodities, or unfair trade practices law, which such judgment or finding has not been subsequently reversed, suspended, or vacated.

2.18          Tax Returns and Payments. There are no federal, state, county, local or foreign taxes due and payable by the Company which have not been timely paid. There are no accrued and unpaid federal, state, county, local or foreign taxes of the Company which are due, whether or not assessed or disputed. There have been no examinations or audits of any tax returns or reports by any applicable federal, state, local or foreign governmental agency. The Company has duly and timely filed all federal, state, county, local and foreign tax returns required to have been filed by it and there are in effect no waivers of applicable statutes of limitations with respect to taxes for any year.

2.19          Insurance. The Company has in full force and effect fire and casualty insurance policies with extended coverage, sufficient in amount (subject to reasonable deductions) to allow it to replace any of its properties that might be damaged or destroyed.

2.20          Employee Agreements. Each current and former employee, consultant and officer of the Company has executed an agreement with the Company regarding confidentiality and proprietary information substantially in the form or forms delivered to the counsel for the Purchasers (the “Confidential Information Agreements”). No Key Employee has excluded works or inventions from his or her assignment of inventions pursuant to such Key Employee’s Confidential Information Agreement. To the Company’s knowledge, no Key Employee is in violation of any agreement covered by this Section 2.20.

2.21          Permits. The Company has or will use reasonable efforts to promptly obtain all franchises, permits, licenses and any similar authority necessary for the conduct of its business. The Company is not in default in any material respect under any of such franchises, permits, licenses or other similar authority.

2.22          Corporate Documents. The Restated Certificate and Bylaws of the Company are in the form provided to the Purchasers. The copy of the minute books of the Company provided to the Purchasers contains minutes of all meetings of directors and stockholders and all actions by written consent without a meeting by the directors and stockholders since the date of incorporation and accurately reflects in all material respects all actions by the directors (and any committee of directors) and stockholders with respect to all transactions referred to in such minutes.

2.23          83(b) Elections. To the Company’s knowledge, all elections and notices under Section 83(b) of the Code have been or will be timely filed by all individuals who have acquired unvested shares of the Company’s Common Stock.

2.24          Environmental and Safety Laws. Except as would not reasonably be expected to have a Material Adverse Effect (a) the Company is and has been in compliance with all Environmental Laws; (b) there has been no release or, to the Company’s knowledge, threatened release of any pollutant, contaminant or toxic or hazardous material, substance or waste or petroleum or any fraction thereof (each a “Hazardous Substance”), on, upon, into or from any site currently or heretofore owned, leased or otherwise occupied by the Company; (c) there have been no Hazardous Substances generated by the Company that have been disposed of or come to rest at any site that has been included in any published U.S. federal, state or local “superfund” site list or any other similar list of hazardous or toxic waste sites published by any governmental authority in the United States; and (d) there are no underground storage tanks located on, no polychlorinated biphenyls (“PCBs”) or PCB-containing equipment used or stored on, and no hazardous waste as defined by the Resource Conservation and Recovery Act, as amended, stored on, any site owned or operated by the Company, except for the storage of hazardous waste in compliance with Environmental Laws. The Company has made available to the Purchasers true and complete copies of all material environmental records, reports, notifications, certificates of need, permits, pending permit applications, correspondence, engineering studies and environmental studies or assessments. For purposes of this Section 2.22, “Environmental Laws” means any law, regulation, or other applicable requirement relating to (a) releases or threatened release of Hazardous Substance; (b) pollution or protection of employee health or safety, public health or the environment; or (c) the manufacture, handling, transport, use, treatment, storage, or disposal of Hazardous Substances.

2.25          Disclosure. The Company has made available to the Purchasers all the information reasonably available to the Company that the Purchasers have requested for deciding whether to acquire the Shares, including certain of the Company’s projections describing its proposed business plan (the “Business Plan”). No representation or warranty of the Company contained in this Agreement, as qualified by the Disclosure Schedule, and no certificate furnished or to be furnished to Purchasers at the Initial Closing contains any untrue statement of a material fact or, to the Company’s knowledge, omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. The Business Plan was prepared in good faith; however, the Company does not warrant that it will achieve any results projected in the Business Plan. It is understood that this representation is qualified by the fact that the Company has not delivered to the Purchasers, and has not been requested to deliver, a private placement or similar memorandum or any written disclosure of the types of information customarily furnished to purchasers of securities.

2.26          Data Privacy. In connection with its collection, storage, transfer (including, without limitation, any transfer across national borders) and/or use of any personally identifiable information from any individuals, including, without limitation, any customers, prospective customers, employees and/or other third parties (collectively “Personal Information”), the Company is and has been, to the Company’s knowledge, in compliance with all applicable laws in all relevant jurisdictions, the Company’s privacy policies and the requirements of any contract or codes of conduct to which the Company is a party. The Company has commercially reasonable physical, technical, organizational and administrative security measures and policies in place to protect all Personal Information collected by it or on its behalf from and against unauthorized access, use and/or disclosure. The Company is and has been, to the Company’s knowledge, in compliance in all material respects with all laws relating to data loss, theft and breach of security notification obligations.

3.                  Representations, Warranties and Covenants of the Purchasers. Each Purchaser, or the funds for which it serves as nominee, hereby represents and warrants to the Company, severally and not jointly, that:

3.1              Authorization. The Purchaser has full power and authority to enter into the Transaction Agreements. The Transaction Agreements to which the Purchaser is a party, when executed and delivered by the Purchaser, will constitute valid and legally binding obligations of the Purchaser, enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, or (b) to the extent the indemnification provisions contained in the Investors’ Rights Agreement may be limited by applicable federal or state securities laws.

3.2              Purchase Entirely for Own Account. This Agreement is made with the Purchaser in reliance upon the Purchaser’s representation to the Company, which by the Purchaser’s execution of this Agreement, the Purchaser hereby confirms, that the Shares to be acquired by the Purchaser will be acquired for investment for the Purchaser’s own account, not as a nominee or agent (except as set forth on the signature page of a Purchaser hereto), and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, the Purchaser further represents that the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to any of the Shares. If an entity, the Purchaser has not been formed for the specific purpose of acquiring the Shares.

3.3              Disclosure of Information. The Purchaser has had an opportunity to discuss the Company’s business, management, financial affairs and the terms and conditions of the offering of the Shares with the Company’s management and review the Company’s facilities, and the Company has made available to the Purchaser all information reasonably available to the Company that the Purchaser has requested for deciding whether to acquire the Shares. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Purchasers to rely thereon.

3.4              Restricted Securities. The Purchaser understands that the Shares have not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchaser’s representations as expressed herein. The Purchaser understands that the Shares are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser must hold the Shares indefinitely unless they are registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that the Company has no obligation to register or qualify the Shares, or the shares of Common Stock into which they may be converted, for resale except as set forth in the Investors’ Rights Agreement. The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares, and on requirements relating to the Company which are outside of the Purchaser’s control, and which the Company is under no obligation and may not be able to satisfy.

