UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 12, 2006
INFINITY PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in Charter)
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Delaware
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000-31141
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33-0655706
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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780 Memorial Drive, Cambridge, MA
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02139
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (617) 453-1000
Discovery Partners International, Inc., 9640 Towne Center Drive, San Diego, CA 92121
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (
see
General Instruction A.2. below):
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Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement
Background
On September 12, 2006,
Discovery Partners International, Inc. (“Discovery Partners”) completed its business combination with Infinity Pharmaceuticals, Inc. (“IPI”), in accordance with the terms of the Agreement and Plan of Merger and Reorganization
among Discovery Partners, Darwin Corp., a wholly owned subsidiary of Discovery Partners (“Darwin Corp.”), and IPI, dated as of April 11, 2006 (the “Merger Agreement”) pursuant to which IPI became a wholly owned subsidiary of
Discovery Partners (the “Merger”). As a result of the Merger, Discovery Partners changed its name to Infinity Pharmaceuticals, Inc. (“Infinity”) and the newly-acquired wholly owned subsidiary, which was formerly known as Infinity
Pharmaceuticals, Inc., changed its name to Infinity Discovery, Inc. (“IDI”). Following the closing of the Merger, the business conducted by Infinity became the business conducted by IDI immediately prior to the Merger and the following IDI
agreements and arrangements effectively became agreements and arrangements of Infinity. Unless the context otherwise requires, all references herein to “Infinity” refer to Infinity and its wholly owned subsidiaries after the effective time
of the Merger.
Material IDI Agreements
Alliance and Collaboration Agreements
MedImmune Agreement
. On August 25, 2006, Infinity entered into a product
development and commercialization agreement (the “MedImmune Agreement”) with MedImmune, Inc. (“MedImmune”) to jointly develop and commercialize novel small molecule cancer drugs targeting Heat Shock Protein 90, or Hsp90, and the
Hedgehog cell signaling pathway. Under the terms of the MedImmune Agreement, MedImmune and Infinity will share equally, meaning 50/50, in all development and commercialization costs, as well as potential profits, from any future marketed products.
MedImmune has agreed to provide Infinity a license payment of $70 million for co-exclusive rights to the Hsp90 and Hedgehog pathway development programs. This payment will be made in two tranches of $35 million each, with the first being paid within
30 days of the effective date of the MedImmune Agreement and the second being paid on January 5, 2007. In addition, Infinity could receive to up to $430 million in milestone payments assuming that specified late-stage development and sales
objectives are achieved for products resulting from the collaboration, such that total payments to Infinity could equal $500 million.
For
each of the Hsp90 and Hedgehog pathway programs, the parties contemplate that Infinity will retain primary responsibility for discovery and preclinical development of drug candidates against these targets. MedImmune and Infinity will jointly lead
clinical development through first product approval. The parties will jointly develop a worldwide marketing and sales strategy for commercialized products, if any. MedImmune will have the initial right to market and sell such products worldwide
while Infinity has the option to co-promote any future products in the United States, contributing up to 35% of the total promotional effort.
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The parties will jointly own any invention and know-how that may be developed by either or both parties
during the term of the MedImmune Agreement which invention is directed to the development, manufacture, use or sale of an active pharmaceutical ingredient of a product or is developed in the course of performing activities under the research and
development plan. The parties will also jointly own any patent rights that claim such an invention.
The MedImmune Agreement will expire 60
years after the effective date. Either party is permitted to terminate the MedImmune Agreement with respect to a product if it believes there are safety concerns with respect to such product and the parties do not agree on the course of action to be
taken, in which case the terminating party gives up all rights in such product. Either party may opt out of a project by giving six months’ written notice to the other party. If one party gives such notice, the other party has 20 days to also
opt-out of the project in which case the parties will seek to out-license or sell the project assets or seek to otherwise maximize the value of the project. Any opting-out party is no longer obligated to perform work under the research and
development plan and marketing plans for the project, nor pay development costs for the project. The MedImmune Agreement terminates with respect to a project if both parties opt-out. If a party materially breaches the MedImmune Agreement with
respect to a project and does not cure the breach within a specified period of time, such breaching party is deemed to have opted-out of such project. If a party which opted-out of a project materially breaches the MedImmune Agreement, and does not
cure the breach within a specified period of time, such breaching party shall no longer be entitled to royalties or milestones with respect to such product.
The foregoing summary description of the MedImmune Agreement does not purport to be complete and is qualified in its entirety by reference to the MedImmune Agreement, which Infinity and/or MedImmune intends to file as
an exhibit to their respective Quarterly Reports on Form 10-Q for the quarter ended September 30, 2006.
Amgen.
On July 7,
2006, Infinity entered into a license agreement (the “Amgen Agreement”) with Amgen Inc. (“Amgen”). Pursuant to, and in accordance with the terms of, the Amgen Agreement, Infinity granted to Amgen a non-exclusive worldwide license
to use a proprietary collection of small molecules in its internal drug discovery activities. Amgen has paid Infinity a $2.5 million upfront license fee and has agreed to make milestone payments of up to an aggregate of $31.35 million for each
product that Amgen develops and successfully commercializes based upon a licensed compound, assuming that Amgen achieves specified clinical and regulatory objectives. Amgen has also agreed to make additional milestone payments of up to an aggregate
of $12.0 million for each product that Amgen develops and successfully commercializes based upon a specified subset of the licensed compounds, assuming that Amgen achieves specified clinical and regulatory objectives for those licensed compounds.
Finally, Amgen has agreed to make success payments totaling up to an aggregate of $6.0 million if Amgen achieves specified research and/or intellectual property objectives and to pay royalties on sales of any products.
The Amgen Agreement will expire upon the later of Amgen’s permanent cessation of all research and development activities under the Amgen Agreement
or the expiration of the final royalty term, unless earlier terminated. Amgen has the right to terminate the Amgen Agreement at any time upon 60 days’ prior written notice. Either party has the right to terminate the Amgen
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Agreement in connection with a material breach by the other party that remains uncured for a period of 60 days.
Novartis.
On November 16, 2004, Infinity entered into a collaboration and option agreement (the “Novartis Collaboration Agreement”)
with Novartis International Pharmaceutical Ltd. Pursuant to the Novartis Collaboration Agreement, Infinity and Novartis agreed to jointly design a collection of novel small molecules to be synthesized by Infinity using its diversity oriented
synthesis chemical technology platform. Under the Novartis Collaboration Agreement, Novartis may use the resulting compound collection in its independent drug discovery efforts. Infinity has certain rights to use the resulting compound collection in
its own drug discovery efforts, and Novartis has the option to license from Infinity on an exclusive worldwide basis specified lead compounds for further development and commercialization. In the event that Novartis exercises this option to license
specified lead compounds, it has agreed to pay Infinity milestone payments and royalties based upon net sales of certain drug products incorporating such compounds. In addition, Novartis will pay Infinity up to $10.5 million for the successful
delivery of compounds and has agreed to make milestone payments of up to an aggregate of $13.0 million for each product that Novartis develops and successfully commercializes based upon certain licensed compounds, assuming that Novartis achieves
specified clinical and regulatory objectives. In connection with the Novartis Collaboration Agreement, Novartis Pharma AG, an affiliate of Novartis, purchased a specified number of shares of IDI preferred stock which, after giving effect to the
merger, were converted into 868,499 shares of Infinity Common Stock.
The Novartis Collaboration Agreement will expire in November 2012,
unless earlier terminated or extended by mutual agreement of Infinity and Novartis. Either party may terminate the Novartis Collaboration Agreement at any time in the event of a material breach by the other party that remains uncured for a period of
90 days. Either party may also terminate the Novartis Collaboration Agreement in the event of the other party’s insolvency or bankruptcy. Novartis may terminate the Novartis Collaboration Agreement upon a sale of all or substantially all of
Infinity’s assets or a transaction that results in the change of control of Infinity. The Merger does not constitute a change of control for these purposes.
On February 24, 2006, Infinity entered into another collaboration agreement with Novartis Institutes for BioMedical Research, Inc. (the “Novartis Product Development Agreement”) to discover, develop and
commercialize drugs targeting Bcl protein family members for the treatment of a broad range of cancer indications. Under the terms of the Novartis Product Development Agreement, Infinity has granted to Novartis an exclusive, worldwide license to
research, develop and commercialize pharmaceutical products that are based upon Infinity’s proprietary Bcl inhibitors. Novartis paid Infinity $15.0 million in upfront license fees and has committed research funding of approximately $10.0
million during the initial two-year research term. The research term may be extended for up to two additional one-year terms at the discretion of Novartis, and Novartis will agree to fund additional research during any extension period in an amount
to be agreed upon. Assuming that the strategic alliance continues for its full term and specified research, development and commercialization milestones are achieved for multiple products for multiple indications, Novartis has agreed to make
milestone payments totaling over $370.0 million, such that total payments to Infinity could exceed $400.0 million. In addition, Novartis has agreed to pay Infinity royalties upon successful commercialization of any products developed under the
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alliance. In connection with the Novartis Product Development Agreement, Novartis Pharma AG purchased a specified number of shares of IDI preferred stock
which, after giving effect to the Merger, converted into 266,310 shares of Infinity Common Stock.
Pursuant to the Novartis Product
Development Agreement, Infinity and Novartis are conducting joint research to identify molecules for clinical development. Novartis will have responsibility for clinical development and commercialization of any products based upon compounds
discovered under the joint research program. However, Infinity may request to participate in clinical development and if such request is agreed upon by Novartis then Novartis will fund agreed-upon development costs incurred by Infinity. Infinity
also has a non-exclusive right to detail Bcl-2 family inhibitor products in the United States, with Infinity’s detailing costs to be reimbursed by Novartis.
Novartis has the right to terminate the Novartis Product Development Agreement at any time upon 60 days’ prior written notice. In addition, Novartis has the right to terminate the Novartis Product Development
Agreement in connection with a material breach by Infinity that remains uncured for a period of 120 days after notice. Infinity can terminate specified programs under the Novartis Product Development Agreement as to breaches by Novartis relating
solely to such programs that remain uncured for a period of 120 days after notice or can terminate the Novartis Product Development Agreement in its entirety in connection with a material breach by Novartis that remains uncured for a period of 120
days after notice.
Johnson & Johnson.
On December 22, 2004, Infinity entered into a technology access agreement (the
“J&J Agreement”) with Johnson & Johnson Pharmaceutical Research & Development, a division of Janssen Pharmaceutica N.V. (“Johnson & Johnson”). Pursuant to the J&J Agreement, Infinity granted to
Johnson & Johnson a non-exclusive worldwide license to use certain Infinity small molecule compounds in its own drug discovery efforts. Under the terms of the J&J Agreement, Johnson & Johnson paid Infinity an upfront license
fee of $2.5 million. Additionally, Johnson & Johnson Development Corporation, an affiliate of Johnson & Johnson, purchased a specified number of shares of IDI preferred stock which, after giving effect to the Merger, converted into
579,000 shares of Infinity Common Stock. On March 2, 2006, Infinity and Johnson & Johnson amended the J&J Agreement to, among other things, allow for a reduction in the number of compounds to be delivered under the J&J
Agreement. In connection with the reduction in compounds, Infinity has agreed to refund to Johnson & Johnson a portion of the upfront license fee in proportion to the number of compounds actually delivered. Infinity expects the partial
refund of the upfront license fee to be approximately $950,000.
The J&J Agreement will expire upon Johnson & Johnson’s
permanent cessation of all research and development activities under the J&J Agreement, unless earlier terminated. Johnson & Johnson has the right to terminate the J&J Agreement at any time upon 60 days’ prior notice. In
addition, either party may terminate the J&J Agreement in the event of a material breach by the other party that remains uncured for a period of 60 days.
The foregoing description of the terms and conditions of the Amgen Agreement, the Novartis Collaboration Agreement, the Novartis Product Development Agreement and the J&J Agreement set forth herein does not
purport to be complete and is qualified in its entirety by reference to the full text of each such document attached hereto as Exhibits 10.1, 10.2, 10.3 and 10.4, respectively, and are incorporated by reference herein.
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Loan Agreements
Oxford Agreement
. On October 16, 2002, Infinity and Oxford Finance Corporation (“Oxford”) entered into a master loan and security agreement (the “Oxford Agreement”), providing for a
$5.0 million credit facility to finance the purchase of laboratory equipment, computer hardware, office furniture and equipment, computer software (including extended warranties and service contracts), and other equipment and property identified in
the collateral schedules attached to each promissory note evidencing borrowings under the Oxford Agreement. This facility was increased by an additional $500,000 during 2003. As of August 31, 2006, Infinity has no further borrowing capacity
available under the Oxford Agreement. Interest charged on borrowings under the Oxford Agreement range from 9.91% to 10.26% depending on whether the borrowings related to laboratory equipment or other equipment and when the borrowing occurred.
Borrowings for laboratory equipment are payable in 48 consecutive monthly installments of principal and accrued interest and borrowings for other equipment are payable in 36 consecutive monthly installments of principal and accrued interest. As of
August 31, 2006, there was $575,936 outstanding under the Oxford Agreement. In connection with the Oxford Agreement, Infinity issued warrants that are currently exercisable for an aggregate of 7,429 shares of Infinity Common Stock at an
exercise price of $13.35 per share, after giving effect to the Merger. The warrants expire, if not sooner exercised, on various dates between December 3, 2012 and August 29, 2013.
Pursuant to an amendment to the Oxford Agreement dated March 31, 2006 (the “Amended Oxford Agreement”), Infinity borrowed an additional
aggregate principal amount of $7.5 million from Oxford pursuant to promissory notes, dated as of March 31, 2006 and June 30, 2006 (the “Oxford Notes”). The Oxford Notes bear interest at a rate of 11.26% and 11.75% per annum,
respectively, and are payable in nine consecutive monthly installments of interest only and thereafter in 30 consecutive monthly installments of principal and accrued interest. The first installment was due and payable on May 1, 2006. Infinity
may prepay in full its entire indebtedness under the Oxford Notes by paying a prepayment penalty premium equal to the remaining principal balance on the Oxford Notes multiplied by the following percentages: (i) from the date of the Oxford Notes
until the first annual anniversary date: 4%, (ii) from the first annual anniversary date until the second annual anniversary date: 3%, (iii) from the second annual anniversary date until the third annual anniversary date: 2%, and
(iv) from the third annual anniversary date until the indebtedness under the Oxford Notes is paid in full: no premium. In connection with the Amended Oxford Agreement, Infinity issued warrants that are currently exercisable for an aggregate of
39,325 shares of Infinity Common Stock at an exercise price of $13.35 per share, after giving effect to the Merger. The warrants expire, if not sooner exercised, on various dates between March 30, 2016 and June 30, 2016.
Pursuant to the terms of the Amended Oxford Agreement, in order to secure the payment and performance by Infinity of all debts, obligations and
liabilities arising under the Oxford Notes and the Amended Oxford Agreement, Infinity granted to Oxford a security interest in and against all Collateral (as such term is defined in the Amended Oxford Agreement). As further described and defined in
the Amended Oxford Agreement, the Collateral comprises all of Infinity’s current and future personal property and fixtures wherever located including, but not limited to, all inventory, equipment, fixtures, accounts, deposit accounts,
documents, investment property, instruments, general intangibles, chattel paper and any and all proceeds therefrom. The Collateral does not include any intellectual property or interests in any intellectual property (including any royalties), but
the Amended Oxford Agreement precludes Infinty from selling, transferring, assigning or otherwise encumbering its intellectual
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property other than licenses granted in the ordinary course of business or pursuant to agreements that Infinity reasonably believes are in, or not opposed
to, its best interest.
The obligations of Infinity under the Oxford Agreement and the Amended Oxford Agreement may be accelerated upon the
occurrence of an event of default under the Oxford Agreement and the Amended Oxford Agreement, respectively, which includes customary events of default, including without limitation payment defaults, defaults in the performance of covenants and
obligations, the inaccuracy of representations or warranties and bankruptcy and insolvency related defaults.
GE Agreements
. On
December 6, 2002, Infinity and General Electric Capital Corporation (“GE”) entered into a master security agreement, as amended in December 2002 (the “GE Financing Agreement”) to finance the purchase of laboratory equipment,
computer hardware, office furniture and equipment, computer software (including extended warranties and service contracts), and other equipment and property identified in the collateral schedules attached to each promissory note evidencing
borrowings under the GE Financing Agreement. On August 11, 2004, Infinity entered into a master lease agreement (the “GE Lease Agreement”) with GE providing Infinity the ability to lease equipment and property, as more particularly
described on schedules appended from time to time to the GE Lease Agreement. The GE Financing Agreement and GE Lease Agreement are referred to herein collectively as the “GE Agreements.” The GE Agreements provide for a total combined $12.0
million credit facility to finance the acquisition of certain equipment and property. Borrowings under the GE Financing Agreement are evidenced by promissory notes appended from time to time to the GE Financing Agreement (the “GE Notes”).
The GE Notes bear interest at a fixed rate between 8% and 11% per annum and are payable in 36 consecutive monthly installments of principal and accrued interest, with the first installment having become due and payable on January 1, 2003.
Outstanding amounts under the GE Lease Agreement are payable in 30 monthly installments. Pursuant to the terms of the GE Lease Agreement, Infinity shall pay GE the sum of a stipulated loss value, as detailed on a schedule to the GE Lease Agreement,
for the costs associated with any leased equipment that becomes worn out, lost, stolen, destroyed, irreparably damaged or unusable. At the end of the lease term, Infinity has the option to purchase all (but not less than all) of any equipment leased
under the GE Lease Agreement on an as-is basis for a cash payment equal to the equipment’s then fair market value, less applicable taxes. As of August 31, 2006, there was $2,506,504 outstanding under the GE Agreements. In connection with
the GE Agreements, Infinity issued warrants that are currently exercisable for an aggregate of 13,538 shares of Infinity Common Stock at an exercise price of $13.35 per share, after giving effect to the Merger. The warrants expire, if not sooner
exercised, on various dates between January 31, 2013 and December 28, 2015.
The obligations of Infinity under the GE Agreements may be
accelerated upon the occurrence of an event of default under the GE Agreements, which includes customary events of default, including without limitation payment defaults, defaults in the performance of covenants and obligations, the inaccuracy of
representations or warranties and bankruptcy and insolvency related defaults.
Horizon Agreement
. On June 30, 2006, Infinity
and Horizon Technology Funding Company LLC (“Horizon”) entered into a venture loan and security agreement (the “Horizon
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Agreement”) pursuant to which Infinity borrowed an aggregate principal amount of $7.5 million from Horizon pursuant to the terms of two promissory
notes, each dated as of June 30, 2006 (the “Horizon Notes”). The Horizon Notes bear interest at a rate equal to 11.93% per annum and are payable in nine consecutive monthly installments of interest only and thereafter in 30
consecutive monthly installments of principal and accrued interest. The first installment was due and payable on July 1, 2006. Infinity may prepay in full its entire indebtedness under the Horizon Notes by paying a prepayment penalty premium
equal to the remaining principal balance on the Horizon Notes multiplied by the following percentages: (i) from the date of the Horizon Notes until the first annual anniversary date: 4%, (ii) from the first annual anniversary date until
the second annual anniversary date: 3%, (iii) from the second annual anniversary date until the third annual anniversary date: 2%, and (iv) from the third annual anniversary date until the indebtedness under the Horizon Notes is paid in
full: no premium. In addition, in connection with the Horizon Agreement, on June 30, 2006, Infinity issued two warrants to Horizon which are currently exercisable for 39,326 shares of Infinity Common Stock at a purchase price of $13.35 per
share. The warrants are exercisable in whole or in part at any time on or before June 30, 2016.
Pursuant the terms of the Horizon
Agreement, in order to secure the payment and performance by Infinity of all debts, obligations and liabilities arising under the Horizon Notes, Infinity granted to Horizon a security interest in all Infinity Collateral (as such term is defined in
the Horizon Agreement). As further described and defined in the Horizon Agreement, the Collateral comprises all of Infinity’s personal property and fixtures now owned or hereafter acquired and wherever located including, but not limited to, all
inventory, equipment, fixtures, accounts, deposit accounts, documents, investment property, instruments, general intangibles, chattel paper and any and all proceeds therefrom. The Collateral does not include any intellectual property, but the
Horizon Agreement precludes Infinty from selling, transferring, assigning or otherwise encumbering its intellectual property other than licenses granted in the ordinary course of business or pursuant to agreements that Infinity reasonably believes
are in, or not opposed to, its best interest.
The obligations of Infinity under the Horizon Agreement may be accelerated upon the
occurrence of an event of default under the Horizon Agreement, which includes customary events of default, including without limitation payment defaults, defaults in the performance of covenants and obligations, the inaccuracy of representations or
warranties and bankruptcy and insolvency related defaults.
The foregoing description of the terms and conditions of the Oxford Agreement
and the Amended Oxford Agreement, the Oxford Notes, the GE Agreements, the Horizon Agreement and the Horizon Notes set forth herein does not purport to be complete and is qualified in its entirety by reference to the full text of each such document
attached hereto as Exhibits 10.5, 10.6, 10.7 and 10.8, respectively, and are incorporated by reference herein.
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Director and Executive Officer Compensation Matters
Executive Officer Cash Compensation and Bonus
As of September 12, 2006, the following sets forth the estimated annual cash compensation of the executive officers of Infinity:
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Executive Officer
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2006 Annual Salary
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Steven Holtzman
Chairman, Chief Executive Officer and Assistant Secretary of Infinity
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Chief Executive Officer of IDI
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400,000
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Julian Adams
President of Infinity
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President and Chief Scientific Officer of IDI
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$
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340,000
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Adelene Perkins
Chief Financial Officer, Treasurer and Secretary of Infinity
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Executive Vice President and Chief Business Officer of IDI
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$
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295,000
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In addition, each executive officer is entitled to participate in Infinity’s bonus program,
pursuant to which all employees of Infinity, including the executive officers, may receive a stock bonus upon the achievement of company performance goals.
Employment Offer Letters
On August 1, 2001, August 19, 2003 and February 6,
2002, Infinity entered into offer letters with each of Steven Holtzman, Julian Adams and Adelene Perkins with respect to their service as officers of IDI. Each offer letter provides for the annual salary of the executive officer, which is subject to
annual adjustment based upon both individual and company performance and other factors as may be determined in the sole discretion of Infinity’s board of directors. The offer letters also provided for the grant of restricted stock awards to
purchase 750,000 shares, 750,000 shares and 450,000 shares of IDI Common Stock, $0.0001 par value per share (“IDI Common Stock”), which restricted stock awards were assumed and converted into 165,772 shares, 165,772 shares and 99,463
shares of Infinity Common Stock, respectively, at the effective time of the Merger. The shares were initially purchased by each executive at a purchase price which was determined to be the current fair market value of the IDI Common Stock at the
time of purchase. The shares are subject to a right of repurchase by Infinity at a price equal to the original purchase price, which right of repurchase lapses, or “vests,” in the case of Mr. Holtzman and Mr. Adams, as to
1/4
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of such shares on the executive’s commencement of employment with IDI and as to 1/48
th
of such shares monthly thereafter. In the case of Ms. Perkins, the shares subject to the repurchase right vested as to
16,577 shares in January 1, 2003 and vest as to all additional 2,302 shares monthly thereafter. In connection with the purchase by each of Dr. Adams and Ms. Perkins of the foregoing shares, IDI extended to each such executive officer a
loan in an amount equal to the purchase price of the restricted stock award, less the aggregate par value of the shares of restricted IDI Common Stock. In March 2006, the IDI board of directors authorized IDI to forgive the outstanding indebtedness
of Dr. Adams and Ms. Perkins, including, in the case of Dr. Adams, certain indebtedness transferred to his former spouse. See “Letter Agreements Regarding Loan Forgiveness” below.
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Mr. Holtzman’s offer letter also provides that if his employment is terminated by Infinity
without “cause,” or by Mr. Holtzman for “good reason,” each as defined in the offer letter, provided that Mr. Holtzman executes a severance agreement and release of claims, he will be eligible to receive a severance
payment in the form of salary continuation until the earlier to occur of (i) 12 months from the date of his termination or (ii) the date on which he commences work with another employer or as a consultant or independent contractor, on
either a full or part-time basis.
Each of Dr. Adams’ and Ms. Perkins’ offer letters provides that, if the executive
officer’s employment is terminated by Infinity without “cause,” as defined in the offer letter, or if the executive resigns due to a material diminution in job responsibilities or title or as a result of Infinity’s failure to
fulfill its obligations as provided in the offer letter, provided that the executive officer executes a severance agreement and release of claims, such executive officer will be eligible to receive a severance payment equal to his or her
then-current base salary for a period of six months for Dr. Adams, and 12 months for Ms. Perkins, following the effective date of termination. The offer letters also provide that the vesting of each executive officer’s then-unvested
restricted stock awards to purchase shares of Infinity Common Stock will continue for a period of 6 months for Dr. Adams, and 12 months for Ms. Perkins, from the date of termination.
The foregoing summary description of the offer letters does not purport to be complete and is qualified in its entirety by reference to the offer
letters, which are attached hereto as Exhibits 10.9, 10.10 and 10.11, respectively, and incorporated herein by reference.
Letter
Agreements Regarding Loan Forgiveness
Effective as of March 31, 2006, IDI entered into letter agreements with each of Steven
Holtzman, Julian Adams and Adelene Perkins, pursuant to which IDI agreed to forgive certain indebtedness of each executive officer (including, in the case of Dr. Adams, certain indebtedness transferred to his former spouse) in exchange for
which each executive officer agreed to subject certain shares of IDI Common Stock held by such executive officer to a right of repurchase in favor of IDI for a period of two years. Such shares of IDI Common Stock were assumed by Infinity in the
Merger and have been exchanged for shares of Infinity Common Stock. The following sets forth the amount of indebtedness of each officer that was forgiven and the number of shares of Infinity Common Stock currently subject to a right of repurchase:
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Name
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Total Amount of Principal and
Interest Forgiven
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Number of Shares of Infinity
Common Stock Subject to
Repurchase
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Steven Holtzman
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$364,874
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14,698
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Julian Adams
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$311,240
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12,488
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Adelene Perkins
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$81,154
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3,260
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The foregoing summary description of the letter agreements does not purport to be complete and is
qualified in its entirety by reference to the letter agreements, which are attached hereto as Exhibits 10.12, 10.13 and 10.14, respectively, and incorporated herein by reference.
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Compensation of Directors
The following sets forth the compensation for non-employee directors of Infinity as of the closing of the Merger:
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a $10,000 annual retainer;
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a $25,000 annual retainer for service as lead outside director;
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a $10,000 annual retainer for service as lead research and development director;
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a $10,000 annual retainer for service as chair of the audit committee;
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a $5,000 annual retainer for service as chair of the compensation committee;
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a $5,000 annual retainer for service as chair of the corporate governance committee;
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$1,500 for each board meeting attended in person;
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$500 for each board meeting attended by telephone; and
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$500 for each meeting of the audit committee, compensation committee or corporate governance committee attended in person or by telephone.
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Each non-employee director shall also be reimbursed for reasonable out-of-pocket expenses incurred in attending meetings of the board of directors or any
committee of the board of directors. No director who serves as an employee will receive compensation for services rendered as a director.
In addition to the cash compensation discussed above, non-employee directors are eligible to receive non-statutory stock options, restricted stock and other stock-based awards for Infinity Common Stock under the Discovery Partners 2000
Stock Incentive Plan which, after giving effect to the Merger has been renamed the Infinity 2000 Stock Incentive Plan (the “Plan”) as follows:
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Each non-employee director who serves on the board of directors of Infinity immediately after the closing of the Merger and each new director, on the date of his or her election to
the board of directors, will receive a non-statutory stock option to purchase 28,125 shares of Infinity Common Stock which will vest as to 9,375 of the shares on the first anniversary of the grant date and the remainder in quarterly installments of
2,343 shares beginning at the end of the first quarter thereafter, provided that the holder continues to serve as a director. However, the shares will immediately vest in full upon certain changes in control or ownership or upon the optionee’s
death or disability while a board member.
|
|
|
•
|
|
Each non-employee director serving as a director on the third anniversary of (a) the closing of the Merger, in the case of directors serving on the board of
directors immediately after the closing of the Merger, or (b) his or her election to the board, in the case of directors elected after the closing of the Merger, will receive a non-statutory stock option to purchase 5,625 shares of Infinity
Common Stock, referred to as an annual
|
11
option, on the date of the first annual meeting of stockholders following such third anniversary and on the date of each annual meeting of stockholders
thereafter. Shares of Infinity Common Stock subject to the annual option will be exercisable in equal quarterly installments of 1,406 shares beginning at the end of the first quarter after the date of grant, provided that the holder of the annual
option continues to serve as a director. However, the shares will immediately vest in full upon certain changes in control or ownership or upon the optionee’s death or disability while a board member.
|
|
•
|
|
Each non-employee director who serves in the following positions shall receive additional options to purchase shares of Infinity Common Stock in the amounts indicated below upon the
date of commencement of service in such position and upon each anniversary thereafter. Each of these grants will be exercisable in equal quarterly installments beginning at the end of the first quarter after the date of grant, provided that the
holder of such option continues to serve in the applicable position, however, the shares will immediately vest in full upon certain changes in control or ownership or upon the optionee’s death or disability while a board member:
|
|
|
|
|
|
Position
|
|
Stock Option Grant
|
|
|
|
|
Lead Outside Director
|
|
9,375 shares
|
|
|
|
|
Lead Research and Development Director
|
|
3,750 shares
|
|
|
|
|
Chair of Audit Committee
|
|
3,750 shares
|
|
|
|
|
Chair of Compensation Committee
|
|
1,875 shares
|
|
|
|
|
Chair of Corporate Governance Committee
|
|
1,875 shares
|
|
|
•
|
|
Each automatic grant will have an exercise price per share equal to the fair market value per share of Infinity Common Stock on the grant date and will have a term of 10 years,
subject to earlier termination following the optionee’s cessation of board service.
|
Other Agreements with Directors
In consideration of his or her services as a scientific advisor of Infinity, Infinity has entered into an advisory agreement with Eric
Lander dated as of May 14, 2001, as amended May 14, 2001, March 1, 2002 and December 10, 2004 and consulting agreements with Arnold Levine and Vicki Sato, each dated as of January 1, 2005, pursuant to which Infinity has
agreed to pay each director a fee of $25,000 per year, payable in equal quarterly installments, for consulting services rendered by each director to Infinity in his or her capacity as a scientific advisor. In 2005, Infinity paid each director
consulting fees of $18,747. In addition, Infinity granted to each of Dr. Levine and Dr. Sato an option to purchase 5,525 shares of Infinity Common Stock in connection with such individual’s consulting agreement, which options were
granted at an exercise price equal to the current fair market value on the date of grant and vest in equal monthly installments over a period of four years from the date of grant, subject to such individual’s continued relationship with
Infinity. It is expected that after the closing of the Merger the consulting agreements with Drs. Lander, Levine and Sato will be terminated. Thereafter, the options granted to each of Drs. Levine and Sato will continue to vest in
12
consideration for, and subject to, their service as lead research and development director and lead outside director, respectively, of Infinity after the
Merger.
The foregoing summary description of the consulting agreements does not purport to be complete and is qualified in its entirety by
reference to the advisory agreement and the consulting agreements which are attached hereto as Exhibits 10.15, 10.16 and 10.17, respectively, and incorporated herein by reference.
Assumed Options Pursuant to the Assumed Infinity 2001 Stock Incentive Plan
At the time of the Merger, Infinity assumed certain outstanding stock option and restricted stock awards held by executive officers and directors of IDI
who became executive officers and directors of Infinity at the effective time of the Merger (the “Assumed Awards”).
The Assumed
Awards were granted pursuant to the terms of the IDI 2001 Stock Incentive Plan, as amended (the “Assumed 2001 Plan”). Such Assumed Awards are subject to the terms of the Assumed 2001 Plan and, in each case, are also subject to the terms
and conditions of an incentive stock option agreement, non-qualified stock option agreement or restricted stock agreement, as the case may be, issued under the Assumed 2001 Plan.
A summary description of each of the Assumed Awards and the forms of agreements evidencing such awards are attached hereto as Exhibits 10.19, 10.20,
10.21, 10.22, 10.23, 10.24, 10.25, 10.26, 10.27, 10.28, 10.29, 10.30 and 10.31 and are incorporated herein by reference.
Amendment to Discovery
Partners 2000 Stock Incentive Plan
On September 12, 2006, at Discovery Partners’ Special Meeting of Stockholders, the
stockholders of Discovery Partners approved the following amendment to the Plan.
Effective as of immediately following the effective time
of the Merger, and after giving effect to a 1-for-4 reverse stock split of Discovery Partners stock (described below), the number of shares authorized for issuance under the Plan was increased from 6,297,374 shares to a number equal to the sum of:
|
|
•
|
|
the number of shares of Discovery Partners common stock issuable upon exercise of any Discovery Partners options with an exercise price equal to or greater than $3.00 per share,
prior to giving effect to the reverse stock split, issued and outstanding under, and the number of shares issued and outstanding and subject to a right of repurchase in favor of Discovery Partners pursuant to, the Plan as of immediately prior to the
closing of the Merger; plus
|
|
|
•
|
|
the number of shares of Infinity Common Stock issuable to holders of options to purchase IDI Common Stock assumed by Infinity, and the number of shares of Infinity
Common Stock issued to holders of IDI Common Stock issued pursuant to the assumed Infinity stock incentive plans and subject to a right of repurchase in favor
|
13
of IDI as of immediately prior to the closing of the Merger, pursuant to the Merger Agreement; plus
|
|
•
|
|
the number of shares of Infinity Common Stock available for future grant under the Plan as of immediately prior to the closing of the Merger; plus
|
|
|
•
|
|
the number of shares equal to 7% of Infinity’s “fully-diluted capitalization”, determined as of immediately following the effective time of the Merger, after giving
effect to the increase in shares reserved for issuance under the Plan.
|
Infinity’s “fully-diluted
capitalization” shall be equal to the sum of:
|
|
•
|
|
Infinity’s issued and outstanding common stock; plus
|
|
|
•
|
|
all shares of Infinity Common Stock issuable upon the exercise, exchange or conversion of any outstanding option, warrant or other right that is exercisable, exchangeable or
convertible into Infinity Common Stock, including, without limitation, any options with an exercise price equal to or greater than $3.00 per share, prior to giving effect to the reverse stock split, or other awards issued and outstanding under the
Plan, and shares of Infinity Common Stock subject to future issuance pursuant to outstanding grants of deferred issuance restricted stock of Infinity; plus
|
|
|
•
|
|
the increase in shares reserved for issuance under the Plan; plus
|
|
|
•
|
|
the shares of Infinity Common Stock IDI security holders will be entitled to received pursuant to the Merger Agreement.
|
Notwithstanding the foregoing, pursuant to the amendment, in no event will the number of shares reserved for issuance under the Plan exceed 9,700,000
shares. Such limit will be effective as of immediately following the effective time of the Merger, and therefore, will not be adjusted to give effect to the reverse stock split.
The amendment also provides that:
|
|
•
|
|
the number of shares of Infinity Common Stock available for issuance under the Plan will automatically increase on the first trading day of January each calendar year during the
term of the Plan by an amount equal to 4% of the total number of shares of Infinity Common Stock outstanding on the last trading day in December of the preceding calendar year;
|
|
|
•
|
|
the maximum number by which the share reserve may automatically increase each calendar year under the Plan will remain at 2,000,000 shares following the effective time of the
reverse stock split;
|
14
|
|
•
|
|
the maximum number of options, stock appreciation rights and stock issuances that may be granted or issued to one person under the Plan per calendar year will remain at 500,000
shares following the effective time of the reverse stock split; and
|
|
|
•
|
|
the purchase price per share, if any, for shares of Infinity Common Stock issued under the Plan, will be determined by the plan administrator.
|
The foregoing summary description of the amendment to the Plan does not purport to be complete and is qualified in its entirety by reference to the
amendment to the Plan, which is attached hereto as Exhibit 10.32, and incorporated herein by reference. The forms of incentive stock option, non-statutory stock option and restricted stock award agreements to be used for future awards to
directors and executive officers under the Plan are attached hereto as Exhibits 10.33, 10.34 and 10.35, respectively.
Lease Agreement
On July 2, 2002, Infinity entered into a lease agreement (as amended, the “Lease”) with ARE-770/784/790 Memorial
Drive, LLC (“ARE”) for the lease of office space at 770 and 790 Memorial Drive, Cambridge, Massachusetts. Currently, the total base rent under the lease is $348,627 per month, and the total base rent increases by 3% in December of each
year. The term of the Lease expires in January 2013. Infinity has two consecutive rights to extend the term of the Lease for five years under each extension, provided that Infinity provides notice to ARE nine months before the term of the Lease
expires. In connection with the Lease, Infinity issued a warrant to ARE which, after giving effect to the Merger, is currently exercisable for 33,427 shares of Infinity Common Stock at an exercise price of $13.35 per share. Pursuant to a sublease
dated as of August 24, 2004 (the “Sublease”), as amended, Infinity agreed to sublease a portion of the office space at 790 Memorial Drive to Hydra Biosciences, Inc.
The foregoing summary description of the Lease and the Sublease does not purport to be complete and is qualified in its entirety by reference to the
Lease and Sublease, which are attached as Exhibits 10.36 and 10.37, respectively, hereto and incorporated herein by reference.
Item 2.01.
Completion of Acquisition
On September 12, 2006, pursuant to the Merger Agreement, Darwin Corp. merged with and into IDI with IDI
becoming a wholly owned subsidiary of Discovery Partners, and Discovery Partners changed its name to Infinity Pharmaceuticals, Inc.
As a
result of the Merger and after giving effect to the 1-for-4 reverse stock split described below in Item 5.03, each outstanding share of IDI Common Stock and IDI preferred stock automatically converted into the right to receive shares of Infinity
Common Stock as follows:
|
|
•
|
|
each share of IDI Common Stock entitles the holder to receive 0.22103 shares of Infinity Common Stock;
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|
|
•
|
|
each share of IDI Series A preferred stock entitles the holder to receive 0.19638 shares of Infinity Common Stock;
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|
|
•
|
|
each share of IDI Series B preferred stock held by Prospect Ventures Partners and Venrock Associates and their affiliates entitles the holder to receive 0.24974 shares of Infinity
Common Stock;
|
15
|
|
•
|
|
each share of IDI Series B preferred stock held by stockholders other than Prospect Ventures Partners and Venrock Associates and their affiliates entitles the holder to receive
0.28094 shares of Infinity Common Stock;
|
|
|
•
|
|
each share of IDI Series C preferred stock entitles the holder to receive 0.26055 shares of Infinity Common Stock; and
|
|
|
•
|
|
each share of IDI Series D preferred stock entitles the holder to receive 0.26631 shares of Infinity Common Stock.
|
Each outstanding option to purchase shares of IDI Common Stock that was not exercised prior to the consummation of the Merger was assumed by Infinity at
the effective time of the Merger and became an option to purchase shares of Infinity Common Stock. Each outstanding warrant to purchase shares of IDI Series A preferred stock and Series B preferred stock that was not exercised prior to the
consummation of the Merger was assumed by Infinity at the effective time of the Merger and became a warrant to purchase shares of Infinity Common Stock. The number of shares of Infinity Common Stock subject to each assumed option and warrant was
determined by multiplying the number of shares of IDI Common Stock or IDI preferred stock that were subject to each option or warrant, as applicable, prior to the effective time of the Merger by the applicable conversion ratio specified above and
rounding that result down to the nearest whole number of shares of Infinity Common Stock. The per share exercise price for the assumed options and warrants was determined by dividing the per share exercise price of the IDI Common Stock or IDI
preferred stock subject to each option or warrant, as applicable, as in effect immediately prior to the effective time of the Merger by the applicable conversion ratio specified above and rounding that result up to the nearest whole cent.
As of the closing of the Merger, former Infinity stockholders, option holders and warrant holders owned approximately 69% of Infinity
Common Stock on a fully-diluted basis and former Discovery Partners stockholders and option holders owned approximately 31% of Infinity Common Stock on a fully-diluted basis. The issuance of the shares of Infinity Common Stock to the former
stockholders of Infinity was registered with the Securities and Exchange Commission on a Registration Statement on Form S-4 (Reg. No. 333-134438).
The full text of the Merger Agreement as well as the press release, dated September 12, 2006, announcing the completion of the acquisition, are attached as Exhibit 2.1 and Exhibit 99.1, respectively, to
this Current Report on Form 8-K and are incorporated by reference herein.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 above with respect to the Oxford
Agreement, the Amended Oxford Agreement, the Oxford Notes, the GE Agreements, the Horizon Agreement and the Horizon Notes is incorporated herein in its entirety.
16
Item 3.03. Material Modification to Rights of Security Holders.
On September 7, 2006, the board of directors of Discovery Partners adopted a new a form of stock certificate representing its common stock on and
after the effective time of the Merger. The form of stock certificate is filed as Exhibit 4.1 to this Current Report on Form 8-K and incorporated by reference herein.
Item 5.01. Change in Control of Registrant
Reference is made to Item 2.01 of this Current
Report on Form 8-K, which is incorporated into this Item 5.01 by reference.
Immediately following the closing of the Merger on
September 12, 2006, former Infinity stockholders held approximately 69% of the outstanding shares of Infinity Common Stock in the aggregate on a fully-diluted basis and former Discovery Partners stockholder held approximately 31% of Infinity
Common Stock in the aggregate on a fully-diluted basis.
As of the effective time of the Merger, all of Discovery Partners’ current
executive officers resigned from their positions as follows: Michael Venuti, Acting Chief Executive Officer and Chief Scientific Officer; Craig Kussman, Chief Financial Officer, Senior Vice President, Finance and Administration and Secretary;
Douglas Livingston, Senior Vice President, Chemistry; Richard Neale, Corporate Vice President, Business Operations and Alliances; Urs Regenass, Vice President and General Manager, Integrated Drug Discovery; and Daniel Harvey, Vice President and
General Manager, Discovery Chemistry.
Pursuant to the terms of the Merger Agreement, on September 7, 2006, the board of directors of
Discovery Partners appointed each of the following executive officers to serve, as of the effective time of the Merger: Steven Holtzman, IDI’s Chairman and Chief Executive Officer, as Infinity’s Chief Executive Officer and Assistant
Secretary, Julian Adams, IDI’s President and Chief Scientific Officer, as Infinity’s President, and Adelene Perkins, IDI’s Executive Vice President and Chief Business Officer, as Infinity’s Chief Financial Officer, Treasurer and
Secretary.
Effective as of the effective time of the Merger, Sir Colin Dollery and Alan Lewis resigned from Discovery Partners’ board
of directors and Steven Holtzman, James Tananbaum, D. Ronald Daniel, Arnold Levine, Patrick Lee, Anthony Evnin, Vicki Sato, Eric Lander and Franklin Moss, each of whom previously served as a director of IDI, were elected to Infinity’s board of
directors.
Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers
(b) Pursuant to the terms of the Merger Agreement, effective as of the effective time of the Merger, Sir Collin Dollery and Alan Lewis resigned from
Discovery Partners’ board of directors and all of Discovery Partners’ current executive officers resigned from their positions as follows: Michael Venuti, Acting Chief Executive Officer and Chief Scientific Officer; Craig Kussman, Chief
Financial Officer, Senior Vice President, Finance and Administration and Secretary; Douglas Livingston, Senior Vice President, Chemistry; Richard Neale, Corporate Vice President, Business Operations and Alliances; Urs Regenass, Vice President and
General
17
Manager, Integrated Drug Discovery; and Daniel Harvey, Vice President and General Manager, Discovery Chemistry.
(c) Reference is made to “Director and Executive Officer Compensation Matters” under Section Item 1.01 of this Current Report on Form 8-K,
which is incorporated into this Item 5.02 by reference. Pursuant to the terms of the Merger Agreement, on September 7, 2006, the board of directors of Discovery Partners appointed each of the following executive officers to serve, as of
the effective time of the Merger: Steven Holtzman, IDI’s Chairman and Chief Executive Officer, as Infinity’s Chief Executive Officer and Assistant Secretary, Julian Adams, IDI’s President and Chief Scientific Officer, as
Infinity’s President, and Adelene Perkins, IDI’s Executive Vice President and Chief Business Officer, as Infinity’s Chief Financial Officer, Treasurer and Secretary. The following is a brief biographical summary for each of
Mr. Holtzman, Dr. Adams and Ms. Perkins:
Mr. Holtzman
, age 52, was a co-founder of IDI and has served as
IDI’s Chief Executive Officer and as Chairman of the IDI board of directors since 2001. Mr. Holtzman also served as President of IDI from July 2001 to February 2006. From 1994 to 2001, Mr. Holtzman served as Chief Business Officer of
Millennium Pharmaceuticals, Inc., a publicly traded pharmaceutical company.
Mr. Adams, Ph.D.
, age 51, has served as President
of IDI since February 2006 and Chief Scientific Officer of IDI since October 2003. Prior to joining IDI, from 1999 to 2001, Dr. Adams served as Senior Vice President, Drug Discovery and Development with Millennium Pharmaceuticals, Inc.
Ms. Perkins
, age 47, has served as Executive Vice President of IDI since February 2006 and Chief Business Officer of IDI since
June 2002. Prior to joining IDI, Ms. Perkins served as Vice President of Business and Corporate Development of TransForm Pharmaceuticals, Inc., a private pharmaceutical company, from 2000 to 2002.
(d) On September 12, 2006, the following individuals were elected to the Board of Directors of Infinity: Steven Holtzman, James Tananbaum, D. Ronald
Daniel, Arnold Levine, Patrick Lee, Anthony Evnin, Vicki Sato, Eric Lander and Franklin Moss, each of whom previously served as a director of IDI. In addition, Franklin Moss, Patrick Lee and Anthony Evnin (Chairman) were appointed to the
Compensation Committee of the Board of Directors; D. Ronald Daniel and Patrick Lee were appointed to the Audit Committee of the Board of Directors; and Eric Lander and James Tananbaum (Chairman) were appointed to the Corporate Governance Committee
of the Board of Directors.
Item 5.03. Amendments to Charter and Bylaws
On April 11, 2006, the board of directors of Discovery Partners approved an amendment to Discovery Partners’ amended and restated bylaws
increasing the maximum number of directors that may constitute the entire board of directors from six to 12 directors (the “Bylaw Amendment”). The Bylaw Amendment was approved at the Special Meeting of Discovery Partners stockholders held
on September 12, 2006.
18
On September 7, 2006, the board of directors of Discovery Partners approved an amendment to
Discovery Partners’ certificate of incorporation effecting a 1-for-4 reverse stock split of the issued shares of Discovery Partners common stock (the “Reverse Stock Split Amendment”). Upon the effectiveness of the Reverse Stock Split
Amendment (the “Split Effective Time”), the issued shares of Discovery Partners common stock immediately prior to the Split Effective Time were reclassified into a smaller number of shares, such that a Discovery Partners stockholder now
owns one new share of Discovery Partners common stock for each 4 shares of issued common stock held by that stockholder immediately prior to the Split Effective Time. The Reverse Stock Split Amendment was approved at the Special Meeting of Discovery
Partners stockholders held on September 12, 2006.
On May 24, 2006, the board of directors of Discovery Partners approved an
amendment to Discovery Partners’ certificate of incorporation to change the name of the corporation from “Discovery Partners International, Inc.” to “Infinity Pharmaceuticals, Inc.” upon the consummation of the Merger (the
“Name Change Amendment”). The Name Change Amendment was approved at the Special Meeting of Discovery Partners stockholders held on September 12, 2006.
The foregoing description of the Bylaw Amendment, Reverse Stock Split Amendment and Name Change Amendment set forth herein does not purport to be complete and is qualified in its entirety by reference to the full text
of each such document attached as Exhibits 3.1, 3.2 and 3.3 of this Current Report on Form 8-K and is incorporated herein by reference.
Item 8.01. Other Events
Stock Certificate
Prior to the closing of the Merger, shares of Discovery Partners common stock were listed on the NASDAQ Global Market under the symbol “DPII.”
However, immediately following the closing of the Merger, such shares of common stock began trading on the NASDAQ Global Market under the symbol “INFI.”
Risk Factors
Infinity is filing herewith as Exhibit 99.2 certain risk factors that are relevant to
Infinity after giving effect to the consummation of the Merger.
Item 9.01. Financial Statements and Exhibits
(a) Financial Statements of Businesses Acquired
The consolidated financial statements of Infinity, including the report of the independent registered public accounting firm, Ernst & Young LLP, required by this item have not been filed on this initial Current Report on Form 8-K
but will be filed by amendment on or before November 28, 2006.
19
The unaudited consolidated financial statements of Infinity required by this item have not been filed on
this initial Current Report on Form 8-K but will be filed by amendment on or before November 28, 2006.
(b) Pro Forma Financial
Information
The pro forma financial information required by this item has not been filed on this initial Current Report on Form 8-K but
will be filed by amendment on or before November 28, 2006.
(d) Exhibits
See Exhibit Index attached hereto.
20
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
INFINITY PHARMACEUTICALS, INC.
Date: September 18, 2006
By:
/s/ A
DELENE
P
ERKINS
Adelene Perkins
Chief Financial Officer,
Treasurer and Secretary
21
EXHIBIT INDEX
|
|
|
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Exhibit No.
|
|
|
Description
|
|
2.1
|
|
|
Agreement and Plan of Merger and Reorganization, dated April 11, 2006, among Infinity Pharmaceuticals, Inc., Discovery Partners International, Inc. and Darwin Corp., filed with the Securities
and Exchange Commission on May 24, 2006 as Annex A to the Registration Statement on Form S-4 (Reg. No. 333-134438)
|
|
|
|
|
3.1
|
|
|
Amendment to Registrant’s Amended and Restated Bylaws
|
|
|
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|
3.2
|
|
|
Amendment to Registrant’s Certificate of Incorporation, effecting a 1-to-4 reverse stock split of Discovery Partners common stock
|
|
|
|
|
3.3
|
|
|
Amendment to Registrant’s Certificate of Incorporation, changing the name of the corporation from Discovery Partners International, Inc. to Infinity Pharmaceuticals,
Inc.
|
|
|
|
|
4.1
|
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|
Form of Common Stock Certificate
|
|
|
|
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10.1
|
†
|
|
License Agreement, dated as of July 7, 2006, by and between Infinity Discovery Inc. (formerly known as Infinity Pharmaceuticals, Inc.) (“IDI”) and Amgen Inc.
|
|
|
|
|
10.2
|
†
|
|
Collaboration and Option Agreement, dated as of November 16, 2004, by and between IDI and Novartis International Pharmaceutical Ltd.
|
|
|
|
|
10.3
|
†
|
|
Collaboration Agreement, dated as of February 24, 2006, by and between IDI and Novartis Institutes for BioMedical Research, Inc.
|
|
|
|
|
10.4
|
†
|
|
Collaboration and License Agreement, dated as of December 22, 2004, by and between IDI and Johnson & Johnson Pharmaceutical Research & Development, a division of
Janssen Pharmaceutica N.V., as amended by Amendment No. 1 effective as of March 2, 2006
|
|
|
|
|
10.5
|
|
|
Master Loan and Security Agreement between IDI and Oxford Finance Corporation dated October 16, 2002, as amended as of March 31, 2006, together with Promissory Notes in favor of Oxford
Finance Corporation
|
|
|
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|
10.6
|
|
|
Master Security Agreement between IDI and General Electric Capital Corporation (“GE”) dated December 6, 2002, as amended on December 6, 2002, together with Promissory Notes in favor
of GE
|
|
|
|
|
10.7
|
|
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Master Lease Agreement between IDI and GE dated as of August 11, 2004
|
|
|
|
|
|
|
Exhibit No.
|
|
|
Description
|
|
10.8
|
|
|
Venture Loan and Security Agreement between IDI and Horizon Technology Funding Company LLC (“Horizon”) dated as of June 30, 2006 together with Promissory Notes in favor of Horizon
dated as of June 30, 2006
|
|
|
|
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10.9
|
*
|
|
Offer Letter between IDI and Steven Holtzman dated as of August 1, 2001
|
|
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|
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10.10
|
*
|
|
Offer Letter between IDI and Julian Adams dated as of August 19, 2003
|
|
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10.11
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*
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Offer Letter between IDI and Adelene Perkins dated as of February 6, 2002
|
|
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10.12
|
*
|
|
Letter Agreement between IDI and Steven Holtzman dated effective as of March 31, 2006
|
|
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|
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10.13
|
*
|
|
Letter Agreement between IDI and Julian Adams dated effective as of March 31, 2006
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|
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10.14
|
*
|
|
Letter Agreement between IDI and Adelene Perkins dated effective as of March 31, 2006
|
|
|
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10.15
|
*
|
|
Advisory Agreement between IDI and Eric Lander dated as of May 14, 2001, as amended May 14, 2001, March 1, 2002 and December 10, 2004
|
|
|
|
|
10.16
|
*
|
|
Consulting Agreement between IDI and Arnold Levine dated as of January 1, 2005
|
|
|
|
|
10.17
|
*
|
|
Consulting Agreement between IDI and Vicki Sato dated as of January 1, 2005
|
|
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|
10.18
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|
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Assumed IDI 2001 Stock Incentive Plan
|
|
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10.19
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*
|
|
Form of Restricted Stock Agreement entered into with each of the directors identified on the schedule thereto
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|
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10.20
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*
|
|
Form of Nonstatutory Stock Option Agreement entered into with each of the directors identified on the schedule thereto
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|
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|
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10.21
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*
|
|
Form of Stock Restriction Agreement entered into with each of the directors identified on the schedule thereto
|
|
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10.22
|
*
|
|
Stock Restriction Agreement entered into with Franklin H. Moss on August 14, 2001
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|
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10.23
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*
|
|
Form of Restricted Stock Agreement entered into with each of the officers and directors identified on the schedule thereto
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|
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|
|
10.24
|
*
|
|
Form of Restricted Stock Agreement entered into with each of the officers and directors identified on the schedule thereto
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|
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|
|
10.25
|
*
|
|
Form of Incentive Stock Agreement entered into with each of the officers identified on the schedule thereto
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|
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10.26
|
*
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|
Restricted Stock Agreement entered into with Adelene Perkins on March 19, 2002
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10.27
|
*
|
|
Form of Nonstatutory Stock Option Agreement entered into with each of the officers identified on the schedule thereto
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|
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|
10.28
|
*
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Restricted Stock Agreement entered into with Julian Adams on October 6, 2003
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|
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10.29
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*
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Form of Restricted Stock Agreement entered into with Steven Holtzman on each of the dates specified on the schedule thereto
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10.30
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*
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Nonstatutory Stock Option Agreement entered into with Steven Holtzman on March 25, 2004
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10.31
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*
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Restricted Stock Agreement entered into with Steven Holtzman on August 14, 2001
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10.32
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Amendment No. 1 to Registrant’s 2000 Stock Incentive Plan; Amendment No. 2 to Registrant’s 2000 Stock Incentive Plan; Amendment No. 3 to Registrant’s 2000 Stock Incentive
Plan
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10.33
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Form of Incentive Stock Option Agreement under Registrant’s 2000 Stock Incentive Plan
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10.34
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Form of Nonstatutory Stock Option Agreement under Registrant’s 2000 Stock Incentive Plan
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10.35
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Form of Restricted Stock Agreement under Registrant’s 2000 Stock Incentive Plan
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Exhibit No.
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Description
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10.36
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Lease Agreement dated July 2, 2002 between IDI and ARE-770/784/790 Memorial Drive LLC (the “Lease”), as amended by First Amendment to Lease dated March 25, 2003, Second
Amendment to Lease dated April 30, 2003, Third Amendment to Lease dated October 30, 2003 and Fourth Amendment to Lease dated December 15, 2003
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10.37
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Sublease dated August 24, 2004 between IDI and Hydra Biosciences, Inc, together with Consent to Sublease dated September 16, 2004 by ARE-770/784/790 Memorial Drive LLC, IDI and Hydra
Biosciences, Inc., as amended by First Amendment to Sublease dated October 17, 2005, together with Consent to Amendment to Sublease dated as of October 31, 2005 by ARE-770/784/790 Memorial Drive LLC and Second Amendment to Sublease dated as of
January 9, 2006, together with Consent to Amendment to Sublease dated as of January 26, 2006 by ARE-770/784/790 Memorial Drive LLC, IDI and Hydra Biosciences, Inc.
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99.1
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Press Release, dated September 13, 2006
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99.2
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Risk Factors of the Registrant
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* Indicates management contract or compensatory plan
†Indicates agreement has been previously filed with the Securities and Exchange Commission on August 7, 2006 as an exhibit to the Registrant’s Registration Statement on Form S-4 (Reg.
No. 333-134438) and is being re-filed herewith. Confidential treatment has been previously granted as to certain portions, which portions have been filed separately with the Securities and Exchange Commission.
Exhibit 3.1
AMENDMENT TO BYLAWS
OF
DISCOVERY PARTNERS INTERNATIONAL, INC.
The Bylaws of
Discovery Partners International, Inc. (the “Bylaws”) are hereby amended as follows:
The fourth sentence of Article III,
Section 1 of the Bylaws shall be deleted in its entirety and replaced with the following:
“The number of Directors which shall
constitute the whole Board shall not be less than six (6) nor more than twelve (12) Directors, and the exact number shall be fixed by resolution of sixty-six and two-thirds percent (66-2/3%) of the Directors then in office or by sixty-six
and two-thirds percent (66-2/3%) of the stockholders at the annual meeting of stockholders or any special meeting of stockholders, with the number initially fixed at twelve (12).”
Except as aforesaid, the Bylaws shall remain in full force and effect.
1
Exhibit 3.2
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
DISCOVERY PARTNERS INTERNATIONAL, INC.
Pursuant to Section 242 of the General Corporation Law of the State of Delaware, Discovery Partners International, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), does
hereby certify as follows:
The name of the Corporation is Discovery Partners International, Inc. and the Corporation’s original
Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on May 11, 2000. The Board of Directors of the Corporation has duly adopted a resolution pursuant to Section 242 of the General Corporation Law of
the State of Delaware setting forth a proposed amendment to the Certificate of Incorporation of the Corporation and declaring said amendment to be advisable. The requisite stockholders of the Corporation have duly approved said proposed amendment in
accordance with Section 242 of the General Corporation Law of the State of Delaware. The amendment amends the Certificate of Incorporation of the Corporation as follows:
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|
1.
|
Section (A) of Article IV is hereby amended by adding a second and third paragraph which read as follows:
|
“Effective upon the filing of this Certificate of Amendment of Certificate of Incorporation with the Secretary of State of the State of Delaware (the
“Effective Time”), the shares of Common Stock issued and outstanding immediately prior to the Effective Time and the shares of Common Stock issued and held in the treasury of the Corporation immediately prior to the Effective Time are
reclassified into a smaller number of shares such that each two to six shares of issued Common Stock immediately prior to the Effective Time is reclassified into one share of Common Stock, the exact ratio within the two-to-six range to be determined
by the board of directors of the Corporation prior to the Effective Time and publicly announced by the Corporation. Notwithstanding the immediately preceding sentence, no fractional shares shall be issued and, in lieu thereof, upon surrender after
the Effective Time of a certificate which formerly represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time, any person who would otherwise be entitled to a fractional share of Common Stock as a
result of the reclassification, following the Effective Time, shall be entitled to receive a cash payment equal to the fraction to which such holder would otherwise be entitled multiplied by the closing price of a share of Common Stock on the NASDAQ
Global Market immediately following the Effective Time.
Each stock certificate that, immediately prior to the Effective Time, represented
shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole
shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been reclassified (as well as the right to receive cash in lieu of fractional shares of Common Stock after the
Effective Time), provided, however, that each person of record holding a certificate that represented shares of Common Stock that were issued and outstanding immediately prior to the Effective Time shall receive, upon surrender of such certificate,
a new certificate evidencing and representing the number of whole shares of Common Stock after the Effective Time into which the shares of Common Stock formerly represented by such certificate shall have been reclassified.”
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its Chief
Executive Officer this 12th day of September, 2006.
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DISCOVERY PARTNERS INTERNATIONAL, INC.
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By:
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/
S
/ M
ICHAEL
C. V
ENUTI
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Name:
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Michael C. Venuti
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Title:
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Acting CEO
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Exhibit 3.3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
DISCOVERY PARTNERS INTERNATIONAL, INC.
Pursuant to Section 242 of the General Corporation Law of the
State of Delaware, Discovery Partners International, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), does hereby certify as follows:
The name of the Corporation is Discovery Partners International, Inc. and the Corporation’s original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on May 11, 2000. The Board of Directors of the Corporation has duly adopted a resolution pursuant to Section 242 of the General Corporation Law of the State of Delaware setting forth a proposed
amendment to the Certificate of Incorporation of the Corporation and declaring said amendment to be advisable. The requisite stockholders of the Corporation have duly approved said proposed amendment in accordance with Section 242 of the
General Corporation Law of the State of Delaware. The amendment amends the Certificate of Incorporation of the Corporation as follows:
Article I is hereby deleted in its entirety and replaced with the following:
“The name of this corporation is Infinity
Pharmaceuticals, Inc.”
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its Chief
Executive Officer this 12th day of September, 2006.
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DISCOVERY PARTNERS INTERNATIONAL, INC.
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By:
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/s/ Steven H. Holtzman
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Name: Steven H. Holtzman
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Title: Chief Executive Officer
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Exhibit 4.1
Exhibit 4.1
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
(NEW YORK, NY)
TRANSFER AGENT AND REGISTRAR
BY
COMMON STOCK
COMMON STOCK
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 45665G 30 3
Infinity Pharmaceuticals, Inc.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT
SPECIMEN
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, $0.001 PAR VALUE, OF
INFINITY PHARMACEUTICALS, INC.
transferable on the books of the corporation by such owner in person or by attorney upon surrender of this certificate duly
endorsed or assigned. This certificate and the shares represented hereby are subject to the laws of the State of Delaware and the Certificate of Incorporation and By-Laws of the corporation, as now in effect or hereinafter amended. This certificate
is not valid until countersigned and registered by the Transfer Agent and Registrar.
WITNESS the facsimile seal of the
corporation and the facsimile signatures of its duly authorized officers.
Dated:
SECRETARY
PRESIDENT
AUTHORISED SIGNATURE
AMERICAN BANK NOTE COMPANY.
INFINITY PHARMACEUTICALS, INC.
The Corporation is authorized to issue more than one class of stock. The Corporation will furnish without charge to each
stockholder who so requests a statement of the powers, designations, preferences, and relative, participating, optional or other special rights of each class of stock or series thereof of the Corporation, and the qualifications, limitations or
restrictions of such preferences and/or rights.
The following
abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
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TEN COM –
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as tenants in common
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UNIF GIFT MIN ACT–
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Custodian
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TEN ENT –
|
|
as tenants by the entireties
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(Cust)
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(Minor)
|
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JT TEN –
|
|
as joint tenants with right of survivorship and not as tenants in common
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|
under Uniform Gifts to Minors Act_______________
(State)
|
Additional
abbreviations may also be used though not in the above list.
For value received, __________________________________________ hereby sell, assign and transfer, unto
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PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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Please print or typewrite name and address, including postal zip code, of assignee
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Shares
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of the Common Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint
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Attorney to transfer the said stock on the books of the within-named Corporation with full power of substitution in the premises.
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Dated ____________________________________
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Signature(s) Guaranteed:
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THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
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KEEP THIS CERTIFICATE IN A SAFE
PLACE, IF IT IS LOST, STOLEN, MUTILATED OR DESTROYED, THE CORPORATION MAY REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the Certificate, in every particular,
without alteration or enlargement, or any change whatever.
Amgen and Infinity Confidential
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Confidential Materials omitted and filed separately with
the
Securities and Exchange Commission. Asterisks denote omissions.
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Exhibit 10.1
|
LICENSE AGREEMENT
BY AND BETWEEN
INFINITY PHARMACEUTICALS, INC.
AND
AMGEN INC.
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ARTICLE 1
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|
DEFINITIONS
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1
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Section 1.1 Affiliate
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1
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Section 1.2 Amgen Analog
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2
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Section 1.3 Amgen Analog Information
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2
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Section 1.4 Omitted.
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2
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Section 1.5 Omitted.
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2
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Section 1.6 Amgen Target
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2
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|
Section 1.7 Analog
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2
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Section 1.8 Back-Up Library Compound
|
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2
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Section 1.9 Business Day
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2
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Section 1.10 Combined Term
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2
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|
Section 1.11 Confidential Information
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2
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|
Section 1.12 Control or Controlled
|
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3
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|
Section 1.13 Development or Develop
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3
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Section 1.14 Drug Discovery Program
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3
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Section 1.15 EMEA
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3
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|
Section 1.16 Enumerated Target Information
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3
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Section 1.17 Exclusive Library Compound
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3
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Section 1.18 Exclusive Library Compound Information
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3
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Section 1.19 Exclusive Library Compound Royalty-Bearing Product
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3
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Section 1.20 Exclusivity Option Term
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4
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Section 1.21 FDA
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4
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|
Section 1.22 First Commercial Sale
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4
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Section 1.23 Omitted.
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4
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|
Section 1.24 Omitted.
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4
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|
Section 1.25 GAAP
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4
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|
Section 1.26 Good Laboratory Practices or GLP
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4
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|
Section 1.27 Hit
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4
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Section 1.28 Omitted.
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4
|
|
Section 1.29 Hit-To-Lead Chemistry Program
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4
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Section 1.30 IND
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4
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|
Section 1.31 Omitted.
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4
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|
Section 1.32 Infinity Intellectual Property
|
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4
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|
Section 1.33 Infinity Know-How
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5
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Section 1.34 Infinity Patent Rights
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5
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Section 1.35 Omitted.
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5
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|
Section 1.36 Omitted.
|
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5
|
|
Section 1.37 Know-How
|
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5
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|
Section 1.38 Law or Laws
|
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5
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Section 1.39 Lead
|
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5
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|
Section 1.40 Lead Optimization Program
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5
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|
Section 1.41 Library Compound
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5
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|
Section 1.42 Omitted.
|
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5
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|
Section 1.43 Library Compound Exclusivity Option
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5
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Section 1.44 Library Compound Information
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5
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i
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Section 1.45 Library Compound Structure Information
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5
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Section 1.46 MHW
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6
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Section 1.47 Omitted
|
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6
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Section 1.48 NDA
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6
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Section 1.49 Net Sales
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6
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Section 1.50 Non-Royalty-Bearing Product
|
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6
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|
Section 1.51 Omitted
|
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6
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|
Section 1.52 Party or Parties
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7
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Section 1.53 Patent Rights
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|
7
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|
Section 1.54 Phase IIB Study
|
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7
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Section 1.55 Phase III Study
|
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7
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|
Section 1.56 Program Compound
|
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7
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|
Section 1.57 Regulatory Approval
|
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7
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Section 1.58 Regulatory Authority
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7
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Section 1.59 Omitted
|
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7
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|
Section 1.60 Omitted
|
|
7
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|
Section 1.61 Omitted
|
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7
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Section 1.62 Royalty-Bearing Product
|
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7
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Section 1.63 Omitted
|
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7
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Section 1.64 Sublicensee(s)
|
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7
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Section 1.65 Omitted
|
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8
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Section 1.66 Synthetic Methodology and Pathways
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8
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Section 1.67 Target
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8
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Section 1.68 Territory
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8
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Section 1.69 Third Party
|
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8
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Section 1.70 Additional Definitions
|
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8
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ARTICLE 2
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USE OF LIBRARY COMPOUNDS
|
|
9
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Section 2.1 DRUG DISCOVERY PROGRAMS
|
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9
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Section 2.2 DESTRUCTION OF UNUSED QUANTITIES OF LIBRARY COMPOUNDS
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9
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ARTICLE 3
|
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|
|
LICENSES
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|
11
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Section 3.1 INFINITY GRANTS
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11
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Section 3.2 LIMITED AMGEN GRANT
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12
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Section 3.3 SUBLICENSE RIGHTS
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12
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Section 3.4 SECTION 365(N) OF THE BANKRUPTCY CODE
|
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13
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|
Section 3.5 NO IMPLIED LICENSES OR RIGHTS
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13
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|
Section 3.6 LIBRARY COMPOUND EXCLUSIVITY OPTION
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13
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ARTICLE 4
|
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|
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FINANCIAL PROVISIONS
|
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15
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|
Section 4.1 CONTINUATION FEE
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15
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|
Section 4.2 [Omitted]
|
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15
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Section 4.3 MILESTONE PAYMENTS
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15
|
ii
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Section 4.4 SUCCESS PAYMENTS
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17
|
|
Section 4.5 ROYALTIES
|
|
17
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|
Section 4.6 ROYALTY REPORTS; PAYMENTS
|
|
18
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|
Section 4.7 AUDITS
|
|
19
|
|
Section 4.8 TAX MATTERS
|
|
19
|
|
Section 4.9 UNITED STATES DOLLARS
|
|
20
|
|
Section 4.10 CURRENCY EXCHANGE
|
|
20
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|
Section 4.11 LATE PAYMENTS
|
|
20
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|
ARTICLE 5
|
|
|
|
INTELLECTUAL PROPERTY OWNERSHIP, PROTECTION AND RELATED MATTERS
|
|
21
|
|
Section 5.1 OWNERSHIP
|
|
21
|
|
Section 5.2 THIRD PARTY INFRINGEMENT
|
|
22
|
|
|
|
|
ARTICLE 6
|
|
|
|
CONFIDENTIALITY
|
|
23
|
|
Section 6.1 CONFIDENTIAL INFORMATION
|
|
23
|
|
Section 6.2 PERMITTED DISCLOSURE
|
|
23
|
|
Section 6.3 EMPLOYEE AND ADVISOR OBLIGATIONS
|
|
24
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|
Section 6.4 TERM
|
|
24
|
|
Section 6.5 PUBLICATIONS
|
|
24
|
|
|
|
|
ARTICLE 7
|
|
|
|
TERM AND TERMINATION
|
|
24
|
|
Section 7.1 AGREEMENT TERM
|
|
24
|
|
Section 7.2 TERMINATION FOR CONVENIENCE
|
|
25
|
|
Section 7.3 TERMINATION FOR MATERIAL BREACH
|
|
25
|
|
Section 7.4 EFFECT OF TERMINATION; ACCRUED RIGHTS; SURVIVING OBLIGATIONS
|
|
25
|
|
|
|
|
ARTICLE 8
|
|
|
|
REPRESENTATIONS, WARRANTIES AND COVENANTS
|
|
26
|
|
Section 8.1 REPRESENTATION OF AUTHORITY; CONSENTS
|
|
26
|
|
Section 8.2 NO CONFLICT
|
|
26
|
|
Section 8.3 KNOWLEDGE OF PENDING OR THREATENED LITIGATION
|
|
27
|
|
Section 8.4 EMPLOYEE AND CONSULTANT OBLIGATIONS
|
|
27
|
|
Section 8.5 INTELLECTUAL PROPERTY
|
|
27
|
|
Section 8.6 PRIOR OBLIGATIONS
|
|
27
|
|
Section 8.7 DISCLAIMER OF WARRANTY
|
|
27
|
|
|
|
|
ARTICLE 9
|
|
|
|
MISCELLANEOUS PROVISIONS
|
|
28
|
|
Section 9.1 INDEMNIFICATION
|
|
28
|
|
Section 9.2 Dispute Resolution
|
|
29
|
|
Section 9.3 GOVERNING LAW
|
|
29
|
|
Section 9.4 ASSIGNMENT
|
|
29
|
iii
|
|
|
|
|
Section 9.5 ENTIRE AGREEMENT; AMENDMENTS
|
|
30
|
|
Section 9.6 NOTICES
|
|
30
|
|
Section 9.7 FORCE MAJEURE
|
|
31
|
|
Section 9.8 COMPLIANCE WITH LAWS
|
|
31
|
|
Section 9.9 PUBLIC ANNOUNCEMENTS
|
|
31
|
|
Section 9.10 USE OF NAMES, LOGOS OR SYMBOLS
|
|
31
|
|
Section 9.11 INDEPENDENT CONTRACTORS
|
|
31
|
|
Section 9.12 NO STRICT CONSTRUCTION
|
|
32
|
|
Section 9.13 HEADINGS
|
|
32
|
|
Section 9.14 NO IMPLIED WAIVERS; RIGHTS CUMULATIVE
|
|
32
|
|
Section 9.15 SEVERABILITY
|
|
32
|
|
Section 9.16 EXECUTION IN COUNTERPARTS
|
|
32
|
|
Section 9.17 NO THIRD PARTY BENEFICIARIES
|
|
32
|
|
Section 9.18 PERFORMANCE BY AFFILIATES
|
|
32
|
|
Section 9.19 NO CONSEQUENTIAL DAMAGES
|
|
32
|
|
Section 9.20 Exhibits
|
|
33
|
|
|
|
|
EXHIBITS
|
|
|
|
Exhibit A — Library Compound Delivery Requirements
|
|
Exhibit B — Second Success Triggers
|
|
Exhibit C — Form of Press Release
|
iv
LICENSE AGREEMENT
THIS LICENSE AGREEMENT
(the “Agreement”) dated the 7th day of July, 2006 (the “Effective Date”) is by and between
INFINITY PHARMACEUTICALS, INC.
, a corporation organized and existing
under the laws of the State of Delaware and having its principal office at 780 Memorial Drive, Cambridge, Massachusetts 02139 (“Infinity”), and
AMGEN INC.
, a corporation organized and existing under the laws of the State of Delaware
and having its principal office at One Amgen Center Drive, Thousand Oaks, California 91320-1799 (“Amgen”).
INTRODUCTION
WHEREAS
, Infinity and Amgen are each in the business of discovering, developing and commercializing pharmaceutical products.
WHEREAS
, Infinity Controls certain technology for the creation of large numbers of complex, natural-compound-like compounds for the
purpose of screening biological targets to identify potential human therapeutics.
WHEREAS
, Infinity and Amgen entered into
a Collaboration and License Agreement as of December 19, 2003 (the “Prior Agreement Effective Date”); such agreement, the “Prior Agreement”).
WHEREAS
, Infinity and Amgen wish to extend and clarify certain rights under the Prior Agreement on the terms and conditions herein.
WHEREAS
, Infinity and Amgen agree that after the Effective Date Infinity has [**] of the Prior Agreement and had [**] of the Prior Agreement.
NOW, THEREFORE
, Infinity and Amgen agree as follows:
ARTICLE 1
DEFINITIONS
When used in this Agreement, each of the following terms shall have the meanings set forth in this Article 1:
Section 1.1 Affiliate
. “Affiliate” shall mean any corporation, company, partnership, joint venture and/or firm that controls, is
controlled by, or is under common control with a specified person or entity. For purposes of this Section 1.1, “control” shall be presumed to exist if one of the following conditions is met: (a) in the case of corporate entities,
direct or indirect ownership of more than fifty percent (50%) of the stock or shares having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of more than fifty
percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities. The Parties acknowledge that in the case of certain entities organized under the Laws of certain countries outside of the
United States, the maximum percentage ownership permitted by Law for a foreign investor may be less than fifty percent
1
(50%), and that in such case such lower percentage shall be substituted in the preceding sentence,
provided that
such owner has the power to direct
the management and policies of such entity.
Section 1.2 Amgen Analog
. “Amgen Analog” shall mean an Analog that is
designed, discovered or synthesized by Amgen in the course of a Drug Discovery Program.
Section 1.3 Amgen Analog Information
.
“Amgen Analog Information” shall mean all all structural, process and other information generated by Amgen relating to an Analog.
Section 1.4 Omitted
.
Section 1.5 Omitted
.
Section 1.6 Amgen Target
. “Amgen Target” shall mean a Target against which Amgen or an Amgen Affiliate screens a Library Compound or an
Analog.
Section 1.7 Analog
. “Analog” shall mean any compound that is derived by Amgen from a Library Compound. As used
herein, a compound shall be deemed to have been “derived from” a Library Compound if it is a chemical modification to a Library Compound which: (a) [**], (b) [**], or (c) [**].
Section 1.8 Back-Up Library Compound
. “Back-Up Library Compound” shall mean, with respect to a Library Compound for which Amgen
exercises a Library Compound Exclusivity Option, each other Library Compound that (a) is structurally related to, and is to be directed to the same Amgen Target as, the relevant Library Compound for which Amgen exercises the Library Compound
Exclusivity Option and (b) Amgen designates in accordance with Section 3.6.2.
Section 1.9 Business Day
. “Business
Day” shall mean a day other than a Saturday or Sunday or Federal holiday.
Section 1.10 Combined Term
. “Combined
Term” shall mean the period commencing on the Prior Agreement Effective Date and ending on the two (2) year anniversary of the Effective Date.
Section 1.11 Confidential Information
. “Confidential Information” shall mean (a) the Enumerated Target Information, all Amgen Analog Information and Exclusive Library Compound Information (which,
with respect to the Exclusive Library Compound Information, shall be deemed to be Amgen Confidential Information for as long as it is subject to the respective licenses granted under Sections 3.1), which shall be deemed to be Amgen Confidential
Information (subject to the provisions of Section 2.2), (b) all information relating to Library Compounds (other than Exclusive Library Compounds) and, following the termination of the respective licenses granted under Sections 3.1, any
Exclusive Library Compound Information, which shall be deemed to be Infinity Confidential Information, and (c) all other proprietary documents, technology, Know-How or other information (whether or not patentable) actually disclosed by one
Party to the other pursuant to the Prior Agreement or this Agreement or created by Infinity for Amgen’s benefit pursuant to the Prior Agreement or this Agreement and marked as “confidential” or “proprietary” (or if disclosed
orally, confirmed in writing within thirty (30) days thereafter).
2
Section 1.12 Control
or
Controlled
. “Control” or “Controlled” shall
mean with respect to any (a) material, document, item of information, method, data or other Know-How or (b) intellectual property right, the possession (whether by ownership or license, other than by a license granted pursuant to the Prior
Agreement or this Agreement) by a Party or its Affiliates of the ability to grant to the other Party access, ownership, a license and/or a sublicense as provided herein without violating the terms of any agreement or other arrangement with any Third
Party entered into or existing as of the time such Party or its Affiliates would first be required hereunder to grant the other Party such access, ownership, license, or sublicense.
Section 1.13 Development
or
Develop
. “Development” or “Develop” shall mean, with respect to a compound, preclinical and
clinical drug development activities, including, among other things: test method development and stability testing, toxicology, formulation, process development, manufacturing scale-up, development-stage manufacturing, quality assurance/quality
control procedure development and performance with respect to clinical materials, statistical analysis and report writing and clinical studies. When used as a verb, “Develop” means to engage in Development.
Section 1.14 Drug Discovery Program
. “Drug Discovery Program” shall mean an Amgen research program commenced during the Combined Term,
which is focused on researching and developing (a) a Library Compound directed to an Amgen Target, which Library Compound was confirmed by Amgen as a [**] or (b) [**] was derived from a Library Compound that was confirmed by Amgen as a
[**].
Section 1.15 EMEA
. “EMEA” shall mean the European Medicines Evaluation Agency, or a successor agency thereto.
Section 1.16 Enumerated Target Information
. “Enumerated Target Information” shall mean the information related to the
[**] provided by Amgen to Infinity pursuant to the Letter Agreement between the Parties dated October 21, 2005 [**].
Section 1.17
Exclusive Library Compound
. “Exclusive Library Compound” shall mean each Library Compound with respect to which Amgen exercises the Library Compound Exclusivity Option, together with all Back-Up Library Compound(s) licensed to Amgen
pursuant to Sections 3.1.4 and 3.6.1 in connection with such exercise by Amgen of the Library Compound Exclusivity Option by operation of Section 3.6.2.
Section 1.18 Exclusive Library Compound Information
. “Exclusive Library Compound Information” shall mean all structural, process and other information relating to an Exclusive Library Compound
provided by Infinity to Amgen pursuant to the Prior Agreement and all such information generated by Amgen. For the avoidance of doubt, Exclusive Library Compound Information includes [**] and [**] and [**] with respect to the relevant Exclusive
Library Compound.
Section 1.19 Exclusive Library Compound Royalty-Bearing Product
. “Exclusive Library Compound Royalty-Bearing
Product” shall mean a Royalty-Bearing Product that contains an Exclusive Library Compound.
3
Section 1.20 Exclusivity Option Term
. “Exclusivity Option Term” shall mean the period
commencing on the Effective Date and ending twelve (12) months after the end of the Combined Term.
Section 1.21 FDA
.
“FDA” shall mean the United States Food and Drug Administration, or a successor agency thereto.
Section 1.22 First Commercial
Sale
. “First Commercial Sale” shall mean, for each Royalty-Bearing Product, on a country-by-country basis, [**] of such Royalty-Bearing Product, to a Third Party by Amgen or its Affiliates or Sublicensees, in a country in the Territory
[**] in such country. Sales for test marketing, sampling and promotional uses, clinical trial purposes or compassionate or similar use shall not be considered to constitute a First Commercial Sale.
Section 1.23 Omitted
.
Section
1.24 Omitted
.
Section 1.25 GAAP
. “GAAP” shall mean United States generally accepted accounting principles.
Section 1.26 Good Laboratory Practices
or
GLP
. “Good Laboratory Practices” or “GLP” shall mean the
then-current good laboratory practice standards promulgated or endorsed by the FDA as defined in 21 C.F.R. Part 58, and comparable regulatory standards in jurisdictions outside the United States.
Section 1.27 Hit
. “Hit” shall mean a [**] (a) that is confirmed as active against an Amgen Target, or (b) for which [**],
which is [**]. For purposes of this Section 1.27, [**] shall mean that a [**] or [**] are [**].
Section 1.28 Omitted
.
Section 1.29 Hit-To-Lead Chemistry Program
. “Hit-To-Lead Chemistry Program” shall mean chemistry activities directed to
the generation of one or more Analogs with the goal of generating [**].
Section 1.30 IND
. “IND” shall mean
(a) (i) an Investigational New Drug Application, as defined in the U.S. Federal Food, Drug and Cosmetic Act, as amended, and the regulations promulgated thereunder, that is required to be filed with the FDA before beginning clinical
testing of a pharmaceutical product in human subjects, or any successor application or procedure and (ii) any foreign counterpart of such an Investigational New Drug Application, and (b) all supplements and amendments that may be filed
with respect to the foregoing.
Section 1.31 Omitted
.
Section 1.32 Infinity Intellectual Property
. “Infinity Intellectual Property” shall mean Infinity Know-How and Infinity Patent Rights.
4
Section 1.33 Infinity Know-How
. “Infinity Know-How” shall mean Know-How Controlled by
Infinity during the Combined Term, including without limitation Library Compound Information.
Section 1.34 Infinity Patent Rights
.
“Infinity Patent Rights” shall mean Patent Rights Controlled by Infinity.
Section 1.35 Omitted
.
Section 1.36 Omitted
.
Section
1.37 Know-How
. “Know-How” shall mean any information and materials, whether proprietary or not and whether patentable or not, including without limitation ideas, concepts, formulas, methods, procedures, designs, compositions, plans,
documents, data, inventions, discoveries, works of authorship, compounds and biological materials, but excluding any such information or materials disclosed in Patent Rights.
Section 1.38 Law
or
Laws
. “Law” or “Laws” shall mean all laws, statutes, rules, regulations, ordinances and other
pronouncements having the effect of law of any federal, national, multinational, state, provincial, county, city or other political subdivision, domestic or foreign.
Section 1.39 Lead
. “Lead” shall mean a Library Compound or an Analog which meets Amgen’s then current criteria for committing resources commensurate with its other lead
optimization programs.
Section 1.40 Lead Optimization Program
. “Lead Optimization Program” shall mean the formation
by Amgen of a program to perform all activities directed to the optimization of a Lead for purposes of identifying a clinical candidate and filing an IND.
Section 1.41 Library Compound
. “Library Compound” shall mean a compound that Infinity delivered pursuant to the Prior Agreement.
Section 1.42 Omitted
.
Section
1.43 Library Compound Exclusivity Option
. “Library Compound Exclusivity Option” shall mean Amgen’s option to obtain exclusive rights with respect to a Library Compound [**], if any, as further described in Section 3.6.
Section 1.44 Library Compound Information
. “Library Compound Information” shall mean structural, process or other
information relating to a Library Compound, which is Controlled by Infinity and was delivered to Amgen by Infinity pursuant to the Prior Agreement. For the avoidance of doubt, Library Compound Information includes [**].
Section 1.45 Library Compound Structure Information
. “Library Compound Structure Information” shall mean documentation of the molecular
formula and molecular structure of each Library Compound that is Controlled by Infinity and which Infinity delivered to Amgen pursuant to the Prior Agreement.
5
Section 1.46 MHW
. “MHW” shall mean the Japanese Ministry of Health and Welfare, or a
successor agency thereto.
Section 1.47 Omitted
.
Section 1.48 NDA
. “NDA” shall mean (a) (i) a New Drug Application submitted to the FDA, or any successor application or procedure, and (ii) any foreign counterpart of such a New Drug
Application, and (b) all supplements and amendments, including supplemental New Drug Applications (and any foreign counterparts) that may be filed with respect to the foregoing.
Section 1.49 Net Sales
. “Net Sales” shall mean all amounts actually received by Amgen, its Affiliates or its Sublicensees from sales of
a Royalty-Bearing Product by Amgen, its Affiliates and its Sublicensees, to Third Parties (but not including sales relating to transactions between or among Amgen, its Affiliates and/or its Sublicensees), less the following deductions to the extent
specifically relating to sales of the Royalty-Bearing Product and
provided that
any such deduction shall be deducted only once:
(a)
Credits and allowances (actually paid or allowed) including, but not limited to, prompt payment and volume discounts, price reductions and rebates, reasonable service allowances and reasonable brokers’
or agents’ commissions, whether in cash or trade;
(b)
Sales and other taxes, duties or other governmental
charges based on sales prices when included in gross sales, as adjusted for rebates or refunds, but not including taxes when assessed on income derived from such sales;
(c)
Credits or allowances given or provided for rejection or return of, and for uncollectable amounts on, previously sold
Royalty-Bearing Products or for rebates or retroactive price reductions including, but not limited to, chargebacks from customers or wholesalers, other allowances granted to customers or wholesalers, or payments to government agencies
(including[**]Medicare, Medicaid, government, commercial and similar types or rebates and chargebacks), whether in cash or trade; and
(d)
Charges for bad debt, freight, shipping, packing and insurance and other transportation charges incurred in shipping a Royalty-Bearing Product to Third Parties; and
(e)
Credits or allowances (actually paid or allowed) for wastage replacement, whether in cash or trade.
In the case of any sale of Royalty-Bearing Products for consideration other than cash, such as barter or countertrade, Net Sales shall be calculated on the fair market
value of the consideration received. Any disposal of Royalty-Bearing Products for, or use of Royalty-Bearing Products in, clinical or pre-clinical trials or as free samples shall not give rise to any deemed sale under this Section 1.49.
Section 1.50 Non-Royalty-Bearing Product
. “Non-Royalty-Bearing Product” shall mean any product containing [**] that is
not a Royalty-Bearing Product.
Section 1.51 Omitted
.
6
Section 1.52 Party
or
Parties
. “Party” shall mean Amgen or Infinity.
“Parties” shall mean Amgen and Infinity.
Section 1.53 Patent Rights
. “Patent Rights” shall mean all existing
patents and patent applications and all patent applications hereafter filed and patents hereafter issued, including without limitation any continuations, continuations-in-part, divisions, provisionals or any substitute applications, any patent
issued with respect to any such patent applications, any reissue, reexamination, renewal or extension (including any supplemental protection certificate) of any such patent, and any confirmation patent or registration patent or patent of addition
based on any such patent, and all foreign counterparts of any of the foregoing.
Section 1.54 Phase IIB Study
. “Phase IIB
Study” shall mean a well controlled dose ranging clinical study to evaluate the efficacy and safety of a candidate drug in the targeted patient population and to define the optimal dosing regimen.
Section 1.55 Phase III Study
. “Phase III Study” shall mean a well controlled clinical study commenced after the completion of a Phase
IIB Study to confirm with statistical significance the efficacy and safety of a candidate drug in targeted patient populations, performed to obtain Regulatory Approval of a product.
Section 1.56 Program Compound
. “Program Compound” shall mean an [**] or [**].
Section 1.57 Regulatory Approval
. “Regulatory Approval” shall mean any and all approvals (excluding any applicable governmental price
and reimbursement approvals), licenses, registrations, or authorizations of any federal, national, multinational, state, provincial or local regulatory agency, department, bureau or other governmental entity that are necessary and sufficient for the
marketing and sale of a product in a country or group of countries.
Section 1.58 Regulatory Authority
. “Regulatory
Authority” shall mean the FDA in the United States and EMEA in the EU and the MHW in Japan.
Section 1.59 Omitted
.
Section 1.60 Omitted
.
Section
1.61 Omitted
.
Section 1.62 Royalty-Bearing Product
. “Royalty-Bearing Product” shall mean a pharmaceutical composition
in finished product form comprising a [**],
provided
,
that
such [**] is (a) [**]or (b) [**] that was confirmed by [**] during the Combined Term.
Section 1.63 Omitted
.
Section 1.64 Sublicensee(s)
. “Sublicensee(s)” shall mean any
and all Third Party(ies) to which Amgen grants any right to research, develop, make, use, sell, offer for sale or import Royalty-Bearing Products in accordance with Section 3.3 hereof. Solely for purposes of computation of royalties payable to
Infinity under Section 4.5 of this Agreement, a Third Party(ies) who is granted only the right to sell a Royalty-Bearing Product (such as a wholesaler,
7
distributor, contract sales force or other person providing products directly to patients in a home health care setting, as long as Amgen, its Affiliate or
Sublicensee records the sales of such Royalty-Bearing Product upon transfer to such Third Party) or to use a Royalty-Bearing Product (such as a customer receiving an implied license as a consequence of purchase) shall not be considered a
Sublicensee(s).
Section 1.65 Omitted
.
Section 1.66 Synthetic Methodology and Pathways
. “Synthetic Methodology and Pathways” shall mean, with respect to a Library Compound, the synthetic scheme that Infinity used to synthesize the Library
Compound, which Infinity delivered to Amgen pursuant to the Prior Agreement.
Section 1.67 Target
. “Target” shall mean a
protein or polypeptide, which is involved in a biological process as well as [**].
Section 1.68 Territory
. “Territory”
shall mean all the countries of the world.
Section 1.69 Third Party
. “Third Party” shall mean any person or entity other
than a Party or any of its Affiliates.
Section 1.70 Additional Definitions
. Each of the following definitions is set forth in the
section of this Agreement indicated below:
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DEFINITION
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SECTION
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Agreement
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Preamble
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Amgen
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Preamble
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Amgen Indemnified Parties
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9.1.2
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Amgen Independent Compounds
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5.2.4
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Amgen Third Party Payments
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4.5.1(d)
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Bankruptcy Code
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3.4
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Bound Party
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6.1
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Controlling Party
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6.1
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Effective Date
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Preamble
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Executive Officers
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9.2.1
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First Success HTL Trigger
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4.4.1
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First Success LOP Trigger
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4.4.1
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First Success Patent Trigger
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4.4.1
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First Success Payment
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4.4.1
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First Success Trigger
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4.4.1
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Infinity
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Preamble
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Infinity Indemnified Parties
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9.1.1
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Library Compound Exclusivity Fee
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3.6.1(c)
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Med Chem Group
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Exhibit A
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Molecular Structure Group
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Exhibit A
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Patent Prosecution
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5.1.3
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8
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Prior Agreement
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Preamble
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Prior Agreement Effective Date
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Preamble
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Program Coordinator
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2.6.1
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Royalty Term
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4.5.1(c)
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Second Back-Up Selection Date
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3.6.2
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Second Success Payment
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4.4.2
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Severed Clause
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9.15
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Taxes
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4.8.1
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ARTICLE 2
USE OF LIBRARY COMPOUNDS
Section 2.1 DRUG DISCOVERY PROGRAMS
.
2.1.1
Amgen shall use reasonable efforts consistent with standards in the pharmaceutical and biotechnology industries to maintain a reliable
record relating to the existence of each Drug Discovery Program, including notations as to when particular [**] were designed, discovered or synthesized by Amgen in the course of a Drug Discovery Program. With respect to each [**], which Amgen
determines to be a Hit during the Combined Term, Amgen shall analyze, unless it had previously done so, whether the [**] is derived is a Hit against the same Amgen Target. In the event that Infinity reasonably has reason to believe that any
pharmaceutical compound sold or offered for sale by or on behalf of Amgen is [**], Infinity may request from time to time on a reasonable basis, and Amgen shall provide, (a) [**], and (b) [**]. In the event that the Parties dispute whether
[**], either Party may seek the resolution of such dispute in accordance with Section 9.2.
2.1.2
Amgen shall notify Infinity
of the existence of each Drug Discovery Program, by providing to Infinity (a) a coded identifier for the Library Compound(s) that achieved the status of Hit and (b) a coded identifier for the Amgen Target(s) against which such Library
Compound(s) was confirmed to be a Hit.
2.1.3
Amgen shall be responsible for performing all biological assays it, in its sole
discretion, deems appropriate in its Drug Discovery Program(s) (if any), and Infinity shall have no responsibility for performing any biological assays.
Section 2.2 DESTRUCTION OF UNUSED QUANTITIES OF LIBRARY COMPOUNDS
.
(a)
At the
end of the Combined Term,
(i)
Amgen shall destroy all unused quantities of Library Compounds except for unused
quantities of Library Compounds confirmed by Amgen to be Hits during the Combined Term;
9
(ii)
Amgen shall use commercially reasonable efforts to destroy all Library
Compound Information, including all smile string information, in its possession, except for (A) [**] archival copies of all written materials delivered to Amgen by Infinity (whether in electronic or hard-copy form) retained by Amgen for the
purposes of managing Patent Prosecution and its non-use obligations (including avoiding claiming Library Compounds in patent applications to the extent required by Section 5.1.3(c)) under this Agreement and (B) Library Compound Information
recorded in Amgen laboratory notebooks or other business records maintained in the ordinary course of Amgen’s business and (C) Library Compound Information relating to Library Compounds confirmed by Amgen as Hits during the Combined Term
for uses licensed under Article 3 of this Agreement. Amgen shall use commercially reasonable efforts to terminate its use of all Library Compound Information in its possession (except to the extent permitted in clauses (A) and (C)). Amgen shall
use commercially reasonable efforts to notify relevant employees and agents of its non-use obligations hereunder.
(b)
At the end of the Exclusivity Option Term,
(i)
Amgen shall destroy all unused quantities of
Library Compounds confirmed by Amgen to be Hits during the Combined Term, except for unused quantities of (A) Exclusive Library Compounds and potential Back-Up Library Compounds related thereto, and (B) [**] that are the subject of a [**],
provided that
upon termination of such [**], Amgen shall destroy unused quantities of such Library Compounds; and
(ii)
Amgen shall use commercially reasonable efforts to destroy all Library Compound Information, including all smile string information, in its possession relating to Library Compounds confirmed by Amgen as Hits during the Combined
Term except for (A) [**] archival copies of all written materials delivered to Amgen by Infinity (whether in electronic or hard-copy form) retained by Amgen for the purposes of managing Patent Prosecution and its other non-use obligations
(including avoiding claiming Library Compounds in patent applications to the extent required by Section 5.1.3(c)) under this Agreement and (B) Library Compound Information recorded in Amgen laboratory notebooks or other business records
maintained in the ordinary course of Amgen’s business, and (C) Library Compound Information relating to Exclusive Library Compounds for uses licensed under Article 3 of this Agreement and potential Back-Up Library Compounds related thereto
and (D) Library Compound Information relating to [**] for uses licensed under Article 3 of this Agreement,
provided that
upon termination of any such Drug Discovery Program (other than as a result of commercialization of a
Royalty-Bearing Product relating thereto) Amgen shall use commercially reasonable efforts to destroy such Library Compound Information. Amgen shall use commercially reasonable efforts to terminate use of all Library Compound Information in its
possession (except to the extent permitted in clauses (A), (C) and (D)). Amgen shall use commercially reasonable efforts to notify relevant employees and agents of its non-use obligations hereunder.
2.2.2
At all times during and after the end of the Combined Term, Amgen shall have the continuing right to retain and use all Exclusive Library
Compound Information and Amgen Analog Information (to the extent permitted by the other provisions of this Agreement),
provided that
this provision is not intended to act as the grant of rights under any valid and enforceable Infinity Patent
Rights.
10
2.2.3
For so long as Amgen has physical access to Library Compounds, the identity of such
compounds will be determined by the molecular formula and molecular structure described in the Library Compound Structure Information,
provided that
the structure of each Library Compound shall be deemed to be the structure identified to
Amgen in the Library Compound Information provided by Infinity to Amgen under the Prior Agreement except to the extent that Amgen has actual knowledge that the compound(s) in a given well have a different structure and Amgen actually knows that
structure. At the end of the period in which Amgen has physical access to Library Compounds, the Library Compound Information provided by Infinity to Amgen under the Prior Agreement will be deemed to be conclusive for purposes of determining the
Parties’ rights and obligations under this Agreement;
provided that
, any more accurate structural information actually known by Amgen during the period in which Amgen has physical access to the Library Compounds will be used to identify
such compounds at the end of such period.
2.2.4
The provisions of
Exhibit A
shall apply with respect to the Synthetic
Methodology and Pathways information and the Library Compound Structure Information.
ARTICLE 3
LICENSES
Section 3.1 INFINITY
GRANTS
.
3.1.1 License With Respect to Library Compounds
. Infinity hereby grants to Amgen a worldwide, non-exclusive license,
under Infinity Intellectual Property, to use Library Compounds and Library Compound Information for research purposes in the discovery of Hits to Amgen Targets, performing Hit-to-Lead Chemistry Programs and Lead Optimization Programs and in the
Development of Royalty-Bearing Products that contain Library Compounds (which license shall include the right to use Synthetic Methodology and Pathways solely to synthesize Library Compounds which have been identified as Hits (and Library Compounds
structurally related thereto), and [**] that derive from such Library Compounds, for the purpose of performing Drug Discovery Programs). With respect to any Library Compound confirmed by Amgen as a Hit during the Combined Term, the license set forth
in this Section 3.1.1 shall survive until the permanent cessation by Amgen of all research and Development activities with respect to the relevant Library Compound or Program Compound that commenced with confirmation of such Library Compound as
a Hit and thereupon expire. With respect to any Exclusive Library Compound, the license set forth in this Section 3.1.1 shall immediately and automatically become exclusive (even with respect to Infinity, but subject to any non-exclusive
research licenses that had been granted by Infinity to Third Parties with respect to the relevant Library Compound prior to such Library Compound becoming an Exclusive Library Compound) upon Amgen’s payment of the Library Compound Exclusivity
Fee pursuant to Section 3.6.1 of this Agreement and such license shall survive in perpetuity (subject to any terms and conditions of this Agreement expressly providing for the termination of such license). Subject to Section 3.3, the
licenses set forth in this Section 3.1.1 shall further include the right to grant sublicenses to Affiliates of Amgen and to Third Party collaborators (provided such collaborators are under an obligation to not determine the structure of any
Library Compound) and Third Party contractors engaged solely on a fee-for-service basis.
11
3.1.2
Licenses With Respect to Analogs.
Infinity hereby grants to Amgen a worldwide,
perpetual (subject to any terms and conditions of this Agreement expressly providing for the termination of such licenses), non-exclusive license, under Infinity Intellectual Property, to use Analogs and [**] Information in the discovery of Hits to
Amgen Targets, performing Hit-to-Lead Chemistry Programs and Lead Optimization Programs and in the Development of Royalty-Bearing Products [**]. Subject to Section 3.3, the licenses set forth in this Section 3.1.2 shall further include the
unrestricted right to grant sublicenses.
3.1.3 License Limitation and Clarification.
(a) For the avoidance of doubt, the purpose of the licenses granted in Sections 3.1.1 and 3.1.2 with respect to Synthetic Methodology and
Pathways is to perform Hit-to-Lead Chemistry Programs and Lead Optimization Programs and in the Development of Royalty-Bearing Products that contain Program Compounds [**], and not to enable Amgen to use Synthetic Methodology and Pathways broadly to
duplicate all or substantially all of Infinity’s libraries of Library Compounds delivered to Amgen for purpose of conducting primary screening.
(b) The Parties understand, agree and hereby acknowledge that, to the extent permitted by the other provisions of this Agreement, Amgen will and shall have [**] to include all [**] and [**] and [**] and [**],
including, without limitation, [**] and [**] (
provided
,
however
,
that
for the avoidance of doubt, [**].
3.1.4
Exclusive Commercialization License With Respect to Exclusive Library Compounds.
Infinity hereby grants to Amgen a worldwide, exclusive license, under Infinity Intellectual Property, to make, use, sell, offer to sell, have sold, import
and otherwise exploit, transfer physical possession of and transfer title or interest in Exclusive Library Compounds for any purposes. Any sales of products containing Exclusive Library Compounds shall be treated as [**] under this Agreement. Such
license shall survive in perpetuity subject to any terms and conditions of this Agreement expressly providing [**] of such license. Subject to Section 3.3, the licenses set forth in this Section 3.1.4 shall further include the [**].
3.1.5
Commercialization Licenses With Respect to Analogs.
Infinity hereby grants to Amgen a worldwide, perpetual (subject to
any terms and conditions of this Agreement expressly providing [**] of such license), non-exclusive license, under Infinity Intellectual Property that [**] and [**] to [**] as [**] and as [**], as the case may be. Subject to Section 3.3, the
licenses set forth in this Section 3.1.5 shall further include the [**].
Section 3.2 LIMITED AMGEN GRANT.
If in the course of
using Library Compounds, Analogs or Know-How related thereto Amgen makes an invention which results in the filing of Patent Rights, Amgen hereby grants to Infinity a worldwide, royalty-free, non-exclusive license [**]. Such Amgen license is [**]
including, without limitation, [**]. Such license shall survive in perpetuity subject to any terms and conditions of this Agreement expressly providing [**] of such license, including without limitation the provisions of Section 3.6.4. Subject
to [**], such license shall further include the [**].
Section 3.3 SUBLICENSE RIGHTS
.
Wherever in this Agreement either Party
is granted the right to grant sublicenses (including granting to sublicensees the right to grant further
12
sublicenses for the purposes of having Library Compounds and Analogs made) subject to this Section 3.3, such Party may exercise such right without
obtaining the prior approval of the other Party,
provided that
such sublicense occurs pursuant to a written agreement that subjects such sublicensee to all relevant restrictions and limitations in this Agreement; and
provided
,
further
, that, except with respect to sublicenses granted with respect to [**], Amgen shall promptly notify Infinity of the identity of any Third Party sublicensee. Except as otherwise agreed to by the Parties in writing, each Party shall be
jointly and severally responsible with its sublicensees to the other Party for failure by its sublicensees to comply with, and each Party guarantees the compliance by each of its sublicensees with, all such applicable restrictions and limitations in
accordance with the terms and conditions of this Agreement.
Section 3.4
SECTION 365(N) OF THE BANKRUPTCY CODE
.
All
rights and licenses granted under or pursuant to any section of this Agreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Code, as amended (such Title 11, the “Bankruptcy
Code”), licenses of rights to “intellectual property” as defined under Section 101(35A) of the Bankruptcy Code. The Parties shall retain and may fully exercise all of their respective rights and elections under the Bankruptcy
Code.
Section 3.5 NO IMPLIED LICENSES OR RIGHTS.
Except as expressly provided in this Agreement, neither Party shall have any
license or other interest in any intellectual property rights Controlled by the other Party.
Section 3.6 LIBRARY COMPOUND EXCLUSIVITY
OPTION.
3.6.1 Option.
(a) During the Exclusivity Option Term, Amgen shall have the right to exercise the Library Compound Exclusivity Option in accordance with this Section 3.6.1 with respect to each Library Compound that has been
identified as a Hit (or is structurally related to a Hit) which Amgen selects to move forward in a Drug Discovery Program. In the event that Amgen desires to exercise the Library Compound Exclusivity Option with respect to a Library Compound, Amgen
shall give Infinity written notice of such desire prior to the end of the Exclusivity Option Term, which notice shall specify the Library Compound with respect to which Amgen desires to exercise the Library Compound Exclusivity Option.
(b) Within [**] Business Days after receiving Amgen’s notice, Infinity shall notify Amgen of whether, prior to the date of receipt
of Amgen’s notice, (i) [**] and [**], (ii) Infinity [**] directed to the same [**] requested by Amgen and Infinity is [**] either [**] or [**] or (iii) Infinity has [**] that specifically claims the [**] requested by Amgen and
has [**] therefor. If any of the conditions described in clauses (i), (ii) or (iii) of the immediately preceding sentence exist, then Amgen shall not be permitted to exercise the Library Compound Exclusivity Option with respect to such
Library Compound;
provided that
if the condition(s) that make such Library Compound unavailable later cease to exist at any time within five (5) years after the end of the Exclusivity Option Term, Infinity shall promptly notify Amgen in
writing of such cessation and Amgen shall thereupon have the right to exercise the Library Compound Exclusivity Option with respect to such Library Compound in accordance with this Section 3.6.1. In the event that none of the conditions
described in clauses (i), (ii) or (iii) of this Section
13
3.6.1(b) exist, then Infinity shall disclose to Amgen a [**] in relation to the Library Compound(s) requested by Amgen and a [**].
(c) If Infinity does not notify Amgen that such Library Compound is unavailable in accordance with Section 3.6.1(b) within [**]
Business Days after Amgen delivered its notice to Infinity, then Amgen shall have [**] Business Days following such [**] day period to exercise the Library Compound Exclusivity Option with respect to such Library Compound by paying to Infinity $[**]
(which, together with the amounts specified below in Section 3.6.2 for additional Back-Up Library Compounds, if any, shall be designated the “Library Compound Exclusivity Fee”). During the [**] or [**] day periods described in this
Section 3.6.1(c), Infinity shall not grant any conflicting right to any Third Party or otherwise take any action inconsistent with Amgen’s exercise of its option to obtain exclusive rights to the requested Library Compound, including
without limitation, filing any patent applications and conducting any research activities with such compound(s).
3.6.2 Back-Up Library
Compounds.
In connection with each exercise of the Library Compound Exclusivity Option, Amgen shall be entitled to elect up to [**] Back-Up Library Compounds, each of which must be available in accordance with the criteria for availability set
forth in Section 3.6.1(b), for [**] set forth in Section 3.6.1(c). Amgen may exercise its election of any of such [**] Back-Up Library Compounds either at the time, or on any single day prior to the [**] (the “Second Back-Up Selection
Date”), of Amgen’s exercise of the applicable Library Compound Exclusivity Option. To the extent that any of the Back-Up Library Compounds Amgen elects are not available in accordance with the criteria for availability set forth in
Section 3.6.1(b), Amgen shall have the right to select other Back-Up Library Compounds until such time as it has obtained rights to [**] Back-Up Library Compounds. Amgen may also, at the time, or on the Second Back-Up Selection Date, of
Amgen’s exercise of the applicable Library Compound Exclusivity Option, elect additional Back-Up Library Compounds to the extent available in accordance with the criteria for availability set forth in Section 3.6.1(b),
provided that
Amgen shall be required to pay an additional Library Compound Exclusivity Option Fee of $[**] per additional Back-Up Library Compound. The Parties shall document in writing Amgen’s designation of Back-Up Library Compounds in connection with
each exercise of the Library Compound Exclusivity Option.
3.6.3 Infinity Covenant Regarding Exclusive Library Compounds.
In
addition to the license granted by Infinity to Amgen set forth in Section 3.1.4 with respect to Exclusive Library Compounds, Infinity hereby covenants that from and after Amgen’s exercise of the Library Compound Exclusivity Option with
respect to Exclusive Library Compounds, Infinity shall [**] such [**] from all [**] by Infinity to [**] and shall not [**] or[**] to [**] with respect to [**] set forth in Section 3.1.4 with respect to such [**] remains in effect. Infinity
further agrees and covenants that Infinity shall not use Amgen Confidential Information to make, use or otherwise conduct any research or development with Exclusive Library Compounds or any compounds derived from Exclusive Library Compounds.
3.6.4 Termination of Certain License Rights.
Upon Amgen’s exercise of the Library Compound Exclusivity Option with respect to
Exclusive Library Compounds, the license granted by Amgen to Infinity in Section 3.2 shall terminate with respect to such Exclusive Library Compounds.
14
ARTICLE 4
FINANCIAL PROVISIONS
Section 4.1 CONTINUATION FEE.
On or before the [**] Business Day after
the Effective Date, Amgen shall pay to Infinity a one-time, non-refundable license fee of Two Million Five Hundred Thousand Dollars ($2,500,000).
Section 4.2 [Omitted]
Section 4.3 MILESTONE PAYMENTS.
4.3.1 Royalty-Bearing Products.
Amgen shall pay Infinity the following amounts within [**] days after the first achievement by Amgen, its
Affiliates or its sublicensees of the corresponding milestone events with respect to each Royalty-Bearing Product. Each payment under this Section 4.3.1 shall be made only once per Amgen Target, for the first Royalty-Bearing Product Developed
against such Amgen Target for which such milestone event is achieved and only once per Royalty-Bearing Product regardless of the number of times a milestone event is achieved for the same Royalty-Bearing Product. The Parties recognize that a single
Royalty-Bearing Product may modulate more than one Amgen Target. For the avoidance of doubt, in the event that a single Royalty-Bearing Product modulates more than one Amgen Target, (1) each payment under this Section 4.3.1 shall still be
made only once with respect to such Royalty-Bearing Product, (2) Amgen shall identify to Infinity the coded identifier for a single Amgen Target against which such Royalty-Bearing Product shall be considered Developed, and (3) each other
Amgen Target which such Royalty-Bearing Product modulates shall be available for payments pursuant to this Section 4.3.1 if a Royalty-Bearing Product containing a different Program Compound is Developed by Amgen to modulate such other Amgen
Target.
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$[**]
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$[**]
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(c) [**]
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$[**]
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(d) [**]
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(e) [**]
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(f) [**]
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$[**]
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15
4.3.2
Additional Payments for Milestone Events Achieved by Exclusive Library
Compounds
.
In the event that the Royalty-Bearing Product that triggers milestone payments under Section 4.3.1 is an Exclusive Library Compound Royalty-Bearing Product, Amgen shall pay Infinity the following amounts
concurrently with the corresponding milestone payment made under Section 4.3.1. Each payment under this Section 4.3.2 shall be made only once per Amgen Target, for the first such Exclusive Library Compound Royalty-Bearing Product Developed
against such Amgen Target for which such milestone event is achieved and [**] per Exclusive Library Compound Royalty-Bearing Product regardless of the [**] for the [**]. The Parties recognize that a single Exclusive Library Compound Royalty-Bearing
Product [**] Amgen Target. For the avoidance of doubt, in the event that a [**] Exclusive Library Compound Royalty-Bearing Product [**] Amgen Target, (1) each payment under this Section 4.3.2 shall still be made [**] with respect to such
Exclusive Library Compound Royalty-Bearing Product, (2) Amgen shall identify to Infinity the coded identifier for a [**] Amgen Target against which such Exclusive Library Compound Royalty-Bearing Product shall be considered Developed, and
(3) each other Amgen Target which such Exclusive Library Compound Royalty-Bearing Product [**] for payments pursuant to this Section 4.3.2 if an Exclusive Library Compound Royalty-Bearing Product containing a different Exclusive Library
Compound is Developed by Amgen to modulate such other Amgen Target.
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$[**]
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4.3.3
Notices; Clarifications.
Amgen shall promptly notify Infinity of each
milestone event for which a milestone payment is due. Such milestone payments shall be non-refundable and shall not be credited against royalties payable to Infinity under this Agreement. If any milestone set forth above with respect to a specific
jurisdiction is achieved prior to or in the absence of the achievement of any preceding milestone in the same jurisdiction with respect to an Amgen Target, then, effective upon achievement of any such later milestone, [**]. Similarly, if the First
Commercial Sale of a Royalty-Bearing Product that has been Developed against an Amgen Target occurs prior to or in the absence of the achievement of any milestone with respect to such Amgen Target, then, effective upon such First Commercial Sale,
[**]. For the avoidance of doubt, in the event that Amgen obtains rights to a Program Compound from a Third Party licensee of Infinity, Infinity shall not be entitled to receive milestone or other payments under this Agreement in respect thereof and
in the event that Amgen grants rights to a Program Compound to a licensee of Infinity, any milestone or other payments that Amgen shall be
16
obligated to pay Infinity hereunder shall exhaust Infinity’s rights to receive payments from such licensee under the agreement between Infinity and such
licensee.
Section 4.4 SUCCESS PAYMENTS.
Amgen shall pay Infinity success payments for achievements attained by Amgen, its
Affiliates or its Sublicensees, in the course of or in relation to a Drug Discovery Program, with respect to Library Compounds or Program Compounds, as follows:
4.4.1 First Success Payment.
Amgen shall pay to Infinity a one-time payment of $[**] (a “First Success Payment”) within [**] days after the first to occur of any of the following events during the
Combined Term (each, a “First Success Trigger”):
(a) Initiation by Amgen of [**];
(b) Initiation by Amgen of [**]; or
(c) [**].
4.4.2 Second Success Payment.
Amgen shall pay to Infinity a one-time payment of $[**] (a
“Second Success Payment”) within [**] days after the first to occur of any of the applicable events described in
Exhibit B
during the Combined Term, but after the occurrence of the relevant First Success Trigger.
4.4.3 Notices; Clarification.
Amgen shall promptly notify Infinity of each event giving rise to Amgen’s obligations to pay the First Success
Payment and the Second Success Payment. Such success payments shall be non-refundable and shall not be credited against royalties payable to Infinity under this Agreement.
Section 4.5 ROYALTIES.
4.5.1
Royalties if Royalty Buy-Out Option is Not Exercised.
(a) Amgen shall pay to Infinity royalties on aggregate annual Net
Sales of each Royalty-Bearing Product in the Territory, on a Royalty-Bearing Product-by-Royalty-Bearing Product basis, at the following rates:
(i) If aggregate annual Net Sales of such Royalty-Bearing Product for a given calendar year are less than $[**], [**] percent ([**]%) of all Net Sales of such Royalty-Bearing Product for such calendar year;
(ii) If aggregate annual Net Sales of such Royalty-Bearing Product for a given calendar year are at least $[**] but less
than $[**], [**] percent ([**]%) of all Net Sales of such Royalty-Bearing Product for such calendar year; and
(iii) If
aggregate annual Net Sales of such Royalty-Bearing Product for a given calendar year are $[**] or greater, [**] percent ([**]%) of all Net Sales of such Royalty-Bearing Product for such calendar year.
17
(b) In addition to the royalties payable under Section 4.5.1(a) above, Amgen shall
pay to Infinity an additional royalty of [**] percent ([**]%) of Net Sales on all Net Sales of Exclusive Library Compound Royalty-Bearing Products.
(c) With respect to each country in the Territory, Royalties shall be payable on the Net Sales of each Royalty-Bearing Product during the [**] period commencing on the First Commercial Sale of such Royalty-Bearing
Product in such country (each, a “Royalty Term”).
(d) If any royalties or other payments are due to Third
Parties, whether directly by Amgen or indirectly, which payments are reasonably necessary for Amgen to avoid a claim of infringement of any composition of matter or method of manufacture claims of any Patents Rights of such Third Parties due to the
identification, development, manufacture, use or sale of a Royalty-Bearing Product(s) (such payments, “Amgen Third Party Payments”), then Amgen shall be responsible for payment of all such payments,
provided
,
however
,
that
Amgen [**] Amgen [**] royalties to Infinity,
provided
,
further
,
that
such [**] shall be limited to the extent that [**] Amgen [**] Infinity [**] or (ii) the [**] with respect to [**] Infinity with respect to
Section 4.5.1(a). [**] pursuant to the final clause [**].
(e) Upon the expiration of the Royalty Term with respect to
any country in the Territory, Infinity shall be deemed to have granted (and hereby grants to Amgen) a fully paid-up, irrevocable, perpetual license, including the unrestricted right to grant sublicenses, to make, use, sell, offer to sell and import
(and have any of the foregoing done for Amgen) the Royalty-Bearing Products within such country.
4.5.2 Royalty Buy-Out Option.
For
each [**] that is the subject of a [**], at any time prior to the [**], Amgen may [**] Infinity (and Amgen’s obligations under Section [**]) with respect to [**] (and all [**] thereto,
provided that
Amgen has [**] Infinity of [**]
Infinity, [**].
4.5.3 Non Royalty-Bearing Products.
Amgen shall have no obligation to pay milestones, royalties or any other
payment to Infinity in respect of Non Royalty-Bearing Products.
Section 4.6 ROYALTY REPORTS; PAYMENTS.
Within [**] days after the
end of each calendar quarter, Amgen shall submit to Infinity a report, on the basis of each Royalty-Bearing Product (other than Royalty-Bearing Products for which Amgen has eliminated its royalty obligations pursuant to Section 4.5.2),
providing in reasonable detail an accounting of all Net Sales made during such calendar quarter. Concurrently with each such report, Amgen shall pay to Infinity all royalties payable by it under Section 4.5, as follows: (a) Amgen shall
make estimated royalty payments with each such report submitted with respect to any of the first three calendar quarters of any calendar year based on the lowest royalty tier set forth in Section 4.5.1(a) (taking into consideration
Section 4.5.1(d), if applicable) into which Amgen’s aggregate annual Net Sales of each Royalty-Bearing Product for such year could fall based on year-to-date Net Sales of such Royalty-Bearing Product and (b) Amgen shall make royalty
payments with each such report submitted with respect to the final calendar quarter of any calendar year based on the actual royalty tier set forth in Section 4.5.1(a) (taking into consideration Section 4.5.1(d), if applicable) into which
Amgen’s aggregate annual Net Sales of each Royalty-Bearing Product
18
for such year actually fell and include with such royalty payments any additional amounts necessary to make the total of all royalty amounts paid by Amgen
with respect to all Net Sales of Royalty-Bearing Products for such calendar year correct based on the actual royalty tiers set forth in Section 4.5.1(a) (taking into consideration Section 4.5.1(d), if applicable) into which Amgen’s
aggregate annual Net Sales of such Royalty-Bearing Products for such year actually fell.
Section 4.7 AUDITS.
Amgen shall keep
complete and accurate records of the underlying revenue and expense data relating to the calculations of Net Sales and payments required by Section 4.6. Infinity shall have the right, once annually at its own expense, to have an independent,
certified public accountant, selected by Infinity and reasonably acceptable to Amgen, review any such records of Amgen in the location(s) where such records are maintained by Amgen upon reasonable notice (which shall be no less than thirty
(30) days prior written notice) and during regular business hours and under obligations of strict confidence, for the sole purpose of verifying the basis and accuracy of payments made under Section 4.6 within the prior [**] period;
provided however
,
that
the books and records for any particular calendar year shall only be subject to one audit. The report of such accountant shall be limited to a certificate stating whether any report made or payment submitted by
Amgen during such period is accurate or inaccurate and the amount of any payment discrepancy. Amgen shall receive a copy of each such report concurrently with receipt by Infinity. Should such inspection lead to the discovery of a discrepancy to
Infinity’s detriment in an annual period, Amgen shall pay the amount of the discrepancy. Infinity shall pay the full cost of the inspection unless the discrepancy is greater than [**] to Infinity’s detriment, in which case Amgen shall pay
the reasonable cost charged by such accountant for such inspection. Upon the expiration of [**] years following the end of any calendar year, the calculation of royalties payable with respect to such year shall be binding and conclusive upon
Infinity; Amgen, its Affiliate(s) and sublicensee(s) shall be released from any liability or accountability with respect to royalties for such year; and Amgen shall no longer be required to retain such records for such calendar year.
Section 4.8 TAX MATTERS.
4.8.1
Taxes.
All excises, taxes, and duties (collectively “
Taxes
”) levied on account of payments made by Amgen to Infinity pursuant to this Agreement will be the responsibility of and paid by Infinity
or subject to the withholding, remittance, and offset provisions of this Section 4.8 as provided herein.
4.8.2
Character of
Payments.
The Parties agree that, for purposes of determining the applicability of any Taxes, the payments to be made under Sections 3.6.1, 3.6.2, 4.3, 4.4 and 4.5 constitute royalties. However, in the event that the governing tax authority
recharacterizes any such payment, any additional Taxes that may be imposed (including any interest and penalties that may be imposed thereon) shall be the responsibility of Infinity, and Amgen shall have a right of offset with respect to such
amounts pursuant to Section 4.8.4.
4.8.3
Withholding or Payment by Amgen.
In the event that laws or regulations require
withholding of Taxes on behalf of Infinity from any payment owed by Amgen hereunder, such Taxes will be deducted from such payment by Amgen and will be remitted by Amgen on behalf of Infinity to the appropriate tax authority. Amgen will furnish
Infinity with proof of
19
payment of such Taxes as soon as practicable after such payment is made. In the event that documentation is necessary in order for Infinity to secure an
exemption from or a reduction in any withholding of Taxes, Infinity shall provide such documentation in a timely manner to Amgen. The Parties will reasonably cooperate in completing and filing documents required under the provisions of any
applicable tax Laws or under any other applicable Law in connection with the making of any required tax payment or withholding payment, or in connection with any claim to a refund of or credit for any such payment.
4.8.4
Amgen’s Right of Offset.
In the event that the governing tax authority retroactively determines that a payment made to Infinity
pursuant to this Agreement should have been subject to withholding (or to additional withholding) for Taxes, Amgen shall promptly notify Infinity thereof in writing, Infinity shall have the right to contest such determination at Infinity’s
expense and Amgen will reasonably cooperate with Infinity if it so contests the determination. Amgen will have the right to offset the withholding amount which it pays consistent with such tax authority’s determination (including any interest
and penalties that may be imposed thereon) against future payment obligations of Amgen under this Agreement;
provided
,
however
,
that
if no further payments or insufficient further payments are available against which offset may
be pursued, Amgen may pursue reimbursement by any remedy (at law or in equity) available to it. In no event shall Infinity have any liability for interest or penalties imposed as a result of Amgen’s failure to withhold Taxes but only if such
failure was due to Amgen’s negligence.
Section 4.9
UNITED STATES DOLLARS
.
All dollar ($) amounts specified
in this Agreement are United States dollar amounts.
Section 4.10 CURRENCY EXCHANGE.
With respect to Net Sales invoiced or expenses
incurred in U.S. dollars, the Net Sales or expense amounts and the amounts due to the receiving Party hereunder shall be expressed in U.S. dollars. Net Sales invoiced in currencies other than U.S. dollars shall be converted into the U.S. dollar
equivalent using an average rate of exchange which corresponds to the amount recorded by Amgen related to such Net Sales in its books and records that are maintained in accordance with GAAP. All payments shall be made in U.S. dollars. If at any time
legal restrictions in any country in the Territory prevent the prompt remittance of any payments with respect to sales in that country, Amgen shall make such payments by depositing the amount thereof in local currency to Infinity’s account in a
bank or depository in such country.
Section 4.11 LATE PAYMENTS.
The paying Party shall pay interest to the receiving Party on the
aggregate amount of any payments that are not paid on or before the date such payments are due under this Agreement at a rate per annum equal to the lesser of the prime rate of interest plus 1.5% percent, as reported by
The Wall Street
Journal
, or the highest rate permitted by applicable Law, calculated on the number of days such payments are paid after the date such payments are due;
provided
,
however
,
that
, with respect to any disputed payments, no
interest payment shall be due until such dispute is resolved and the interest which shall be payable thereon shall be based on the finally-resolved amount of such payment, calculated from the original date on which the disputed payment was due
through the date on which payment is actually made.
20
ARTICLE 5
INTELLECTUAL PROPERTY OWNERSHIP, PROTECTION AND RELATED MATTERS
Section 5.1 OWNERSHIP.
5.1.1 Inventorship.
Inventorship of inventions conceived or reduced to practice during the course of the performance of
activities pursuant to the Prior Agreement or this Agreement shall be determined in accordance with the applicable U.S. patent Laws.
5.1.2 Ownership.
All inventions or discoveries made, and materials (including without limitation, Library Compounds and Analogs) and information created, by employees, Affiliates, agents, independent contractors or consultants of
each Party, in the course of conducting activities under the Prior Agreement or this Agreement, together with all intellectual property rights therein, shall be owned by the Party or Parties to which such employees, Affiliates, agents, independent
contractors or consultants have an obligation to assign such inventions or discoveries. Subject to the provisions of Article 3, Amgen shall own all rights, title and interest in all Amgen Analogs, Amgen Analog Information, other Analogs, Amgen
Targets, Amgen Confidential Information and all Patent Rights relating to any of the foregoing, but specifically excluding any Infinity Patent Right which has been generated without the use of Amgen Confidential Information.
5.1.3 Prosecution and Maintenance of Patent Rights.
(a) The responsibility for (i) preparing, filing and prosecuting patent applications (including, but not limited to, provisional, reissue, continuing, continuation, continuation-in-part, divisional, and
substitute applications and any foreign counterparts thereof); (ii) maintaining any Patent Rights; and (iii) managing any interference or opposition or similar proceedings relating to the foregoing ((i) through (iii), “Patent
Prosecution”) shall (A) with respect to Patent Rights for which the employees, consultants or agents of both Parties are inventors, rest with Amgen (in which case Infinity shall provide any reasonable cooperation requested by Amgen with
respect to such Patent Prosecution) and (B) with respect to Patent Rights that claim or disclose (specifically or generally) Amgen Analogs and Exclusive Library Compounds, rest with Amgen (in which case Infinity shall provide any reasonable
cooperation requested by Amgen with respect to such Patent Prosecution), and (C) otherwise, rest with the owning Party.
(b) All Patent Prosecution expenses, including attorneys’ fees, incurred by a Party in the performance of Patent Prosecution shall be borne by such Party.
(c) Amgen shall use commercially reasonable efforts to avoid claiming specific Library Compounds (other than Exclusive Library Compounds)
in any patent application filed by Amgen.
(d) In the event that, in spite of Amgen’s efforts pursuant to
Section 5.1.3(c), any Infinity employee(s) or contractor(s) is named as an inventor on any patent application filed by Amgen claiming an Exclusive Library Compound or Exclusive Library Compound
21
Information, Infinity agrees to (and does hereby) assign all its rights, title and interest in and to such patent application(s) (and any patent(s) that
issues therefrom) to Amgen.
5.1.4 Omitted
.
5.1.5 Omitted
.
Section 5.2 THIRD PARTY INFRINGEMENT.
5.2.1 Notice.
Each Party shall promptly provide the other Party with written notice reasonably detailing any known or alleged infringement by a
Third Party of Infinity Patent Rights or Patent Rights owned or otherwise controlled by Amgen that claim the composition of matter of any Exclusive Library Compound.
5.2.2 Enforcement.
Amgen shall have the sole right, but not the obligation, to institute and direct legal proceedings against any Third Party believed to be infringing claims of Infinity Patent Rights that
cover the Exclusive Library Compounds, including, but not limited to those that claim the composition of matter, method of making, use and pharmaceutical composition of any Exclusive Library Compound, by the manufacture, use, importation, offer for
sale or sale of a product competitive with a Royalty-Bearing Product;
provided that
such right shall only continue for so long as the license granted to Amgen with respect to such Exclusive Library Compound remains in effect. All costs,
including attorneys’ fees, relating to such legal proceedings shall be borne by Amgen, and Amgen shall reimburse Infinity for any such costs incurred by Infinity. All recoveries resulting from such legal proceedings that are in excess of the
Parties’ costs of bringing or participating in such action, including attorney’s fees, shall be retained by Amgen and shall be deemed to constitute Net Sales of the Royalty-Bearing Product with which the infringing Third Party product
competed.
5.2.3 Cooperation In Patent Infringement Proceedings.
In the event that Amgen takes action pursuant to this
Section 5.2, Infinity shall cooperate to the extent reasonably necessary and at Amgen’s sole expense. Upon the reasonable request of Amgen, Infinity shall join the suit and shall have the right to be represented in any such legal
proceedings using counsel of its own choice, at Amgen’s expense. Amgen shall not settle any claim or proceeding relating to any Infinity Patent Rights with respect to which Amgen takes action pursuant to this Section 5.2 without the prior
written consent of Infinity, which consent shall not be unreasonably withheld or delayed.
5.2.4
Amgen Independent Compounds.
For the avoidance of doubt and notwithstanding any other provision of this Agreement, if Amgen, prior to the discovery of a Hit by screening the Library Compounds, through in-licensing or acquisition (merger or otherwise) from a Third Party(ies), or
research efforts that are entirely independent of efforts under a Drug Discovery Program and without the use or assistance of any Confidential Information of Infinity (as shown by Amgen’s independent, contemporaneous written records), shall
have discovered a compound that shall be structurally identical to a Library Compound or Analog and known to have activity against the Amgen Target (“Amgen Independent Compounds”), then such Amgen Independent Compound(s) shall not be
considered a Library Compound or an Analog or a Royalty-Bearing Product. Amgen shall be free to develop and commercialize such Amgen
22
Independent Compounds without any obligation whatsoever to Infinity,
provided
,
that
Amgen does not utilize any Confidential Information of
Infinity in connection with such development and commercialization efforts. In the event that Amgen identifies any Amgen Independent Compounds, Amgen shall promptly provide written notice to Infinity that such Amgen Independent Compound(s) has been
discovered and shall stop using the relevant Library Compound and the related Library Compound Information received from Infinity.
ARTICLE 6
CONFIDENTIALITY
Section 6.1 CONFIDENTIAL INFORMATION
. All Confidential Information of a Party shall not be used by the other Party (the “Bound Party”) except in performing its obligations or exercising rights
explicitly granted under this Agreement and shall be maintained in confidence by the Bound Party and shall not otherwise be disclosed by the Bound Party to any Third Party, without the prior written consent of the Party that Controls such
Confidential Information (the “Controlling Party”), except to the extent that the Confidential Information:
6.1.1
was
known by the Bound Party or its Affiliates prior to its date of disclosure to the Bound Party; or
6.1.2
is lawfully disclosed to
the Bound Party or its Affiliates by sources other than the Controlling Party rightfully in possession of the Confidential Information; or
6.1.3
becomes published or generally known to the public through no fault or omission on the part of the Bound Party, its Affiliates or its sublicensees; or
6.1.4
is independently developed by or for the Bound Party or its Affiliates without reference to or reliance upon such Confidential Information.
Specific information shall not be deemed to be within any of the foregoing exclusions merely because it is embraced by more general
information falling within those exclusions.
Section 6.2 PERMITTED DISCLOSURE
.
6.2.1
The provisions of Section 6.1 shall not preclude (a) a Bound Party or its Affiliates from disclosing Confidential Information to
the extent such Confidential Information is required to be disclosed by such Party or its Affiliates to comply with applicable Laws or legal process, including without limitation the rules or regulations of the United States Securities and Exchange
Commission or similar regulatory agency in a country other than the United States or of any stock exchange, including without limitation Nasdaq, or to defend or prosecute litigation,
provided that
such Party provides prior written notice of
such disclosure to the disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the degree of such disclosure and (b) Amgen from disclosing and/or claiming Infinity’s Confidential Information (including, without
limitation, chemical structures and methods of making such chemical structures) in Amgen’s patent applications and in the prosecution of such patent applications consistent with the terms and conditions of Article 5 above.
23
6.2.2
Subject to Sections 6.2.3 and 9.9, the Parties agree that the material financial terms of
the Prior Agreement or this Agreement will be considered Confidential Information of both Parties. Notwithstanding the foregoing, (a) either Party may disclose the terms of this Agreement to bona fide potential or actual sublicensees, as
reasonably necessary in connection with a permitted sublicense under the licenses granted in this Agreement, and (b) either Party may disclose the material financial terms of this Agreement to bona fide potential or actual investors, lenders,
investment bankers, acquirors, acquirees, merger partners or other potential financial partners (including pharmaceutical and biotechnology companies, as long as such company owns at least fifty percent (50%) of the disclosing Party), and to
such Party’s consultants and advisors, as reasonably necessary in connection with a proposed equity or debt financing of such Party or as reasonably necessary in connection with a proposed acquisition or business combination. In connection with
any permitted disclosure of Confidential Information pursuant to this Section 6.2.2, each Party agrees to use all reasonable efforts to inform each disclosee of the confidential nature of such information and cause each disclosee to treat such
information as confidential.
6.2.3
Notwithstanding any provision to the contrary in this Agreement, either Party may disclose to
any and all persons, without limitation of any kind, the United States federal tax treatment and tax structure of the transactions set forth in this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided
to the Parties relating to such tax treatment and tax structure.
6.2.4
In no event will Infinity use the Enumerated Target
Information as a basis for a decision to advance (or not advance) any research or discovery program outside the scope of this Agreement by Infinity itself or in collaboration with any Third Party; [**].
Section 6.3 EMPLOYEE AND ADVISOR OBLIGATIONS
. Infinity and Amgen each agree that they shall provide Confidential Information that is jointly owned
or received from the other Party only to their respective employees, consultants and advisors, and to the employees, consultants and advisors of such Party’s Affiliates, who have a need to know such information and materials for performing
obligations or exercising rights expressly granted under this Agreement and have an obligation to treat such information and materials as confidential.
Section 6.4 TERM
. All obligations under this Article 6 shall expire five (5) years following termination or expiration of this Agreement.
Section 6.5 PUBLICATIONS
. Neither Amgen nor its Affiliates, employees, contractors or investigators shall publish or present any information with
respect to the structure of any Library Compound, other than any Exclusive Library Compound, without Infinity’s prior written consent (which may be withheld in its sole and final discretion).
ARTICLE 7
TERM AND TERMINATION
Section 7.1 AGREEMENT TERM
. This Agreement becomes effective as of the Effective Date and shall expire upon the earlier of
(a) the termination of this Agreement in
24
accordance with Sections 7.2 or 7.3, or (b) the later of (i) the permanent cessation by Amgen of all research and Development activities with
respect to all Library Compounds and Program Compounds or (ii) the expiration of the last Royalty Term with respect to all Royalty-Bearing Products.
Section 7.2 TERMINATION FOR CONVENIENCE
. Amgen shall have the right to terminate this Agreement for convenience upon sixty (60) days prior written notice to Infinity.
Section 7.3 TERMINATION FOR MATERIAL BREACH.
If either Party believes that the other is in material breach of this Agreement (including without
limitation any material breach of a representation or warranty made in this Agreement), then the non-breaching Party may deliver notice of such breach to the allegedly breaching Party. In such notice the non-breaching Party shall identify the
actions or conduct that such Party would consider to be an acceptable cure of such breach. For all breaches, the allegedly breaching Party shall have sixty (60) days to either cure such breach or, if cure cannot be reasonably effected within
such sixty (60) day period, to deliver to the other Party a plan for curing such breach that is reasonably sufficient to effect a cure. Such a plan shall set forth a program for achieving cure as rapidly as practicable. Following delivery of
such plan, the allegedly breaching Party shall use diligent efforts to carry out the plan and cure the breach. If the allegedly breaching Party fails to cure such breach within the sixty (60) day period, the non-breaching Party may terminate
this Agreement upon written notice to the allegedly breaching Party.
Section 7.4 EFFECT OF TERMINATION; ACCRUED RIGHTS; SURVIVING
OBLIGATIONS
.
7.4.1
Upon termination of this Agreement by Amgen pursuant to Section 7.2, (a) all licenses
granted by Infinity to Amgen hereunder shall terminate, and (b) all licenses granted hereunder by Amgen to Infinity shall remain in effect on an irrevocable and perpetual basis.
7.4.2
Upon termination of this Agreement by Amgen pursuant to Section 7.3, (a) all licenses granted by Infinity to Amgen hereunder shall
remain in effect in accordance with the terms and conditions set forth in the grant, (b) all licenses granted hereunder by Amgen to Infinity shall remain in effect in accordance with the terms and conditions set forth in the grant, and
(c) all payment obligations of Amgen hereunder shall remain in effect, subject to the right for Amgen to offset, prior to and until the determination of actual damages pursuant to Section 7.4.4, against any payment obligations set forth in
this Agreement such amounts as reasonably reflect the nature, circumstances and significance of the breach leading to such termination and the damages, if any, suffered by Amgen and
provided that
, to the extent that any such offsets actually
taken exceed the actual damages to which Amgen is ultimately determined to be entitled, Amgen shall reimburse Infinity for such excess offsets, along with interest earned thereon at the rate of the lesser of [**] percent ([**]%) per year or the
highest rate permitted by applicable law.
7.4.3
Upon termination of this Agreement by Infinity pursuant to Section 7.3,
(a) all licenses granted hereunder by Amgen to Infinity shall remain in effect in accordance with the terms and conditions set forth in the grant, (b) all licenses granted by Infinity to Amgen
25
hereunder shall remain in effect in accordance with the terms and conditions set forth in the grant, and (c) all payment obligations of Amgen hereunder
shall remain in effect.
7.4.4
For the sake of clarity, each Party shall have the right to seek any damages to which it is entitled,
whether in law, equity or otherwise.
7.4.5
Upon the termination or the expiration of this Agreement, the following provisions of
this Agreement shall survive: Articles 1, 6 and 9, and Sections 2.2, 3.3 (to the extent that any licenses subject to Section 3.3 survive), 3.4, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 5.1 and 8.7 and this Section 7.4.
7.4.6
Termination or expiration of the Agreement for any reason, and any benefit accruing to Amgen from any reduction in payments pursuant to
Section 7.4.2(c), shall be without prejudice to any rights that shall have accrued to the benefit of either Party prior to such termination or expiration, including, without limitation, any other remedies available to such Party in law or
equity. Such termination or expiration shall not relieve either Party from obligations that are expressly indicated to survive termination or expiration of the Agreement.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 8.1 REPRESENTATION OF AUTHORITY; CONSENTS
. Infinity and Amgen each represents and warrants to the other Party that, as of the Effective
Date, (a) it has full right, power and authority to enter into this Agreement, (b) this Agreement has been duly executed by such Party and constitutes a legal, valid and binding obligation of such Party, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other Laws relating to or affecting creditors’ rights generally and by general equitable principles and public
policy constraints (including those pertaining to limitations and/or exclusions of liability, competition Laws, penalties and jurisdictional issues including conflicts of Laws) and (c) all necessary consents, approvals and authorizations of all
government authorities and other persons required to be obtained by such Party in connection with the execution, delivery and performance of this Agreement have been and shall be obtained.
Section 8.2 NO CONFLICT
. Each Party represents to the other Party that, notwithstanding anything to the contrary in this Agreement, the execution
and delivery of this Agreement and the performance of such Party’s obligations hereunder (a) do not conflict with or violate such Party’s corporate charter and bylaws or any requirement of applicable Laws and (b) do not and shall
not conflict with, violate or breach or constitute a default or require any consent under, any oral or written contractual obligation of such Party. Each Party agrees that it shall not during the term of this Agreement grant any right, license,
consent or privilege to any Third Party or otherwise undertake any action, either directly or indirectly, that would conflict with the rights granted to the other Party or interfere with any obligations of such Party set forth in this Agreement.
26
Section 8.3 KNOWLEDGE OF PENDING OR THREATENED LITIGATION
. Each Party represents and warrants to
the other Party that there is no claim, investigation, suit, action or proceeding pending or, to the knowledge of such Party, expressly threatened, against such Party that, individually or in the aggregate, could reasonably be expected to
(a) materially impair the ability of such Party to perform any obligation under this Agreement or (b) prevent or materially delay or alter the consummation of any or all of the transactions contemplated hereby.
Section 8.4 EMPLOYEE AND CONSULTANT OBLIGATIONS
.
8.4.1
Each Party represents and warrants that all of its employees, officers, and consultants that are supporting the performance of its obligations under this Agreement shall have executed agreements
requiring, in the case of consultants, employees and officers, assignment to such Party of all inventions made during the course of and as the result of their association with such Party and, in the case of employees, officers and consultants,
obligating the individual to maintain as confidential such Party’s Confidential Information as well as Confidential Information of the other Party that such Party may receive, to the extent required to support such Party’s obligations
under this Agreement.
8.4.2
Infinity represents and warrants that it shall use commercially reasonable efforts to maintain its
agreement(s) with any Third Party under which Infinity obtains licenses under rights necessary for its performance under this Agreement which agreement(s) are in effect during the term of this Agreement. As of the Effective Date, to the best of its
knowledge, Infinity does not require any licenses under the Patent Rights or other intellectual property rights of any Third Party to grant the licenses set forth herein.
Section 8.5 INTELLECTUAL PROPERTY
. Infinity represents and warrants that as of the Effective Date:
8.5.1
it has not received any written claim made against it asserting the non-patentability, invalidity, misuse, unregisterability, unenforceability or non-infringement of any of intellectual property rights associated with Library
Compounds or challenging its right to use or ownership of any of such intellectual property rights or Library Compounds or making any adverse claim of ownership thereof; and
8.5.2
it is not aware of any pending or threatened claim or litigation (or received notice of a potential claim or litigation) which alleges that
its activities up to the Prior Agreement Effective Date relating to Library Compounds have violated, or by conducting the activities currently proposed to be conducted hereunder would violate, the intellectual property rights or the right to use or
ownership of any Third Party.
Section 8.6 PRIOR OBLIGATIONS
. Amgen represents and warrants that it has complied with its
obligations under Section 2.3.2 of the Prior Agreement
.
Section 8.7 DISCLAIMER OF WARRANTY
. Nothing in this Agreement
shall be construed as a representation made or warranty given by either Party that either Party will be successful in obtaining any Patent Rights, that any patents will issue based on pending applications or that any such pending applications or
patents issued thereon will be valid. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY
27
EXPRESSLY DISCLAIMS, WAIVES, RELEASES AND RENOUNCES ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
ARTICLE 9
MISCELLANEOUS PROVISIONS
Section 9.1 INDEMNIFICATION
.
9.1.1 Amgen
. Amgen agrees, at Amgen’s cost and expense, to defend, indemnify and hold harmless Infinity and its Affiliates and their
respective directors, officers, employees and agents (the “Infinity Indemnified Parties”) from and against any losses, costs, damages, fees or expenses arising out of any Third Party claim relating to (a) any breach by Amgen of any of
its representations, warranties or obligations pursuant to the Prior Agreement or this Agreement, (b) the gross negligence or willful misconduct of Amgen or (c) injuries resulting from Amgen’s activities conducted in connection with
the Prior Agreement or this Agreement or from the development, manufacture, use, sale or other disposition by Amgen of any product containing a Program Compound, or any other product or service offered by Amgen, its Affiliates and/or its licensees
or collaborators (other than Infinity) outside of activities conducted in connection with the Prior Agreement or this Agreement. In the event of any such claim against the Infinity Indemnified Parties by any Third Party, Infinity shall promptly
notify Amgen in writing of the claim and Amgen shall manage and control, at its sole expense, the defense of the claim and its settlement. The Infinity Indemnified Parties shall cooperate with Amgen and may, at their option and expense, be
separately represented in any such action or proceeding. Amgen shall not be liable for any litigation costs or expenses incurred by the Infinity Indemnified Parties without Amgen’s prior written authorization. In addition, Amgen shall not be
responsible for the indemnification or defense of any Infinity Indemnified Party to the extent arising from any negligent or intentional acts by any Infinity Indemnified Party or the breach by Infinity of any obligation or warranty under this
Agreement, or any claims compromised or settled without its prior written consent.
9.1.2 Infinity
. Infinity agrees, at
Infinity’s cost and expense, to defend, indemnify and hold harmless Amgen and its Affiliates and their respective directors, officers, employees and agents (the “Amgen Indemnified Parties”) from and against any losses, costs, damages,
fees or expenses arising out of any Third Party claim relating to (a) any breach by Infinity of any of its representations, warranties or obligations pursuant to the Prior Agreement or this Agreement, (b) the gross negligence or willful
misconduct of Infinity or (c) injuries resulting from Infinity’s activities conducted in connection with the Prior Agreement or from the development, manufacture, use, sale or other disposition by Infinity of any product containing a
Program Compound, or any other product or service offered by Infinity, its Affiliates and/or its licensees or collaborators (other than Amgen) outside of activities conducted in connection with the Prior Agreement or this Agreement. In the event of
any such claim against the Amgen Indemnified Parties by any Third Party, Amgen shall promptly notify Infinity in writing of the claim and Infinity shall manage and control, at its sole expense, the defense of the claim and its settlement. The Amgen
Indemnified Parties shall cooperate with Infinity and may, at their option and
28
expense, be separately represented in any such action or proceeding. Infinity shall not be liable for any litigation costs or expenses incurred by the Amgen
Indemnified Parties without Infinity’s prior written authorization. In addition, Infinity shall not be responsible for the indemnification or defense of any Amgen Indemnified Party to the extent arising from any negligent or intentional acts by
any Amgen Indemnified Party, or the breach by Amgen of any obligation or warranty under this Agreement, or any claims compromised or settled without its prior written consent.
SECTION 9.2 DISPUTE RESOLUTION
.
9.2.1
Any controversy, claim or dispute arising out of or relating to this Agreement shall be settled, if possible, through good faith negotiations between the Parties. If, however, the Parties are unable to settle such dispute after
good faith negotiations, the matter shall be referred to the Executive Officers, who shall attempt to resolve the dispute in good faith. Such resolution, if any, of a referred issue shall be final and binding on the Parties. All negotiations
pursuant to this Section 9.2.1 are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. For the purposes of this Agreement, “Executive Officers” shall mean the Chief
Executive Officer of Infinity and the Vice President, Licensing of Amgen.
9.2.2
If the Executive Officers are unable to settle the
dispute after good faith negotiation pursuant to Section 9.2.1, then each Party reserves its right to any and all remedies available under law or equity with respect to such dispute.
9.2.3
Notwithstanding anything to the contrary in this Section 9.2, any Party may seek immediate injunctive or other interim relief from any
court of competent jurisdiction as necessary to enforce and prevent infringement or misappropriation of the Patent Rights, Know-How, Confidential Information or other intellectual property rights Controlled by a Party.
Section 9.3 GOVERNING LAW
. This Agreement shall be construed and the respective rights of the Parties determined according to the substantive laws
of the State of New York notwithstanding the provisions governing conflicts of law under such New York law to the contrary.
Section 9.4
ASSIGNMENT
. Neither Infinity nor Amgen may assign this Agreement in whole or in part without the consent of the other, except if such assignment occurs in connection with the sale or transfer (by merger or otherwise) of all or substantially all
of the business and assets of Infinity or Amgen to which the subject matter of this Agreement pertains, and then only if the acquirer confirms to the other Party in writing its agreement to be bound by all of the terms and conditions of this
Agreement. Each Party agrees that, notwithstanding any provisions of this Agreement to the contrary, in the event that this Agreement is assigned by either Party in connection with the sale or transfer of all or substantially all of the business and
assets of such Party to which the subject matter of this Agreement pertains, such assignment shall not provide the non-assigning Party with rights or access to intellectual property or technology of the acquiror of such Party. Notwithstanding the
foregoing, either Party may assign this Agreement to an Affiliate,
provided that
such Party shall guarantee the performance of such
29
Affiliate. Any purported assignment not in accordance with this Section 9.4 shall be void and of no effect.
Section 9.5 ENTIRE AGREEMENT; AMENDMENTS
. The Parties hereby agree that the Prior Agreement remained in effect commencing on the Prior Agreement
Effective Date and continuing until the Effective Date, notwithstanding anything contained in the Prior Agreement to the contrary, including, but not limited to, the provisions of Sections 2.2 and 7.1 of the Prior Agreement. As of the Effective
Date, the Prior Agreement is hereby terminated. On and after the Effective Date, this Agreement and the Exhibits referred to in this Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof. Any
amendment or modification to this Agreement shall be made in writing signed by both Parties.
Section 9.6 NOTICES
. Notices to
Infinity shall be addressed to:
Infinity Pharmaceuticals, Inc.
780 Memorial Drive
Cambridge, Massachusetts
02139
Attention: Chief Executive Officer
Facsimile No.: (617) 453-1001
with a copy to:
Wilmer Cutler Pickering Hale and Dorr LLP
60
State Street
Boston, Massachusetts 02109
Attention: Steven D. Singer, Esq.
Facsimile No.: (617) 526-5000
Notices to Amgen shall be addressed to:
Amgen Inc.
One Amgen Center Drive
Thousand Oaks, CA 91329-1799
Attention: Vice President, Licensing
Facsimile No.: (805) 499-6056
with a
copy to:
Attention: Senior Vice President, General Counsel
Facsimile No.: (805) 499-8011
Either Party may change its address to which notices shall be sent by
giving notice to the other Party in the manner herein provided. Any notice required or provided for by the terms of this Agreement shall be in writing and shall be (a) sent by registered or certified mail, return receipt requested, postage
prepaid, (b) sent via a reputable overnight courier service, or (c) sent by facsimile transmission, in each case properly addressed in accordance with this Section 9.6. The effective date of notice shall be the actual date of receipt
by the Party receiving the same.
30
Section 9.7 FORCE MAJEURE
. No failure or omission by either Party in the performance of any
obligation of this Agreement shall be deemed a breach of this Agreement or create any liability if the same shall arise from any cause or causes beyond the reasonable control of such Party, including, but not limited to, the following: acts of gods;
acts of any government; any rules, regulations or orders issued by any governmental authority or by any officer, department, agency or instrumentality thereof; fire; storm; flood; earthquake; accident; war; rebellion; insurrection; riot; terrorism
and invasion;
provided that
the Party affected by such cause promptly notifies the other Party and uses diligent efforts to cure such failure or omission as soon as is practicable after the occurrence of one or more of the above mentioned
causes.
Section 9.8 COMPLIANCE WITH LAWS
. Each Party shall perform its obligations under this Agreement in compliance with all
applicable Laws.
Section 9.9 PUBLIC ANNOUNCEMENTS
. Neither Party shall release any information to any Third Party or make any
disclosure or public announcement (including but not limited to press releases, educational and scientific conferences, quarterly investor updates, promotional materials, governmental filings and discussions with public officials, the media,
security analysts and investors) regarding the term and existence of this Agreement, or the relationship between the Parties, without the other Party’s prior written consent;
provided, however
,
that
(a) a Party may make any
disclosure or public announcement if the contents of such disclosure or public announcement have previously been made public other than through a breach of this Agreement by the issuing Party; and (b), if in the reasonable opinion of such
Party’s counsel, a public disclosure shall be required by Law, including without limitation in a public filing with the United States Securities and Exchange Commission, the disclosing Party shall provide copies of the disclosure reasonably in
advance (but in no event less than fifteen (15) Business Days if reasonably practicable under the circumstances) of such filing or other disclosure for the nondisclosing Party’s prior review and comment, which comments are to be considered
by the disclosing Party in good faith; the nondisclosing Party shall provide its comments, if any, on such announcement as soon as reasonably practicable (provided, however, that the disclosing Party need not delay its filing or disclosure, nor
consider any comments, if the nondisclosing Party’s comments are not received prior to the time that the disclosing Party must make such filing or disclosure in compliance with applicable Law); and (c) Infinity may issue a press release
substantially in the form attached hereto as
Exhibit C
, the final form of which shall be subject to the Parties’ mutual agreement.
Section 9.10 USE OF NAMES, LOGOS OR SYMBOLS
. Subject to Section 9.9, no Party hereto shall use the name, trademarks, logos, physical likeness, employee names or owner symbol of any other Party for any purpose, including, without
limitation, private or public securities placements, without the prior written consent of the affected Party. Nothing contained in this Agreement shall be construed as granting either Party any rights or license to use any of the other Party’s
trademarks or trade names or the names of any employees thereof, without separate, express written permission of the owner of such trademark or trade name or name.
Section 9.11 INDEPENDENT CONTRACTORS
. It is understood and agreed that the relationship between the Parties is that of independent contractors and that nothing in this Agreement shall be construed to create a
joint venture or any relationship of employment, agency or partnership between the Parties to this Agreement. Neither Party is authorized to
31
make any representations, commitments, or statements of any kind on behalf of the other Party or to take any action that would bind the other Party except as
explicitly provided in this Agreement.
Section 9.12 NO STRICT CONSTRUCTION
. This Agreement has been prepared jointly and shall not
be strictly construed against either Party.
Section 9.13 HEADINGS
. The captions or headings of the sections or other subdivisions
hereof are inserted only as a matter of convenience or for reference and shall have no effect on the meaning of the provisions hereof.
Section 9.14 NO IMPLIED WAIVERS; RIGHTS CUMULATIVE
. No failure on the part of Infinity or Amgen to exercise, and no delay by either Party in exercising, any right, power, remedy or privilege under this Agreement, or provided by
statute or at law or in equity or otherwise, shall impair, prejudice or constitute a waiver of any such right, power, remedy or privilege by such Party or be construed as a waiver of any breach of this Agreement or as an acquiescence therein by such
Party, nor shall any single or partial exercise of any such right, power, remedy or privilege by a Party preclude any other or further exercise thereof or the exercise of any other right, power, remedy or privilege.
Section 9.15 SEVERABILITY
. If, under applicable Laws, any provision of this Agreement is invalid or unenforceable, or otherwise directly or
indirectly affects the validity of any other material provision(s) of this Agreement (such invalid or unenforceable provision, a “Severed Clause”), this Agreement shall endure except for the Severed Clause. The Parties shall consult one
another and use good faith efforts to agree upon a valid and enforceable provision that is a reasonable substitute for the Severed Clause in view of the intent of this Agreement.
Section 9.16 EXECUTION IN COUNTERPARTS
. This Agreement may be executed in counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.
Section 9.17 NO THIRD PARTY BENEFICIARIES
. No person or entity other than Amgen and Infinity (and assignees) shall be deemed an intended beneficiary hereunder or have any right to enforce any obligation of this Agreement.
Section 9.18 PERFORMANCE BY AFFILIATES
. To the extent that this Agreement imposes obligations on Affiliates of a Party, such Party agrees to
cause its Affiliates to perform such obligations. Either Party may use one or more of its Affiliates to perform its obligations and duties hereunder,
provided that
the Parties shall remain liable hereunder for the prompt payment and
performance of all their respective obligations hereunder.
Section 9.19 NO CONSEQUENTIAL DAMAGES
. NEITHER PARTY HERETO WILL BE
LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR MULTIPLE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER, INCLUDING WITHOUT LIMITATION LOST PROFITS ARISING FROM OR RELATING TO ANY BREACH OF THIS
AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES.
32
Section 9.20 Exhibits
. In the event of inconsistencies between this Agreement and any exhibits or
attachments hereto, the terms of this Agreement shall control.
[Remainder of Page Intentionally Left Blank]
33
IN WITNESS WHEREOF
, the Parties have executed this Agreement as of the Effective Date.
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Steven H. Holtzman
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Name:
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Steven H. Holtzman
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Title:
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Chief Executive Officer
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AMGEN INC.
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By:
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/s/ Roger M. Perlmutter
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Name:
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Roger M. Perlmutter
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Title:
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Executive Vice President Research & Development
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EXHIBIT A
Library Compound Delivery Requirements
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1.
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The Synthetic Methodology and Pathways information was delivered by Infinity only to the Medicinal Chemistry group at Amgen, or a delegate specified in writing to Infinity (the
recipient group, the “
Med Chem Group
”), and the Library Compound Structure Information was delivered by Infinity only to the Molecular Structure group at Amgen (the “
Molecular Structure Group
”). Amgen shall not
disseminate the Synthetic Methodology and Pathways information beyond the Med Chem Group or the Library Compound Structure Information beyond the Molecular Structure Group,
provided
,
however
,
that
Amgen may disseminate such
information related to a Library Compound which is a Hit solely to those Amgen chemists who need such information in order to proceed with a Drug Discovery Program and Amgen shall track which chemists receive such information.
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EXHIBIT B
Second Success Triggers
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If the First Success Payment is
triggered by:
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First Success HTL Trigger
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First Success LOP Trigger
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First Success Patent Trigger
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Then the Second Success Payment may be triggered by:
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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[**]
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EXHIBIT C
Form of Press Release
[GRAPHIC APPEARS HERE]
INFINITY ANNOUNCES EXTENSION OF AMGEN AGREEMENT
CAMBRIDGE, Mass. — July __, 2006—Infinity Pharmaceuticals Inc. announced today that Amgen Inc. has extended its non-exclusive access to Infinity’s
collection of diverse, natural product-like compounds for drug discovery. Under the terms of the agreement, Amgen has the right to develop drug candidates it has identified from Infinity’s compound collection. Infinity received an up-front
license fee from Amgen and is eligible to receive milestones and royalties based on successful pre-clinical and clinical development and marketing of products resulting from Amgen’s use of Infinity’s compounds.
Infinity first announced its collaboration with Amgen on January 8, 2004 at which time Amgen made a $25 million equity investment in Infinity. Amgen currently owns
less 10% of the Company.
About Infinity’s Diversity Oriented Synthesis
Infinity’s proprietary chemistry, Diversity Oriented Synthesis (DOS), allows Infinity to create collections of innovative, diverse, natural product-like compounds for drug discovery. Through alliances that have
provided Infinity with over $60 million in upfront and committed funds, as well as potential milestone and royalty payments, Amgen, Novartis, and Johnson & Johnson are using Infinity’s collection of DOS compounds in their own drug
discovery efforts. While Infinity has non-exclusively licensed its compound collection to these pharmaceutical partners, Infinity recently announced it first partnership involving product candidates discovered by Infinity from its DOS collection.
About Infinity Pharmaceuticals, Inc.
Infinity is an
innovative cancer drug discovery and development company that leverages its strength in small molecule technologies to bring important new medicines to patients.
Editor’s Note: This release is available in the Press Release section of the Media Room of Infinity’s website at http://www.ipi.com
37
# # #
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Contacts:
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Adelene Q. Perkins
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Paul Kidwell (media)
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Executive Vice President, Chief Business Officer
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Suda Communications
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Infinity Pharmaceuticals, Inc.
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617-296-3854
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617-453-1104
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paul_kidwell@comcast.net
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Adelene.Perkins@ipi.com
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38
Exhibit 10.2
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisk
denote omissions.
COLLABORATION AND OPTION AGREEMENT
by and between
Infinity Pharmaceuticals, Inc.
and
Novartis International
Pharmaceutical Ltd.
Collaboration Agreement — Confidential
COLLABORATION AND OPTION AGREEMENT
This Agreement is made this 16
th
day of November, 2004 (the “
Effective Date
”) by and between Infinity Pharmaceuticals, Inc. (“
Infinity
”), a Delaware corporation with principal offices at 780 Memorial Drive, Cambridge, Massachusetts
02139, and Novartis International Pharmaceutical Ltd. (“
Novartis
”), a Bermuda corporation with principal offices at Hurst Holme, 12 Trott Road, Hamilton, HM LX, Bermuda. Infinity and Novartis are sometimes referred to herein
individually as a “
Party
” and together as the “
Parties
.”
I
NTRODUCTION
WHEREAS, Infinity has developed a proprietary diversity oriented synthesis methodology to design novel, three-dimensional, natural compound-like
synthetic compounds;
WHEREAS, Novartis and its Affiliates possess expertise in discovering, developing, manufacturing, marketing, and
selling pharmaceuticals worldwide;
WHEREAS, Infinity and Novartis desire to enter into a collaboration, the objectives of which are the
joint design by the Parties of Synthetic Pathways, as defined herein, and the synthesis by Infinity, using such Synthetic Pathways, of certain of the Library Compounds, as defined herein (the “
Collaboration
”);
WHEREAS, each of the Parties, together with its respective Affiliates, is interested in screening Library Compounds against Targets with the goal of
developing and commercializing drugs for human therapeutic and other purposes;
WHEREAS, in the event that Infinity generates any Lead
Programs, as defined herein, using Library Compounds, then Novartis and its Affiliates shall have the option to develop, market and sell the same as drugs upon the terms set forth herein and in a License, Development and Commercialization Agreement
identical in substance to
Exhibit A
hereto; and
WHEREAS, in connection with the Collaboration, Infinity desires to sell, and
Novartis Pharma AG, an Affiliate of Novartis, desires to purchase on the Effective Date 3,333,333 shares of Infinity’s Series C Preferred Stock for an aggregate purchase price of U.S.$15 million, in accordance with the terms and conditions of
the Stock Purchase Agreement (as defined herein);
Collaboration Agreement — Confidential
NOW THEREFORE, in consideration of the mutual covenants set forth in this Agreement, and other good and
valuable consideration, the Parties agree as follows:
ARTICLE I
D
EFINITIONS
1.1. “Acceptance Criteria”
shall
mean the minimum acceptable criteria set forth in Section 2.2.4 that each Proposed Compound must meet before such Proposed Compound can be deemed an Actual Compound.
1.2. “Actual Compound”
shall mean Proposed Compounds which meet the Acceptance Criteria in Section 2.2.4 and have been deemed an Actual Compound as set forth in Section 2.2.6. For purposes
of clarity, an Actual Compound shall also remain a Library Compound.
1.3. “Active Moiety”
shall have the meaning assigned
to that term under 21 CFR 314.108(a), as such regulation is in effect on the Effective Date, namely: “the molecule or ion, excluding those appended portions of the molecule that cause the drug to be an ester, salt (including a salt with
hydrogen or coordination bonds), or other noncovalent derivative (such as a complex, a chelate or clathrate) of the molecule, responsible for the physiological or pharmacological action of the drug substance.”
1.4. “Affiliate”
shall mean, with respect to any Person, any other Person which directly or indirectly, by itself or through one or more
intermediaries, controls, or is controlled by, or is under common control with, such Person. The term “control” (as applied to a Person) means the possession, direct or indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Control will be presumed if one Person owns, either of record or beneficially, at least fifty percent (50%) of the voting stock
of any other Person. Such other
Collaboration Agreement — Confidential – Page 2
relationship as in fact results in actual control over the management, business, and affairs of a Person shall also be deemed to constitute control;
provided
,
however
, that no Person shall be deemed to exercise control over another Person solely because the latter relies on the former for a majority of its business. A Person will be deemed an Affiliate only so long as such
ownership or control relationship continues. In the case of Novartis, “Affiliates” shall also expressly be deemed to include the Novartis Institute for Functional Genomics, Inc. and the Friedrich Miescher Institute for BioMedical Research
and their respective Affiliates.
1.5. “Background Intellectual Property”
shall have the meaning set forth in
Section 7.1.1(a).
1.6. “Collaboration”
shall have the meaning set forth in the preamble hereto.
1.7. “Collaboration Intellectual Property”
shall mean Compound Related Intellectual Property, Compound Intellectual Property and
Non-Compound Related Intellectual Property.
1.8. “Compound Intellectual Property”
shall have the meaning set forth in
Section 3.2.2.
1.9. “Compound Related Intellectual Property”
shall have the meaning set forth in Section 7.1.2.
1.10. “Controlled”
shall mean, with respect to an Intellectual Property right, the legal authority or right of a Party
(other than by license pursuant to this Agreement) to grant a license or sublicense of such intellectual property rights to the other Party, or to otherwise disclose such proprietary or trade secret information to such other Party, as applicable,
without breaching the terms of any agreement with a Third Party.
1.11. “Data Package”
shall have the meaning set forth in
Section 3.3.3.
1.12. “Data Receipt Notice”
shall have the meaning set forth in Section 3.3.4(a).
Collaboration Agreement — Confidential – Page 3
1.13. “Derivative Compounds”
shall mean any and all compounds that are modified by
chemical and/or molecular-genetic means from a Library Compound. Analogues of such compounds and their derivatives shall be included within the scope of Derivative Compounds.
1.14. “Effective Date”
shall mean the effective date of this Agreement as set forth on the first page.
1.15. “Field”
shall mean all human and veterinary health-care applications including, but not limited to, research, diagnosis,
therapeutics, and prophylaxis with respect to any indication, together with all agricultural purposes.
1.16. “Genus
License”
shall have the meaning set forth in Section 3.2.1.
1.17. “Infinity Compound”
shall have the
meaning set forth in Section 3.4(b) and/or Section 3.5, as applicable.
1.18. “Infinity Compound Patent”
shall
have the meaning set forth in Section 3.2.3.
1.19. “Intellectual Property”
shall mean all confidential and
proprietary data, technical information, know-how, experience, inventions (whether or not patented and all Patents claiming such inventions), and trade secrets Controlled by a Party or its Affiliates.
1.20. “Investors’ Rights Agreement”
shall mean that certain Third Amended and Restated Investors’ Rights Agreement dated as of
the Effective Date.
1.21. “Joint Steering Committee”
shall have the meaning set forth in Section 2.3.1.
1.22. “Lead Criteria”
shall have the meaning set forth in Section 3.3.2.
1.23. “Lead Program”
shall mean any Library Compounds, together with all Derivative Compounds (and together with any and all compounds
having the same Active Moiety as such Library Compounds or Derivative Compounds), which: (a) are discovered during the course of screening and initial optimization of the Library Compounds against a Target by Infinity or its Affiliates;
(b) meet the Lead Criteria; and (c) Infinity wishes to further optimize. A Lead Program may be composed of one or more Lead Series.
Collaboration Agreement — Confidential – Page 4
1.24. “Lead Series”
shall mean the structurally-related Derivative Compounds contained
in a Lead Program. Each Lead Series shall contain at least [**] chemical entities.
1.25. “Library Compound”
shall mean
any chemical entity that may be synthesized through the synthetic transformations defining a Synthetic Pathway.
1.26. “License
Agreement”
shall mean the License, Development and Commercialization Agreement, identical in substance to
Exhibit A
hereto, to be executed by Infinity and Novartis with respect to Optioned Lead Program(s).
1.27. “Non-Acceptance Notice”
shall have the meaning set forth in Section 2.2.5(a).
1.28. “Non-Acceptance Notice Period”
shall have the meaning set forth in Section 2.2.5(a).
1.29. “Non-Compound Related Intellectual Property”
shall have the meaning set forth in Section 7.1.3.
1.30. “Novartis Reserved Target”
shall have the meaning set forth in Section 3.1.2(b)(iii).
1.31. “Option”
shall have the meaning set forth in Section 3.3.1.
1.32. “Optioned Lead Program”
shall mean any Lead Program as to which Novartis has exercised its Option.
1.33. “Patents”
means all existing patents and patent applications and all patent applications hereafter filed, including any
continuation, continuation-in-part, divisional, provisional or any substitute applications, any patent issued with respect to any such patent applications, any reissue, reexamination, renewal or extension (including any supplementary protection
certificate) of any of the foregoing patents, and any confirmation patent or registration patent or patent of addition based on any of the foregoing patents, and all foreign counterparts of any of the foregoing.
Collaboration Agreement — Confidential – Page 5
1.34. “Person”
means any individual, corporation, partnership, association, joint-stock
company, trust, unincorporated organization or government or political subdivision thereof.
1.35. “Proposed Compounds”
shall mean that subset of Library Compounds that the Joint Steering Committee determines are to be synthesized by Infinity during the Collaboration pursuant to Section 2.2.3.