3.5              No Public Market. The Purchaser understands that no public market now exists for the Shares, and that the Company has made no assurances that a public market will ever exist for the Shares.

3.6              Legends. The Purchaser understands that the Shares and any securities issued in respect of or exchange for the Shares, may be notated with one or all of the following legends:

(a)               “THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.”

(b)               Any legend set forth in, or required by, the other Transaction Agreements.

(c)               Any legend required by the securities laws of any state to the extent such laws are applicable to the Shares represented by the certificate, instrument, or book entry so legended.

3.7              Accredited Investor. The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.

3.8              Foreign Investors. If the Purchaser is not a United States person (as defined by Section 7701(a)(30) of the Code), the Purchaser hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Shares or any use of this Agreement, including (a) the legal requirements within its jurisdiction for the purchase of the Shares, (b) any foreign exchange restrictions applicable to such purchase, (c) any governmental or other consents that may need to be obtained, and (d) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Shares. The Purchaser’s subscription and payment for and continued beneficial ownership of the Shares will not violate any applicable securities or other laws of the Purchaser’s jurisdiction.

3.9              No General Solicitation. Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including, through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer and sale of the Shares.

3.10          Exculpation Among Purchasers. The Purchaser acknowledges that it is not relying upon any Person, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. The Purchaser agrees that neither any Purchaser nor the respective controlling Persons, officers, directors, partners, agents, or employees of any Purchaser shall be liable to any other Purchaser for any action heretofore taken or omitted to be taken by any of them in connection with the purchase of the Shares.

3.11          Residence. If the Purchaser is an individual, then the Purchaser resides in the state or province identified in the address of the Purchaser set forth on Exhibit A; if the Purchaser is a partnership, corporation, limited liability company or other entity, then the office or offices of the Purchaser in which it has its principal place of business is at the address or addresses of the Purchaser set forth on Exhibit A.

4.                  Conditions to the Purchasers’ Obligations at Initial Closing. The obligations of each Purchaser to purchase Shares at the Closing are subject to the fulfillment, on or before such Closing, of each of the following conditions, unless otherwise waived:

4.1              Representations and Warranties. The representations and warranties of the Company contained in Section 2 shall be true and correct in all respects as of such Closing.

4.2              Performance. The Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before such Closing.

4.3              Compliance Certificate. The President of the Company shall deliver to the Purchasers at the Initial Closing a certificate certifying that the conditions specified in Subsections 4.1 and 4.2 have been fulfilled.

4.4              Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be obtained and effective as of such Closing.

4.5       Board of Directors. As of the Initial Closing (or immediately thereafter), the authorized number of directors to the Board shall be five (5) and the following individuals shall be directors of the Company: Jigar Choksey, Paul Conley, Tom Isett, Isaac Bright, and Jean Viret.

4.5              Indemnification Agreements. The Company shall have executed and delivered an Indemnification Agreement to Tom Isett.

4.6              Investors’ Rights Agreement. The Company and each Purchaser shall have executed and delivered the Investors’ Rights Agreement.

4.7              Right of First Refusal and Co-Sale Agreement. The Company, each Purchaser, and the other stockholders of the Company named as parties thereto shall have executed and delivered the Right of First Refusal and Co-Sale Agreement.

4.8              Voting Agreement. The Company, each Purchaser (other than the Purchaser relying upon this condition to excuse such Purchaser’s performance hereunder), and the other stockholders of the Company named as parties thereto shall have executed and delivered the Voting Agreement.

4.9              Restated Certificate. The Company shall have filed the Restated Certificate with the Secretary of State of the State of Delaware on or prior to the Closing, which shall continue to be in full force and effect as of the Closing.

4.10          Secretary’s Certificate. The Secretary of the Company shall have delivered to the Purchasers at the Closing a certificate certifying (a) the Bylaws of the Company, (b) resolutions of the Board of Directors of the Company approving the Transaction Agreements and the transactions contemplated under the Transaction Agreements, and (c) resolutions of the stockholders of the Company approving the Restated Certificate.

4.11          Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to each Purchaser, and each Purchaser (or its counsel) shall have received all such counterpart original and certified or other copies of such documents as reasonably requested. Such documents shall include good standing certificates.

5.                  Conditions of the Company’s Obligations at the Initial Closing. The obligations of the Company to sell Shares to the Purchasers at each Closing are subject to the fulfillment, on or before the Initial Closing, of each of the following conditions, unless otherwise waived:

5.1              Representations and Warranties. The representations and warranties of each Purchaser contained in Section 3 shall be true and correct in all respects as of such Closing.

5.2              Performance. The Purchasers shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by them on or before such Closing.

5.3              Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be obtained and effective as of the Closing.

5.4              Investors’ Rights Agreement. Each Purchaser shall have executed and delivered the Investors’ Rights Agreement.

5.5              Right of First Refusal and Co-Sale Agreement. Each Purchaser and the other stockholders of the Company named as parties thereto shall have executed and delivered the Right of First Refusal and Co-Sale Agreement.

5.6              Voting Agreement. Each Purchaser and the other stockholders of the Company named as parties thereto shall have executed and delivered the Voting Agreement.

6.                  Miscellaneous.

6.1              Survival of Warranties. Unless otherwise set forth in this Agreement, the representations and warranties of the Company and the Purchasers contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing and shall in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of the Purchasers or the Company.

6.2              Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

6.3              Governing Law. This Agreement shall be governed by the internal law of the State of Delaware.

6.4              Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

6.5              Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

6.6              Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt, or (a) personal delivery to the party to be notified, (b) when sent, if sent by e-mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on the signature page or Exhibit A, or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Subsection 6.6. If notice is given to the Company, a copy (which shall not constitute notice) shall also be sent to Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402, Attention: Brian G. Moore.

6.7              No Finder’s Fees. Each party represents that it neither is nor will be obligated for any finder’s fee or commission in connection with this transaction. Each Purchaser agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which each Purchaser or any of its officers, employees or representatives is responsible. The Company agrees to indemnify and hold harmless each Purchaser from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.

6.8              Fees and Expenses. At the Initial Closing, the Company shall pay reasonable fees and expenses incurred by iBio, Inc. in connection with the transactions contemplated by this Agreement of up to $32,500.

6.9              Amendments and Waivers. Except as set forth in Subsection 1.4 of this Agreement, any term of this Agreement may be amended, terminated or waived only with the written consent of the Company, iBio, Inc., and the holders of at least a majority of the then-outstanding Shares. Any amendment or waiver effected in accordance with this Subsection 6.9 shall be binding upon the Purchasers and each transferee of the Shares (or the shares of Common Stock issuable upon conversion thereof), each future holder of all such securities, and the Company. Notwithstanding the foregoing, this Agreement shall not be amended to increase or decrease the number of Shares a Purchaser is committed to purchase hereunder (or the price to be paid for such Shares, other than any adjustment for stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) without the express written consent of such Purchaser. The Company shall give prompt notice of any amendment or waiver hereunder to any party that did not consent to such amendment or waiver.