1.36. “Scaffold”
shall mean a skeletal core of a molecule with designated chemical functionality through which variable substituents can
be attached through standard organic chemical transformations, and that the Joint Steering Committee designates as part of the Collaboration. Stereochemical variations in the Scaffold shall be considered the same Scaffold. For clarity,
representative examples of compounds that would be inside or outside of a particular Scaffold are described in
Exhibit B
.
1.37. “Stock Purchase Agreement”
shall mean that Stock Purchase Agreement dated as of the Effective Date by and between Infinity and Novartis Pharma AG, an Affiliate of Novartis.
1.38. “Synthetic Pathway”
shall mean any sequence of chemical transformations that create a Scaffold, and that the Joint Steering
Committee designates as part of the Collaboration.
1.39. “Target”
shall mean any biological entity identified as being
potentially involved in one or more disease states.
1.40. “Third Party”
shall mean any Person that is not a Party or an
Affiliate of any Party.
1.41. “Threshold Date”
shall have the meaning set forth in Section 3.1.2(b).
Collaboration Agreement — Confidential – Page 6
ARTICLE II
T
HE
C
OLLABORATION
2.1. Commencement; Direction.
The Collaboration shall commence on the Effective Date. The Joint Steering Committee shall direct the conduct of the Collaboration.
2.2. Library Design and Synthesis.
2.2.1.
Synthetic Pathways
. During the course of the Collaboration, the Joint Steering Committee shall design, and Infinity shall deliver Actual Compounds from, no fewer than [**] and no more than [**] Synthetic Pathways.
2.2.2.
Library Compounds
. The Joint Steering Committee shall design Synthetic Pathways, Scaffolds and their associated
Library Compounds so as not to overlap with compounds outside the scope of the Collaboration that are then in or under development for the compound collection of a Party or its Affiliates. The vote by each Party’s representatives to the Joint
Steering Committee approving the designation of a Synthetic Pathway and Scaffold shall be deemed a representation by such Party that such Synthetic Pathway and Scaffold do not overlap with compounds outside the scope of the Collaboration that are
then in or under development for the compound collection of such Party or its Affiliates. Upon approval, each Synthetic Pathway and Scaffold, together with representative examples and any written descriptions shall be attached and incorporated
hereto as
Exhibit C
.
2.2.3.
Proposed Compounds
. The Joint Steering Committee shall identify the chemical
entities to be synthesized by Infinity (the “
Proposed Compounds
”). Infinity shall not synthesize more than [**] Actual Compounds using any [**] Synthetic Pathway. Infinity shall synthesize, on average, between [**] and [**]
micromoles of each Proposed Compound. It is the expectation of the Parties that Infinity will provide Novartis with [**] micromoles of each Proposed Compound;
provided
,
however
, that for no more than [**] percent ([**]%) of the
Proposed Compounds generated in connection with any Synthetic Pathway, Infinity may provide Novartis with an amount greater than or equal to [**], but less than [**], micromoles of each such Proposed Compound. In no event will Infinity provide
Novartis with fewer than [**] micromoles of any Proposed Compound.
Collaboration Agreement — Confidential – Page 7
2.2.4.
Acceptance Criteria
. Infinity will deliver to Novartis only Proposed Compounds that,
in Infinity’s reasonable judgment, meet the following Acceptance Criteria:
(a) The quantities of Proposed Compounds delivered to
Novartis shall be no less than as set forth in Section 2.2.3.
(b) Each Proposed Compound shall be at least [**] percent ([**]%)
pure, as defined by HPLC-MS UV at 210 nm. In the event that the Joint Steering Committee determines that HPLC-MS UV is not an appropriate detection method for a Proposed Compound, its purity shall instead be determined by HPLC-MS ELSD.
(c) Infinity will provide Proposed Compounds to Novartis in barcoded Whatman plates (96-deepwell, 1 ml) with Platelock™ heat-sealed foil covers
from Velocity11 (or other comparable sealing, mutually agreed by the Parties). Novartis shall provide the Whatman plates to Infinity. If the Platelock™ heat-sealed foil covers from Velocity11 are used, Infinity shall provide them. If other
materials are used, the Parties will mutually agree on which Party shall supply such other materials. The Proposed Compounds shall be provided in [**] with eighty-eight (88) Proposed Compounds per plate in columns 1-11 and with column 12 empty.
(d) The plates will be shipped on dry ice to the shipping destination indicated by Novartis, via a carrier selected in advance by
Novartis, FOB Infinity’s facility in Cambridge, the cost of which shall be borne by Novartis.
(e) Contemporaneously with its
delivery of the Proposed Compounds, Infinity shall deliver to Novartis an accurate structural description for each Proposed Compound in an electronic format reasonably acceptable to Novartis.
(f) Contemporaneously with its delivery of the Proposed Compounds, Infinity will also deliver electronic copies of its production notebooks which
contain Synthetic Pathway information related to the Proposed Compounds that is reasonably necessary to allow Novartis to
Collaboration Agreement — Confidential – Page 8
synthesize the Proposed Compounds, which production notebooks include without limitation all information regarding the reaction conditions, necessary
reagents, materials, and the like used by Infinity to synthesize the Library Compounds and any intermediates made by Infinity. Such notebooks shall be delivered in an electronic format reasonably acceptable to Novartis.
2.2.5.
Non-Acceptance of a Proposed Compound
.
(a) In the event that Novartis, in its reasonable discretion, determines that a Proposed Compound does not meet the Acceptance Criteria, it shall so notify Infinity in writing (the “
Non-Acceptance
Notice
”) within [**] calendar days of the delivery of such Proposed Compound (the “
Non-Acceptance Notice Period
”).
(b) Novartis shall disclose in any Non-Acceptance Notice which Acceptance Criteria were not achieved. The Parties will share the data necessary to resolve differences over whether the Acceptance Criteria were met and shall refer any
unresolved disputes to the Joint Steering Committee pursuant to Section 2.4.2.
(c) Infinity may, in its sole discretion, attempt to
address the unachieved Acceptance Criteria disclosed in the Non-Acceptance Notice, and may then resubmit the relevant Proposed Compound to Novartis, along with other Proposed Compounds, in accordance with the procedure specified in
Section 2.2.4. The timetable set forth in subsection (a) shall apply to the resubmitted Proposed Compound as if it were being submitted to Novartis for the first time.
(d) If a Proposed Compound is ultimately rejected by the Joint Steering Committee, then Novartis shall delete structural and related information with
respect to such Proposed Compound from Novartis’ databases and return to Infinity all remaining Proposed Compound material which is not in Novartis’ screening format. Novartis may continue to include such material in screens;
provided
,
however
, that Novartis shall not conduct research on such rejected Proposed Compounds nor determine the structure of such Proposed Compound through any analytical or other method.
Collaboration Agreement — Confidential – Page 9
(e) Notwithstanding the foregoing, any Proposed Compound that is the subject of a Non-Acceptance Notice
or has been rejected by the Joint Steering Committee shall remain a Library Compound for purposes of this Agreement.
2.2.6.
Acceptance as an Actual Compound
. In the event that Novartis does not provide Infinity with a Non-Acceptance Notice in respect of a particular Proposed Compound within the relevant Non-Acceptance Notice Period, such Proposed Compound, upon
expiration of the Non-Acceptance Notice Period, shall automatically be deemed to be an Actual Compound.
2.2.7.
Diligence
Obligations
. Prior to the [**] anniversary of the Effective Date, Infinity shall synthesize and deliver to Novartis [**] Actual Compounds;
provided
,
however
, that should Infinity not deliver [**] Actual Compounds to Novartis by
such anniversary date, then Infinity shall not be in breach of this diligence obligation;
provided
further
that Infinity shall continue using commercially reasonable efforts to synthesize Actual Compounds thereafter until Infinity
shall have synthesized and delivered [**] Actual Compounds to Novartis, unless otherwise agreed upon in writing between the Parties.
2.2.8.
Payment for Actual Compounds
. Upon submission by Infinity of a corresponding invoice, Novartis shall pay Infinity U.S.$[**] per Actual Compound, which amount shall be payable within [**] calendar days of receipt of such
invoice;
provided
,
however
, that in each case, Infinity shall not submit any invoices (other than the final invoice of the Collaboration) until the aggregate amount owed by Novartis equals or exceeds U.S.$[**].
2.3. Joint Steering Committee.
2.3.1.
Composition
. Upon execution of this Agreement, Infinity and Novartis will establish a Joint Steering Committee (the “
Joint Steering Committee
”), which shall consist of an equal number of executives or
scientists as may be designated by each Party from time to time. The Joint Steering Committee shall initially have six (6) members. The Committee Chair will be appointed from among the members of the Joint Steering Committee designated by
Novartis.
Collaboration Agreement — Confidential – Page 10
2.3.2.
Meetings; Purposes
. The Joint Steering Committee shall hold its first meeting within
thirty (30) calendar days after the Effective Date. At its first meeting, the Joint Steering Committee shall outline a process to ensure that the first Synthetic Pathway(s), the scope of the resulting Library Compounds and the Proposed
Compounds to be synthesized by Infinity from such Synthetic Pathways are approved as quickly as possible so that Infinity can initiate synthesis of such Proposed Compounds. Thereafter, the Joint Steering Committee shall meet quarterly, or with such
other frequency, and at such times, as may be established by the Joint Steering Committee, at the offices of Infinity in Cambridge, Massachusetts or Novartis in Basel, Switzerland or Cambridge, Massachusetts (
provided
that no more than one
meeting per calendar year shall be held in Basel, Switzerland without the consent of the Parties), for the following purposes:
(a)
Determining the number of Synthetic Pathways,
(b) Determining the design of Synthetic Pathways, Scaffolds, the resulting Library
Compounds, and the Proposed Compounds to be synthesized by Infinity;
(c) Ensuring that Library Compounds will be designed so as not to
overlap with compounds then in, or under development for, either Party’s (or its Affiliates’) compound collections outside of the Collaboration;
(d) Determining the Lead Criteria and the Data Package, on a Target by Target basis, for each Target screened by Infinity pursuant to Article III for which the Option applies (it being understood that such
determinations shall be made, whenever possible, at regularly scheduled meetings of the Joint Steering Committee, but in no event more than [**] days after Infinity has proposed such Target to Novartis in writing; and
provided
,
however
, that if the Lead Criteria and Data Package are not determined within such [**] day period, then the criteria specified in Sections 3.3.2 and 3.3.3, respectively, shall apply);
(e) Providing general oversight of the entire Collaboration between Infinity and Novartis, including periodic review of the overall goals and strategy
of the Collaboration;
Collaboration Agreement — Confidential – Page 11
(f) Attempting to resolve any disagreement between the Parties hereunder, including disputes relating to
an assertion pursuant to a Non-Acceptance Notice that a Proposed Compound has failed to meet Acceptance Criteria, and discussion and resolution, if possible, of any other deadlocked issues submitted to it;
(g) Addressing any matters raised under relevant provisions of the License Agreement;
(h) With respect to a Lead Series which is subject to the Option, determining whether Infinity shall have the right, if Infinity requests such right, to
file Patent applications, under Infinity’s name and at Infinity’s expense, directed to such Lead Series, including any Actual Compounds in such Lead Series, prior to the expiration of the [**] day Option exercise period or Novartis’
declining the Option for such Lead Series, it being understood that: (i) Novartis and Infinity shall cooperate in the drafting and filing of such Patent application; (ii) such Patent application shall be subject to the conditions set forth
in Section 3.2.3 (except if Novartis shall decide otherwise); and (iii) if Novartis exercises its Option with respect to such Lead Program, such Patent applications shall be assigned to Novartis, and Infinity shall cause its Affiliates,
employees and/or consultants to so assign such Patent applications;
(i) Determining whether HPLC-MS UV at 210 nm is the appropriate
purity detection method for a synthesized compound described in Sections 2.2.4(b), 3.3.2(a) or 3.3.4(c);
(j) Determining whether to
protect (through filing for and maintenance of intellectual property protection and/or the enforcement or defense thereof, as applicable) the Compound Related Intellectual Property; and
(k) Making any changes to the Acceptance Criteria set forth in Section 2.2.4.
2.4. Decisions of the Joint Steering Committee; Resolution of Disputes.
2.4.1.
The Joint Steering Committee shall make decisions unanimously where possible, but at least by majority vote, with respect to the matters
described in Sections 2.3.2(d), (h) and (j). In the event of a deadlock with respect to such matters, Novartis shall have the deciding vote.
Collaboration Agreement — Confidential – Page 12
2.4.2.
The unanimous vote of the Joint Steering Committee shall be required in order to make
decisions with respect to the matters described in Sections 2.3.2(a), (b), (c), (e), (f), (i) and (k). In the event that the Joint Steering Committee is deadlocked as to any of these issues, then the Parties may have the issue referred to the
Chief Scientific Officer of Infinity and the Vice President of Global Discovery Chemistry of the Novartis Institutes for BioMedical Research, Inc. (or their equivalent) for good faith resolution. Notwithstanding the foregoing, with respect to
Section 2.3.2(c), in no event shall either Party have the right to force the other Party to accept the design of a Synthetic Pathway or Scaffold which such other Party represents would overlap with compounds then in, or under development for,
such other Party’s (or its Affiliates’) compound collections outside of the Collaboration.
2.4.3.
The unanimous vote of
the Joint Steering Committee shall be required in order to make decisions with respect to the matter described in Section 2.3.2(g). In the event that the Joint Steering Committee is deadlocked as to this issue, then the Parties may have the
issue referred to the Chief Executive Officer of Infinity and the President of the Novartis Institutes for BioMedical Research, Inc. (or their equivalent) for good faith resolution.
2.5. Additional Assistance by Infinity.
2.5.1.
Third Party Improvements
. In the event that a Third Party, for or on behalf of Infinity, makes any improvements to reagents, materials, and the like which are necessary for Novartis to synthesize an Actual Compound,
Infinity shall, at no cost to Novartis, grant Novartis any required permissions or licenses from Infinity to use such improvements to the extent Infinity Controls such improvements and will use reasonable efforts to help Novartis secure access to
such improvements from such Third Party on business terms comparable to those afforded Infinity.
2.5.2.
Hosting of Novartis
Scientists
. Infinity shall, [**], provide work space and support on its premises for up to [**] Novartis scientists for an aggregate of up to [**] calendar days each (it being understood that such period shall refer to the total number of days
each scientist is hosted on the Infinity premises, and not necessarily a period of [**] consecutive calendar days), in increments of at least [**] calendar days per visit, in order to assist Novartis in
Collaboration Agreement — Confidential – Page 13
connection with the resynthesis of Actual Compounds;
provided
that Novartis shall reimburse Infinity for any reasonable, documentable expense for
reagents and consumables used by such Novartis scientists in connection with such resynthesis. Each such visit by a Novartis scientist shall be scheduled at least [**] weeks in advance.
2.5.3.
Provision of Infinity Chemist
. At the request of Novartis and on Novartis’ premises, Infinity shall provide a chemist,
reasonably acceptable to Novartis, for up to [**] per Synthetic Pathway, to assist Novartis with the resynthesis of Actual Compounds related to such Synthetic Pathway. The provision of such chemist shall be [**],
provided
that Novartis shall
reimburse Infinity for any reasonable, documentable out-of-pocket and travel expenses incurred by such chemist in connection therewith. Each such visit by an Infinity chemist shall be scheduled at least [**] weeks in advance.
2.6. Exchange of Information.
2.6.1.
Status of Collaboration
. Infinity and Novartis will share information with the Joint Steering Committee, no less frequently than at the quarterly meetings of the Joint Steering Committee, reasonably necessary to
facilitate mutual understanding of the status of the Collaboration and decision-making in connection therewith.
2.6.2.
Misuse of
Background Intellectual Property
. Neither Party shall use the Background Intellectual Property of the other (excluding information which is no longer subject to confidentiality restrictions under Article IV by reason of the exceptions set forth
in Sections 4.2(a), (c), (d) and (e)) for any purpose, including the filing of Patents containing such information, without the other Party’s written consent, other than for carrying out the Collaboration or discharging its
responsibilities under the License Agreement, or as otherwise permitted hereunder or under the License Agreement.
2.6.3.
Restrictions on Rights
. Neither Party shall be entitled to receive information from the other Party concerning Intellectual Property discovered or developed by that Party outside the Collaboration or otherwise unrelated to design and
synthesis of Synthetic Pathways, Scaffolds, Library Compounds, or Lead Programs under this Agreement or the
Collaboration Agreement — Confidential – Page 14
License Agreement;
except
that, with respect to each Proposed Compound, Infinity shall also disclose to Novartis in a timely manner any and all
Intellectual Property (including, without limitation, know-how and/or technology which it discovers or develops regarding the Synthetic Pathways and/or Scaffolds) which Infinity used to synthesize such Proposed Compound.
2.7. Exclusivity; Freedom of Action.
Infinity will collaborate on the Synthetic Pathways with Novartis solely. For the avoidance of doubt, and except as otherwise set forth in this Agreement or the License Agreement, either Party and any of its Affiliates shall be free, alone
or together with Third Parties, to pursue the identification, development or commercialization of chemical entities that modulate any Target, free of any obligation to the other Party not expressly stated in this Agreement or the License Agreement
(but subject to any Intellectual Property rights of such other Party not expressly granted in this Agreement or the License Agreement).
ARTICLE III
I
NTELLECTUAL
P
ROPERTY
R
IGHTS
;
O
PTION
TO
D
EVELOP
AND
C
OMMERCIALIZE
3.1. Use Rights with Respect to Library Compounds.
3.1.1.
Novartis’ Ownership and Use Rights with Respect to Library Compounds
. Novartis shall be the sole owner of all Actual Compounds, including Infinity Compounds. Subject to the other terms and
conditions of this Agreement, Novartis and its Affiliates shall have the right, alone or with Third Parties, to make, use, sell, offer to sell, export, import, license and distribute any and all Library Compounds for research, development, and
commercialization purposes;
provided
that during the term of this Agreement, Novartis and its Affiliates may not sell, offer to sell, export, import, license or distribute the Library Compounds as libraries per se. Notwithstanding the
foregoing, a sale, an offer for sale, an exportation, an importation, a license or a distribution of the Library Compounds as part of a larger asset transfer or transaction shall not be deemed “a sale, an offer for sale, an exportation, an
importation, a license or a distribution as a library” hereunder.
Collaboration Agreement — Confidential – Page 15
3.1.2.
Infinity’s Use Rights with Respect to Library Compounds
.
(a) Subject to the other terms and conditions of this Agreement (including, without limitation, Section 3.3.5), Infinity shall have the right to
screen Library Compounds against any Target;
provided
that Infinity may not sell or otherwise provide such Library Compounds to any Third Party (except that Infinity may (i) provide Library Compounds to subcontractors working on
Infinity’s behalf to fulfill Infinity’s obligations under this Agreement and (ii) sell, license or otherwise distribute to Third Parties Library Compounds specifically identified as included in a Lead Program with respect to a Target
(other than a Novartis Reserved Target) for which Novartis has declined its Option, for which the relevant [**] day Option exercise period has expired, or for which Novartis does not have an Option).
(b) Prior to the [**] anniversary of the Effective Date or the [**] anniversary of the acceptance by Novartis of the [**] Actual Compound, whichever is
later (the “
Threshold Date
”), Infinity shall be restricted with respect to screening Library Compounds, as follows:
|
|
(i)
|
Infinity shall offer all Lead Programs to Novartis pursuant to the Option.
|
|
|
(ii)
|
Prior to screening, Infinity must disclose the Target proposed to be screened or the other screening efforts to be undertaken, as applicable, in writing to a Novartis representative
selected by the Joint Steering Committee. In the event that such screening efforts are not directed to a particular Target, then Infinity shall notify the Novartis representative selected by the Joint Steering Committee promptly upon the
identification of the modulated Target(s) resulting from such screening efforts, and the conditions set forth in Section 3.3 shall apply regardless of when such Target(s) is identified.
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Collaboration Agreement — Confidential – Page 16
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(iii)
|
If, at the time of disclosure, Novartis has a discovery program or proposed program regarding the proposed Target, or if Novartis is screening or otherwise committing scientific
effort and resources to study the Target which effort and resources are consistent with Novartis’ other Target programs or is planning to screen or otherwise study the Target during the next [**] months, then Novartis will so notify Infinity in
writing within [**] calendar days after such disclosure that the proposed Target of such screening is a “
Novartis Reserved Target
,” in which case the provisions of Section 3.3.5(b) with respect to Novartis Reserved Targets
shall apply.
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(c) For the avoidance of doubt, Lead Programs resulting from screening Library Compounds prior to the
Threshold Date shall be subject to Sections 3.3.5.
3.2. Patent Rights and License Grants with Respect to Library Compounds, Actual
Compounds and Infinity Compounds.
3.2.1.
Patent Rights and License Grants to Library Compounds that are not Actual Compounds
or Infinity Compounds
. At any time, either Party or its Affiliates may file or obtain Patents with respect to claims (specific or generic) covering Library Compounds that are not Actual Compounds or Infinity Compounds (including claims as to the
use or manufacture thereof), subject to an automatic grant to the other Party and its Affiliates under such Patents of a worldwide, perpetual (subject to the last sentence of this Section 3.2.1), non-exclusive, fully-paid, royalty-free license
(with the right to sublicense) to conduct research with respect to such Library Compounds in the Field, it being understood that the purpose of such research is the development of products in the Field. In the case of Library Compounds that are not
Infinity Compounds, Infinity shall automatically grant Novartis and its Affiliates, under the genus claims of Infinity’s composition of matter claims in such Patents covering such Library Compounds and their manufacture, a perpetual (subject to
the last sentence of this Section 3.2.1), worldwide, non-exclusive, fully-paid, royalty-free license (with right to sublicense), to research, develop,
Collaboration Agreement — Confidential – Page 17
commercialize, make, use, manufacture, export, import, offer to sell and sell such Library Compounds in the Field (the “
Genus License
”);
provided
,
however
, that: (a) this license shall not apply with respect to uses against any Target that was the basis of a Lead Program for which Novartis has declined to exercise its Option or for which the relevant [**] day
Option exercise period has expired; and (b) for such Infinity programs arising from screening Library Compounds after the Threshold Date (and therefore for which no Option applies), this license shall not apply with respect to Targets for which
one or more Library Compounds are exemplified in such Patents, by way of actual examples, to modulate such Targets as their primary mechanism of action. The foregoing licenses shall survive any termination or expiration of this Agreement, except if
such termination is caused by the breach of the Party receiving such license.
3.2.2.
Patent Rights and License Grants with
Respect to Actual Compounds
. Novartis or its Affiliates shall have the sole right to obtain Patents with respect to claims (whether specific or generic) covering Actual Compounds (including, without limitation, claims as to the manufacture or
use thereof) that are not Infinity Compounds (the “
Compound Intellectual Property
”), except as set forth in Section 2.3.2(h), subject to an automatic grant to Infinity and its Affiliates under such Patents of a perpetual,
worldwide, non-exclusive, fully-paid, royalty-free license (with the right to sublicense) to conduct research with respect to such Actual Compounds in the Field. The foregoing license shall survive any termination or expiration of this Agreement,
except if such termination is caused by Infinity’s breach.
3.2.3.
Patent Rights and License Grants with Respect to Infinity
Compounds
. In the event that Infinity designates an Actual Compound as an Infinity Compound pursuant to the terms of Section 3.4(b) or Section 3.5, as applicable, Novartis shall automatically assign to Infinity, for patenting purposes
only, Novartis’ rights in such Infinity Compound, and shall automatically grant Infinity and its Affiliates a worldwide, exclusive even as to Novartis, fully-paid, royalty-free license (with the right to sublicense) under its interest in the
Collaboration Intellectual Property to research, develop, commercialize, use, manufacture, import, export, offer to sell and sell such Infinity Compounds in the Field. Infinity shall have the sole right, at
Collaboration Agreement — Confidential – Page 18
Infinity’s expense, to file, prosecute and maintain Patents with respect to claims covering Infinity Compounds (including claims as to the manufacture
or use thereof) (an “
Infinity Compound Patent
”);
provided
that: (i) each individual Infinity Compound Patent shall not claim Infinity Compounds (including claims as to the manufacture or use thereof) derived from more
than [**] Synthetic Pathway and shall respect the conditions set forth in Section 3.4(b)(i) through (v); and (ii) in the event an Infinity Compound Patent erroneously covers an Actual Compound, Infinity shall grant to Novartis and its
Affiliates under such Infinity Compound Patent a worldwide, exclusive even as to Infinity, fully-paid, royalty-free license (with right to sublicense) to research, develop, commercialize, use, manufacture, import, export, offer to sell and sell such
Actual Compounds in the Field, and the research license granted to Infinity pursuant to Section 3.2.2 shall not be applicable with respect to such Actual Compound. For the avoidance of doubt, any claims covering an Actual Compound: (a) in
a Lead Series which is subject to the Option for which the relevant [**] day Option exercise period has not yet expired nor been declined by Novartis shall not be considered erroneous if: (1) Infinity has been permitted the right to file and
obtain Patents with respect to such Lead Series pursuant to Section 2.3.2(h), and (2) Infinity designates such Actual Compounds as Infinity Compounds within [**] days after Novartis has declined its Option with respect to such Lead Series
or for which the relevant [**] day Option exercise period has expired; (b) in a Lead Series which was subject to the Option which Option Novartis had declined or for which the relevant [**] day Option exercise period has expired shall not be
considered erroneous if Infinity designates such Actual Compounds as Infinity Compounds pursuant to Section 3.4(b); or (c) with respect to Infinity’s screening activities directed at the Library Compounds which are conducted after the
Threshold Date shall not be considered erroneous if Infinity designates such Actual Compounds as Infinity Compounds pursuant to Section 3.5. In addition, Infinity shall automatically grant to Novartis and its Affiliates a worldwide,
non-exclusive, full-paid, royalty-free license (with the right to sublicense) under its interest in the Infinity Compound Patents, the Collaboration Intellectual Property and the Background Intellectual Property to conduct research with respect to
the relevant Infinity Compound in the Field. For the avoidance of doubt, the Genus License shall be applicable to its related Infinity Compound Patent with respect to claims covering Library
Collaboration Agreement — Confidential – Page 19
Compounds that are not Actual Compounds or Infinity Compounds. The foregoing licenses shall survive any termination or
expiration of this Agreement, except if such termination is caused by the breach of the Party receiving the license.
3.3. Option with
Respect to Lead Programs.
3.3.1.
Exclusivity
. For Lead Programs developed from screening Library Compounds prior to the
Threshold Date, Novartis shall have the exclusive right (the “
Option
”) to obtain a worldwide, exclusive license (with right to sublicense) on a Target-by-Target basis, to develop and commercialize any such Lead Program in the Field,
under the terms and conditions set forth in the License Agreement.
3.3.2.
Lead Criteria
. Prior to the Threshold Date, and
before Infinity commences screening a Target (or when a Target is identified as set forth in 3.1.2(b)(ii)), the Joint Steering Committee shall determine, pursuant to Section 2.3.2(d), the appropriate assays and criteria (the “
Lead
Criteria
”) that will trigger Novartis’ Option with respect to such Lead Program comprised of one or more Lead Series, such Lead Criteria to include at least the following:
(a) [**], as applicable, and purification (>[**]% purity by HPLC-MS UV 210 nm; in the event that the Joint Steering Committee determines that HPLC-MS
UV is not an appropriate detection method, then purity shall instead be determined by HPLC-MS ELSD), in each case, of at least [**] chemical entities per Lead Series;
(b) [**] in an enzymatic assay or other primary assay;
(c) [**] in a cellular or functional assay than
that found in the enzymatic assay or other primary assay;
(d) evidence of [**]; and
(e) evidence of [**].
3.3.3.
Data Package
. Infinity shall deliver to Novartis the following information and materials with respect to such Lead Program (collectively, the “
Data Package
”):
(a) Data evidencing achievement of all Lead Criteria set forth in Section 3.3.2; and
Collaboration Agreement — Confidential – Page 20
(b) The following data for the most potent compound of each Lead Series: (i) [**]; (ii) [**];
(iii) [**]; (iv) [**]and (v) [**].
3.3.4.
Exercise of an Option
.
(a) Novartis shall have [**] calendar days after receipt of the Data Package in which to provide written notice to Infinity (the “
Data Receipt
Notice
”) as to whether the Data Package is complete and whether the Lead Criteria have been achieved with respect to the relevant Lead Program, each as reasonably determined by Novartis. If Novartis has not provided a Data Receipt Notice to
Infinity within such [**] day period, the Data Package shall be deemed to be complete and the Lead Criteria shall be deemed to have been achieved with respect to the Lead Program.
(b) If Novartis reasonably determines that the Data Package is incomplete or that the Lead Criteria have not been achieved, then Infinity may perform
additional research as necessary and resubmit the Data Package;
provided
that Novartis shall have additional [**] calendar day periods to evaluate each such resubmission.
(c) If Novartis determines that the Data Package is complete and that the Lead Criteria have been achieved, then, in the Data Receipt Notice, Novartis
may select chemical entities in each Lead Program as set forth in 3.3.2(a) for synthesis (up [**] milligrams of purified material) and delivery by Infinity to Novartis for further biological testing which may include the following:
(i) confirmation of activity in primary and cellular systems; (ii) hERG channel inhibition using patch clamp assay; (iii) in vivo efficacy and PK; (iv) detailed metabolism studies; and (v) other studies at Novartis’
discretion. In addition, Infinity will provide access to screening data, if required by Novartis. Within [**] business days after receipt of the request, Infinity will provide Novartis with a quote for the expected length of time and the cost to
provide each such chemical entity. Infinity will base such quotation on an FTE rate of U.S.$[**] per month to synthesize and deliver such chemical entities and in no case shall the quotation exceed
Collaboration Agreement — Confidential – Page 21
U.S.$[**] per chemical entity. Novartis shall have [**] calendar days in which to accept or reject such quote in writing. If Novartis does not accept such
quote within such [**] day period, Infinity shall have no obligation to synthesize such compounds and deliver the related information. If Novartis accepts such quote within such [**] day period, Infinity will use its commercially reasonable efforts
to provide such synthesized compounds within [**] weeks after receipt of Novartis’ written acceptance of such quote. Each such synthesized compound shall be greater than [**] percent ([**]%) pure as determined by HPLC-MS UV 210 nm. In the event
that the Joint Steering Committee determines that HPLC-MS UV is not an appropriate detection method, then purity shall instead be determined by HPLC-MS ELSD. With each such synthesized compound delivered, Infinity shall also contemporaneously
provide a certificate of analysis including the HPLC chromatogram, proton and carbon NMR spectra and detailed synthetic protocol used for the synthesis.
(d) It shall be the responsibility of the Novartis representatives of the Joint Steering Committee to communicate to Infinity if Novartis chooses, in its sole discretion, to exercise the Option. The Novartis
representatives of the Joint Steering Committee may involve other employees or consultants of Novartis and its Affiliates in this process, on a need-to-know basis and subject to the provisions of Article IV, as is reasonably necessary to determine
whether or not to exercise the Option.
(e) Novartis shall have [**] calendar days from receipt of the last requested samples meeting the
criteria described in subsection (c), or, if either no samples are requested or samples are requested but Novartis does not accept Infinity’s quote therefor pursuant to subsection (c), [**] calendar days from receipt of the Data Receipt Notice,
to exercise its Option with respect to the relevant Lead Program. Novartis may exercise such Option by delivery to Infinity of written notice of exercise, specifying the Lead Program as to which such Option is being exercised, in which case, once
the License Agreement is executed, Novartis shall have the exclusive right to file, prosecute and maintain Patents in its name covering inventions relating to the Lead Program as provided in the License Agreement. The Parties shall then promptly
execute the License Agreement, the terms of which, upon such execution, shall be incorporated
Collaboration Agreement — Confidential – Page 22
by reference into, and shall be a part of, this Collaboration Agreement, pursuant to which terms, Infinity will grant Novartis and its Affiliates a
worldwide, exclusive even as to Infinity license (with the right to sublicense), to develop and commercialize the Lead Program as an Optioned Lead Program under Infinity’s Background Intellectual Property and under Infinity’s rights and
interest in the Collaboration Intellectual Property in the Field. If an Option has previously been exercised with respect to another Lead Program and a License Agreement is in effect with respect to that Lead Program, then the License Agreement will
be amended to reflect the addition of another Lead Program as an Optioned Lead Program.
3.3.5.
Restrictions on Commercialization
or Partnering
.
(a)
Any Target
. Until such time as Novartis affirmatively declines its Option for a Lead Program, or until the
expiration of the relevant [**] day Option exercise period, whichever comes first, Infinity shall not, subject to Section 2.3.2(h), file any Patent covering such Lead Program, commercialize such Lead Program or collaborate with a Third Party
(except subcontractors working on Infinity’s behalf in connection with its obligations hereunder) with respect to the development or commercialization of such Lead Program.
(b)
Novartis Reserved Targets
. If Novartis does not exercise its Option for a Lead Program with respect to any Target that is a Novartis Reserved
Target, then Infinity shall not, subject to Section 2.3.2(h), file any Patent covering such Lead Program (or otherwise shall assign such Patent to Novartis), or pursue further development or commercialization of such Lead Program, including any
Derivative Compounds of such Lead Program, whether alone or with a Third Party.
3.4. Declined Options on Targets Other Than Novartis
Reserved Targets.
If Novartis does not exercise its Option with respect to any Target that is not a Novartis Reserved Target during the
[**] day Option exercise period or Novartis affirmatively declines such Option, then the following shall apply:
(a) Upon request from
Infinity, Novartis shall provide Infinity any data it has generated in connection with evaluation of such Lead Program pursuant to Section 3.3.4(c), and
Collaboration Agreement — Confidential – Page 23
shall automatically grant to Infinity a non-exclusive license to use such data for research, development and commercialization purposes, and shall return to
Infinity any remaining amounts of compounds that had been provided by Infinity under Section 3.3.4(c) for evaluation of such Lead Program.
(b) Prior to initiating further lead optimization activities with respect to such Lead Program or from time to time thereafter during the term of this Agreement, and to the extent necessary to protect Infinity’s intellectual property
rights in such Lead Program, Infinity may select and designate Actual Compounds within such Lead Program as “
Infinity Compounds
,”
provided
that Infinity notifies Novartis of the same in writing and provides Novartis an
electronic data file containing each such proposed Infinity Compound and Novartis has not, within [**] days of such notification, represented to Infinity in writing that such Actual Compounds are already covered, specifically or generically, by a
Novartis Patent claiming inventions created before Novartis’ receipt of the Data Package for such Lead Program; and
provided
,
further
, that:
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(i)
|
Prior to the [**] anniversary of the Effective Date, there shall be no more than [**] Infinity Compounds at any time;
|
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(ii)
|
After the [**] but prior to the [**] anniversary of the Effective Date, there shall be no more than [**] Infinity Compounds at any time;
|
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(iii)
|
After the [**] anniversary of the Effective Date, there shall be no more than [**] Infinity Compounds at any time (including after the Threshold Date);
|
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(iv)
|
In no event may more than [**] Infinity Compounds be derived from any single Synthetic Pathway (including after the Threshold Date); and
|
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(v)
|
Infinity may redesignate Infinity Compounds as Actual Compounds by providing written notice and an electronic data file containing each such Infinity Compound of the same to
Novartis, in which case the total number of Infinity Compounds shall be reduced by those redesignated as Actual Compounds.
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Collaboration Agreement — Confidential – Page 24
(c) For purposes of clarity, Infinity Compounds also remain Actual Compounds.
3.5. Designation of Infinity Compounds During the Term of this Agreement and After The Threshold Date.
Infinity may select and designate as Infinity Compounds those Actual Compounds necessary to protect Infinity’s intellectual property rights in lead
optimization efforts resulting from screening activities directed at the Library Compounds which are conducted after the Threshold Date;
provided
that Infinity notifies Novartis of the same in writing and provides Novartis an electronic data
file containing each such proposed Infinity Compound and Novartis has not, within [**] days of such notification, represented to Infinity in writing that such Actual Compounds are already covered, whether with generic or specific claims, by a Patent
Controlled by Novartis or its Affiliates that was filed before Novartis’ receipt of such notification; and
provided
further
that there shall be neither more than [**] Infinity Compounds at any time nor shall more than [**]
Infinity Compounds be derived from any single Synthetic Pathway. Infinity may redesignate Infinity Compounds as Actual Compounds by providing written notice and an electronic data file containing each such Infinity Compound of the same to Novartis,
in which case the total number of Infinity Compounds shall be reduced by those redesignated as Actual Compounds.
3.6. No Designation of
Infinity Compounds After the Term of this Agreement.
After expiration or termination of this Agreement, (a) Infinity shall no
longer have the right to select and designate any Actual Compounds as Infinity Compounds, and (b) Infinity shall not patent (whether with generic or specific claims) any Actual Compounds. After expiration or termination of this Agreement,
Infinity shall have the right to screen Library Compounds against any Target;
provided
that Infinity may not sell or otherwise provide such Library Compounds to any Third Party (except to subcontractors working on Infinity’s behalf).
Collaboration Agreement — Confidential – Page 25
ARTICLE IV
C
ONFIDENTIALITY
4.1. Undertaking.
During the term of this Agreement, each Party (the “
Receiving Party
”) shall keep confidential, and other than as provided herein shall
not use or disclose, directly or indirectly, any trade secrets, confidential or proprietary information, or any other knowledge, information, documents or materials, disclosed to the Receiving Party by the other Party (the “
Proprietary
Party
”), whether in tangible or intangible form, the confidentiality of which such Proprietary Party takes reasonable measures to protect, including but not limited to Collaboration Intellectual Property.
(a) The Receiving Party shall take any and all lawful, reasonable measures to prevent the unauthorized use and disclosure of such information, and to
prevent unauthorized Persons from obtaining or using such information. With the prior written consent of the Proprietary Party, the Receiving Party may, however, use and disclose such information to exercise its rights to file, prosecute and
maintain Patents within the Collaboration Intellectual Property as permitted by this Agreement.
(b) The Receiving Party further agrees to
refrain from directly or indirectly taking any action which would constitute or facilitate the unauthorized use or disclosure of such information. The Receiving Party may disclose such information to its Affiliates, officers, employees and agents,
to authorized licensees and sublicensees, and to subcontractors in connection with the Receiving Party’s obligations hereunder, to the extent necessary to enable such Persons to perform their obligations hereunder or under the applicable
license, sublicense or subcontract, as the case may be;
provided
that such Affiliates, officers, employees, agents, licensees, sublicensees and subcontractors have entered into appropriate confidentiality agreements for secrecy and non-use of
such information which by their terms shall be enforceable by injunctive relief. In the event any such Persons violate such agreements with respect to such information, the Receiving Party shall enforce such agreements.
Collaboration Agreement — Confidential – Page 26
(c) The Receiving Party shall be liable for any unauthorized use and disclosure of such information by
its Affiliates, officers, employees and agents and any such licensees, sublicensees and subcontractors.
4.2. Exceptions.
Notwithstanding the foregoing, the provisions of Section 4.1 shall not apply to knowledge, information, documents or materials
that the Receiving Party can conclusively establish:
(a) were generally available to the public at the time of disclosure or become
generally available to the public without the Receiving Party’s breach of any obligation owed to the Proprietary Party;
(b) are
permitted to be disclosed by the prior written consent of the Proprietary Party;
(c) were known by the Receiving Party at the time of
disclosure, or have become known to the Receiving Party from a source other than the Proprietary Party, other than by breach of an obligation of confidentiality owed to the Proprietary Party;
(d) are disclosed by the Proprietary Party to a Third Party without restrictions on its disclosure;
(e) are independently developed by the Receiving Party without breach of this Agreement or any other confidentiality agreement between the Parties or
between a Party and an Affiliate of the other Party, without reference to or reliance upon knowledge, information or materials of the Proprietary Party; or
(f) are required to be disclosed by the Receiving Party to comply with applicable laws or regulations, to submit registration filings, to defend or prosecute litigation or patents or to comply with governmental
regulations,
provided
that the Receiving Party provides prior written notice of such disclosure to the Proprietary Party and takes reasonable and lawful actions to avoid or minimize the degree of such disclosure.
Collaboration Agreement — Confidential – Page 27
4.3. Publicity.
The Parties have agreed upon the timing and content of the initial press release relating to this Agreement and the transactions contemplated herein. The Parties will agree upon the timing and content of any other
press release or other public communications relating to this Agreement and the transactions contemplated herein.
Except to the extent
already disclosed in that initial press release or other public communication, no public announcement concerning the existence or the terms of this Agreement or concerning the transactions described herein shall be made, either directly or
indirectly, by Infinity or Novartis, except as may be legally required by applicable laws, regulations, or judicial order, without first obtaining the approval of the other Party and agreement upon the nature, text, and timing of such announcement.
The Party desiring to make any such public announcement shall provide the other Party with a written copy of the proposed announcement in
sufficient time prior to public release to allow such other Party to comment upon such announcement, prior to public release.
Notwithstanding the foregoing, either Party may disclose: (a) to bona fide potential or actual licensees or sublicensees only those terms of this Agreement that are reasonably necessary to disclose in connection with a license or
sublicense as permitted this Agreement; and (b) to bona fide potential or actual investors, lenders, investment bankers, acquirors, acquirees, or merger partners, and to such Party’s consultants and advisors, only those terms of this
Agreement that are reasonably necessary in connection with a proposed equity or debt financing, acquisition or business combination of such Party.
4.4. Survival.
The provisions of this Article IV shall survive for [**] years after the termination or expiration of this
Agreement.
Collaboration Agreement — Confidential – Page 28
4.5. Equitable Relief.
The Receiving Party agrees that any breach of this Article IV may cause the Proprietary Party substantial and irreparable injury and, therefore, in the
event of any such breach, in addition to other remedies that may be available, the Proprietary Party shall have the right to specific performance and other injunctive and equitable relief.
ARTICLE V
P
UBLICITY
Each of Novartis and Infinity, and their respective Affiliates, agree not to publish or publicly present any results, data, or scientific findings with
respect to the Collaboration without the prior written consent of the Joint Steering Committee;
provided
,
however
, that, either Party may, without such consent, file and prosecute Patent applications as permitted by this Agreement. In
the event of information already within the public domain, consent shall not be unreasonably withheld if sought at least [**] calendar days prior to planned submission for publication or oral presentation. In all other instances during the term of
this Agreement, publication shall be presumed to be impermissible until the Joint Steering Committee shall have determined, in its sole judgment, that all intellectual property rights shall have been adequately protected, whether by filing of
Patents or otherwise.
ARTICLE VI
I
NDEMNIFICATION
6.1. Indemnification by Infinity.
Infinity will indemnify, defend, and hold Novartis and its Affiliates, their respective employees, shareholders, officers and directors and the
successors, heirs and assigns of each of them, harmless against any loss, damages, action, suit, claim, demand, liability, expense, bodily injury, death or property damage (a “
Loss
”), that may be brought, instituted or arise against
or be incurred by such Persons to the extent such Loss results from a Third Party claim based on or arising out of:
Collaboration Agreement — Confidential – Page 29
(a) the development, manufacture, use, sale, storage or handling of a Library Compound or Derivative
Compound by Infinity or its Affiliates or their representatives, agents, licensees, sublicensees or subcontractors, or any actual or alleged violation of law resulting therefrom; or
(b) the breach by Infinity of any of its covenants, representations or warranties set forth in this Agreement;
(c)
provided
that the foregoing indemnification shall not apply to any Loss to the extent such Loss is caused by the negligent or willful
misconduct of Novartis or its Affiliates or their representatives, agents, licensees, sublicensees or subcontractors.
6.2.
Indemnification by Novartis.
Novartis will indemnify, defend, and hold Infinity, and its Affiliates, and their respective employees,
shareholders, officers and directors and the successors, heirs, and assigns of each of them, harmless against any Loss that may be brought, instituted or arise against or be incurred by such Persons to the extent such Loss results from a Third Party
claim based on or arising out of:
(a) the development, manufacture, use, sale, storage or handling of a Library Compound or Derivative
Compound by Novartis or its Affiliates or their representatives, agents, licensees, sublicensees or subcontractors, or any actual or alleged violation of law resulting therefrom; or
(b) the breach by Novartis of any of its covenants, representations or warranties set forth in this Agreement;
(c)
provided
that the foregoing indemnification shall not apply to any Loss to the extent such Loss is caused by the negligent or willful
misconduct of Infinity or its Affiliates or their representatives, agents, licensees, sublicensees or subcontractors.
Collaboration Agreement — Confidential – Page 30
6.3. Claims Procedures.
Each party entitled to be indemnified by the other party (an “
Indemnified Party
”) pursuant to Sections 6.1 or 6.2 shall give notice to
the other party (an “
Indemnifying Party
”) promptly after such Indemnified Party has actual knowledge of any threatened or asserted claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom;
provided
that:
(a) Counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld) and the Indemnified Party may participate in such defense at such party’s
expense (unless: (i) the employment of counsel by such Indemnified Party has been authorized by the Indemnifying Party; or (ii) the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in the defense of such action, in each of which cases the Indemnifying Party shall pay the reasonable fees and expenses of one law firm serving as counsel for the Indemnified Party, which law firm shall
be subject to approval, not to be unreasonably withheld, by the Indemnifying Party);
(b) The failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Agreement to the extent that the failure to give notice did not result in harm to the Indemnifying Party;
(c) No Indemnifying Party, in the defense of any such claim or litigation, shall consent to entry of any judgment or enter into any settlement, except
with the approval of each Indemnified Party (which approval shall not be unreasonably withheld), except a settlement which imposes only a monetary obligation on the Indemnifying Party and which includes as an unconditional term thereof the giving of
a release from all liability in respect to such claim or litigation by the claimant or plaintiff to the Indemnified Party;
(d) Each
Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and shall be reasonably required in connection with the defense of such claim and litigation
resulting therefrom; and
Collaboration Agreement — Confidential – Page 31
(e) In the event a claim is based partially on an indemnified claim described in Sections 6.1 or 6.2 and
partially on a non-indemnified claim, or is based partially on a claim indemnified by one Party and partially on a claim indemnified by the other Party pursuant to Sections 6.1 and 6.2, any payments and reasonable attorney fees incurred in
connection with such claims are to be apportioned between the Parties in accordance with the degree of cause attributable to each Party.
6.4. Compliance.
The Parties shall comply fully with all applicable laws and regulations in connection with their
respective activities under this Agreement.
ARTICLE VII
P
ATENTABLE
I
NVENTIONS
7.1. Ownership and Licenses.
7.1.1.
Background Intellectual Property
.
(a) As between the Parties, all: (i) Intellectual Property Controlled by a Party which is obtained independently from this Agreement (whether before or during the term of this Agreement); and (ii) all
inventions solely made and all know-how or other Intellectual Property solely generated by such Party or its Affiliates in the course of the Collaboration but not including Compound Related Intellectual Property, Compound Intellectual Property and
Non-Compound Related Intellectual Property (collectively, “
Background Intellectual Property
”) shall be owned by such Party.
(b) The foregoing notwithstanding, to the extent that use of the Background Intellectual Property of one Party is necessary to the other Party to carry out the purposes of the Collaboration or to exploit such other Party’s rights in
Library Compounds consistent with its
Collaboration Agreement — Confidential – Page 32
other rights set forth herein, then the Party Controlling such Background Intellectual Property hereby grants to the other Party and its Affiliates a
worldwide, non-exclusive, royalty-free license (with right to sublicense) to such use in the Field.
7.1.2.
Compound Related
Intellectual Property
. Each Party shall have an undivided half-interest, independent of inventorship and without a duty to account, in all inventions made and know-how or other Intellectual Property generated solely or jointly by the Parties
and/or its Affiliates in connection with the Collaboration and specifically relating to the Library Compounds, but not including the Library Compounds themselves or any uses thereof (collectively, “
Compound Related Intellectual
Property
”). Should the Joint Steering Committee determine that Patents should be filed covering Compound Related Intellectual Property pursuant to Section 2.3.2(j), then the Parties shall determine which of them (including their
Affiliates) shall be responsible for filing, prosecuting and maintaining such Patents (for purposes of this Section 7.1.2, the “
Patenting Party
”) at its own expense, and the other Party and/or its Affiliates (for purposes of
this Section 7.1.2, the “
Non-Patenting Party
”) shall automatically assign (and shall cause its Affiliates, employees and consultants to assign) to the Patenting Party its rights in such Patents, and the Patenting Party shall
automatically grant to the Non-Patenting Party and its Affiliates a worldwide, non-exclusive (with the right to sublicense), fully-paid, royalty-free license under any such Patents to the extent not inconsistent with the licenses, rights, and
obligations set forth herein.
7.1.3.
Non-Compound Related Intellectual Property
. Each Party shall have an undivided
half-interest, independent of inventorship and without a duty to account, in all inventions solely or jointly made and all know-how or other Intellectual Property solely or jointly generated by Infinity and/or its Affiliates, on the one hand, and
Novartis and/or its Affiliates, on the other hand, in the course of the Collaboration but not including Compound Related Intellectual Property and Compound Intellectual Property (collectively, “
Non-Compound Related Intellectual
Property
”). The Party which does not first choose to patent (under its name or through its Affiliates) a patentable invention within Non-Compound Related Intellectual Property (for purposes of this Section 7.1.3, the
“
Non-Patenting Party
”) shall
Collaboration Agreement — Confidential – Page 33
automatically assign (and shall cause its Affiliates, employees and consultants to assign) to the other Party (for purposes of this Section 7.1.3, the
“
Patenting Party
”) its rights in such patentable invention and the Patenting Party shall automatically grant to the Non-Patenting Party and its Affiliates a worldwide, non-exclusive (with the right to sublicense), fully-paid,
royalty-free license under any Patents covering such invention.
7.1.4.
Preparation and Costs
. Infinity or its Affiliates
shall take responsibility and pay for the preparation, filing, prosecution and maintenance of all Patents with respect to: (a) any Library Compounds which are not Actual Compounds (including the manufacture and use thereof) it chooses to
patent; and (b) the Infinity Compounds it chooses or is authorized to patent; (c) the Compound Related Intellectual Property that it chooses to Patent; and (d) the Non-Compound Related Intellectual Property it chooses to patent; and
Novartis or its Affiliates shall take responsibility and pay for the preparation, filing, prosecution and maintenance of all Patents with respect to: (i) any Library Compounds (including, without limitation, Actual Compounds which are not
Infinity Compounds, and Optioned Lead Programs and the manufacture and use thereof) it chooses to patent; and (ii) Compound Related Intellectual Property that it chooses to patent; and (iii) the Non-Compound Related Intellectual Property
it chooses to patent.
7.2. Discontinuation.
7.2.1.
Should Infinity be responsible under Section 7.1 for the preparation, filing, prosecution and maintenance of a particular Patent within Collaboration Intellectual Property, it shall give at least
thirty (30) calendar days’ advance notice to Novartis of any decision to cease preparation, filing, prosecution and maintenance of that Patent in a jurisdiction listed on Schedule 7.2(a). Discontinuation may be elected on a
country-by-country basis or for Patents singly or in series. In such case, Novartis may elect at its sole discretion to continue preparation, filing (under the name of Novartis or its Affiliates), and prosecution or maintenance of the discontinued
Patent at its sole expense.
7.2.2.
Should Novartis be responsible under Section 7.1 for the preparation, filing, prosecution
and maintenance of a particular Patent within Non-Compound Related Intellectual Property or Compound Related Intellectual Property, it shall give at least thirty (30)
Collaboration Agreement — Confidential – Page 34
calendar days’ advance notice to Infinity of any decision to cease preparation, filing, prosecution and maintenance of that Patent in a jurisdiction
listed on Schedule 7.2(b). Discontinuation may be elected on a country-by-country basis or for Patents singly or in series. In such case, Infinity may elect at its sole discretion to continue preparation, filing (under the name of Infinity or its
Affiliates), and prosecution or maintenance of the discontinued Patent at its sole expense.
7.3. Infringement.
Each Party shall notify the other promptly of any possible infringements, imitations or unauthorized possession, knowledge or use of the Collaboration
Intellectual Property or Background Intellectual Property which the Parties jointly own or which is exclusively licensed to such other Party pursuant to this Agreement. Each Party shall promptly furnish the other Party with full details of such
infringements, imitations or unauthorized possession, knowledge or use, and shall assist in preventing any recurrence thereof.
7.4. No
Implied Licenses.
Except as expressly provided in this Agreement, neither Party grants the other Party any rights or licenses under the
first Party’s Intellectual Property or Patents.
ARTICLE VIII
T
ERM
AND
T
ERMINATION
8.1.
Term.
This Agreement will extend for eight (8) years from the Effective Date, unless earlier terminated by either Party in
accordance with this Agreement, or unless extended by mutual agreement of the Parties.
8.2. Termination by Novartis for Cause.
Upon written notice to Infinity, Novartis may at its sole discretion unilaterally terminate this Agreement upon the occurrence of any
of the following events (without prejudice to its rights to seek damages in connection with any such event):
Collaboration Agreement — Confidential – Page 35
(a) Infinity shall materially breach any of its material obligations under this Agreement, the License
Agreement, or the Stock Purchase Agreement, and such material breach shall not have been remedied or steps initiated to remedy the same to Novartis’ reasonable satisfaction, within ninety (90) calendar days after Novartis sends written
notice of breach to Infinity;
(b) Upon the insolvency or bankruptcy of Infinity, or upon Infinity’s ceasing to function as a going
concern by suspending or discontinuing its business for any reason except for interruptions caused by Force Majeure; or
(c) Upon a sale,
merger, consolidation, transfer, or other reorganization of Infinity in which: (i) substantially all of the assets of Infinity are transferred to a Third Party; or (ii) the holders of Infinity’s capital stock immediately prior to the
transaction hold less than a majority of the capital stock of the surviving entity subsequent to the transaction and the Person(s) which acquire the majority of the capital stock of the surviving entity have the right to elect, and are not
prohibited, whether by contract or otherwise, from electing a majority of the Board of Directors of the surviving entity.
In the event of
any valid termination under this Section 8.2, Novartis shall not be required to make any payments under Section 2.2.8 for a Proposed Compound unless such Proposed Compound had been deemed accepted as an Actual Compound pursuant to
Section 2.2.6 or Novartis has not returned to Infinity such Proposed Compound pursuant to Section 8.4(b).
8.3. Termination by
Infinity for Cause.
Infinity may at its sole discretion terminate this Agreement upon written notice to Novartis upon the occurrence of
any of the following events:
(a) Novartis shall materially breach any of its material obligations under this Agreement, the License
Agreement or the Stock Purchase Agreement and such material breach shall not have been remedied or steps initiated to remedy the same to Infinity’s reasonable satisfaction, within ninety (90) calendar days after Infinity sends written
notice of breach to Novartis; or
Collaboration Agreement — Confidential – Page 36
(b) Upon the insolvency or bankruptcy of Novartis, or upon Novartis’ ceasing to function as a going
concern by suspending or discontinuing its business for any reason except for interruptions caused by Force Majeure.
Notwithstanding the
foregoing, the Stock Purchase Agreement, the Investors’ Rights Agreement, and any License Agreement then in effect shall each continue in effect unless it is expressly terminated in accordance with its terms.
8.4. Effect of Termination.
(a)
Except where explicitly provided elsewhere herein, termination of this Agreement for any reason, or expiration of this Agreement, will not affect: (i) obligations which have accrued as of the date of termination or expiration;
(ii) obligations and rights which expressly are intended to survive termination or expiration of this Agreement, including obligations of confidentiality under Article IV; (iii) the survival of Sections 2.6.2, 3.1.1, 3.1.2(a), 3.1.2(b)
(unless Infinity terminates this Agreement pursuant to Section 8.3), 3.2.1, 3.2.2, 3.2.3, 3.3.5(b), 3.6, 7.1, 7.2, 7.3, 7.4, 8.4 and 9.3, and Article VI and X; (iv) the Option shall terminate upon termination of this Agreement by Infinity
pursuant to Section 8.3; and (v) the Stock Purchase Agreement, Investors’ Rights Agreement, and any License Agreement in effect upon the expiration or any termination of this Agreement shall each continue in effect unless it is
expressly terminated in accordance with its terms.
(b) Upon termination or expiration of this Agreement, Novartis shall delete structural
and related information with respect to Proposed Compounds for which Novartis has not paid the relevant fee set forth in Section 2.2.8 from Novartis’ databases and return all remaining Proposed Compound material which is not in
Novartis’ screening format. Novartis may continue to include such material in screens;
provided
,
however
, that Novartis shall not conduct research on such rejected Proposed Compounds nor determine the structure of such Proposed
Compound through any analytical or other methods.
Collaboration Agreement — Confidential – Page 37
ARTICLE IX
R
EPRESENTATIONS
AND
W
ARRANTIES
9.1. Representations
and Warranties of Infinity.
Infinity represents and warrants to Novartis as follows:
(a)
Authorization
. This Agreement has been duly executed and delivered by Infinity and constitutes the valid and binding obligation of Infinity,
enforceable against Infinity in accordance with its terms except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, bankruptcy, reorganization, moratorium and other laws relating to or affecting creditors’ rights
generally and by general equitable principles. The execution, delivery and performance of this Agreement have been duly authorized by all necessary action on the part of Infinity, its officers and directors.
(b)
Infinity Controlled Rights
. As of the Effective Date, Infinity owns or possesses adequate licenses or other rights to grant the licenses
under the Background Intellectual Property which Infinity Controls as of the Effective Date. To the actual knowledge of Infinity as of the Effective Date, Infinity’s practice, as of the Effective Date, of the Background Intellectual Property
which Infinity Controls as of the Effective Date does not infringe any Third Party Patent. The granting of an Option to Novartis hereunder does not violate any right of any Third Party.
9.2. Representations and Warranties of Novartis.
Novartis represents and warrants to Infinity as follows:
(a)
Authorization
. This Agreement has been
duly executed and delivered by Novartis and constitutes the valid and binding obligation of Novartis, enforceable against Novartis in accordance with its terms except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency,
bankruptcy, reorganization, moratorium and other laws
Collaboration Agreement — Confidential – Page 38
relating to or affecting creditors’ rights generally and by general equitable principles. The execution, delivery and performance of this Agreement have
been duly authorized by all necessary action on the part of Novartis, its officers and directors.
(b)
Novartis Controlled Rights
.
As of the Effective Date, Novartis owns or possesses adequate licenses or other rights to grant the licenses under the Background Intellectual Property which Novartis Controls as of the Effective Date.
9.3. Disclaimer of Other Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 2.2.2, 3.4, 3.5, 9.1, 9.2 AND 10.15, EACH PARTY EXPRESSLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE X
M
ISCELLANEOUS
P
ROVISIONS
10.1. Invoice Requirement.
Any amounts payable to Infinity hereunder shall be made in U.S. dollars within sixty (60) calendar days after receipt by Novartis,
or its nominee designated for that purpose in advance by Novartis in writing to Infinity, of an invoice covering such payment.
10.2.
Governing Law and Jurisdiction.
This Agreement shall be governed and construed in accordance with the internal laws of the State of
Delaware.
10.3. Waiver.
No provision of this Agreement may be waived except in writing by both Parties. No failure or delay by either Party in exercising any right or remedy hereunder or under applicable law will operate as a waiver thereof, or a waiver of any
right or remedy on any subsequent occasion.
Collaboration Agreement — Confidential – Page 39
10.4. Force Majeure.
Neither Party will be in breach hereof by reason of its delay in the performance of or failure to perform any of its obligations hereunder, if that delay or failure is caused by strikes, acts of God or the public
enemy, riots, war, terrorism, incendiaries, interference by civil or military authorities, compliance with governmental priorities for materials, or any fault beyond its control or without its fault or negligence (“
Force Majeure
”).
10.5. Severability.
Should one or more provisions of this Agreement be or become invalid, then the Parties shall attempt to agree upon valid provisions in substitution for the invalid provisions, which in their economic effect come so close to the invalid
provisions that it can be reasonably assumed that the Parties would have accepted this Agreement with those new provisions. If the Parties are unable to agree on such valid provisions, the invalidity of such one or more provisions of this Agreement
shall nevertheless not affect the validity of this Agreement as a whole, unless the invalid provisions are of such essential importance for this Agreement that it may be reasonably presumed that the Parties would not have entered into this Agreement
without the invalid provisions.
10.6. Government Acts.
In the event that any act, regulation, directive, or law of a country or its government, including its departments, agencies or courts, should make
impossible or prohibit, restrain, modify or limit any material act or obligation of the Parties under this Agreement, the Party, if any, not so affected, shall have the right, at its option, to suspend or terminate this Agreement as to such country,
if good faith negotiations between the Parties to make such modifications therein as may be necessary to fairly address the impact thereof, are not successful after a reasonable period of time in producing mutually acceptable modifications to this
Agreement.
Collaboration Agreement — Confidential – Page 40
10.7. Government Approvals.
Each Party will obtain any government approval required in its country of domicile to enable this Agreement to become effective, or to enable any payment
hereunder to be made, or any other obligation hereunder to be observed or performed. Each Party will keep the other informed of progress in obtaining any such government approval, and will cooperate with the other Party in any such efforts.
10.8. Export Controls.
This Agreement is made subject to any restrictions concerning the export of materials and technology from the United States that may be imposed upon or related to either Party from time to time by the Government of the United States.
Furthermore, each Party agrees that it will not export, directly or indirectly, any technical information acquired from the other Party under this Agreement or any products using such technical information to any countries for which the United
States Government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the Department of Commerce or other agency of the United States
Government when required by applicable statute or regulation.
10.9. Assignment.
This Agreement may not be assigned or otherwise transferred by either Party without the prior written consent of the other Party;
provided
that
Novartis may assign this Agreement without the consent of Infinity: (i) to any of its Affiliates, if Novartis guarantees the full performance of its Affiliate’s obligations hereunder; or (ii) in connection with the transfer or sale of
all or substantially all of its (or a subsidiary or division’s) assets or business, or a controlling interest in its equity, or in the event of its merger or consolidation with another company. Any purported assignment in contravention of this
Section 10.9 shall, at the option of the nonassigning Party, be null and void and of no effect. No assignment shall release either Party from responsibility for the performance of any accrued obligation of such Party hereunder. This Agreement
shall be binding upon and enforceable against the successor to or any permitted assignees of either of the Parties.
Collaboration Agreement — Confidential – Page 41
10.10. Affiliates and Subcontractors.
Each Party may perform its obligations hereunder personally or through one or more Affiliates or subcontractors, although each Party shall nonetheless be
solely responsible for the performance of its Affiliates and subcontractors. Neither Party shall permit any of its Affiliates or subcontractors to commit any act (including any act of omission) that such Party is prohibited hereunder from committing
directly. The use of subcontractors by either Party shall not increase the financial obligations of the other Party hereunder in any respect.
10.11. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be original and both
of which shall constitute one and the same Agreement.
10.12. No Agency.
Nothing herein contained shall be deemed to create an agency, joint venture, amalgamation, partnership or similar relationship between Novartis and
Infinity and their respective Affiliates. Notwithstanding any of the provisions of this Agreement, neither Party shall at any time enter into, incur, or hold itself out to Third Parties as having authority to enter into or incur, on behalf of the
other Party, any commitment, expense, or liability whatsoever, and all contracts, expenses and liabilities in connection with or relating to the obligations of each Party under this Agreement shall be made, paid, and undertaken exclusively by such
Party on its own behalf and not as an agent or representative of the other.
10.13. Notice.
All communications between the Parties with respect to any of the provisions of this Agreement will be sent to the addresses set out below, or to such
other addresses as may be designated by one Party to the other by notice pursuant hereto, by prepaid, certified mail (which shall be deemed received by the other Party on the seventh business day following deposit in the mails), or by facsimile
transmission (which shall be deemed received when transmitted), with confirmation by first class mail letter, postage pre-paid, given by the close of business on or before the next following business day:
Collaboration Agreement — Confidential – Page 42
if to Novartis, at:
Novartis International Pharmaceutical Ltd.
Hurst Holme
12 Trott Road
P.O. Box 2899
Hamilton, HM LX
Bermuda
Attention: Emil Bock
Fax:
(441) 296-5083
with a copy to:
Novartis Institutes for BioMedical Research, Inc.
400 Technology Square
Cambridge, Massachusetts 02139
Attention:
Robert L. Thompson, Vice President and General Counsel
Fax: (617) 871-3354
if to Infinity, at:
Infinity
Pharmaceuticals, Inc.
780 Memorial Drive
Cambridge, Massachusetts 02139
Attention: Adelene Perkins
Fax: (617) 453-1001
with a copy to:
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attention: Steven D. Singer, Esq.
Fax:
(617) 526-5000
10.14. Headings.
The paragraph headings are for convenience only and will not be deemed to affect in any way the language of the provisions to which they refer.
Collaboration Agreement — Confidential – Page 43
10.15. Authority.
The undersigned represent that they are authorized to sign this Agreement on behalf of the Parties. The Parties each represent that no provision of this Agreement will violate any other agreement that such Party may
have with any other Person. Each Party has relied on that representation in entering into this Agreement.
10.16. Entire Agreement.
This Agreement, together with the License Agreement (if and when executed) and the Stock Purchase Agreement, and their respective
schedules and exhibits, if any, contain the entire understanding of the Parties relating to the matters referred to herein, and may only be amended by a written document, duly executed on behalf of the respective Parties.
10.17. No Consequential Damages.
NEITHER PARTY HERETO WILL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR MULTIPLE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER, INCLUDING, WITHOUT LIMITATION, LOST PROFITS ARISING
FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES.
[Signature page follows]
Collaboration Agreement — Confidential – Page 44
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Adelene Q. Perkins
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Title:
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Chief Business Officer
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NOVARTIS INTERNATIONAL PHARMACEUTICAL LTD.
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By:
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/s/ Emil Boch
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Title:
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Member of Board of Directors
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By:
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/s/ Wendy Wiseman
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Title:
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Account Manager
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Collaboration Agreement — Confidential – Page 45
Schedule 7.2(a)
List of Countries Regarding Infinity Patent Protection
Collaboration Agreement — Confidential
Schedule 7.2(b)
List of Countries Regarding Novartis Patent Protection
Collaboration Agreement — Confidential
EXHIBIT A
LICENSE AGREEMENT
E
XHIBIT
A
LICENSE, DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
This License, Development and Commercialization Agreement (this “
License Agreement
”) is made this
day of
, 200
by and between Infinity Pharmaceuticals, Inc. (“
Infinity
”), a Delaware
corporation with principal offices at 780 Memorial Drive, Cambridge, Massachusetts 02139, and Novartis International Pharmaceutical Ltd. (“
Novartis
”), a Bermuda corporation with principal offices at Hurst Holme, 12 Trott Road,
Hamilton, HM LX, Bermuda. Infinity and Novartis are sometimes referred to herein individually as a “
Party
” and together as the “
Parties
.”
Capitalized terms used but not defined in this License Agreement have the meanings provided in the Collaboration and Option Agreement by and between
Infinity and Novartis, dated as of November
, 2004 (the “
Collaboration Agreement
”).
Introduction
WHEREAS, pursuant to the Collaboration Agreement, Infinity and Novartis are, or have been, engaged in
designing Synthetic Pathways, synthesizing certain Library Compounds using Synthetic Pathways, and Infinity is, or has been, generating Lead Programs using Library Compounds; and
WHEREAS, Novartis has exercised its option under the Collaboration Agreement to license exclusively one or more Optioned Lead Programs for worldwide
development and commercialization in the Field;
NOW THEREFORE, in consideration of the foregoing premises, the Parties agree as follows:
Collaboration Agreement — Confidential
ARTICLE I
Definitions
1.1.
“
Affiliate”
shall mean, with respect to any Person, any
other Person which directly or indirectly, by itself or through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. The term “control” (as applied to a Person) means the possession,
direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Control will be presumed if one Person owns, either of record
or beneficially, at least fifty percent (50%) of the voting stock of any other Person. Such other relationship as in fact results in actual control over the management, business, and affairs of a Person shall also be deemed to constitute
control;
provided
, however, that no Person shall be deemed to exercise control over another Person solely because the latter relies on the former for a majority of its business. A Person will be deemed an Affiliate only so long as such
ownership or control relationship continues. In the case of Novartis, “Affiliates” shall also expressly be deemed to include the Novartis Institute for Functional Genomics, Inc. and the Friedrich Miescher Institute for BioMedical Research
and their respective Affiliates.
1.2.
“
Active Moiety
” shall mean the smallest chemical pharmacophoric element or
three dimensional structure responsible for the physiological or pharmacological action of the drug substance.
1.3.
“Collaboration Agreement”
shall have the meaning set forth in the preamble.
1.4.
“Collaboration
Intellectual Property”
shall have the meaning set forth in Section 1.7 of the Collaboration Agreement.
1.5.
“Compound Patent”
shall mean any Patent filed by Novartis and covering molecules of an Optioned Lead Program Compound or a Derivative Compound. For the avoidance of doubt, any subsequent Patent Controlled by Novartis covering,
without limitation, the manufacture, use or formulation of such molecules shall not be within the definition of Compound Patent.
License, Development and Commercialization Agreement – Confidential – Page 2
1.6. “Controlled”
shall mean, with respect to an Intellectual Property right, the legal
authority or right of a Party (other than by license pursuant to this License Agreement) to grant a license or sublicense of such intellectual property rights to the other Party, or to otherwise disclose such proprietary or trade secret information
to such other Party, as applicable, without breaching the terms of any agreement with a Third Party.
1.7. “Licensed Derivative
Compounds”
shall mean all compounds that share substantially the same Active Moiety as the Optioned Lead Program Compounds.
1.8. “Derivative Compounds”
shall mean any and all compounds that are modified by chemical and/or molecular-genetic means from a Optioned Lead Program Compounds. Analogues of such compounds and their derivatives shall be
included within the scope of Derivative Compounds.
1.9. “Drug Product”
shall mean a product prepared from bulk Optioned
Lead Program Compounds or Licensed Derivative Compounds (but not other Derivative Compounds) (a “
Licensed Drug Product
”) or from bulk Derivative Compounds (but not Licensed Derivative Compounds or Optioned Lead Program Compounds)
(an “
Other Drug Product
”), in finished dosage form ready for administration, as the case may be, either to the ultimate consumer as a human or as a veterinary pharmaceutical, or for agricultural purposes.
1.10. “FDA”
shall mean the United States Food and Drug Administration, and any successor agency serving the same function.
1.11. “Field”
shall mean all human and veterinary health-care applications including, but not limited to, research, diagnosis,
therapeutics, and prophylaxis with respect to any indication, together with all agricultural purposes.
1.12. “First Commercial
Sale”
shall mean the first shipment of a Drug Product to a Third Party by Novartis or its Affiliate or sublicensee in a country following applicable Regulatory Approval of the Drug Product in such country.
License, Development and Commercialization Agreement – Confidential – Page 3
1.13. “IND”
shall mean an application to the FDA, the filing of which is necessary to
commence clinical testing of pharmaceutical compounds in humans, or the equivalent application to the equivalent agency in any other country or group of countries.
1.14. “IND Acceptance”
shall mean non-refusal of an IND by the FDA, or the equivalent notice from a governmental authority other than the FDA.
1.15. “Infinity Background Intellectual Property”
shall mean the Background Intellectual Property Controlled by Infinity, as defined in
Section 7.1 of the Collaboration Agreement.
1.16. “Intellectual Property”
shall have the meaning set forth in
Section 1.19 of the Collaboration Agreement.
1.17. “Lead Program”
shall have the meaning set forth in
Section 1.23 of the Collaboration Agreement.
1.18. “Library Compound”
shall have the meaning set forth in
Section 1.25 of the Collaboration Agreement.
1.19. “Licensed Intellectual Property”
shall mean the Licensed Patents,
Licensed Technology and Infinity Background Intellectual Property.
1.20. “Licensed Patents”
shall mean any Patents
Controlled by Infinity (including without limitation any Patent within Collaboration Intellectual Property) which, in the absence of a license hereunder, would be infringed by using, making, offering to sell, importing, or commercializing the
Optioned Lead Program, Optioned Lead Program Compounds or Licensed Drug Products, a list of which Patents is appended hereto as
Schedule A
and will be updated periodically to reflect additions thereto during the course of this License
Agreement.
1.21. “Licensed Technology”
shall mean all data, technical information, know-how, experience, inventions
(whether or not patented), trade secrets, processes and methods discovered, developed or applied (with the consent of its owner) (including without limitation any Patent within Collaboration Intellectual Property), other than Infinity Background
License, Development and Commercialization Agreement – Confidential – Page 4
Intellectual Property, which are Controlled by Infinity or its Affiliates and which are necessary to Novartis’ exercise of its licensed rights to the
Optioned Lead Program, Optioned Lead Program Compound or Licensed Drug Product.
1.22. “Live Claim”
shall mean a claim of
any issued, unexpired Licensed Patent or Compound Patent that shall not have been withdrawn, canceled or disclaimed, nor held invalid or unenforceable by a court of competent jurisdiction in an unappealed or unappealable decision.
1.23. “Major Market Country”
shall mean the United States, United Kingdom, France, Germany, Italy, Spain, or Japan.
1.24. “NDA”
means a New Drug Application submitted to the FDA seeking approval to market and sell a Drug Product in the Field in the
United States of America, or a corresponding application filed with any other regulatory agency seeking approval to market and sell a Drug Product in the Field in another Major Market Country.
1.25. “Net Sales”
shall mean, with respect to any Optioned Lead Program Compound, Derivative Compound or Drug Product, the gross amount
invoiced by or on behalf of Novartis and any Novartis Affiliate or sublicensee for that Optioned Lead Program Compound, Derivative Compound or Drug Product sold to Third Parties (other than sales to sublicensees for resale) in bona fide,
arm’s-length transactions, less the following deductions, determined in accordance with Novartis’ standard accounting methods as generally and consistently applied by Novartis, to the extent included in the gross invoiced sales price of
any Optioned Lead Program Compound, Derivative Compound or Drug Product or otherwise directly paid or incurred by Novartis, its Affiliates or sublicensees with respect to the sale of such Optioned Lead Program Compound, Derivative Compound or Drug
Product:
(a) Normal and customary trade and quantity discounts actually allowed and properly taken directly with respect to
sales of the Optioned Lead Program Compound, Derivative Compound or Drug Product;
(b) Amounts repaid or credited by reason
of defects, rejection, recalls, returns, rebates and allowances of goods, or because of retroactive price reductions specifically identifiable to such Optioned Lead Program Compound, Derivative Compound or Drug Product;
License, Development and Commercialization Agreement – Confidential – Page 5
(c) Chargebacks and other amounts paid on the sale or dispensing of such Optioned Lead
Program Compound, Derivative Compound or Drug Product;
(d) Amounts payable resulting from governmental (or agency thereof)
mandated rebate programs;
(e) Third Party cash rebates and chargebacks related to sales of the Optioned Lead Program
Compound, Derivative Compound or finished Drug Product, to the extent actually allowed;
(f) Tariffs, duties, excise, sales,
value-added, and other taxes (other than taxes based on income);
(g) Retroactive price reductions that are actually allowed
or granted;
(h) Cash discounts for timely payment;
(i) Delayed ship order credits;
(j) Discounts pursuant to indigent patient programs and patient discount programs, including, without limitation, “Together Rx” and coupon discounts;
(k) All freight, postage and insurance included in the invoice price; and
(l) Amounts repaid or credited for uncollectible amounts on previously sold Optioned Lead Program Compounds, Derivative Compounds or Drug
Products;
(m) Deduction of [**] percent ([**]%) for distribution and warehousing expenses; and
License, Development and Commercialization Agreement – Confidential – Page 6
(n) Any other specifically identifiable amounts included in the gross invoice of the
Optioned Lead Program Compound, Derivative Compound or Drug Product that should be credited for reasons substantially equivalent to those listed above
all as determined in accordance with Novartis’ usual and customary accounting methods, as consistently applied at Novartis. Sales from Novartis to its Affiliates and sublicensees for resale shall be disregarded
for the purpose of calculating Net Sales. Any of the items set forth above that would otherwise be deducted from the invoice price in the calculation of Net Sales but which are separately charged to Third Parties shall not be deducted from the
invoice price in the calculation of Net Sales. In the case of any sale for consideration other than cash, such as barter or countertrade, Net Sales shall be calculated on the fair market value of the consideration received as agreed by the Parties.
Furthermore:
(i) In the case of any sale or other disposal of an Optioned Lead Program Compound, Derivative Compound or Drug Product between or among Novartis and its Affiliates, and sublicensees for resale, Net Sales shall be calculated as above only
on the value charged or invoiced on the first arm’s-length sale thereafter to a Third Party;
(ii) In the case of any
sale which is not invoiced or is delivered before invoice, Net Sales shall be calculated at the time of shipment or when the Optioned Lead Program Compound, Derivative Compound or Drug Product is paid for, if paid for before shipment or invoice;
(iii) In the case of any sale or other disposal for value, such as barter or countertrade, of any Optioned Lead Program
Compound, Derivative Compound or Drug Product, or part thereof, otherwise than in an arm’s-length transaction exclusively for money, Net Sales shall be calculated as above on the value of the non-cash consideration received or the fair market
price (if higher) of the Optioned Lead Program Compound, Derivative Compound or Drug Product in the country of sale or disposal; and
License, Development and Commercialization Agreement – Confidential – Page 7
(iv) In the event that the Drug Product is sold in a finished dosage form containing the
Optioned Lead Program Compound or Derivative Compound in combination with one or more other active ingredients (a “Combination Product”), the Net Sales of the Drug Product, for the purpose of determining royalty payments, shall be
determined by multiplying the Net Sales (as defined above in this Section) of the Combination Product by the fraction A/(A+B), where A is the weighted (by sales volume) average sales price in a particular country of the Drug Product when sold
separately in finished form and B is the weighted average sales price in that country of the other product(s) sold separately in finished form. In the event that such average sales price cannot be determined for both the Drug Product and the other
product(s) in combination, Net Sales for purposes of determining royalty payments shall be agreed by the Parties based on the relative value contributed by each component, and such agreement shall not be unreasonably withheld.
1.26. “Option”
shall have the meaning set forth in Section 3.3.1 of the Collaboration Agreement.
1.27. “Optioned Lead Program”
shall mean a Lead Program as to which Novartis has exercised its Option.
1.28. “Optioned Lead Program Compound”
shall mean any Library Compounds, together with all Derivative Compounds (and together with any
and all compounds having the same Active Moiety as such Library Compounds or Derivative Compounds) identified at the time the Option is exercised as being within a particular Optioned Lead Program.
1.29. “Patents”
shall mean all existing patents and patent applications and all patent applications hereafter filed, including any
continuation, continuation-in-part, division, provisional or any substitute applications, any patent issued with respect to any such patent applications, any reissue, reexamination, renewal or extension (including any supplementary protection
certificate) of any such patent, and any confirmation patent or registration patent or patent of addition based on any such patent, and all foreign counterparts of any of the foregoing.
License, Development and Commercialization Agreement – Confidential – Page 8
1.30. “Person”
shall mean
,
any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization or government or political subdivision thereof.
1.31. “Phase III
Clinical Trial”
shall mean human clinical trials, the principal purpose of which is to establish safety and efficacy of one or more particular doses in patients being studied, and which will (or are intended to) satisfy the requirements of
a pivotal trial for purposes of preparing and submitting a filing for Regulatory Approval in a particular country.
1.32.
“Registration Filing”
shall mean, with respect to each Optioned Lead Program Compound, Derivative Compound or related Drug Product, the submission to the relevant governmental regulatory authority of an appropriate application seeking
any Regulatory Approval, and shall include, without limitation, any marketing authorization application, supplementary application or variation thereof, or any equivalent applications.
1.33. “Regulatory Approval
”
shall mean all authorizations by the appropriate governmental entity or entities necessary for
commercial sale of a Drug Product in a particular country including, without limitation and where applicable, approval of labeling, price, reimbursement and manufacturing.
1.34. “Third Party”
shall mean any Person that is not a Party or an Affiliate of any Party.
ARTICLE II
Rights and Licenses
2.1. Novartis Rights
.
Subject to the other provisions of this License Agreement, Infinity grants to Novartis and its
Affiliates a worldwide, royalty-bearing license, exclusive even as to Infinity (with the right to sublicense) under the Licensed Intellectual Property (including, without limitation, Infinity’s interest in the Collaboration Intellectual
License, Development and Commercialization Agreement – Confidential – Page 9
Property), to research and have researched, develop and have developed, make and have made, manufacture and have manufactured, use and have used, market and
have marketed, distribute and have distributed, sell and have sold, export and import for sale, and have exported or imported for sale, the Optioned Lead Program, Optioned Lead Program Compounds or Licensed Drug Product in the Field. To the extent
that Novartis or its Affiliates desires to receive a license from Infinity under relevant Intellectual Property in order to research and have researched, develop and have developed, make and have made, manufacture and have manufactured, use and have
used, market and have marketed, distribute and have distributed, sell and have sold, export and import for sale, and have exported or imported for sale any Other Drug Product, then Novartis shall provide Infinity with written notice of the same, and
the Parties shall discuss, in good faith, whether and under what terms such a license would be granted. For the avoidance of doubt, the licenses granted to Novartis in this Section 2.1 shall be effective with respect to any other lead program
that Novartis may pursue using the Optioned Lead Program, Optioned Lead Program Compounds or Licensed Drug Product. Infinity shall not develop, make, have made, use, market and sell, itself or through a Third Party licensee, for use within the
Field, any other Lead Program involving the Optioned Lead Program Compounds and/or Licensed Drug Product.
2.2. Immunity from Suit.
In the event that the exercise by Novartis and/or its Affiliates or sublicensees of the licenses and rights granted pursuant to this License Agreement would infringe during the term of this License Agreement a claim of an issued Patent Controlled by
Infinity, and which Patent is not covered by the grant in Section 2.1, Infinity hereby grants to Novartis and its Affiliates or sublicensees a worldwide, non-exclusive, sublicensable, royalty-free license and immunity from suit by Infinity and
its Affiliates under such issued Patent for Novartis, its Affiliates and or sublicensees to discover, research, develop, make, use, import, export, distribute, market, promote, offer for sale, and sell the Optioned Lead Program Compounds and the
Licensed Drug Products in the Field.
2.3. Technology Necessary to the License.
If Infinity or any of its Affiliates conceives and
reduces to practice during the term of this License Agreement any new Intellectual Property relating to an Optioned Lead Program or Licensed Drug Product and such new Intellectual Property is necessary to Novartis’ exercise of its licensed
rights, then Infinity hereby
License, Development and Commercialization Agreement – Confidential – Page 10
grants to Novartis and its Affiliates and sublicensees a worldwide, non-exclusive, sublicensable, royalty-free license under such new Intellectual Property
to discover and have discovered, research and have researched, develop and have developed, make and have made, use and have used, import and have imported, export and have exported, distribute and have distributed, market and have marketed, promote
and have promoted, offer for sale and have offered for sale, sell and have sold the Optioned Lead Program Compounds or the Licensed Drug Products in the Field.
ARTICLE III
Development and Commercialization
3.1. Development and Commercialization Rights.
Novartis, its Affiliates and sublicensees shall have sole and worldwide rights, even as to
Infinity, to develop, commercialize, manufacture, promote, sell, and distribute each Optioned Lead Program, Optioned Lead Program Compound or Licensed Drug Product in the Field. The foregoing right to manufacture is subject to any applicable United
States statutory requirement that technology, the development of which was funded in part by the United States government, must be manufactured domestically, unless the United States government shall waive such requirement. As between Novartis and
Infinity, Novartis, its Affiliates and sublicensees, in their sole discretion, shall select, file, and own all rights to any and all trademarks and trade dress relating to the Drug Product which trademarks are not then trademarks of Infinity.