6.10          Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision.

6.11          Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

6.12          Entire Agreement. This Agreement (including the Exhibits hereto), the Restated Certificate and the Transaction Agreements constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties are expressly canceled.

6.13          Dispute Resolution. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware) for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the above-named courts, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

Waiver of Jury Trial: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL

Each of the parties to this Agreement consents to personal jurisdiction for any equitable action sought in any federal court within the State of Delaware or any court of the State of Delaware having subject matter jurisdiction.

6.14          No Commitment for Additional Financing. The Company acknowledges and agrees that no Purchaser has made any representation, undertaking, commitment or agreement to provide or assist the Company in obtaining any financing, investment or other assistance, other than the purchase of the Shares as set forth herein and subject to the conditions set forth herein. In addition, the Company acknowledges and agrees that (a) no statements, whether written or oral (other than as provided in subsection (c) below), made by any Purchaser or its representatives on or after the date of this Agreement shall create an obligation, commitment or agreement to provide or assist the Company in obtaining any financing or investment, (b) the Company shall not rely on any such statement by any Purchaser or its representatives and (c) an obligation, commitment or agreement to provide or assist the Company in obtaining any financing or investment may only be created by a written agreement, signed by such Purchaser and the Company, setting forth the terms and conditions of such financing or investment and stating that the parties intend for such writing to be a binding obligation or agreement. Each Purchaser shall have the right, in its sole and absolute discretion, to refuse or decline to participate in any other financing of or investment in the Company, and shall have no obligation to assist or cooperate with the Company in obtaining any financing, investment or other assistance.

[Signature pages follow]

IN WITNESS WHEREOF, the parties have executed this Series A-2 Preferred Stock Purchase Agreement as of the date first written above.

Signature Page to Stock Purchase Agreement

Signature Page to Stock Purchase Agreement

Exhibit 10.4

Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. [***] indicates that information has been redacted.

RUBRYC THERAPEUTICS, INC.

SECOND AMENDED AND RESTATED

INVESTORS’ RIGHTS AGREEMENT

Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. [***] indicates that information has been redacted.

TABLE OF CONTENTS

Page

Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. [***] indicates that information has been redacted.

SECOND AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT

THIS SECOND AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (this “Agreement”) is made as of August 23, 2021, by and among RubrYc Therapeutics, Inc., a Delaware corporation (the “Company”), and each of the investors listed on Schedule A hereto, each of which is referred to in this Agreement as an “Investor”, and any additional Investor that becomes a party to this Agreement in accordance with Subsection 6.9 hereof.

RECITALS

WHEREAS, iBio, Inc. (“iBio”), an Investor, is purchasing shares of the Company’s Series A-2 Preferred Stock (“Series A-2 Preferred Stock”) pursuant to that certain Series A-2 Preferred Stock Purchase Agreement of even date herewith (the “Purchase Agreement”);

WHEREAS, the obligations in the Purchase Agreement are conditioned upon the execution and delivery of this Agreement;

WHEREAS, certain of the Investors (the “Prior Investors”) are holders of the Company’s Series A Preferred Stock, par value $0.01 (the “Series A Preferred Stock” and along with the Series A-2 Preferred Stock and the Founder Series Preferred Stock (as defined herein), the “Preferred Stock”);

WHEREAS, the Prior Investors and the Company are parties to an Amended and Restated Investors’ Rights Agreement dated July 31, 2020 (the “Prior Agreement”);

WHEREAS, the parties to the Prior Agreement desire to amend and restate the Prior Agreement in its entirety and accept the rights and covenants hereof in lieu of their rights and covenants under the Prior Agreement; and

WHEREAS, the parties desire to enter into this Agreement in order to grant registration, information rights and other rights to the Investors as set forth below;

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.                  Definitions. For purposes of this Agreement:

1.1.            “Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including without limitation any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.

1.2.            “Certificate of Incorporation” means the Company’s Certificate of Incorporation, as amended from time to time.

1.3.            “Common Stock” means shares of the Company’s common stock, par value $0.0001 per share.

1.4.            “[Corporate Stockholder]” means [***]., a Delaware corporation.

1.5.            “Damages” means any loss, damage, claim or liability (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act, or other federal or state law, insofar as such loss, damage, claim or liability (or any action in respect thereof) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement of the Company, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto; (ii) an omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or (iii) any violation or alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law.

1.6.            “Derivative Securities” means any outstanding securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants.

1.7.            “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

1.8.            “Excluded Registration” means (i) a registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (ii) a registration relating to an SEC Rule 145 transaction; (iii) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (iv) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.

1.9.            “Form S-1” means such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC.

1.10.        “Form S-3” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the Company with the SEC.

1.11.        “Founder Series Preferred Stock” means shares of the Company’s Founder Series Preferred Stock, par value $0.0001 per share.

1.12.        “GAAP” means generally accepted accounting principles in the United States.

1.13.        “Holder” means any holder of Registrable Securities who is a party to this Agreement.

1.14.        “Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including, adoptive relationships, of a natural person referred to herein.

1.15.        “Initiating Holders” means, collectively, Holders who properly initiate a registration request under this Agreement.

1.16.        “IPO” means the Company’s first underwritten public offering of its Common Stock under the Securities Act.

1.17.        “Key Employees” means Isaac Bright.

1.18.        “Major Investor” means (i) any Investor that, individually or together with such Investor’s Affiliates, holds at least 1,500,000 shares of Registrable Securities (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof) and (ii) for so long as [Corporate Stockholder]and its Affiliates collectively hold at least 1,480,079 shares of the Company’s Founder Series Preferred Stock (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof), [Corporate Stockholder].

1.19.        “Material Adverse Change” means a material adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of an applicable request for registration.

1.20.        “New Securities” means, collectively, equity securities of the Company, whether or not currently authorized, as well as rights, options, or warrants to purchase such equity securities, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for such equity securities.

1.21.        “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

1.22.        “Preferred Directors” means the two (2) Series A Directors and the one (1) Series A-2 Director.

1.23.        “Preferred Stock” means, collectively, shares of the Company’s Founder Series Preferred Stock, the Series A Preferred Stock, and the Series A-2 Preferred Stock.

1.24.        “Registrable Securities” means (i) the Common Stock issuable or issued upon conversion of the Preferred Stock; (ii) any Common Stock owned by the Investors as of the date of this Agreement, (iii) any Common Stock, or any Common Stock issued or issuable (directly or indirectly) upon conversion and/or exercise of any other securities of the Company acquired by the Investors after the date hereof; and (iv) any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right, or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the shares referenced in clauses (i) through (iii) above; excluding in all cases, however, any Registrable Securities sold by a Person in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Subsection 6.1, and excluding for purposes of Section 2 any shares for which registration rights have terminated pursuant to Subsection 2.13 of this Agreement.