3.2. Information Transfer.
The Parties agree and acknowledge that Infinity has delivered to Novartis the information pursuant
to Sections 2.2.4 and 3.3.3 of the Collaboration Agreement. From time to time during the term of this License Agreement, the Parties shall discuss any other information Controlled by Infinity that is necessary or useful for further development,
manufacture and commercial exploitation and distribution of an Optioned Lead Program, Optioned Lead Program Compounds or Licensed Drug Product and Infinity shall promptly thereafter deliver such information to Novartis. This information shall also
include copies of all Patents filed by Infinity pursuant to Section 2.3.2(h) of the Collaboration Agreement.
License, Development and Commercialization Agreement – Confidential – Page 11
3.3. Regulatory Approvals.
Novartis, its Affiliates and sublicensees will be responsible for all
required Regulatory Approvals. All filings will be made by Novartis, its Affiliates or sublicensees. All Regulatory Approvals will be held in the name of Novartis, its Affiliates or sublicensees. Novartis, its Affiliates or sublicensees shall have
the right to cross-reference information and regulatory filings arising out of development work which previously has been conducted by Infinity and its Affiliates with respect to the Optioned Lead Program and Optioned Lead Program Compounds, for the
purpose of regulatory filings hereunder.
ARTICLE IV
Milestone and Royalty Payments
4.1. Milestone Payments.
(a) Novartis shall make milestone payments in accordance with this Section 4.1 with respect to each Optioned Lead Program. Milestone
payments shall be payable only once with respect to a particular Optioned Lead Program, even though the Optioned Lead Program, Optioned Lead Program Compound, Derivative Compound or Drug Product may be subsequently developed for indications other
than those for which Regulatory Approval was initially sought. In the event that an Optioned Lead Program Compound, Derivative Compound or Drug Product fails in development, any milestone payments previously paid with respect to such Optioned Lead
Program Compound, Derivative Compound or Drug Product shall be fully creditable toward the same milestone due with respect to another Optioned Lead Program Compound, Derivative Compound or Drug Product included within the same Optioned Lead Program.
Novartis may deduct from any milestone payments otherwise due to Infinity under this Article IV the amount of any withholding and similar taxes required under applicable law to be withheld from such payments and paid to applicable tax authorities
and shall furnish Infinity with proof of payment of such taxes as soon as practicable after such payment is made.
License, Development and Commercialization Agreement – Confidential – Page 12
(b) The following milestone payments shall be payable within [**] days following delivery
of an invoice by Infinity to Novartis with respect to the relevant event.
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M
ILESTONE
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P
AYMENT
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[**]
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$[**]
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[**]
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$[**]
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[**]
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$[**]
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[**]
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$[**]
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[**]
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$[**]
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4.2. Royalty Payments.
Novartis shall make the following royalty payments to Infinity on
total annual Net Sales of each Drug Product incorporating an Optioned Lead Program Compound or Derivative Compound, for which there is a Live Claim covering such Optioned Lead Program, or the related Optioned Lead Program Compounds, Derivative
Compounds or Drug Products, or their uses or manufacture thereof on a country-by-country and Drug Product-by-Drug Product basis. The royalties shall be paid in full by Novartis within [**] days following delivery of an invoice by Infinity with
respect to such royalties.
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T
OTAL
W
ORLDWIDE
A
NNUAL
N
ET
S
ALES
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R
OYALTY
A
MOUNT
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On Net Sales less than or equal to $[**]
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[**]%
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On the increment of Net Sales greater than $[**]
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[**]%
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4.3. Reduced Milestone and Royalty Obligations.
The obligation of Novartis, its Affiliates
and sublicensees to pay milestones and royalties to Infinity under this License Agreement shall be reduced upon the occurrence of the following events:
License, Development and Commercialization Agreement – Confidential – Page 13
(a) In the event of Infinity’s material breach of this License Agreement, which
shall remain uncured [**] days after written notice by Novartis to Infinity of the same, the rights of Novartis, its Affiliates and sublicensees under this License Agreement shall remain unaffected but its milestone and royalty payment obligations
shall be reduced by [**] percent ([**]%).
(b) In the event of Infinity’s material breach of the Collaboration
Agreement which shall remain uncured [**] days after written notice by Novartis to Infinity of the same, or if Infinity does not deliver [**] Actual Compounds to Novartis prior to the [**] anniversary of the Effective Date (as defined in the
Collaboration Agreement), then the rights of Novartis, its Affiliates and sublicensees under this License Agreement shall remain unaffected but its milestone and royalty payment obligations shall be reduced by [**] percent ([**]%).
(c) In the event that Novartis, its Affiliates or sublicensees is required to pay Third Party royalties, milestones or license fees in
order to avoid infringement of Third Parties’ intellectual property rights covering the composition of matter of the Optioned Lead Program, Optioned Lead Program Compound or Licensed Drug Product, Novartis’ obligation to pay royalties to
Infinity shall be reduced dollar for dollar on par with the amounts actually paid by Novartis or its Affiliate to such Third Party;
provided
,
however
, that in no event shall the amount paid to Infinity be less than [**] percent ([**]%)
of the amount otherwise payable to Infinity pursuant to Section 4.2.
ARTICLE V
Reporting Obligations
During the term
of this License Agreement, Novartis shall deliver to Infinity a written notice of the occurrence of each of the events described in Section 4.1(b) with respect to each Optioned Lead Program within [**] days after such occurrence.
During
the term of this License Agreement, but only after the First Commercial Sale of a Drug Product, Novartis shall deliver to
License, Development and Commercialization Agreement – Confidential – Page 14
Infinity within [**] days after the end of each calendar quarter a written report showing actual Net Sales of such Drug Product by Novartis, its Affiliates
and sublicensees in each country during such calendar quarter. All Net Sales shall be stated in United States dollars, and Novartis shall convert the amounts into United States dollars from the currency in which such amounts are received by
Novartis, its Affiliates and sublicensees using Novartis’ then-current standard exchange rate methodology applied in its external reporting for the translation of foreign currency sales into United States dollars. Novartis will keep complete,
true and accurate books of account and records for the purpose of showing the derivation of Net Sales and all amounts payable to Infinity under this License Agreement. Novartis, its Affiliates or sublicensees will keep such books and records for at
least three (3) years following the end of the calendar quarter to which they pertain. Infinity shall have the right for a period of three (3) years after receiving any report or statement with respect to royalties due and payable to
appoint an internationally-recognized independent accounting firm reasonably acceptable to Novartis (the “
Auditor
”) to inspect the relevant records of Novartis, its Affiliates or sublicensees to verify such reports, statements,
records or books of accounts, as applicable. Before beginning its audit, the Auditor shall execute an undertaking reasonably acceptable to Novartis by which the Auditor shall keep confidential all information reviewed during such audit; although the
Auditor shall have the right to disclose to Infinity its conclusions regarding any payments owed to Infinity. Novartis, its Affiliates and/or sublicensees shall make its records available for inspection by the Auditor during regular business hours
at such place or places where such records are customarily kept, upon reasonable notice from Infinity, solely to verify the accuracy of the sales reports, payments records or books of accounts and the compliance by Novartis, its Affiliates and/or
sublicensees in other respects with this License Agreement. Such inspection right shall not be exercised more than once in any calendar year not nor more frequently than once with respect to records covering any specific period of time. Infinity
agrees to hold in strict confidence all information received and all information learned in the course of any audit or inspection, except to the extent necessary in order to enforce its rights under this License Agreement or if disclosure is
required by law, regulation or judicial order. Infinity shall pay for such inspections, as well as its own attorneys’ fees associated with enforcing its rights with respect to any payments hereunder, except that in the event there is any upward
adjustment in aggregate amounts payable for any
License, Development and Commercialization Agreement – Confidential – Page 15
year shown by such inspection of more than five percent (5%) of the amount paid, Novartis shall pay for such inspection and shall pay to Infinity the
amount of any underpayment, along with interest thereon at a rate per annum equal to the lesser of [**], as reported by
The Wall Street Journal
, [**], or the highest rate permitted by applicable law, calculated on the number of days such
payments are paid after the date such payments were originally due.
ARTICLE VI
Confidentiality
6.1.
Undertaking.
During the term of this License Agreement, each Party (the “
Receiving Party
”) shall keep confidential, and other than as provided herein shall not use or disclose, directly or indirectly, any trade secrets,
confidential or proprietary information, or any other knowledge, information, documents or materials, disclosed to the Receiving Party by the other Party (the “
Proprietary Party
”), whether in tangible or intangible form, the
confidentiality of which such Proprietary Party takes reasonable measures to protect, including but not limited to Collaboration Intellectual Property.
(a) The Receiving Party shall take any and all lawful, reasonable measures to prevent the unauthorized use and disclosure of such information, and to prevent unauthorized Persons from obtaining or using such
information. With the prior written consent of the Proprietary Party, the Receiving Party may, however, use and disclose such information to exercise its rights to file, prosecute and maintain Patents within the Collaboration Intellectual Property
as permitted by the Collaboration Agreement.
(b) The Receiving Party further agrees to refrain from directly or indirectly
taking any action that would constitute or facilitate the unauthorized use or disclosure of such information. The Receiving Party may disclose such information to its Affiliates, officers, employees and agents, to authorized licensees and
sublicensees, and to subcontractors in connection with the Receiving Party’s obligations hereunder, to the extent necessary to enable such Persons to perform their
License, Development and Commercialization Agreement – Confidential – Page 16
obligations hereunder or under the Collaboration Agreement or under the applicable license, sublicense or subcontract, as the case may be;
provided
,
that such Affiliates, officers, employees, agents, licensees, sublicensees and subcontractors have entered into appropriate confidentiality agreements for secrecy and non-use of such information which by their terms shall be enforceable by
injunctive relief. In the event any such Persons violate such agreements with respect to such information, the Receiving Party shall enforce such agreements.
(c) The Receiving Party shall be liable for any unauthorized use and disclosure of such information by its Affiliates, officers, employees
and agents and any such sublicensees and subcontractors.
6.2. Exceptions.
Notwithstanding the foregoing, the provisions of
Section 6.1 shall not apply to knowledge, information, documents or materials that the Receiving Party can conclusively establish:
(a) were generally available to the public at the time of disclosure or become generally available to the public without the Receiving Party’s breach of any obligation owed to the Proprietary Party;
(b) are permitted to be disclosed under the prior written consent of the Proprietary Party;
(c) were known by the Receiving Party at the time of disclosure, or have become known to the Receiving Party from a source other than the
Proprietary Party, other than by breach of an obligation of confidentiality owed to the Proprietary Party;
(d) are
disclosed by the Proprietary Party to a Third Party without restrictions on its disclosure;
(e) are independently developed
by the Receiving Party without breach of this License Agreement or any other confidentiality agreement between the Parties or between a Party and an Affiliate of the other Party, without reference to or reliance upon knowledge, information, or
materials of the Proprietary Party; or
License, Development and Commercialization Agreement – Confidential – Page 17
(f) are required to be disclosed by the Receiving Party to comply with applicable laws or
regulations, to submit Registration Filings, to defend or prosecute litigation or Patents, or to comply with governmental regulations,
provided
that the Receiving Party provides prior written notice of such disclosure to the Proprietary Party
and takes reasonable and lawful actions to avoid or minimize the degree of such disclosure.
6.3. Publicity.
Except with respect to
the initial press release described in Section 4.3 of the Collaboration Agreement, the Parties will agree upon the timing and content of any other press releases or other public communications relating to the License Agreement and the
transactions contemplated herein will be determined jointly by Infinity and Novartis.
Except to the extent already disclosed in that
initial press release or other public communication, no public announcement concerning the existence or the terms of this License Agreement or concerning the transactions described herein shall be made, either directly or indirectly, by Infinity or
Novartis, except as may be legally required by applicable laws, regulations, or judicial order, without first obtaining the approval of the other Party and agreement upon the nature, text, and timing of such announcement.
The Party desiring to make any such public announcement shall provide the other Party with a written copy of the proposed announcement in sufficient time
prior to public release to allow such other Party to comment upon such announcement, prior to public release.
Notwithstanding the
foregoing, either Party may disclose: (a) to bona fide potential or actual licensees or sublicensees only those terms of this License Agreement that are reasonably necessary to disclose in connection with a license or sublicense as permitted
this License Agreement; and (b) to bona fide potential or actual investors, lenders, investment bankers, acquirors, acquirees or merger partners, and to such Party’s consultants and advisors, only those terms of this License Agreement that
are reasonably necessary in connection with a proposed equity or debt financing, proposed acquisition or business combination of such Party.
License, Development and Commercialization Agreement – Confidential – Page 18
6.4. Survival.
The provisions of this Article VI shall survive for five (5) years after the
termination or expiration of this License Agreement.
6.5. Equitable Relief.
The Receiving Party agrees that any breach of this
Article VI may cause the Proprietary Party substantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies that may be available, the Proprietary Party shall have the right to specific performance
and other injunctive and equitable relief.
ARTICLE VII
Patents
7.1. Inventions.
All inventions conceived of and reduced to practice during the term
of and as a result of, this License Agreement, jointly by employees or agents of Infinity or its Affiliates, on one hand, and employees or agents of Novartis or its Affiliates, on the other hand and all Patents claiming the same, shall be owned by
Novartis.
7.2. Preparation.
Subsequent to the date on which Novartis exercises its Option with respect to a particular
Optioned Lead Program, Novartis or its Affiliates shall take responsibility and pay for the preparation, filing, prosecution and maintenance of any and all Patents covering such Optioned Lead Program, Optioned Lead Program Compound or Licensed Drug
Product, and for any uses, formulations, manufacture and other process inventions with respect thereto made by or on behalf of Novartis or its Affiliates. If Infinity was authorized to file a Patent pursuant to Section 2.3.2(h) of the
Collaboration Agreement with respect to an Optioned Lead Program, Infinity shall assign, and shall cause its Affiliates, employees and/or consultants to assign, such Patent to Novartis. Upon reasonable request, Infinity shall furnish to Novartis
copies of significant documents relevant to any such preparation, filing, prosecution or maintenance of Patents covered by this Section 7.2, and shall cooperate fully in the preparation, filing, prosecution and maintenance of the same,
executing all papers and instruments so as to enable Novartis to apply for, file, prosecute and maintain such Patents in its name in any country. The Parties acknowledge the importance of maintaining the confidentiality of any inventions or other
information relating to potential Patent claims prior to the filing of applications with respect thereto.
License, Development and Commercialization Agreement – Confidential – Page 19
7.3. Infringement.
Each Party shall notify the other promptly of any possible infringements,
imitations or unauthorized possession, knowledge or use of the Intellectual Property embodied in any of the Optioned Lead Programs, Collaboration Intellectual Property, or Licensed Intellectual Property related to the manufacture or use of the
Optioned Lead Program, Optioned Lead Program Compounds or Licensed Drug Product by Third Parties in any country, of which such Party becomes aware. Each Party shall promptly furnish the other Party with full details of such infringements, imitations
or unauthorized possession, knowledge or use, and shall assist the Controlling Party in preventing any recurrence thereof; provided, that Novartis or its Affiliates shall be initially responsible, at its expense, for bringing any action on account
of any such infringements with respect to the Patents described in Section 7.2 exclusively licensed to Novartis hereunder, and Infinity shall cooperate with Novartis, its Affiliates and sublicensees, as Novartis may reasonably request, in
connection with any such action. Damages recovered in any such actions shall be apportioned in accordance with the royalty schedules contained in this License Agreement, after reimbursement to each Party of their respective expenses in prosecuting
such actions as provided hereunder.
ARTICLE VIII
Term and Termination
8.1. Term.
The term of this License Agreement with respect to any
Optioned Lead Program, and the related Optioned Lead Program Compounds, Derivative Compounds and Drug Products, shall extend in each country for the longer of (a) ten (10) years after Novartis has exercised the Option with respect to the
relevant Optioned Lead Program, or (b) the expiration of the last to expire of the Licensed Patents or Compound Patents in that country having a Live Claim covering such Optioned Lead Program, or the related Optioned Lead Program Compounds,
Derivative Compounds or Drug Products, or their uses or manufacture thereof. In the case of member countries of the European Union, the term of the License Agreement shall extend in each country for the longer of (a) ten (10) years after
Novartis has exercised the Option
License, Development and Commercialization Agreement – Confidential – Page 20
with respect to the relevant Optioned Lead Program, or (b) the later of: (i) the expiration the last to expire of the Licensed Patents or Compound
Patents in that country having a Live Claim covering such Optioned Lead Program, or the related Optioned Lead Program Compounds, Derivative Compounds or Drug Products, or the uses or manufacture thereof; or (ii) ten (10) years from the date of
First Commercial Sale of the Optioned Lead Program Compounds, Derivative Compounds or Drug Products with respect to such Optioned Lead Program in that country. With respect to licenses of non-Patented Intellectual Property included in Infinity
Background Intellectual Property, Licensed Technology or in Collaboration Intellectual Property, such licenses shall be perpetual and fully-paid with respect to such Optioned Lead Program, and the related Optioned Lead Program Compounds and Licensed
Drug Products.
8.2. Material Breach by Novartis.
Upon any material breach of the provisions of this License Agreement or of the
Collaboration Agreement by Novartis, which material breach remains uncured by Novartis, its Affiliates or sublicensees one hundred eighty (180) days after receipt of written notice of the same from Infinity: (a) the licenses and rights
granted to Novartis and/or its Affiliates or sublicensees hereunder shall terminate; and (b) Novartis shall exclusively license, and shall cause its Affiliates and sublicensees to exclusively license, to Infinity any Patents assigned to
Novartis pursuant to Section 7.2 and any Patents filed by Novartis or its Affiliates covering the Optioned Lead Program Compounds in order to research and have researched, develop and have developed, make and have made, manufacture and have
manufactured, use and have used, market and have marketed, distribute and have distributed, sell and have sold, export and import for sale, and have exported or imported for sale the Optioned Lead Program Compounds and the drug products prepared
from bulk Optioned Lead Program Compounds (but not other Derivative Compounds); and (c) Novartis shall use commercially reasonable efforts to prosecute, maintain and enforce such Patents which specifically cover the Optioned Lead Program
Compounds, such drug products prepared from bulk Optioned Lead Program Compounds (but not other Derivative Compounds), or the uses of foregoing;
provided
,
however
, that if Novartis declines to prosecute, maintain or enforce any such
Patent, it shall give Infinity reasonable notice to this effect and thereafter Infinity may, upon written notice to Novartis, prosecute, maintain or enforce, as applicable, such Patents in Novartis’ name and Novartis shall reasonably cooperate
in such prosecution, maintenance or enforcement.
License, Development and Commercialization Agreement – Confidential – Page 21
8.3. Termination.
Either Party may terminate this License Agreement immediately upon the
bankruptcy or financial insolvency of the other Party. Novartis may terminate this License Agreement without cause at any time and the provisions of Section 8.2 shall apply.
8.4. Effect of Termination.
Termination of this License Agreement for any reason, or expiration of this License Agreement, will not affect:
(a) obligations, including the payment of any milestones or royalties, which have accrued as of the date of termination or expiration; and (b) rights and obligations under the following provisions of this License Agreement, which shall
survive termination or expiration of this License Agreement: Articles V, VI and IX, Sections 8.2(a) through (c) (as provided in Sections 8.2 or 8.3), and Section 8.4. Following expiration of this License Agreement under Section 8.1
with respect to a particular country, the licenses granted by Infinity to Novartis hereunder under the Infinity Background Intellectual Property, Licensed Patents and under Infinity’s interest in the Collaboration Intellectual Property shall be
fully-paid in that country.
ARTICLE IX
Miscellaneous Provisions
9.1. Invoice Requirement.
Any amounts payable to Infinity hereunder
shall be made within sixty (60) days after receipt by Novartis, or its nominee designated for that purpose in advance by Novartis in writing to Infinity, of an invoice covering such payment.
9.2. Governing Law, and Jurisdiction.
This License Agreement shall be governed and construed in accordance with the internal laws of the State of
Delaware. Both Parties agree to submit to personal jurisdiction in the State of Delaware and to accept and agree to venue in that State.
9.3. Adverse Events.
During the term of this License Agreement, the Parties shall keep each other promptly and fully informed and Novartis will promptly notify appropriate
License, Development and Commercialization Agreement – Confidential – Page 22
authorities in accordance with applicable law, after receipt of information with respect to any serious adverse event (as defined by the ICH Harmonized
Tripartite Guideline on Clinical Safety Data Management), directly or indirectly attributable to the use or application of any Optioned Lead Program, Optioned Lead Program Compound, Derivative Compound or Drug Product.
9.4. Third Party Actions; Disclaimer of Warranties.
(a) To Infinity’s actual knowledge, as of the date Novartis exercises the Option with respect to any Optioned Lead Program, the exercise of the rights by Novartis hereunder with respect to such Optioned Lead
Program will not result in the infringement of then-valid issued Patents of Third Parties. Nevertheless, each Party will promptly notify the other in the event any relevant Third Party Patents come to its notice. Notwithstanding the foregoing,
neither Party gives a representation or warranty to the other regarding the non-infringement of Third Party rights by the development, manufacture, use or sale of the Optioned Lead Programs, Optioned Lead Program Compounds, Derivative Compounds or
Drug Products, and gives no indemnity against costs, damages, expenses or other losses arising out of proceedings brought against the other Party or any other Person by any Third Party. In the event Novartis, its Affiliates or sublicensees are sued
for infringement of any rights of any Third Party in the course of its development, manufacture, marketing and sale of an Optioned Lead Program Compound, Derivative Compounds or Drug Product or its use of Infinity Background Intellectual Property in
connection therewith, Infinity shall extend to Novartis, its Affiliates and sublicensees, at no charge, good faith assistance and support in defending such action, and may participate in the conduct of the suit at its own expense. Legal expenses and
fees arising from such a legal action shall be paid by Novartis, its Affiliates or sublicensees.
(b) EXCEPT AS EXPRESSLY
PROVIDED IN SECTION 9.16, EACH PARTY EXPRESSLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
License, Development and Commercialization Agreement – Confidential – Page 23
9.5. Waiver.
No provision of this License Agreement may be waived except in writing by both
Parties. No failure or delay by either Party in exercising any right or remedy hereunder or under applicable law will operate as a waiver thereof, or a waiver of any right or remedy on any subsequent occasion.
9.6. Force Majeure.
Neither Party will be in breach hereof by reason of its delay in the performance of or failure to perform any of its
obligations hereunder, if that delay or failure is caused by strikes, acts of God or the public enemy, riots, war, terrorism, incendiaries, interference by civil or military authorities, compliance with governmental priorities for materials, or any
fault beyond its control or without its fault or negligence.
9.7. Severability.
Should one or more provision of this
License Agreement be or become invalid, then the Parties shall attempt in good faith to agree upon valid provisions in substitution for the invalid provisions, which in their economic effect come so close to the invalid provisions that it can be
reasonably assumed that the Parties would have accepted this License Agreement with those new provisions. If the Parties are unable to agree on such valid provisions, the invalidity of such one or more provisions of this License Agreement shall
nevertheless not affect the validity of the License Agreement as a whole, unless the invalid provisions are of such essential importance for this License Agreement that it may be reasonably presumed that the Parties would not have entered into this
License Agreement without the invalid provisions.
9.8. Government Acts.
In the event that any act, regulation, directive, or
law of a country or its government, including its departments, agencies or courts, should make impossible or prohibit, restrain, modify or limit any material act or obligation of the Parties under this License Agreement, the Party, if any, not so
affected, shall have the right, at its option, to suspend or terminate this License Agreement as to such country, if good faith negotiations between the Parties to make such modifications herein as may be necessary to fairly address the impact
thereof, are not successful after a reasonable period of time in producing mutually acceptable modifications to this License Agreement.
License, Development and Commercialization Agreement – Confidential – Page 24
9.9. Government Approvals.
Each Party will obtain any government approval required in its country
of domicile to enable this License Agreement to become effective, or to enable any payment hereunder to be made, or any other obligation hereunder to be observed or performed. Each Party shall keep the other informed of progress in obtaining any
such government approval, and will cooperate with the other Party in any such efforts.
9.10. Export Controls.
This License
Agreement is made subject to any restrictions concerning the export of Optioned Lead Program Compounds, Derivative Compounds, Drug Products, Infinity Background Intellectual Property, Licensed Intellectual Property or Collaboration Intellectual
Property from the United States that may be imposed upon or related to either Party from time to time by the Government of the United States. Furthermore, each Party agrees that it will not export, directly or indirectly, any Infinity Background
Intellectual Property, Licensed Intellectual Property, Collaboration Intellectual Property acquired from the other Party under this License Agreement or any Optioned Lead Program Compounds, Derivative Compounds or Drug Products utilizing the same to
any countries for which the United States government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so (of which Novartis will promptly inform
Infinity) from the Department of Commerce or other agency of the United States government when required by applicable statute or regulation.
9.11. Assignment.
This License Agreement may not be assigned or otherwise transferred by either Party without the prior written consent of the other Party;
provided, however
, that either Party may assign this License
Agreement,
without
consent of the other Party: (a) to any of its Affiliates, if the assigning Party guarantees to full performance of its Affiliates’ obligations hereunder; or (b) in connection with the transfer or sale of all
or substantially all of its assets or business, or a controlling equity interest, or in the event of its merger or consolidation with another company. Any purported assignment in contravention of
License, Development and Commercialization Agreement – Confidential – Page 25
this Section 9.11 shall, at the option of the nonassigning Party, be null and void and of no effect. No assignment shall release either Party from
responsibility for the performance of any accrued obligation of such Party hereunder. This License Agreement shall be binding upon and enforceable against the successor to or any permitted assignees of either of the Parties.
9.12. Counterparts.
This License Agreement may be executed in counterparts, each of which shall be deemed to be original and both of which shall
constitute one and the same License Agreement.
9.13. No Agency.
Nothing in this License Agreement shall be deemed to create an
agency, joint venture, amalgamation, partnership or similar relationship between Infinity and Novartis and their respective Affiliates. Notwithstanding any of the provisions of this License Agreement, neither Party shall at any time enter into,
incur, or hold itself out to Third Parties as having authority to enter into or incur, on behalf of the other Party, any commitment, expense, or liability whatsoever, and all contracts, expenses and liabilities in connection with or relating to the
obligations of each Party under this License Agreement shall be made, paid, and undertaken exclusively by such Party on its own behalf and not as an agent or representative of the other.
9.14. Notice.
All communications between the Parties with respect to any of the provisions of this License Agreement will be sent to the addresses
set out below or to such other addresses as may be designated by one Party to the other by notice pursuant hereto, by prepaid certified mail (which shall be deemed received by the other Party on the seventh business day following deposit in the
mails), or by facsimile transmission (which shall be deemed received when transmitted), with confirmation by first class letter, postage pre-paid, given by the close of business on or before the next following business day:
if to Novartis, at:
Novartis International
Pharmaceutical Ltd.
Hurst Holme
12 Trott Road
P.O. Box 2899
Hamilton, HM LX
Bermuda
Attention: Emil Bock
Fax: (441) 296-5083
License, Development and Commercialization Agreement – Confidential – Page 26
with a copy to:
Novartis Institutes for BioMedical Research, Inc.
400 Technology Square
Cambridge, Massachusetts 02139
Attention:
Robert L. Thompson, Vice President and General Counsel
Fax: (617) 871-3354
if to Infinity, at:
Infinity
Pharmaceuticals, Inc.
780 Memorial Drive
Cambridge, Massachusetts 02139
Attention: Adelene Perkins
Fax: (617) 453-1001
with a copy to:
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attention: Steven D. Singer, Esq.
Fax:
(617) 526-5000
9.15. Headings.
The paragraph headings are for convenience only and will not be deemed to affect in any way the
language of the provisions to which they refer.
9.16. Authority.
The undersigned represent that they are authorized to sign this
License Agreement on behalf of the Parties. The Parties each represent that no provision of this License Agreement will violate any other agreement that a Party may have with any other Person. Each Party has relied on that representation in entering
into this License Agreement.
9.17. Entire Agreement.
This License Agreement and its schedules contain the entire understanding of
the Parties relating to the matters referred to herein, and may only be amended by a written document, duly executed on behalf of the respective Parties.
License, Development and Commercialization Agreement – Confidential – Page 27
9.18. No Consequential Damages.
NEITHER PARTY HERETO WILL BE LIABLE FOR SPECIAL, INCIDENTAL,
CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR MULTIPLE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER, INCLUDING, WITHOUT LIMITATION, LOST PROFITS ARISING FROM OR RELATING TO ANY BREACH OF THIS LICENSE AGREEMENT, REGARDLESS OF
ANY NOTICE OF SUCH DAMAGES.
9.19. Affiliates and Subcontractors.
Each Party may perform its obligations hereunder personally or
through one or more Affiliates or subcontractors, although each Party shall nonetheless be solely responsible for the performance of its Affiliates and subcontractors. Neither Party shall permit any of its Affiliates or subcontractors to commit any
act (including any act of omission) that such Party is prohibited hereunder from committing directly. The use of subcontractors by either Party shall not increase the financial obligations of the other Party hereunder in any respect.
[Signature page follows]
License, Development and Commercialization Agreement – Confidential – Page 28
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INFINITY PHARMACEUTICALS, INC.
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By:
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Title:
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Date of Signature:
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NOVARTIS INTERNATIONAL PHARMACEUTICAL LTD.
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By:
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Title:
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Date of Signature:
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By:
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Title:
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Date of Signature:
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License, Development and Commercialization Agreement – Confidential – Page 29
Schedule A
Licensed Patents
[to be provided]
License, Development and Commercialization Agreement – Confidential
EXHIBIT B
SCAFFOLD EXAMPLES
The scheme below serves as an example of what would and would not be included as part a single
Scaffold, as defined in Sections 1.36. The scheme describes the synthesis of a Scaffold which would include the structures 4b-d and 5b-d. 4b-d and 5b-d are rigid, densely functionalized compounds that can undergo further reactions to introduce a
variety of functional groups around the [**] structure. The [**] groups can serve as substrates for [**] cross-coupling reactions. The [**] can react with [**] while simultaneously unmasking [**] for subsequent reactions. All of these modifications
to the Scaffold would be considered as part of the same Scaffold.
Additionally, it is conceivable that many other [**] could have been employed to create
the [**] precursor to the [**] embedded in the [**] scaffold and those which are accessible via a reasonable synthetic pathway would also be considered part of the same Scaffold.
In this example, replacement of the designated [**] precursor to the [**] with another would create a different Scaffold because it would create different array of chemical functionality for subsequent attachment of a
variety of substituents using synthetic organic transformations and would be considered a different Scaffold. Notwithstanding the foregoing, if the use of various [**] were explored and was found to react similarly (as the [**] were found to in this
example), then the scope of such variability would be considered part of the same Scaffold;
provided
that
the same array of chemical functionality for subsequent attachment of a variety of substitutes is present. For example, it might
be that the [**] was tested and found to react similarly and therefore should be included in the Scaffold.
Additionally, breaking the [**] embedded in the
[**] structure would result in a compound with significantly different topology and physicochemical properties which would introduce many unanticipated synthetic organic chemistry challenges at the level of creating the Scaffold as well as
introducing substituents that this would be considered a different Scaffold.
[**]
Collaboration Agreement — Confidential
EXHIBIT C
SYNTHETIC PATHWAYS AND SCAFFOLDS
[to be provided]
Collaboration Agreement — Confidential
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
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Exhibit 10.3
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COLLABORATION AND LICENSE AGREEMENT
BY AND BETWEEN
INFINITY
PHARMACEUTICALS, INC.
AND
JOHNSON & JOHNSON PHARMACEUTICAL RESEARCH AND DEVELOPMENT
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ARTICLE 1
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DEFINITIONS
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1
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Section 1.1 Affiliate
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1
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Section 1.2 Amgen
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2
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Section 1.3 Amgen Agreement
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2
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Section 1.4 Analog
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2
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Section 1.5 Back-Up Library Compound
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2
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Section 1.6 Business Day
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2
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Section 1.7 Collaboration Term
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2
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Section 1.8 Confidential Information
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2
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Section 1.9 Control or Controlled
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2
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Section 1.10 Development or Develop
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3
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Section 1.11 Drug Discovery Program
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3
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Section 1.12 Equity Agreements
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3
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Section 1.13 Exclusive Library Compound
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3
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Section 1.14 Exclusive Library Compound Information
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3
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Section 1.15 Executive Officers
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3
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Section 1.16 Good Laboratory Practices or GLP
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3
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Section 1.17 Infinity Intellectual Property
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3
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Section 1.18 Infinity Know-How
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4
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Section 1.19 Infinity Patent Rights
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4
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Section 1.20 Investor Rights Agreement
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4
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Section 1.21 JJPRD Analog
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4
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Section 1.22 JJPRD Analog Information
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4
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Section 1.23 Know-How
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4
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Section 1.24 Law or Laws
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4
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Section 1.25 Library Compound
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4
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Section 1.26 Library Compound Pool
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4
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Section 1.27 Library Compound Delivery Requirements
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5
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Section 1.28 Library Compound Exclusivity Option
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5
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Section 1.29 Intentionally Blank
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5
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Section 1.30 Library Compound Structure Information
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5
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Section 1.31 Party or Parties
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5
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Section 1.32 Patent Rights
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5
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Section 1.33 Stock Purchase Agreement
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5
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Section 1.34 Synthetic Methodology and Pathways
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5
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Section 1.35 Third Party
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6
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Section 1.36 Additional Definitions
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6
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ARTICLE 2
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DELIVERY AND USE OF LIBRARY COMPOUNDS
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6
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Section 2.1 Delivery of Library Compounds
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6
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Section 2.2 Program Coordinators
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7
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ARTICLE 3
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LICENSES
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7
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i
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Section 3.1 Infinity Grants
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7
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Section 3.2 Limited JJPRD Grant
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8
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Section 3.3 Sublicense Rights
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9
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Section 3.4 Section 365(n) Of The Bankruptcy Code
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9
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Section 3.5 No Implied Licenses Or Rights
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9
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Section 3.6 Library Compound Exclusivity Option
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9
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ARTICLE 4
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FINANCIAL PROVISIONS
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11
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Section 4.1 License Fee
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11
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ARTICLE 5
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INTELLECTUAL PROPERTY OWNERSHIP, PROTECTION AND RELATED MATTERS
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11
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Section 5.1 Ownership
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11
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Section 5.2 Third Party Infringement
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12
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ARTICLE 6
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CONFIDENTIALITY
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12
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Section 6.1 Confidential Information
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12
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Section 6.2 Permitted Disclosure
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13
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Section 6.3 Employee And Advisor Obligations
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14
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Section 6.4 Term
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14
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Section 6.5 Publications
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14
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ARTICLE 7
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TERM AND TERMINATION
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14
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Section 7.1 Agreement Term
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14
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Section 7.2 Termination For Convenience
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14
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Section 7.3 Termination For Material Breach
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14
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Section 7.4 Effect Of Termination; Accrued Rights; Surviving Obligations
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15
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ARTICLE 8
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REPRESENTATIONS, WARRANTIES AND COVENANTS
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16
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Section 8.1 Representation Of Authority; Consents
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16
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Section 8.2 No Conflict
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16
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Section 8.3 Knowledge Of Pending Or Threatened Litigation
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16
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Section 8.4 Employee And Consultant Obligations
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16
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Section 8.5 Intellectual Property
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17
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Section 8.6 Disclaimer Of Warranty
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17
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Section 8.7 Additional Covenants Of Infinity
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17
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Section 8.8 Performance Standards
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17
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ARTICLE 9
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MISCELLANEOUS PROVISIONS
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18
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Section 9.1 Indemnification
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18
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Section 9.2 Dispute Resolution
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19
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ii
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Section 9.3 Governing Law
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20
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Section 9.4 Assignment
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20
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Section 9.5 Entire Agreement; Amendments
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20
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Section 9.6 Notices
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20
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Section 9.7 Force Majeure
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21
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Section 9.8 Compliance With Laws
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21
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Section 9.9 Public Announcements
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21
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Section 9.10 Use Of Names, Logos Or Symbols
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22
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Section 9.11 Independent Contractors
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22
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Section 9.12 No Strict Construction
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22
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Section 9.13 Headings
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22
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Section 9.14 No Implied Waivers; Rights Cumulative
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22
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Section 9.15 Severability
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23
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Section 9.16 Execution In Counterparts
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23
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Section 9.17 No Third Party Beneficiaries
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23
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Section 9.18 Performance By Affiliates
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23
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Section 9.19 No Consequential Damages
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23
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Section 9.20 Exhibits
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23
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EXHIBITS
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Exhibit A — Library Compound Delivery Requirements
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Exhibit B — Form of Press Release
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iii
COLLABORATION AND LICENSE AGREEMENT
THIS COLLABORATION AND LICENSE AGREEMENT
(the “Agreement”) dated the 22nd day of December, 2004 (the “Effective Date”) is by
and between
INFINITY PHARMACEUTICALS, INC.
, a corporation organized and existing under the laws of the State of Delaware and having its principal office at 780 Memorial Drive, Cambridge, Massachusetts 02139 (“Infinity”), and
JOHNSON & JOHNSON PHARMACEUTICAL RESEARCH & DEVELOPMENT
, a division of JANSSEN PHARMACEUTICA N.V., a Belgian business corporation organized and existing under the laws of Belgium with registration number RPR 0403.834.160,
VAT No. BE-403.834.160, and with registered office at B-2340 Beerse, Belgium, Turnhoutseweg 30 (“JJPRD”).
INTRODUCTION
WHEREAS
, Infinity and JJPRD and its Affiliates are each in the business of discovering, developing and commercializing
pharmaceutical products.
WHEREAS
, Infinity Controls certain technology for the creation of large numbers of complex,
natural-compound-like compounds for the purpose of screening biological targets to identify potential human therapeutics.
WHEREAS
,
pursuant to an agreement with Amgen Inc., Infinity has utilized such technology to create libraries of compounds for such purposes.
WHEREAS
, Infinity and JJPRD are interested in collaborating on activities relating to the Infinity library compounds identified pursuant to the agreement with Amgen and subsequently and in providing for the opportunity for JJPRD to
develop and commercialize such compounds and their derivatives as potential pharmaceutical products.
WHEREAS
, on the Effective
Date, Infinity and JJPRD Affiliate Johnson & Johnson Development Corporation (“JJDC”) are entering into a Series C Preferred Stock Purchase Agreement, pursuant to which JJDC shall purchase shares of Infinity’s Series C
Convertible Preferred Stock.
NOW, THEREFORE
, Infinity and JJPRD agree as follows:
ARTICLE 1
DEFINITIONS
When used in this Agreement, each of the following terms shall have the meanings set forth in this Article 1:
Section 1.1 Affiliate.
“Affiliate” shall mean any corporation, company, partnership, joint venture and/or firm that controls, is
controlled by, or is under common control with a specified person or entity. For purposes of this Section 1.1, “control” shall be presumed to exist if one of the following conditions is met: (a) in the case of corporate entities,
direct or indirect
1
ownership of more than fifty percent (50%) of the stock or shares having the right to vote for the election of directors, and (b) in the case of
non-corporate entities, direct or indirect ownership of more than fifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities. The Parties acknowledge that in the case of
certain entities organized under the Laws of certain countries outside of the United States, the maximum percentage ownership permitted by Law for a foreign investor may be less than fifty percent (50%), and that in such case such lower percentage
shall be substituted in the preceding sentence,
provided that
such owner has the power to direct the management and policies of such entity.
Section 1.2 Amgen.
“Amgen” means Amgen Inc., a Delaware corporation.
Section 1.3 Amgen Agreement.
“Amgen Agreement” means the Collaboration and License Agreement by and between Infinity and Amgen, dated as of December 9, 2003, as amended from time to time.
Section 1.4 Analog.
“Analog” shall mean any compound that is derived by JJPRD from a compound included in the Library Compound Pool.
Section 1.5 Back-Up Library Compound.
“Back-Up Library Compound” shall mean, with respect to a compound included in the
Library Compound Pool for which JJPRD exercises a Library Compound Exclusivity Option, each other Library Compound that (a) is from the same Synthetic Pathway as, the relevant Library Compound for which JJPRD exercises the Library Compound
Exclusivity Option and (b) JJPRD designates in accordance with Section 3.6.2.
Section 1.6 Business Day.
“Business
Day” shall mean a day other than a Saturday or Sunday or Federal holiday.
S
ection 1.7 Collaboration Term.
“Collaboration
Term” shall mean, subject to any termination provisions of this Agreement, the period from the Effective Date to the later of December 31, 2005 or the date on which Infinity has delivered to JJPRD and JJPRD has accepted all Library
Compounds that Infinity is required to deliver hereunder.
Section 1.8 Confidential Information.
“Confidential
Information” shall mean (a) all JJPRD Analog Information and [**] Information (which, with respect to the Infinity Know-How in [**] Information, shall be deemed to be JJPRD Confidential Information for as long as it is subject to the
respective licenses granted under Sections 3.1), which shall be deemed to be JJPRD Confidential Information, (b) all information relating to compounds included in the Library Compound Pool (other than [**]), and (c) all other proprietary
documents, technology, Know-How or other information (whether or not patentable) actually disclosed by one Party to the other pursuant to this Agreement and marked as “confidential” or “proprietary” (or if disclosed orally,
confirmed in writing within thirty (30) days thereafter).
Section 1.9 Control or Controlled.
“Control” or
“Controlled” shall mean with respect to any (a) material, document, item of information, method, data or other Know-How or (b) intellectual property right, the possession (whether by ownership or license, other than by a
2
license granted pursuant to this Agreement) by a Party or its Affiliates of the ability to grant to the other Party access, ownership, a license and/or a
sublicense as provided herein without violating the terms of any agreement or other arrangement with any Third Party entered into or existing as of the time such Party or its Affiliates would first be required hereunder to grant the other Party such
access, ownership, license, or sublicense.
Section 1.10 Development or Develop.
“Development” or “Develop”
shall mean, with respect to a compound, preclinical and clinical drug development activities, including, among other things: test method development and stability testing, toxicology, formulation, process development, manufacturing scale-up,
development-stage manufacturing, quality assurance/quality control procedure development and performance with respect to clinical materials, statistical analysis and report writing and clinical studies. When used as a verb, “Develop” means
to engage in Development.
Section 1.11 Drug Discovery Program.
“Drug Discovery Program” shall mean a JJPRD research
program, which is focused on researching (a) a compound included in the Library Compound Pool or (b) a JJPRD Analog.
Section
1.12 Equity Agreements.
“Equity Agreements” shall mean the Stock Purchase Agreement and the Investor Rights Agreement.
Section 1.13 Exclusive Library Compound.
“Exclusive Library Compound” shall mean each compound included in the Library Compound Pool with respect to which JJPRD exercises the Library Compound Exclusivity Option, together
with all Back-Up Library Compound(s) licensed to JJPRD pursuant to Sections 3.1.3 and 3.6.1 in connection with such exercise by JJPRD of the Library Compound Exclusivity Option by operation of Section 3.6.2.
Section 1.14 Exclusive Library Compound Information.
“Exclusive Library Compound Information” shall mean all structural, process and
other information relating to an Exclusive Library Compound provided by Infinity to JJPRD and all such information generated by JJPRD. For the avoidance of doubt, Exclusive Library Compound Information includes [**] and [**] and [**] with respect to
the relevant Exclusive Library Compound.
Section 1.15 Executive Officers.
“Executive Officers” shall mean the Chief
Executive Officer of Infinity (or a senior executive officer of Infinity designated by Infinity’s Chief Executive Officer) and the Chief Executive Officer of JJPRD (or a senior executive officer of JJPRD designated by JJPRD’s Chief
Executive Officer).
Section 1.16 Good Laboratory Practices or GLP.
“Good Laboratory Practices” or “GLP” shall
mean the then-current good laboratory practice standards promulgated or endorsed by the FDA as defined in 21 C.F.R. Part 58, and comparable regulatory standards in jurisdictions outside the United States.
Section 1.17 Infinity Intellectual Property.
“Infinity Intellectual Property” shall mean Infinity Know-How and Infinity Patent Rights.
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Section 1.18 Infinity Know-How.
“Infinity Know-How” shall mean Know-How Controlled by
Infinity during the Collaboration Term, including without limitation Library Compound Structure Information.
Section 1.19 Infinity
Patent Rights.
“Infinity Patent Rights” shall mean Patent Rights Controlled by Infinity.
Section 1.20 Investor Rights
Agreement.
“Investor Rights Agreement” shall mean the Investor Rights Agreement entered into by the Parties on the Effective Date.
Section 1.21 JJPRD Analog.
“JJPRD Analog” shall mean an Analog that is synthesized by JJPRD in the course of a Drug Discovery Program.
Section 1.22 JJPRD Analog Information.
“JJPRD Analog Information” shall mean all structural, process and other information generated by JJPRD relating to an Analog.
Section 1.23 Know-How.
“Know-How” shall mean any information and materials, whether proprietary or not and whether patentable or not,
including without limitation ideas, concepts, formulas, methods, procedures, designs, compositions, plans, documents, data, inventions, discoveries, works of authorship, compounds and biological materials, but excluding any such information or
materials disclosed in Patent Rights.
Section 1.24 Law or Laws.
“Law” or “Laws” shall mean all laws, statutes,
rules, regulations, ordinances and other pronouncements having the effect of law of any federal, national, multinational, state, provincial, county, city or other political subdivision, domestic or foreign.
Section 1.25 Library Compound.
“Library Compound” shall mean a compound included in the Library Compound Pool that is selected as a
Library Compound pursuant to Section 2.1.2 and delivered to JJPRD;
provided that
, in the event the Library Compound Structure Information for a compound physically delivered by Infinity as a Library Compound does not contain an accurate
description of the molecular formula or molecular structure of such compound, the compound delivered, but not the structure described, shall be deemed to be a Library Compound.
Section 1.26 Library Compound Pool.
“Library Compound Pool” means all compounds controlled by Infinity that were identified and provided
to Amgen under the terms of the Amgen Agreement, prior to any renewals by Amgen. To the extent that the supply of compounds from any given Synthetic Pathway is insufficient to meet requirements hereunder, Infinity will use commercially reasonable
efforts to resynthesize compounds from such Synthetic Pathway; provided, however, that if Infinity is unable to supply compounds from any Synthetic Pathway, Infinity will include in the Library Compound Pool compounds from Synthetic Pathways not
provided to Amgen under the terms of the Amgen Agreement, prior to any renewals by Amgen, until Infinity has satisfied its obligation to provide JJPRD Library Compounds from a minimum of [**] Synthetic Pathways and a pool of [**] compounds.
Additionally, “Library Compound Pool” shall specifically include any compound referenced to JJPRD in a certain database to which Infinity has provided JJPRD access, any compound
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controlled by Infinity and made by Infinity by any one of synthetic pathways designated [**] and [**] prior to December 31, 2005 and any compound
Controlled by Infinity and made by Infinity by a diversity oriented chemistry synthetic pathway prior to December 31, 2005. Notwithstanding the foregoing, the Library Compound Pool will exclude any compound that (a) if delivered would
violate an obligation of Infinity of confidentiality to a Third Party, (b) is generated by Infinity as focused compound sets based on hits against a specific target, (c) was in Infinity’s [**] Hit-to-Lead Chemistry Programs in
existence as of 12/19/03, the effective date of the Amgen agreement, (which include, in the aggregate no more than [**] compounds), or (d) Infinity has previously filed a patent application that specifically claims the composition of matter by
a unique name or designation of the compound included in the Library Compound Pool prior to the date on which such compound was delivered to JJPRD.
Section 1.27 Library Compound Delivery Requirements.
“Library Compound Delivery Requirements” shall mean the requirements set forth in
Exhibit A
relating to the Library Compounds to be delivered by Infinity to JJPRD
under this Agreement.
Section 1.28 Library Compound Exclusivity Option.
“Library Compound Exclusivity Option” shall mean
JJPRD’s option to obtain exclusive rights with respect to a [**], if any, as further described in Section 3.6.
Section
1.29
Intentionally Blank.
Section 1.30 Library Compound Structure Information.
“Library Compound Structure
Information” shall mean information (in the form of documentation or access thereto) relating to available molecular formula, molecular structure, purity, yield and process information including the production notebook of each compound included
in the Library Compound Pool which is Controlled by Infinity. For the avoidance of doubt, Library Compound Structure Information includes Synthetic Pathways.
Section 1.31 Party or Parties.
“Party” shall mean JJPRD or Infinity. “Parties” shall mean JJPRD and Infinity.
Section 1.32 Patent Rights.
“Patent Rights” shall mean all existing patents and patent applications and all patent applications hereafter filed and patents hereafter issued, including without
limitation any continuations, continuations-in-part, divisions, provisionals or any substitute applications, any patent issued with respect to any such patent applications, any reissue, reexamination, renewal or extension (including any supplemental
protection certificate) of any such patent, and any confirmation patent or registration patent or patent of addition based on any such patent, and all foreign counterparts of any of the foregoing.
Section 1.33 Stock Purchase Agreement.
“Stock Purchase Agreement” shall mean the Series C Preferred Stock Purchase Agreement entered
into by Infinity and JJDC on the Effective Date.
Section 1.34 Synthetic Pathways.
“Synthetic Pathways” shall mean, with
respect to a compound included in the Library Compound Pool, the synthetic scheme that Infinity used to synthesize the compound.
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Section 1.35 Third Party.
“Third Party” shall mean any person or entity other than a
Party or any of its Affiliates.
Section 1.36 Additional Definitions.
Each of the following definitions is set forth in the section
of this Agreement indicated below:
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DEFINITION
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SECTION
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Agreement
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Preamble
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Bankruptcy Code
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3.4
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Bound Party
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6.1
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Controlling Party
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6.1
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Effective Date
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Preamble
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Infinity
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Infinity Indemnified Parties
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JJPRD
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Preamble
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JJPRD Indemnified Parties
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Library Compound Exclusivity Fee
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3.6.1(c)
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Patent Prosecution
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Program Coordinator
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Second Back-Up Selection Date
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Severed Clause
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ARTICLE 2
DELIVERY AND USE OF LIBRARY COMPOUNDS
Section 2.1 Delivery of Library Compounds.
2.1.1
Infinity shall provide to JJPRD Library Compound Structural Information on all compounds included in the Library Compound Pool promptly
upon availability.
2.1.2
JJPRD will select from compounds included in the Library Compound Pool a number of Library Compounds in
accordance with the selection procedures set forth on
Exhibit A
to this Agreement.
2.1.3
For the Library Compounds being
resynthesized, Infinity may suggest to JJPRD the use of certain building blocks that are not represented in the Library Compound Pool along with the rationale for their suggested use. JJPRD may suggest to Infinity the use of certain building blocks
that are not represented in the Library Compound Pool along with the rationale for their suggested use. Each of JJPRD and Infinity will have the right to approve the use of such building blocks at their sole discretion and any Library Compounds
synthesized by Infinity with the use of such approved additional building blocks will be deemed Library Compounds and will be included in the Library Compound Pool.
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2.1.4
Infinity shall deliver such Library Compounds to JJPRD in accordance with the Library
Compound Delivery Requirements in Exhibit A.
Section 2.2 Program Coordinators.
2.2.1 Designation.
Each Party shall designate one of its employees to act as its liaison with the other Party for purposes of this Agreement (such
employees, the “Program Coordinators”). The Program Coordinators will be individuals with appropriate expertise in research and other matters relevant to this Agreement. The identities of the initial Program Coordinators will be
communicated by the Parties to each other no later than thirty (30) days after the Effective Date. Each Party may change its Program Coordinator at any time by providing written notice of such change to the other Party.
2.2.2 Duties.
During the Collaboration Term, the Program Coordinators shall be responsible for ensuring the effective coordination of all
operational aspects of the relationship established by this Agreement and, to that end, shall communicate with one another regularly and meet with one another in person as they deem necessary or desirable. Without limiting the generality of the
foregoing, during the Collaboration Term, the Program Coordinators shall communicate with one another regularly regarding such matters as the selection of Library Compounds, the delivery by Infinity to JJPRD of Library Compounds, and the
exercise(s) by JJPRD of the Library Compound Exclusivity Option, if any.
ARTICLE 3
LICENSES
Section 3.1 Infinity
Grants.
3.1.1 Research License.
Infinity hereby grants to JJPRD a worldwide, non-exclusive[**] license, under Infinity
Intellectual Property, to use compounds included in the Library Compound Pool and Library Compound Structure Information for research purposes in the discovery of JJPRD products (which license shall include the right to use Synthetic Pathways to
synthesize compounds included in the Library Compound Pool and JJPRD Analogs that derive from such compounds included in the Library Compound Pool, for the purpose of performing Drug Discovery Programs); provided that in the event Amgen exercises
its option to exclusively license any compounds included in the Library Compound Pool under the terms of the Amgen Agreement, the right to use Synthetic Pathways to synthesize such exclusively licensed compounds included in the Library Compound Pool
and JJPRD Analogs that are synthesized using such exclusively licensed compounds included in the Library Compound Pool shall terminate. With respect to any Exclusive Library Compound of JJPRD, the license set forth in this Section 3.1.1 shall
immediately and automatically become exclusive (even with respect to Infinity, but subject to any non-exclusive research licenses [and in the case of Amgen, non-exclusive research and development licenses granted under the Amgen Agreement] that had
been granted by Infinity to Third Parties with respect to the relevant compound included in the Library Compound Pool prior to such compound becoming an Exclusive Library Compound) upon JJPRD’s payment of the Library Compound Exclusivity Fee
pursuant to Section 3.6.1 of this
7
Agreement and such license shall survive in perpetuity (subject to any terms and conditions of this Agreement expressly providing for [**]). Subject to
Section 3.3, the licenses set forth in this Section 3.1.1 shall further include the right to grant sublicenses to Affiliates of JJPRD and to Third Party collaborators (provided such collaborators are under an obligation to not determine
the structure of any compound included in the Library Compound Pool) and Third Party contractors engaged solely on a fee-for-service basis.
3.1.2 License Limitation and Clarification.
(a)
For the avoidance of doubt, the purpose of the
licenses granted in Sections 3.1 with respect to Synthetic Pathways is to perform Drug Discovery Programs and not to enable JJPRD to use Synthetic Pathways broadly to duplicate all or substantially all of the Library Compounds delivered to JJPRD for
purpose of selling or distributing such libraries.
(b)
The Parties understand, agree and hereby acknowledge that, to
the extent permitted by the other provisions of this Agreement, JJPRD will and shall have complete rights to include all compounds included in the Library Compound Pool, including [**], and [**] and [**] for its [**] and [**] for its [**].
3.1.3 Exclusive Commercialization License With Respect to Exclusive Library Compounds.
Infinity hereby grants to JJPRD a worldwide,
exclusive license (subject to the non-exclusive research and development license granted to Amgen under the Amgen Agreement), under Infinity Intellectual Property, to Develop products that contain Library Compounds and to [**] in Exclusive Library
Compounds for any purposes. Such license shall survive in perpetuity subject to any terms and conditions of this Agreement expressly providing [**] of such license. Subject to Section 3.3, the licenses set forth in this Section 3.1.3 shall
further include the [**].
3.1.4 Commercialization Licenses With Respect to Analogs.
Infinity hereby grants to JJPRD (a) a
worldwide, perpetual (subject to any terms and conditions of this Agreement expressly providing survive in perpetuity of such license), non-exclusive license, under Infinity Intellectual Property that [**] to [**] and [**]. Subject to
Section 3.3, the licenses set forth in this Section 3.1.4 shall further include the [**].
Section 3.2 Limited JJPRD
Grant.
If in the course of using compounds included in the Library Compound Pool, JJPRD Analogs or Know-How related thereto JJPRD makes an invention which results in the filing of Patent Rights, JJPRD hereby grants to Infinity a worldwide,
royalty-free, non-exclusive license to make, use, offer for sale, sell and import solely compounds of the Library Compound Pool (but excluding Exclusive Library Compounds) under only those composition of matter claims of any such Patent Right
Controlled by JJPRD that include within their scope the composition of matter of a compound included in the Library Compound Pool. Such JJPRD license is not granted under any other type of claims within any Patent Right Controlled by JJPRD
including, without limitation, process of making, method of use or pharmaceutical composition claims. Such license shall survive in perpetuity subject to any terms and conditions of this Agreement expressly providing for the termination of such
license, including without limitation the provisions of Section 3.6.4. Subject to Section 3.3, such
8
license shall further include the right to grant sublicenses to Affiliates of Infinity and to Third Parties.
Section 3.3 Sublicense Rights
.
Wherever in this Agreement either Party is granted the right to grant sublicenses (including granting to
sublicensees the right to grant further sublicenses for the purposes of having Library Compounds and JJPRD Analogs made) subject to this Section 3.3, such Party may exercise such right without obtaining the prior approval of the other Party,
provided that
such sublicense occurs pursuant to a written agreement that subjects such sublicensee to all relevant restrictions and limitations in this Agreement. Except as otherwise agreed to by the Parties in writing, each Party shall be
jointly and severally responsible with its sublicensees to the other Party for failure by its sublicensees to comply with, and each Party guarantees the compliance by each of its sublicensees with, all such applicable restrictions and limitations in
accordance with the terms and conditions of this Agreement.
Section 3.4 Section 365(n) Of The Bankruptcy Code.
All rights and
licenses granted under or pursuant to any section of this Agreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Code, as amended (such Title 11, the “Bankruptcy Code”),
licenses of rights to “intellectual property” as defined under Section 101(35A) of the Bankruptcy Code. The Parties shall retain and may fully exercise all of their respective rights and elections under the Bankruptcy Code.
Section 3.5 No Implied Licenses Or Rights.
Except as expressly provided in this Agreement, neither Party shall have any license or
other interest in any intellectual property rights Controlled by the other Party.
Section 3.6 Library Compound Exclusivity
Option
.
3.6.1 Option.
(a)
JJPRD shall have the right to exercise the Library Compound Exclusivity Option in accordance with this Section 3.6.1 with respect to each compound included in the Library Compound Pool. In the event
that JJPRD desires to exercise the Library Compound Exclusivity Option with respect to a compound included in the Library Compound Pool, JJPRD shall give Infinity written notice of such desire which notice shall specify the compound with respect to
which JJPRD desires to exercise the Library Compound Exclusivity Option.
(b)
Within [**] Business Days after
receiving JJPRD’s notice, Infinity shall notify JJPRD of whether, prior to the date of receipt of JJPRD’s notice, (i) [**] and [**], (ii) Infinity [**]including [**] and [**] and [**] directed to the same [**] requested by JJPRD
and Infinity is [**] either [**] or [**] or (iii) Infinity has [**] that specifically claims the [**] requested by JJPRD and has [**] therefor. If any of the conditions described in clauses (i), (ii) or (iii) of the immediately
preceding sentence exist, then JJPRD shall not be permitted to exercise the Library Compound Exclusivity Option with respect to such compound included in the Library Compound Pool. If Infinity does not notify JJPRD that such compound included in the
Library Compound Pool is unavailable in accordance with Section 3.6.1(b) within [**] Business Days after JJPRD delivered its notice to Infinity, then JJPRD shall have [**] Business Days
9
following such [**] day period to exercise the Library Compound Exclusivity Option with respect to such compound included in the Library Compound Pool by
paying to Infinity $[**] (which, together with the amounts specified below in Section 3.6.2 for additional Back-Up Library Compounds, if any, shall be designated the “Library Compound Exclusivity Fee”). Upon receipt of such payment,
the applicable compound included in the Library Compound Pool shall become an Exclusive Library Compound. During the [**] or [**] day periods described in this Section 3.6.1(c), Infinity shall not grant any conflicting right to any Third Party
or otherwise take any action inconsistent with JJPRD’s exercise of its option to obtain exclusive rights to the requested compound included in the Library Compound Pool, including without limitation, filing any patent applications and
conducting any research activities with such compound(s).
3.6.2 Back-Up Library Compounds.
In connection with each exercise of the
Library Compound Exclusivity Option, JJPRD shall be entitled to elect additional Back-Up Library Compounds, each of which must be available in accordance with the criteria for availability set forth in Section 3.6.1(b), for additional payments
of $[**] compound to the base Library Compound Exclusivity Fee set forth in Section 3.6.1(c). JJPRD may exercise its election of any of such Back-Up Library Compounds either at the time, or on any single day prior to the [**] (the “Second
Back-Up Selection Date”), of JJPRD’s exercise of the applicable Library Compound Exclusivity Option. To the extent that any of the Back-Up Library Compounds JJPRD elects are not available in accordance with the criteria for availability
set forth in Section 3.6.1(b), JJPRD shall have the right to select other Back-Up Library Compounds until such time as it has obtained rights to at least [**] Back-Up Library Compounds. JJPRD must select at least [**] Back-Up Library Compounds
or make the corresponding additional payments therefore under this Section 3.6.2 related to a particular exercise of the Library Exclusivity Option under Section 3.6.1 before JJPRD may exercise a subsequent Library Exclusivity Option under
Section 3.6.1. The Parties shall document in writing JJPRD’s designation of Back-Up Library Compounds in connection with each exercise of the Library Compound Exclusivity Option. The identity of compounds elected by JJPRD under this
paragraph shall be the Confidential Information of JJPRD. Infinity may disclose the identity of compounds elected by JJPRD only to the extent necessary to refuse the request of third parties who are seeking to exercise an equivalent option on a
specific compound included in the Library Compound Pool.
3.6.3 Infinity Covenant Regarding Exclusive Library Compounds.
In addition
to the license granted by Infinity to JJPRD set forth in Section 3.1.3 with respect to Exclusive Library Compounds, Infinity hereby covenants that from and after JJPRD’s exercise of the Library Compound Exclusivity Option with respect to
Exclusive Library Compounds, Infinity shall remove such [**] from all [**] by Infinity to [**] and shall not [**] or [**] to [**] with respect to such [**] set forth in Section 3.1.3 with respect to such [**] remains in effect. Infinity further
agrees and covenants that Infinity shall not use JJPRD Confidential Information to make, use or otherwise conduct any research or development with Exclusive Library Compounds or any compounds derived from Exclusive Library Compounds.
3.6.4 Termination of Certain License Rights
.
Upon JJPRD’s exercise of the Library Compound Exclusivity Option with respect to
Exclusive Library Compounds, the license granted by JJPRD to Infinity in Section 3.2 shall terminate with respect to such Exclusive Library Compounds.
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ARTICLE 4
FINANCIAL PROVISIONS
Section 4.1 License Fee.
Within forty-five (45) days of the
Effective Date JJPRD will pay a one-time license fee of Two Million Five Hundred Thousand Dollars ($2,500,000).
ARTICLE 5
INTELLECTUAL PROPERTY OWNERSHIP, PROTECTION AND RELATED MATTERS
Section 5.1 Ownership.
5.1.1
Inventorship.
Inventorship of inventions conceived or reduced to practice during the course of the performance of activities pursuant to this Agreement shall be determined in accordance with the applicable U.S. patent Laws.
5.1.2 Ownership.
All inventions or discoveries made, and materials (including without limitation, compounds included in the Library Compound Pool
and Analogs) and information created, by employees, Affiliates, agents, independent contractors or consultants of each Party, in the course of conducting activities under this Agreement, together with all intellectual property rights therein, shall
be owned by the Party or Parties to which such employees, Affiliates, agents, independent contractors or consultants have an obligation to assign such inventions or discoveries. Subject to the provisions of Article 3, JJPRD shall own all rights,
title and interest in all JJPRD Analogs, JJPRD Analog Information, JJPRD Confidential Information and all Patent Rights relating to any of the foregoing, but specifically excluding any Infinity Patent Right.
Regardless of the foregoing, in the event that JJPRD files a patent application that includes as its claimed invention compounds included in the Library
Compound Pool within either the generic or specific scope of its composition of matter claims and it is determined that an employee, agent, independent contractor or consultant of Infinity, having an obligation to assign inventions or discoveries to
Infinity, is an inventor of such claimed invention, then Infinity will assign such claimed invention to JJPRD, except for the claimed scope of such inventions or discoveries as to which Infinity has previously filed a patent application prior to
JJPRD’s notice to Infinity of the invention or discovery.
5.1.3 Prosecution and Maintenance of Patent Rights.
(a)
The responsibility for (i) preparing, filing and prosecuting patent applications (including, but not limited to,
provisional, reissue, continuing, continuation, continuation-in-part, divisional, and substitute applications and any foreign counterparts thereof); (ii) maintaining any Patent Rights; and (iii) managing any interference or opposition or
similar proceedings relating to the foregoing ((i) through (iii), “Patent Prosecution”) shall (A) with respect to Patent Rights for which the employees, consultants or agents of both Parties are inventors, rest with JJPRD (in which
case Infinity shall provide any reasonable cooperation
11
requested by JJPRD with respect to such Patent Prosecution) and (B) with respect to Patent Rights for which the employees, consultants or agents of
JJPRD (but not of Infinity) are inventors, rest with JJPRD (in which case Infinity shall provide any reasonable cooperation requested by JJPRD with respect to such Patent Prosecution), and otherwise, rest with the owning Party.
(b)
All Patent Prosecution expenses, including attorneys’ fees, incurred by a Party in the performance of Patent Prosecution shall be borne
by such Party.
Section 5.2 Third Party Infringement.
5.2.1
Notice
.
Each Party shall promptly provide the other Party with written notice reasonably detailing any known or alleged infringement by a Third Party of Infinity Patent Rights or Patent
Rights owned or otherwise controlled by JJPRD that claim the composition of matter of any Exclusive Library Compound.
5.2.2
Enforcement
.
JJPRD shall have the sole right, but not the obligation, to institute and direct legal proceedings against any Third Party believed to be infringing claims of Infinity Patent Rights relating to the Exclusive Library
Compounds, including, but not limited to those that claim the composition of matter, method of making, use and pharmaceutical composition of any Exclusive Library Compound by the manufacture, use, importation, offer for sale or sale of a product
competitive with a JJPRD Product;
provided that
such right shall only continue for so long as the license granted to JJPRD with respect to such Exclusive Library Compound remains in effect. All costs, including attorneys’ fees, relating
to such legal proceedings shall be borne by JJPRD, and JJPRD shall reimburse Infinity for any such costs incurred by Infinity. All recoveries resulting from such legal proceedings that are in excess of the Parties’ costs of bringing or
participating in such action, including attorney’s fees shall be retained by JJPRD.
5.2.3
Cooperation In Patent
Infringement Proceedings.
In the event that JJPRD takes action pursuant to this Section 5.2, Infinity shall cooperate to the extent reasonably necessary and at JJPRD’s sole expense. Upon the reasonable request of JJPRD, Infinity shall
join the suit and shall have the right to be represented in any such legal proceedings using counsel of its own choice, at JJPRD’s expense. JJPRD shall not settle any claim or proceeding relating to any Infinity Patent Rights with respect to
which JJPRD takes action pursuant to this Section 5.2 without the prior written consent of Infinity, which consent shall not be unreasonably withheld or delayed.
ARTICLE 6
CONFIDENTIALITY
Section 6.1
Confidential Information
.
All Confidential Information of a Party shall not be used by the other Party (the “Bound
Party”) except in performing its obligations or exercising rights explicitly granted under this Agreement and shall be maintained in confidence by the Bound Party and shall not otherwise be disclosed by the Bound Party to any Third Party,
12
without the prior written consent of the Party that Controls such Confidential Information (the “Controlling Party”), except to the extent that the
Confidential Information:
6.1.1
was known by the Bound Party or its Affiliates prior to its date of disclosure to the Bound Party;
or
6.1.2
is lawfully disclosed to the Bound Party or its Affiliates by sources other than the Controlling Party rightfully in
possession of the Confidential Information; or
6.1.3
becomes published or generally known to the public through no fault or
omission on the part of the Bound Party, its Affiliates or its sublicensees; or
6.1.4
is independently developed by or for the
Bound Party or its Affiliates without reference to or reliance upon such Confidential Information.
Specific information shall not be
deemed to be within any of the foregoing exclusions merely because it is embraced by more general information falling within those exclusions.
Section 6.2 Permitted Disclosure.
6.2.1
The provisions of Section 6.1 shall not preclude (a) a Bound
Party or its Affiliates from disclosing Confidential Information to the extent such Confidential Information is required to be disclosed by such Party or its Affiliates to comply with applicable Laws or legal process, including without limitation
the rules or regulations of the United States Securities and Exchange Commission or similar regulatory agency in a country other than the United States or of any stock exchange, including without limitation Nasdaq, or to defend or prosecute
litigation,
provided that
such Party provides prior written notice of such disclosure to the disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the degree of such disclosure and (b) JJPRD from disclosing
and/or claiming Infinity’s Confidential Information (including, without limitation, chemical structures and methods of making such chemical structures) in JJPRD’s patent applications, in the prosecution of such patent applications and in
regulatory filings for the purpose of gaining approval to market JJPRD products consistent with the terms and conditions of Article 5 above.
6.2.2
Subject to Sections 6.2.3 and 9.9, the Parties agree that the material financial terms of this Agreement will be considered Confidential Information of both Parties. Notwithstanding the foregoing, (a) either Party may
disclose such terms to bona fide potential or actual sublicensees, as reasonably necessary in connection with a permitted sublicense under the licenses granted in this Agreement, and (b) either Party may disclose the material financial terms of
this Agreement to bona fide potential or actual investors, lenders, investment bankers, acquirors, acquirees, merger partners or other potential financial partners (including pharmaceutical and biotechnology companies, as long as such company owns
at least fifty percent (50%) of the disclosing Party), and to such Party’s consultants and advisors, as reasonably necessary in connection with a proposed equity or debt financing of such Party or as reasonably necessary in connection with
a proposed acquisition or business combination. In connection with any permitted disclosure of Confidential Information pursuant to this Section
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6.2.2, each Party agrees to use all reasonable efforts to inform each disclosee of the confidential nature of such information and cause each disclosee to
treat such information as confidential.
6.2.3
Notwithstanding any provision to the contrary in this Agreement, either Party may
disclose to any and all persons, without limitation of any kind, the United States federal tax treatment and tax structure of the transactions set forth in this Agreement and all materials of any kind (including opinions or other tax analyses) that
are provided to the Parties relating to such tax treatment and tax structure.
Section 6.3
Employee And Advisor
Obligations
.
Infinity and JJPRD each agree that they shall provide Confidential Information that is jointly owned or received from the other Party only to their respective employees, consultants and advisors, and to the employees,
consultants and advisors of such Party’s Affiliates, who have a need to know such information and materials for performing obligations or exercising rights expressly granted under this Agreement and have an obligation to treat such information
and materials as confidential.
Section 6.4
Term
.
All obligations under this Article 6 shall expire five
(5) years following termination or expiration of this Agreement.
Section 6.5
Publications
.
Neither JJPRD nor its
Affiliates, employees, contractors or investigators shall publish or present any information with respect to the structure of any Library Compound, other than any Exclusive Library Compound, without Infinity’s prior written consent (which may
be withheld in its sole and final discretion).
ARTICLE 7
TERM AND TERMINATION
Section 7.1
Agreement Term
.
This
Agreement becomes effective as of the Effective Date and shall expire upon the earlier of (a) the termination of this Agreement in accordance with Sections 7.2 or 7.3, or (b) the permanent cessation by JJPRD of all research and Development
activities with respect to all compounds included in the Library Compound Pool and JJPRD Analogs.
Section 7.2
Termination For
Convenience.
JJPRD shall have the right to terminate this Agreement for convenience upon sixty (60) days prior written notice to Infinity.
Section 7.3
Termination For Material Breach
.
If either Party believes that the other is in material breach of this Agreement (including without limitation any material breach of a representation or warranty made in this
Agreement), then the non-breaching Party may deliver notice of such breach to the allegedly breaching Party. In such notice the non-breaching Party shall identify the actions or conduct that such Party would consider to be an acceptable cure of such
breach. For all breaches, the allegedly breaching Party shall have sixty (60) days to either cure such breach or, if cure cannot be reasonably effected within such sixty (60) day period, to deliver to the other Party a plan for curing such
breach that is reasonably sufficient to effect a cure. Such a plan shall set forth a program for achieving cure as rapidly as practicable. Following delivery of such plan, the allegedly breaching Party shall use diligent efforts to carry
14
out the plan and cure the breach. If the allegedly breaching Party fails to cure such breach within the sixty (60) day period, the non-breaching Party
may terminate this Agreement upon written notice to the allegedly breaching Party.
Section 7.4 Effect Of Termination; Accrued Rights;
Surviving Obligations.
7.4.1
Upon termination of this Agreement by JJPRD pursuant to Section 7.2, (a) all licenses
granted by Infinity to JJPRD hereunder shall terminate, and (b) all licenses granted hereunder by JJPRD to Infinity shall remain in effect on an irrevocable and perpetual basis.
7.4.2
Upon termination of this Agreement by JJPRD pursuant to Section 7.3, (a) all licenses granted by Infinity to JJPRD hereunder shall
remain in effect in accordance with the terms and conditions set forth in the grant, (b) all licenses granted hereunder by JJPRD to Infinity shall remain in effect in accordance with the terms and conditions set forth in the grant, and
(c) all payment obligations of JJPRD hereunder shall remain in effect, subject to the right for JJPRD to offset, prior to and until the determination of actual damages pursuant to Section 7.4.4, against any payment obligations set forth in
this Agreement such amounts as reasonably reflect the nature, circumstances and significance of the breach leading to such termination and the damages, if any, suffered by JJPRD and
provided that
, to the extent that any such offsets actually
taken exceed the actual damages to which JJPRD is ultimately determined to be entitled, JJPRD shall reimburse Infinity for such excess offsets, along with interest earned thereon at the rate of the lesser of ten percent (10%) per year or the
highest rate permitted by applicable law.
7.4.3
Upon termination of this Agreement by Infinity pursuant to Section 7.3,
(a) all licenses granted hereunder by JJPRD to Infinity shall remain in effect in accordance with the terms and conditions set forth in the grant, (b) all licenses granted by Infinity to JJPRD hereunder shall remain in effect in accordance
with the terms and conditions set forth in the grant, and (c) all payment obligations of JJPRD hereunder shall remain in effect.
7.4.4
For the sake of clarity, each Party shall have the right to seek any damages to which it is entitled, whether in law, equity or otherwise.
7.4.5
Upon the termination or the expiration of this Agreement, the following provisions of this Agreement shall survive: Articles 1, 6 and 9, and Sections 3.3 (to the extent that any licenses subject to
Section 3.3 survive), 3.4, 5.1 and 8.6 and this Section 7.4.
7.4.6
Termination or expiration of the Agreement for any
reason, and any benefit accruing to JJPRD from any reduction in payments pursuant to Section 7.4.2(b), shall be without prejudice to any rights that shall have accrued to the benefit of either Party prior to such termination or expiration,
including, without limitation, any other remedies available to such Party in law or equity. Such termination or expiration shall not relieve either Party from obligations that are expressly indicated to survive termination or expiration of the
Agreement.
15
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 8.1
Representation Of Authority;
Consents
.
Infinity and JJPRD each represents and warrants to the other Party that, as of the Effective Date, (a) it has full right, power and authority to enter into this Agreement, (b) this Agreement has been duly executed by
such Party and constitutes a legal, valid and binding obligation of such Party, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other
Laws relating to or affecting creditors’ rights generally and by general equitable principles and public policy constraints (including those pertaining to limitations and/or exclusions of liability, competition Laws, penalties and
jurisdictional issues including conflicts of Laws) and (c) all necessary consents, approvals and authorizations of all government authorities and other persons required to be obtained by such Party in connection with the execution, delivery and
performance of this Agreement have been and shall be obtained.
Section 8.2
No Conflict
.
Each Party represents to the
other Party that, notwithstanding anything to the contrary in this Agreement, the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder (a) do not conflict with or violate such Party’s
corporate charter and bylaws or any requirement of applicable Laws and (b) do not and shall not conflict with, violate or breach or constitute a default or require any consent under, any oral or written contractual obligation of such Party.
Each Party agrees that it shall not during the term of this Agreement grant any right, license, consent or privilege to any Third Party or otherwise undertake any action, either directly or indirectly, that would conflict with the rights granted to
the other Party or interfere with any obligations of such Party set forth in this Agreement.
Section 8.3
Knowledge Of Pending Or
Threatened Litigation.
Each Party represents and warrants to the other Party that there is no claim, investigation, suit, action or proceeding pending or, to the knowledge of such Party, expressly threatened, against such Party that,
individually or in the aggregate, could reasonably be expected to (a) materially impair the ability of such Party to perform any obligation under this Agreement or (b) prevent or materially delay or alter the consummation of any or all of
the transactions contemplated hereby.
Section 8.4 Employee And Consultant Obligations.
8.4.1
Each Party represents and warrants that all of its employees, officers, and consultants that are supporting the performance of its
obligations under this Agreement shall have executed agreements requiring, in the case of consultants, employees and officers, assignment to such Party of all inventions made during the course of and as the result of their association with such
Party and, in the case of employees, officers and consultants, obligating the individual to maintain as confidential such Party’s Confidential Information as well as Confidential Information of the other Party that such Party may receive, to
the extent required to support such Party’s obligations under this Agreement.
16
8.4.2
Infinity represents and warrants that it shall use commercially reasonable efforts to
maintain its agreement(s) with any Third Party under which Infinity obtains licenses under rights necessary for its performance under this Agreement, which agreement(s) are in effect during the term of this Agreement. As of the Effective Date, to
the best of its knowledge, Infinity does not require any licenses under the Patent Rights or other intellectual property rights of any Third Party to perform its obligations and grant the licenses set forth herein.
Section 8.5
Intellectual Property
.
Infinity represents and warrants that as of the Effective Date:
8.5.1
it has not received any written claim made against it asserting the non-patentability, invalidity, misuse, unregisterability,
unenforceability or non-infringement of any of intellectual property rights associated with Library Compounds or challenging its right to use or ownership of any of such intellectual property rights or Library Compounds or making any adverse claim
of ownership thereof; and
8.5.2
it is not aware of any pending or threatened claim or litigation (or received notice of a potential
claim or litigation) which alleges that its activities up to the Effective Date relating to Library Compounds have violated, or by conducting the activities currently proposed to be conducted hereunder would violate, the intellectual property rights
or the right to use or ownership of any Third Party.
Section 8.6
Disclaimer Of Warranty.
Nothing in this Agreement shall be
construed as a representation made or warranty given by either Party that either Party will be successful in obtaining any Patent Rights, that any patents will issue based on pending applications or that any such pending applications or patents
issued thereon will be valid. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS, WAIVES, RELEASES AND RENOUNCES ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
Section 8.7 Additional Covenants Of Infinity.
Infinity represents and warrants that as
of the Effective Date:
8.7.1
Infinity owns, or, at the time of transfer to JJPRD, will own all physical materials transferred to
JJPRD under this Agreement.
8.7.2
Without the prior written consent of JJPRD, Infinity will not knowingly or negligently make and
deliver any Library Compounds that are in the public domain or covered by Third Party patents at the time of transfer;
provided
,
however
,
that
Infinity shall be under no obligation to perform public domain or freedom to operate
searches or analyses.
Section 8.8
Performance Standards.
Infinity shall use commercially reasonable efforts to ensure that
the materials, equipment and facilities to be used by Infinity under this Agreement shall be of the same quality as Infinity uses in its own research of similar nature. Infinity covenants that it shall commit the personnel, facilities and resources
to perform the
17
research and experimentation necessary or useful to accomplish the goals and objectives set forth in this Agreement. Infinity shall conduct its activities
under this Agreement in accordance with generally acceptable standards in the pharmaceutical industry and in compliance in all material respects with applicable Laws.
ARTICLE 9
MISCELLANEOUS PROVISIONS
Section 9.1
Indemnification
.
9.1.1
JJPRD
.
JJPRD agrees, at JJPRD’s cost and expense, to defend, indemnify and hold harmless Infinity and its Affiliates and their respective directors, officers, employees and agents (the “Infinity
Indemnified Parties”) from and against any losses, costs, damages, fees or expenses arising out of any Third Party claim relating to (a) any breach by JJPRD of any of its representations, warranties or obligations pursuant to this
Agreement, (b) the gross negligence or willful misconduct of JJPRD or (c) injuries resulting from JJPRD’s activities conducted in connection with this Agreement or from the development, manufacture, use, sale or other disposition by
JJPRD of any product containing or derived from a compound included in the Library Compound Pool. In the event of any such claim against the Infinity Indemnified Parties by any Third Party, Infinity shall promptly notify JJPRD in writing of the
claim and JJPRD shall manage and control, at its sole expense, the defense of the claim and its settlement. The Infinity Indemnified Parties shall cooperate with JJPRD and may, at their option and expense, be separately represented in any such
action or proceeding. JJPRD shall not be liable for any litigation costs or expenses incurred by the Infinity Indemnified Parties without JJPRD’s prior written authorization. In addition, JJPRD shall not be responsible for the indemnification
or defense of any Infinity Indemnified Party to the extent arising from any negligent or intentional acts by any Infinity Indemnified Party or the breach by Infinity of any obligation or warranty under this Agreement, or any claims compromised or
settled without its prior written consent.
9.1.2
Infinity
.
Infinity agrees, at Infinity’s cost and expense, to
defend, indemnify and hold harmless JJPRD and its Affiliates and their respective directors, officers, employees and agents (the “JJPRD Indemnified Parties”) from and against any losses, costs, damages, fees or expenses arising out of any
Third Party claim relating to (a) any breach by Infinity of any of its representations, warranties or obligations pursuant to this Agreement, (b) the gross negligence or willful misconduct of Infinity or (c) injuries resulting from
Infinity’s activities conducted in connection with this Agreement or from the development, manufacture, use, sale or other disposition by Infinity of any product containing or derived from a compound included in the Library Compound Pool. In
the event of any such claim against the JJPRD Indemnified Parties by any Third Party, JJPRD shall promptly notify Infinity in writing of the claim and Infinity shall manage and control, at its sole expense, the defense of the claim and its
settlement. The JJPRD Indemnified Parties shall cooperate with Infinity and may, at their option and expense, be separately represented in any such action or proceeding. Infinity shall not be liable for any litigation costs or expenses incurred by
the JJPRD Indemnified Parties without Infinity’s prior written authorization. In addition, Infinity shall not be responsible for the indemnification or defense of any JJPRD Indemnified Party to the extent arising from any negligent or
intentional
18
acts by any JJPRD Indemnified Party, or the breach by JJPRD of any obligation or warranty under this Agreement, or any claims compromised or settled without
its prior written consent.
Section 9.2 Dispute Resolution.
9.2.1
Any controversy, claim or dispute arising out of or relating to this Agreement shall be settled, if possible, through good faith
negotiations between the Parties. If, however, the Parties are unable to settle such dispute after good faith negotiations, the matter shall be referred to the Executive Officers, who shall attempt to resolve the dispute in good faith. Such
resolution, if any, of a referred issue shall be final and binding on the Parties. All negotiations pursuant to this Section 9.2.1 are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules
of evidence.
9.2.2
If the Executive Officers are unable to settle the controversy, claim or dispute after good faith negotiation
pursuant to Section 9.2.1, then such must be finally settled by arbitration. The arbitration shall be resolved before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association
(“AAA”) then pertaining (available at www.adr.org), except where those rules conflict with this provision, in which case this provision controls. Any court with jurisdiction shall enforce this clause and enter judgment on any award. The
arbitrator shall be selected within twenty business days from commencement of the arbitration from the AAA’s National Roster of Arbitrators pursuant to agreement or through selection procedures administered by the AAA. Within 45 days of
initiation of arbitration, the parties shall reach agreement upon and thereafter follow procedures, including limits on discovery, assuring that the arbitration will be concluded and the award rendered within no more than eight months from selection
of the arbitrator or, failing agreement, procedures meeting such time limits will be designed by the AAA and adhered to by the parties. The arbitration shall be held in New York City, except that the interpretation and enforcement of this
arbitration provision shall be governed by the Federal Arbitration Act. Prior to appointment of the arbitrator or thereafter if he is unavailable, emergency relief is available from any court to avoid irreparable harm as provided in
Section 9.2.3. THE ARBITRATOR SHALL NOT AWARD EITHER PARTY PUNITIVE, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES, OR ATTORNEYS FEES OR COSTS. Prior to commencement of arbitration, the parties must attempt to mediate their dispute using a
professional mediator from AAA, the CPR Institute for Dispute Resolution, or like organization selected by agreement or, absent agreement, through selection procedures administered by the AAA. Within a period of 45 days after the request for
mediation, the parties agree to convene with the mediator, with business representatives present, for at least one session to attempt to resolve the matter. In no event will mediation delay commencement of the arbitration for more than 45 days
absent agreement of the parties or interfere with the availability of emergency relief.
9.2.3
Notwithstanding anything to the
contrary in this Section 9.2, any Party may seek immediate injunctive or other interim relief from any court of competent jurisdiction as necessary to enforce and prevent infringement or misappropriation of the Patent Rights, Know-How,
Confidential Information or other intellectual property rights Controlled by a Party.
19
Section 9.3
Governing Law.
This Agreement shall be construed and the respective rights of
the Parties determined according to the substantive laws of the State of New York notwithstanding the provisions governing conflicts of law under such New York law to the contrary.
Section 9.4
Assignment
.
Neither Infinity nor JJPRD may assign this Agreement in whole or in part without the consent of the other,
except if such assignment occurs in connection with the sale or transfer (by merger or otherwise) of all or substantially all of the business and assets of Infinity or JJPRD to which the subject matter of this Agreement pertains, and then only if
the acquirer confirms to the other Party in writing its agreement to be bound by all of the terms and conditions of this Agreement. Each Party agrees that, notwithstanding any provisions of this Agreement to the contrary, in the event that this
Agreement is assigned by either Party in connection with the sale or transfer of all or substantially all of the business and assets of such Party to which the subject matter of this Agreement pertains, such assignment shall not provide the
non-assigning Party with rights or access to intellectual property or technology of the acquiror of such Party. Notwithstanding the foregoing, either Party may assign this Agreement to an Affiliate,
provided that
such Party shall guarantee
the performance of such Affiliate and JJPRD may assign any or all of its rights as to any particular compound in human development or commercialized to any third party without the permission of Infinity Any purported assignment not in accordance
with this Section 9.4 shall be void and of no effect.
Section 9.5
Entire Agreement; Amendments.
This Agreement and the
Exhibits referred to in this Agreement, constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersede all previous arrangements with respect to the subject matter hereof, whether written or oral. The
Parties also acknowledge the simultaneous execution and delivery of the Equity Agreements, which shall not be superseded by this Agreement. Any amendment or modification to this Agreement shall be made in writing signed by both Parties.
Section 9.6
Notices.
Notices to Infinity shall be addressed to:
Infinity Pharmaceuticals, Inc.
780 Memorial
Drive
Cambridge, Massachusetts 02139
Attention: Chief Executive Officer
Facsimile No.: (617) 453-1001
with a copy to:
Wilmer Cutler Pickering
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: Steven D. Singer, Esq.
Facsimile No.: (617) 526-5000
20
Notices to JJPRD shall be addressed to:
Johnson & Johnson Pharmaceutical Research and
Development
Turnhoutseweg, 30
2340 B-Beerse, Belgium
Attention: President
with a copy to:
Johnson & Johnson
Office of General Counsel
One
Johnson & Johnson Plaza
New Brunswick, NJ 08933
Attention: Michael Ullmann, Esq.
Facsimile No.: 732-524-2185
Either Party may change its address to which notices shall be sent by giving notice to the other Party in the manner herein provided. Any notice required
or provided for by the terms of this Agreement shall be in writing and shall be (a) sent by registered or certified mail, return receipt requested, postage prepaid, (b) sent via a reputable overnight courier service, or (c) sent by
facsimile transmission, in each case properly addressed in accordance with this Section 9.6. The effective date of notice shall be the actual date of receipt by the Party receiving the same.
Section 9.7
Force Majeure
.
No failure or omission by either Party in the performance of any obligation of this Agreement shall be
deemed a breach of this Agreement or create any liability if the same shall arise from any cause or causes beyond the reasonable control of such Party, including, but not limited to, the following: acts of gods; acts of any government; any rules,
regulations or orders issued by any governmental authority or by any officer, department, agency or instrumentality thereof; fire; storm; flood; earthquake; accident; war; rebellion; insurrection; riot; terrorism and invasion;
provided that
the Party affected by such cause promptly notifies the other Party and uses diligent efforts to cure such failure or omission as soon as is practicable after the occurrence of one or more of the above mentioned causes.
Section 9.8
Compliance With Laws
.
Each Party shall perform its obligations under this Agreement in compliance with all applicable
Laws.
Section 9.9
Public Announcements.
Neither Party shall release any information to any Third Party or make any
disclosure or public announcement (including but not limited to press releases, educational and scientific conferences, quarterly investor updates, promotional materials, governmental filings and discussions with public officials, the media,
security analysts and investors) regarding the term and existence of this Agreement, or the relationship between the Parties, without the other Party’s prior written consent;
provided, however
,
that
(a) a Party may make any
disclosure or public announcement if the contents of such disclosure or public announcement have previously been made public other than through a breach of this Agreement by the issuing Party; and (b), if in the reasonable opinion of such
Party’s counsel, a public
21
disclosure shall be required by Law, including without limitation in a public filing with the United States Securities and Exchange Commission, the
disclosing Party shall provide copies of the disclosure reasonably in advance (but in no event less than fifteen (15) Business Days if reasonably practicable under the circumstances) of such filing or other disclosure for the nondisclosing
Party’s prior review and comment, which comments are to be considered by the disclosing Party in good faith; the nondisclosing Party shall provide its comments, if any, on such announcement as soon as reasonably practicable (
provided
,
however
,
that
the disclosing Party need not delay its filing or disclosure, nor consider any comments, if the nondisclosing Party’s comments are not received prior to the time that the disclosing Party must make such filing or
disclosure in compliance with applicable Law); and (c) Infinity may issue, subject to the approval of JJPRD, a press release substantially in the form attached hereto as
Exhibit C
, the final form of which shall be subject to the
Parties’ mutual agreement.
Section 9.10 Use Of Names, Logos Or Symbols
. Subject to Section 9.9, no Party hereto shall use
the name, trademarks, logos, physical likeness, employee names or owner symbol of any other Party for any purpose, including, without limitation, private or public securities placements, without the prior written consent of the affected Party.
Nothing contained in this Agreement shall be construed as granting either Party any rights or license to use any of the other Party’s trademarks or trade names or the names of any employees thereof, without separate, express written permission
of the owner of such trademark or trade name or name.
Section 9.11 Independent Contractors
. It is understood and agreed that the
relationship between the Parties is that of independent contractors and that nothing in this Agreement shall be construed to create a joint venture or any relationship of employment, agency or partnership between the Parties to this Agreement.
Neither Party is authorized to make any representations, commitments, or statements of any kind on behalf of the other Party or to take any action that would bind the other Party except as explicitly provided in this Agreement.
Section 9.12 No Strict Construction
. This Agreement has been prepared jointly and shall not be strictly construed against either Party.
Section 9.13 Headings
. The captions or headings of the sections or other subdivisions hereof are inserted only as a matter of
convenience or for reference and shall have no effect on the meaning of the provisions hereof.
Section 9.14 No Implied Waivers; Rights
Cumulative
. No failure on the part of Infinity or JJPRD to exercise, and no delay by either Party in exercising, any right, power, remedy or privilege under this Agreement, or provided by statute or at law or in equity or otherwise, shall
impair, prejudice or constitute a waiver of any such right, power, remedy or privilege by such Party or be construed as a waiver of any breach of this Agreement or as an acquiescence therein by such Party, nor shall any single or partial exercise of
any such right, power, remedy or privilege by a Party preclude any other or further exercise thereof or the exercise of any other right, power, remedy or privilege.
22
Section 9.15 Severability
. If, under applicable Laws, any provision of this Agreement is invalid
or unenforceable, or otherwise directly or indirectly affects the validity of any other material provision(s) of this Agreement (such invalid or unenforceable provision, a “Severed Clause”), this Agreement shall endure except for the
Severed Clause. The Parties shall consult one another and use good faith efforts to agree upon a valid and enforceable provision that is a reasonable substitute for the Severed Clause in view of the intent of this Agreement.
Section 9.16 Execution In Counterparts
. This Agreement may be executed in counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.
Section 9.17 No Third Party Beneficiaries
. No person or entity other than JJPRD, its Affiliates and Infinity (and assignees) shall be deemed an intended beneficiary hereunder or have any right to enforce any obligation of this
Agreement.
Section 9.18 Performance By Affiliates
. To the extent that this Agreement imposes obligations on Affiliates of a Party,
such Party agrees to cause its Affiliates to perform such obligations. Either Party may use one or more of its Affiliates to perform its obligations and duties hereunder,
provided that
the Parties shall remain liable hereunder for the prompt
payment and performance of all their respective obligations hereunder.
Section 9.19 No Consequential Damages
. NEITHER PARTY HERETO
WILL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR MULTIPLE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER, INCLUDING WITHOUT LIMITATION LOST PROFITS ARISING FROM OR RELATING TO ANY BREACH OF
THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES.
Section 9.20 Exhibits
. In the event of inconsistencies between this
Agreement and any exhibits or attachments hereto, the terms of this Agreement shall control.
[Remainder of Page Intentionally Left
Blank]
23
IN WITNESS WHEREOF
, the Parties have executed this Agreement as of the Effective Date.
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Adelene Q. Perkins
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Name:
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Adelene Q. Perkins
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Title:
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Chief Business Officer
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JOHNSON & JOHNSON
PHARMACEUTICAL RESEARCH AND
DEVELOPMENT, A DIVISION OF JANSSEN
PHARMACEUTICA N.V.
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By:
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/s/ Dr. Didier de Chaffoy de Courcelles
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Name:
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Dr Didier de Chaffoy de Courcelles
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Title:
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Senior Vice President
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EXHIBIT A
Library Compound Delivery Requirements
1.
Library Compound Structural Information
. Until
December 31, 2005, Infinity shall promptly deliver to JJPRD Library Compound Structural Information upon availability on all compounds included in the Library Compound Pool. The compounds included in the Library Compound Pool will come from at
least [**] Synthetic Pathways.
2.
Selection of Library Compounds
. JJPRD shall select compounds from the Library Compound Pool in
accordance with the following procedures.
a) JJPRD will select a minimum of [**] compounds from Synthetic Pathways [**], [**] and [**] of
the Library Compound Pool (“First Selection”). Infinity represents that there are a minimum of [**] compounds from these Synthetic Pathways having [**] of available stock. JJPRD will make the First Selection by January 15, 2005.
Infinity is also offering JJPRD the option, to be exercised at JJPRD’s sole discretion, to select from approximately [**] additional compounds from pathway [**] for which Infinity can deliver [**] from available stock. Infinity has provided
JJPRD the structural information for these compounds and JJPRD would need to include any selected compounds in its First Selection by January 15, 2005.
b) JJPRD will select a minimum of [**] compounds from Synthetic Pathways [**] and [**] of the Library Compound Pool (“Second Selection”). JJPRD will make the Second Selection by January 31, 2005.
c) JJPRD will select additional compounds from [**] additional Synthetic Pathways of the Library Compound Pool (“Third
Selection”) so that the total of selected compounds from the First Selection, Second Selection and Third Selection is [**] compounds. JJPRD will make the Third Selection by March 31, 2005 but in any case no sooner than Library Compound
Structure Information is available for at least [**] days on at least [**] additional compounds included in the Library Compound Pool from the [**] additional Synthetic Pathways.
d) JJPRD will select additional compounds from any Synthetic Pathways of the Library Compound Pool not previously available for the First Selection,
Second Selection and Third Selection (“Fourth Selection”). The number of selected compounds will not exceed the lesser of [**] compounds for each additional Synthetic Pathway or the total number of compounds made from such any such
Synthetic Pathways. JJPRD will make the Fourth Selection by December 31, 2005.
3.
Delivery of Library Compounds
. Infinity will
deliver compounds of the First Selection, Second Selection, Third Selection and Fourth Selection as a dry powder in Corning Costar 2ml plates (Cat nr. 3690/3691), 96 deepwell, 80 compounds per plate, with the first two 8-length columns left empty,
packed in dry ice and otherwise in accordance with the following procedures:
a) The First Selection will be delivered by March 31,
2005 from available stock. Infinity will deliver [**] (estimated in accordance with established practice) of each selected compound
25
where Infinity has reported in the Library Compound Structure Information that it has such amount available, unless JJPRD has elected to include any
compounds from the [**] pathway for which [**] is available in which case Infinity will deliver [**] of such selected compounds to JJPRD by March 31, 2005.
b) The Second Selection will be delivered by September 30, 2005 and the Third Selection by December 31, 2005. For the Second Selection and Third Selection, Infinity will deliver [**] (estimated in accordance
with established practice) of each selected compound. The purity (estimated in accordance with established practice) of the delivered compound will be the purity as reported in the Library Compound Structure Information. The target purity for each
Library Compound will be [**]% (“Target Purity”).
c) The Fourth Selection will be delivered by April 30, 2005. Infinity
will deliver [**] (estimated in accordance with established practice) of up to [**] selected compounds from each Synthetic Pathway as designated by JJPRD. Infinity will deliver [**] (estimated in accordance with established practice) of the
remaining selected compounds from each Synthetic Pathway. The purity of the delivered compounds will be the Target Purity.
d) Upon
delivery of each selection to JJPRD, Infinity will transfer data on sampled purity and quantity of delivered compounds and the analytic methods used for such measurements and controls. JJPRD can determine the purity and amount of delivered compounds
using the transferred analytic methods and may reject, within a period of [**] working days, the delivery of any plate of compounds for which at least [**]% of the compounds on the plate have been sampled and for which (i) the sampled compounds
have, on average, a purity which is [**]% less than the Target Purity (or the purity as reported in the Library Compound Structure Information in the event JJPRD selects a compound with less than the Target Purity) or (ii) the sampled compounds
have, on average, [**] % more or less than the required delivery amount. In the event a plate of Library Compounds is rejected by JJPRD, then JJPRD’s sole and [**] remedy will be to receive a replacement plate of the same compounds or, where
Infinity reasonably believes that such a replacement plate will also be rejected, a replacement plate modified in whole or part with new Library Compounds selected in cooperation with JJPRD from within the same synthetic scheme as the rejected
plate.
26
EXHIBIT B
Form of Press Release
INFINITY ANNOUNCES SMALL MOLECULE ALLIANCE WITH
JOHNSON & JOHNSON PHARMACEUTICAL RESEARCH & DEVELOPMENT
— Highlights Technology Platform Benefits of Industrialized Scale and Broad Therapeutic Utility —
CAMBRIDGE, MA,
January 6, 2005—Infinity Pharmaceuticals Inc. today announced that it has entered into a collaborative agreement enabling Johnson & Johnson Pharmaceutical Research & Development, a division of Janssen Pharmaceutica N.V.
(“J&JPRD”), to identify novel, small molecule therapeutic agents using Infinity’s novel compound collection. Infinity will provide J&JPRD with non-exclusive access to a proprietary collection of small molecules which
J&JPRD may screen broadly against multiple targets and perform chemistry to identify small molecule drug leads. The industrialized nature of the Infinity platform enables it to be scaled for widespread use within J&JPRD to capitalize on the
platform’s potential for broad therapeutic utility across numerous disease areas.
Under the terms of the agreement, J&JPRD pays an
upfront license fee. Additionally, Johnson & Johnson Development Corporation, an affiliate of J&JPRD, has made an equity investment in Infinity. Other financial details were not disclosed.
“Infinity’s proprietary chemical technology platform offers J&JPRD a unique opportunity to combine our distinct chemistry prowess with their established
research and development capabilities,” said Julian Adams, Chief Scientific Officer, Infinity. “This collaboration will ideally enable J&JPRD to identify breakthrough chemical compounds that will have great utility in the effort to
address diseases with significant unmet medical need.”
“We are very excited to be working with J&JPRD, a highly regarded leader in the field
of pharmaceuticals and healthcare,” said Adelene Perkins, Chief Business Officer, Infinity. “This alliance, our third within one year, highlights Infinity’s ability to successfully execute against our business model – a model
that uniquely enables us to achieve the dual benefit of continuing to build our internal drug discovery efforts while also generating revenue. Complementing our internal drug discovery efforts, our plans for 2005 call for us to add one additional
partner to whom we will grant access to the Infinity chemical technology platform and our proprietary compound collection.”
About Infinity’s
Chemical Technology Platform
Infinity’s integrated team of synthetic, process, natural product, and combinatorial chemists have developed an
industrialized technology platform to create a proprietary compound collection through the application of diversity-oriented synthesis (DOS).
DOS
chemistry is a combinatorial synthetic approach (with all the virtues of combinatorial chemistry in terms of throughput) that is distinctive in terms of its output. While compounds produced through combinatorial approaches are usually relatively
simple, “flat” molecules with no stereochemistry, DOS molecules are more complex, are three-dimensional, and feature multiple (completely controllable) stereocenters. These features have led many industry leaders to describe
Infinity’s DOS molecules as natural product-like as they have the hallmarks of biologically active molecules previously only available from natural product sources. Infinity’s DOS compound collection has preserved the virtues of natural
27
products without the perceived drawbacks allowing the Company to generate a unique library of pharmaceutically relevant compounds that not only cover a
diverse area of current drug space, but can also be rapidly developed into drug candidates.
About Infinity Pharmaceuticals, Inc.
Infinity is a fully integrated, cancer drug discovery company focused on pathways of cancer cell survival. In addition, through select partnerships, Infinity’s
distinctive, proprietary collection of small molecules is being used against many of the world’s most important diseases.
# # #
28
Exhibit 10.4
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks
denote omissions.
COLLABORATION AGREEMENT
THIS COLLABORATION AGREEMENT (the “
Agreement
”) is entered into as of the 24
th
day of February, 2006 (the “
Effective Date
”), by and between Infinity Pharmaceuticals, Inc., a Delaware corporation having an office at 780 Memorial Drive, Cambridge, Massachusetts 02139
(“
Infinity
”), and Novartis Institutes for BioMedical Research, Inc., a Delaware corporation having an office at 250 Massachusetts Avenue, Cambridge, Massachusetts 02139 (“
Novartis
”).
WHEREAS, Infinity and Novartis are each in the business of discovering, developing and commercializing pharmaceutical products;
WHEREAS, Infinity Controls certain technology for the discovery and optimization of inhibitors directed against certain Bcl targets for the purpose of
identifying potential human therapeutics;
WHEREAS, Infinity and Novartis are interested in collaborating on activities relating to certain
Infinity compounds and in providing for the opportunity for Novartis to develop and commercialize such compounds and their derivatives as potential pharmaceutical products;
WHEREAS, on the Effective Date, Infinity and Novartis Pharma AG, an Affiliate of Novartis, are entering into a Series D Preferred Stock Purchase
Agreement, pursuant to which Novartis Pharma AG shall purchase shares of Infinity’s Series D Convertible Preferred Stock;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1.
Definitions
. When used in this Agreement, each of the following terms shall have the meanings set forth in this Article 1:
1.1
“
Abandoned Profile Licensed Compounds
” means, with respect to an Abandoned Profile, (a) Licensed Compounds for such Abandoned Profile specified by Novartis pursuant to Section 3.3.1, and (b) Analogs or other compounds
designed, discovered or synthesized by or on behalf of Infinity that are demonstrated to have Threshold Activity against the relevant Target for such Abandoned Profile and for which Novartis has consented to their designation as Abandoned Profile
Licensed Compounds pursuant to Section 3.3.1 (each of the foregoing in clauses (a) and (b), an “
Abandoned Profile Licensed Compound
”).
1.2 “
Accounting Standards
” with respect to Infinity shall mean that Infinity shall maintain records and books of accounts in accordance with US GAAP (United States Generally Accepted Accounting
Principles), and with respect to Novartis shall mean that Novartis shall maintain records and books of accounts in accordance with IFRS (International Financial Reporting Standards).
1.3 “
Affiliate
” means any corporation, company, partnership, joint venture and/or firm that controls, is controlled by, or is under
common control with a specified person or entity. For purposes of this Section 1.3, “
control
” shall be presumed to exist if one of the following
conditions is met: (a) in the case of corporate entities, direct or indirect ownership of more than fifty percent (50%) of the stock or shares
having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of more than fifty percent (50%) of the equity interest with the power to direct the management and
policies of such non-corporate entities. The Parties acknowledge that in the case of certain entities organized under the Laws of certain countries outside of the United States, the maximum percentage ownership permitted by Law for a foreign
investor may be less than fifty percent (50%), and that in such case such lower percentage shall be substituted in the preceding sentence,
provided
that such owner has the power to direct the management and policies of such entity. In the
case of Novartis, “Affiliates” shall also expressly be deemed to include the Novartis Institute for Functional Genomics, Inc. and its Affiliates, and, solely with respect to Novartis’ and its Affiliates’ obligations with respect
to Infinity’s Confidential Information, Friedrich Miescher Institute for Biomedical Research.
1.4 “
Analog
” means any
compound that is modified by chemical and/or molecular-genetic means from a Research Program Active Compound or from another Analog.
1.5
“
Annual Net Sales
” means, with respect to a Licensed Product, Net Sales in any calendar year or portion thereof.
1.6
“
Auditor
” shall mean an independent internationally recognized audit firm to be engaged by Infinity to conduct a review of Novartis’ books and records regarding the sales of the Licensed Products after such auditor’s
approval by Novartis, which approval shall be neither unreasonably withheld or delayed.
1.7 “
Business Day
” means a day
other than a Saturday or Sunday or Federal holiday in Cambridge, Massachusetts or Basel, Switzerland.
1.8 “
Change in
Control
” shall mean any transaction which results in (a) the sale or transfer of substantially all of the assets of Infinity to a Third Party or (b) a merger, consolidation or other reorganization of Infinity in which the holders
of Infinity’s capital stock immediately prior to the transaction hold less than a majority of the capital stock of the surviving or continuing entity after the transaction.
1.9 “
Confidential Information
” means (a) all information relating to Research Program Active Compounds, and (b) all other
proprietary documents, technology, Know-How or other information (whether or not patentable) actually disclosed by one Party to the other pursuant to this Agreement or the Non-Disclosure Agreement and marked as “confidential” or
“proprietary” (or if disclosed orally, confirmed in writing within thirty (30) days thereafter).
1.10
“
Control
” or “
Controlled
” means with respect to any (a) material, document, item of information, method, data or other Know-How or (b) intellectual property right, the possession (whether by ownership or
license, other than by a license granted pursuant to this Agreement) by a Party or its Affiliates of the ability to grant to the other Party access, ownership, a license and/or a sublicense as provided herein without violating the terms of any
agreement or other arrangement with any Third Party entered into or existing as of the time such Party or its Affiliates would first be required hereunder to grant the other Party such access, ownership, license, or sublicense.
- 2 -
1.11 “
Controlled Contractors
” means, with respect to a Party, academic or non-profit
research institutions, hospitals, contract research organizations, contract manufacturers, contract employees, consultants and the like which merely conduct activities on behalf of such Party and subject to such Party’s supervision and control.
1.12 “
Controlling Party
” means, with respect to Confidential Information, Patent Rights or Know-How, the Party that
Controls such Confidential Information, Patent Rights or Know-How.
1.13 “
Detail
” means mean face-to-face discussions with
physicians and other health care practitioners who are permitted under applicable Laws to prescribe a Licensed Product for the purpose of promoting a Licensed Product to such physicians or practitioners.
1.14 “
Development
” or “
Develop
” means, with respect to a compound, preclinical and clinical drug development
activities, including, among other things: test method development and stability testing, toxicology, formulation, process development, manufacturing scale-up, development-stage manufacturing, quality assurance/quality control procedure development
and performance with respect to clinical materials, statistical analysis and report writing and clinical studies, regulatory affairs, and all other pre-Regulatory Approval activities. When used as a verb, “
Develop
” means to engage
in Development.
1.15 “
Development Costs
” means auditable internal and external direct project-related costs incurred by
Infinity in connection with the Development by Infinity of an Abandoned Profile Licensed Compound or a Licensed Compound pursuant to Section 3.2.2 (as applicable), not to exceed industry norms for similarly-situated companies.
1.16 “
Drug Approval Applications
” means an application for Regulatory Approval required before commercial sale or use of a Product as a
drug in a regulatory jurisdiction.
1.17 “
EMEA
” means the European Medicines Evaluation Agency, or a successor agency
thereto.
1.18 “
Equity Agreements
” means the Stock Purchase Agreement and the Investors’ Rights Agreement.
1.19 “
EU Major Market Countries
” means the United Kingdom, Germany, France, Italy and Spain.
1.20 “
Executive Officers
” means the Chief Executive Officer of Infinity (or a senior executive officer of Infinity designated by
Infinity’s Chief Executive Officer) and the President of Novartis (or a senior executive officer of Novartis or its Affiliate as designated by Novartis’s President).
1.21 “
FDA
” means the United States Food and Drug Administration, or a successor agency thereto.
- 3 -
1.22 “
Field
” means all human and veterinary health-care applications including, but not
limited to, research, diagnosis, therapeutics, and prophylaxis with respect to any indication, together with all agricultural purposes.
1.23 “
First Commercial Sale
” means, with respect to a Licensed Product, the first shipment of such Licensed Product to a Third Party by Novartis or its Affiliate or sublicensee in a country following applicable Regulatory
Approval (other than applicable governmental price and reimbursement approvals) of such Licensed Product in such country. For the avoidance of doubt, sales such as so-called “treatment IND sales”, “named patient sales”,
“compassionate use sales” and “pre-license sales”, shall not be construed as a First Commercial Sale,
provided
that such sales do not continue for more than [**] after receipt of NDA approval in such country for such
Licensed Product.
1.24 “
FTE
” means a full-time equivalent person year (consisting of a total of [**] hours per year) of
scientific or technical work (or scientific managerial work,
provided
that it is specifically related to the Research Program) undertaken by Infinity or Novartis employees, as applicable, with sufficient scientific expertise to perform their
duties on or related to the Research Program.
1.25 “
FTE Rate
” means $[**] per FTE, which may be prorated on a daily basis
as necessary. For avoidance of doubt, the FTE Rate includes all travel expenses.
1.26 “
Good Clinical Practices
” or
“
GCP
” means the good clinical practice standards set forth in 21 C.F.R. Parts 50, 54, 56, 312 and 314, (or in the case of foreign jurisdictions, comparable regulatory standards), and in any successor regulation.
1.27 “
Good Laboratory Practices
” or “
GLP
” means the then-current good laboratory practice standards promulgated or
endorsed by the FDA as defined in 21 C.F.R. Part 58, and comparable regulatory standards in jurisdictions outside the United States.
1.28
“
Good Manufacturing Practices
” or “
GMP
” means current good manufacturing practices for pharmaceuticals as described in regulations promulgated by Regulatory Authorities as applicable to the manufacture of products,
including those set forth in 21 C.F.R. Parts 210 and 211, as such regulations are in effect at the time of manufacturing the product.
1.29
“
IND
” means (a) (i) an Investigational New Drug Application, as defined in 21 C.F.R. § 312.3, and the regulations promulgated thereunder, that is required to be filed with the FDA before beginning clinical testing of
a pharmaceutical product in human subjects, or any successor application or procedure or (ii) any foreign counterpart of such an Investigational New Drug Application, and (b) all supplements and amendments that may be filed with respect to
the foregoing.
1.30 “
Infinity Intellectual Property
” means Infinity Know-How and Infinity Patent Rights.
1.31 “
Infinity Know-How
” means Know-How Controlled by Infinity used or developed in the Research Program that is necessary or useful for
the evaluation, development or commercialization of a Licensed Compound or Licensed Product.
- 4 -
1.32 “
Infinity Patent Rights
” means those Patent Rights set forth on
Schedule
1.32
(as amended from time to time) and Patent Rights Controlled by Infinity that are necessary or useful for the conduct of the Research Program or to research, develop, make, have made, use, offer for sale, sell and import a Licensed Compound
or Licensed Product.
1.33 “
Intellectual Property Rights
” shall mean patents, trade secrets, and copyrights, and other
forms of proprietary or industrial rights pertaining to inventions, know-how, original works, and other forms of intellectual property.
1.34 “
Inventions
” shall mean all patentable inventions, discoveries, improvements and other technology and any Patent Rights based thereon, that are discovered, made or conceived during and in connection with, or during and
as a result of, the Research Program or thereafter with respect to the research, Development and commercialization of a Profile until Novartis declares such Profile an Abandoned Profile in accordance with Section 3.3.1.
1.35 “
Investors’ Rights Agreement
” means the Investors’ Rights Agreement entered into by Infinity and Novartis Pharma AG on
the Effective Date.
1.36 “
Know-How
” means any information and materials, whether proprietary or not and whether
patentable or not, including without limitation ideas, concepts, formulas, methods, procedures, designs, compositions, plans, documents, data, inventions, discoveries, works of authorship, compounds and biological materials, but excluding any such
information or materials publicly disclosed in Patent Rights.
1.37 “
Law
” or “
Laws
” means all laws,
statutes, rules, regulations, ordinances and other pronouncements having the effect of law of any federal, national, multinational, state, provincial, county, city or other political subdivision, domestic or foreign.
1.38 “
Licensed Compounds
” means: (a) Research Program Active Compounds; (b) Novartis Active Compounds; (c) salts,
hydrates, solvates, esters, metabolites, intermediates, stereoisomers and polymorphs of Research Program Active Compounds or Novartis Active Compounds; and (d) prodrugs of Research Program Active Compounds or Novartis Active Compounds (any of
the foregoing, a “
Licensed Compound
”).
1.39 “
Licensed Product
” means a Product comprising or containing
one or more Licensed Compounds.
1.40 “
Major Indication
” means the following Oncology Indications: breast cancer,
colorectal cancer, prostate cancer or nonl-small cell lung cancer.
1.41 “
Marketing Plan
” means the plan for
commercializing a Licensed Product, including the specifics regarding promotional effort, promotional spend and marketing materials.
1.42
“
MHLW
” means the Japanese Ministry of Health, Labour and Welfare or any successor agency with responsibilities comparable to the Japanese Ministry of Health, Labour and Welfare.
1.43 “
Minor Indication
” means any Oncology Indication which is not a Major Indication.
- 5 -
1.44 “
NDA
” means (a) (i) a New Drug Application submitted to the FDA, or any
successor application or procedure, as more fully defined in 21 C.F.R. § 314.50 et. seq., or (ii) any foreign counterpart of such a New Drug Application, and (b) all supplements and amendments, including supplemental New
Drug Applications (and any foreign counterparts) that may be filed with respect to the foregoing.
1.45 “
Net Sales
” means,
with respect to any Licensed Product, the gross amount invoiced by or on behalf of Novartis and any Novartis Affiliate or sublicensee for that Licensed Product sold to Third Parties (other than sales to sublicensees for resale) in bona fide,
arm’s-length transactions, less the following deductions, determined in accordance with the Accounting Standards as generally and consistently applied by Novartis, to the extent included in the gross invoiced sales price of any Licensed Product
or otherwise directly paid or incurred by Novartis, its Affiliates or sublicensees with respect to the sale of such Licensed Product:
(a)
Normal and customary trade and quantity discounts actually allowed and properly taken directly with respect to sales of such Licensed Product;
(b) Amounts repaid or credited by reason of defects, rejection, recalls, returns, rebates and allowances of goods, or because of retroactive price reductions specifically identifiable to such Licensed Product;
(c) Chargebacks and other amounts paid on the sale or dispensing of such Licensed Product;
(d) Amounts payable resulting from governmental (or agency thereof) mandated rebate programs;
(e) Third Party cash rebates and chargebacks related to sales of such Licensed Product, to the extent actually allowed;
(f) Tariffs, duties, excise, sales, value-added, and other taxes (other than taxes based on income);
(g) Retroactive price reductions that are actually allowed or granted;
(h) Cash discounts for timely payment;
(i) Delayed ship order credits;
(j) Discounts pursuant to indigent patient programs and patient discount programs, including, without limitation, “Together Rx” and coupon
discounts;
(k) All freight, postage and insurance included in the invoice price;
(l) Amounts repaid or credited for uncollectible amounts on previously sold units of such Licensed Product; and
- 6 -
(m) Deduction of [**] percent ([**]%) for distribution and warehousing expenses.
all as determined in accordance with Novartis’ usual and customary accounting methods and the Accounting Standards, as consistently applied at
Novartis. Sales from Novartis to its Affiliates and sublicensees for resale shall be disregarded for the purpose of calculating Net Sales. Any of the items set forth above that would otherwise be deducted from the invoice price in the calculation of
Net Sales but which are separately charged to Third Parties shall not be deducted from the invoice price in the calculation of Net Sales.
Furthermore:
(i) In the case of any sale or other disposal of a Licensed Product between or among Novartis and its Affiliates, and
sublicensees for resale, Net Sales shall be calculated as above only on the value charged or invoiced on the first arm’s-length sale thereafter to a Third Party;
(ii) In the case of any sale which is not invoiced or is delivered before invoice, Net Sales shall be calculated at the time of shipment or when the Licensed Product is paid for, if paid for before shipment or
invoice;
(iii) In the case of any sale or other disposal for value, such as barter or countertrade, of any Licensed Product, or part
thereof, otherwise than in an arm’s-length transaction exclusively for money, Net Sales shall be calculated as above on the fair market value of the non-cash consideration received as agreed by the Parties or the fair market price (if higher)
of the Licensed Product in the country of sale or disposal; and
(iv) In the event that the Licensed Product is sold in a finished dosage
form containing the Licensed Product in combination with one or more other active ingredients which are not themselves Licensed Compounds or Licensed Products (a “
Combination Product
”), the Net Sales of the Licensed Product, for the
purpose of determining royalty payments, shall be determined by multiplying the Net Sales (as defined above in this Section) of the Combination Product by the fraction A/(A+B), where A is the weighted (by sales volume) average sales price in a
particular country of the Licensed Product when sold separately in finished form and B is the weighted average sales price in that country of the other product(s) sold separately in finished form. In the event that such average sales price cannot be
determined for both the Licensed Product and the other product(s) in combination, Net Sales for purposes of determining royalty payments shall be agreed by the Parties based on the relative value contributed by each component, and such agreement
shall not be unreasonably withheld.
1.46 “
Non-Disclosure Agreement
” means the Confidentiality Agreement between the
Parties dated as of [**], as amended [**] and [**].
1.47 “
Novartis Active Compound
” means an Analog which is
(a) designed, discovered or synthesized by or on behalf of Novartis after the Research Term, (b) demonstrated during the Term to have Threshold Activity against a Target and (c) included on the Active Compound List.
1.48 “
Oncology Indication
” means the treatment or prophylaxis of a hematological cancer or a solid tumor cancer.
- 7 -
1.49 “
Party
” means Novartis or Infinity. “
Parties
” means Novartis and
Infinity.
1.50 “
Patent Rights
” means all existing patents and patent applications and all patent applications hereafter
filed and patents hereafter issued, including without limitation any continuations, continuations-in-part, divisions, provisionals or any substitute applications, any patent issued with respect to any such patent applications, any reissue,
reexamination, renewal or extension (including any supplemental protection certificate) of any such patent, and any confirmation patent or registration patent or patent of addition based on any such patent, and all foreign counterparts of any of the
foregoing.
1.51 “
Phase I Study
” means a study in humans which provides for the first introduction into humans of a
product, conducted in normal volunteers or patients to get information on product safety, tolerability, pharmacological activity or pharmacokinetics, as more fully defined in 21 C.F.R. § 312.21(a) (or the foreign equivalent thereof).
1.52 “
Phase II Study
” means a study in humans of the safety, dose ranging and efficacy of a product, which is
prospectively designed to generate sufficient data (if successful) to commence pivotal clinical trials, as further defined in 21 C.F.R. § 312.21(b) (or the foreign equivalent thereof).
1.53 “
Phase III Study
” means a controlled and lawful study in humans of the efficacy and safety of a product, which is prospectively
designed to demonstrate statistically whether such product is effective and safe for use in a particular indication in a manner sufficient to file an NDA to obtain regulatory approval to market the product, as further defined in 21 C.F.R. §
312.21(c) (or the foreign equivalent thereof).
1.54 “
Product
” means any final dosage form or formulation of a compound
for marketing for therapeutic or pharmaceutical use in humans.
1.55 “
Profile
” means either the Bcl-2 Selective Profile,
the Bcl-xL Selective Profile or the Dual Profile. “
Bcl-2 Selective Profile
” means all Licensed Compounds whose biological activity is primarily based upon their interaction with Bcl-2 (but not Bcl-xL). “
Bcl-xL Selective
Profile
” means all Licensed Compounds whose biological activity is primarily based upon their interaction with Bcl-xL (but not Bcl-2). “
Dual Profile
” means all Licensed Compounds whose biological activity is primarily based
upon their interaction with both Bcl-2 and Bcl-xL.
1.56 “
Regulatory Approval
” means any and all approvals (including any
applicable governmental price and reimbursement approvals), licenses, registrations, or authorizations of any federal, national, multinational, state, provincial or local regulatory agency, department, bureau or other governmental entity that are
necessary and sufficient for the marketing and sale of a product in a country or group of countries.
1.57 “
Regulatory
Authority
” means, with respect to a country, the regulatory authority of such country with authority over the testing, manufacture, use, storage, importation, promotion, marketing and sale of a pharmaceutical product in such country.
1.58 “
Required Third Party Payments
” shall mean payments to a Third Party (including license fees, milestone payments and
royalties) to license Patent Rights covering such
- 8 -
Third Party’s Intellectual Property Rights if, in the absence of such license, Novartis’s exercise of its licenses under the Infinity Patent Rights
would infringe the composition of matter or method of use claims in such Third Party’s Patent Rights.
1.59 “
Research
Program
” means all research and drug discovery activities conducted by the Parties during the Research Term pursuant to the Research Plan with an aim to discover, identify, or design Research Program Active Compounds.
1.60 “
Research Program Active Compound
” means a compound demonstrated by Infinity prior to the Effective Date or by either Party in the
course of the Research Program to have Threshold Activity against a Target and which is included on the Active Compound List.
1.61
“
Research Term
” means the period of funded research described in Section 2.1.3 (as may be extended in accordance therewith and as shall terminate if the Term earlier terminates).
1.62 “
sPoC
” means the selection and approval of a Licensed Compound for the clinical phase of development by Novartis’
Translational Research Translational Development board (or its successor). The specific criteria to be used by the Translational Research Translational Development board shall be set forth in the Research Plan;
provided
,
however
, that,
in any event, if a Licensed Compound enters GLP toxicology testing, it shall be deemed to have achieved sPoC.
1.63 “
Stock Purchase
Agreement
” means the Series D Preferred Stock Purchase Agreement entered into by Infinity and Novartis Pharma AG on the Effective Date.
1.64 “
Targets
” means (a) Bcl-2 alone (selected against Bcl-xL); (b) Bcl-xL alone (selected against Bcl-2); and (c) Bcl-2/Bcl-xL together (each of the foregoing, a “
Target
”).
1.65 “
Territory
” means worldwide.
1.66 “
Third Party
” means any person or entity other than a Party or any of its Affiliates.
1.67
“
Threshold Activity
” means, with respect to a Target, [**] activity against such Target in a biochemical displacement assay.
1.68 “
Valid Patent Claim
” means: (a) a claim in any unexpired patent that has not been held invalid by a decision by a court or other appropriate body of competent jurisdiction;
provided
,
however
, that,
if the decision of such court or body is later reversed or otherwise becomes nonbinding, such claim shall be reinstated as a Valid Patent Claim; or (b) a claim in any pending patent application that shall not have been abandoned with no rights
remaining, or has not been pending for more than [**] years;
provided
,
however
, that if such claim is later allowed, such claim shall be reinstated as a Valid Patent Claim.
- 9 -
1.69
Additional Definitions
. Each of the following definitions is set forth in the section of this
Agreement indicated below:
|
|
|
|
|
DEFINITION
|
|
SECTION
|
|
Abandoned Profile
|
|
3.3.1
|
|
Active Compound List
|
|
2.1.4
|
|
Agreement
|
|
Preamble
|
|
Bankruptcy Code
|
|
4.4
|
|
Bound Party
|
|
12.1
|
|
Breaching Party
|
|
8.3
|
|
Co-Detailing Agreement
|
|
5.3.1
|
|
Co-Detailing Rights
|
|
5.3
|
|
Combination Product
|
|
1.45
|
|
Continuing License
|
|
4.2.2
|
|
Development Milestone
|
|
2.3
|
|
Development Plan
|
|
3.2.1
|
|
Effective Date
|
|
Preamble
|
|
Infinity
|
|
Preamble
|
|
Infinity Developed Compound
|
|
4.2.2
|
|
Infinity Indemnified Parties
|
|
9.1
|
|
Initial Co-Detailing Term
|
|
5.3
|
|
Joint IP
|
|
6.1.2
|
|
Joint Patent Rights
|
|
6.2.2
|
|
Joint Research Committee
|
|
2.4.1
|
|
JRC
|
|
2.4.1
|
|
Milestone Payments
|
|
7.4
|
|
Non-Breaching Party
|
|
8.3
|
|
Novartis
|
|
Preamble
|
|
Novartis Indemnified Parties
|
|
9.2
|
|
Novartis Independent Collection
|
|
4.2.2
|
|
Novartis Independent Compound
|
|
4.2.2
|
|
Novartis Licensed Patent Rights
|
|
8.4.3
|
|
Patent Prosecution
|
|
6.2.2
|
|
Payments
|
|
7.9
|
|
Pivotal Opt-In Period
|
|
2.3
|
|
Research Plan
|
|
2.1.2
|
|
Royalty Term
|
|
7.5.2
|
|
Severed Clause
|
|
14.12
|
|
Term
|
|
8.1
|
|
Third-Party Infringement
|
|
6.3.1
|
|
Threshold Net Sales Level
|
|
7.5.1
|
|
U.S. Commercialization Committee
|
|
5.4
|
- 10 -
2.
Research
.
2.1
Research Program
.
2.1.1
Goals
. The primary objective of the Research Program shall be to discover, characterize,
and optimize novel small-molecule inhibitors of the Targets suitable for development and commercialization as Licensed Products.
2.1.2
Research Plan; Recordkeeping
. During the Research Term, each Party shall use commercially reasonable efforts to perform its obligations under the research plan, which shall be approved by the JRC within [**] days after the Effective Date and
attached hereto as
Exhibit A
(as may be amended pursuant to Section 2.1.3 and/or 2.4.5, the “
Research Plan
”). The Research Plan shall set forth the roles and responsibilities of each Party, including the scientific
personnel allocated to the Research Program. In particular, during the initial two (2) year Research Term, Novartis shall dedicate at least [**] FTEs simultaneously to seek to identify a Research Program Active Compound as a development
candidate for GLP toxicology testing leading to the filing of an IND with respect to a Licensed Product. The Parties shall maintain complete and accurate records of all work, results, data, and developments made pursuant to its efforts under the
Research Plan. Such records shall fully and properly reflect all work done and results in sufficient detail and in good scientific manner appropriate for patent and regulatory purposes.
2.1.3
Length and Scope of Research Program
. The Research Program is initially scheduled to be in effect for two (2) years, starting on
March 1, 2006. The Research Term may be extended for up to two (2) additional one (1) year periods at the discretion of Novartis, in which case the Parties shall agree upon appropriate amendments to the Research Plan and Infinity
shall not be required to dedicate more than [**] Infinity FTEs to the Research Program during each such year without Infinity’s prior written consent. Thereafter, the Research Term may be amended only by mutual written agreement of the Parties.
2.1.4
Active Compound List
. Attached hereto as
Exhibit B
is a list of the Research Program Active Compounds existing as of
the Effective Date. From time to time during the Research Term, the Parties shall revise such list (such list, as revised from time to time, the “
Active Compound List
”) to specify the compounds demonstrated in the course of the
Research Program to have Threshold Activity against a Target. Following the Research Term but during the Term, Novartis shall revise the Active Compound List to specify the Analogs designed, discovered or synthesized by or on behalf of Novartis
after the Research Term and demonstrated during the Term to have Threshold Activity against a Target.
2.2
Exclusivity
. Provided
that Novartis is performing its obligations diligently with respect to any Profile in accordance with Section 3.3, Infinity shall not, directly or indirectly, research, Develop or commercialize any compounds or products in connection with any
Target, other than in accordance with this Agreement, during the Research Term and thereafter until the later of (a) five (5) years after the end of the Research Term or (b) Infinity’s termination or waiver of all rights with respect
to (i) the Development and Co-Detailing Rights of all Profiles and (ii) the research, Development and commercialization of any Profile as an Abandoned Profile;
provided
,
however
, that, if Infinity conducts research,
Development and/or commercialization of any
- 11 -
Profile as an Abandoned Profile in accordance with this Agreement, then such period shall be extended until the later of (A) five (5) years after the
end of Infinity’s research, Development and commercialization activities with respect to such Abandoned Profile or (B) Infinity’s termination or waiver of all rights with respect to such Abandoned Profile. Furthermore, following the
end of the Research Term, Infinity shall not modify by chemical and/or molecular-genetic means any Licensed Compound then on the Active Compound List, other than in accordance with this Agreement.
2.3
Novartis Opt-In Rights on Abandoned Licensed Compounds
. If, as a result of any research and development activities conducted pursuant to
Section 3.3.1 with respect to an Abandoned Profile, Infinity plans to initiate a Phase III Study with respect to an Abandoned Profile Licensed Compound for such Abandoned Profile, then Infinity shall provide written notice thereof to Novartis
including: (a) the rationale for the decision to conduct such Phase III Study; and (b) the estimated date of the first dosing of the first patient in such Phase III Study; (c) all data and information supporting such Phase III Study;
(d) a summary of the Development Costs incurred to that point. In no event shall there occur the first dosing of the first patient in a Phase III Study prior to Infinity having delivered such notice to Novartis and expiration of Novartis’
opt-in rights contemplated by this Section 2.3. Novartis shall have a period of [**] days from the date it receives Infinity’s notice to audit the Development Costs incurred to that point and exercise its opt-in rights by providing written
notice thereof to Infinity (such [**] day period, the “
Pivotal Opt-In Period
”). Infinity shall provide reasonable assistance to Novartis in connection with such audit. If Novartis so exercises its opt-in rights, the Abandoned
Profile and the related Abandoned Profile Licensed Compounds shall, from and after such exercise, again become a Profile and Licensed Compounds, respectively, hereunder, and Novartis shall pay Infinity an amount equal to the sum of: (i) all
Development Costs incurred by Infinity directly in connection with its Development of such Abandoned Profile Licensed Compound multiplied by [**]; and (ii) any Milestone Payment for each of the milestones pursuant to Section 7.4.2 (each, a
“
Development Milestone
”) achieved by Infinity with respect to such Abandoned Profile Licensed Compound that would have been otherwise due if such compound was a Licensed Compound and such milestone had been achieved by Novartis; and
(iii) an opt in fee of $[**]. Notwithstanding the foregoing, Infinity may, at its discretion, provide written notice to Novartis prior to commencing a Phase II Study with respect to such Abandoned Profile Licensed Compound, which notice shall
include the following: (a) the rationale for the decision to conduct such Phase II Study; and (b) the estimated date of the first dosing of the first patient in such Phase II Study; (c) all data and information supporting such Phase
II Study; and (d) a summary of the Development Costs incurred to that point. Novartis shall have a period of [**] days from the date it receives Infinity’s notice to audit the Development Costs incurred to that point and exercise its
opt-in rights by providing written notice thereof to Infinity. Infinity shall provide reasonable assistance to Novartis in connection with such audit. If Novartis exercises its opt-in rights, the Abandoned Profile and the related Abandoned Profile
Licensed Compounds shall, from and after such exercise, again become a Profile and Licensed Compounds, respectively, hereunder, and Novartis shall pay Infinity an amount equal to the sum of: (i) all Development Costs incurred by Infinity
directly in connection with its Development of such Abandoned Profile Licensed Compound multiplied by [**]; and (ii) any Milestone Payment for each of the Development Milestones achieved by Infinity with respect to such Abandoned Profile
Licensed Compound that would have been otherwise due if such compound was a Licensed Compound and such milestone had been achieved by Novartis; and (iii) an opt in fee of
- 12 -
$[**]. Notwithstanding the foregoing, Novartis may opt in at any time prior to the commencement by Infinity of a Phase III Study with respect to such
Abandoned Profile Licensed Compound by paying to Infinity an amount equal to the sum of: (i) all Development Costs incurred by Infinity directly in connection with its Development of such Abandoned Profile Licensed Compound multiplied by [**];
and (ii) any Milestone Payment for each of the Development Milestones achieved by Infinity with respect to such Abandoned Profile Licensed Compound that would have been otherwise due if such compound was a Licensed Compound and such milestone
had been achieved by Novartis; and (iii) an opt in fee of $[**]. In any event, if Novartis does not exercise its opt-in rights pursuant to this Section 2.3 on or before the end of the Pivotal Opt-In Period, then Infinity shall have no
further obligation to Novartis with respect to such Abandoned Profile and related Abandoned Profile Licensed Compounds.
2.4
Joint
Research Committee
.
2.4.1
JRC Formation
. The Parties shall establish a joint research committee (the “
Joint Research
Committee
” or “
JRC
”), comprised of three (3) representatives of Infinity and three (3) representatives of Novartis, each of whom shall have experience and seniority sufficient to enable him or her to make
decisions on behalf of the Party he or she represents. The initial representatives of each Party to the JRC are specified in
Exhibit C
. Each Party may change any one or more of its representatives to the JRC at any time upon written notice to
the other Party. The number of representatives appointed by each Party to the JRC may be modified by mutual agreement of the Parties;
provided
, that at all times the number of representatives from each Party shall be equal.
2.4.2
Schedule and Minutes
. The JRC shall meet within thirty (30) days after the Effective Date and, thereafter, at least quarterly. The
representatives of the JRC will mutually agree on the schedule for meetings. A representative of the Party hosting a meeting of the JRC shall serve as secretary of that meeting. The secretary of the meeting shall prepare and distribute to all
members of the JRC minutes of the meeting for review and comment. Such minutes shall provide a description in reasonable detail of the discussions held at the meeting and a list of any actions, decisions or determinations approved by the JRC.
Minutes of the JRC meeting shall be approved or disapproved, and revised as necessary, at the next meeting of the JRC.
2.4.3
Location
and Attendance
. The location of meetings of the JRC shall alternate between the offices of each party in Cambridge, MA, or as otherwise agreed by the Parties. The JRC may also meet by means of telephone conference call or videoconference, except
that at least one (1) meeting per calendar year will be held in person. Each Party shall use reasonable efforts to cause its representatives to attend the meetings of the JRC. If a Party’s representative to the JRC is unable to attend a
meeting, such Party may designate an alternate to attend such meeting in place of the absent representative. In addition, each Party may, at its discretion, invite non-voting employees, and, with the consent of the other Party, consultants or
scientific advisors, to attend the meetings of the JRC.
2.4.4
Decision Making Process
. Each Party, acting through its
representatives to the JRC, shall have one vote on the JRC. Any decision of the JRC shall require the affirmative vote of both Parties, through their representatives to the JRC. Any dispute at the JRC
- 13 -
shall be referred to the Chief Scientific Officer of Infinity and the Head of Oncology Research of Novartis for good faith resolution. In the event that the
dispute is not resolved, Novartis shall have the deciding vote. No such decisions shall obligate Infinity to spend money or devote resources outside those previously agreed to in the mutually-agreed Research Plan, in no event may the JRC or Novartis
amend the terms of this Agreement or override Infinity’s rights specified in Sections 2.4.5(b) or 12.3 and in no event may Novartis unilaterally (a) determine that a Licensed Compound shall be recategorized into a Profile as set forth in
Section 2.4.6, (b) change the criteria for the Profiles without compelling and convincing data that indicates that the criteria are unlikely to result in clinical differentiation (
provided
,
however
, that if there is a dispute
over whether such data is compelling and convincing, Novartis shall have the deciding vote), or (c) determine that it has fulfilled any obligations hereunder or that Infinity has breached any obligations hereunder.
2.4.5
Responsibilities
. The JRC shall be responsible for: (a) developing, approving and revising the Research Plan; (b) overseeing the
research activities pursuant to the Research Plan, including the research budget (
provided
that no fewer than [**] Infinity FTEs shall be funded in each year during the first two (2) years of the Research Term); (c) attempting to
resolve disputes with respect to such activities; (d) approving the Controlled Contractors to be utilized by Infinity in the Research Program; and (e) assuming such other responsibilities as are expressly set forth in this Agreement.
2.4.6
Assignment of Licensed Compounds to a Profile
. Within [**] days after the Effective Date, the JRC shall establish the
criteria (which may be amended from time to time by mutual agreement of the Parties) for the Selective Profiles and the Dual Profile which shall include the following: (i) potency against Bcl-2 and Bcl-xL in both biochemical and cellular
assays; (ii) level of selectivity for Bcl-2 and Bcl-xL in both biochemical and cellular assays; (iii) determining appropriate in-vivo experiments to differentiate between the Profiles; (iv) minimum criteria for determining an
acceptable expected clinical differentiation between the Profiles (including, without limitation, differential safety and efficacy) that warrant further development efforts; and (v) any other criteria that the JRC, in its reasonable judgment,
deems relevant;
provided
,
however
, that if, at the time GLP toxicology is completed for the second Profile, (A) the clinical differentiation criteria as described above has not been realized, or (B) the clinical
differentiation criteria as described above has been realized but additional compelling and convincing data indicates that the criteria are unlikely to result in clinical differentiation, then in either of case (A) or (B), the relevant Licensed
Compounds shall be recategorized into the first Profile; and
provided
,
further
,
however
, that once a Licensed Compound enters clinical Development, the Profile for such Licensed Compound shall not change.
2.4.7
Independence
. Subject to the terms of this Agreement, the activities and resources of each Party shall be managed by such Party, acting
independently and in its individual capacity.
3.
Development
.
3.1
Selection of Licensed Compounds for Development
. Novartis shall have the sole right to select Licensed Compounds for development into Licensed Products, to discontinue development of Licensed Products, to
substitute new or back-up Licensed Products for
- 14 -
discontinued ones, to control the Development thereof, and to hold all Drug Approval Applications and obtain and hold all Regulatory Approvals with respect
thereto on a worldwide basis, subject to the obligations of diligence set forth in this Section 3.
3.2
Conduct of Development
Activities
.
3.2.1
Generally
. Novartis shall conduct and lead the Development of the Licensed Products according to a written
plan consistent with the terms of this Agreement (the “
Development Plan
”). Novartis shall have responsibility for preparing the Development Plan, which may be amended by Novartis from time to time based on the results achieved in
the Development of Licensed Products. Infinity will participate in the design and execution of clinical trials under the Development Plan, in accordance with Section 3.2.2 and consistent with Infinity’s capabilities and subject to
Novartis’s approval, not to be unreasonably withheld. Both Parties shall conduct their development activities in good scientific manner, and in compliance with applicable Laws (including any governing GLP, GCP, or GMP requirements). Any dispute
between the Parties with respect to the conduct of such Development activities shall be referred to the Vice President, Clinical Development and Medical Affairs of Infinity and the Head of Development of Novartis Oncology for good faith resolution.
In the event that the dispute is not resolved, Novartis shall make the final decision. No such decisions shall obligate Infinity to spend money or devote resources outside those previously agreed to in the mutually-agreed Research Plan, in no event
may Novartis amend the terms of this Agreement or override Infinity’s rights specified in Sections 2.4.5(b) or 12.3 and in no event may Novartis unilaterally (a) determine that a Licensed Compound shall be recategorized into a Profile as
set forth in Section 2.4.6, (b) change the criteria for the Profiles without compelling and convincing data indicates that the criteria are unlikely to result in clinical differentiation (provided, however, that if there is a dispute over
whether such data is compelling and convincing, Novartis shall have the deciding vote) or (c) determine that it has fulfilled any obligations hereunder or that Infinity has breached any obligations hereunder.
3.2.2
Infinity Participation in Development
. If Infinity wishes to initiate any development activity (including any clinical trial) under the
Development Plan for any Licensed Product, it shall submit a request to Novartis and provide a draft protocol for any proposed development activity that it wishes to undertake as well as an implementation plan and budget for such activities.
Novartis shall consider such request in good faith and may approve in its sole discretion, but shall have no obligation to agree to such a request. In the event that Novartis agrees to permit Infinity to conduct any development activities,
(a) Infinity shall conduct such activities under the Development Plan pursuant to the written implementation plan and budget approved by Novartis, and (b) Novartis shall reimburse Infinity’s Development Costs incurred in accordance
therewith, monthly in arrears, with payment due to Infinity forty-five (45) days after the receipt of an invoice and Infinity may submit such invoice at the end of the relevant month. Novartis will not be responsible for cost overruns of the
budget approved by Novartis in excess of [**] percent ([**]%) of the budget approved. Infinity shall promptly report to Novartis all inventions developed by Infinity under the Development Plan.
- 15 -
3.3
Diligence
.
3.3.1
Development Diligence and Abandoned Profile
. If, at any time after the end of the Research Term, Novartis provides written notice of its intention to have itself, its Affiliates and sublicensees terminate
all research, Development and commercialization activities hereunder with respect to a Profile (but not all Profiles), Novartis may declare such Profile an “
Abandoned Profile
” by providing written notice thereof to Infinity, and
shall specify in writing to Infinity the Abandoned Profile Licensed Compound(s) with respect to such Abandoned Profile for which Infinity may conduct research, development and commercialization activities, in which case, subject to Section 2.3,
Infinity may, at its sole expense, conduct research, development and commercialization activities with respect to such Abandoned Profile and all related Abandoned Profile Licensed Compounds, and, except as provided in Section 8.4, such
Abandoned Profile shall no longer be a Profile and such Abandoned Profile Licensed Compounds shall no longer be Licensed Compounds. Infinity may design, discover and synthesize Analogs of such Licensed Compounds or other compounds directed to the
relevant Target, which Analogs and other compounds shall be considered Abandoned Profile Licensed Compounds subject to Novartis’ written consent.
3.3.2
Development Diligence
. Novartis shall dedicate commercially reasonable efforts, during each [**] month period, necessary to continue the advancement of Licensed Compounds and Licensed Products with
respect to at least one Profile towards the next clinical Development milestone or approval milestone, as described in Sections 7.4.2 or 7.4.3, respectively. If Novartis (itself or through its Affiliates or sublicensees) fails to dedicate
commercially reasonable efforts, during any [**] month period, necessary to continue the advancement of Licensed Compounds and Licensed Products with respect to at least one Profile towards such next milestone, then any dispute regarding
Novartis’ failure of development diligence with respect to such Profile shall be resolved in accordance with Article 13.
3.3.3
Commercialization Diligence
. Novartis shall dedicate commercially reasonable efforts, during each [**] month period, necessary to commercialize a Licensed Product for a Profile, after receipt of Regulatory Approval therefor, in any of the
U.S., Japan or the EU Major Market Countries. If Novartis commercializes a Licensed Product for a Profile, after receipt of Regulatory Approval therefor, in any of the U.S., Japan or the EU Major Market Countries, Novartis will be deemed to satisfy
all diligence obligations with respect to such Profile.
3.4
Development Reports
. Novartis shall provide Infinity with a copy of the
Development Plan, as well with updates thereto, promptly after they become available, and shall meet with Infinity at least quarterly to deliver a written and verbal summary of progress under the Development Plan. Specifically, Novartis shall
provide Infinity with: (a) strategies for the development of any Licensed Products; (b) progress against the Development Plan and any amendments thereto; and (c) summaries of the results and data related to Development of Licensed
Products. Novartis shall consider any comments or suggestions of Infinity regarding the Development Plan.
3.5
Protection of Research
Program Materials
. In order to facilitate the testing or development of one or more Licensed Compounds, each Party may provide to the other Party
- 16 -
certain biological materials or chemical compounds Controlled by the supplying Party, including Licensed Compounds, for use by the other Party in furtherance
of this Agreement. The receiving Party shall use all such materials only as permitted under the applicable license rights granted under this Agreement and subject to all other restrictions and obligations under this Agreement. Except as otherwise
provided under this Agreement, all such materials delivered to the other Party will remain the sole property of the supplying Party, will be used only in furtherance of and in accordance with this Agreement, will not be used or delivered to or for
the benefit of any Third Party without the prior written consent of the supplying Party, and will be used in compliance with all applicable laws, rules and regulations. The materials supplied under this Agreement shall be used with prudence and
appropriate caution in any experimental work because not all of their characteristics may be known. THE MATERIALS ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTY THAT THE USE OF THE MATERIALS WILL NOT INFRINGE OR VIOLATE ANY PATENT OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PARTY.
3.6
Development Records
. Novartis and Infinity shall maintain complete and accurate records of all development work and all results, data, and
developments made pursuant to its efforts under the Development Plan. Such records shall fully and properly reflect all work done and results achieved in the performance of development activities in sufficient detail and in good scientific manner
appropriate for patent and regulatory purposes.
3.7
Development Expenses
. Novartis shall be solely responsible for the costs and
expenses of Developing and commercializing Licensed Products pursuant to the terms of this Agreement, except with respect to Infinity’s research, development and commercialization activities with respect to an Abandoned Profile pursuant to
Section 3.3.1 (subject to Section 2.3).
4.
Licenses
.
4.1
Infinity Grant
. Infinity hereby grants Novartis and its Affiliates an exclusive license, with the right to sublicense (subject to Section 4.3), under Infinity Intellectual Property, to research,
develop, make, have made, use, offer for sale, sell and import Licensed Compounds and Licensed Products in the Territory for use in the Field (subject to Section 7.6 and provided that Infinity retains the right to practice under the Infinity
Intellectual Property to (a) perform its obligations to Novartis under this Agreement and (b) to research, develop, make, have made, use, offer for sale, sell and import Abandoned Profile Licensed Compounds for which Novartis granted
Infinity the right to conduct research, development and commercialization activities pursuant to Section 3.3.1, and Products containing such compounds). Novartis shall provide written notice to Infinity promptly after granting any sublicense
under the foregoing license to any Third Party (other than a Controlled Contractor). Nothing in this Agreement shall prevent Infinity from using (itself or through its Affiliates), or from licensing to a Third Party the right to use, any of
Infinity’s Know-How which is not specific to the Targets or Licensed Compounds.
- 17 -
4.2
Limited Novartis Grants
.
4.2.1 Novartis hereby grants to Infinity a worldwide, non-exclusive license under Intellectual Property Rights Controlled by Novartis, without the right
to grant sublicenses (except to the extent as may be permitted under the Research Plan or as otherwise approved in writing by Novartis) solely to the extent necessary or appropriate to perform Infinity’s obligations under this Agreement.
4.2.2 If Novartis makes one or more Analogs of a Research Program Active Compound, which Research Program Active Compound is on the Active
Compound List as of the Effective Date or is included on the Active Compound List by Infinity during the Research Term and such Analog is added to the Active Compound List, Novartis hereby grants to Infinity a perpetual, worldwide, royalty-free,
fully paid, non-exclusive license to research, develop, make, use, offer for sale, sell, import and otherwise commercialize any product containing a compound designed, discovered or synthesized by Infinity (an “
Infinity Developed
Compound
”), under any patent claim in Patent Rights Controlled by Novartis that covers such Analogs,
provided
that such license does not apply to Licensed Compounds or Analogs thereof supported by structure-activity data; and,
provided
,
further
, that Novartis may revoke such license at any time with respect to any product containing an Infinity Developed Compound which is the same as any compound for which Novartis is conducting clinical development or which
Novartis is commercializing (a “
Novartis Independent Compound
”) or an analog of a Novartis Independent Compound supported by structure-activity data (such analogs, collectively with the Novartis Independent Compounds, the
“
Novartis Independent Collection
”),
unless
Infinity has a Continuing License (as defined below) with respect to such Infinity Developed Compound. Such license shall further include the right to grant sublicenses to Affiliates
of Infinity and to Third Parties. Novartis shall promptly notify Infinity of the filing of any such patent claim. If Infinity at any time desires to be certain that any Infinity Developed Compound is not the same as a compound in the Novartis
Independent Collection, Infinity may notify Novartis in writing of such Infinity Developed Compound and Novartis shall, within [**] days after receipt of such notice, notify Infinity in writing of whether such Infinity Developed Compound is the same
as a compound then in the Novartis Independent Collection. If Novartis so notifies in Infinity that such Infinity Developed Compound is not the same as a compound then in the Novartis Independent Collection or if Novartis does not provide written
notice to Infinity within such [**] day period, then Infinity shall be deemed to have a “
Continuing License
” with respect to such Infinity Developed Compound.
4.2.3 Novartis hereby grants Infinity an exclusive license, with the right to sublicense (subject to Section 4.3), in the Territory for use in the
Field, under any Patent Rights Controlled by Novartis based on Inventions to research, develop, make, have made, use, offer for sale, sell and import Abandoned Profile Licensed Compounds for which Novartis granted Infinity the right to conduct
research, development and commercialization activities pursuant to Section 3.3.1, and Products containing such compounds. Such license shall be perpetual and irrevocable, subject to the provisions of Section 2.3 during the Term.
4.3
Sublicense Rights
. Wherever in this Agreement either Party is granted the right to grant sublicenses (including granting to
sublicensees the right to grant further sublicenses for the purposes of having Licensed Compounds or Abandoned Profile Licensed Compounds made)
- 18 -
which is subject to this Section 4.3, then, in the case of Novartis, Novartis may exercise such right without obtaining the prior approval of Infinity
and, in the case of Infinity, Infinity must obtain the prior approval of Novartis with respect to any sublicense pursuant to (a) Section 4.2.1, and (b) Section 4.2.3 other than any sublicense to (i) a Controlled Contractor
or (ii) any Affiliate or Third Party if Novartis does not exercise its opt-in rights pursuant to Section 2.3 on or before the end of the relevant Pivotal Opt-In Period, and otherwise need not obtain Novartis’ prior written approval;
provided
that any sublicense granted under this Agreement occurs pursuant to a written agreement that subjects such sublicensee to all relevant restrictions and limitations in this Agreement. Except as otherwise agreed to by the Parties in
writing, each Party shall be jointly and severally responsible with its sublicensees to the other Party for failure by its sublicensees to comply with, and each Party guarantees the compliance by each of its sublicensees with, all such applicable
restrictions and limitations in accordance with the terms and conditions of this Agreement.
4.4
Section 365(n) of The Bankruptcy
Code
. All rights and licenses granted under or pursuant to any section of this Agreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Code, as amended (such Title 11, the
“
Bankruptcy Code
”), licenses of rights to “intellectual property” as defined under Section 101(35A) of the Bankruptcy Code. The Parties shall retain and may fully exercise all of their respective rights and elections
under the Bankruptcy Code.
4.5
No Implied Licenses Or Rights
. Except as expressly provided in this Agreement, neither Party shall
have any license or other interest in any intellectual property rights Controlled by the other Party.
5.
Commercialization and Infinity Co-Detailing
Option
.
5.1
Novartis’ Marketing Responsibilities For Licensed Products
. All business decisions regarding commercialization
of Licensed Products, including, but not limited to, the design, sale, pricing, and promotion of Licensed Products under this Agreement, and the decisions whether to market any particular Licensed Product, shall be within the sole discretion of
Novartis and its Affiliates. Any marketing of a Licensed Product in one market or country shall not obligate Novartis or its Affiliates to market such Licensed Product in any other market or country. The foregoing is subject to Novartis’s
diligence obligations set forth in Section 3.3.3.
5.2
Marketing Plan
. Novartis shall conduct its commercialization of each
Licensed Product for which Regulatory Approval is obtained according to a written Marketing Plan consistent with the terms of this Agreement. Novartis shall have responsibility for preparing each Marketing Plan and shall conduct its
commercialization activities in compliance with applicable Laws.
5.3
Infinity Co-Detailing Option
. Infinity shall have a
non-exclusive right to Detail Licensed Products which are marketed for use in an Oncology Indication in the United States on the terms and conditions set forth in this Section 5.3 (“
Co-Detailing Rights
”). Co-Detailing Rights
with respect to any such Licensed Product shall be exercisable by Infinity by written notice to Novartis at any time up to [**] weeks after filing of an NDA with respect to such Licensed Product. At any time, Infinity shall have the right to have up
to a total of [**] full-time
- 19 -
equivalent sales representatives Detail all Licensed Products for which Infinity has exercised its Co-Detailing Rights;
provided
, that in no event
shall Infinity have a number of full-time equivalent sales representatives Detailing Licensed Products which is in excess of [**] percent ([**]%) of the total number of Novartis and Infinity full-time equivalent sales representatives Detailing such
Licensed Products. For each Licensed Product for which Infinity exercises its Co-Detailing Rights, such rights shall be in effect for a period of seven (7) years from the date of NDA approval (such period with respect to any Licensed Product, the
“
Initial Co-Detailing Term
”). Infinity shall not be permitted to subcontract its Detailing responsibilities hereunder to a contract sales organization or any other Third Party. Unless terminated earlier in accordance with
Section 5.3.2, Infinity’s Co-Detailing Rights shall terminate upon expiration of the Initial Co-Detailing Term unless Infinity provides written notice of extension to Novartis at least [**] months prior to the expiration of the Initial
Co-Detailing Term. In the event that Infinity extends its Co-Detailing Rights, such Co-Detailing Rights shall continue for an additional three (3) year period, unless earlier terminated in accordance with Section 5.3.2. During the Initial
Co-Detailing Term (but not during any extension of the Co-Detailing Term), the cost of the Infinity full-time equivalent sales representatives shall be reimbursed by Novartis quarterly in arrears at a negotiated full-time equivalent sales
representative rate, which, if Novartis engages like situated Third Parties to Detail its oncology products, shall be comparable to the then prevailing rate for such Third Parties, if any, but in no event shall such rate be in excess of the fully
burdened cost to Novartis of employing or otherwise engaging its own representatives who Detail its oncology products. Thereafter, Infinity shall be responsible for the cost of its full-time equivalent sales representatives, but Novartis shall
remain responsible for the costs of all promotional materials. Novartis shall control all promotion, distribution, marketing and sales activities with respect to Licensed Products in the United States, including all Detailing activities of full-time
equivalent sales representatives hereunder. For clarity, a “
full-time equivalent sales representative
” shall be determined based on the percentage of work time the relevant sales representative is devoting to Detailing activities
with respect to the Licensed Products. By way of example, if the relevant sales representative is devoting all of his or her work time to Detailing activities with respect to the Licensed Products, then he or she is counted as a full-time equivalent
sales representative and if the relevant sales representative is devoting [**] of his or her work time to Detailing activities with respect to the Licensed Products, then he or she is counted as [**] of a full-time equivalent sales representative.
In addition, with regard to full-time equivalent sales representatives who Detail a Licensed Product, such full-time equivalent sales representatives must Detail a Licensed Product for at least [**] of his or her work time and must not at the same
time detail a product which would be considered by doctors as a replacement for the Licensed Product which such full-time equivalent sales representative is then Detailing.
5.3.1 In the event Infinity elects to exercise the Co-Detailing Rights with respect to a Licensed Product, Infinity and the appropriate Novartis
Affiliate shall, within [**] months after the date Infinity notifies Novartis of such election, negotiate in good faith and enter into a co-detailing agreement with respect to such Licensed Product (“
Co-Detailing Agreement
”)
containing the terms and conditions set forth in this Section 5.3 and such other terms and conditions as are customary for agreements of such type (except that in no event shall Infinity be entitled to compensation or other payments from
Novartis or its Affiliates pursuant to the Co-Detailing Agreement other than the right of reimbursement of the cost of Infinity’s sales representatives described above). Such terms and conditions shall include:
(a) Infinity’s sales representatives shall have technical, pharmaceutical and Detailing experience which is consistent with industry standards for
oncology pharmaceutical products;
- 20 -
(b) Infinity’s sales representatives will be included in training programs with respect to the
applicable Licensed Product that Novartis provides to its own sales representatives Detailing such Licensed Product. Such training shall be provided by Novartis to Infinity free of charge (
provided
that Novartis shall not be required to
reimburse Infinity for any travel, lodging, or other similar expenses which may be incurred by Infinity in connection with the training of Infinity’s sales representatives); and
(c) Infinity’s sales representatives shall be provided, at Novartis’ expense, with the same promotional materials, including literature and
samples, as Novartis provides to its own similarly-situated representatives.
5.3.2 Upon not less than [**] months’ prior written
notice to Novartis, Infinity may terminate the Co-Detailing Rights with respect to a particular Licensed Product in the United States. In the event that Infinity delivers a termination notice in accordance with the preceding sentence, Novartis shall
have the right to terminate such Co-Detailing Rights prior to expiration of such [**] month period by providing [**] days’ prior notice to Infinity.
5.4
U.S. Commercialization Committee
. If Infinity exercises its Co-Detailing Rights and Infinity and the appropriate Novartis Affiliate enter into a Co-Detailing Agreement with respect to a Licensed Product,
Infinity shall be entitled to have up to one (1) representative sit on the U.S. commercialization committee established by Novartis (“
U.S. Commercialization Committee
”) for such Licensed Product when such committee is
established. The U.S. Commercialization Committee shall have responsibility for general oversight of all commercialization activities (including promotion and Detailing) with respect to such Licensed Product in the United States. In the event of a
dispute between the Parties at the U.S. Commercialization Committee (or in connection with any other commercialization dispute between the Parties), then the dispute shall be referred to the Executive Officers (which, in the case of Novartis shall
be the President of the Novartis Oncology Business Unit or his or her designee) for good faith resolution. In the event that the dispute is not resolved, Novartis shall have the deciding vote. No such decisions shall obligate Infinity to spend money
or devote resources outside those previously agreed to in this Agreement or the mutually-agreed Co-Detailing Agreement, in no event may Novartis amend the terms of this Agreement or the Co-Detailing agreement and in no event may Novartis
unilaterally determine that it has fulfilled any obligations hereunder or thereunder or that Infinity has breached any obligations hereunder or thereunder.
5.5
Trademarks
. Novartis and its Affiliates shall select their own trademarks under which they will market Licensed Products (
provided
that no such trademark shall contain the words “Infinity”
or “Infinity Pharmaceuticals”) and shall own such trademarks. Novartis shall use, in connection with all packaging, literature, labels and other printed matters, to the extent permitted by Law, an expression to the effect that the Licensed
Products were developed under license from Infinity, together with the Infinity logo. The provisions of this Section 5.5 shall not apply to primary packaging of the Licensed Products. Primary packaging shall mean packaging that is in direct
contact with the Licensed Products or the Licensed Products themselves, including but not limited to vials, blister packs, tablets and capsules.
- 21 -
6.
Intellectual Property Ownership, Protection and Related Matters
.
6.1
Ownership
.
6.1.1
Inventorship
. Inventorship of inventions conceived or reduced to practice during the course of the performance of activities pursuant to this Agreement shall be determined in accordance with the patent Laws of the United States.
6.1.2
Ownership
. All inventions or discoveries made, or information created, by employees, Affiliates, agents, independent contractors or
consultants of a Party(ies), in the course of conducting activities under this Agreement, together with all Intellectual Property Rights therein, shall be owned by the Party or Parties to which such employees, Affiliates, agents, independent
contractors or consultants have an obligation to assign such inventions, discoveries or information. Intellectual Property Rights which are jointly owned by the Parties pursuant to the immediately preceding sentence are “
Joint IP
”
and shall not be considered Infinity Intellectual Property or Intellectual Property Rights Controlled by Novartis, for purposes of this Agreement.
6.2
Prosecution and Maintenance of Patent Rights
.
6.2.1 Within sixty (60) days after the Effective Date, the Parties
shall discuss and determine a reasonable strategy with respect to the Patent Prosecution of the Joint Patent Rights and the Infinity Patent Rights, which strategy may be modified upon agreement of the Parties. Except as otherwise agreed by the
Parties, Infinity agrees to conduct Patent Prosecution with respect to the Infinity Patent Rights in each country/region recommended by Novartis.
6.2.2 The initial right and responsibility for (a) preparing, filing and prosecuting patent applications (including, but not limited to, provisional, reissue, continuation, continuation-in-part, divisional, and substitute applications
and any foreign counterparts thereof); (b) maintaining any Patent Rights; and (c) managing any interference or opposition or similar proceedings relating to the foregoing ((a) through (c), “
Patent Prosecution
”) shall
(A) with respect to Patent Rights covering inventions for which the employees, Affiliates, independent contractors, consultants or agents of both Parties are inventors (“
Joint Patent Rights
”), rest with Novartis; and
(B) otherwise rest with the Controlling Party. All Patent Prosecution expenses, including attorneys’ fees, incurred by a Party in the performance of Patent Prosecution shall be borne (i) with respect to Joint Patent Rights, equally by
both Parties, and (ii) otherwise by the Controlling Party;
provided
,
however
, that, once any compound is included on the Active Compound List, Novartis shall bear all Patent Prosecution expenses, including attorneys’ fees,
incurred by Infinity in the performance of Patent Prosecution with respect to any Infinity Patent Rights covering such compound.
6.2.3 In
conducting Patent Prosecution with respect to the Joint Patent Rights and the Infinity Patent Rights in accordance with Section 6.2.2, the Party conducting such Patent Prosecution shall (a) conduct such Patent Prosecution in material
conformance with the strategy mutually agreed by the Parties pursuant to Section 6.2.1, (b) keep the other Party reasonably
- 22 -
apprised of the status of all relevant patent applications, (c) provide such other Party with reasonable access to all related documentation, filings
and communications to or from the respective patent offices, and (d) provide such other Party the reasonable opportunity to make comments and recommendations with respect to such Patent Prosecution (which the prosecuting Party shall reasonably
consider).
6.2.4 Notwithstanding Section 6.2.2, (a) Novartis shall provide Infinity with prompt written notice as to any
intention to abandon any Joint Patent Rights, and will first offer Infinity the opportunity to assume responsibility for the same at Infinity’s cost before abandoning such Patent Rights and shall make assignment of such Patent Rights to
Infinity and the provisions of Sections 6.2.5(a)(ii) and (iii) shall apply,
mutatis mutandis
; and (b) Infinity shall provide Novartis with prompt written notice as to any intention to abandon any Infinity Patent Rights relating to
the Licensed Compounds, and will first offer Novartis the opportunity to assume responsibility for the same at Novartis’s cost before abandoning such Patent Rights.
6.2.5 Notwithstanding Section 6.2.2, on a country-by-country basis, (a) if a Party declines to pay for the Patent Prosecution expenses of any Joint Patent Right, such Party shall give the other Party
reasonable notice to such effect and, effective as of the date of receipt of such notice, (i) such Joint Patent Right shall be assigned to the other Party, (ii) whereupon such other Party hereby automatically grants to the Party declining
to pay for such Patent Prosecution expenses a worldwide, perpetual, non-exclusive, irrevocable, sublicenseable right under such Joint Patent Right for any purpose, and (iii) such Joint Patent Right shall thereafter be considered the other
Party’s Patent Right (although, if such other Party is Infinity, such Patent Right shall not be included in the definition of “Infinity Patent Rights” for purposes of this Agreement) and shall no longer be a Joint Patent Right, and
(b) if Novartis declines to pay for the Patent Prosecution expenses of any Infinity Patent Right, Novartis shall give Infinity reasonable notice to such effect and, effective as of the date of receipt of such notice, (i) the license
granted to Novartis under such Infinity Patent Right shall terminate, whereupon Novartis shall receive a worldwide, non-exclusive license, with the right to sublicense (subject to Section 4.3 and
provided
that Novartis provides written
notice to Infinity promptly after granting any sublicense to any Third Party (other than a Controlled Contractor)), under such Patent Right, to research, develop, make, have made, use, offer for sale, sell and import Licensed Compounds and Licensed
Products in the Territory for use in the Field (subject to Section 7.6), and (ii) such Patent Right shall thereafter no longer be included in the definition of “Infinity Patent Rights” for purposes of this Agreement.
6.2.6 With respect to each Licensed Product, Novartis shall, at the time of receipt of the relevant Regulatory Approval, or such other time as
appropriate, exclusively in its sole discretion determine whether patent term extension or similar term extensions will be applied for and which of the then-available Patent Rights will be the subject of such application(s). Infinity shall provide
all reasonable assistance to Novartis and its Affiliates with respect thereto.
6.2.7 At the time that Novartis declares a Profile an
Abandoned Profile in accordance with Section 3.3.1, the Parties shall negotiate in good faith the Patent Prosecution rights with respect thereto.
- 23 -
6.3
Third Party Infringement
.
6.3.1
Notice
. Each Party shall, within [**] days, provide the other Party with written notice reasonably detailing any known or alleged
infringement by a Third Party of Joint IP, Infinity Intellectual Property or any Intellectual Property Rights Controlled by Novartis covering the Licensed Compound, including any “patent certification” filed in the United States under 21
U.S.C. §355(b)(2) or 21 U.S.C. §355(j)(2) or similar provisions in other jurisdictions, and of any declaratory judgment, opposition, or similar action alleging the invalidity, unenforceability or non-infringement of any such Intellectual
Property Rights (collectively “
Third Party Infringement
”).
6.3.2
Enforcement
.
(a) Subject to Section 6.3.2(c), Novartis will have the initial right to bring and control any legal action in connection with the
Third Party Infringement against a Third Party who is infringing the relevant Intellectual Property Rights by making, using or selling a product that contains a compound that inhibits the Target of a Profile, at its own expense as it reasonably
determines appropriate, and Infinity may choose, at its own expense, to be represented in any such action by counsel of its own choice; in any event, if Infinity is required as a necessary party to such action, Novartis shall pay Infinity’s
reasonable expenses associated therewith. At the request and expense of Novartis, Infinity shall provide reasonable assistance to Novartis in connection therewith, including by executing reasonably appropriate documents, cooperating in discovery and
joining as a party to the action. In connection with any such proceeding, Novartis shall not enter into any settlement admitting the invalidity of, or otherwise impairing Infinity’s rights in, Infinity Intellectual Property or Joint IP without
the prior written consent of Infinity. Any recoveries resulting from such an action relating to a claim of Third Party Infringement (after payment of each Party’s costs and expenses) will be retained by Novartis;
provided
,
however
, that any portion of such recovery (after payment of each Party’s costs and expenses) other than any amounts attributable to multiple or punitive damages shall be treated as Net Sales of Novartis with respect to a Licensed
Product and shall be subject to a royalty payment to Infinity as set forth in Section 7.5.
(b) If, within [**] days
after Novartis’ receipt of a notice of Third Party Infringement with respect to Joint IP or Infinity Intellectual Property, Novartis does not bring legal action as permitted hereunder against a Third Party who is infringing such Intellectual
Property Rights by making, using or selling a product that contains a compound that inhibits the Target of a Profile, Infinity may, in its sole discretion, bring and control any legal action in connection therewith at its sole expense. At the
request and expense of Infinity, Novartis shall provide reasonable assistance to Infinity in connection therewith, including by executing reasonably appropriate documents, cooperating in discovery and joining as a party to the action. In connection
with any such proceeding, Infinity shall not enter into any settlement admitting the invalidity of or otherwise impairing Novartis’ rights under the Joint IP or such Infinity Intellectual Property without the prior written consent of Novartis.