1.25.        “Registrable Securities then outstanding” means the number of shares determined by adding the number of shares of outstanding Common Stock that are Registrable Securities and the number of shares of Common Stock issuable (directly or indirectly) pursuant to then exercisable and/or convertible securities that are Registrable Securities.

1.26.        “Restricted Securities” means the securities of the Company required to be notated with the legend set forth in Subsection 2.12(b) hereof.

1.27.        “SEC” means the Securities and Exchange Commission.

1.28.        “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.

1.29.        “SEC Rule 145” means Rule 145 promulgated by the SEC under the Securities Act.

1.30.        “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

1.31.        “Selling Expenses” means all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements of the Selling Holder Counsel borne and paid by the Company as provided in Subsection 2.6.

1.32.        “Senior Preferred Majority” means the holders of a majority of the shares of Common Stock issued or issuable upon conversion of (i) the then outstanding shares of Series A Preferred Stock and (ii) the then outstanding shares of Series A-2 Preferred Stock, in each case held by the Major Investors (voting as a single class and on an as-converted basis).

1.33.        “Series A Director” means any director of the Company that the holders of record of the Series A Preferred Stock are entitled to elect pursuant to the Certificate of Incorporation.

1.34.        “Series A Preferred Stock” means shares of the Company’s Series A Preferred Stock, par value $0.0001 per share.

1.35.        “Series A-2 Director” means any director of the Company that iBio is entitled to elect pursuant to the Certificate of Incorporation.

1.36.        “Series A-2 Preferred Stock” means shares of the Company’s Series A-2 Preferred Stock, par value $0.0001 per share.

2.                  Registration Rights. The Company covenants and agrees as follows:

2.1.            Demand Registration.

(a)               Form S-1 Demand. If at any time after the earlier of (i) three (3) years after the date of this Agreement or (ii) one hundred eighty (180) days after the effective date of the registration statement for the IPO, the Company receives a request from Senior Preferred Majority that the Company file a Form S-1 registration statement with respect to the outstanding Registrable Securities of such Holders having an anticipated aggregate offering price of at least $10 million, then the Company shall (x) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and (y) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsections 2.1(c) and 2.3.

(b)               Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Preferred Series Majority that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price of at least $2.0 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsections 2.1(c) and 2.3.

(c)               Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to this Subsection 2.1 a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Company’s Board of Directors it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than ninety (90) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than once in any twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such one hundred twenty (120) day period other than an Excluded Registration.

(d)               The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a): (i) during the period that is ninety (90) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Subsection 2.1(a); or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(b): (x) during the period that is ninety (90) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (y) if the Company has effected two registrations pursuant to Subsection 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration and elect not to pay the registration expenses therefor, in which case such withdrawn registration statement (unless such withdraw or election not to pay the registration therefor is as a result of a Material Adverse Change) shall be counted as “effected” for purposes of this Subsection 2.1(d).

2.2.            Company Registration. If the Company proposes to register (including, for this purpose, a registration effected by the Company for stockholders other than the Holders) any of its Common Stock under the Securities Act in connection with the public offering of such securities solely for cash (other than in an Excluded Registration), the Company shall, at such time, promptly give each Holder notice of such registration. Upon the request of each Holder given within twenty (20) days after such notice is given by the Company, the Company shall, subject to the provisions of Subsection 2.3, cause to be registered all of the Registrable Securities that each such Holder has requested to be included in such registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Subsection 2.2 before the effective date of such registration, whether or not any Holder has elected to include Registrable Securities in such registration. The expenses (other than Selling Expenses) of such withdrawn registration shall be borne by the Company in accordance with Subsection 2.6.

2.3.            Underwriting Requirements.

(a)               If, pursuant to Subsection 2.1, the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Subsection 2.1, and the Company shall include such information in the Demand Notice. The underwriter(s) will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Subsection 2.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of Registrable Securities held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares.

(b)               In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Subsection 2.2, the Company shall not be required to include any of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of the underwriting as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriters in their sole discretion determine will not jeopardize the success of the offering by the Company. If the total number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters and the Company in their sole discretion determine will not jeopardize the success of the offering. If the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Holders in proportion (as nearly as practicable to) the number of Registrable Securities owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares. Notwithstanding the foregoing, in no event shall (i) the number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering, or (ii) the number of Registrable Securities included in the offering be reduced below thirty percent (30%) of the total number of securities included in such offering, unless such offering is the IPO, in which case the selling Holders may be excluded further if the underwriters make the determination described above and no other stockholder’s securities are included in such offering. For purposes of the provision in this Subsection 2.3(b) concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation, the partners, members, retired partners, retired members, stockholders, and Affiliates of such Holder, or the estates and Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate number of Registrable Securities owned by all Persons included in such “selling Holder,” as defined in this sentence.

(c)               For purposes of Subsection 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Subsection 2.3(a), fewer than one hundred percent (100%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included.

2.4.            Obligations of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:

(a)               prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective and, upon the request of the Holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for a period of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated in the registration statement has been completed; provided, however, that (i) such one hundred twenty (120) day period shall be extended for a period of time equal to the period the Holder refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of any registration of Registrable Securities on Form S-3 that are intended to be offered on a continuous or delayed basis, subject to compliance with applicable SEC rules, such one hundred twenty (120) day period shall be extended for up to sixty (60) days, if necessary, to keep the registration statement effective until all such Registrable Securities are sold;

(b)               prepare and file with the SEC such amendments and supplements to such registration statement, and the prospectus used in connection with such registration statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement;

(c)               furnish to the selling Holders such numbers of copies of a prospectus, including a preliminary prospectus, as required by the Securities Act, and such other documents as the Holders may reasonably request in order to facilitate their disposition of their Registrable Securities;

(d)               use its commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the selling Holders; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;

(e)               in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering;

(f)                use its commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed;

(g)               provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;

(h)               promptly make available for inspection by the selling Holders, any managing underwriter(s) participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents, and properties of the Company, and cause the Company’s officers, directors, employees, and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant, or agent, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith;

(i)                 notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed; and

(j)                 after such registration statement becomes effective, notify each selling Holder of any request by the SEC that the Company amend or supplement such registration statement or prospectus.

In addition, the Company shall ensure that, at all times after any registration statement covering a public offering of securities of the Company under the Securities Act shall have become effective, its insider trading policy shall provide that the Company’s directors may implement a trading program under Rule 10b5-1 of the Exchange Act.

2.5.            Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably required to effect the registration of such Holder’s Registrable Securities.