For the sake of clarity, in no event will Novartis be required to consent to any settlement that impairs Novartis’ rights
- 24 -
under Joint IP or Infinity Intellectual Property hereunder. Any recoveries resulting from such an action relating to a claim of Third Party Infringement
(after payment of each Party’s costs and expenses) will be retained by Infinity.
(c) If the Parties receive notice of
a Third Party Infringement with respect to Joint IP or Infinity Intellectual Property and the relevant Third Party is infringing such Intellectual Property Rights by making, using or selling a product that contains a compound(s) that inhibits the
Target of a Profile and another target that is not a Target and Infinity, its Affiliates or licensees are researching, developing or commercializing a compound that inhibits such other target, the Parties shall discuss and determine which Party
shall enforce the Infinity Intellectual Property with respect to such Third Party Infringement.
6.3.3
Abandoned Profile
Enforcement
. At the time that Novartis declares a Profile an Abandoned Profile in accordance with Section 3.3.1, the Parties shall negotiate in good faith the enforcement rights with respect thereto.
6.4
Patent Marking
. If permitted and to the extent that Novartis does so with respect to its other products in the same geographic market,
Novartis shall, and shall cause its Affiliates and distributors, to (a) mark the Licensed Products with the number of each issued patent under the Infinity Patent Rights that apply to the Licensed Product and (b) comply with the patent
marking statutes in each country in which the Licensed Product is manufactured by or on behalf of Novartis or its Affiliates.
6.5
Drug
Price Competition and Patent Term Restoration Act and Pediatric Exclusivity
.
(a) Subject to Section 6.2.6, the Parties shall
cooperate in an effort to avoid the loss of any rights which may otherwise be available to the Parties under the provisions of the Drug Price Competition and Patent Term Restoration Act of 1984 or comparable laws outside of the United States and for
pediatric exclusivity, with respect to the Licensed Compounds, the Licensed Products, the Abandoned Profile Licensed Compounds and the Products containing the Abandoned Profile Licensed Compounds.
(b) Infinity shall provide any relevant Infinity Patent Right information to Novartis or its Affiliates such that Novartis or its Affiliates, as an NDA
applicant, may inform the FDA or other applicable Regulatory Authority. Novartis shall provide to Infinity or its Affiliates any relevant information regarding Patent Rights Controlled by Novartis covering Abandoned Profile Licensed Compounds such
that Infinity or its Affiliates or licensees, as an NDA applicant, may inform the FDA or other applicable Regulatory Authority.
7.
Financial
Provisions
. In consideration of the licenses and other rights granted by Infinity to Novartis herein and subject to the terms and conditions of this Agreement, Novartis shall make the payments to Infinity set forth in this Section 7.
7.1
Equity Investment
. On the Effective Date, Novartis Pharma AG and Infinity shall enter into the Stock Purchase Agreement and,
subject to the terms and conditions contained therein, Novartis Pharma AG shall purchase one million shares of Infinity’s Series D Convertible
- 25 -
Preferred Stock for an aggregate purchase price of $5,000,000, at a per share price of $5.00. Subject to and in accordance with the terms and conditions of
the Investors’ Rights Agreement, Novartis Pharma AG, an Affiliate of Novartis, shall purchase shares of stock as described in the Stock Purchase Agreement.
7.2
License Fee
. Notwithstanding Section 14.17, within three (3) Business Days after the Effective Date, Novartis shall pay to Infinity a one-time, non-refundable license fee of $15,000,000 for access
by Novartis to the Infinity Intellectual Property.
7.3
Research Funding; Records
. Infinity shall support the Research Program with
[**] FTEs during each of the first two (2) years of the Research Term and such number as agreed to by the Parties during any extension as set forth in Section 2.1.3. Novartis will fund such Infinity FTEs at the FTE Rate, pro-rated to the
duration that such FTEs perform work under the Research Program. Novartis shall pay Infinity monthly in arrears for Infinity’s activities under the Research Program, in accordance with the Research Plan. Novartis shall pay such amounts to
Infinity within forty-five (45) days after receipt of an invoice therefor. The Parties agree that Infinity may issue such invoice at the end of each such month. The FTEs shall be funded in furtherance of the Research Program. Infinity shall
keep accurate records and books of accounts, in accordance with the Accounting Standards, containing all data reasonably required for the calculation and verification of Infinity FTEs and other expenses to be reimbursed by Novartis in accordance
with the Research Plan and/or Development Plan. At Novartis’ reasonable advance written request, Infinity shall make those records available, no more than once in a calendar year, during reasonable working hours, for review by a recognized
independent accounting firm acceptable to both parties, at Novartis’ expense, for the sole purpose of verifying the accuracy of those records. Before beginning its audit, the accounting firm shall execute an undertaking reasonably acceptable to
Infinity by which the accounting firm shall keep confidential all information reviewed during such audit. The accounting firm shall have the right to disclose to Novartis its conclusions regarding any payments owed to Infinity. In the event the
amounts paid or reimbursed by Novartis and the actual amounts are greater than the amounts incurred by Infinity, then any overpayment shall be due and payable to Novartis within [**] days of its receipt of the accounting firm’s report. If the
overpayment is more than five percent (5%) in any calendar year, then Infinity shall also pay the reasonable costs of the independent accountant employed by Novartis in the review.
7.4
Milestone Payments
. Novartis shall pay Infinity the following amounts (“
Milestone Payments
”) after the first achievement by
Novartis, its Affiliates or its sublicensees of the corresponding milestone events set forth below:
7.4.1
sPoC Milestone
. Novartis
shall pay Infinity $[**] upon the first achievement of sPoC by a Licensed Compound. For the avoidance of doubt, this milestone shall be payable only once, even if other Licensed Compounds achieve sPoC.
- 26 -
7.4.2
Clinical Milestones
.
|
|
|
|
|
|
|
Event
|
|
The First Profile to Achieve the Event
|
|
The Second Profile to Achieve the Event
|
|
Start of Phase I Study (first patient, first dosing)
|
|
$[**] regardless of indication
|
|
$[**] regardless of indication
|
|
Start of Phase II Study (first patient, first dosing)
|
|
$[**] for the first Major Indication
|
|
$[**] for the first Major Indication
|
|
Start of Phase II Study (first patient, first dosing)
|
|
$[**] for the first Minor Indication
|
|
$[**] for the first Minor Indication
|
|
Start of Phase III Study (first patient, first dosing)
|
|
$[**] for the first Major Indication
|
|
$[**] for the first Major Indication
|
|
Start of Phase III Study (first patient, first dosing)
|
|
$[**] for the first Minor Indication
|
|
$[**] for the first Minor Indication
|
The Phase I Study milestone set forth in this Section 7.4.2 shall be payable only once for each Profile. All
other milestones set forth in this Section 7.4.2 at each milestone event shall be payable only once for each Profile and only once for each Major Indication and Minor Indication, irrespective of Profile. For the avoidance of doubt: (a) in
the event that a Phase II Study is commenced in [**] (a Major Indication) in two Profiles, only one (1) milestone shall be due; (b) in the event that a Phase II Study is commenced in [**] and in [**] (both of which are Major Indications)
in the same Profile, only one (1) milestone shall be due; (c) in the event that a Phase II Study is commenced in [**] in the Bcl-2 Selective Profile and a Phase II Study is commenced in [**] in the Dual Profile, a Major Indication
milestone for each shall be due; (d) in the event that a Phase II Study is commenced in [**] in the Bcl-2 Selective Profile (at which point the first Major Indication milestone is paid) and then a Phase II Study is commenced in [**] in the
Bcl-2 Selective Profile (at which point no Major Indication milestone is paid) and subsequently to these two trials, a Phase II Study is commenced in [**] in the Dual Profile, then a second Major Indication milestone shall be due; and (e) in
the event that the first Profile to be Developed by Novartis achieves the Phase I Study milestone and achieves the Phase II Study and Phase III Study Milestones for both a Major Indication and a Minor Indication, a total of $[**] shall be payable
hereunder.
If an NDA is filed after the end of a Phase II Study for a Licensed Compound, then the Phase III Study milestone event shall be deemed achieved
as of the date of such filing.
- 27 -
7.4.3
Approval Milestones
.
|
|
|
|
|
|
|
|
|
|
|
Event Achieved
by Licensed Product(s)
|
|
1
st
Major
Indication
(regardless of
Profile)
|
|
1
st
Minor
Indication
(regardless of
Profile)
|
|
2
nd
Major
Indication
(regardless of
Profile)
|
|
First to occur of 2
nd
Minor Indication or 3
rd
Major Indication
(regardless of Profile)
|
|
NDA filing with the FDA
|
|
$[**]
|
|
$[**]
|
|
$[**]
|
|
$[**]
|
|
Regulatory Approval by the FDA
|
|
$[**]
|
|
$[**]
|
|
$[**]
|
|
$[**] for 2
nd
Minor Indication or $[**] for 3
rd
Major Indication
|
|
NDA filing with the EMEA or an EU Major Market Country
|
|
$[**]
|
|
$[**]
|
|
$[**]
|
|
$[**]
|
|
First Commercial Sale and/or receipt of Regulatory Approval in any three (3) EU Major Market Country(ies)
|
|
$[**]
|
|
$[**]
|
|
$[**]
|
|
$[**] for 2
nd
Minor Indication or $[**] for 3
rd
Major Indication
|
|
Regulatory Approval by the MHLW in Japan
|
|
$[**]
|
|
$[**]
|
|
$[**]
|
|
$[**] for 2
nd
Minor Indication or $[**] for 3
rd
Major Indication
|
The NDA filing milestones set forth in this Section 7.4.3 shall be payable only once for a Major Indication
for each Regulatory Authority (i.e., either the FDA or the EMEA/EU Major Market Country) and only once for a Minor Indication for each Regulatory Authority regardless of the Profile. For the avoidance of doubt: in the event that an NDA is filed with
the FDA in [**] in a Profile and a second NDA is filed with the FDA in [**] in another Profile, only one (1) FDA filing milestone shall be due.
The
Regulatory Approval milestones set forth in this Section 7.4.3 shall be payable only once for an Oncology Indication relating to [**] for each Regulatory Authority (i.e., either the FDA or the EMEA/EU Major Market Country or the MHLW in Japan)
regardless of the Profile. For the avoidance of doubt:
(a) in the event that a Regulatory Approval by the FDA is achieved in [**] in a
Profile and a second Regulatory Approval by the FDA is achieved in [**] in another Profile, only one (1) FDA Regulatory Approval milestone shall be due;
(b) in the event that a Regulatory Approval by the FDA is achieved in an indication relating to [**] in a Profile [**] then no further FDA Regulatory Approval milestone shall be due in any Profile for any indication
relating to [**], whether relating to (i) [**], (ii) [**], or (iii) [**];
(c) in the event that Regulatory Approvals by the
FDA are achieved in [**] (a Minor Indication) in a Profile and in [**], and [**] (3 Major Indications) in any Profile, no further FDA Regulatory Approval milestones shall thereafter be due; and
- 28 -
(d) in the event that Regulatory Approvals by the FDA are achieved in [**] and [**] (2 Minor Indications)
in a Profile and in [**] and [**] (2 Major Indications) in any Profile, no further FDA Regulatory Approval milestones shall thereafter be due.
7.4.4
Sales Milestone
. Novartis shall make a one-time payment to Infinity of $[**] upon the first achievement of Annual Net Sales of a Licensed Product exceeding $[**]. For the avoidance of doubt, this milestone shall be payable only
once, even if other Licensed Products achieve Annual Net Sales exceeding $[**].
7.4.5 Except as otherwise specified, none of the payments
listed in this Section 7.4 shall be payable more than once, and each shall be payable at the first achievement of a milestone event for the Licensed Compound or Licensed Product and shall not be payable again if subsequently a Combination
Product, back-up or another Licensed Compound would achieve the same milestone event.
7.4.6 Novartis shall notify Infinity of each
milestone event for which a milestone payment is due within [**] days after achievement of the milestone event. Such milestone payments shall be non-refundable and shall not be credited against royalties payable to Infinity under this Agreement. If
any milestone set forth above with respect to a specific jurisdiction is achieved prior to or in the absence of the achievement of any preceding milestone in the same jurisdiction with respect to a Licensed Compound or Licensed Product, as
applicable, then, effective upon achievement of any such later milestone, all previously unpaid payments that would be due for events in that jurisdiction for any such preceding milestones shall also become due and payable.
7.5
Royalties
.
7.5.1 Novartis shall
pay to Infinity royalties on aggregate Net Sales of each Licensed Product, on a Licensed Product-by-Licensed Product basis, at the following rates:
(a)
Threshold Net Sales Level
. With respect to the [**] of Net Sales in the Territory, Novartis shall pay to Infinity a royalty equal to [**] percent ([**]%) of such Net Sales (the “
Threshold Net Sales Level
”).
(b)
Annual Net Sales in the United States After the Threshold Net Sales Level
. With respect to any additional Net Sales after the
Threshold Net Sales Level had been achieved, Novartis shall pay a royalty on aggregate Annual Net Sales in the United States of such Licensed Product as follows:
|
|
|
|
|
Annual Net Sales in the United States
|
|
Royalty
|
|
[**]
[**]
[**]
|
|
[**]%
[**]%
[**]%
|
- 29 -
(c)
Annual Net Sales in the Territory Excluding the United States After the Threshold Net Sales
Level
. With respect to any additional Net Sales after the Threshold Net Sales Level has been achieved, Novartis shall pay a royalty on aggregate Annual Net Sales of such Licensed Product in the Territory excluding the United States as follows:
|
|
|
|
|
Aggregate Annual Net Sales in the Territory excluding the United States
|
|
Royalty
|
|
[**]
[**]
[**]
|
|
[**]%
[**]%
[**]%
|
7.5.2 Royalties payable under Section 7.5.1 shall be paid on a Licensed Product-by-Licensed
Product and country-by-country basis from the date of First Commercial Sale of each Licensed Product with respect to which royalty payments are due for a period which is the longer of: (a) the last to expire of any Valid Patent Claim of
Infinity Patent Rights covering such Licensed Product; or (b) [**] years following the date of First Commercial Sale in such country (each such term with respect to a Licensed Product and a country, a “
Royalty Term
”);
provided
,
however
, that royalty payments solely under clause (b) will be at [**] percent ([**]%) of the applicable rate in Section 7.5.1.
7.5.3 In the event that Novartis, its Affiliates or sublicensees is required to pay Required Third Party Payments with respect to a Licensed Product then Novartis’ obligation to pay royalties to Infinity shall be
reduced dollar for dollar on par with the amounts actually paid by Novartis, its Affiliates or sublicensees to such Third Party;
provided
, that in no event shall Infinity be paid less than the royalty calculated by deducting [**] percentage
points from the royalty rates set forth in Section 7.5.1. In the event that the amount Novartis or its Affiliates is entitled to deduct hereunder exceeds the amount of any individual royalty payment due to Infinity, Novartis, its Affiliates or
sublicensees shall be entitled to deduct amounts from any subsequent payment(s) until the entire amount to which Novartis, its Affiliates or sublicensees is entitled to deduct has been so deducted;
provided
,
however
, that in no event
shall Infinity be required to refund any royalty payments received from Novartis.
7.5.4 Upon the expiration of the Royalty Term with
respect to a Licensed Product in a country, the licenses granted by Infinity to Novartis pursuant to Section 4.1 shall be deemed to be fully paid-up, irrevocable and perpetual with respect to such Licensed Product in such country.
7.6
Negotiation for Other Uses
. If Novartis chooses to develop or commercialize a Licensed Compound or Licensed Product for diagnostic,
agricultural or veterinary use(s), the Parties shall negotiate in good faith commercially reasonable terms applicable to such use and Novartis’ rights with respect to such use shall be subject to the execution of an amendment to this Agreement
reflecting such mutually agreed terms.
- 30 -
7.7
Royalty Reports; Payments
. Within forty-five (45) calendar days after the end of any
calendar quarter, Novartis shall provide Infinity with a report stating the sales in units and in value of the Licensed Product made by Novartis or its Affiliates in the Territory, on a country by country basis, together with the calculation of the
royalties due to Infinity. Royalty payments shall be made by Novartis to the bank account indicated by Infinity within forty-five (45) calendar days after the receipt by Novartis of the relevant invoice issued by Infinity.
7.8
Audits
. (a) Infinity shall have the right for a period of three (3) years after receiving any report or statement with respect to
royalties due and payable to appoint an Auditor to inspect the relevant records of Novartis or its Affiliates to verify such reports, statements, records or books of accounts, as applicable. Before beginning its audit, the Auditor shall execute an
undertaking reasonably acceptable to Novartis by which the Auditor shall keep confidential all information reviewed during such audit. The Auditor shall have the right to disclose to Infinity its conclusions regarding any payments owed to Infinity.
(b) Novartis and its Affiliates shall keep complete and accurate books and records regarding the sales of Licensed Products in sufficient
detail to enable the payments due to Infinity hereunder to be determined. Novartis and its Affiliates shall retain the books and records with respect to any annual accounting periods for three (3) years after the date of the last entry for such
annual accounting period and during any extended period during the pendency of any controversy. Novartis or its Affiliates shall make its records available for inspection (but not for photocopying) by the Auditor during regular business hours at
such place or places where such records are customarily kept, upon receipt of reasonable advance notice from Infinity, solely to verify the accuracy of Novartis’ or its Affiliates’ sales reports, payments records or books of accounts and
Novartis’ or its Affiliates’ compliance in other respects with this Agreement. Such inspection right shall not be exercised more than once in any calendar year nor more frequently than once with respect to records covering any specific
period of time, except in the event of accounting changes or restatements by Novartis or its Affiliates directly related to a Licensed Product and limited to any specific country changes or restatements. Infinity agrees to maintain as Novartis’
Confidential Information all information received and all information learned in the course of any such audit or inspection, except to the extent necessary for such Infinity to reveal such information in order to enforce its rights under this
Agreement or if disclosure is required by law, regulation or judicial order.
(c) Infinity shall pay for such inspections, as well as its
own legal expenses associated with enforcing its rights with respect to any payments hereunder, except that in the event there is any upward adjustment in aggregate amounts payable for any year shown by such inspection of more than five percent
(5%) of the amount paid, Novartis shall pay for such inspection.
7.9
Tax Matters
. The royalties, milestones and other amounts
payable by Novartis to Infinity pursuant to this Agreement (“
Payments
”) shall not be reduced on account of any taxes unless required by Law. Infinity alone shall be responsible for paying any and all taxes (other than withholding
taxes required by Law to be deducted and paid on Infinity’s behalf by Novartis) levied on account of, or measured in whole or in part by reference to, any Payments it receives. The Parties will cooperate in good faith to obtain the benefit of
any relevant tax treaties to minimize as far as reasonably possible any taxes which may be levied on any Payments.
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Novartis shall deduct or withhold from the Payments any taxes that it is required by Law to deduct or withhold. Notwithstanding the foregoing, if Infinity is
entitled under any applicable tax treaty to a reduction of the rate of, or the elimination of, applicable withholding tax, it may deliver to Novartis or the appropriate governmental authority (with the assistance of Novartis to the extent that this
is reasonably required and is expressly requested in writing) the prescribed forms necessary to reduce the applicable rate of withholding or to relieve Novartis of its obligation to withhold tax, and Novartis shall apply the reduced rate of
withholding tax, or dispense with withholding tax, as the case may be,
provided
that Novartis has received evidence of Infinity’s delivery of all applicable forms (and, if necessary, its receipt of appropriate governmental authorization)
at least [**] days prior to the time that the Payment is due. If, in accordance with the foregoing, Novartis withholds any amount, it shall make timely payment to the proper taxing authority of the withheld amount, and send to Infinity proof of such
payment within [**] days following that latter payment.
7.10
United States Dollars
. All dollar ($) amounts specified in this
Agreement are United States dollar amounts.
7.11
Currency Exchange
. With respect to amounts invoiced in United States Dollars, all
such amounts shall be expressed in United States Dollars. With respect to amounts invoiced in a currency other than United States Dollars, all such amounts shall be expressed both in the currency in which the amount was invoiced and in the United
States Dollar equivalent. The United States Dollar equivalent shall be calculated using Novartis’ then-current standard exchange rate methodology applied in its external reporting (which is ultimately based on official rates such as Reuters and
the European Central Bank) for the conversion of foreign currency sales into United States Dollars.
7.12
Late Payments
. The paying
Party shall pay interest to the receiving Party on the aggregate amount of any payments that are not paid on or before the date such payments are due under this Agreement at a rate per annum equal to the lesser of [**], as reported by
The Wall
Street Journal
, [**] or the highest rate permitted by applicable Law, calculated on the number of days such payments are paid after the date such payments are due;
provided
,
however
, that, with respect to any disputed payments, no
interest payment shall be due until such dispute is resolved and the interest which shall be payable thereon shall be based on the finally-resolved amount of such payment, calculated from the original date on which the disputed payment was due
through the date on which payment is actually made.
8.
Term and Termination
.
8.1
Agreement Term
. This Agreement becomes effective as of the Effective Date and shall continue in perpetuity until the earlier of (a) the
termination of this Agreement in accordance with Sections 8.2 or 8.3 or (b) following the First Commercial Sale of any Licensed Product, the expiration of the last-to-expire of all Royalty Terms with respect to any Licensed Compounds and
Licensed Products (the “
Term
”).
8.2
Termination For Convenience
. Novartis shall have the right to terminate this
Agreement for convenience upon sixty (60) days prior written notice to Infinity.
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8.3
Termination For Material Breach
. If either Party (the “
Non-Breaching Party
”)
believes that the other Party (the “
Breaching Party
”) is in material breach of this Agreement (including without limitation any material breach of a representation or warranty made in this Agreement), then the Non-Breaching Party
may deliver notice of such breach to the Breaching Party. In such notice the Non-Breaching Party shall identify the actions or conduct that such Party would consider to be an acceptable cure of such breach. If the Breaching Party fails to cure such
breach within the one hundred and twenty (120) day period, the Non-Breaching Party may terminate this Agreement upon written notice to the Breaching Party, which termination shall apply solely with respect to a Profile (and all Licensed
Products for such Profile) if such breach is by Novartis and is related solely to such Profile, or any Licensed Product for such Profile, and shall otherwise apply to this Agreement in its entirety.
8.4
Effect Of Termination
.
8.4.1
Upon termination of this Agreement in its entirety, all Profiles and related Licensed Products shall be considered terminated, and, upon termination of this Agreement in its entirety by Infinity pursuant to Section 8.3, all Abandoned Profiles
will be treated the same as Profiles.
8.4.2 Upon termination of this Agreement in its entirety by Novartis pursuant to Section 8.3,
(a) all licenses granted by Infinity to Novartis hereunder shall remain in effect in accordance with the terms and conditions set forth in the grant; (b) Novartis’ right to opt-in with respect to Abandoned Profiles pursuant to
Section 2.3, if applicable, shall remain in effect; (c) all licenses granted hereunder by Novartis to Infinity shall be terminated (
provided
,
however
, that, if such termination occurs after the Pivotal Opt-In Period with
respect to an Abandoned Profile, the provisions of Sections 4.2.3 and 4.3 shall survive with respect to such Abandoned Profile); (d) all milestone and royalty obligations of Novartis hereunder shall remain in effect but Novartis may
(i) terminate all its milestone and royalty obligations hereunder, only if Novartis’ termination of this Agreement is due to Infinity’s material uncured breach of Section 2.2 as a result of Infinity filing an NDA with respect to
a compound in breach of Section 2.2 or licensing a Third Party to do so, or (ii) in the event of termination of this Agreement due to any other breach of this Agreement by Infinity, withhold [**] percent ([**]%) of each milestone and
royalty payment due hereunder until the actual amount of damages owed by Infinity to Novartis with respect to the breach of this Agreement is determined, whereupon such withheld amount shall be credited against such damages and any amount remaining
shall be refunded to Infinity within thirty (30) days after such determination; and (e) Sections 2.2, 3.7, 6 and 7.6 shall survive in accordance with their terms.
8.4.3 Upon termination of this Agreement in its entirety by Novartis pursuant to Section 8.2 or termination of this Agreement in its entirety or
with respect to a Profile by Infinity pursuant to Section 8.3, (a) all licenses granted by Infinity to Novartis with respect to the terminated Profile and the related Licensed Products hereunder shall terminate and such Profile shall no
longer be considered a Profile hereunder; (b) all licenses to the Licensed Compounds and Licensed Products for such former Profile, and the licenses under Section 4.2.3, granted hereunder by Novartis to Infinity shall remain in effect in
accordance with the terms and conditions set forth in the grant; (c) the Pivotal Opt-In Period shall terminate with respect to the Abandoned Profiles; (d) Novartis shall be obligated to continue Research Program funding in
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accordance with the Research Plan for [**] months after the date on which Infinity delivers a notice of default or Novartis delivers a notice of termination;
(e) if Novartis has initiated clinical development of or commercialized any Licensed Products for such former Profile, (i) Novartis shall provide to Infinity a fair and accurate description of the status of the Development and
commercialization program up to termination for any such Licensed Products, (ii) Novartis hereby automatically grants to Infinity, upon such termination, an exclusive worldwide license, with the right to grant sublicenses, under the Joint IP
and any Intellectual Property Rights Controlled by Novartis that are necessary to develop or commercialize such Licensed Products, to develop, make, have made, use, sell, offer for sale and import such Licensed Products, and any Analogs thereof that
have Threshold Activity against the relevant Target, in the Field; (iii) Novartis shall transfer to Infinity all Drug Approval Applications, Regulatory Approvals and other technical and other information or materials necessary or useful for the
Development and/or commercialization of such Licensed Products; (iv) Novartis shall, if requested by Infinity, assign to Infinity all trademarks and tradenames of such Licensed Products, except for any such trademarks or tradenames or a part
thereof that use the name “Novartis” or a derivative thereof; (v) Infinity shall pay to Novartis a royalty of [**] percent ([**]%) of Net Sales of such Licensed Products (or, if, with respect to a Licensed Product, a trademark has not
been assigned to such Licensed Product and Infinity does not choose to have the trademark planned for such Licensed Product assigned to it, such royalty shall be [**] percent ([**]%)), with the applicable definitions and the provisions of
Section 7.5.2, 7.5.3, 7.5.4, 7.7, 7.8, 7.9, 7.10, 7.11 and 7.12 applying,
mutatis mutandis
, to such royalty payments; (vi) Novartis shall keep Infinity reasonably apprised of the status of the Patent Prosecution with respect to any
Patent Rights Controlled by Novartis covering such Licensed Products or Analogs (the “
Novartis Licensed Patent Rights
”) throughout the world; (vii) notwithstanding Sections 6 or 8.4.3(e)(vi), Novartis shall provide Infinity
with prompt written notice as to any intention to abandon any material subject matter in Novartis Licensed Patent Rights, and will first offer Infinity the opportunity to assume responsibility for the same at Infinity’s cost before abandoning
such subject matter in Patent Rights and shall make assignment thereof to Infinity; and (viii) if Novartis declines to initiate an enforcement action with respect to a suspected infringement of Novartis Licensed Patent Rights, it shall notify
Infinity, who shall thereafter have the right, at Infinity’s expense, to initiate such action by counsel of its choice, and Novartis shall cooperate with Infinity as Infinity may reasonably request, including becoming a party to such action,
and damages recovered in any action referenced in this Section 8.4.3(e)(viii) shall be allocated to Infinity, after reimbursement to each Party of their respective actual expenses incurred in prosecuting such actions as provided hereunder; and
(f) Section 4.2.2 shall survive.
8.4.4 Sections 1, 4.4, 4.5, 6 (with respect to Joint IP), 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 8.4,
9, 10.4, 11, 12, 13 and 14 shall survive termination or expiration (in accordance with Section 8.1 of this Agreement).
8.4.5 Sections
4.2.2, 4.2.3 and 4.3 shall survive expiration (in accordance with Section 8.1(b) of this Agreement).
8.4.6 Termination of this
Agreement shall be in addition to, and shall not prejudice, the Parties’ remedies at law or in equity, including, without limitation, the Parties’ ability to receive legal damages and/or equitable relief with respect to any breach of this
Agreement, regardless of whether or not such breach was the reason for the termination.
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9.
Indemnification
.
9.1
By Novartis
. Novartis agrees, at Novartis’s cost and expense, to defend, indemnify and hold harmless Infinity and its Affiliates and their respective directors, officers, employees and agents (the
“
Infinity Indemnified Parties
”) from and against any losses, costs, damages, fees or expenses arising out of any Third Party claim relating to (a) any breach by Novartis of any of its representations, warranties or obligations
pursuant to this Agreement, (b) the gross negligence or willful misconduct of Novartis or (c) the development, manufacture, use, sale or other disposition by Novartis, its Affiliates or sublicensees of any Licensed Compound or Licensed
Product. In the event of any such claim against the Infinity Indemnified Parties by any Third Party, Infinity shall promptly notify Novartis in writing of the claim and Novartis shall manage and control, at its sole expense, the defense of the claim
and its settlement. The Infinity Indemnified Parties shall cooperate with Novartis and may, at their option and expense, be separately represented in any such action or proceeding. Novartis shall not be liable for any litigation costs or expenses
incurred by the Infinity Indemnified Parties without Novartis’s prior written authorization. In addition, Novartis shall not be responsible for the indemnification or defense of any Infinity Indemnified Party to the extent arising from any
negligent or intentional acts by any Infinity Indemnified Party or the breach by Infinity of any obligation or warranty under this Agreement, or any claims compromised or settled without its prior written consent.
9.2
By Infinity
. Infinity agrees, at Infinity’s cost and expense, to defend, indemnify and hold harmless Novartis and its Affiliates and
their respective directors, officers, employees and agents (the “
Novartis Indemnified Parties
”) from and against any losses, costs, damages, fees or expenses arising out of any Third Party claim relating to (a) any breach by
Infinity of any of its representations, warranties or obligations pursuant to this Agreement, or (b) the gross negligence or willful misconduct of Infinity. In the event of any such claim against the Novartis Indemnified Parties by any Third
Party, Novartis shall promptly notify Infinity in writing of the claim and Infinity shall manage and control, at its sole expense, the defense of the claim and its settlement. The Novartis Indemnified Parties shall cooperate with Infinity and may,
at their option and expense, be separately represented in any such action or proceeding. Infinity shall not be liable for any litigation costs or expenses incurred by the Novartis Indemnified Parties without Infinity’s prior written
authorization. In addition, Infinity shall not be responsible for the indemnification or defense of any Novartis Indemnified Party to the extent arising from any negligent or intentional acts by any Novartis Indemnified Party, or the breach by
Novartis of any obligation or warranty under this Agreement, or any claims compromised or settled without its prior written consent.
10.
Representations and Warranties and Covenants
.
10.1
Representation Of Authority; Consents
. Infinity and Novartis each
represents and warrants to the other Party that, as of the Effective Date, (a) it has full right, power and authority to enter into this Agreement, (b) this Agreement has been duly executed by such Party and constitutes a legal, valid and
binding obligation of such Party, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other Laws relating to or affecting creditors’
rights generally and by general equitable principles and public policy constraints (including those pertaining to limitations and/or exclusions of liability, competition Laws, penalties and
- 35 -
jurisdictional issues including conflicts of Laws), and (c) all necessary consents, approvals and authorizations of all government authorities and other
persons required to be obtained by such Party in connection with the execution, delivery and performance of this Agreement have been and shall be obtained.
10.2
No Conflict
. Each Party represents to the other Party that, notwithstanding anything to the contrary in this Agreement, the execution and delivery of this Agreement and the performance of such Party’s
obligations hereunder (a) do not conflict with or violate such Party’s corporate charter and bylaws or any requirement of applicable Laws and (b) do not and shall not conflict with, violate or breach or constitute a default or require
any consent under, any oral or written contractual obligation of such Party. Each Party agrees that it shall not during the term of this Agreement grant any right, license, consent or privilege to any Third Party or otherwise undertake any action,
either directly or indirectly, that would conflict with the rights granted to the other Party or interfere with any obligations of such Party set forth in this Agreement.
10.3
Intellectual Property
. Infinity represents and warrants that, as of the Effective Date:
10.3.1
Except as disclosed in writing between the Parties or their respective agents, to Infinity’s best knowledge, no Third Party is currently infringing any Infinity Intellectual Property;
10.3.2 Infinity it is not aware of any pending or threatened claim or litigation (or received notice of a potential claim or litigation) which alleges
any issued patents of a Third Party would be infringed by the Development and commercialization of any Licensed Compound; and
10.3.3 To
Infinity’s knowledge, its research and development activities to date with respect to the Targets have not infringed the Patent Rights of any Third Party.
10.4
Disclaimer Of Warranty
. Nothing in this Agreement shall be construed as a representation made or warranty given by either Party that either Party will be successful in obtaining any Patent Rights, that any
patents will issue based on pending applications or that any such pending applications or patents issued thereon will be valid. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS, WAIVES, RELEASES AND RENOUNCES ANY
WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
11.
Limitation of Liability
.
11.1 EXCEPT WITH RESPECT TO A BREACH OF SECTION 12 OR A PARTY’S LIABILITY PURSUANT TO SECTION 9,
NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE EXERCISE OF
ITS RIGHTS HEREUNDER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
- 36 -
12.
Confidentiality
.
12.1
Confidential Information
. All Confidential Information of a Party shall not be used by the other Party (the “
Bound Party
”) except in performing its obligations or exercising rights
explicitly granted under this Agreement and shall be maintained in confidence by the Bound Party and shall not otherwise be disclosed by the Bound Party to any Third Party, without the prior written consent of the Controlling Party with respect to
such Confidential Information, except to the extent that the Confidential Information:
12.1.1 was known by the Bound Party or its
Affiliates prior to its date of disclosure to the Bound Party; or
12.1.2 is lawfully disclosed to the Bound Party or its Affiliates by
sources other than the Controlling Party rightfully in possession of the Confidential Information; or
12.1.3 becomes published or
generally known to the public through no fault or omission on the part of the Bound Party, its Affiliates or its sublicensees; or
12.1.4
is independently developed by or for the Bound Party or its Affiliates without reference to or reliance upon such Confidential Information, as established by written records.
Specific information shall not be deemed to be within any of the foregoing exclusions merely because it is embraced by more general information falling
within those exclusions.
12.2
Permitted Disclosure
. The provisions of Section 12.1 shall not preclude (a) a Bound Party
or its Affiliates from disclosing the Controlling Party’s Confidential Information to the extent such Confidential Information is required to be disclosed by the Bound Party or its Affiliates to comply with applicable Laws or legal process,
including without limitation the rules or regulations of the United States Securities and Exchange Commission or similar regulatory agency in a country other than the United States or of any stock exchange, including without limitation Nasdaq, or to
defend or prosecute litigation;
provided
that the Bound Party provides prior written notice of such disclosure to the Controlling Party and takes reasonable and lawful actions to avoid and/or minimize the degree of such disclosure; and
(b) a Bound Party or its Affiliates from disclosing the Controlling Party’s Confidential Information in connection with filings with a Regulatory Authority or the filing of Patent Rights, both solely to the extent permitted hereunder and
provided
that the Bound Party provides prior written notice of such disclosure to the Controlling Party.
12.3
Publicity;
Publication
. Neither Party shall release any information to any Third Party or make any disclosure or public announcement (including but not limited to press releases, quarterly investor updates, promotional materials, governmental filings and
discussions with public officials, the media, security analysts and investors) regarding the material terms of this Agreement;
provided
,
however
, that (a) a Party may make any disclosure or public announcement if the contents of
such disclosure or public announcement have previously been
- 37 -
made public other than through a breach of this Agreement by the issuing Party; (b) if, in the reasonable opinion of such Party’s counsel, a public
disclosure shall be required by Law, including without limitation in a public filing with the United States Securities and Exchange Commission, the disclosing Party shall, to the extent permitted by applicable Law, provide copies of the disclosure
reasonably in advance (but in no event less than [**] Business Days if reasonably practicable under the circumstances) of such filing or other disclosure for the nondisclosing Party’s prior review and comment, which comments are to be
considered by the disclosing Party in good faith; the nondisclosing Party shall provide its comments, if any, on such announcement as soon as reasonably practicable (
provided
,
however
, that the disclosing Party need not delay its
filing or disclosure, nor consider any comments, if the nondisclosing Party’s comments are not received prior to the time that the disclosing Party must make such filing or disclosure in compliance with applicable Law); (c) either Party
may disclose such terms to bona fide potential or actual sublicensees, as reasonably necessary in connection with a permitted sublicense under the licenses granted in this Agreement; (d) Infinity may issue a press release with respect to the
execution of this Agreement; and (e) either Party may disclose to bona fide potential or actual investors, lenders, investment bankers, acquirors, acquirees, merger partners or other potential financial partners, and to such Party’s
consultants and advisors, only those terms of this Agreement that are reasonably necessary in connection with a proposed equity or debt financing of such Party or are reasonably necessary in connection with a proposed acquisition or business
combination. In connection with any permitted disclosure of Confidential Information pursuant to Section 12.3(c) or (e), the disclosing Party agrees to use all reasonable efforts to inform each disclosee of the confidential nature of such
information and cause each disclosee to treat such information as confidential. Notwithstanding the foregoing, prior to such time as a Licensed Compound is selected for clinical development, any oral or written scientific disclosures (e.g.,
publications, conferences or seminars) by either Party regarding such Licensed Compound shall require the JRC’s written consent prior to their release. Any such scientific disclosure will be submitted to the JRC at least [**] days prior to the
intended date for disclosure. Such disclosure will be amended to take account of any comments or objections the JRC may have,
provided
that the JRC may object to such disclosure being made for a further [**] day period to allow any relevant
patent application to be filed. From and after such time as a Licensed Compound has been selected for clinical development, Novartis shall control all oral and written scientific disclosures (e.g., publications, conferences or seminars) regarding
such Licensed Compound and any Licensed Product incorporating or comprising such Licensed Compound,
provided
that Infinity scientists will be named as co-authors on any key publications arising from work carried out under the Research Program
or otherwise relating to a Licensed Compound or Licensed Product, to the extent that such naming is appropriate under customary scientific publication standards. Notwithstanding the foregoing, neither Party shall be required to name the other
Party’s scientists as co-authors with respect to publications which only involve the efforts of such Party’s scientists. Any scientific disclosure shall not disclose any of Infinity’s Confidential Information without Infinity’s
prior written consent, other than Infinity’s scientific information with respect to the relevant Licensed Compound.
12.4
Employee
And Advisor Obligations
. Infinity and Novartis each agree that they shall provide Confidential Information that is jointly owned or that is received from the other Party only to their respective employees, consultants and advisors, and to the
employees, consultants and advisors of such Party’s Affiliates, who have a need to know such information and materials for performing obligations or exercising rights expressly granted under this Agreement and have an obligation to treat such
information and materials as confidential.
- 38 -
12.5
Term
. All obligations under this Section 12 shall expire five (5) years following
termination or expiration of this Agreement.
12.6
Return of Confidential Information
. Upon the expiration or termination of this
Agreement, the Bound Party shall return to the Controlling Party all Confidential Information received by the Bound Party from the Controlling Party (and all copies and reproductions thereof). In addition, the Bound Party shall destroy: (a) any
notes, reports or other documents prepared by the Bound Party which contain Confidential Information of the Controlling Party; and (b) any Confidential Information of the Controlling Party (and all copies and reproductions thereof) which is in
electronic form or cannot otherwise be returned to the Controlling Party. Alternatively, upon written request of the Controlling Party, the Bound Party shall destroy all Confidential Information received by the Bound Party from the Controlling Party
(and all copies and reproductions thereof) and any notes, reports or other documents prepared by the Bound Party which contain Confidential Information of the Controlling Party. Any requested destruction of Confidential Information shall be
certified in writing to the Controlling Party by an authorized officer of the Bound Party supervising such destruction. Notwithstanding the foregoing, (i) the Bound Party’s legal counsel may retain one copy of the Controlling Party’s
Confidential Information solely for the purpose of determining the Bound Party’s continuing obligations under this Section 12 and (ii) the Bound Party may retain the Controlling Party’s Confidential Information to the extent
necessary to exercise the rights and licenses of the Bound Party expressly surviving expiration or termination of this Agreement. Notwithstanding the return or destruction of the Controlling Party’s Confidential Information, the Bound Party
shall continue to be bound by its obligations of confidentiality and other obligations under this Section 12.
13.
Dispute Resolution
.
13.1 Any controversy, claim or dispute arising out of or relating to this Agreement shall be settled, if possible, through good faith
negotiations between the Parties. If, however, the Parties are unable to settle such dispute within [**] days, the matter may be referred by either Party to the Executive Officers, who shall attempt to resolve the dispute in good faith. Such
resolution, if any, of a referred issue shall be final and binding on the Parties. All negotiations pursuant to this Section 13.1 are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules
of evidence.
13.2 If the Executive Officers are unable to settle the dispute within [**] days after referral thereto pursuant to
Section 13.1, then each Party reserves its right to any and all remedies available under law or equity with respect to the dispute.
13.3 Notwithstanding anything to the contrary in this Section 13, any Party may seek immediate injunctive or other interim relief from any court of competent jurisdiction as necessary to enforce and prevent infringement or
misappropriation of the Patent Rights, Know-How or Confidential Information Controlled by such Party.
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14.
Miscellaneous
.
14.1
Governing Law
. This Agreement shall be construed and the respective rights of the Parties determined according to the substantive laws of the Commonwealth of Massachusetts notwithstanding the provisions
governing conflicts of law under such Massachusetts law to the contrary.
14.2
Assignment
. Novartis may assign its rights and
obligations under this Agreement without the prior written consent of Infinity to an Affiliate or in connection with the transfer or sale of all or substantially all of its assets or business or in the event of its merger or consolidation with a
Third Party. Infinity may not assign its rights and obligations under this Agreement without the prior written consent of Novartis, except (a) to an Affiliate of Infinity, or (b) in connection with a Change in Control of Infinity, in which
case Novartis shall have the rights provided in Section 14.18. Any request for consent to assignment shall not be unreasonably withheld or delayed. Any purported assignment in contravention of this Section 14.2 shall, at the option of the
non-assigning Party, be null and void and of no effect. No assignment shall release either Party from responsibility for the performance of any accrued obligation of such Party hereunder. This Agreement shall be binding upon and enforceable against
the successor to or any permitted assignee from either of the Parties. Each Party agrees that, notwithstanding any provisions of this Agreement to the contrary, in the event that this Agreement is assigned by either Party in connection with the sale
or transfer of all or substantially all of the business and assets of such Party to which the subject matter of this Agreement pertains, (i) such assignment shall not provide (A) the non-assigning Party with rights or access to
Intellectual Property Rights of the acquirer of such Party, nor (B) the acquirer with rights or access to Intellectual Property Rights of the non-assigning Party, other than as specifically set forth in this Agreement, and (ii) if the
acquirer of such Party has a then-existing program to discover, research, develop, manufacture or commercialize compounds or products directed to a Target(s), such program shall remain separate from the activities hereunder and no Confidential
Information or Intellectual Property Rights of the non-assigning Party shall be provided to such acquirer without the prior written consent of the non-assigning Party, and the non-assigning Party may not obtain any confidential information or
intellectual property rights of such acquirer without the prior written consent of such acquirer.
14.3
Entire Agreement;
Amendments
. This Agreement and the Exhibits referred to in this Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersede all previous arrangements with respect to the subject matter
hereof, whether written or oral, including, without limitation, the Non-Disclosure Agreement. The Parties also acknowledge the simultaneous execution and delivery of the Equity Agreements, which shall not be superseded by this Agreement. Any
amendment or modification to this Agreement shall be made in writing signed by both Parties.
- 40 -
14.4
Notices
. Notices to Infinity shall be addressed to:
Infinity Pharmaceuticals, Inc.
780 Memorial
Drive
Cambridge, Massachusetts 02139
Attention: Chief Executive Officer
Facsimile No.: (617) 453-1001
with a copy to:
Wilmer Cutler Pickering
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: Steven D. Singer, Esq.
Facsimile No.: (617) 526-5000
Notices
to Novartis shall be addressed to:
Novartis Institutes for BioMedical Research, Inc.
250 Massachusetts Avenue
Cambridge,
Massachusetts 02139
Attention: General Counsel
Facsimile No.: (617) 871-3354
Either Party may change its address to which notices shall be sent by giving notice to
the other Party in the manner herein provided. Any notice required or provided for by the terms of this Agreement shall be in writing and shall be (a) sent by registered or certified mail, return receipt requested, postage prepaid,
(b) sent via a reputable overnight courier service, or (c) sent by facsimile transmission, in each case properly addressed in accordance with this Section 14.4. The effective date of notice shall be the actual date of receipt by the
Party receiving the same.
14.5
Force Majeure
. No failure or omission by either Party in the performance of any obligation of this
Agreement shall be deemed a breach of this Agreement or create any liability if the same shall arise from any cause or causes beyond the reasonable control of such Party, including, but not limited to, the following: acts of gods; acts of any
government; any rules, regulations or orders issued by any governmental authority or by any officer, department, agency or instrumentality thereof; fire; storm; flood; earthquake; accident; war; rebellion; insurrection; riot; terrorism and invasion;
provided
that the Party affected by such cause promptly notifies the other Party and uses diligent efforts to cure such failure or omission as soon as is practicable after the occurrence of one or more of the above mentioned causes.
14.6
Compliance With Laws
. Each Party shall perform its obligations under this Agreement in compliance with all applicable Laws.
14.7
Use Of Names, Logos Or Symbols
. Subject to Sections 12.2 and 12.3, no Party shall use the name, trademarks, logos, physical
likeness, employee names or owner symbol of the other Party for any purpose, including, without limitation, private or public securities
- 41 -
placements, without the prior written consent of the affected Party. Nothing contained in this Agreement shall be construed as granting either Party any
rights or license to use any of the other Party’s trademarks or trade names or the names of any employees thereof, without separate, express written permission of the owner of such trademark or trade name or name.
14.8
Independent Contractors
. It is understood and agreed that the relationship between the Parties is that of independent contractors and that
nothing in this Agreement shall be construed to create a joint venture or any relationship of employment, agency or partnership between the Parties to this Agreement. Neither Party is authorized to make any representations, commitments, or
statements of any kind on behalf of the other Party or to take any action that would bind the other Party except as explicitly provided in this Agreement. Furthermore, none of the transactions contemplated by this Agreement shall be construed as a
partnership for any tax purposes.
14.9
No Strict Construction
. This Agreement has been prepared jointly and shall not be strictly
construed against either Party.
14.10
Headings
. The captions or headings of the sections or other subdivisions hereof are inserted
only as a matter of convenience or for reference and shall have no effect on the meaning of the provisions hereof.
14.11
No Implied
Waivers; Rights Cumulative
. No failure on the part of Infinity or Novartis to exercise, and no delay by either Party in exercising, any right, power, remedy or privilege under this Agreement, or provided by statute or at law or in equity or
otherwise, shall impair, prejudice or constitute a waiver of any such right, power, remedy or privilege by such Party or be construed as a waiver of any breach of this Agreement or as an acquiescence therein by such Party, nor shall any single or
partial exercise of any such right, power, remedy or privilege by a Party preclude any other or further exercise thereof or the exercise of any other right, power, remedy or privilege.
14.12
Severability
. If, under applicable Laws, any provision of this Agreement is invalid or unenforceable, or otherwise directly or indirectly
affects the validity of any other material provision(s) of this Agreement (such invalid or unenforceable provision, a “
Severed Clause
”), this Agreement shall endure except for the Severed Clause. The Parties shall consult one
another and use good faith efforts to agree upon a valid and enforceable provision that is a reasonable substitute for the Severed Clause in view of the intent of this Agreement.
14.13
Execution In Counterparts
. This Agreement may be executed in counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, and all of which counterparts, taken together, shall constitute one and the same instrument.
14.14
No
Third Party Beneficiaries
. No person or entity other than Novartis and Infinity (and their respective assignees) shall be deemed an intended beneficiary hereunder or have any right to enforce any obligation of this Agreement.
14.15
Performance by Affiliates
. Either Party may use one or more of its Affiliates to perform its obligations and duties hereunder and Affiliates
of a Party are expressly granted certain rights herein;
provided
that each such Affiliate shall be bound by the corresponding obligations of such Party and the Parties shall remain liable hereunder for the prompt payment and performance of
all their respective obligations hereunder.
- 42 -
14.16
Exhibits
. In the event of inconsistencies between this Agreement and any exhibits or
attachments hereto, the terms of this Agreement shall control.
14.17
Invoice Requirement
. Unless otherwise specified herein, any
amounts payable to Infinity hereunder shall be made in U.S. dollars within forty-five (45) calendar days after receipt by Novartis, or its nominee designated for that purpose in advance by Novartis in writing to Infinity, of an invoice (in the
form attached as Exhibit D) covering such payment.
14.18
Change in Control
. If there is Change in Control of Infinity, then
Infinity will maintain the same level of diligence in performing its obligation under the Research Plan after the Change in Control as had been applied prior to the Change in Control unless otherwise agreed by the Parties. Notwithstanding the
preceding sentence, Novartis may, in its sole discretion, immediately terminate the Research Program in its entirety. Upon any such termination by Novartis, (a) Infinity will immediately cease all activity under the Research Plan and transfer
all data developed by Infinity pursuant to the Research Program to Novartis; (b) all licenses granted by Infinity to Novartis shall remain in effect subject to the payment obligations under this Agreement; (c) all licenses granted by
Novartis to Infinity pursuant to Sections 4.2.1 and 4.2.3 shall terminate; and (d) Infinity’s rights under Sections 3.2.2, 5.3, 5.4 and 6.4 shall terminate. Notwithstanding the foregoing, if Novartis does not exercise its opt-in rights
pursuant to Section 2.3 on or before the end of the relevant Pivotal Opt-In Period, then the rights and licenses granted by Novartis to Infinity with respect to the relevant Abandoned Profile and related Abandoned Profile Licensed Compounds
shall remain in effect.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
- 43 -
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers to execute and acknowledge
this Agreement as of the date first written above.
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NOVARTIS INSTITUTES FOR
BIOMEDICAL RESEARCH,
INC.
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Mark C. Fishman
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By:
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/s/ Adelene Q. Perkins
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Name:
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Mark C. Fishman
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Name:
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Adelene Q. Perkins
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Title:
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President
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Title:
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Chief Business Officer
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- 44 -
Schedule 1.32
Infinity Patent Rights
Infinity Patent Applications Relating to the Bcl Program
U.S. Patent Application No.: [**]
Title: [**]
Filed: [**]
PCT Patent Application No.: [**]
Title: [**]
International Filing Date: [**]
U.S. Provisional Application No.: [**]
Title: [**]
Filed: [**]
- 45 -
Exhibit A
Research Plan
[to be attached]
- 46 -
Exhibit B
Initial Active Compound List
[**]
- 47 -
Exhibit C
Initial Members of JRC
Infinity Members:
Christian Fritz
Alfredo Castro
Vito Palombella
Novartis Members:
Christoph
Lengauer
Tim Ramsey
Dale Porter
- 48 -
Exhibit D
Sample Invoice
[Attached]
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contact person
position
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company name
address
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COMPANY LOGO
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Tel +1xxxxx
Fax + 1xxxx
E-mail: xxxx
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Novartis Institute for Biomedical Research, Inc.
Accounts Payable - 1702
NIBRI Strategic Alliance Finance
250 Massachusetts Avenue
Cambridge, MA 02139, USA
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INVOICE
Invoice
number:
XX
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Date
FTE debit for the period of
(time frame)
in reference to our Collaboration Agreement between
(partner name)
and Novartis Institute for Biomedical Research, Inc. effective
as of
(date)
Detailed description of FTE calculation (No. of FTE, rate per FTE applied according
to the contract)
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Total Payable
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(currency)xxxxxxx
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Payment terms
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Full amount (excluding paying or receiving bank charges) in cleared funds to be credited to our account within (number of days stated in the contract) days of receipt of invoice by
wire transfer to our bankers
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Bank Name:
Account No.:
ABA#:
IBAN:
SWIFT CODE:
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XX
XX
XX
(only applicable in the US)
XX
(only applicable in
Europe)
XX
(applicable US and Europe)
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Exhibit 10.5
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Master Loan And Security Agreement
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No. 2081009
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MASTER LOAN AND SECURITY AGREEMENT
No. 2081009
dated as of
October 16, 2002
(“Agreement”)
THIS AGREEMENT
is between
Oxford Finance Corporation
(together with its successors and assigns,
if any,
“Secured Party”
)
and
Infinity Pharmaceuticals, Inc.
(
“Debtor”
).
Secured Party has an office at 133 N. Fairfax Street, Alexandria, VA 22314. Debtor is a corporation organized and existing
under the laws of the state of Delaware. Debtor’s mailing address and chief place of business is 650 Albany Street, Boston, MA 02118.
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1.
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CREATION OF SECURITY INTEREST.
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Debtor grants to
Secured Party, its successors and assigns, a security interest in and against all property listed on any collateral schedule now or in the future annexed to or made a part of this Agreement by the Debtor’s execution thereof
(
“Collateral Schedule
”
),
and in and against all additions, attachments, accessories and accessions to such property, all substitutions, replacements or exchanges therefor, and all insurance and/or other proceeds
thereof (all such property is individually and collectively called the
“Collateral”
).
This security interest is given to secure the payment and performance of all debts, obligations and liabilities of any kind whatsoever of
Debtor to Secured Party, now existing or arising in the future, including but not limited to the payment and performance of certain Promissory Notes executed by Debtor in favor of Secured Party from time to time and identified on any Collateral
Schedule (collectively
“Notes”
and each a
“Note”
),
and any renewals, extensions and modifications of such debts, obligations and liabilities (such Notes, debts, obligations and liabilities are called the
“Indebtedness”
). Unless otherwise provided by applicable law, notwithstanding anything to the contrary contained in this Agreement, to the extent that Secured Party asserts a purchase money security interest in any items of
Collateral
(
“PMSI Collateral
”
):
(i) the PMSI Collateral shall secure only that portion of the Indebtedness which has been advanced by Secured Party to enable Debtor to purchase, or acquire rights in or the
use of such PMSI Collateral (the
“PMSI Indebtedness”
),
and (ii) no other Collateral shall secure the PMSI Indebtedness.
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2.
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REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
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Debtor represents, warrants and covenants as of the date of this Agreement and shall confirm the same as of the date of each Collateral Schedule that:
(a) Debtor’s exact legal name is as set forth in the preamble of this Agreement and Debtor is duly organized, existing and in good standing under the laws of the State set forth in the preamble of this Agreement,
has its chief executive offices at the location specified in the preamble, and is, and will remain, duly qualified and licensed in every jurisdiction wherever necessary to carry on its business and operations;
(b) Debtor has adequate power and capacity to enter into, and to perform its obligations under this Agreement, each Note and any other documents
evidencing, or given in connection with, any of the Indebtedness (all of the foregoing are called the
“Debt Documents
”
);
(c) This Agreement and the other Debt Documents have been duly authorized, executed and delivered by Debtor and constitute legal, valid and binding agreements enforceable in accordance with their terms, except to the
extent that the enforcement of remedies may be limited under applicable bankruptcy and insolvency laws;
(d) No approval, consent or
withholding of objections is required from any governmental authority or instrumentality with respect to the entry into, or performance by Debtor of any of the Debt Documents, except any already obtained;
(e) The entry into, and performance by, Debtor of the Debt Documents will not (i) violate any of the organizational documents of Debtor or any
judgment, order, law or regulation applicable to Debtor, or (ii) result in any breach of or constitute a default under any contract to which Debtor is a party, or result in the creation of any lien, claim or encumbrance on any of Debtor’s
property (except for liens in favor of Secured Party) pursuant to any indenture, mortgage, deed of trust, bank loan, credit agreement, or other agreement or instrument to which Debtor is a party;
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Page 1
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Master Loan And Security Agreement
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No. 2081009
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(f) There are no suits or proceedings pending in court or before any commission, board or other
administrative agency against or affecting Debtor which could, in the aggregate, have a material adverse effect on Debtor, its business or operations, or its ability to perform its obligations under the Debt Documents, nor does Debtor have reason to
believe that any such suits or proceedings are threatened;
(g) All financial statements delivered to Secured Party in connection with the
Indebtedness have been prepared in accordance with generally accepted accounting principles, and since the date of the most recent financial statement, there has been no material adverse change in Debtors financial condition;
(h) The Collateral is not, and will not be, used by Debtor for personal, family or household purposes;
(i) The Collateral is, and will remain, in good condition and repair and Debtor will not be negligent in its care and use;
(j) Debtor is, and will remain, the sole and lawful owner, and in possession of, the Collateral, and has the sole right and lawful authority to grant the
security interest described in this Agreement;
(k) The Collateral is, and will remain, free and clear of all liens, claims and
encumbrances of any kind whatsoever, except for (i) liens in favor of Secured Party, (ii) liens for taxes not yet due or for taxes being contested in good faith and which do not involve, in the judgment of Secured Party, any risk of the
sale, forfeiture or loss of any of the Collateral, and (iii) inchoate materialmen’s, mechanic’s, repairmen’s and similar liens arising by operation of law in the normal course of business for amounts which are not delinquent (all
of such liens are called
“Permitted Liens”
).
(l) All federal, state and local tax returns required to be filed by Debtor
have been filed with the appropriate governmental agencies and all taxes due and payable by Debtor have been timely paid;
(m) To the
knowledge of Debtor, and after due and reasonable investigation no event or condition exists under any material agreement, instrument or document to which Debtor is a party or may be subject, or by which Debtor or any of its properties are bound,
which constitutes a default or an event of default thereunder, or will, with the giving of notice, passage of time, or both, would constitute a default or event of default thereunder;
(n) All of the tangible Collateral is located at the locations set forth on each Collateral Schedule;
(o) Debtor will pay when due all taxes, assessments and other liabilities except as contested in good faith and by appropriate proceedings and for which
adequate reserves have been established;
(p) All reports, certificates, schedules, notices and financial information submitted by Debtor
to the Secured Party pursuant to this Agreement shall be certified as true and correct by an Officer of Debtor;
(q) Debtor shall give the
Secured Party (i) 30 days prior written notice of the location of any Collateral at any place other than the Collateral Locations; and (ii) prompt written notice of any event, occurrence or other matter which has resulted or may result in
a material adverse change in its financial condition or business operations;
(a) Until the occurrence of an Event
of Default (as defined below), Debtor shall remain in possession of the Collateral; except that Secured Party shall have the right to possess (i) any chattel paper or instrument that constitutes a part of the Collateral, and (ii) any other
Collateral in which Secured Party’s security interest may be perfected only by possession. Secured Party may inspect any of the Collateral during normal business hours after giving Debtor reasonable prior notice. If Secured Party asks, Debtor
will promptly notify Secured Party in writing of the location of any Collateral.
(b) Debtor shall (i) use the Collateral only in its
trade or business, (ii) maintain all of the Collateral in good operating order and repair, normal wear and tear excepted, (iii) use and maintain the Collateral only in compliance with manufacturers recommendations and all applicable laws,
and (iv) keep all of the Collateral free and clear of all liens, claims and encumbrances (except for Permitted Liens).
(c) Secured
Party does not authorize and Debtor agrees it shall not (i) part with possession of any of the Collateral (except to Secured Party or for maintenance and repair), (ii) remove any of the Collateral from the continental United States, or
(iii) sell, rent, lease, mortgage, license, grant a security interest in or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral.
(d) Debtor shall pay promptly when due all taxes, license fees, assessments and public and private charges levied or assessed on any of the Collateral, on its use, or on this Agreement or any of the other Debt
Documents. At its option, Secured Party may discharge taxes, liens, security interests or other encumbrances at any time levied or placed on the Collateral and may pay for the maintenance, insurance and preservation of the Collateral and effect
compliance
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Page 2
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/s/ Illegible
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Master Loan And Security Agreement
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No. 2081009
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with the terms of this Agreement or any of the other Debt Documents. Debtor agrees to reimburse Secured Party, on demand, all costs and expenses incurred by
Secured Party in connection with such payment or performance and agrees that such reimbursement obligation shall constitute Indebtedness.
(e) Debtor shall, at all times, keep accurate and complete records of the Collateral, and Secured Party shall have the right to inspect and make copies of all of Debtor’s books and records relating to the Collateral during normal
business hours, after giving Debtor reasonable prior notice.
(f) Debtor agrees and acknowledges that any third person who may at any time
possess all or any portion of the Collateral shall be deemed to hold, and shall hold, the Collateral as the agent of, and as pledge holder for, Secured Party. Secured Party may at any time give notice to any third person described in the preceding
sentence that such third person is holding the Collateral as the agent of, and as pledge holder for, the Secured Party.
(g) Upon
Debtor’s request, Secured Party shall release its security interest on any obsolete or surplus Collateral, it being understood that it is not the intention of Debtor to refinance such obsolete or surplus Collateral, up to an aggregate amount of
twenty percent (20%) of the Notes, if and only if, Debtor prepays all accrued and unpaid interest and the outstanding principal balance of the Notes allocable to such items or items of Collateral. Secured Party shall, at Debtor’s sole cost
and expense, execute such further documents and take such further actions as may be reasonably necessary to effect the release contemplated by this
subsection 3(g)
, including duly executing and delivering termination statements for filing in
all relevant jurisdictions. Notwithstanding anything contained herein to the contrary, Debtor may replace existing Collateral with other Collateral upon providing Secured Party with a first priority perfected security interest in such Collateral
with an equal or greater value than the existing Collateral; provided that, Debtor shall provide Secured Party with evidence reasonably satisfactory to Secured Party of the value of such Collateral and provide all documentation Secured Party
reasonably deems necessary to provide Secured Party with a first perfected security interest.
(a) Debtor shall at all times bear the
entire risk of any loss, theft, damage to, or destruction of, any of the Collateral from any cause whatsoever.
(b) Debtor agrees to keep
the Collateral insured against loss or damage by fire and extended coverage perils, theft, burglary, and for any or all Collateral which are vehicles, for risk of loss by collision, and if requested by Secured Party, against such other risks as
Secured Party may reasonably require. The insurance coverage shall be in an amount no less than the full replacement value of the Collateral, and deductible amounts, insurers and policies shall be reasonably acceptable to Secured Party. Debtor shall
deliver to Secured Party policies or certificates of insurance evidencing such coverage. Each policy shall name Secured Party as a loss payee, shall provide for coverage to Secured Party regardless of the breach by Debtor of any warranty or
representation made therein, shall not be subject to co-insurance, and shall provide that coverage may not be canceled or altered by the insurer except upon thirty (30) days prior written notice to Secured Party. Debtor appoints Secured Party
as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to receive payment of and execute or endorse all documents, checks or drafts in connection with insurance payments. Secured Party shall not act as
Debtor’s attorney-in-fact unless there has occurred and is continuing an Event of Default. Proceeds of insurance shall be applied, at the option of Secured Party, to repair or replace the Collateral or to reduce any of the Indebtedness.
(a) Debtor shall promptly notify Secured
Party of (i) any change in the name of Debtor, (ii) any change in the state of its incorporation or registration, (iii) any relocation of its chief executive offices, (iv) any relocation of any of the Collateral, (v) any of
the Collateral being lost, stolen, missing, destroyed, materially damaged or worn out, or (vi) any lien, claim or encumbrance other than Permitted Liens attaching to or being made against any of the Collateral.
(b) Debtor will deliver to Secured Party Debtor’s complete financial statements, certified by a recognized firm of certified public accountants,
within one hundred twenty (120) days of the close of each fiscal year of Debtor. If Secured Party requests, Debtor will deliver to Secured Party copies of Debtor’s quarterly financial reports certified by Debtor’s chief financial
officer, within ninety (90) days after the close of each of Debtor’s fiscal quarter. Debtor will deliver to Secured Party copies of all Forms 10-K. and 10-Q, if any, within 30 days after the dates on which they are filed with the
Securities and Exchange Commission.
(a) Debtor shall, upon request
of Secured Party, furnish to Secured Party such further information, execute and deliver to Secured Party such documents and instruments (including, without limitation, Uniform Commercial Code financing statements) and shall do such other acts and
things as Secured Party may at any time reasonably request relating to the perfection or protection of the security interest created by this Agreement or for the purpose of carrying out the intent of this Agreement. Without limiting the foregoing,
Debtor shall cooperate and do all acts deemed reasonably necessary or advisable by Secured Party to continue in Secured Party a perfected first security interest in the Collateral, and shall obtain and furnish to Secured Party any subordinations,
releases, landlord
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Page 3
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/s/ Illegible
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Master Loan And Security Agreement
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No. 2081009
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waivers, lessor waivers, mortgagee waivers, or control agreements, and similar documents as may be from time to time reasonably requested by, and in form and
substance reasonably satisfactory to, Secured Party.
(b) Debtor authorizes Secured Party to file a financing statement and amendments
thereto describing the Collateral and containing any other information required by the applicable Uniform Commercial Code. Debtor irrevocably grants to Secured Party the power to sign Debtor’s name and generally to act on behalf of Debtor to
execute and file applications for title, transfers of title, financing statements, notices of lien and other documents pertaining to any or all of the Collateral; this power is coupled with Secured Party’s interest in the Collateral. Debtor
shall, if any certificate of title be required or permitted by law for any of the Collateral, obtain and promptly deliver to Secured Party such certificate showing the lien of this Agreement with respect to the Collateral. Debtor ratifies its prior
authorization for Secured Party to file financing statements and amendments thereto describing the Collateral and containing any other information required by the Uniform Commercial Code if filed prior to the date hereof.
(c) Debtor shall indemnify and defend the Secured Party, its successors and assigns, and their respective directors, officers and employees, from and
against all claims, actions and suits (including, without limitation, related and reasonably attorneys’ fees) of any kind whatsoever arising, directly or indirectly, in connection with any of the Collateral other than those resulting from the
gross negligence or willful misconduct of Secured Party.
(a) The following shall
constitute an event of default (“Event of Default”) under this Agreement and each of the other Debt Documents:
(i) Debtor breaches its obligation to pay when due any installment or other amount due or coming due under any of the Debt Documents and such failure shall continue for a period of ten (10) days following any oral, facsimile or written
notice from Secured Party to Debtor;
(ii) Debtor, without the prior written consent of Secured Party, attempts to or does
sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 4;
(iv) Debtor
breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after written notice from Secured Party;
(v) Any warranty, representation or statement made by Debtor in any of the Debt Documents or otherwise in connection with any of the
Indebtedness shall be false or misleading in any material respect when made;
(vi) Any material portion of the Collateral is
subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured
Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained within three (3) business days of Secured Party’s request to negate such
risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Indebtedness (collectively “Guarantor”) dissolves, terminates its
existence, becomes insolvent or ceases to do business as a going concern;
(ix) If Debtor or any Guarantor is a natural
person, Debtor or any such Guarantor dies or becomes incompetent;
(x) A receiver is appointed for all or of any part of the
property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi)
Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such petition is filed against Debtor or any Guarantor and is not dismissed within forty-five (45) days; or
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the
Collateral.
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(xiii) Debtor shall, without the prior written consent of Secured Party,
(i) merge with or consolidate into any other entity (other than an acquisition by Debtor of the capital stock or assets of another entity where (A) the aggregate cash consideration paid or to be paid in connection with such acquisition
does not exceed $7,500,000 or (B) the consideration paid by Debtor in such an acquisition shall be comprised solely of its equity securities), if the resulting entity’s overall financial condition after the merger or consolidation is worse
than the overall financial condition of Debtor before the merger or consolidation in Lender’s sole but good faith opinion, or (ii) sell all or substantially all of its assets or (iii) in any manner terminate its existence. In the
event that Secured Party fails to consent to a proposed merger or consolidation for which its consent is required, then Debtor may prepay the Indebtedness, either prior to or simultaneously with the closing of the merger or consolidation, upon
payment of (i) all accrued and unpaid interest and the outstanding principal balances of the Notes and (ii) an amount equal to three (3%) of the outstanding principal balance of the Notes on the date of prepayment; or
(xiv) if Debtor is a privately held corporation, there shall occur, without the prior written consent of Secured Party, a change in its
ownership of more than 50% of Debtor’s voting capital stock (other than by the sale in a public offering or to venture capital investors);
provided that
, if such change in ownership consists of an acquisition by an entity with a net
worth of $250,000,000 or greater, Secured Party’s consent to such change in ownership shall not be required. In the event that Secured Party fails to consent to a proposed change in ownership for which its consent is required, then Debtor may
prepay the Indebtedness, either prior to or simultaneously with the closing of the change in ownership event, upon payment of (i) all accrued and unpaid interest and the outstanding principal balance of the Notes and (ii) an amount equal
to three percent (3%) of the outstanding principal balance of the Notes on the date of prepayment; or
(xv) if Debtor
is a publicly held corporation, there shall be a change in the ownership of Borrower’s stock such that Borrower is no longer subject to the reporting requirements of the Securities Exchange Act of 1934 or no longer has a class of equity
securities registered under Section 12 of the Securities Act of 1933; or
(xvi) if Debtor defaults under any other
financing arrangement between Debtor and a third party and third party has accelerated the debt in accordance with its terms (other than a default where the aggregate financing arrangement with a third party amounts to less than $75k); or
(b) Upon an Event of Default, Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable,
without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the lower of eighteen percent (18%) per annum or the maximum rate
not prohibited by applicable law.
(c) After default, Secured Party shall have all of the rights and remedies of a Secured Party under the
Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral
to make payment to the Secured Party, (ii) with or without legal process, enter any premises where the Collateral may be and take possession of and remove the Collateral from the premises or store it on the premises, (iii) sell the
Collateral at public or private sale, in whole or in part, and have the right to bid and purchase at said sale, or (iv) lease or otherwise dispose of all or part of the Collateral, applying proceeds from such disposition to the obligations then
in default. If requested by Secured Party, Debtor shall promptly assemble the Collateral and make it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Secured Party may also
render any or all of the Collateral unusable at the Debtor’s premises and may dispose of such Collateral on such premises without liability for rent or costs. Any notice that Secured Party is required to give to Debtor under the Uniform
Commercial Code of the time and place of any public sale or the time after which any private sale or other intended disposition of the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known
address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition shall be
applied: first, to all costs of repossession, storage, and disposition including without limitation reasonable attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in default; third, to discharge
any other Indebtedness of Debtor to Secured Party, whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in paying or settling liens and claims against the Collateral; and lastly, to Debtor, if there exists any
surplus. Debtor shall remain fully liable for any deficiency.
(e) Debtor agrees to pay all reasonable attorneys’ fees and other costs
incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Debtor further agrees
that such fees and costs shall constitute Indebtedness.
(f) Secured Party’s rights and remedies under this Agreement or otherwise
arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single
or partial exercise of any right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER
AGREEMENT, INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any right or remedy on any future occasion.
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Master Loan And Security Agreement
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No. 2081009
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(g) DEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED
TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS
WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(a) This Agreement, any Note and/or
any of the other Debt Documents may be assigned, in whole or in part, by Secured Party without notice to Debtor, and Debtor agrees not to assert against any such assignee, or assignee’s assigns, any defense, set-off, recoupment claim or
counterclaim which Debtor has or may at any time have against Secured Party for any reason whatsoever. Debtor agrees that if Debtor receives written notice of an assignment from Secured Party, Debtor will pay all amounts payable under any assigned
Debt Documents to such assignee or as instructed by Secured Party. Debtor also agrees to confirm in writing receipt of the notice of assignment as may be reasonably requested by Secured Party or assignee.
(b) All notices to be given in connection with this Agreement shall be in writing (with the exception of oral notice as provided for in
Section 7(a)(i)), shall be addressed to the parties at their respective addresses set forth in this Agreement (unless and until a different address may be specified in a written notice to the other party), and shall be deemed given (i) on
the date of receipt if delivered in hand or by facsimile transmission, (ii) on the next business day after being sent by express mail, (iii) on the fourth business day after being sent by regular, registered or certified mail, and
(iv) on the date the telephone call is made by Secured Party if delivered by oral notice in connection with Section 7(a)(i). As used herein, the term “business day” shall mean and include any day other than Saturdays, Sundays, or
other days on which commercial banks in New York, New York are required or authorized to be closed.
(c) Secured Party may correct patent
errors and fill in all blanks in this Agreement or in any Collateral Schedule consistent with the agreement of the parties.
(d) Time is of
the essence of this Agreement. This Agreement shall be binding, jointly and severally, upon all parties described as the “Debtor” and their respective heirs, executors, representatives, successors and assigns, and shall inure to the
benefit of Secured Party, its successors and assigns.
(e) This Agreement and its Collateral Schedules constitute the entire agreement
between the parties with respect to the subject matter of this Agreement and supersede all prior understandings (whether written, verbal or implied) with respect to such subject matter. THIS AGREEMENT AND ITS COLLATERAL SCHEDULES SHALL NOT BE
CHANGED OR TERMINATED ORALLY OR BY COURSE OF CONDUCT, BUT ONLY BY A WRITING SIGNED BY BOTH PARTIES. Section headings contained in this Agreement have been included for convenience only, and shall not affect the construction or interpretation of this
Agreement.
(f) This Agreement shall continue in full force and effect until all of the Indebtedness has been indefeasibly paid in full to
Secured Party or its assignee. The surrender, upon payment or otherwise, of any Note or any of the other documents evidencing any of the Indebtedness shall not affect the right of Secured Party to retain the Collateral for such other Indebtedness as
may then exist or as it may be reasonably contemplated will exist in the future. This Agreement shall automatically be reinstated if Secured Party is ever required to return or restore the payment of all or any portion of the Indebtedness (all as
though such payment had never been made).
(g) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE COMMONWEALTH OF VIRGINIA (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, REGARDLESS OF THE
LOCATION OF THE EQUIPMENT.
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Master Loan And Security Agreement
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No. 2081009
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IN WITNESS
WHEREOF,
Debtor and Secured Party, intending to be legally bound hereby, have duly executed this Agreement in one or more counterparts, each of which shall be deemed to be an original, as of the day and year first aforesaid.
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SECURED PARTY:
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DEBTOR:
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Oxford Finance Corporation
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Infinity Pharmaceuticals, Inc.
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By:
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/s/ Michael J. Altenburger
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By:
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/s/ Steven H. Holtzman
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Name:
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M. J. Altenburger
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Name:
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Steven H. Holtzman
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Title:
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CFO
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Title:
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President & CEO
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Page 7
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FIRST AMENDMENT TO MASTER LOAN AND SECURITY AGREEMENT NO. 2081009
Dated as of March 31,2006
THIS FIRST
AMENDMENT TO MASTER LOAN AND SECURITY AGREEMENT NO. 2081009 (this “Amendment”) is between Oxford Finance Corporation (together with its successors and assigns, if any, “Secured Party”) and Infinity Pharmaceuticals, Inc.
(“Debtor”). Secured Party has an office at 133 N. Fairfax Street, Alexandria, VA 22314. Debtor is a corporation organized and existing under the laws of the State of Delaware. Debtor’s mailing address and chief place of business is
780 Memorial Drive, Cambridge, MA 02139.
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1.
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TERMS OF EXISTING AGREEMENT.
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The Secured Party and
Debtor are parties to that certain Master Loan and Security Agreement dated October 16, 2002 (the
“Agreement”)
and desire to amend the terms and conditions of the Agreement in accordance with the terms and conditions more
specifically set forth herein. The terms used and defined in this Amendment are used herein with the same meanings ascribed to them in the Agreement except to the extent specifically provided herein. This Amendment is not a novation and, except as
specifically modified by this Amendment, all of the terms and provisions of the Agreement and all previous amendments thereto shall remain unchanged and in full force and effect. To the extent there is a conflict between the provisions of the
Agreement and all previous amendments thereto and the provisions of this Amendment, this Amendment governs.
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2.
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REVISIONS TO EXISTING AGREEMENT.
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(a)
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Section 1 of the Agreement is revised to read as follows:
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Debtor grants to Secured Party, its successors and assigns, a security interest in and against the Collateral (as that term is defined herein). This security interest is given to secure the payment and performance of
all debts, obligations and liabilities of any kind whatsoever of Debtor to Secured Party, now existing or arising in the future, under the Debt Documents including but not limited to the payment and performance of certain Promissory Notes from time
to time executed by Debtor (collectively “Notes” and each a “Note”) and any renewals, extensions and modifications of such debts, obligations and liabilities (such Notes, debts, obligations and liabilities are called the
“Indebtedness”).
If Debtor shall at any time acquire a commercial tort claim, as defined in the Code,
having a reasonable expected value in excess of $250,000 Debtor shall immediately notify Secured Party in writing signed by Debtor of the brief details thereof and, to the extent requested by the Secured Party, grant to Secured Party in such writing
a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to Secured Party.
Secured Party represents that, as long as the Scenario A conditions described in the Term Sheet dated December 9, 2005 between the
Secured Party and the Debtor have been met, the Secured Party will make available to the Debtor an additional Two Million Five Hundred Thousand Dollars ($2,500,000) to be drawn by the Debtor anytime up to and including June 30, 2006.
Notwithstanding anything to the contrary contained herein or in any other Debt Document, the Debtor may prepay in full, but
not in part, its entire Indebtedness under any Note by payment of the entire Indebtedness on such Note plus an additional sum as a premium equal to the following percentages of the remaining principal balance on such Note for the indicated period:
(i) from the date of the Note until the first annual anniversary date of such Note: four percent (4%); (ii) from the first annual anniversary date of the Note until the second annual anniversary date of such Note: three percent (3%);
(iii) from the second annual anniversary date of the Note until the third annual anniversary date of such Note: two percent (2%); (iv) from the third annual anniversary date of the Note until the Indebtedness is paid in full: no premium
(0%).
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(b)
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Section 2(k) of the Agreement is hereby amended by deleting it in its entirety and replacing it with the following:
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(k)
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Encumbrances
. The Collateral is, and will remain, free and clear of all liens, claims and encumbrances of any kind whatsoever, except for Permitted Liens;
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(c)
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The following new provisions shall be added at the end of Section 2 of the Agreement to read as follows:
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(r)
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Debtor will protect, defend and maintain the validity and enforceability of the Intellectual Property necessary for the operation of its business.
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(s)
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Transactions with Affiliates
. Debtor shall not, without the prior written consent of Secured Party, directly or indirectly enter into or permit to exist any material
transaction with any Affiliate of Debtor except for transactions that are on fair and reasonable terms and no less favorable to Debtor than would be obtained in an arm’s length transaction with a nonaffiliated Person.
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(t)
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Audits
. Unless an Event of Default has occurred and is continuing. Debtor shall allow Secured Party to audit Debtor’s Collateral no more often than every six
(6) months and shall reimburse Secured Party for up to Seven Thousand Five Hundred Dollars ($7,500) a year in audit expenses. Upon the occurrence and continuation of an Event of Default, the Secured Party will have the right to audit
Debtor’s Collateral at any time at Debtor’s expense.
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(d)
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The following new provisions shall be added at the end of Section 3 of the Agreement to read as follows:
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(h)
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Receivables
. As to each and every Receivable, the Debtor has full right and power to grant the Secured Party a security interest therein and the security interest granted in
such Receivable to the Secured Party in this Agreement, when perfected, will be a valid first security interest, subject to Permitted Liens, which will inure to the benefit of the Secured Party without further action. Upon the written request of
Secured Party, deliver to the Secured Party at the end of any fiscal quarter schedules of all outstanding Receivables. Such schedules shall be in form reasonably satisfactory to the Secured Party and shall show the age of such Receivables in
intervals of not more than thirty (30) days. The items to be provided under this Section are to be prepared and delivered to the Secured Party from time to time solely for its convenience in maintaining records of the Collateral and the
Debtor’s failure to give any of such items to the Secured Party shall not affect, terminate, modify or otherwise limit the Secured Party’s security interest granted herein.
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(i)
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Change of Address
. All of the Collateral is located in and will in the future be in the possession of the Debtor at its address stated above or at such other addresses as may
be set forth on the attached Schedule A or of which Debtor has notified Secured Party as provided herein. The Debtor has not at any time within the past four (4) months either (a) maintained Inventory or Equipment or (b) maintained
its chief executive office or its records with respect to the Receivables at any other location and shall not do so hereafter except with the prior written consent of the Secured Party. The Secured Party shall be entitled to rely upon the foregoing
unless it receives 14 days’ advance written notice of a change in the address of the Debtor’s executive offices or location of the Collateral.
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(j)
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Fixtures
. Not permit any item of the Equipment to become a fixture to real estate or an accession to other property (other than existing fixtures and items that are leasehold
improvements) without the prior written consent of the Secured Party, and except for any Equipment that is subject to a Permitted Lien or which has become a fixture or accession to other property as of the effectiveness of the Amendment (such
equipment referred to as the “Excepted Equipment”), the Equipment is now and shall at all times remain personal property except with the Secured Party’s prior written consent. If any of the Equipment (other than the Excepted
Equipment) is or will be attached to real estate in such a manner as to become a fixture under applicable state law and if such real estate is encumbered, the Debtor will request from the holder of each Lien or encumbrance a written consent and
subordination to the security interest hereby granted, or a written disclaimer of any interest in the Collateral, in a form acceptable to the Secured Party.
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(k)
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Chattel Paper
. Promptly, upon request by the Secured Party, deliver, assign, and endorse to the Secured Party all chattel paper and all other documents held by the Debtor in
connection therewith.
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(1)
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Claims and Disputes
. Immediately upon learning thereof, report to the Secured Party any reclamation, return or repossession of goods, any claim or dispute asserted by any
Account Debtor or other obligor in amounts in excess of $ 100,000, and any other matter affecting the value and enforceability or collectability of any of the Collateral. In addition, the Debtor shall, at its sole cost and expense (including
attorneys’ fees), but subject to the exercise of Debtor’s reasonable business judgment, litigate or settle any and all such claims and disputes and indemnify and protect the Secured Party against any liability, loss or expense arising
therefrom or out of any such reclamation, return or repossession of goods.
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(m)
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Filing and Perfection of Claims
. At the request of the Secured Party, take the necessary or appropriate steps to file and perfect, at the Debtor’s expense, any lien,
judgment, claim or lawsuit that may be available to the Debtor under the laws of the applicable jurisdiction in the event that any Receivable is not paid within sixty (60) days of its due date.
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(n)
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Domain Name
. The Debtor, in the exercise of its reasonable business judgment, shall (i) maintain the trademark of the domain name by defending against
any infringement suits and by policing the trademark; (ii) renew the domain
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name registration during the loan term; and (iii) make all payments to the domain name registrar necessary to maintain the domain name
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(o)
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Distributions
. Debtor shall not (i) pay any dividends or make any distributions on its equity securities; (ii) purchase, redeem, retire, defease or otherwise acquire for
value any of its equity securities (other than repurchases in an aggregate amount not to exceed Five Hundred Thousand Dollars ($500,000)); (iii) return any capital to any holder of its equity securities as such; (iv) make any distribution of
assets, equity securities, obligations or securities to any holder of its equity securities as such; or (v) set apart any sum for any such purpose;
provided
,
however
, Debtor may pay dividends or make distributions on its equity
securities payable solely in common stock.
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(p)
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Indebtedness Payments
. Debtor shall not (i) prepay, redeem, purchase, defease or otherwise satisfy in any manner prior to the scheduled repayment thereof any
Subordinated Indebtedness for borrowed money or lease obligations without the consent of the Secured Party, such consent not to be unreasonably withheld; (ii) prepay, redeem, purchase, defease or otherwise satisfy in any manner prior to the
scheduled repayment thereof any Additional Indebtedness (exclusive of Subordinated Indebtedness which is governed by clause (i) above) for borrowed money or lease obligations (each a
“Prepayment”
and together the
“Prepayments”)
in an aggregate amount in excess of Ten Million Dollars ($10,000,000) within any six (6) month period without also prepaying a Ratable Portion (as defined below) to the Secured Party; or (iii) amend, modify
or otherwise change the terms of any Additional Indebtedness for borrowed money or lease obligations so as to accelerate the scheduled repayment thereof in violation of clauses (i) and (ii) above. For the avoidance of doubt, Debtor shall
be permitted to make regularly scheduled or regularly required payment, repayment or redemptions of Permitted Indebtedness.