2.6.            Expenses of Registration. All expenses (other than Selling Expenses) incurred in connection with registrations, filings, or qualifications pursuant to Section 2, including all registration, filing, and qualification fees; printers’ and accounting fees; fees and disbursements of counsel for the Company; and the reasonable fees and disbursements, not to exceed $20,000, of one counsel for the selling Holders (“Selling Holder Counsel”), shall be borne and paid by the Company; provided, however, that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Subsection 2.1 if the registration request is subsequently withdrawn at the request of the Holders of a majority of the Registrable Securities to be registered (in which case all selling Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration), unless the Holders of a majority of the Registrable Securities agree to forfeit their right to one registration pursuant to Subsections 2.1(a) or 2.1(b), as the case may be; provided further that if, at the time of such withdrawal, the Holders shall have learned of a Material Adverse Change and have withdrawn the request with reasonable promptness after learning of such information then the Holders shall not be required to pay any of such expenses and shall not forfeit their right to one registration pursuant to Subsections 2.1(a) or 2.1(b). All Selling Expenses relating to Registrable Securities registered pursuant to this Section 2 shall be borne and paid by the Holders pro rata on the basis of the number of Registrable Securities registered on their behalf.

2.7.            Delay of Registration. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.

2.8.            Indemnification. If any Registrable Securities are included in a registration statement under this Section 2:

(a)               To the extent permitted by law, the Company will indemnify and hold harmless each selling Holder, and the partners, members, officers, directors, and stockholders of each such Holder; legal counsel and accountants for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Damages, and the Company will pay to each such Holder, underwriter, controlling Person, or other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Subsection 2.8(a) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable for any Damages to the extent that they arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of any such Holder, underwriter, controlling Person, or other aforementioned Person expressly for use in connection with such registration.

(b)               To the extent permitted by law, each selling Holder, severally and not jointly, will indemnify and hold harmless the Company, and each of its directors, each of its officers who has signed the registration statement, each Person (if any), who controls the Company within the meaning of the Securities Act, legal counsel and accountants for the Company, any underwriter (as defined in the Securities Act), any other Holder selling securities in such registration statement, and any controlling Person of any such underwriter or other Holder, against any Damages, in each case only to the extent that such Damages arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of such selling Holder expressly for use in connection with such registration; and each such selling Holder will pay to the Company and each other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Subsection 2.8(b) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; and provided further that in no event shall the aggregate amounts payable by any Holder by way of indemnity or contribution under Subsections 2.8(b) and 2.8(d) exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of fraud or willful misconduct by such Holder.

(c)               Promptly after receipt by an indemnified party under this Subsection 2.8 of notice of the commencement of any action (including any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Subsection 2.8, give the indemnifying party notice of the commencement thereof. The indemnifying party shall have the right to participate in such action and, to the extent the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such action. The failure to give notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Subsection 2.8 only to the extent that such failure materially prejudices the indemnifying party’s ability to defend such action.

(d)               To provide for just and equitable contribution to joint liability under the Securities Act in any case in which either: (i) any party otherwise entitled to indemnification hereunder makes a claim for indemnification pursuant to this Subsection 2.8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Subsection 2.8 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any party hereto for which indemnification is provided under this Subsection 2.8, then, and in each such case, such parties will contribute to the aggregate losses, claims, damages, liabilities, or expenses to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or allegedly untrue statement of a material fact, or the omission or alleged omission of a material fact, relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission; provided, however, that, in any such case (x) no Holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered and sold by such Holder pursuant to such registration statement, and (y) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and provided further that in no event shall a Holder’s liability pursuant to this Subsection 2.8(d), when combined with the amounts paid or payable by such Holder pursuant to Subsection 2.8(b), exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of willful misconduct or fraud by such Holder.

(e)               Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Subsection 2.8 shall survive the completion of any offering of Registrable Securities in a registration under this Section 2, and otherwise shall survive the termination of this Agreement.

2.9.            Reports Under Exchange Act. With a view to making available to the Holders the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company shall:

(a)               make and keep available adequate current public information, as those terms are understood and defined in SEC Rule 144, at all times after the effective date of the registration statement filed by the Company for the IPO;

(b)               use commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after the Company has become subject to such reporting requirements); and

(c)               furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144 (at any time after ninety (90) days after the effective date of the registration statement filed by the Company for the IPO), the Securities Act, and the Exchange Act (at any time after the Company has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after the Company so qualifies); and (ii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time after the Company has become subject to the reporting requirements under the Exchange Act) or pursuant to Form S-3 (at any time after the Company so qualifies to use such form).

2.10.        Limitations on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written consent of the Holders of a majority of the Registrable Securities then outstanding, enter into any agreement with any holder or prospective holder of any securities of the Company that would (i) allow such holder or prospective holder to include such securities in any registration unless, under the terms of such agreement, such holder or prospective holder may include such securities in any such registration only to the extent that the inclusion of such securities will not reduce the number of the Registrable Securities of the Holders that are included; or (ii) allow such holder or prospective holder to initiate a demand for registration of any securities held by such holder or prospective holder; provided that this limitation shall not apply to any additional Investor who becomes a party to this Agreement in accordance with Subsection 6.9.

2.11.        “Market Stand-off” Agreement. Each Holder hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the IPO, and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (l80) days), or such other period as may be requested by the Company or the managing underwriter to comply (and only to the extent necessary to comply) with regulatory restrictions on (1) the publication or other distribution of research reports; and (2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto), (i) lend; offer; pledge; sell; contract to sell; sell any option or contract to purchase; purchase any option or contract to sell; grant any option, right, or warrant to purchase; or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable (directly or indirectly) for Common Stock held immediately before the effective date of the registration statement for such offering, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash, or otherwise. The foregoing provisions of this Subsection 2.11 shall apply only to the IPO, shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement, or the transfer of any shares to any trust for the direct or indirect benefit of the Holder or the immediate family of the Holder, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, and shall be applicable to the Holders only if all officers and directors are subject to the same restrictions and the Company uses commercially reasonable efforts to obtain a similar agreement from all stockholders individually owning more than one percent (1%) of the Company’s outstanding Common Stock (after giving effect to conversion into Common Stock of all outstanding Preferred Stock). The underwriters in connection with such registration are intended third-party beneficiaries of this Subsection 2.11 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Holder further agrees to execute such agreements as may be reasonably requested by the underwriters in connection with such registration that are consistent with this Subsection 2.11 or that are necessary to give further effect thereto. Any discretionary waiver or termination of the restrictions of any or all of such agreements by the Company or the underwriters shall apply pro rata to all Holders subject to such agreements, based on the number of shares subject to such agreements. If any of the obligations described in this Subsection 2.11 are waived or terminated with respect to any of the securities of any such Holder, officer, director or greater than one-percent stockholder (in any such case, the “Released Securities”), the foregoing provisions shall be waived or terminated, as applicable, to the same extent and with respect to the same percentage of securities of each Holder as the percentage of Released Securities represent with respect to the securities held by the applicable Holder, officer, director or greater than one-percent stockholder.

2.12.        Restrictions on Transfer.

(a)               The Preferred Stock and the Registrable Securities shall not be sold, pledged, or otherwise transferred, and the Company shall not recognize and shall issue stop-transfer instructions to its transfer agent with respect to any such sale, pledge, or transfer, except upon the conditions specified in this Agreement, which conditions are intended to ensure compliance with the provisions of the Securities Act. A transferring Holder will cause any proposed purchaser, pledgee, or transferee of the Preferred Stock and the Registrable Securities held by such Holder to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement.

(b)               Each certificate, instrument, or book entry representing (i) the Preferred Stock, (ii) the Registrable Securities, and (iii) any other securities issued in respect of the securities referenced in clauses (i) and (ii), upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall (unless otherwise permitted by the provisions of Subsection 2.12(c)) be notated with a legend substantially in the following form:

THE SECURITIES REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN INVESTORS’ RIGHTS AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.

The Holders consent to the Company making a notation in its records and giving instructions to any transfer agent of the Restricted Securities in order to implement the restrictions on transfer set forth in this Subsection 2.12.

(c)               The holder of such Restricted Securities, by acceptance of ownership thereof, agrees to comply in all respects with the provisions of this Section 2. Before any proposed sale, pledge, or transfer of any Restricted Securities, unless there is in effect a registration statement under the Securities Act covering the proposed transaction, the Holder thereof shall give notice to the Company of such Holder’s intention to effect such sale, pledge, or transfer. Each such notice shall describe the manner and circumstances of the proposed sale, pledge, or transfer in sufficient detail and, if reasonably requested by the Company, shall be accompanied at such Holder’s expense by either (i) a written opinion of legal counsel who shall, and whose legal opinion shall, be reasonably satisfactory to the Company, addressed to the Company, to the effect that the proposed transaction may be effected without registration under the Securities Act; (ii) a “no action” letter from the SEC to the effect that the proposed sale, pledge, or transfer of such Restricted Securities without registration will not result in a recommendation by the staff of the SEC that action be taken with respect thereto; or (iii) any other evidence reasonably satisfactory to counsel to the Company to the effect that the proposed sale, pledge, or transfer of the Restricted Securities may be effected without registration under the Securities Act, whereupon the Holder of such Restricted Securities shall be entitled to sell, pledge, or transfer such Restricted Securities in accordance with the terms of the notice given by the Holder to the Company. The Company will not require such a legal opinion or “no action” letter (x) in any transaction in compliance with SEC Rule 144; or (y) in any transaction in which such Holder distributes Restricted Securities to an Affiliate of such Holder for no consideration; provided that each transferee agrees in writing to be subject to the terms of this Subsection 2.12. Each certificate, instrument, or book entry representing the Restricted Securities transferred as above provided shall be notated with, except if such transfer is made pursuant to SEC Rule 144, the appropriate restrictive legend set forth in Subsection 2.12(b), except that such certificate instrument, or book entry shall not be notated with such restrictive legend if, in the opinion of counsel for such Holder and the Company, such legend is not required in order to establish compliance with any provisions of the Securities Act.

2.13.        Termination of Registration Rights. The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Subsections 2.1 or 2.2 shall terminate upon the earliest to occur of:

(a)               the closing of a Deemed Liquidation Event, as such term is defined in the Certificate of Incorporation;

(b)               such time as SEC Rule 144 or another similar exemption under the Securities Act is available for the sale of all of such Holder’s shares without limitation during a three-month period without registration; and

(c)               the five-year anniversary of the IPO.

3.                  Information and Inspection Rights.

3.1.            Delivery of Financial Statements. The Company shall deliver to each Major Investor upon request, provided that the Board of Directors has not reasonably determined that such Major Investor is a competitor of the Company:

(a)               as soon as practicable, but in any event within 90 days after the end of each fiscal year of the Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of regionally recognized standing selected by the Company;

(b)               as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);

(c)               as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;

(d)               as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);

(e)               as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;

(f)                with respect to the financial statements called for in Subsections 3.1(a), 3.1(b) and 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsections 3.1(b) and 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and

(g)               such other information relating to the financial condition, business, prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel.

If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries.

Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.

3.2.            Inspection. The Company shall permit each Major Investor (provided that the Board of Directors has not reasonably determined that such Major Investor is a competitor of the Company), upon such Major Investor’s request and at such Major Investor’s expense, to visit and inspect the Company’s properties; examine its books of account and records; and discuss the Company’s affairs, finances, and accounts with its officers, during normal business hours of the Company as may be reasonably requested by the Major Investor; provided, however, that the Company shall not be obligated pursuant to this Subsection 3.2 to provide access to any information that it reasonably and in good faith considers to be a trade secret or confidential information or the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel.

3.3.            Termination of Information. The covenants set forth in Subsection 3.1 and Subsection 3.2 shall terminate and be of no further force or effect (i) immediately before the consummation of the IPO, (ii) when the Company first becomes subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act, or (iii) upon a Deemed Liquidation Event, as such term is defined in the Certificate of Incorporation, whichever event occurs first.

3.4.            Confidentiality. Each Investor agrees that such Investor will keep confidential and will not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any confidential information obtained from the Company pursuant to the terms of this Agreement (including notice of the Company’s intention to file a registration statement), unless such confidential information (a) is known or becomes known to the public in general (other than as a result of a breach of this Subsection 3.4 by such Investor), (b) is or has been independently developed or conceived by the Investor without use of the Company’s confidential information, or (c) is or has been made known or disclosed to the Investor by a third party without a breach of any obligation of confidentiality such third party may have to the Company; provided, however, that an Investor may disclose confidential information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company; (ii) to any prospective purchaser of any Registrable Securities from such Investor, if such prospective purchaser agrees to be bound by the provisions of this Subsection 3.4 and the Board determines such prospective purchaser is not a competitor; (iii) to any Affiliate, partner, member, stockholder, or wholly owned subsidiary of such Investor in the ordinary course of business, provided that such Investor informs such Person that such information is confidential and directs such Person to maintain the confidentiality of such information; or (iv) as may otherwise be (x) required by law, including under a judicial or governmental order or in connection with a judicial or governmental proceeding, or (y) required or requested under any regulation or any regulatory or supervisory authority with authority over such Investor, provided that in connection with disclosures under this subpart (iv), the Investor promptly notifies the Company of such disclosure (other than in the case of where such disclosure is made in connection with an examination by any regulatory or supervisory authority or such disclosure is not permitted by law, regulation or rule) and takes reasonable steps to minimize the extent of any such required disclosure.

4.                  Rights to Future Stock Issuances.

4.1.            Right of First Offer. Subject to the terms and conditions of this Subsection 4.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among itself and its Affiliates; provided that each such Affiliate (x) is not a competitor, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Voting Agreement and Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any competitor shall not be entitled to any rights as a Major Investor under Subsections 3.1, 3.2 and 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Major Investor holding the fewest number of Preferred Stock and any other Derivative Securities.