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For purposes of this Section 3(p),
“Ratable Portion”
means an amount equal to the product of (A) the amount of Indebtedness owed to the Secured Party at the time multiplied by (B) a fraction, the numerator of
which is the dollar amount of all Prepayments made within that six (6) month period in excess of Ten Million Dollars ($10,000,000) and the denominator of which is the sum of (i) all outstanding Additional Indebtedness (other than
Subordinated Indebtedness) and (ii) the Indebtedness owed to the Secured Party.
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(q)
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Additional Indebtedness
. Debtor shall not create, incur, assume or permit to exist any Additional Indebtedness except Permitted Indebtedness.
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(r)
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Negative Pledge Regarding Intellectual Property
. Debtor shall not sell, transfer, assign, mortgage, pledge, lease, grant a security interest in, or encumber any of its
Intellectual Property, or enter after the date of this Amendment into any agreement, document, instrument or other arrangement (except with or in favor of Secured Party or in connection with Additional Indebtedness described in clauses (d) or
(f) of Permitted Indebtedness) with any entity which directly or indirectly prohibits or has the effect of prohibiting Debtor from selling, transferring, assigning, mortgaging, pledging, leasing, granting a security interest in or upon, or
encumbering any of Debtor’s Intellectual Property; provided, however, that Debtor may (a) grant licenses with respect to its Intellectual Property in connection with joint ventures, corporate collaborations, financing of intellectual
Property projects or in the ordinary course of business or (b) assign or otherwise transfer its Intellectual Property pursuant to agreements that the Debtor reasonably believes are in, or are not opposed to, the best interest of the Debtor,
provided further that, Debtor may request that this covenant be waived in light of compelling special circumstances which require the pledge of any Intellectual Property to another creditor
and Secured Party shall not unreasonably withhold its consent to such request.
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(s)
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Account Control Agreements
. Debtor shall at all times after the first 60 days following the date of this Amendment maintain all Cash Equivalents owned by Debtor on deposit in
a Deposit Account or Accounts at a third party institution (a
“Third Party Institution”)
covered by an account control agreement in favor of Secured Party (the terms of which shall be reasonably acceptable to Secured Party). At any
time that the Cash Equivalents or any portion thereof are held in an account or accounts in one or more Third Party Institutions, the related account control agreement shall provide that Secured Party is to receive monthly account statements,
evidencing that the Cash Equivalents are maintained in the related account. With respect to each such Deposit Account, Debtor, Secured Party, and each Third Party Institution with which a Deposit Account is maintained, shall enter into a written
agreement, granting Secured party control of the Deposit Account and providing that the Third Party Institution will comply with instructions originated by the Secured Party directing disposition of the funds in the Deposit Account without further
consent by Debtor. Such account control agreement may in accordance with the provisions thereof provide terms under which Debtor may remove funds from the Deposit Account; provided all funds in or transferred into the Deposit Account on or after the
effectiveness of this Agreement shall be subject to the security interest granted under this Agreement.
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(t)
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Instructions for the primary operating account are as follows:
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Silicon Valley Bank
3003 Tasman Drive
Santa Clara, CA 95054
ABA No.: 121140399
Account No.: 3300323007
Account Name: Operating Account
Debtor hereby agrees that Loans will be advanced to the account specified above and regularly scheduled payments will be automatically debited from the same account. In addition to the primary operating account identified hereinabove,
Debtor maintains the following other deposit and investment accounts:
3003 Tasman Drive
Santa Clara, CA 95054
ABA No.: 121140399
Account No.: 3300322942
Account Name: Accounts Payable
3003 Tasman Drive
Santa Clara, CA 95054
ABA No.: 121140399
Account No.: 3300339939
Account Name: Flex Spend
3003 Tasman Drive
Santa Clara, CA 95054
ABA No.: 121140399
Account No.: 486-01722-14 RR ZGQ
Account Name: Restricted Cash
3003 Tasman Drive
Santa Clara, CA 95054
ABA No.: 121140399
Account No.: 486-00901-19 RR ZGQ
Account Name: Investment Account
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5.
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State Street Bank and Trust Company
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Fiduciary Investor Services
225 Franklin Street
Boston, MA 02110
ABA No.: 11000028
Account No.: DE1670
Account Name: Investment Account
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(u)
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Right to Invest
. Debtor hereby grants to Secured Party a right (but not an obligation) to invest up to $750,000.00 in Debtor’s Subsequent Financings on the same economic
terms conditions and pricing offered to other investors generally in such financing. Debtor shall endeavor to give Secured Party at least thirty (30) days prior written notice of such Subsequent Financing containing the terms, conditions and
pricing of such Subsequent Financing. As used herein,
“Subsequent Financing”
shall mean the next round of private equity financing.
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(e)
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Section 4(b) of the Agreement is hereby amended by deleting it in its entirety and replacing it with the following:
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(b)
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Insurance Requirements
. Debtor agrees to maintain general liability insurance and to keep the Collateral insured against loss or damage by fire and extended
coverage perils, theft, burglary, risk of loss by collision (for any or all Collateral which are vehicles) and such other risks as Secured Party may reasonably require. The liability insurance coverage shall be in an amount standard for companies
similar to Debtor in Debtor’s industry in Debtor’s geographic region. The property insurance coverage shall be in an amount no less than the full replacement value of the Collateral. All insurance policies shall be in a form, with
companies and with deductible amounts, reasonably
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acceptable to Secured Party. Debtor shall, upon request, deliver to Secured Party copies of policies or certificates of insurance evidencing such coverage.
Each policy shall name Secured Party as a loss payee and an additional insured, shall provide for coverage to Secured Party regardless of the breach by Debtor of any warranty or representation made therein, shall not be subject to co-insurance, and
shall provide that coverage may not be canceled or altered by the insurer except upon thirty (30) days prior written notice (10 days for non-payment) to Secured Party (the insurance coverage set forth in the Insurance Certificates provided by
Debtor to Secured Party shall be deemed acceptable). Debtor appoints Secured Party as its attomey-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to receive payment of and execute or endorse all documents,
checks or drafts in connection with insurance payments. Secured Party shall not act as Debtor’s attorney-in-fact unless an Event of Default exists. Proceeds of insurance with a value in excess of Two Million Five Hundred Thousand ($2,500,000)
shall be applied, at the option of the Secured Party, to repair or replace the Collateral or to reduce any of the Indebtedness.
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(f)
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Section 5(b) of the Agreement is hereby amended by deleting it in its entirety and replacing it with the following:
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(b)
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Debtor will deliver to Secured Party within ninety (120) days of the close of each fiscal year of Debtor, Debtor’s complete financial statements including a balance sheet,
income statement, statement of shareholders’ equity and statement of cash flows, each prepared in accordance with generally accepted accounting principles consistently applied, certified by a recognized firm of certified public accountants
satisfactory to Secured Party. Debtor will deliver to Secured Party copies of Debtor’s quarterly financial statements including a balance sheet, income statement and statement of cash flows, each prepared by Debtor in accordance with generally
accepted accounting principles consistently applied subject to year end audit adjustments and footnotes by Debtor and certified by Debtor’s chief financial officer or controller, within ninety (120) days after the close of each of
Debtor’s fiscal quarter. Debtor will deliver to Secured Party copies of Debtor’s monthly financial statements including a company prepared balance sheet, income statement and cash flow statement covering Borrower’s operations during
such period, each prepared by Debtor and certified by Debtor’s chief financial officer or controller, within forty- five (45) days after the close of each month, subject to year end audit adjustments and footnotes. Debtor will deliver to
Secured Party copies of all Forms 10-K and 10-Q, if any, within 30 days after the dates on which they are filed with the Securities and Exchange Commission, unless they are publicly available over the internet. Concurrently with delivery of the
foregoing information, and from time to time promptly upon request of Secured Party, Debtor will deliver to Secured Party a Compliance Certificate substantially consistent with the form of the document attached hereto as Schedule C. Debtor will
deliver to Secured Party within a reasonable time, in form satisfactory to Secured Party, such other and additional information as Secured Party may reasonably request from time to time.
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(g)
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Section 7(a)(xiv) of the Agreement is hereby amended by adding in the second line after the word “investors” and before the following language “or other than a
merger, acquisition or other consolidation in which the stockholders of the Debtor immediately prior to such transaction own, immediately after the transaction, more than 50% of the voting capital stock of the surviving or successor entity.”
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(h)
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Section 7(a)(xvi) of the Agreement is hereby amended by deleting “$75K” in the second line thereof and replacing it with “Two Hundred Fifty Thousand Dollars
($250,000).”
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(i)
|
The following new provisions shall be added at the end of Section 7(a) of the Agreement to read as follows:
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(xvii)
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There is a material adverse change in the Debtor’s financial condition as determined by Secured Party in its reasonable judgment.
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(xviii)
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The Debtor is in breach of Section 3(s) of this Agreement.
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(j)
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The following new provisions shall be added at the end of Section 8 of the Agreement to read as follows:
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(h)
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Limitation of Liability
. The Secured Party shall not, under any circumstances, be liable for any error or omission or delay of any kind occurring in the settlement,
collection or payment of any Receivables or any instrument received in payment thereof or for any damage resulting therefrom, unless such error, omission or delay is caused by its own negligence or misconduct. Upon the occurrence during the
continuation of an Event of Default, the Secured Party is authorized to accept the return of the goods represented by any of the Receivables, without notice to or consent by the Debtor.
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(i)
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Notification to Account Debtors
. Upon the occurrence and during the continuation of an Event of Default, the Secured Party shall have the right at any time
to notify any Account Debtor of the Secured Party’s security interest in the Receivables and to require payments to be made directly to the Secured Party. Furthermore, in the event the Debtor’s Receivables have exceeded One Million Dollars
($1,000,000) at the end of each month for the preceding
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three (3) months, to facilitate direct collection, the Debtor hereby appoints the Secured Party and any officer or employee of the Secured Party, as the
Secured Party may from time to time designate, as attomey-in-fact for the Debtor to, while an Event of Default continues (a) if the Debtor maintains post office boxes for the sole purpose of collecting Receivables, take over those post office
boxes, or make such other arrangements, in which the Debtor shall cooperate, to receive the Debtor’s mail addressed to those post office boxes, including notifying the post office authorities to change the address for delivery of mail addressed
to those post office boxes of the Debtor to such address as the Secured Party shall designate; (b) receive, open and dispose of any mail addressed to the Debtor and sent to such post office boxes and take therefrom any payments on or proceeds
of Receivables (c) endorse the name of the Debtor in favor of the Secured Party upon any and all checks, drafts, money orders, notes, acceptances or other evidences of payment or Collateral that may come into the Secured Party’s
possession; (d) sign and endorse the name of the Debtor on any invoice or bill of lading relating to any of the Receivables, on verifications of Receivables sent to any Account Debtor, to drafts against any Account Debtor, to assignments of
Receivables, and to notices to any Account Debtor; and (e) do all acts and things necessary to carry out this Agreement and the transactions contemplated hereby, including signing the name of the Debtor on any instruments required by law in
connection with the transactions contemplated hereby and on financing statements as permitted by the Virginia Uniform Commercial Code. This power, being coupled with an interest, is irrevocable so long as the Loan remains unsatisfied, or any Loan
Document remains effective, as solely determined by the Secured Party.
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(j)
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Loss, Depreciation or Other Damage
. The Secured Party shall not be liable for or prejudiced by any loss, depreciation or other damage to Receivables or other Collateral
unless caused by the Secured Party’s willful and malicious act, and the Secured Party shall have no duty to take any action to preserve or collect any Receivable or other Collateral.
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(k)
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New Section 9 is added after Section 8 of the Agreement to read as follows:
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As used herein, the following terms,
when initial capital letters are used, shall have the respective meanings set forth below. In addition, all terms defined in the Virginia Uniform Commercial Code (including revised Article 9 thereof) shall have the meanings given therein unless
otherwise defined herein.
Defined Terms. As used in this Agreement, the following terms shall have the following meanings, unless the
context otherwise requires:
“Account Debtor”
shall mean the account debtor or any customer of the Debtor who is obligated
or indebted to the Debtor with respect to any of the Receivables and/or the prospective purchaser with respect to any contract right, and/or any party or organization who enters into or proposes to enter into any contract or other arrangement with
the Debtor pursuant to which the Debtor is to deliver any personal property or perform any service.
“Additional Indebtedness”
means, with respect to Debtor or any of its subsidiaries, the aggregate amount of, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade payables aged less than one hundred eighty (180) days), (d) all capital lease obligations of
such Person, (e) all obligations or liabilities of others secured by a Lien on any asset of such Person, whether or not such obligation or liability is assumed, (f) all obligations or liabilities of others guaranteed by such Person, and
(g) any other obligations or liabilities which are required by GAAP to be shown as debt on the balance sheet of such Person. Unless otherwise indicated, the term
“Additional Indebtedness”
shall include all Indebtedness of
Debtor and all of its subsidiaries.
“Affiliate”
of a Person is a Person that owns or controls directly or indirectly the
Person, any Person that controls or is controlled by or is under common control with the Person, and each of that Person’s senior executive officers, directors, partners and, for any Person that is a limited liability company, that
Person’s managers and members.
“Cash Equivalents”
means the sum outstanding, at any one time, of (i) all cash
(in United States dollars) owned by Debtor at such time plus (ii) the fair market value of all cash equivalents and short term investments (as those terms are defined by GAAP) owned by Debtor at such time.
“Code”
means the Virginia Uniform Commercial Code (including revised Article 9 thereof).
“Collateral”
shall mean all personal property and fixtures of the Debtor, including, but not limited to all of the Receivables,
Payments, accounts, the Deposit Account or Accounts, contract rights, instruments, documents, chattel paper (including tangible and electronic chattel paper), payment intangibles, commercial tort claims, health-care-insurance receivables,
instruments, investment property, supporting obligations and general intangibles now owned or hereafter acquired by the Debtor and all
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goods, equipment, general intangibles and property of the Debtor described below which is now owned or hereafter acquired by the Debtor, wherever located;
all deposit accounts (including all signature cards, account agreements and other documents relating to deposit accounts) and other obligations or indebtedness owed to the Debtor from whatever source arising; letter of credit rights; all rights of
the Debtor to receive any payment in money or kind; all Inventory; all Equipment; all of the Debtor’s rights as an unpaid seller, including stoppage in transit, detinue and reclamation; all guarantees, or other agreements or property securing
or relating to any of the items referred to above, or acquired for the purpose of securing and enforcing any of such items; all books of account and documents related thereto; to the extent allowed by law, all customer lists and other documents
containing the names, addresses and other information regarding the Debtor’s customers, subscribers or those to whom the Debtor provides any services; computer tapes, programs, discs and other material, media or documents relating to the
recording, billing or analyzing of any of the above; all computers, word processors, printers, switches, interfaces, web servers, website service contracts, internet connection contract or line lease, website hosting service contract, website
license agreements, contracts with website advertisers, scripts, codes or Active-X controls, technology escrow agreements, website content development agreements, all parts, accessories, additions, substitutions, or options together with all
property or equipment used in connection with any of the above or which are used to operate or cause to operate any features, special applications, format controls, options or software of any or all of the above-mentioned items; whether now owned or
existing or hereafter acquired or arising, contractual rights, all amounts received as an award in or settlement of a suit in damages, proceeds of loans, interests in joint ventures or general or limited partnerships, the sale by the Debtor of any
of the foregoing and all proceeds (cash and non-cash) of the foregoing; proceeds of property received wholly or partly in trade or exchange for the Collateral and all rents, revenues, issues, profits and proceeds in any form, including cash,
insurance proceeds, distributions on stock, negotiable instruments and other evidences of indebtedness, chattel paper, security agreements and other documents arising from the sale, lease, license, encumbrance, collection of, or any other temporary
or permanent disposition of, the Collateral or any interest therein. Notwithstanding the foregoing, the term Collateral shall not include (i) Intellectual Property, as hereinafter defined, (ii) assets which are subject to liens described
in clauses (d), (f), (g) and (j) of the definition of Permitted Liens, (iii) any interests in joint ventures, corporate collaborations, financings of Intellectual Property projects and licenses granted in the ordinary course of
business or (iv) contracts which by their terms do not permit or would be violated by the grant of a lien or security interest in them (the
“Excluded Property”).
The Debtor acknowledges and agrees that, in applying the law of
any jurisdiction that at any time enacts all or substantially all of the uniform provisions of Revised Article 9 of the Uniform Commercial Code (1999 Official Text), the foregoing collateral description covers all assets of the Debtor, with the
exception of Excluded Property. The Secured Party may at any time and from time to time file, pursuant to the provisions of this Agreement, financing and continuation statements and amendments thereto reflecting the same.
“Debt Documents”
has the meaning given such capitalized term in
Section 2(b)
.
“Default Rate”
is the lower of eighteen percent (18%) per annum or the maximum rate not prohibited by applicable law.
“Deposit Account”
means a demand, time, savings, passbook, or similar account maintained with a bank.
“Equipment”
shall mean (a) all goods and equipment of the Debtor of every type and description, now owned and hereafter acquired and
wherever located, including, without limitation, all imbedded software, machinery, motor vehicles and other rolling stock, furniture, furnishings, tools, dies, fittings, accessories, all substitutions therefore, leasehold improvements, fixtures, and
materials and supplies relating to any of the foregoing; (b) all present and future documents of title and trust receipts relating to any of the foregoing; (c) all present and future rights, claims and causes of action of Debtor in
connection with purchases of (or contracts for the purchase of), or warranties relating to, or damages to, goods held or to be held by the Debtor as equipment; (d) all present and future warranties, manuals and other written materials (and
packaging thereof or relating thereto) relating to any of the foregoing; and (e) all present and future general intangibles of the Debtor in any way relating to any of the foregoing.
“Government Accounts”
shall mean all accounts arising out of any Government Contract.
“Government Contract”
shall mean any contract between the Debtor and the United States Government, any state or local government or any
agency thereof, and all amendments thereto.
“Indebtedness”
has the meaning given such capitalized term in
Section 1
.
“Intellectual Property”
shall mean (a) all of the Debtor’s right, title and interest,
whether now owned or existing or hereafter acquired or arising, in and to all domestic and foreign copyrights, copyright registrations and copyright applications, whether or not registered or filed with any governmental authority, together with
(i) all renewals thereof, (ii) all present and future rights of the Debtor under all present and future license agreements relating thereto, whether the Debtor is licensee or licensor thereunder, (iii) all income, royalties, damages
and payments now or hereafter due and/or payable to the Debtor thereunder or with respect thereto, including, without limitation, damages and payments for past, present or future infringements thereof, (iv) all of the Debtor’s present and
future claims, causes of action and rights to sue for past, present or future infringements
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thereof, and (v) all rights corresponding thereto throughout the world (collectively “
Copyright Rights
”); (b) all of the
Debtor’s right, title and interest, whether now owned or existing or hereafter acquired or arising, in and to all United States and foreign patents, and pending and abandoned United States and foreign patent applications, including, without
limitation, the inventions and improvements described or claimed therein, together with (i) any reissues, divisions, continuations, certificates of re-examination, extensions and continuations-in-part thereof, (ii) all present and future rights
of the Debtor under all present and future license agreements relating thereto, whether the Debtor is licensee or licensor thereunder, (iii) all income, royalties, damages and payments now or hereafter due and/or payable to the Debtor
thereunder or with respect thereto, including, without limitation, damages and payments for past, present or future infringements thereof, (iv) all of the Debtor’s present and future claims, causes of action and rights to sue for past,
present or future infringements thereof, and (v) all rights corresponding thereto throughout the world (collectively “
Patent Rights
”); (c) all of the Debtor’s right, title and interest, whether now owned or existing
or hereafter acquired or arising, in and to all domestic and foreign trademarks, trademark registrations, trademark applications and trade names, whether or not registered or filed with any governmental authority, together with (i) all renewals
thereof, (ii) all present and future rights of the Debtor under all present and future license agreements relating thereto, whether the Debtor is licensee or licensor thereunder, (iii) all income, royalties, damages and payments now or
hereafter due and/or payable to the Debtor thereunder or with respect thereto, including, without limitation, damages and payments for past, present or future infringements thereof, (iv) all of the Debtor’s present and future claims,
causes of action and rights to sue for past, present or future infringements thereof, and (v) all rights corresponding thereto throughout the world and all goodwill related to the foregoing (collectively “
Trademark Rights
”);
(d) all present and future licenses and license agreements of the Debtor, and all rights of the Debtor under or in connection therewith, whether the Debtor is licensee or licensor thereunder, including, without limitation, any present or future
franchise agreements under which the Debtor is franchisee or franchisor, together with (i) all renewals thereof, (ii) all income, royalties, damages and payments now or hereafter due and/or payable to the Debtor thereunder or with respect
thereto, including, without limitation, damages and payments for past, present or future infringements thereof, (iii) all claims, causes of action and rights to sue for past, present or future infringements thereof, and (iv) all rights
corresponding thereto throughout the world (collectively “
License Rights
”); (e) all present and future trade secrets of the Debtor; and (f) all other present and future intellectual property of the Debtor.
“Inventory”
shall mean and include (a) all goods now owned or hereafter acquired by the Debtor, which are held for sale or lease by
the Debtor or are furnished or to be furnished by the Debtor under contracts of service, (b) all raw materials, work in process, finished goods, packaging materials, and other materials and supplies of every kind used or consumed in connection
with the manufacture, production, packing, shipping, advertising or sale of such goods, (c) all proceeds and products from the sale or other disposition of such goods, including all goods returned, repossessed, or acquired by the Debtor by way
of substitution or replacement, and all additions and accessions thereto, and all documents and instruments (as those terms are defined in the Uniform Commercial Code) covering such goods; (d) all the Debtor’s rights as an unpaid seller,
including stoppage in transit, detinue and reclamation; and (e) all of the above owned by the Debtor or in which the Debtor now has or in which the Debtor may hereafter acquire an interest, whether in transit or in the Debtor’s
constructive or actual possession or held by the Debtor or others for the Debtor’s account (including any of the above held on consignment), including, without limitation, all of the above which may be located on the Debtor’s premises or
upon the premises of any carriers, forwarding agents, truckers, warehousemen, vendors, selling agents, finishers, converters or other third parties who may have possession, temporary or otherwise, thereof.
“Lien(s)”
shall mean any voluntary or involuntary mortgage, pledge, deed of trust, assignment, security interest, encumbrance,
hypothecation, lien, or charge of any kind (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any
financing statement under the Uniform Commercial Code or comparable law of any jurisdiction).
“Loan”
means an advance of
credit by Secured Party to Debtor.
“Note”
has the meaning given such capitalized term in
Section 1
.
“Payment”
or
“Payments”
shall mean any check, draft, cash or any other remittance or credit in payment or on account of any or all of the Receivables and the cash proceeds of any returned, rejected or
repossessed goods, the sale or lease of which gave rise to a Receivable.
“Permitted Indebtedness”
means and includes:
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a)
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Indebtedness of Debtor to Secured Party;
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b)
|
Additional Indebtedness arising from the endorsement of instruments in the ordinary course of business;
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c)
|
Additional Indebtedness existing on the date hereof and set forth in
Schedule B
and any refinancings, refundings, renewals or extensions thereof;
provided
that
the amount of such Additional Indebtedness is not increased at the time
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of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such
refinancing, refunding, renewal or extension;
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d)
|
Additional Indebtedness incurred pursuant to a secured loan arrangement to be entered into between the Debtor and Horizon Technology Funding Company LLC (or its designee) and any
refinancings, refundings, renewals or extensions thereof;
provided
that
the amount of such Additional Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with
respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension;
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e)
|
Additional Indebtedness secured by Liens permitted under clause (j) of the definition of Permitted Liens;
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f)
|
Additional Indebtedness incurred in connection with any license, joint venture, partnership, corporate collaboration or project financing in the ordinary course of business
involving the Debtor’s Intellectual Property;
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g)
|
Additional Indebtedness with a maturity not to exceed six (6) months;
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h)
|
Additional Indebtedness owed from the Company to any Subsidiary;
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i)
|
Additional Indebtedness existing in the books of any entity acquired by the Debtor in a transaction permitted under this Agreement together with any Additional Indebtedness incurred
for the purpose of refinancing such existing Additional Indebtedness; provided that such Additional Indebtedness is in existence on the date of such acquisition and is not created in anticipation thereof;
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j)
|
Additional Indebtedness consisting of trade debt incurred in the ordinary course of business and guarantees by the Debtor of any Subsidiary indebtedness not otherwise prohibited
hereunder;
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k)
|
Additional Indebtedness incurred in the ordinary course of business consisting of obligations from any interest rate, interest rate cap or collar, currency or currency swap or other
agreements or arrangement designed to protect the Debtor against fluctuations in interest rates or currency exchange rates;
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l)
|
Subordinated Indebtedness;
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m)
|
Other Additional Indebtedness aggregating not in excess of One Million Dollars ($1,000,000).
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“Permitted Liens”
means:
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a)
|
liens in favor of Secured Party;
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b)
|
liens for taxes not yet due or for taxes being contested in good faith for which adequate reserves have been established and which do not involve, any imminent sale, forfeiture or
loss of any of the Collateral;
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c)
|
inchoate material men’s, mechanic’s, repairmen’s and similar liens arising by operation of law in the normal course of business for amounts which are not delinquent;
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d)
|
Liens existing on the date hereof and set forth in
Schedule C
and any refinancings, renewals or extensions thereof,
provided
that
the property covered thereby
is not changed and the amount secured or benefited thereby is not increased except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, renewals
or extensions;
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e)
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pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any
Liens imposed by ERISA;
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f)
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Liens on assets of any entity acquired by the Debtor or any of its Subsidiaries in a transaction permitted under this Agreement; provided that such Liens are in existence on the
date of such acquisition and are not created in anticipation thereof;
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g)
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Liens securing Additional Indebtedness permitted under clauses (d), (f), (g) and (k) of the definition of Permitted Indebtedness;
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h)
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any interest or title of a lessor under any lease entered into by the Borrower or any other subsidiary in the ordinary course of its business and covering only the assets so leased;
and
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i)
|
Liens consisting of statutory or contractual liens in favor of banks or institutions holding, providing or issuing Borrower’s deposit accounts and certificates of deposits,
easements affecting real property, and Liens in the nature of performance bonds or security deposits arising in the ordinary course of business;
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j)
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Liens upon any Equipment and proceeds, leasehold improvements and soft costs acquired by Debtor after the date hereof to secure (i) the purchase price (including the refunding
to the Debtor of the purchase price) of such equipment or other personal property, or (ii) lease obligations or indebtedness incurred solely for the purpose of financing such Equipment and proceeds, leasehold improvements and soft costs;
provided that
(A) such Liens are confined solely to the Equipment so financed, leasehold improvements, soft costs and proceeds thereof and the amount secured does not exceed the price thereof, and (B) no such Lien shall be created,
incurred, assumed or suffered to exist in favor of Debtor’s officers, directors or shareholders holding five percent (5%) or more of Debtor’s equity securities.
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“
Person
” is any individual, sole proprietorship, partnership, limited liability company, joint venture, company association,
trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.
“Prepayment”
shall mean to prepay, redeem, purchase, defease or otherwise satisfy in any manner prior to the scheduled repayment thereof any Additional Indebtedness (exclusive of Subordinated
Indebtedness) for borrowed money or lease obligations.
“Ratable Portion”
shall mean an amount equal to the product of
(A) the amount of Indebtedness owed to the Secured Party at the time multiplied by (B) a fraction, the numerator of which is the dollar amount of all Prepayments made within that six (6) month period in excess of Ten Million Dollars
($10,000,000) and the denominator of which is the sum of (i) all outstanding Additional Indebtedness (other than Subordinated Indebtedness) and (ii) the Indebtedness owed to the Secured Party.
“Receivables”
shall mean in addition to the definition of account as contained in the Uniform Commercial Code (a) all of the
Debtor’s present and future accounts, contract rights, receivables, promissory notes and other instruments, chattel paper (including tangible and electronic chattel paper), tax refunds, general intangibles (excluding the Intellectual Property)
and all rights to receive the payment of money or other consideration under present or future contracts including, without limitation, all of the Debtor’s rights under each Government Contract and all related Government Accounts now owned or
hereafter acquired by the Debtor; (b) all present and future cash of the Debtor; (c) all present and future judgments, orders, awards and decrees in favor of the Debtor and causes of action in favor of the Debtor; (d) all present and
future contingent and noncontingent rights of the Debtor to the payment of money for any reason whatsoever, whether arising in contract, tort or otherwise including, without limitation, all rights to receive payments under presently existing or
hereafter acquired or created letters of credit; (e) all present and future claims, rights of indemnification and other rights of the Debtor under or in connection with any contracts or agreements to which the Debtor is or becomes a party or
third party beneficiary; (f) all goods previously or hereafter returned, repossessed or stopped in transit, the sale, lease or other disposition of which contributed to the creation of any account, instrument or chattel paper of the Debtor;
(g) all present and future rights of the Debtor as an unpaid seller of goods, including rights of stoppage in transit, detinue and reclamation; (h) all rights which the Debtor may now or at any time hereafter have, by law or agreement,
against any Account Debtor or other obligor of the Debtor, and all rights, liens and security interests which the Debtor may now or at any time hereafter have, by law or agreement, against any property of any Account Debtor or other obligor of the
Debtor; (i) all invoices and shipping documents; and 0) all present and future interests and rights of the Debtor, including rights to the payment of money, under or in connection with all present and future leases and subleases of real or
personal property to which the Debtor is a party, as lessor, sublessor, lessee or sublessee.
“
Secured Party’s
Expenses
” means all reasonable costs or expenses (including reasonable attorneys’ fees and expenses) incurred in connection with the preparation, negotiation, documentation, administration and funding of the Debt Documents; and
Secured Party’s reasonable attorneys’ fees, costs and expenses incurred in amending, modifying, enforcing or defending the Debt Documents (including fees and expenses of appeal or review), including the exercise of any rights or remedies
afforded hereunder or under applicable law, whether or not suit is brought, whether before or after bankruptcy or insolvency, including without limitation all reasonable fees and costs incurred by Secured Party in connection with Secured
Party’s enforcement of its rights in a bankruptcy or insolvency proceeding filed by or against Debtor or its property.
“
Subordinated Indebtedness
” means Additional Indebtedness subordinated to the Indebtedness of Debtor to Secured Party on terms and conditions acceptable to Secured Party in its sole discretion.
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“
Subsequent Financing
” has the meaning given such capitalized term in
Section 3(u)
.
“
Subsidiary
” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power
only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Debtor.
“
Third Party Institution
” has the meaning given such capitalized term in
Section 3(s)
.
All references in the Agreement to the term “Agreement” shall be deemed to refer to the Agreement, as amended by this Amendment.
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3.
|
REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
|
Debtor represents, warrants and covenants as of the date of this Amendment that:
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(a)
|
Due Organization
. Debtor’s exact legal name is as set forth in the preamble of this Amendment and Debtor is, and will remain (unless Debtor notifies Secured Party in
accordance with Section 5.(a) of the Agreement), duly organized, existing and in good standing under the laws of the State set forth in the preamble of this Amendment, has its chief executive offices at the location specified in the preamble,
and is, and will remain (unless Debtor notifies Secured Party in accordance with Section 5.(a) of the Agreement), duly qualified and licensed in every jurisdiction wherever failure to be so qualified would have a material adverse effect on its
business and operations;
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(b)
|
Power and Capacity to Enter Into and Perform Obligations
. Debtor has adequate power and capacity to enter into, and to perform its obligations under this Amendment, each Note
and any other documents evidencing, or given in connection with, any of the Indebtedness;
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(c)
|
Due Authorization
. This Amendment and the other Debt Documents have been duly authorized, executed and delivered by Debtor and constitute legal, valid and binding agreements
enforceable in accordance with their terms, except to the extent that the enforcement of remedies may be limited under applicable bankruptcy and insolvency laws and other equitable remedies;
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(d)
|
Approvals and Consents
. No approval, consent or withholding of objections is required from any governmental authority or instrumentality with respect to the entry into, or
performance by Debtor of any of the Debt Documents, except any already obtained;
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|
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(e)
|
No Violations or Defaults
. The entry into, and performance by, Debtor of the Debt Documents will not, (i) violate any of the organizational documents of Debtor, or any
judgment, order, law or regulation applicable to Debtor, except where such violation would not reasonably be expected to result in a material adverse effect on the Debtor’s business and operations, or (ii) result in any breach of or
constitute a default under any material contract to which Debtor is a party, or (iii) result in the creation of any lien, claim or encumbrance on any of Debtor’s property (except for liens in favor of Secured Party) pursuant to any
indenture, mortgage, deed of trust, bank loan, credit agreement, or other agreement or instrument to which Debtor is a party;
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(f)
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Litigation
. There are no suits or proceedings pending in court or before any commission, board or other administrative agency against or affecting Debtor which could
reasonably be expected to, in the aggregate, have a material adverse effect on Debtor’s business or operations, or its ability to perform its obligations under the Debt Documents, nor does Debtor have reason to believe that any such suits or
proceedings are threatened;
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(g)
|
Financial Statements Prepared In Accordance with GAAP
. All financial statements delivered to Secured Party in connection with the Indebtedness have been prepared in
accordance with generally accepted accounting principles, and since the date of the most recent financial statements delivered to Secured Party, there has been no material adverse change in Debtors financial condition;
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(h)
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Uses of Collateral
. The Collateral is not, and will not be, used by Debtor for personal, family or household purposes;
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(i)
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Collateral in Good Condition and Repair
. The Collateral is, and will remain, in good condition and repair and Debtor will not be grossly negligent in its care and use;
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(j)
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Location of Collateral
. All of the tangible Collateral is located at the locations set forth on each Collateral Schedule. Debtor shall give the Secured Party 30 days prior
written notice of any relocation of any Collateral;
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Page 11 of 16
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Initial
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/s/ Illegible
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(k)
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Ownership of Collateral
. Debtor is, and will remain, the sole and lawful owner, and in possession of, the Collateral, and has the sole right and lawful authority to grant the
security interest described in this Agreement;
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(l)
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Taxes
. All federal, state and local tax returns required to be filed by Debtor have been filed with the appropriate governmental agencies and all taxes due and payable by
Debtor have been timely paid (other than taxes contested in good faith and for which adequate reserves have been established); and
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(m)
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No Defaults
. No event or condition exists under any material agreement, instrument or document to which Debtor is a party which constitutes a default or an event of default
thereunder, or would, with the giving of notice, passage of time, or both, constitute a default or event of default thereunder.
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(a)
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Assignment
. This Agreement, any Note and/or any of the other Debt Documents may be assigned, in whole or in part, by Secured Party without notice to Debtor (other than a
competitor of Debtor), and Debtor agrees not to assert against any such assignee, or assignee’s assigns, any defense, set-off, recoupment claim or counterclaim which Debtor has or may at any time have against Secured Party for any reason
whatsoever. Debtor agrees that if Debtor receives written notice of an assignment from Secured Party, Debtor will pay all amounts payable under any assigned Debt Documents to such assignee or as instructed by Secured Party. Debtor also agrees to
confirm in writing receipt of the notice of assignment as may be reasonably requested by Secured Party or assignee.
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(b)
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Waiver
. As part of the consideration to the Secured Party herein, the Debtor hereby waives demand, protest, notice of protest, notice of default or dishonor, notice of
payment and non-payment, notice of any default, nonpayment at maturity, release, compromise, settlement, extensions, or renewal of accounts, documents, instruments, chattel paper, and guarantees at any time held by Secured Party in which Debtor may
in any way be liable, except for notices expressly provided for herein or notices which are not permitted by law to be waived.
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(c)
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Entire Agreement
. The Agreement as amended by this Amendment constitutes the entire agreement between the parties with respect to the subject matter of the Agreement as
amended by this Amendment and supersedes all prior understandings (whether written, verbal or implied) with respect to such subject matter. THIS AMENDMENT SHALL NOT BE CHANGED OR TERMINATED ORALLY OR BY COURSE OF CONDUCT, BUT ONLY BY A WRITING
SIGNED BY BOTH PARTIES. Section headings contained in this Amendment have been included for convenience only, and shall not affect the construction or interpretation of this Amendment.
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(d)
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Termination of Agreement
. The Agreement as amended by this Amendment shall continue in full force and effect until all of the Indebtedness has been paid in full to Secured
Party or its assignee. The surrender, upon payment or otherwise, of any Note or any of the other documents evidencing any of the Indebtedness shall not affect the right of Secured Party to retain the Collateral for such other Indebtedness as may
then exist or as it may be reasonably contemplated will exist in the future. The Agreement as amended by this Amendment shall automatically be reinstated if Secured Party is ever required to return or restore the payment of all or any portion of the
Indebtedness (all as though such payment had never been made).
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(e)
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CHOICE OF LAW
. DEBTOR AGREES THAT SECURED PARTY AND/OR ITS SUCCESSORS AND ASSIGNS SHALL HAVE THE OPTION BY WHICH STATE LAWS THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED:
(A) THE LAWS OF THE COMMONWEALTH OF VIRGINIA; OR (B) IF COLLATERAL HAS BEEN PLEDGED TO SECURE THE LIABILITIES, THEN BY THE LAWS OF THE STATE OR STATES WHERE THE COLLATERAL IS LOCATED, AT SECURED PARTY’S OPTION. THIS CHOICE OF STATE
LAWS IS EXCLUSIVE TO THE SECURED PARTY. DEBTOR SHALL NOT HAVE ANY OPTION TO CHOOSE THE LAWS BY WHICH THIS AMENDMENT SHALL BE GOVERNED. DEBTOR ACKNOWLEDGES THAT THIS AMENDMENT IS BEING SIGNED BY THE SECURED PARTY IN PARTIAL CONSIDERATION OF SECURED
PARTY’S RIGHT TO ENFORCE IN THE JURISDICTION STATED ABOVE. DEBTOR CONSENTS TO JURISDICTION IN COUNTY OF THE COMMONWEALTH OF VIRGINIA OR THE STATE IN WHICH ANY COLLATERAL IS LOCATED AND VENUE IN ANY FEDERAL OR STATE COURT IN THE COMMONWEALTH OF
VIRGINIA OR THE STATE IN WHICH COLLATERAL IS LOCATED FOR SUCH PURPOSES AND WAIVES ANY AND ALL RIGHTS TO CONTEST SAID JURISDICTION AND VENUE AND ANY OBJECTION THAT SAID COUNTY IS NOT CONVENIENT. DEBTOR WAIVES ANY RIGHTS TO COMMENCE ANY ACTION AGAINST
SECURED PARTY IN ANY JURISDICTION EXCEPT VIRGINIA, OR IF SECURED PARTY CHOOSES TO LITIGATE IN A STATE WHERE COLLATERAL IS LOCATED THEN IN SUCH COUNTY AND STATE.
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(f)
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Fees and Costs
. Debtor agrees to pay all reasonable attorneys’ fees and other actual and reasonable costs incurred by Secured Party in connection with the enforcement,
assertion, defense or preservation of Secured Party’s rights and remedies under this Amendment, or if prohibited by law, such lesser sum as may be permitted. Debtor further agrees that such fees and costs shall constitute Indebtedness
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Page 12 of 16
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Initial
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/s/ Illegible
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(g)
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Remedies Cumulative
. Secured Party’s rights and remedies under the Agreement and this Amendment or otherwise arising are cumulative and may be exercised singularly or
concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Amendment shall operate as a waiver, nor shall any single or partial exercise of any right, power or privilege
preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THE AGREEMENT OR THIS AMENDMENT OR UNDER ANY OTHER AGREEMENT, INSTRUMENT OR PAPER SIGNED
BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any right or remedy on any future occasion.
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(h)
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WAIVER OF JURY TRIAL.
DEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AMENDMENT,
ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED
BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER
ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE AGREEMENT AND THIS AMENDMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION.
THIS AMENDMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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IN WITNESS WHEREOF,
Debtor and Secured
Party, intending to be legally bound hereby, have duly executed this Amendment in one or more counterparts, each of which shall be deemed to be an original, as of the day and year first aforesaid.
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SECURED PARTY:
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DEBTOR:
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Oxford Finance Corporation
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Infinity Pharmaceuticals, Inc.
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By:
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/s/ Michael J. Altenburger
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By:
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/s/ Thomas Burke
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Name:
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Michael J. Altenburger
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Name:
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Thomas Burke
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Title:
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Chief Financial Officer
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Title:
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Treasurer
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Page 13 of 16
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Initial
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/s/ Illegible
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SCHEDULE A
(Collateral Locations)
The Debtor maintains all its Collateral consisting of equipment and/or inventory at 780 Memorial
Drive, Cambridge, MA 02139 or at 790 Memorial Drive, Cambridge, MA 02139.
In the ordinary course of business, employees of the Debtor maintain laptops,
portable equipment and peripherals in their homes and during travel.
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Page 14 of 16
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Initial
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/s/ Illegible
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SCHEDULE B
(Permitted Indebtedness)
1. Debtor has in place an equipment loan with General Electric Capital Corporation pursuant to a
Master Security Agreement dated December 6, 2002 together with all amendments and riders thereto. Copies of the relevant documents have been provided to Secured Party. As of February 28, 2006, the Debtor had an outstanding balance under
this loan of $3,774,683.
2. Debtor has in place an equipment loan with GATX Ventures, Inc., Silicon Valley Bank and Third Coast Capital pursuant to an
Equipment Loan and Security Agreement dated December 13, 2001 together with all amendments, riders and supplements thereto. Copies of the relevant documents have been provided to Secured Party. As of February 28, 2006, the Debtor had an
outstanding balance under this loan of $128,390.
3. Debtor has a Letter of Credit with a face value of $1,500,000 with Silicon Valley Bank. The expiry
date is December 20, 2012. This Letter of Credit was issued as a guarantee of the Debtor’s lease obligations with respect to 780 Memorial Drive, Cambridge, MA 02139.
4. As of February 28, 2006, the Debtor’s balance sheet showed $16,000,000 in Deferred Revenue and $950,000 in Accrued Expenses both related to joint ventures, partnerships or corporate collaboration
involving the Debtor’s Intellectual Property.
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Page 15 of 16
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Initial
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/s/ Illegible
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SCHEDULE C
(Permitted Liens)
Debtor has in place an equipment loan with General Electric Capital Corporation in
connection with which Debtor has granted to General Electric Corporation a security interest in the collateral described in Exhibit A to Collateral Schedule No. 017. Copies of the relevant documents have been provided to Secured Party.
Debtor has in place an equipment loan with GATX Ventures, Inc., Silicon Valley Bank and Third Coast Capital in connection with which
Debtor has granted to General Eclectic Corporation a security interest in the collateral described in Section 4.1 of the Equipment Loan and Security Agreement, Loan Agreement Supplement No. 1, dated December 28, 2001, Loan Agreement
Supplement No. 2, dated January 31, 2002, Loan Agreement Supplement No. 1, dated December 28, 2001, Loan Agreement Supplement No. 3, dated March 1, 2002, Loan Agreement Supplement No. 4, dated April 1, 2002, Loan Agreement
Supplement No. 5, dated May 1, 2002. Copies of the relevant documents have been provided to Secured Party.
Debtor has in place a lien
securing the Silicon Valley Bank Letter of Credit referred to in Schedule B above.
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Page 16 of 16
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Initial
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/s/ Illegible
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PROMISSORY NOTE
To Master Security Agreement No. 2081009
March 31, 2006
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.,
a Delaware corporation, located at the address stated below
(“Maker”)
promises, jointly and
severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“Payee”)
at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other
place as Payee or the holder hereof may designate, the principal sum of
Five Million Dollars ($5,000,000.00),
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest
rate of eleven and twenty-six one hundredths of one percent (
11.26%
) per annum.
Beginning May 1, 2006, and on the first day of each
consecutive month thereafter, Maker shall make nine (9) monthly payments of interest only as follows:
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Periodic Installment
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Amount
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1-9
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$
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46,916.67 each
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Maker agrees to pay any initial partial month interest payment from the date of this Note to the first day of the
following month (“Interim Interest”).
Thereafter, commencing on February I, 2007, and on the first day of each consecutive month thereafter.
Maker shall make thirty (30) monthly payments of principal and interest as follows:
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Periodic Installment
|
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Amount
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10-39
|
|
$
|
191,999.75 each
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(each payment
1-39
a
“Periodic Installment”)
and a final installment which shall be in the
amount of the total outstanding principal and interest, if any. Such installments have been calculated on the basis of a 360-day year of twelve 30-day months. Each payment may, at the option of the Payee, shall be calculated and applied on an
assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due
and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The
Maker hereby expressly authorizes the Payee to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a Master Loan and Security Agreement No. 2081009, dated October 16, 2002, as amended from time to time (the “Security Agreement,” the Security Agreement, this Note and any other
document evidencing or securing this Note is hereinafter called a “Debt Document”).
Time is of the essence hereof. If any installment or any
other sum due under this Note or the Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent
(5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days; or (ii) there has occurred and is continuing an Event
of Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately
become due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
Notwithstanding anything to the contrary contained herein, this Note may be prepaid by Maker in the manner and under the terms set forth in the Security
Agreement.
Page 1 of 4
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any
party primarily or secondarily liable on this Note or the Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them,
at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor
hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note
or enforcing any of the security hereof, and agrees to pay (if and to the extent permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
Maker and Payee intend to strictly comply with all applicable federal and Virginia laws, including applicable usury laws (or the usury laws of any jurisdiction whose
usury laws are deemed to apply to the Note or any other Debt Document despite the intention and desire of the parties to apply the usury laws of the Commonwealth of Virginia). Accordingly, the provisions of this paragraph shall govern and control
over every other provision of this Note or any other Debt Document which conflicts or is inconsistent with this Section, even if such provision declares that it controls. As used in this paragraph, the term “interest” includes the
aggregate of all charges, fees, benefits or other compensation which constitute interest under applicable law,
provided
that, to the maximum extent permitted by applicable law, (a) any non-principal payment shall be characterized as an
expense or as compensation for something other than the use, forbearance or detention of money and not as interest, and (b) all interest at any time contracted for, reserved, charged or received shall be amortized, prorated, allocated and
spread, in equal parts during the full term of the obligations. In no event shall Maker or any other person be obligated to pay, or Payee have any right or privilege to reserve, receive or retain, (a) any interest in excess of the maximum
amount of non-usurious interest permitted under the laws of the Commonwealth of Virginia or the applicable laws (if any) of the United States or of any other state, or (b) total interest in excess of the amount which Payee could lawfully have
contracted for, reserved, received, retained or charged had the interest been calculated for the full term of the obligations. On each day, if any, that the interest rate (the “
Stated Rate
”) called for under this Note or any other
Debt Document exceeds the maximum non-usurious rate, the rate at which interest shall accrue shall automatically be fixed by operation of this sentence at the maximum non-usurious rate for that day. Thereafter, interest shall accrue at the Stated
Rate unless and until the Stated Rate again exceeds the maximum non-usurious rate, in which case, the provisions of the immediately preceding sentence shall again automatically operate to limit the interest accrual rate to the maximum non-usurious
rate. The daily interest rates to be used in calculating interest at the maximum non-usurious rate shall be determined by dividing the applicable maximum non-usurious rate by the number of days in the calendar year for which such calculation is
being made. None of the terms and provisions contained in this Note or in any other Debt Document which directly or indirectly relate to interest shall ever be construed without reference to this paragraph, or be construed to create a contract to
pay for the use, forbearance or detention of money at an interest rate in excess of the maximum non-usurious rate. If the term of any obligation is shortened by reason of acceleration of maturity as a result of any Default or by any other cause, or
by reason of any required or permitted prepayment, and if for that (or any other) reason Payee at any time, including but not limited to, the stated maturity, is owed or receives (and/or has received) interest in excess of interest calculated at the
maximum non-usurious rate, then and in any such event all of any such excess interest shall be canceled automatically as of the date of such acceleration, prepayment or other event which produces the excess, and, if such excess interest has been
paid to Payee, it shall be credited
pro tanto
against the then-outstanding principal balance of Maker’s obligations to Payee, effective as of the date or dates when the event occurs which causes it to be excess interest, until such
excess is exhausted or all of such principal has been fully paid and satisfied, whichever occurs first, and any remaining balance of such excess shall be promptly refunded to its payor.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE
Page 2 of 4
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or
implied
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an
authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for die specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
Upon receipt of an affidavit of an officer of Payee as to the loss, theft, destruction or mutilation of this Note or any Debt Document which is not of public record,
and, in the case of any such loss, theft, destruction or mutilation, upon surrender and cancellation of such Note or other Debt Document, Maker will issue, in lieu thereof, a replacement Note or other Debt Document in the same principal amount
thereof and otherwise of like tenor.
It is understood and agreed that this Note and all of the Debt Documents were negotiated and have been or will be
delivered to Payee in the Commonwealth of Virginia, which State the parties agree has a substantial relationship to the parties and to the underlying transactions embodied by this Note and the Debt Documents. Maker agrees to furnish to Payee at
Payee’s office in Alexandria, VA, all further instruments, certifications and documents to be furnished hereunder. The parties also agree that if collateral is pledged to secure the debt evidenced by this Note, that the state or states in which
such collateral is located each have a substantial relationship to the parties and to the underlying transaction embodied by this Note and the Debt Documents.
MAKER AGREES THAT THE PAYEE OF THIS NOTE SHALL HAVE THE OPTION BY WHICH STATE LAWS THIS NOTE SHALL BE GOVERNED AND CONSTRUED: (A) THE LAWS OF THE COMMONWEALTH OF VIRGINIA; OR (B) IF COLLATERAL HAS BEEN PLEDGED TO SECURE THE DEBT
EVIDENCED BY THIS NOTE, THEN BY THE LAWS OF THE STATE OR STATES WHERE THE COLLATERAL IS LOCATED, AT PAYEE’S OPTION. THIS CHOICE OF STATE LAWS IS EXCLUSIVE TO THE PAYEE OF THIS NOTE. MAKER SHALL NOT HAVE ANY OPTION TO CHOOSE THE LAWS BY WHICH
THIS NOTE SHALL BE GOVERNED. MAKER AND GUARANTORS HEREBY CONSENT TO THE EXERCISE OF JURISDICTION OVER IT BY ANY FEDERAL COURT SITTING IN VIRGINIA OR ANY VIRGINIA COURT SELECTED BY PAYEE, FOR THE PURPOSES OF ANY AND ALL LEGAL PROCEEDINGS ARISING OUT
OF OR RELATING TO THE NOTE, THE SECURITY AGREEMENT AND ALL OTHER DOCUMENTS. MAKER AND GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
PROCEEDING BROUGHT IN ANY SUCH COURT, ANY CLAIM BASED ON THE CONSOLIDATION OF PROCEEDINGS IN SUCH COURTS IN WHICH PROPER VENUE MAY LIE IN DIVERGENT JURISDICTIONS, AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
Page 3 of 4
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Infinity Pharmaceuticals, Inc.
|
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/s/ Monique A. Allaire
|
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By:
|
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/s/ Thomas J. Burke
|
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(Witness)
|
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|
Name:
|
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Thomas J. Burke
|
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Monique A. Allaire
|
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Title:
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Treasurer
|
|
(Print Name)
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Federal Tax ID #: 04-3549480
|
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780 Memorial Drive
Cambridge, MA
02139
|
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Address:
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780 Memorial Drive
Cambridge, MA
02139
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(Address)
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Page 4 of 4
APPLICATION OF LOAN PROCEEDS
June 30, 2006
Oxford Finance Corporation
133 North Fairfax Street
Alexandria, VA 22314
You are hereby
irrevocably authorized and directed to wire the proceeds of the loan evidenced by the Promissory Note dated June 30, 2006 issued by Infinity Pharmaceuticals, Inc., and secured by that certain Master Loan and Security Agreement No. 2081009,
dated October 16, 2002, as amended, to the account set forth below:
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Schedule 15
|
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Infinity Pharmaceuticals, Inc.
|
|
$
|
2,500,000.00
|
|
Total Loan Proceeds to Infinity Pharmaceuticals, Inc.
|
|
$
|
2,500,000.00
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Please wire the above loan total to this account:
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Bank Name:
|
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Silicon Valley Bank
|
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Bank Address:
|
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3003 Tasman Drive Santa Clara, CA 95054
|
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ABA Number:
|
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121140399
|
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Account Name:
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Operating Account
|
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Account Number:
|
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3300323007
|
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Infinity Pharmaceuticals, Inc.
|
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By:
|
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/s/ Thomas Burke
|
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Name:
|
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Thomas Burke
|
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Title:
|
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Treasurer
|
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Bank Wiring Authorization for Oxford Finance Corporation:
|
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|
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By:
|
|
/s/ Illegible
|
|
Name:
|
|
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Date:
|
|
6/30/06
|
PROMISSORY NOTE
To Master Security Agreement No. 2081009
June 30, 2006
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.,
a Delaware corporation, located at the address stated below (
“
Maker
”
) promises,
jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
133
N.
Fairfax Street, Alexandria,
VA
22314
or at such other place as Payee or the holder hereof may designate, the principal sum of Two
Million Five Hundred Thousand ($2,500,000.00)
, with interest on the unpaid principal balance, from the date hereof through
and including the dates of payment, at a fixed interest rate of eleven and twenty-six one hundredths of one percent (11.75%) per annum.
Beginning
August 1, 2006, and on the first day of each consecutive month thereafter, Maker shall make nine (9) monthly payments of interest only as follows:
|
|
|
|
|
|
Periodic
Installment
|
|
Amount
|
|
1-9
|
|
$
|
24,479.17 each
|
Maker agrees to pay any initial partial month interest payment from the date of this Note to the first day of the
following month (“Interim Interest”).
Thereafter, commencing on May 1, 2007, and on the first day of each consecutive month thereafter,
Maker shall make thirty (30) monthly payments of principal and interest as follows:
|
|
|
|
|
|
Periodic
Installment
|
|
Amount
|
|
10-39
|
|
$
|
96,575.71 each
|
(each payment 1-39 a
“Periodic Installment”)
and a final installment which shall be in the amount
of the total outstanding principal and interest, if any. Such installments have been calculated on the basis of a 360-day year of twelve 30-day months. Each payment may, at the option of the Payee, shall be calculated and applied on an assumption
that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at
such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby
expressly authorizes the Payee to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a Master Loan and Security Agreement No. 2081009, dated October 16, 2002, as amended from time to time (the “Security Agreement,” the Security Agreement, this Note and any other document evidencing or
securing this Note is hereinafter called a “Debt Document”).
Time is of the essence hereof. If any installment or any other sum due under this
Note or the Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of
said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days; or (ii) there has occurred and is continuing an Event of Default under the
Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become due and payable,
with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
Notwithstanding anything to the contrary contained herein, this Note may be prepaid by Maker in the manner and under the terms set forth in the Security Agreement.
Page 1 of 4
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”
) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of
any party primarily or secondarily liable on this Note or the Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of
them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each
Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting
this Note or enforcing any of the security hereof, and agrees to pay (if and to the extent permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
Maker and Payee intend to strictly comply with all applicable federal and Virginia laws, including applicable usury taws (or the usury laws of any jurisdiction whose
usury laws are deemed to apply to the Note or any other Debt Document despite the intention and desire of the parties to apply the usury Saws of the Commonwealth of Virginia). Accordingly, the provisions of this paragraph shall govern and control
over every other provision of this Note or any other Debt Document which conflicts or is inconsistent with this Section, even if such provision declares that it controls. As used in this paragraph, the term
“interest”
includes the
aggregate of all charges, fees, benefits or other compensation which constitute interest under applicable law,
provided
that, to the maximum extent permitted by applicable law, (a) any non-principal payment shall be characterized as an
expense or as compensation for something other than the use, forbearance or detention of money and not as interest, and (b) all interest at any time contracted for, reserved, charged or received shall be amortized, prorated, allocated and
spread, in equal parts during the full term of the obligations. In no event shall Maker or any other person be obligated to pay, or Payee have any right or privilege to reserve, receive or retain, (a) any interest in excess of the maximum
amount of non-usurious interest permitted under the laws of the Commonwealth of Virginia or the applicable laws (if any) of the United States or of any other state, or (b) total interest in excess of the amount which Payee could lawfully have
contracted for, reserved, received, retained or charged had the interest been calculated for the full term of the obligations. On each day, if any, that the interest rate (the “
Stated Rate
”) called for under this Note or any other
Debt Document exceeds the maximum non-usurious rate, the rate at which interest shall accrue shall automatically be fixed by operation of this sentence at the maximum non-usurious rate for that day. Thereafter, interest shall accrue at the Stated
Rate unless and until the Stated Rate again exceeds the maximum non-usurious rate, in which case, the provisions of the immediately preceding sentence shall again automatically operate to limit the interest accrual rate to the maximum non-usurious
rate. The daily interest rates to be used in calculating interest at the maximum non-usurious rate shall be determined by dividing the applicable maximum non-usurious rate by the number of days in the calendar year for which such calculation is
being made. None of the terms and provisions contained in this Note or in any other Debt Document which directly or indirectly relate to interest shall ever be construed without reference to this paragraph, or be construed to create a contract to
pay for the use, forbearance or detention of money at art interest rate in excess of the maximum non-usurious rate. If the term of any obligation is shortened by reason of acceleration of maturity as result of any Default or by any other cause, or
by reason of any required or permitted prepayment, and if for that (or any other) reason Payee at any time, including but not limited to, the stated maturity, is owed or receives (and/or has received) interest in excess of interest calculated at the
maximum non-usurious rate, then and in any such event all of any such excess interest shall be canceled automatically as of the date of such acceleration, prepayment or other event which produces the excess, and, if such excess interest has been
paid to Payee, it shall be credited
pro tanto
against the then-outstanding principal balance of Maker’s obligations to Payee, effective as of the date or dates when the event occurs which causes it to be excess interest, until such
excess is exhausted or all of such principal has been fully paid and satisfied, whichever occurs first, and any remaining balance of such excess shall be promptly refunded to its payor.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE
Page 2 of 4
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or
implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by
an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
Upon receipt of an affidavit of an officer of Payee as to the loss, theft, destruction or mutilation of this Note or any Debt Document which is not of public record,
and, in the case of any such loss, theft, destruction or mutilation, upon surrender and cancellation of such Note or other Debt Document, Maker will issue, in lieu thereof, a replacement Note or other Debt Document in the same principal amount
thereof and otherwise of like tenor.
It is understood and agreed that this Note and all of the Debt Documents were negotiated and have been or will be
delivered to Payee in the Commonwealth of Virginia, which State the parties agree has a substantial relationship to the parties and to the underlying transactions embodied by this Note and the Debt Documents. Maker agrees to furnish to Payee at
Payee’s office in Alexandria, VA, all further instruments, certifications and documents to be furnished hereunder. The parties also agree that if collateral is pledged to secure the debt evidenced by this Note, that the state or states in which
such collateral is located each have a substantial relationship to the parties and to the underlying transaction embodied by this Note and the Debt Documents.
MAKER AGREES THAT THE PAYEE OF THIS NOTE SHALL HAVE THE OPTION BY WHICH STATE LAWS THIS NOTE SHALL BE GOVERNED AND CONSTRUED: (A) THE LAWS OF THE COMMONWEALTH OF VIRGINIA; OR (B) IF COLLATERAL HAS BEEN PLEDGED TO SECURE THE DEBT
EVIDENCED BY THIS NOTE, THEN BY THE LAWS OF THE STATE OR STATES WHERE THE COLLATERAL IS LOCATED, AT PAYEE’S OPTION. THIS CHOICE OF STATE LAWS IS EXCLUSIVE TO THE PAYEE OF THIS NOTE. MAKER SHALL NOT HAVE ANY OPTION TO CHOOSE THE LAWS BY WHICH
THIS NOTE SHALL BE GOVERNED. MAKER AND GUARANTORS HEREBY CONSENT TO THE EXERCISE OF JURISDICTION OVER IT BY ANY FEDERAL COURT SITTING IN VIRGINIA OR ANY VIRGINIA COURT SELECTED BY PAYEE, FOR THE PURPOSES OF ANY AND ALL LEGAL PROCEEDINGS ARISING OUT
OF OR RELATING TO THE NOTE, THE SECURITY AGREEMENT AND ALL OTHER DOCUMENTS. MAKER AND GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
PROCEEDING BROUGHT IN ANY SUCH COURT, ANY CLAIM BASED ON THE CONSOLIDATION OF PROCEEDINGS IN SUCH COURTS IN WHICH PROPER VENUE MAY LIE IN DIVERGENT JURISDICTIONS, AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
Page 3 of 4
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Infinity Pharmaceuticals, Inc.
|
|
|
|
|
|
|
/s/ James Popek
|
|
|
|
By:
|
|
/s/ Thomas Burke
|
|
(Witness)
|
|
|
|
|
|
|
|
|
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|
James Popek
|
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Name:
|
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Thomas Burke
|
|
(Print name)
|
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780, Memorial Dr. Cambridg, MA 02139
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|
|
Title:
|
|
Treasuer
|
|
(Address)
|
|
|
|
|
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|
Federal Tax ID #: 04-3549480
|
|
|
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|
|
|
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|
|
|
|
|
Address:
|
|
780 Memorial Drive
|
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Cambridge, MA 02139
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Page 4 of 4
Oxford Finance Corporation
Payment Calculator
Fill in shaded fields
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Customer
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|
Infinity
|
|
|
Schedule #
|
|
|
15
|
|
|
Loan Amount
|
|
$
|
2,500,000.00
|
|
|
Term (P&l Months)
|
|
|
30
|
|
|
Payment Type
|
|
|
Interest Only -
Payment in arrears
|
|
|
Quoted payment factor on term sheet
|
|
|
3.8021
|
%
|
|
Quoted T-bill index rate on term sheet
|
|
|
3.88
|
%
|
|
Quoted spread
|
|
|
657
|
|
|
Quoted interest rate on term sheet
|
|
|
10.45
|
%
|
|
Current T-bill index rate
|
|
|
5.18
|
%
|
|
Rate adjustment
|
|
|
1.30
|
%
|
|
Spread
|
|
|
657
|
|
|
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|
|
|
|
|
Loan rate at funding
|
|
|
11.75
|
%
|
|
|
|
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|
|
Loans with a balloon payment:
|
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|
|
|
|
Balloon as a % of loan (paid with last payment)
|
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|
0.00
|
%
|
|
Balloon $
|
|
$
|
—
|
|
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|
Effective Cash Rate including Balloon payment
|
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|
11.75
|
%
|
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ADJUSTED
|
|
|
|
Principal and Interest
|
|
|
|
Payment
Factor
|
|
|
Monthly
Payment
|
|
1 Payment in advance
|
|
0.00000
|
%
|
|
$
|
—
|
|
2 Payments in advance
|
|
0.00000
|
%
|
|
$
|
—
|
|
Payment in arrears (interest only loans)
|
|
3.86303
|
%
|
|
$
|
96,575.71
|
|
—Interest Only Amount preceiding P&l payments
|
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|
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|
$
|
24,479.17
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Warrants
|
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Coverage %
|
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|
7.0
|
%
|
|
Strike Price
|
|
$
|
3.75
|
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Strike Value
|
|
$
|
175,000.00
|
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|
# of Warrants
|
|
|
46,667
|
|
PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
December 3, 2002
(Date)
FOR VALUE RECEIVED,
Infinity
Pharmaceuticals, Inc.
located at the address stated below
(“Maker”)
promises, jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
Six Hundred Thousand One Hundred Sixty Nine AND 46/100
Dollars (5600,169.46),
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of then and 26/100 percent (10.26%) per annum, to be paid in lawful money of the
United States, in forty-eight (48) consecutive monthly installments of principal and interest as follows:
|
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|
Periodic
Installment
|
|
Amount
|
|
1-48
|
|
$
|
15,166.28
|
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|
|
|
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
November 27, 2002
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
month
beginning
January 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be
calculated and applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment
in full of all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated
October 16, 2002
(hereinafter called the
“Security Agreement”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due date,
the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails
to make payment of any amount due hereunder within ten (10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of
Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become
due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this
Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted
for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person
or entity now or hereafter liable for the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any
such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to
the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted
for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such
indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is
presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law
of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”
) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of
any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of
them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each
Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting
this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN
THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the
entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver,
consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the
Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
|
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|
|
|
|
|
/s/ Jennifer Zinkann
|
|
|
|
By:
|
|
/s/ Thomas J Burke
|
|
(Witness)
|
|
|
|
|
|
|
|
|
|
|
|
|
Jennifer Zinkann
|
|
|
|
Name:
|
|
Thomas J Burke
|
|
(Print name)
|
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Title:
|
|
Controller
|
|
(Address)
|
|
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|
|
|
|
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|
|
Federal Tax ID #: 04-3549480
|
|
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|
Address: 650 Albany Street
|
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|
Boston, MA 02116
|
PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
December 3, 2002
(Date)
FOR VALUE RECEIVED,
Infinity
Pharmaceuticals, Inc.
located at the address stated below
(
“Maker”
)
promises, jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each,
a
“Payee”
) at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
Ninety Four Thousand Two Hundred Eighty Eight AND
90/100
Dollars
($94,288.90)
,
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of nine and 90/100 percent (9.90%) per annum, to be paid in
lawful money of the United States, in thirty-six (36) consecutive monthly installments of principal and interest as follows:
|
|
|
|
|
|
Periodic
Installment
|
|
Amount
|
|
1-36
|
|
$
|
3,013.47
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
November 27, 2002
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
month
beginning
January 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be
calculated and applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment
in full of all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated
October 16, 2002
(hereinafter called the
“Security Agreement”
)
.
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of
Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become
due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this
Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted
for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person
or entity now or hereafter liable for the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any
such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to
the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted
for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such
indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is
presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law
of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“
Obligor
”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of
any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of
them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each
Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting
this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorney’s fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE, THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN
THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the
entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver,
consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the
Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Jennifer Zinkann
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By:
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/s/ Thoma J Burke
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(Witness)
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Name:
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Thoma J Burke
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Jennifer Zinkann
|
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Title:
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|
Controller
|
|
(Print name)
|
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|
|
Federal Tax ID #: 04-3549480
|
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Address:
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650 Albany Street
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(Address)
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Boston, MA 02116
|
PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
December 30, 2002
(Date)
FOR VALUE RECEIVED,
Infinity
Pharmaceuticals, Inc.
located at the address stated below
(“Maker”)
promises, jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
133
N
.
Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
Two Hundred Twenty Seven Thousand Two
Hundred Twenty Nine AND 02/100 Dollars ($227,229.02),
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of ten and 26/100 percent (10.26%) per annum, to
be paid in lawful money of the United States, in forty-eight (48) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
|
|
Amount
|
|
1-48
|
|
$
|
5,742.08
|
|
|
|
|
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic installment shall be due and payable on or about
December 30, 2002
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
month
beginning
February 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be
calculated and applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment
in full of all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated
October 16, 2002
(hereinafter called the
“Security Agreement”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of
Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become
due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this
Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted
for, charged or received under this Note or any Security Agreement, ______ all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this ______ or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person
or entity now or hereafter liable for the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any
such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the
maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted
for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such
indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is
presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law
of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”
) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of
any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of
them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each
Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting
this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN
THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the
entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver,
consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the
Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Melanie D Getchell
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By:
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/s/ Thomas Burke
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(Witness)
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Melanie D Getchell
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Name:
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Thomas Burke
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(Print Name)
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Title:
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Controller
|
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(Address)
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Federal Tax ID #:04-3549480
|
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Address:
|
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650 Albany Street
|
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|
Boston, MA 02116
|
PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
December 30, 2002
(Date)
FOR VALUE RECEIVED,
Infinity
Pharmaceuticals, Inc.
located at the address stated below
(
“Maker”
)
promises, jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each,
a
“Payee”
)
at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
One Million Three Hundred Sixty Seven
Thousand Four Hundred Ninety Seven AND 41/100
Dollars
($l,367,497.41)
,
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of nine and 90/100 percent
(9.90%) per annum, to be paid in lawful money of the United States, in thirty-six (36) consecutive monthly installments of principal and interest as follows:
|
|
|
|
|
|
Periodic
Installment
|
|
Amount
|
|
1-36
|
|
$
|
43,705.22
|
|
|
|
|
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
December 30, 2002
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
month
beginning
February 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be
calculated and applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment
in full of all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated
October 16, 2002
(hereinafter called the
“Security Agreement”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of
Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become
due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest
is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note
or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other
person or entity now or hereafter liable for the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any
such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to
the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted
for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such
indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is
presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law
of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“
Obligor
”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security
or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or
more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and
each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in
collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE,
ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS; AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This
Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized
representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
|
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|
|
|
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Melanie D. Getchell
|
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|
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By:
|
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/s/ Thmos J Burke
|
|
(Witness)
|
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|
Name:
|
|
Thmos J Burke
|
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Melanie D. Getchell
|
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Title:
|
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Controller
|
|
(Print name)
|
|
|
|
Federal Tax ID #:04-3549480
|
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|
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|
Address:
|
|
650 Albany Street
|
|
(Address)
|
|
|
|
|
|
Boston, MA 02116
|
PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
March 3, 2003
(Date)
FOR VALUE RECEIVED,
Infinity
Pharmaceuticals, Inc.
located at the address stated below
(
“Maker”
)
promises, jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each,
a
“Payee”
)
at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
Two Hundred Ninety Nine Thousand Five
Hundred Twenty One AND 62/100
Dollars
(
$299,521,62
)
,
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of nine and
90/100 percent (9.90%) per annum, to be paid in lawful money of the United States, in thirty-six (36) consecutive monthly installments of principal and interest as follows:
|
|
|
|
|
|
Periodic
Installment
|
|
Amount
|
|
1-36
|
|
$
|
9,572,71
|
|
|
|
|
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
March 3, 2003
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
month
beginning
April 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be
calculated and applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment
in full of all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated
October 16, 2002
(hereinafter called the
“Security Agreement”
)
.
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of
Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become
due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this
Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted
for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person
or entity now or hereafter liable for the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any
such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to
the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted
for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such
indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is
presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law
of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“
Obligor
”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of
any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of
them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each
Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting
this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN
THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the
entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver,
consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the
Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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By:
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/s/ Thomas J Burke
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(Witness)
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Name:
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Thomas J Burke
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(Print name)
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Title:
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Controller
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(Address)
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Federal Tax ID #: 04-3549480
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Address:
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650 Albany Street
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Boston, MA 02116
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PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
March 31, 2003
(Date)
FOR VALUE RECEIVED,
Infinity
Pharmaceuticals, Inc.
located at the address stated below
(“Maker”)
promises, jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“Payee”)
at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
Five Hundred Fifty Seven Thousand Five Hundred
Thirty Seven AND 67/100
Dollars
(
$557,537.67
), with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of ten and 26/100 percent (10.26%) per
annum, to be paid in lawful money of the United States, in forty-eight (48) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
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Amount
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1-48
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$
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14,088.98
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each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
April 1. 2003
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
month
beginning
May 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and
applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in Full of all
amounts due and owing at such time shall not constitute a waiver of
payee’s right to receive payment in full at
such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated
October 16, 2002
(hereinafter called the
“Security Agreement”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or
any Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said
installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has
become due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under
this Note or the Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date
of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and
conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is
agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount
permitted by applicable law. If any such excess interest is contracted for charged or received under (his Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of
interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall
govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted
by applicable law, (c) any such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be
automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed __ the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the
rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful
contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and
spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided,
however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the
Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of
America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”)
who may
at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily
liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee
without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment,
demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the
security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE
MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS
NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and
Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation
or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective
only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any
statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Dave Bruce
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By:
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/s/ Thomas J Burke
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(Witness)
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Name:
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Thomas J Burke
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Dave Bruce
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Title:
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Controller
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(Print name)
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Federal Tax ID #:
04-3549480
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Address: 650 Albany Street
Boston, MA 02116
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(Address)
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PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
March 31, 2003
(Date)
FOR VALUE RECEIVED,
Infinity
Pharmaceuticals, Inc.
located at the address stated below (
“Maker”
) promises, jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
Thirty Eight Thousand Two Hundred Forty Three AND
99/100
Dollars
(
$38,243.99
)
, with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of nine and 90/100 percent (9.90%) per annum, to be paid
in lawful money of the United States, in thirty-six (36) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
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Amount
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1-36
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$
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1,222.28
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each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
April 1, 2003
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
month
beginning
May 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated
and applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of
all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated
October 16, 2002
(hereinafter called the
“
Security Agreement
”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of
Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become
due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this
Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted
for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person
or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may have
been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract
rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received
under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful
contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period
of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is
amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of
such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”
) who may at any time become liable
for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any
Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as
a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of
nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to
pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY
WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION
OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the
subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation or modification of this
Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific
instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable
rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Dave Bruce
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By:
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/s/ Thomas J. Burke
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(Witness)
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Dave Bruce
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Name:
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Thomas J. Burke
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(Print name)
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780 Memorial Drive
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Title:
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Controller
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(Address)
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Federal Tax ID #:04-3549480
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Address: 650 Albany Street
Boston, MA
02116
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SCHEDULE 08
PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
April 30, 2003
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc
. located at the address stated below (“
Maker
”) promises, jointly and
severally if more than one, to pay to the order of Oxford Finance Corporation or any subsequent holder hereof (each, a “
Payee
”) at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other place as
Payee or the holder hereof may designate, the principal sum of
Eight Hundred Eighteen Thousand Thirty-Six AND 03/100
Dollars (
$818,036.03
)
. with interest on the unpaid principal balance, from the date hereof through and
including the dates of payment, at a fixed interest rate of ten and 26/100 percent (10.26%) per annum, to be paid in lawful money of the United States, in forty-eight (48) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
|
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Amount
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1-48
|
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$
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20,671.77
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
May 1, 2003
and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding
month beginning
June 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an
assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due
and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated October 16, 2002 (hereinafter called the
“Security Agreement”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days after
oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire principal sum remaining unpaid,
together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser of eighteen percent (18%) per
annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of
the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the
payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by
applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest
to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further
agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the
maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at
any time contracted for, charged or received from Maker or otherwise by Payee in
SCHEDULE 08
connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater
interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by
the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other
than the Maker, an “
Obligor
”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases
of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against
any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The
Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence
in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY
OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note
and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
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Infinity Pharmaceuticals, Inc.
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/s/ Dave Bruce
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By:
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/s/ Thomas J. Burke
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(Witness)
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Dave Bruce
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Name:
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Thomas J. Burke
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(Print name)
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780 Memorial Drive
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Title:
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Controller
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(Address)
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Federal Tax ID #: 04-3549480
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Address:
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780 Memorial Drive
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Boston, MA 02139
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SCHEDULE 09
PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
April 30, 2003
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
located at the address stated below (
“Maker”
) promises, jointly and
severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other
place as Payee or the holder hereof may designate, the principal sum of
Two Hundred Ninety-Six Thousand Thirty-Two AND 58/100
Dollars
(
$296,032.58
),
with interest on the unpaid principal balance, from the date hereof
through and including the dates of payment, at a fixed interest rate of nine and 90/100 percent (9.90%) per annum, to be paid in lawful money of the United States, in thirty-six (36) consecutive monthly installments of principal and interest as
follows:
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Periodic
Installment
|
|
Amount
|
|
1-36
|
|
$
|
9,461.20
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
May 1, 2003
and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding
month
beginning
June 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on
an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts
due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated October 16, 2002 (hereinafter called the
“Security Agreement”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days after
oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire principal sum remaining unpaid,
together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser of eighteen percent (18%) per
annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of
the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the
payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by
applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest
to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further
agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the
maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at
any time contracted for, charged or received from Maker or otherwise by Payee in
SCHEDULE 09
connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater
interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by
the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other
than the Maker, an
“Obligor”
) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases
of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against
any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The
Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence
in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE,
ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This
Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized
representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Dave Bruce
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By:
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/s/ Thomas J. Burke
|
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(Witness)
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Dave Bruce
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Name:
|
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Thomas J. Burke
|
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(Print name)
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780 Memorial Drive
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Title:
|
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Controller
|
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Address:
|
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Federal Tax ID #: 04-3549480
|
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Address:
|
|
780 Memorial Drive
Boston, MA
02139
|
PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
May 30, 2003
(Date)
FOR VALUE RECEIVED,
Infinity
Pharmaceuticals, Inc.
located at the address stated below
(“Maker”)
promises, jointly and severally if more than one to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
Six Hundred Thirty Nine Thousand Four Hundred AND
62/100
Dollars (
$639,400.62
),
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of ten and 26/100 percent (10.26%) per annum, to be paid in
lawful money of the United States, in forty-eight (48) consecutive monthly installments of principal and interest as follows:
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|
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|
Periodic
Installment
|
|
Amount
|
|
1-48
|
|
$
|
16,157.65
|
|
|
|
|
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
June 1, 2003
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
month
beginning
July 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and
applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all
amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated October 16, 2002 (hereinafter called the
“Security Agreement”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten
(10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and alter any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this
Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted
for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person
or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extern that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may have
been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract
rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received
under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful
contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and
spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided,
however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the
Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of
America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”
) who may
at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily
liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee
without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment,
demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the
security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE
MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OR THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS
NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and
Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation
or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective
only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any
statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
|
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|
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/s/ Dave Bruce
|
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By:
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/s/ Thomas J. Burke
|
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(Witness)
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Dave Bruce
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Name:
|
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Thomas J. Burke
|
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(Print name)
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780 Memorial Drive
|
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Title:
|
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Controller
|
|
(Address)
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|
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Federal Tax ID #: 04-3549480
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Address:
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780/790 Memorial Drive
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Cambridge, MA 02139
|
PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
June 30, 2003
(Date)
FOR VALUE
RECEIVED, Infinity
Pharmaceuticals, Inc.
located at the address stated below
(“Maker”)
promises, jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“Payee”) at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
Two Hundred Twenty Seven Thousand Four Hundred Twenty
Four AND 71/100
Dollars (
$227,424.71
),
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of ten and 26/100 percent (10.26%) per annum,
to be paid in lawful money of the United Slates, in forty-eight (48) consecutive monthly installments of principal and interest as follows:
|
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|
|
|
|
Periodic
Installment
|
|
Amount
|
|
I-48
|
|
$
|
5,747.02
|
|
|
|
|
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
June 30, 2003
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
month
beginning
August 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be
calculated and applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment
in full of all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated
October 16, 2002
(hereinafter called the
“Security Agreement”)
.
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of
Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become
due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this
Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted
for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person
or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extern that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may have
been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract
rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction hereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received
under this Note or any Security Agreement which are made or the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and
spreading in equal pans during the period of the
full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in
connection with such indebtedness: provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per
annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended
state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the
Maker, an
“Obligor”)
who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of
security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any
one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The
Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence
in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE,
ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This
Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized
representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
|
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/s/ Dave Bruce
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By:
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/s/ Thomas J. Burke
|
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(Witness)
|
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Dave Bruce
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Name:
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Thomas J. Burke
|
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(Print name)
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780 Memorial Drive
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Title:
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Controller
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Address:
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Federal Tax ID #: 04-3549480
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Address:
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780 Memorial Drive
Cambridge, MA 02116
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PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
June 30, 2003
(Date)
FOR VALUE RECEIVED,
Infinity
Pharmaceuticals, Inc.
located at the address slated below
(“Maker”)
promises, jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
133 N. Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
One Hundred Thirty Two Thousand Nine Hundred Forty
AND 20/100
Dollars (
$132,940.20)
,
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of nine and 90/100 percent (9.90%) per annum, to be paid
in lawful money of the United States, in thirty-six (36) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
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Amount
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1-36
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$
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4,248.77
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each (“Periodic installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic installment shall be due and payable on or about
June 30, 2003
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
mont
h beginning
August 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be
calculated and applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment
in full of all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated
October 16, 2002
(hereinafter called the
“Security
Agreement”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails
to make payment of any amount due hereunder within ten (10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of Default
under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become due and
payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this
Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted
for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for. charged or received under this Note or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person
or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may have
been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract
rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received
under this Note or any Security Agreement which are mode for the purpose of determining whether such rate exceeds the maximum lawful
contract rate, shall be made, to the extent permitted by applicable law. by amortizing, prorating, allocating and spreading in equal parts during the period
of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is
amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of
such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”
)
who may at any time become
liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note
or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without (Joinder of any
other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment,
notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and
agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY
UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF
THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING,
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS
A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to
the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation or modification of
this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific
instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable
rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceutical, Inc.
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/s/ Dave Bruce
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By:
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/s/ Thomas J. Burke
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(Witness)
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Dave Bruce
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Name:
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Thomas J. Burke
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(Print name)
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780 memorial Drive
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Title:
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Controller
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(Address)
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Federal Tax ID #: 04-3549480
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Address:
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780 Memorial Drive
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Cambridge, MA 02139
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PROMISSORY NOTE
To Master Loan and Security Agreement No. 2081009
August 29, 2003
(Date)
FOR VALUE RECEIVED,
Infinity
Pharmaceuticals, Inc.
located at the address stated below (“
Maker
”) promises, jointly and severally if more than one, to pay to the order of
Oxford Finance Corporation
or any subsequent holder hereof (each, a
“
Payee
”) at its office located at
133
N.
Fairfax Street, Alexandria, VA 22314
or at such other place as Payee or the holder hereof may designate, the principal sum of
Two Hundred Eleven Thousand Three
Hundred Fifty Two AND 32/100 Dollars ($211,351.32)
,
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate often and 26/100 percent (10.26%) per annum, to
be paid in lawful money of the United States, in forty-eight (48) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
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Amount
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1-48
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$
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5,340.85
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each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on or about
August 29, 2003
and the following Periodic Installments and the final installment shall be due and payable on the same day of each
succeeding
month
beginning
October 1, 2003
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be
calculated and applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment
in full of all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
This Note is secured by a Master Loan and Security Agreement, dated
October 16, 2002
(hereinafter called the
“Security Agreement”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after oral, facsimile or written notice from Secured Party to Debtor that the same has become due and payable; or (ii) there has occurred and is continuing an Event of
Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or the Security Agreement, at the election of Payee, shall immediately become
due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
This Note may be prepaid by Maker in the manner and under the terms and conditions set forth in the Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest
is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note
or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other
person or entity now or hereafter liable for the payment hereof shall be obiligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which
may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful
contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or
received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating,
allocating and spreading in equal parts during the period of the
full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in
connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per
annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended
state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the
Maker, an
“Obligor”)
who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of,
security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any
one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The
Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence
in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE,
ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THIS TRANSACTION OR ANY RELATED TRANSACTION, IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This
Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized
representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Michael J. Altenburger
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By:
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/s/ Thomas J. Burke
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(Witness)
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Michael J. Altenburger
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Name:
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Thomas J. Burke
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(Print name)
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Title:
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Controller
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(Address)
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Federal Tax ID #:04-3549480
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Address:
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780 Memorial Drive
Cambridge, MA 02139
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Exhibit 10.6
ll/98(R080602) 001147656
*LOAN 1000*
MASTER SECURITY AGREEMENT
dated as of
December 6, 2002
(“Agreement”)
THIS
AGREEMENT
is between
General Electric Capital Corporation
(together with its successors and assigns, if any,
“Secured Party”
)
and
Infinity Pharmaceuticals, Inc. (“Debtor”)
.