(a)               The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.

(b)               By notification to the Company within thirty (30) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Major Investor (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held by such Major Investor) bears to the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and other Derivative Securities then outstanding). At the expiration of such thirty (30) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Subsection 4.1(b) shall occur within the later of one hundred and twenty (120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Subsection 4.1(c).

(c)               If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Subsection 4.1(b), the Company may, during the ninety (90) day period following the expiration of the periods provided in Subsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Subsection 4.1.

(d)               The right of first offer in this Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Certificate of Incorporation); (ii) shares of Common Stock issued in the IPO; and (iii) the issuance of shares of Senior Preferred Stock to Additional Purchasers pursuant to Subsection 6.9 of the Purchase Agreement.

4.2.            Termination. The covenants set forth in Subsection 4.1 shall terminate and be of no further force or effect (i) immediately before the consummation of the IPO, or (ii) upon a Deemed Liquidation Event, as such term is defined in the Certificate of Incorporation, whichever event occurs first.

5.                  Additional Covenants.

5.1.            Insurance. The Company shall use its commercially reasonable efforts to obtain, within ninety (90) days of the date hereof, from a financially sound and reputable insurer Directors and Officers liability insurance in an amount and on terms and conditions satisfactory to the Board of Directors, and will use commercially reasonable efforts to cause such insurance to be maintained until such time as the Board of Directors determines that such insurance should be discontinued.

5.2.            Employee Agreements. The Company will cause (i) each person now or hereafter employed by it or by any subsidiary (or engaged by the Company or any subsidiary as a consultant/independent contractor) with access to confidential information and/or trade secrets to enter into a nondisclosure and proprietary rights assignment agreement; and (ii) each Key Employee to enter into a one (1) year nonsolicitation agreement. In addition, the Company shall not amend, modify, terminate, waive, or otherwise alter, in whole or in part, any of the above-referenced agreements or any restricted stock agreement between the Company and any employee, without the consent of the Board of Directors.

5.3.            Employee Stock. Unless otherwise approved by the Board of Directors, all future employees and consultants of the Company who purchase, receive options to purchase, or receive awards of shares of the Company’s capital stock after the date hereof shall be required to execute restricted stock or option agreements, as applicable, providing for (i) vesting of shares over a four (4) year period, with the first twenty-five percent (25%) of such shares vesting following twelve (12) months of continued employment or service, and the remaining shares vesting in equal monthly installments over the following thirty-six (36) months, and (ii) a market stand-off provision substantially similar to that in Subsection 2.11. In addition, unless otherwise approved by the Board of Directors, the Company shall retain a “right of first refusal” on employee transfers until the Company’s IPO and shall have the right to repurchase unvested shares at cost upon termination of employment or consulting relationship of a holder of restricted stock.

5.4.            Matters Requiring Preferred Director Approval. So long as the holders of Series A Preferred Stock are entitled to elect the Series A Directors and iBio is entitled to elect the Series A-2 Director, the Company hereby covenants and agrees with each of the Investors that it shall not, without approval of the Board of Directors, which approval must include the affirmative vote of at least two of the Preferred Directors:

(a)               make, or permit any subsidiary to make, any loan or advance to, or own any stock or other securities of, any subsidiary or other corporation, partnership, or other entity unless it is wholly owned by the Company;

(b)               make, or permit any subsidiary to make, any loan or advance to any Person, including, without limitation, any employee or director of the Company or any subsidiary, except advances and similar expenditures in the ordinary course of business or under the terms of an employee stock or option plan approved by the Board of Directors;

(c)               guarantee, directly or indirectly, or permit any subsidiary to guarantee, directly or indirectly, any indebtedness except for trade accounts of the Company or any subsidiary arising in the ordinary course of business;

(d)               make any investment inconsistent with any investment policy approved by the Board of Directors;

(e)               incur any aggregate indebtedness in excess of $250,000 that is not already included in a budget approved by the Board of Directors, other than trade credit incurred in the ordinary course of business;

(f)                enter into or be a party to any transaction with any director, officer, or employee of the Company or any “associate” (as defined in Rule 12b-2 promulgated under the Exchange Act) of any such Person;

(g)               hire, terminate, or change the compensation of the executive officers, including approving any option grants or stock awards to executive officers;

(h)               change the principal business of the Company, enter new lines of business, or exit the current line of business; or

(i)                 sell, assign, license, pledge, or encumber material technology or intellectual property, other than licenses granted in the ordinary course of business.

5.5.            Board Matters. Unless otherwise determined by the vote of a majority of the directors then in office (including the vote of at least two of the Preferred Directors), the Board of Directors shall meet at least once each calendar quarter in accordance with an agreed-upon schedule, with at least one meeting per year being held in person. The Company shall reimburse the directors for all reasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection with attending meetings of the Board of Directors. Any committee established by the Board shall include at least two of the Preferred Directors. The Company shall reimburse the Preferred Directors for all reasonable expenses incurred in the performance of services to the Company, including, without limitation, traveling to and attending meetings of the Board of Directors or its committees.

5.6.            Successor Indemnification. If the Company or any of its successors or assignees consolidates with or merges into any other Person or consummates a Sale of the Company (as such term is defined in the Voting Agreement dated as of the date of this Agreement by and among the Company and parties thereto) and is not the continuing or surviving corporation or entity of such consolidation or merger or Sale of the Company, then to the extent necessary, proper provision shall be made so that the successors, assignees or acquirer of the assets of the Company assume the obligations of the Company with respect to indemnification of members of the Board of Directors as in effect immediately before such transaction, whether such obligations are contained in the Company’s Bylaws, its Certificate of Incorporation, indemnification agreement or elsewhere, as the case may be.

5.7.            Indemnification Matters. The Company hereby acknowledges that one or more of the directors nominated to serve on the Board of Directors by the Investors (each a “Fund Director”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by one or more of the Investors and certain of their affiliates (collectively, the “Fund Indemnitors”). The Company hereby agrees (a) that it is the indemnitor of first resort (i.e., its obligations to any such Fund Director are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Fund Director are secondary), (b) that it shall be required to advance the full amount of expenses incurred by such Fund Director and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement by or on behalf of any such Fund Director to the extent legally permitted and as required by the Certificate of Incorporation or Bylaws of the Company (or any agreement between the Company and such Fund Director), without regard to any rights such Fund Director may have against the Fund Indemnitors, and, (c) that it irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against the Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Fund Indemnitors on behalf of any such Fund Director with respect to any claim for which such Fund Director has sought indemnification from the Company shall affect the foregoing and the Fund Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Fund Director against the Company.

5.8.            Termination of Covenants. The covenants set forth in this Section 5 shall terminate and be of no further force or effect (i) immediately before the consummation of the IPO, or (ii) upon a Deemed Liquidation Event, as such term is defined in the Certificate of Incorporation, whichever event occurs first.

6.                  Miscellaneous.

6.1.            Successors and Assigns. The rights under this Agreement may be assigned (but only with all related obligations) by a Holder to a transferee of Registrable Securities that (i) is an Affiliate of a Holder; (ii) is a Holder’s Immediate Family Member or trust for the benefit of an individual Holder or one or more of such Holder’s Immediate Family Members; or (iii) after such transfer, holds at least 10,000 shares of Registrable Securities (subject to appropriate adjustment for stock splits, stock dividends, combinations, and other recapitalizations); provided, however, that (x) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee and the Registrable Securities with respect to which such rights are being transferred; and (y) such transferee agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions of this Agreement, including the provisions of Subsection 2.11. For the purposes of determining the number of shares of Registrable Securities held by a transferee, the holdings of a transferee (1) that is an Affiliate or stockholder of a Holder; (2) who is a Holder’s Immediate Family Member; or (3) that is a trust for the benefit of an individual Holder or such Holder’s Immediate Family Member shall be aggregated together and with those of the transferring Holder; provided further that all transferees who would not qualify individually for assignment of rights shall have a single attorney-in-fact for the purpose of exercising any rights, receiving notices, or taking any action under this Agreement. The terms and conditions of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

6.2.            Governing Law. This Agreement shall be governed by the internal law of the State of Delaware, regardless of the laws that might otherwise govern under principles of conflicts of law.

6.3.            Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

6.4.            Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.

6.5.            Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (i) personal delivery to the party to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their addresses as set forth on Schedule A hereto, or to the principal office of the Company and to the attention of the Chief Executive Officer, in the case of the Company, or to such email address, facsimile number, or address as subsequently modified by written notice given in accordance with this Subsection 6.5. If notice is given to the Company, a copy (which shall not constitute notice) shall also be sent to Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402, Attention: Brian G. Moore.

6.6.            Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Company and the Senior Preferred Majority; provided that the Company may in its sole discretion waive compliance with Subsection 2.12(c) (and the Company’s failure to object promptly in writing after notification of a proposed assignment allegedly in violation of Subsection 2.12(c) shall be deemed to be a waiver); and provided further that any provision hereof may be waived by any waiving party on such party’s own behalf, without the consent of any other party. Notwithstanding the foregoing, this Agreement may not be amended or terminated and the observance of any term hereof may not be waived with respect to any Investor without the written consent of such Investor, unless such amendment, termination, or waiver applies to all Investors in the same fashion and without creating a disparate impact on any Investor (it being agreed that a waiver of the provisions of Section 4 with respect to a particular transaction shall be deemed to apply to all Investors in the same fashion if such waiver does so by its terms, notwithstanding the fact that certain Investors may nonetheless, by agreement with the Company, purchase securities in such transaction). The Company shall give prompt notice of any amendment or termination hereof or waiver hereunder to any party hereto that did not consent in writing to such amendment, termination, or waiver. Any amendment, termination, or waiver effected in accordance with this Subsection 6.6 shall be binding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.

6.7.            Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.

6.8.            Aggregation of Stock. All shares of Registrable Securities held or acquired by Affiliates shall be aggregated together for the purpose of determining the availability of any rights under this Agreement and such Affiliated persons may apportion such rights as among themselves in any manner they deem appropriate.

6.9.            Additional Investors. Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of the Company’s Senior Preferred Stock after the date hereof, whether pursuant to the Purchase Agreement or otherwise, any purchaser of such shares of Senior Preferred Stock may become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action or consent by the Investors shall be required for such joinder to this Agreement by such additional Investor, so long as such additional Investor has agreed in writing to be bound by all of the obligations as an “Investor” hereunder.

6.10.        Entire Agreement. This Agreement (including the Schedules and Exhibits hereto), the Certificate of Incorporation and the other Transaction Agreements (as defined in the Purchase Agreement) constitute the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled.

6.11.        Dispute Resolution. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Delaware and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Delaware or the United States District Court for the District of Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

WAIVER OF JURY TRIAL: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THE TRANSACTIONS HEREUNDER, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

Each of the parties to this Agreement consents to personal jurisdiction for any equitable action sought in the U.S. District Court for the District of Delaware or any court of the State of Delaware having subject matter jurisdiction.

6.12.        Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

6.13.        Right to Conduct Activities. The Company hereby agrees and acknowledges that [***] (together with its Affiliates, “[***]”) is a professional investment fund, and as such invests in numerous portfolio companies, some of which may be deemed competitive with the Company’s business (as currently conducted or as currently propose to be conducted). The Company hereby agrees that, to the extent permitted under applicable law, [***] shall not be liable to the Company for any claim arising out of, or based upon, (i) the investment by [***] in any entity competitive with the Company, or (ii) actions taken by any partner, officer or other representative of [***] to assist any such competitive company, whether or not such action was taken as a member of the board of directors of such competitive company or otherwise, and whether or not such action has a detrimental effect on the Company; provided, however, that the foregoing shall not relieve (x) any of the Investors from liability associated with the unauthorized disclosure of the Company’s confidential information obtained pursuant to this Agreement, or (y) any director or officer of the Company from any liability associated with his or her fiduciary duties to the Company.

[Signature pages follow]

IN WITNESS WHEREOF, the parties have executed this Second Amended and Restated Investors’ Rights Agreement as of the date first written above.

[Signature Page to Second Amended and Restated Investors’ Rights Agreement]

IN WITNESS WHEREOF, the parties have executed this Second Amended and Restated Investors’ Rights Agreement as of the date first written above.

[Signature Page to Second Amended and Restated Investors’ Rights Agreement]

IN WITNESS WHEREOF, the parties have executed this Second Amended and Restated Investors’ Rights Agreement as of the date first written above.

[Signature Page to Second Amended and Restated Investors’ Rights Agreement]

IN WITNESS WHEREOF, the parties have executed this Second Amended and Restated Investors’ Rights Agreement as of the date first written above.

[Signature Page to Second Amended and Restated Investors’ Rights Agreement]

IN WITNESS WHEREOF, the parties have executed this Second Amended and Restated Investors’ Rights Agreement as of the date first written above.

[Signature Page to Second Amended and Restated Investors’ Rights Agreement]

IN WITNESS WHEREOF, the parties have executed this Second Amended and Restated Investors’ Rights Agreement as of the date first written above.

[Signature Page to Second Amended and Restated Investors’ Rights Agreement]

Exhibit 10.5

Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. [***] indicates that information has been redacted.

RUBRYC THERAPEUTICS, INC.

SECOND AMENDED AND RESTATED

VOTING AGREEMENT

Exhibit 10.6

Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. [***] indicates that information has been redacted.

RUBRYC THERAPEUTICS, INC.

SECOND AMENDED AND RESTATED

RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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