Secured Party has
an office at 401 Merritt 7 Suite 23, Norwalk, CT 06851-1177. Debtor is a corporation organized and existing under the laws of the state of Delaware. Debtor’s mailing address and chief place of business is 650 Albany Street, Boston, MA 02118.
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1.
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CREATION OF SECURITY INTEREST.
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Debtor grants to
Secured Party, its successors and assigns, a security interest in and against all property listed on any collateral schedule now or in the future annexed to or made a part of this Agreement
(“Collateral Schedule”)
,
and in and
against all additions, attachments, accessories and accessions to such property, all substitutions, replacements or exchanges therefor, and all insurance and/or other proceeds thereof (all such property is individually and collectively called the
“Collateral”
).
This security interest is given to secure the payment and performance of all debts, obligations and liabilities of any kind whatsoever of Debtor to Secured Party, now existing or arising in the future,
including but not limited to the payment and performance of certain Promissory Notes from time to time identified on any Collateral Schedule (collectively
“Notes”
and each a
“Note”
), and any renewals, extensions and
modifications of such debts, obligations and liabilities (such Notes, debts, obligations and liabilities are called the
“Indebtedness”
).
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2.
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REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
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Debtor represents, warrants and covenants as of the date of this Agreement and as of the date of each Collateral Schedule that:
(a) Debtor’s exact legal name is as set forth in the preamble of this Agreement and Debtor is, and will remain, duly organized, existing and in good standing under the laws of the State set forth in the preamble of this Agreement, has
its chief executive offices at the location specified in the preamble, and is, and will remain, duly qualified and licensed in every jurisdiction wherever necessary to carry on its business and operations;
(b) Debtor has adequate power and capacity to enter into, and to perform its obligations under this Agreement, each Note and any other documents
evidencing, or given in connection with, any of the Indebtedness (all of the foregoing are called the
“Debt Documents”)
;
(c) This Agreement and the other Debt Documents have been duly authorized, executed and delivered by Debtor and constitute legal, valid and binding agreements enforceable in accordance with their terms, except to the extent that the
enforcement of remedies may be limited under applicable bankruptcy and insolvency laws;
(d) No approval, consent or withholding of
objections is required from any governmental authority or instrumentality with respect to the entry into, or performance by Debtor of any of the Debt Documents, except any already obtained;
(e) The entry into, and performance by, Debtor of the Debt Documents will not (i) violate any of the organizational documents of Debtor or any
judgment, order, law or regulation applicable to Debtor, or (ii) result in any breach of or constitute a default under any contract to which Debtor is a party, or result in the creation of any lien, claim or encumbrance on any of Debtor’s
property (except for liens in favor of Secured Party) pursuant to any indenture, mortgage, deed of trust, bank loan, credit agreement, or other agreement or instrument to which Debtor is a party;
(f) There are no suits or proceedings pending in court or before any commission, board or other administrative agency against or affecting Debtor which
could, in the aggregate, have a material adverse effect on Debtor, its business or operations, or its ability to perform its obligations under the Debt Documents, nor does Debtor have reason to believe that any such suits or proceedings are
threatened;
(g) All financial statements delivered to Secured Party in connection with the Indebtedness have been prepared in accordance
with generally accepted accounting principles, and since the date of the most recent financial statement, there has been no material adverse change in Debtors financial condition;
(h) The Collateral is not, and will not be, used by Debtor for personal, family or household purposes;
(i) The Collateral is, and will remain, in good condition and repair and Debtor will not be negligent in its care and use;
(j) Debtor is, and will remain, the sole and lawful owner, and in possession of, the Collateral, and has the sole right and lawful authority to grant the
security interest described in this Agreement; and
(k) The Collateral is, and will remain, free and clear of all liens, claims and
encumbrances of any kind whatsoever, except for (i) liens in favor of Secured Party, (ii) liens for taxes not yet due or for taxes being contested in good faith and which do not involve, in the judgment of Secured Party, any risk of the
sale, forfeiture or loss of any of the Collateral, and (iii) inchoate materialmen’s, mechanic’s, repairmen’s and similar liens arising by operation of law in the normal course of business for amounts which are not delinquent (all
of such liens are called “Permitted Liens”).
(a) Until the declaration of any
default, Debtor shall remain in possession of the Collateral; except that Secured Party shall have the right to possess (i) any chattel paper or instrument that constitutes a part of the Collateral, and (ii) any other Collateral in which
Secured Party’s security interest may be perfected only by possession. Secured Party may inspect any of the Collateral during normal business hours after giving Debtor reasonable prior notice. If Secured Party asks, Debtor will promptly notify
Secured Party in writing of the location of any Collateral.
(b) Debtor shall (i) use the Collateral only in its trade or business, (ii) maintain all of the
Collateral in good operating order and repair, normal wear and tear excepted, (iii) use and maintain the Collateral only in compliance with manufacturers recommendations and all applicable laws, and (iv) keep all of the Collateral free and
clear of all liens, claims and encumbrances (except for Permitted Liens).
(c) Secured Party does not authorize and Debtor agrees it shall
not (i) part with possession of any of the Collateral (except to Secured Party or for maintenance and repair), (ii) remove any of the Collateral from the continental United States, or (iii) sell, rent, lease, mortgage, license, grant
a security interest in or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral.
(d) Debtor shall pay promptly
when due all taxes, license fees, assessments and public and private charges levied or assessed on any of the Collateral, on its use, or on this Agreement or any of the other Debt Documents. At its option, Secured Party may discharge taxes, liens,
security interests or other encumbrances at any time levied or placed on the Collateral and may pay for the maintenance, insurance and preservation of the Collateral and effect compliance with the terms of this Agreement or any of the other Debt
Documents. Debtor agrees to reimburse Secured Party, on demand, all costs and expenses incurred by Secured Party in connection with such payment or performance and agrees that such reimbursement obligation shall constitute Indebtedness.
(e) Debtor shall, at all times, keep accurate and complete records of the Collateral, and Secured Party shall have the right to inspect and make
copies of all of Debtor’s books and records relating to the Collateral during normal business hours, after giving Debtor reasonable prior notice.
(f) Debtor agrees and acknowledges that any third person who may at any time possess all or any portion of the Collateral shall be deemed to hold, and shall hold, the Collateral as the agent of, and as pledge holder
for, Secured Party. Secured Party may at any time give notice to any third person described in the preceding sentence that such third person is holding the Collateral as the agent of, and as pledge holder for, the Secured Party.
(a) Debtor shall at all times bear the
entire risk of any loss, theft, damage to, or destruction of, any of the Collateral from any cause whatsoever.
(b) Debtor agrees to keep
the Collateral insured against loss or damage by fire and extended coverage perils, theft, burglary, and for any or all Collateral which are vehicles, for risk of loss by collision, and if requested by Secured Party, against such other risks as
Secured Party may reasonably require. The insurance coverage shall be in an amount no less than the full replacement value of the Collateral, and deductible amounts, insurers and policies shall be acceptable to Secured Party. Debtor shall deliver to
Secured Party policies or certificates of insurance evidencing such coverage. Each policy shall name Secured Party as a loss payee, shall provide for coverage to Secured Party regardless of the breach by Debtor of any warranty or representation made
therein, shall not be subject to co-insurance, and shall provide that coverage may not be canceled or altered by the insurer except upon thirty (30) days prior written notice to Secured Party. Debtor appoints Secured Party as its
attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to receive payment of and execute or endorse all documents, checks or drafts in connection with insurance payments. Secured Party shall not act as
Debtor’s attorney-in-fact unless Debtor is in default. Proceeds of insurance shall be applied, at the option of Secured Party, to repair or replace the Collateral or to reduce any of the Indebtedness.
(a) Debtor shall promptly notify Secured
Party of (i) any change in the name of Debtor, (ii) any change in the state of its incorporation or registration, (iii) any relocation of its chief executive offices, (iv) any relocation of any of the Collateral, (v) any of
the Collateral being lost, stolen, missing, destroyed, materially damaged or worn out, or (vi) any lien, claim or encumbrance other than Permitted Liens attaching to or being made against any of the Collateral.
(b) Debtor will deliver to Secured Party Debtor’s complete financial statements, certified by a recognized firm of certified public accountants,
within ninety (90) days of the close of each fiscal year of Debtor. If Secured Party requests, Debtor will deliver to Secured Party copies of Debtor’s quarterly financial reports certified by Debtor’s chief financial officer, within
ninety (90) days after the close of each of Debtor’s fiscal quarter. Debtor will deliver to Secured Party copies of all Forms 10-K and 10-Q, if any, within 30 days after the dates on which they are filed with the Securities and Exchange
Commission.
(a) Debtor shall, upon request
of Secured Party, furnish to Secured Party such further information, execute and deliver to Secured Party such documents and instruments (including, without limitation, Uniform Commercial Code financing statements) and shall do such other acts and
things as Secured Party may at any time reasonably request relating to the perfection or protection of the security interest created by this Agreement or for the purpose of carrying out the intent of this Agreement. Without limiting the foregoing,
Debtor shall cooperate and do all acts deemed necessary or advisable by Secured Party to continue in Secured Party a perfected first security interest in the Collateral, and shall obtain and furnish to Secured Party any subordinations, releases,
landlord waivers, lessor waivers, mortgagee waivers, or control agreements, and similar documents as may be from time to time requested by, and in form and substance satisfactory to, Secured Party.
(b) Debtor authorizes Secured Party to file a financing statement and amendments thereto describing the Collateral and containing any other information
required by the applicable Uniform Commercial Code. Debtor irrevocably grants to Secured Party the power to sign Debtor’s name and generally to act on behalf of Debtor to execute and file applications for title, transfers of title, financing
statements, notices of lien and other documents pertaining to any or all of the Collateral; this power is coupled with Secured Party’s interest in the Collateral. Debtor shall, if any certificate of title be required or permitted by law for any
of the Collateral, obtain and promptly deliver to Secured Party such certificate showing the lien of this Agreement with respect to the Collateral. Debtor ratifies its prior authorization for Secured Party to file financing statements and amendments
thereto describing the Collateral and containing any other information required by the Uniform Commercial Code if filed prior to the date hereof.
(c) Debtor shall indemnify and defend the Secured Party, its successors and assigns, and their respective directors, officers and employees, from and against all claims, actions and suits (including, without limitation, related
attorneys’ fees) of any kind whatsoever arising, directly or indirectly, in connection with any of the Collateral.
(a) Debtor shall be in
default under this Agreement and each of the other Debt Documents if:
(i) Debtor breaches its obligation to pay when due
any installment or other amount due or coming due under any of the Debt Documents;
(ii) Debtor, without the prior written
consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (except for Permitted Liens) any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section 4;
(iv) Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure that breach within thirty
(30) days after written notice from Secured Party;
(v) Any warranty, representation or statement made by Debtor in any
of the Debt Documents or otherwise in connection with any of the Indebtedness shall be false or misleading in any material respect;
(vi) Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which
in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(vii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the Indebtedness (collectively
“Guarantor”
) dissolves,
terminates its existence, becomes insolvent or ceases to do business as a going concern;
(ix) If Debtor or any Guarantor is
a natural person, Debtor or any such Guarantor dies or becomes incompetent;
(x) A receiver is appointed for all or of any
part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xi) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such petition is filed against Debtor or any Guarantor and is not dismissed within forty-five (45) days; or
(xii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the
Collateral.
(b) If Debtor is in default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately
due and payable, without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the lower of eighteen percent (18%) per annum or
the maximum rate not prohibited by applicable law.
(c) After default, Secured Party shall have all of the rights and remedies of a Secured
Party under the Uniform Commercial Code, and under any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part
of the Collateral to make payment to the Secured Party, (ii) with or without legal process, enter any premises where the Collateral may be and take possession of and remove the Collateral from the premises or store it on the premises,
(iii) sell the Collateral at public or private sale, in whole or in part, and have the right to bid and purchase at said sale, or (iv) lease or otherwise dispose of all or part of the Collateral, applying proceeds from such disposition to
the obligations then in default If requested by Secured Party, Debtor shall promptly assemble the Collateral and make it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Secured
Party may also render any or all of the Collateral unusable at the Debtor’s premises and may dispose of such Collateral on such premises without liability for rent or costs. Any notice that Secured Party is required to give to Debtor under the
Uniform Commercial Code of the time and place of any public sale or the time after which any private sale or other intended disposition of the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the
last known address of Debtor at least five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition
shall be applied: first, to all costs of repossession, storage, and disposition including without limitation attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in default; third, to discharge any
other Indebtedness of Debtor to Secured Party, whether as obligor, endorser, guarantor, surety or indemnitor, fourth, to expenses incurred in paying or settling liens and claims against the Collateral; and lastly, to Debtor, if there exists any
surplus. Debtor shall remain fully liable for any deficiency.
(e) Debtor agrees to pay all reasonable attorneys’ fees and other costs
incurred by Secured Party in connection with the enforcement, assertion, defense or preservation of Secured Party’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Debtor further agrees
that such fees and costs shall constitute Indebtedness.
(f) Secured Party’s rights and remedies under this Agreement or otherwise
arising are cumulative and may be exercised singularly or concurrently. Neither the failure nor any delay on the part of the Secured Party to exercise any right, power or privilege under this Agreement shall operate as a waiver, nor shall any single
or partial exercise of any right, power or privilege preclude any other or further exercise of that or any other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER
PARTY. A waiver on any one occasion shall not be construed as a bar to or waiver of any right or remedy on any future occasion.
(g) DEBTOR
AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR
AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY
AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(a) This Agreement, any Note and/or
any of the other Debt Documents may be assigned, in whole or in part, by Secured Party without notice to Debtor, and Debtor agrees not to assert against any such assignee, or assignee’s assigns, any defense, set-off, recoupment claim or
counterclaim which Debtor has or may at any time have against Secured Party for any reason whatsoever. Debtor agrees that if Debtor receives written notice of an assignment from Secured Party, Debtor will pay all amounts payable under any assigned
Debt Documents to such assignee or as instructed by Secured Party. Debtor also agrees to confirm in writing receipt of the notice of assignment as may be reasonably requested by Secured Party or assignee.
(b) All notices to be given in connection with this Agreement shall be in writing, shall be addressed to the parties at their respective addresses set
forth in this Agreement (unless and until a different address may be specified in a written notice to the other party), and shall be deemed given (i) on the date of receipt if delivered in hand or by facsimile transmission, (ii) on the
next business day after being sent by express mail, and (iii) on the fourth business day after being sent by regular, registered or certified mail. As used herein, the term “business day” shall mean and include any day other than
Saturdays, Sundays, or other days on which commercial banks in New York, New York are required or authorized to be closed.
(c) Secured
Party may correct patent errors and fill in all blanks in this Agreement or in any Collateral Schedule consistent with the agreement of the parties.
(d) Time is of the essence of this Agreement. This Agreement shall be binding, jointly and severally, upon all parties described as the “Debtor” and their respective heirs, executors, representatives,
successors and assigns, and shall inure to the benefit of Secured Party, its successors and assigns.
(e) This Agreement and its Collateral
Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersede all prior understandings (whether written, verbal or implied) with respect to such subject matter. THIS AGREEMENT AND
ITS COLLATERAL SCHEDULES SHALL NOT BE CHANGED OR TERMINATED ORALLY OR BY COURSE OF CONDUCT, BUT ONLY BY A WRITING SIGNED BY BOTH PARTIES. Section headings contained in this Agreement have been included for convenience only, and shall not affect the
construction or interpretation of this Agreement.
(f) This Agreement shall continue in full force and effect until all of the Indebtedness
has been indefeasibly paid in full to Secured Party or its assignee. The surrender, upon payment or otherwise, of any Note or any of the other documents evidencing any of the Indebtedness shall not affect the right of Secured Party to retain the
Collateral for such other Indebtedness as may then exist or as it may be reasonably contemplated will exist in the future. This Agreement shall automatically be reinstated if Secured Party is ever required to return or restore the payment of all or
any portion of the Indebtedness (all as though such payment had never been made).
(g) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CONNECTICUT (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT.
IN WITNESS WHEREOF,
Debtor and Secured Party, intending to be legally
bound hereby, have duly executed this Agreement in one or more counterparts, each of which shall be deemed to be an original, as of the day and year first aforesaid.
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SECURED PARTY:
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DEBTOR:
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General Electric Capital Corporation
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Infinity Pharmaceuticals, Inc.
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By:
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/s/ John Edel
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By:
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/s/ Steve Holtzman
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Name:
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John Edel
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Name:
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Steve Holtzman
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Title:
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SVP
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Title:
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President/CEO
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AMENDMENT
THIS AMENDMENT is made as of the 6 day of December, 2002, between General Electric Capital Corporation (“Secured Party”) and Infinity Pharmaceuticals, Inc. (“Debtor”) in connection with that
certain Master Security Agreement, dated as of December 6, 2002 (“Agreement”). The terms of this Amendment are hereby incorporated into the Agreement as though fully set forth therein. Section references below refer to the section
numbers of the Agreement. The Agreement is hereby amended as follows:
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1.
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CREATION OF SECURITY INTEREST.
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The Section
is hereby amended and replaced with the following:
“Debtor grants to Secured Party, its successors and assigns, a security interest in
and against all property listed on any collateral schedule now or in the future annexed to or made a part of this Agreement by the Debtor’s execution thereof
(
“Collateral Schedule”
),
and in and against all
additions, attachments, accessories and accessions to such property, all substitutions, replacements or exchanges therefor, and all insurance and/or other proceeds thereof (all such property is individually and collectively called the
“Collateral”
).
This security interest is given to secure the payment and performance of all debts, obligations and liabilities of any kind whatsoever of Debtor to Secured Party, now existing or arising in the future,
including but not limited to the payment and performance of certain Promissory Notes from time to time identified on any Collateral Schedule (collectively
“Notes”
and each a
“Note”
),
and any renewals,
extensions and modifications of such debts, obligations and liabilities (such Notes, debts, obligations and liabilities are called the
“Indebtedness”
).”
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2.
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REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
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Subsection (a) is hereby amended and replaced with the following:
“(a) Debtor’s exact legal name is as set forth in
the preamble of this Agreement and Debtor is, and will remain, duly organized, existing and in good standing under the laws of the State set forth in the preamble of this Agreement or such other State as Debtor may be incorporated or formed, has its
chief executive offices at the location specified in the preamble, and is, and will remain, duly qualified and licensed in every jurisdiction wherever necessary to carry on its business and operations;”
Subsection (a) is hereby
amended and replaced with the following:
“Until the occurrence of an Event of Default (as defined below), Debtor shall remain in
possession of the Collateral; except that Secured Party shall have the right to possess (i) any chattel paper or instrument that constitutes a part of the Collateral, and (ii) any other Collateral in which Secured Party’s security
interest may be perfected only by possession. Secured Party may inspect any of the Collateral during normal
business hours after giving Debtor reasonable prior notice. If Secured Party asks, Debtor will promptly notify Secured Party in writing of the location of
any Collateral.”
Subsection (d) is hereby amended and replaced with the following:
“(d) Debtor shall pay promptly when due all taxes, license fees, assessments and public and private charges levied or assessed on any of the
Collateral, on its use, or on this Agreement or any of the other Debt Documents. At its option and with notice to Debtor, Secured Party may discharge taxes, liens, security interests or other encumbrances at any time levied or placed on the
Collateral and may pay for the maintenance, insurance and preservation of the Collateral and effect compliance with the terms of this Agreement or any of the other Debt Documents. Debtor agrees to reimburse Secured Party, on demand, all costs and
expenses incurred by Secured Party in connection with such payment or performance and agrees that such reimbursement obligation shall constitute Indebtedness.”
New subsection (g) is hereby added to Section 3 and reads as follows:
“(g) Secured Party, at
Debtor’s request from time to time but in no event no more than once a year, shall release its security interest in any obsolete or surplus Collateral, which has, together with any other Collateral previously released pursuant hereto, an
aggregate cost of not more than twenty percent (20%) of the aggregate amount of the Notes, if and only if, Debtor prepays all accrued and unpaid interest and outstanding principal under the Notes allocable such item or items of Collateral.
Secured Party shall, at Debtor’s sole cost and expense, execute such further documents and take such further actions as may be reasonably necessary to effect the release contemplated by this subsection, including duly executing and delivering
termination statements for filing in all relevant jurisdictions. Notwithstanding anything contained herein to the contrary, Debtor may replace existing Collateral with other Collateral if approved by Secured Party’s Asset Management Department
which consent will not be unreasonably withheld, upon providing Secured Party with a first priority perfected security interest in such Collateral with an equal or greater value than the existing Collateral; provided that, Debtor shall provide
Secured Party with evidence reasonably satisfactory to Secured Party of the value of such Collateral and provide all documentation Secured Party reasonably deems necessary to provide Secured Party with a first perfected security interest.”
Subsection (b) is hereby
amended and replaced with the following:
“(b) Debtor agrees to keep the Collateral insured against loss or damage by fire and extended
coverage perils, theft, burglary, and for any or all Collateral which are vehicles, for risk of loss by collision, and if requested by Secured Party, against such other risks as Secured Party may reasonably require. The insurance coverage shall be
in an amount no less than the full replacement value of the Collateral, and deductible amounts, insurers and policies shall be acceptable to Secured Party. Debtor shall deliver to Secured Party policies or certificates of insurance evidencing such
coverage. Each policy shall name Secured Party as a loss payee, shall provide for coverage to
Secured Party regardless of the breach by Debtor of any warranty or representation made therein, shall not be subject to co-insurance, and shall provide that
coverage may not be canceled or altered by the insurer except upon thirty (30) days prior written notice to Secured Party. Debtor appoints Secured Party as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with
insurers, and to receive payment of and execute or endorse all documents, checks or drafts in connection with insurance payments. Secured Party shall not act as Debtor’s attorney-in-fact unless Debtor is in default. So long as no Event of
Default exists, proceeds of insurance in the amount of $350,000 or less shall be applied, at the option of Debtor, to repair or replace the Collateral or to reduce any of the Indebtedness. Proceeds of insurance over $350,000 or more shall be
applied, at the option of Secured Party, to repair or replace the Collateral or to reduce any of the Indebtedness.”
Subsection (b) is hereby
amended and replaced with the following:
“(b) Debtor will deliver to Secured Party Debtor’s complete financial statements,
certified by a recognized firm of certified public accountants, within one hundred twenty (120) days of the close of each fiscal year of Debtor. If Secured Party requests, Debtor will deliver to Secured Party copies of Debtor’s quarterly
financial reports certified by Debtor’s chief financial officer, within ninety (90) days after the close of each of Debtor’s fiscal quarter. Debtor will deliver to Secured Party copies of all Forms 10-K and 10-Q, if any, within 30
days after the dates on which they are filed with the Securities and Exchange Commission.”
Subsection (a) is
hereby amended and replaced with the following:
“(a) Debtor shall, upon request of Secured Party, furnish to Secured Party such
further information, execute and deliver to Secured Party such documents and instruments (including, without limitation, Uniform Commercial Code financing statements) and shall do such other acts and things as Secured Party may at any time
reasonably request relating to the perfection or protection of the security interest created by this Agreement or for the purpose of carrying out the intent of this Agreement. Without limiting the foregoing, Debtor shall cooperate and do all acts
deemed necessary or advisable by Secured Party to continue in Secured Party a perfected first security interest in the Collateral, and shall obtain and furnish to Secured Party any subordinations, releases, landlord waivers, lessor waivers,
mortgagee waivers, or control agreements, and similar documents as may be from time to time reasonably requested by, and in form and substance satisfactory to, Secured Party.”
Subsection (c) is hereby amended and replaced with the following:
“(c) Debtor shall indemnify and defend the Secured Party, its successors and assigns, and their respective directors, officers and employees, from and against all claims, actions and suits (including, without
limitation, related and reasonable attorneys’ fees) of any kind whatsoever arising, directly or indirectly, in connection
with any of the Collateral other than those resulting from the gross negligence or willful misconduct of Secured Party.”
Subsection
(a) is hereby amended and replaced with the following:
“(a) The following shall constitute an event of default (“Event of
Default”) under this Agreement and each of the other Debt Documents if:”
Subsection (a)(i) is hereby amended and replaced with
the following:
“(i) Debtor breaches its obligation to pay when due any installment or other amount due or coming due under the Note or
under any of the other Debt Documents;”
Subsection (a)(v) is hereby amended and replaced with the following:
“Any warranty, representation or statement made by Debtor in any of the Debt Documents or otherwise in connection with any of the Indebtedness shall
be false or misleading in any material respect when made;”
Subsection (a)(vi) is hereby amended and replaced with the following:
“(vi) Any of the Collateral with an original equipment cost of $25,000 or more is subjected to attachment, execution, levy, seizure or
confiscation in any legal proceeding or otherwise, and is not released within sixty (60) days of the Debtor’s receipt of written notice thereof, or if any legal or administrative proceeding is commenced against Debtor or any of the
Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order within thirty (30) days after
request from Secured Party obtained to negate such risk;”
New Subsection (a)(xiii) is hereby added to Section 7 and reads as
follows:
“(xiii) There is a material adverse change in the Debtor’s financial condition as determined by Secured Party in its
reasonable judgment.”
Subsection (b) is hereby amended and replaced with the following:
“(b) Upon an Event of Default, the Secured Party, at its option, may declare any or all of the Indebtedness to be immediately due and payable,
without demand or notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (both before and after any judgment) until paid in full at the lower of eighteen percent (18%) per annum or the maximum rate
not prohibited by applicable law.”
Subsection (c) is hereby amended and replaced with the following:
“After an Event of Default, Secured Party shall have all of the rights and remedies of a Secured Party under the Uniform Commercial Code, and under
any other applicable law. Without limiting the foregoing, Secured Party shall have the right to (i) notify any
account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with or
without legal process, enter any premises where the Collateral may be and take possession of and remove the Collateral from the premises or store it on the premises, (iii) sell the Collateral at public or private sale, in whole or in part, and
have the right to bid and purchase at said sale, or (iv) lease or otherwise dispose of all or part of the Collateral, applying proceeds from such disposition to the obligations then in default. If requested by Secured Party, Debtor shall
promptly assemble the Collateral and make it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Secured Party may also render any or all of the Collateral unusable at the
Debtor’s premises and may dispose of such Collateral on such premises without liability for rent or costs. Any notice that Secured Party is required to give to Debtor under the Uniform Commercial Code of the time and place of any public sale or
the time after which any private sale or other intended disposition of the Collateral is to be made shall be deemed to constitute reasonable notice if such notice is given to the last known address of Debtor at least five (5) days prior to such
action.”
Subsection (d) is hereby amended and replaced with the following:
“(d) Proceeds from any sale or lease or other disposition shall be applied: first, to all costs of repossession, storage, and disposition including
without limitation reasonable attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in default; third, to discharge any other Indebtedness of Debtor to Secured Party, whether as obligor, endorser,
guarantor, surety or indemnitor; fourth, to expenses incurred in paying or settling liens and claims against the Collateral; and lastly, to Debtor, if there exists any surplus. Debtor shall remain fully liable for any deficiency.”
Subsection (a) is hereby
amended and replaced with the following:
“(a) This Agreement, any Note and/or any of the other Debt Documents may be assigned, in
whole or in part, by Secured Party without notice to Debtor and Debtor agrees not to assert against any such assignee, or assignee’s assigns, any defense, set-off, recoupment claim or counterclaim which Debtor has or may at any time have
against Secured Party for any reason whatsoever. Debtor agrees that if Debtor receives written notice of an assignment from Secured Party, Debtor will pay all amounts payable under any assigned Debt Documents to such assignee or as instructed by
Secured Party provided that such assignee agrees to assume the obligations of Secured Party hereunder. Debtor also agrees to confirm in writing receipt of the notice of assignment as may be reasonably requested by Secured Party or assignee. Debtor
may assign this Agreement only in connection with a merger or change in control event permitted by, or consented to by Secured Party under, the terms of Section 8(h) or 8(i).
Subsection (e) is hereby amended and replaced with the following:
“(e) This Agreement, the Notes, the Amendment dated of even date herewith, the Commitment Letter dated December
, 2002, and the
Collateral Schedules constitute the entire agreement between the parties with respect to the subject matter
of this Agreement and supersede all prior understandings (whether written, verbal or implied) with respect to such subject matter. THIS AGREEMENT AND ITS
COLLATERAL SCHEDULES SHALL NOT BE CHANGED OR TERMINATED ORALLY OR BY COURSE OF CONDUCT, BUT ONLY BY A WRITING SIGNED BY BOTH PARTIES. Section headings contained in this Agreement have been included for convenience only, and shall not affect the
construction or interpretation of this Agreement.”
Subsection (f) is hereby amended and replaced with the following:
“(f) This Agreement shall continue in full force and effect until all of the Indebtedness has been paid in full to Secured Party or its assignee.
The surrender, upon payment or otherwise, of any Note or any of the other documents evidencing any of the Indebtedness shall not affect the right of Secured Party to retain the Collateral for such other Indebtedness as may then exist or as it may be
reasonably contemplated will exist in the future. This Agreement shall automatically be reinstated if Secured Party is ever required to return or restore the payment of all or any portion of the Indebtedness (all as though such payment had never
been made). Notwithstanding the foregoing to the contrary, if a Note has been paid in full, Secured Party shall promptly release its lien on the Collateral under the Collateral Schedule associated with the Note.”
New Subsection (h) is hereby added to Section 8 and reads as follows:
“Debtor may, without the consent of Secured Party, merge or consolidate with or into any other entity or acquire all or substantially all of the
capital stock or assets of another entity (collectively, a “Merger Event”) if (A) such Merger Event shall require the expenditure of less than twenty-five percent (25%) of the cash on Debtor’s balance sheet immediately prior
to such Merger Event or (B) the consideration paid by Debtor in such Merger Event shall be comprised solely of its equity securities.
For other mergers/acquisitions which do not meet this test, Secured Party has the right to consent, not to be unreasonably withheld. If Secured Party does not consent, Debtor has the right to prepay the Indebtedness as specified in the
corresponding promissory note.”
New Subsection (i) is hereby added to Section 8 and reads as follows:
“Except with Secured Party’s prior written consent (which shall not be unreasonably withheld), Debtor shall not have a material change in its
ownership of greater than 49% (other than by the sale of Debtor’s equity securities in a public offering or to venture capital investors) (an “Ownership Event”); provided, however, that, if the Ownership Event consists of an
acquisition by a person/entity with a net worth of $100,000,000 or greater, Secured Party’s consent to such Ownership Event shall not be required (collectively, an “Ownership Event”).
For an Ownership Event which does not meet this test, Secured Party has the right to consent, not to be unreasonably withheld. If Secured Party does not
consent, Debtor has the right to prepay the Indebtedness as specified in the corresponding promissory note.”
TERMS USED, BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE AGREEMENT.
EXCEPT AS EXPRESSLY AMENDED HEREBY, THE AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT. IF THERE IS ANY CONFLICT BETWEEN THE PROVISIONS OF THE AGREEMENT AND THIS AMENDMENT, THEN THIS AMENDMENT SHALL CONTROL.
IN WITNESS WHEREOF,
the parties hereto have executed this Amendment simultaneously with the Agreement by signature of their respective authorized
representative set forth below.
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General Electric Capital Corporation
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Infinity Pharmaceuticals, Inc.
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By:
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/s/ John Edel
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By:
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/s/ Steven H. Holtzman
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Name:
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John Edel
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Name:
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Steven H Holtzman
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Title:
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SVP
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Title:
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Pres & CEO
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General Electric Capital Corporation
AMENDMENT TO
MASTER SECURITY AGREEMENT DATED DECEMBER 6, 2002
BY AND BETWEEN
INFINITY PHARMACEUTICALS, INC., AS DEBTOR
AND
GENERAL ELECTRIC CAPITAL CORPORATION, AS SECURED PARTY
Debtor and Secured Party hereby amend
Master Security Agreement dated December 6, 2002, all Collateral Schedules thereunder and all Promissory Notes and other related documents (herein collectively referred to as the “Agreements”) to reflect Debtor’s address change
from
650 Albany Street, Boston, MA 02118
to
780 Memorial Drive, Cambridge, MA 02139.
All other terms and conditions of the Agreements remain
the same.
IN WITNESS WHEREOF, Debtor and Secured Party have each caused this Amendment to be duly executed in their respective names.
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DEBTOR:
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SECURED PARTY:
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Infinity Pharmaceuticals, Inc.
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General Electric Capital Corporation
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By:
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/s/ Thomas Burke
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By:
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/s/ John Edel
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Title:
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Controller
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Title:
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SVP
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Date:
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1/31/3
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Date:
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1/31/03
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Equipment Concentration Rider
Infinity Pharmaceuticals, Inc.
(“Customer”), on or before December 31, 2004, shall cause the composition and mix of Equipment financed after March 1, 2004 under the Master Security Agreement
dated as of December 6, 2002 between Customer and General Electric Capital Corporation to conform to and meet the following concentration requirements (hereinafter “Concentration Requirements”) for each class of Equipment (hereinafter
“Equipment Class”) as identified and set forth below. Customer herein represents and warrants that it shall maintain each such Equipment Class and its respective Concentration Requirement from and after such above referenced date and
continuing thereafter to the end of the term:
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Equipment Class
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Concentration Requirement
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Laboratory & scientific equipment:
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Minimum of 70%
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Furniture, Computers, & Office Equipment:
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Maximum of 10%
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Software & Soft Costs:
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Maximum of 20%
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Accepted and Agreed:
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Infinity Pharmaceuticals, Inc.
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By:
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/s/ Steven H. Holtzman
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Title:
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CEO/President
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Date:
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3/9/04
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PROMISSORY NOTE
12/28/05
(Date)
FOR VALUE RECEIVED, Infinity Pharmaceuticals, Inc. a corporation located at the address stated below (
“Maker”
) promises, jointly and severally if more than one, to pay to the order of General Electric
Capital Corporation or any subsequent holder hereof (each, a
“Payee”
) at its office located at 83 Wooster Heights Road, Danbury, CT 06810 or at such other place as Payee or the holder hereof may designate, the principal sum of One
Hundred Thirty Eight Thousand Five Hundred Twenty Five and —36700 ($138,525.36) with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of Ten and Thirty Two
Hundredths percent (10.32%) per annum, to be paid in lawful money of the United States, in Thirty-Six (36) consecutive monthly installments of principal and interest as follows:
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Periodic Installment
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Amount
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Thirty-Five (35)
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$
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4,452.37
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each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 1/1/06 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the “Security Agreement”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days alter its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable,” or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the
entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the
lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire
indebtedness plus an additional sum as a premium equal to the following percentages of the remaining principal balance for the indicated period:
Prior to
the first annual anniversary date of this Note: three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent
(2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention
of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the
payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by
applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and
(d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without
limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract
rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it
becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to
the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers,
guarantors or any others (each such person, other than the Maker, an “Obligor”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or
modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and
agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any
security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith,
as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’
fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OF CAUSE OK ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS
WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or
implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by
an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ James Popek
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By:
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/s/ Thomas J. Burke
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(Witness)
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James Popek
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Name:
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Thomas J. Burke
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(Print name)
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780 Memorial Dr. Cambridge, MA 02139
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Title:
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Controller
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(Address)
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Federal Tax ID#: 04-3549480
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Address: 780 Memorial Drive, Cambridge, MA 02139
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PROMISSORY NOTE
1/31/03
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below (
“Maker”
) promises, jointly and severally if more than one, to pay to the order of
General Electric Capital Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
401 Merritt 7 Suite 23, Norwalk, CT 06851-1177
or at such other place as Payee or the holder hereof may
designate, the principal sum of
One Million Dollars ($1,000,000.00),
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of Seven and Ninety Hundredths
percent (7.90%) per annum, to be paid in lawful money of the United States, in Thirty-Six (36) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
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Amount
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Thirty-Five (35)
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$31,085.61
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each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 2/1/03 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the “Security Agreement”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note:
three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention
of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the
payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by
applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to
pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by
applicable law, (c) any such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall
be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the
rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by
applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by
Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater
interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by
the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other
than the Maker, an
“Obligor”)
who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases
of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against
any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The
Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence
in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE,
ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This
Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized
representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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By:
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/s/ Thomas J Burke
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(Witness)
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Name:
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Thomas J Burke
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(Print name)
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Title:
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Controller
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(Address)
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Federal Tax ID#: 04-3549480
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Address: 650 Albany Street, Boston, Suffolk County, MA 02118
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PROMISSORY NOTE
MARCH 28, 2003
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below (“
Maker
”) promises, jointly and severally if more than one, to pay to the order of
General Electric Capital Corporation
or any subsequent holder hereof (each, a “
Payee
”) at its office located at
401 Merritt 7 Suite
23
,
Norwalk, CT 06851-1177
or at such other place as Payee or the holder
hereof may designate, the principal sum of
One
Hundred Ninety Thousand Four Hundred Thirty Three — 30/00 ($190,433.30),
with interest on the unpaid principal balance, from the date hereof through and including the dates of
payment, at a fixed interest rate of Eight and Two Hundredths percent (8.02%) per annum, to be paid in lawful money of the United States, in Thirty-Six (36) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
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Amount
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Thirty-Five (35)
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$5,929.62
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each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on APRIL 1, 2003
and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be
made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not
constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly
authorizes the Payee to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This
Note is secured by a certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the
“Security Agreement”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note:
three percent (3%) Thereafter and prior to the second annual anniversary date of this Note: two percent (2%)
Thereafter and prior to the third annual
anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest
is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note
or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other
person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which
may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds
the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all
interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”
) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and
all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to
foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and
all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection,
including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior
understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or
conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Dave Bruce
(Witness)
Dave Bruce
(Print
name)
780 Memorial Drive
(Address)
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By:
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/s/ Thomas J Burke
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Name:
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Thomas J Burke
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Title:
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Controller
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Federal Tax ID#: 04-3549480
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Address: 780 Memorial Drive, Cambridge, MA 02139
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PROMISSORY NOTE
May 1, 2003
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below (
“Maker”
) promises, jointly and severally if more than one, to pay to the order of
General Electric Capital Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
401 Merritt 7 Suite 23, Norwalk, CT 06851-1177
or at such other place as Payee or the holder hereof may
designate, the principal sum of
One Hundred Nineteen Thousand Seven Hundred Eighty Three—51/00 ($119,783.51)
, with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed
interest rate of Seven and Ninety Six Hundredths percent (7.96%) per annum, to be paid in lawful money of the United States, in Thirty-Six (36) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
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Amount
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Thirty-Five (35)
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$
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3,726.65
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each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on June 1, 2003 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month
(each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be
made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not
constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly
authorizes the Payee to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This
Note is secured by a certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the “
Security Agreement
”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note:
three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention
of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the
payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by
applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds
the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all
interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”
) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and
all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to
foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and
all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection,
including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior
understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or
conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Dave Bruce
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By:
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/s/ Thomas J Burke
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(Witness)
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Name:
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Thomas J Burke
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Dave Bruce
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Title:
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Controller
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(Print name)
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Federal Tax ID#: 04-3549480
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780 Memorial Drive
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Address:
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780 Memorial Drive, Cambridge, MA 02139
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(Address)
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PROMISSORY NOTE
June 3, 2003
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below (“
Maker
”) promises, jointly and severally if more than one, to pay to the order
of
General Electric Capital Corporation
or any subsequent holder hereof (each, a “
Payee
”) at its office located at
401 Merritt 7 Suite
23,
Norwalk, CT 06851-1177
or at such other place as Payee or the holder
hereof may designate, the principal sum of
Five
Hundred Ninety-Nine Thousand Seventy-96/100 ($599,070.96),
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed
interest rate of Seven and Fifty-Three Hundredths percent (7.53%) per annum, to be paid in lawful money of the United States, in Thirty-Six (36) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
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Amount
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Thirty-Five (35)
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$
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18,527.50
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each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 7/1/03 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the
“Security Agreement”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note:
three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention
of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the
payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by
applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds
the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all
interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an “Obligor”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made,
granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose,
proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other
notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including
Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior
understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or
conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Dave Bruce
(Witness)
Dave Bruce
(Print
name)
780 Memorial Drive
(Address)
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By:
Name:
Title:
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/s/ Thomas J Burke
Thomas J
Burke
Controller
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Federal Tax ID #: 04-3549480
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Address: 780 Memorial Drive, Cambridge, MA 02139
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PROMISSORY NOTE
10/30/03
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below (“
Maker
”) promises, jointly and severally if more than one, to pay to the
order of
General Electric Capital Corporation
or any subsequent holder hereof (each, a “
Payee
”) at its office located at
401
Merritt 7 Suite 23, Norwalk, CT
06851-1177
or at such other place as Payee or the holder
hereof may designate, the principal sum of
Two
Hundred Sixty Four Thousand Thirty Five—01/100 ($264,035.01),
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a
fixed interest rate of Seven and Forty-Eight Hundredths percent (7.48%) per annum, to be paid in lawful money of the United States, in Thirty-Six (36) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
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Amount
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Thirty-Five (35)
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$8,159.84
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each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 7/1/03 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the
“Security Agreement”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual
anniversary date of this Note: three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note:
two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event
shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any
Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall
exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment
hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds
the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all
interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an “
Obligor
”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and
all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to
foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and
all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection,
including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior
understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or
conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Dave Bruce
(Witness)
Dave Bruce
(Print name)
780 Memorial Drive
(Address)
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By:
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/s/ Thomas J Burke
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Name:
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Thomas J Burke
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Title:
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Controller
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Federal Tax ID #: 04-3549480
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Address: 780 Memorial Drive, Cambridge, MA 02139
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PROMISSORY NOTE
8/1/03
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below (“Maker”) promises, jointly and severally if more than one, to pay to the order of
General
Electric Capital Corporation
or any subsequent holder hereof (each, a “
Payee
”) at its office located at
401 Merritt 7 Suite
23,
Norwalk, CT 06851-1177
or at such other place as Payee or the holder hereof may
designate, the principal sum of
Three Hundred Ninety Four Thousand Eight Hundred Eighteen — 73/100 ($394,818.73),
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed
interest rate of Seven and Ninety Eight Hundredths percent (7.98%) per annum, to be paid in lawful money of the United States, in Thirty-Six (36) consecutive monthly installments of principal and interest as follows:
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Periodic
Installment
|
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Amount
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Thirty-Five (35)
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$12,286.83
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each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 8/1/03 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the “
Security Agreement
”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note:
three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent (2%) Thereafter and prior to the third annual
anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest
is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note
or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other
person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which
may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds
the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all
interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an “
Obligor
”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and
all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to
foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and
all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection,
including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior
understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or
conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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Jennifer Zinkann
(Witness)
Jennifer Zinkann
(Print
name)
780 Memorial Drive
(Address)
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By:
|
|
/s/ Thomas J Burke
|
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|
|
|
Name:
|
|
Thomas J Burke
|
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|
|
|
Title:
|
|
Controller
|
|
|
|
|
Federal Tax ID #: 04-3549480
|
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|
Address: 780 Memorial Drive, Cambridge, MA 02139
|
PROMISSORY NOTE
Sept 3, 2003
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below (“
Maker
”) promises, jointly and severally if more than one, to pay to the order of
General Electric Capital Corporation
or any subsequent holder hereof (each, a “
Payee
”) at its office located at
401 Merritt 7 Suite 23, Norwalk, CT 06851-1177
or at such other place as Payee or the holder hereof may
designate, the principal sum of
Two Hundred Forty Eight Thousand Six Hundred Fifty Six— 39/00 ($248,656.39)
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed
interest rate of Eight and Thirty Six Hundredths percent (8.48%) per annum, to be paid in lawful money of the United States, in Thirty-Six (36) consecutive monthly installments of principal and interest as follows:
|
|
|
|
|
|
Periodic
Installment
|
|
Amount
|
|
Thirty-Five (35)
|
|
$
|
7,779.15
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on Oct 1, 2003 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the
“Security Agreement”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual
anniversary date of this Note: three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note:
two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event
shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any
Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall
exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment
hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds
the maximum lawful contract rate, all be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest
at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable
state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder
shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all
sureties, endorsers, guarantors or any others (each such person, other than the Maker, an “Obligor”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals,
waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by
Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust
any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection
herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual
attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF,
DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND
PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or
implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by
an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
|
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|
(Witness)
|
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|
|
By:
|
|
/s/ Thomas J Burke
|
|
(Print name)
|
|
|
|
Name:
|
|
Thomas J Burke
|
|
(Address)
|
|
|
|
Title:
|
|
Controller
|
|
|
|
|
|
Federal Tax ID#: 04-3549480
|
|
|
|
|
|
|
|
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Address:
|
|
780 Memorial Drive, Cambridge, MA 02139
|
PROMISSORY NOTE
2/27/04
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below (“
Maker
”) promises, jointly and severally if more than one, to pay to the order of
General Electric Capital Corporation
or any subsequent holder hereof (each, a “
Payee
”) at its office located at
401 Merritt 7 Suite
23,
Norwalk, CT 06851-1177
or at such other place as Payee or the holder
hereof may designate, the principal sum of
One
Million Four Hundred Forty Two Thousand Nine Hundred Fifteen
—21/00
($1,442,915.21)
with interest on the unpaid principal balance, from the date hereof through and
including the dates of payment, at a fixed interest rate of Seven and Ninety Nine Hundredths percent 7.99%) per annum, to be paid in lawful money of the United States, in Thirty-Six (36) consecutive monthly installments of principal and
interest as follows:
|
|
|
|
|
|
Periodic
Installment
|
|
Amount
|
|
Thirty-Five (35)
|
|
$
|
44,910.25
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 3/1/04 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the
“Security Agreement”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (it) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note:
three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent (2%) Thereafter and prior to the third annual
anniversary date of this Note: one percent (1 %)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest
is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note
or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other
person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which
may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds
the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all
interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an “Obligor”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made,
granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose,
proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other
notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including
Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior
understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or
conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ Jennifer Zinkann
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By:
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/s/ Thomas J Burke
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(Witness)
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Jennifer Zinkann
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Name:
|
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Thomas J Burke
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(Print name)
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Title:
|
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Controller, Treasurer
|
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(Address)
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Federal Tax ID #:
|
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04-3549480
|
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Address:
|
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780 Memorial Drive, Cambridge, MA 02139
|
PROMISSORY NOTE
4/30/04
(Date)
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below
(“Maker”)
promises, jointly and severally if more than one, to pay to the order
of
General Electric Capital Corporation
or any subsequent holder hereof (each, a
“Payee”)
at its office located at
401 Merritt 7 Suite 23, Norwalk, CT 06851-1177
or at such other place as Payee or the holder hereof may
designate, the principal sum of
Six
Hundred Ninety Nine Thousand Three Hundred Seventeen —63/00 ($699,317.63)
with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a
fixed interest rate of Eight and Sixty Six Hundredths percent 8.66%) per annum, to be paid in lawful money of the United States, in Thirty-Six (36) consecutive monthly installments of principal and interest as follows:
|
|
|
|
|
|
Periodic
Installment
|
|
Amount
|
|
Thirty-Five (35)
|
|
$
|
21,967.90
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 5/1/04 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the
“Security Agreement”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual
anniversary date of this Note: three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note:
two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event
shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any
Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall
exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment
hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds
the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all
interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an
“Obligor”)
who may at any time become liable for the payment hereof jointly and severally consent hereby to any and
all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to
foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and
all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection,
including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior
understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or
conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
|
|
|
|
|
|
|
|
|
Infinity Pharmaceuticals, Inc.
|
|
|
|
|
|
/s/ Joseph F. McPherson
|
|
By:
|
|
/s/ Thomas J Burke
|
|
(Witness)
|
|
|
|
|
|
Joseph F. McPherson
|
|
Name:
|
|
Thomas J Burke
|
|
(Print name)
|
|
|
|
|
|
3 Dublin Circle Burlington, MA 01803
|
|
Title:
|
|
Controller
|
|
(Address)
|
|
Federal Tax ID#: 04-3459480
|
|
|
|
|
|
|
|
Address:
|
|
780 Memorial Drive, Cambridge, MA 02139
|
PROMISSORY NOTE
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below
(“
Maker
”) promises, jointly and severally if more than one, to pay to the order of
General Electric Capital Corporation
or any subsequent holder hereof (each, a
“Payee”)
at its office located at
83 Wooster
Heights Road, Danbury, CT 06810
or at such other place as Payee or the holder hereof may designate, the principal sum of
One Hundred Eighty Nine Thousand Five Hundred Thirty Eight—62/00 ($189,538.62)
with interest on the unpaid
principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of Nine and Nineteen Hundredths percent (9.19%) per annum, to be paid in lawful money of the United States, in Thirty-Six
(36) consecutive monthly installments of principal and interest as follows:
|
|
|
|
|
|
Periodic Installment
|
|
Amount
|
|
Thirty-Five (35)
|
|
$
|
6,014.94
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 8/1/04 and the following Periodic Installments and the final installment shall be due and
payable on the same day of each succeeding month (each, a “Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of
the Payee, be calculated and applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is
less than payment in full of all amounts due and owing at such time shall not constitute a waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining
hereto.
This Note is secured by a certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated
December 6, 2002 (as so amended, hereinafter called the
“Security Agreement”)
.
Time is of the essence hereof. If any installment or
any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent
(5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable;
or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security
Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated
maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not
in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note: three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent (2%)
Thereafter and prior to the third annual anniversary
date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this
Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted
for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person
or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and
(d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without
limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract
rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it
becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to
the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers,
guarantors or any others (each such person, other than the Maker, an “
Obligor
”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or
modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and
agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any
security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith,
as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’
fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS
WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or
implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by
an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
|
|
|
|
|
|
|
|
|
Infinity Pharmaceuticals, Inc.
|
|
|
|
|
|
[ILLEGIBLE]
|
|
By:
|
|
/s/ [ILLEGIBLE]
|
|
(Witness)
|
|
Name:
|
|
[ILLEGIBLE]
|
|
[ILLEGIBLE]
|
|
Title:
|
|
Controller
|
|
(Print name)
|
|
|
|
|
|
|
|
|
|
780 Memorial Drive, Cambridge, MA 02139
|
|
|
|
|
|
(Address)
|
|
Federal Tax ID #: 04-3549480
|
|
|
|
Address: 780 Memorial Drive, Cambridge, MA 02139
|
PROMISSORY NOTE
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc.
a corporation located at the address stated below
(“
Maker
”) promises, jointly and severally if more than one, to pay to the order of
General
Electric Capital Corporation
or any subsequent holder hereof (each, a “
Payee
”) at its office located at
83
Wooster Heights Road, Danbury, CT 06810
or at such other place as Payee or the holder hereof may designate, the principal sum of
One Million One Hundred Seventy Nine Thousand Ninety Two—93/00 ($1,170,092.93)
with interest on
the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of Eight and Eighty-Two Hundredths percent (8.82%) per annum, to be paid in lawful money of the United States, in Thirty-Six
(36) consecutive monthly installments of principal and interest as follows:
|
|
|
|
|
|
Periodic Installment
|
|
Amount
|
|
Thirty-Five (35)
|
|
$
|
37,110.68
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 9/1/04 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the
“Security Agreement”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note:
three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention
of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the
payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by
applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and
(d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without
limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract
rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it
becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to
the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers,
guarantors or any others (each such person, other than the Maker, an
“Obligor”)
who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or
modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and
agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any
security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith,
as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’
fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS
WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or
implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by
an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
|
|
|
|
|
|
|
|
|
Infinity Pharmaceuticals, Inc.
|
|
|
|
|
|
[ILLEGIBLE]
|
|
By:
|
|
/s/ Thomas J Bruke
|
|
(Witness)
|
|
Name:
|
|
Thomas J Bruke
|
|
[ILLEGIBLE]
|
|
Title:
|
|
Controller
|
|
(Print name)
|
|
|
|
|
|
|
780 Memorial Drive, Cambridge, MA 02139
(Address)
|
|
Federal Tax ID #: 04-3549480
Address: 780 Memorial Drive, Cambridge, MA 02139
|
|
|
|
|
PROMISSORY NOTE
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc
. a corporation located at the address stated below
(“
Maker
”) promises, jointly and severally if more than one, to pay to the order of
General Electric Capital
Corporation
or any subsequent holder hereof (each, a “
Payee
”) at its office located at
83
Wooster Heights Road, Danbury, CT 06810
or at such other place as Payee or the holder hereof may designate, the principal sum of
Three Hundred Ninety One Thousand One Hundred Six —65/00 ($391,196.65)
with interest on the unpaid
principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of Nine and Seventeen Hundredths percent (9.17%) per annum, to be paid in lawful money of the United States, in Thirty-Six
(36) consecutive monthly installments of principal and interest as follows:
|
|
|
|
|
|
Periodic
Installment
|
|
Amount
|
|
Thirty-Five (35)
|
|
$
|
12,373.50
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 1/1/05 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the
“Security Agreement”
).
Time is of the essence hereof. if any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note:
three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention
of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the
payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by
applicable law, then in such event
(a)
the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount
of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds
the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all
interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an “
Obligor
”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and
all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to
foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and
all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection,
including Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior
understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or
conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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By:
|
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/s/ Thomas J Burke
|
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(Witness)
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Name:
|
|
Thomas J Burke
|
|
|
|
|
|
Title:
|
|
Controller
|
|
(Print name)
|
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|
|
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Federal Tax ID #: 04-3549480
Address: 780 Memorial Drive, Cambridge, MA 02139
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(Address)
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PROMISSORY NOTE
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc
. a corporation located at the address stated below
(
“Maker”
) promises, jointly and severally if more than one, to pay to the order of
General Electric Capital Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
83 Wooster
Heights Road, Danbury, CT 06810
or at such other place as Payee or the holder hereof may designate, the principal sum of
Four
Hundred Thirty Eight Thousand Nine Hundred Forty Six and —95/00 ($438,946.95)
with interest on the
unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of Nine and Ninety Seven Hundredths percent (9.97%) per annum, to be paid in lawful money of the United States, in Thirty-Six
(36) consecutive monthly installments of principal and interest as follows:
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|
Periodic Installment
|
|
Amount
|
|
Thirty-Five (35)
|
|
$
|
14,040.76
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic installment shall be due and payable on 4/1/05 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the
“Security Agreement”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note:
three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention
of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event stall this Note or any Security Agreement require the
payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by
applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and
(d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without
limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract
rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it
becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to
the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers,
guarantors or any others (each such person, other than the Maker, an
“Obligor”
) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or
modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and
agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any
security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith,
as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual attorneys’
fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS
WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or
implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by
an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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/s/ James Popek
|
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By:
|
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/s/ Thomas J Burke
|
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(Witness)
|
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|
|
Name:
|
|
Thomas J Burke
|
|
James Popek
(Print
name)
|
|
|
|
Title:
|
|
Controller
|
|
|
|
|
|
780 Memorial Drive, Cambridge, MA 02139
(Address)
|
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|
|
Federal Tax ID #: 04-3549480
Address: 780 Memorial Drive, Cambridge, MA 02139
|
PROMISSORY NOTE
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc
. a corporation located at the address stated below
(“
Maker
”) promises, jointly and severally if more than one, to pay to the order of
General Electric Capital Corporation
or any subsequent holder hereof (each, a “
Payee
”) at its office located at
83
Wooster
Heights Road, Danbury, CT 06810
or at such other place as Payee or the holder hereof may designate, the principal sum of
One Million One Hundred Two Thousand Two Hundred Forty Seven and —67/00 ($1,102,247.67)
with
interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of Nine and Sixty Seven Hundredths percent (9.67%) per annum, to be paid in lawful money of the United States,
in Thirty-Six (36) consecutive monthly installments of principal and interest as follows:
|
|
|
|
|
|
Periodic Installment
|
|
Amount
|
|
Thirty-Five (35)
|
|
$
|
35,112.95
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 7/1/05 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December 6, 2002, as amended by a certain Amendment dated December 6, 2002 (as so amended, hereinafter called the “
Security Agreement
”).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual
anniversary date of this Note: three percent (3%)
Thereafter and prior to the second annual anniversary date of this
Note: two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this
Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted
for, charged or received under this Note or any Security Agreement, or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person
or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds
the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all
interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful
maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an “Obligor”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made,
granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose,
proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other
notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including
Payee’s actual attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior
understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its provisions or
conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
|
|
|
|
|
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/s/ James Popek
|
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By:
|
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/s/ Thomas J Burke
|
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(Witness)
|
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|
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|
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James Popek
|
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Name:
|
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Thomas J Burke
|
|
(Print name)
|
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|
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|
|
780 Memorial Drive., Cambridge, MA 02139
|
|
Title:
|
|
Controller
|
|
(Address)
|
|
|
|
|
|
|
|
Federal Tax ID #:04-3549480
|
|
|
|
|
|
|
Address: 780 Memorial Drive, Cambridge, MA 02139
|
PROMISSORY NOTE
FOR VALUE RECEIVED,
Infinity Pharmaceuticals, Inc
. a corporation located at the address stated below
(
“Maker”
) promises, jointly and severally if more than one, to pay to the order of
General Electric Capital Corporation
or any subsequent holder hereof (each, a
“Payee”
) at its office located at
83 Wooster
Heights Road, Danbury, CT 06810
or at such other place as Payee or the holder hereof may designate, the principal sum of One Hundred Thirty Eight
Thousand Five Hundred Twenty Five and —36/00 ($138,525.36)
with interest on the unpaid
principal balance, from the date hereof through and including the dates of payment, at a fixed interest rate of Ten and Thirty Two Hundredths percent (10.32%) per annum, to be paid in lawful money of the United States, in Thirty-Six
(36) consecutive monthly installments of principal and interest as follows:
|
|
|
|
|
|
Periodic Installment
|
|
Amount
|
|
Thirty-Five (35)
|
|
$
|
4,452.37
|
each (“Periodic Installment”) and a final installment which shall be in the amount of the total
outstanding principal and interest. The first Periodic Installment shall be due and payable on 1/1/ 06 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding month (each, a
“Payment Date”). Such installments have been calculated on the basis of a 360 day year of twelve 30-day months. Each payment may, at the option of the Payee, be calculated and applied on an assumption that such payment would be made on its
due date.
The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a
waiver of Payee’s right to receive payment in full at such time or at any prior or subsequent time.
The Maker hereby expressly authorizes the Payee
to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto.
This Note is secured by a
certain Master Security Agreement dated as of December
6,
2002, as amended by a certain Amendment dated December
6,
2002 (as so amended, hereinafter called the
“Security Agreement”
).
Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due
date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker
fails to make payment of any amount due hereunder within ten (10) days after notice from Payee that the same is due and payable; or (ii) there has occurred and is continuing an Event of Default under the Security Agreement, then the entire
principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser
of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment).
In the event of a merger or change of control event of Maker, Maker may prepay in full, but not in part, its entire indebtedness hereunder upon payment of the entire indebtedness plus an additional sum as a premium
equal to the following percentages of the remaining principal balance for the indicated period:
Prior to the first annual anniversary date of this Note:
three percent (3%)
Thereafter and prior to the second annual anniversary date of this Note: two percent (2%)
Thereafter and prior to the third annual anniversary date of this Note: one percent (1%)
and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement.
It is the intention
of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the
payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the principal
balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by
applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may
have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker,
at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further
agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the
maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at
any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable
state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder
shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America.
The Maker and all
sureties, endorsers, guarantors or any others (each such person, other than the Maker, an “Obligor”) who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals,
waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by
Payee, and agree that suit may be brought and maintained against any one or more of (hem, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust
any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection
herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s actual
attorneys’ fees.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF,
DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND
PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
This Note and the Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or
implied.
No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by
an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
Any provision in this Note or the Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto.
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Infinity Pharmaceuticals, Inc.
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(Witness)
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By:
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James Popek
(Print
name)
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Name:
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(Address)
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Title:
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Controller
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Federal Tax ID #:04 - 3549480
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Address: 780 Memorial Drive, Cambridge, MA 02139
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Exhibit 10.7
2/98(R051903)
*LEAS1998*
MASTER LEASE AGREEMENT
dated as of
August 11, 2004 (“Agreement”)
THIS AGREEMENT
is between
General Electric Capital Corporation
(together with its successors and assigns, if any,
“Lessor”
)
and
INFINITY PHARMACEUTICALS, INC.
(
“Lessee”
). Lessor has an office at 83 Wooster Heights Road, Danbury, CT 06810. Lessee is a corporation organized and existing under the laws of the state
of Delaware. Lessee’s mailing address and chief place of business is 780 Memorial Drive, Cambridge, MA 02139. This Agreement contains the general terms that apply to the leasing of Equipment from Lessor to Lessee. Additional terms that apply to
the Equipment (term, rent, options, etc.) shall be contained on a schedule
(
“Schedule”
).
1. LEASING:
(a) Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment and the property
(
“Equipment”
)
described in any Schedule signed by both parties.
(b) Lessor shall purchase Equipment from the manufacturer or supplier
(
“Supplier”
)
and lease it to Lessee if on or before the Last Delivery Date Lessor receives (i) a Schedule for the Equipment, (ii) evidence of insurance which complies with the requirements of Section 9,
and (iii) such other documents as Lessor may reasonably request. Each of the documents required above must be in form and substance reasonably satisfactory to Lessor. Lessor hereby appoints Lessee its agent for inspection and acceptance of the
Equipment from the Supplier. Once the Schedule is signed, the Lessee may not cancel the Schedule.
2. TERM, RENT AND PAYMENT:
(a) The rent payable for the Equipment and Lessee’s right to use the Equipment shall begin on the earlier of (i) the date when the Lessee signs
the Schedule and accepts the Equipment or (ii) when Lessee has accepted the Equipment under a Certificate of Acceptance
(
“Lease Commencement Date”
).
The term of this Agreement shall be the period specified in the
applicable Schedule. The word “term” shall include all basic and any renewal terms.
(b) Lessee shall pay rent to Lessor at its
address stated above, except as otherwise directed by Lessor. Rent payments shall be in the amount set forth in, and due as stated in the applicable Schedule. If any Advance Rent (as stated in the Schedule) is payable, it shall be due when the
Lessee signs the Schedule. Advance Rent shall be applied to the first rent payment and the balance, if any, to the final rent payment(s) under such Schedule. In no event shall any Advance Rent or any other rent payments be refunded to Lessee. If
rent is not paid within ten (10) days of its due date, Lessee agrees to pay a late charge of five cents ($.05) per dollar on, and in addition to, the amount of such rent but not exceeding the lawful maximum, if any.
3. RENT ADJUSTMENT:
(a) If, solely as a result of
Congressional enactment of any law (including, without limitation, any modification of, or amendment or addition to, the Internal Revenue Code of 1986, as amended, (
“Code”
)), the maximum effective corporate income tax rate
(exclusive of any minimum tax rate) for calendar-year taxpayers
(
“Effective Rate”
)
is higher than thirty-five percent (35%) with a cap of 2%, for any year during the lease term, then Lessor shall have the right to
increase such rent payments by requiring payment of a single additional sum. The additional sum shall be equal to the product of (i) the Effective Rate (expressed as a decimal) for such year less .35 (or, in the event that any adjustment has
been made hereunder for any previous year, the Effective Rate (expressed as a decimal) used in calculating the next previous adjustment) times (ii) the adjusted Termination Value (defined below), divided by (iii) the difference between the
new Effective Rate (expressed as a decimal) and one (1). The adjusted Termination Value shall be the Termination Value (calculated as of the first rent due in the year for which the adjustment is being made) minus the Tax Benefits that would be
allowable under Section 168 of the Code (as of the first day of the year for which such adjustment is being made and all future years of the lease term). The Termination Values and Tax Benefits are defined on the Schedule. Lessee shall pay to
Lessor the full amount of the additional rent payment on the later of (i) receipt of notice or (ii) the first day of the year for which such adjustment is being made.
(b) Lessee’s obligations under this Section 3 shall survive any expiration or termination of this Agreement.
4. TAXES:
(a) If permitted by law, Lessee shall report and pay promptly all taxes, fees and assessments due, imposed, assessed or levied against any Equipment (or purchase, ownership, delivery, leasing, possession, use or operation thereof), this
Agreement (or any rents or receipts hereunder), any Schedule, Lessor or Lessee by any governmental entity or taxing authority during or related to the term of this Agreement, including, without limitation, all license and registration fees, and all
sales, use, personal property, excise, gross receipts, franchise, stamp or other taxes, imposts, duties and charges, together with any penalties, fines or interest thereon (collectively
“Taxes”
). Lessee shall have no liability for
Taxes imposed by the United States of America or any state or political subdivision thereof which are on or measured by the net income of Lessor except as provided in Sections 3 and 14(c). Lessee shall promptly reimburse Lessor (on an after tax
basis) for any Taxes charged to or assessed against Lessor. Lessee shall show Lessor as the owner of the Equipment on all tax reports or returns, and send Lessor a copy of each report or return and evidence of Lessee’s payment of Taxes upon
request.
(b) Lessee’s obligations, and Lessor’s rights and privileges, contained in this Section 4 shall survive the
expiration or other termination of this Agreement.
5. REPORTS:
(a) If any tax or other lien shall attach to any Equipment, Lessee will notify Lessor in writing, within ten (10) days after Lessee becomes aware of the tax or lien. The notice shall include the full particulars
of the tax or lien and the location of such Equipment on the date of the notice.
(b) Lessee will deliver to Lessor Lessee’s complete
financial statements certified by a recognized firm of certified public accountants within one hundred twenty (120) days of the close of each fiscal year of Lessee. If Lessor requests, Lessee will deliver to Lessor copies of Lessee’s
quarterly financial reports within ninety (90) days after the close of each of Lessee’s fiscal quarter. Lessee will deliver to Lessor copies of all Forms 10-K and 10-Q, if any, within thirty (30) days after the dates on which they are
filed with the Securities and Exchange Commission.
(c) Lessor may inspect any Equipment during normal business hours after giving Lessee
reasonable prior notice.
(d) If Lessor asks, Lessee will promptly notify Lessor in writing of the location of any Equipment.
(e) If any Equipment is lost or damaged (where the estimated repair costs would exceed the greater of ten percent (10%) of the original Equipment
cost or ten thousand and 00/100 dollars ($10,000)), or is otherwise involved in an accident causing personal injury or property damage, Lessee will promptly and fully report the event to Lessor in writing.
(f) Lessee will furnish a certificate of an authorized officer of Lessee stating that he has reviewed the activities of Lessee and that, to the best
of his knowledge, there exists no default or event which with notice or lapse of time (or both) would become such a default within thirty (30) days after any request by Lessor.
(g) Lessee will promptly notify Lessor of any change in Lessee’s state of incorporation or organization.
6. DELIVERY, USE AND OPERATION:
(a) All Equipment
shall be shipped directly from the Supplier to Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee solely in the conduct
of its business and in a manner complying with all applicable laws, regulations and insurance policies and Lessee shall not discontinue use of the Equipment.
(c) Lessee will not move any equipment from the location specified on the Schedule, without the prior written consent of Lessor.
(d) Lessee will keep the Equipment free and clear of all liens and encumbrances other than those which result from acts of Lessor.
(e) Lessor shall not disturb Lessee’s quiet enjoyment of the Equipment during the term of the Agreement unless a default has occurred and is continuing under this Agreement.
7. MAINTENANCE:
(a) Lessee will, at its sole
expense, maintain each unit of Equipment in good operating order and repair, normal wear and tear excepted. The Lessee shall also maintain the Equipment in accordance with manufacturer’s recommendations. Lessee shall make all alterations or
modifications required to comply with any applicable law, rule or regulation during the term of this Agreement. If Lessor requests, Lessee shall affix plates, tags or other identifying labels showing ownership thereof by Lessor. The tags or labels
shall be placed in a prominent position on each unit of Equipment.
(b) Lessee will not attach or install anything on any Equipment that will impair the originally intended
function or use of such Equipment without the prior written consent of Lessor. All additions, parts, supplies, accessories, and equipment
(“Additions”)
furnished or attached to any Equipment that are not readily removable shall
become the property of Lessor. All Additions shall be made only in compliance with applicable law. Lessee will not attach or install any Equipment to or in any other personal or real property without the prior written consent of Lessor.
8. STIPULATED LOSS VALUE:
If for any reason any unit of Equipment becomes worn out, lost, stolen, destroyed, irreparably damaged or unusable (
“Casualty
Occurrences”
) Lessee shall promptly and fully notify Lessor in writing. Lessee shall pay Lessor the sum of (i) the Stipulated Loss Value (see Schedule) of the affected unit determined as of the rent payment date prior to the Casualty
Occurrence; and (ii) all accrued rent and other amounts which are then due under this Agreement on the Payment Date (defined below) for the affected unit. The Payment Date shall be the next rent payment date after the Casualty Occurrence. Upon
Payment of all sums due hereunder, the term of this lease as to such unit shall terminate.
9. INSURANCE:
(a) Lessee shall bear the entire risk of any loss, theft, damage to, or destruction of, any unit of Equipment from any cause whatsoever from the time the
Equipment is shipped to Lessee.
(b) Lessee agrees, at its own expense, to keep all Equipment insured for such amounts and against such
hazards as Lessor may reasonably require. All such policies shall be with companies, and on terms, reasonably satisfactory to Lessor. The insurance shall include coverage for damage to or loss of the Equipment, liability for personal injuries, death
or property damage. Lessor shall be named as additional insured with a loss payable clause in favor of Lessor, as its interest may appear, irrespective of any breach of warranty or other act or omission of Lessee. The insurance shall provide for
liability coverage in an amount equal to at least ONE MILLION U.S. DOLLARS ($1,000,000.00) total liability per occurrence, unless otherwise stated in any Schedule. The casualty/property damage coverage shall be in an amount equal to the higher of
the Stipulated Loss Value or the full replacement cost of the Equipment. No insurance shall be subject to any co-insurance clause. The insurance policies shall provide that the insurance may not be altered or canceled by the insurer until after
thirty (30) days written notice to Lessor. Lessee agrees to deliver to Lessor evidence of insurance reasonably satisfactory to Lessor.
(c) Lessee hereby appoints Lessor as Lessee’s attorney-in-fact to make proof of loss and claim for insurance, and to make adjustments with insurers and to receive payment of and execute or endorse all documents, checks or drafts in
connection with insurance payments. Lessor shall not act as Lessee’s attorney-in-fact unless Lessee is in default. Lessee shall pay any reasonable expenses of Lessor in adjusting or collecting insurance. Lessee will not make adjustments with
insurers except with respect to claims for damage to any unit of Equipment where the repair costs are less than the lesser of ten percent (10%) of the original Equipment cost or ten thousand and 00/100 dollars ($10,000). So long as no Event of
Default exists, proceeds of insurance shall be applied, at the option of Lessee, to repair or replace the Equipment or to satisfy any obligation of Lessee to Lessor under this Agreement.
10. RETURN OF EQUIPMENT:
(a) At the expiration or termination of this Agreement or any Schedule,
Lessee shall perform any testing and repairs reasonably required to place the units of Equipment in the same condition and appearance as when received by Lessee (reasonable wear and tear excepted) and in good working order for the original intended
purpose of the Equipment. If required the units of Equipment shall be deinstalled, disassembled and crated by an authorized manufacturer’s representative or such other service person as is reasonably satisfactory to Lessor. Lessee shall remove
installed markings that are not necessary for the operation, maintenance or repair of the Equipment. All Equipment will be cleaned, cosmetically acceptable, and in such condition as to be immediately installed into use in a similar environment for
which the Equipment was originally intended to be used. All waste material and fluid must be removed from the Equipment and disposed of in accordance with then current waste disposal laws. Lessee shall return the units of Equipment to a location
within the continental United States as Lessor shall direct. Lessee shall obtain and pay for a policy of transit insurance for the redelivery period in an amount equal to the replacement value of the Equipment. The transit insurance must name Lessor
as the loss payee. The Lessee shall pay for all costs to comply with this section (a).
(b) Until Lessee has fully complied with the
requirements of Section 10(a) above, Lessee’s rent payment obligation and all other obligations under this Agreement shall continue from month to month notwithstanding any expiration or termination of the lease term
(c) Upon Lessor’s reasonable request Lessee shall provide to Lessor a detailed inventory of all components of the Equipment including model and
serial numbers. Upon Lessor’s reasonable request Lessee shall also provide an up-to-date copy of all other documentation pertaining to the Equipment All service manuals, blue prints, process flow diagrams, operating manuals, inventory and
maintenance records shall be given to Lessor at least ninety (90) days and not more than one hundred twenty (120) days prior to lease termination.
(d) Lessee shall make the Equipment available for on-site operational inspections by potential purchasers
at least one hundred twenty (120) days prior to and continuing up to lease termination. Lessor shall provide Lessee with reasonable notice prior to any inspection. Lessee shall provide reasonable personnel, power and other requirements
necessary to demonstrate electrical, hydraulic and mechanical systems for each item of Equipment.
11. DEFAULT AND REMEDIES:
(a) The following shall constitute an event of default (“Event of Default”) under this Agreement and Lessor may in writing declare this
Agreement in default if: (i) Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within fifteen (15) days; (ii) Lessee breaches any of its insurance obligations under Section 9;
(iii) Lessee breaches any of its other obligations and fails to cure that breach within forty-five (45) days after written notice from Lessor; (iv) any representation or warranty made by Lessee in connection with this Agreement shall be
false or misleading in any material respect when made; (v) Lessee or any guarantor or other obligor for the Lessee’s obligations hereunder
(“Guarantor”)
becomes insolvent or ceases to do business as a going concern;
(vi) any Equipment is illegally used; (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; (viii) a petition is filed by or against Lessee date; (ix) Lessee defaults under
any other material obligation for (A) borrowed money, (B) the deferred purchase price of property, or (C) payments due under lease agreements; (x) there is any dissolution, termination of existence, merger, consolidation or
change in controlling ownership of Lessee or any Guarantor other than stated in Section 19(j) of this Agreement; or (xi) there is a material adverse change in the Lessee’s financial condition as determined solely by the Lessor in its
reasonable judgment as reasonably reflected on the Lessee Balance Sheet or Income Statement). The default declaration shall apply to all Schedules unless specifically excepted by Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with the provisions of Section 10(a). Lessee hereby authorizes Lessor to
peacefully enter any premises where any Equipment may be and take possession of the Equipment. Lessee shall immediately pay to Lessor without further demand as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value
of the Equipment (calculated as of the rent payment date prior to the declaration of default), and all accrued and unpaid rents and other sums then due under this Agreement and all Schedules. Upon Default Lessor may terminate this Agreement as to
any or all of the Equipment. A termination shall occur only upon written notice by Lessor to Lessee and only as to the units of Equipment specified in any such notice. Lessor may, but shall not be required to, sell Equipment at private or public
sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale. Lessor may also, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment. Lessor may use
Lessee’s premises for a reasonable period of time for any or all of the purposes stated above without liability for rent, costs, damages or otherwise. The proceeds of sale, lease or other disposition, if any, shall be applied: first, to all
costs of repossession, storage, and disposition including without limitation reasonable attorneys’, appraisers’, and auctioneers’ fees; second, to discharge the obligations then in default; third, credit to the Stipulated Loss Value;
fourth, to expenses incurred in paying or settling liens and claims against the Equipment; and lastly, to Lessee, if there exists any surplus. Lessee shall remain fully liable for any deficiency.
(c) The foregoing remedies are cumulative, and any or all thereof may be exercised instead of or in addition to each other or any remedies at law, in
equity, or under statute. Lessee waives notice of sale or other disposition (and the time and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor’s reasonable attorney’s fees incurred in connection with the
enforcement, assertion, defense or preservation of Lessor’s rights and remedies under this Agreement, or if prohibited by law, such lesser sum as may be permitted. Waiver of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between Lessor and Lessee may be declared by Lessor a default under this
and any such other agreement.
12. ASSIGNMENT:
Except in accordance with section 19 LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, ENCUMBER OR SUBLET ANY
EQUIPMENT OR THE INTEREST OF LESSEE IN THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR which will not be unreasonably withheld. Lessor may, without the consent of Lessee, assign this Agreement, any Schedule or the right to enter into a
Schedule. Lessee agrees that if Lessee receives written notice of an assignment from Lessor, Lessee will pay all accrued but unpaid rent and all other amounts payable under any assigned Schedule to such assignee or as instructed by Lessor. Lessee
also agrees to confirm in writing receipt of the notice of assignment as may be reasonably requested by assignee. Lessee hereby waives and agrees not to assert against any such assignee any defense, set-off, recoupment claim or counterclaim which
Lessee has or may at any time have against Lessor for any reason whatsoever. Lessee may assign this Agreement only in connection with a merger or change in control event permitted by, or consented to by Lessor under, the terms of Section 19(j).
13. NET LEASE:
Lessee is unconditionally obligated to pay the Stipulated Loss Value and other amounts due if the Equipment is damaged or destroyed,
if it is defective or if Lessee no longer can use it Lessee is not entitled to reduce or set-off against rent or other amounts due to Lessor or to anyone to whom Lessor assigns this Agreement or any Schedule whether Lessee’s claim arises out of
this Agreement, any Schedule, any statement by Lessor, Lessor’s liability or any manufacturer’s liability, strict liability, negligence or otherwise.
14. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify Lessor, its agents, employees, successors and assigns (on an after tax basis) from and against any and all losses, damages, penalties, injuries, claims, actions and suits,
including legal expenses, of whatsoever kind and nature arising out of or relating to the Equipment or this Agreement, except to the extent the losses, damages, penalties, injuries, claims, actions, suits or expenses result from Lessor’s gross
negligence or willful misconduct (“Claims”). This indemnity shall include, but is not limited to, Lessor’s strict liability in tort and Claims, arising out of (i) the selection, manufacture, purchase, acceptance or rejection of
Equipment, the ownership of Equipment during the term of this Agreement, and the delivery, lease, possession, maintenance, uses, condition, return or operation of Equipment (including, without limitation, latent and other defects, whether or not
discoverable by Lessor or Lessee and any claim for patent, trademark or copyright infringement or environmental damage) or (ii) the condition of Equipment sold or disposed of after use by Lessee, any sublessee or employees of Lessee. Lessee
shall, upon request, defend any actions based on, or arising out of, any of the foregoing.
(b) Lessee hereby represents, warrants and
covenants that (i) on the Lease Commencement Date for any unit of Equipment, such unit will qualify for all of the items of deduction and credit specified in Section C of the applicable Schedule (“Tax Benefits”) in the hands of
Lessor, and (ii) at no time during the term of this Agreement will Lessee take or omit to take, nor will it permit any sublessee or assignee to take or omit to take, any action (whether or not such act or omission is otherwise permitted by
Lessor or by this Agreement), which will result in the disqualification of any Equipment for, or recapture of, all or any portion of such Tax Benefits.
(c) If as a result of a breach of any material representation, warranty or covenant of the Lessee contained in this Agreement or any Schedule (i) tax counsel of Lessor shall determine that Lessor is not entitled
to claim on its Federal income tax return all or any portion of the Tax Benefits with respect to any Equipment, or (ii) any Tax Benefit claimed on the Federal income tax return of Lessor is disallowed or adjusted by the Internal Revenue
Service, or (iii) any Tax Benefit is recalculated or recaptured (any determination, disallowance, adjustment, recalculation or recapture being a “Loss”), then Lessee shall pay to Lessor, as an indemnity and as additional rent, an
amount that shall, in the reasonable opinion of Lessor, cause Lessor’s after-tax economic yields and cash flows to equal the Net Economic Return that would have been realized by Lessor if such Loss had not occurred. Such amount shall be payable
upon demand accompanied by a statement describing in reasonable detail such Loss and the computation of such amount. The economic yields and cash flows shall be computed on the same assumptions, including tax rates as were used by Lessor in
originally evaluating the transaction (“Net Economic Return”). If an adjustment has been made under Section 3 then the Effective Rate used in the next preceding adjustment shall be substituted.
(d) All references to Lessor in this Section 14 include Lessor and the consolidated taxpayer group of which Lessor is a member. All of Lessor’s
rights, privileges and indemnities contained in this Section 14 shall survive the expiration or other termination of this Agreement. The rights, privileges and indemnities contained herein are expressly made for the benefit of, and shall be
enforceable by Lessor, its successors and assigns.
15. DISCLAIMER:
LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT ANY ASSISTANCE
FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT MAKE, HAS NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE EQUIPMENT LEASED UNDER THIS AGREEMENT
OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR
COPYRIGHT INFRINGEMENT, OR TITLE. All such risks, as between Lessor and Lessee, are to be borne by Lessee. Without limiting the foregoing, Lessor shall have no responsibility or liability to Lessee or any other person with respect to any of the
following; (i) any liability, loss or damage caused or alleged to be caused directly or indirectly by any Equipment, any inadequacy thereof, any deficiency or defect (latent or otherwise) of the Equipment, or any other circumstance in
connection with the Equipment; (ii) the use, operation or performance of any Equipment or any risks relating to it; (iii) any interruption of service, loss of business or anticipated profits or consequential damages; or (iv) the
delivery, operation, servicing, maintenance, repair, improvement or replacement of any Equipment. If, and so long as, no default exists under this Agreement, Lessee shall be, and hereby is, authorized during the term of this Agreement to assert and
enforce whatever claims and rights Lessor may have against any Supplier of the Equipment at Lessee’s sole cost and expense, in the name of and for the account of Lessor and/or Lessee, as their interests may appear.
16. REPRESENTATIONS AND WARRANTIES OF LESSEE:
Lessee makes each of the following representations and warranties to Lessor on the date hereof and on the date of
execution of each Schedule.
(a) Lessee has adequate power and capacity to enter into, and perform under, this Agreement and all related
documents (together, the “Documents”). Lessee is duly qualified to do business wherever necessary to carry on its present business and operations, including the jurisdiction(s) where the Equipment is or is to be located.
(b) The Documents have been duly authorized, executed and delivered by Lessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of remedies may be limited under applicable bankruptcy and insolvency laws.
(c) No approval, consent or withholding of objections is required from any governmental authority or
entity with respect to the entry into or performance by Lessee of the Documents except such as have already been obtained.
(d) The entry
into and performance by Lessee of the Documents will not: (i) violate any judgment, order, law or regulation applicable to Lessee or any provision of Lessee’s Certificate of Incorporation or bylaws; or (ii) result in any breach of,
constitute a default under or result in the creation of any lien, charge, security interest or other encumbrance upon any Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument (other than
this Agreement) to which Lessee is a party.
(e) There are no suits or proceedings pending or threatened in court or before any commission,
board or other administrative agency against or affecting Lessee, which if decided against Lessee will have a material adverse effect on the ability of Lessee to fulfill its obligations under this Agreement
(f) The Equipment accepted under any Certificate of Acceptance is and will remain tangible personal property.
(g) Each financial statement delivered to Lessor has been prepared in accordance with generally accepted accounting principles consistently applied. S
(h) Lessee’s exact legal name is as set forth in the first sentence of this Agreement and Lessee is and will be at all times validly
existing and in good standing under the laws of the State of its incorporation or organization (specified in the first sentence of this Agreement).
(i) The Equipment will at all times be used for commercial or business purposes.
(j) Lessee is and will remain in full compliance
with all laws and regulations applicable to it including, without limitation, (i) ensuring that no person who owns a controlling interest in or otherwise controls Lessee is or shall be (Y) listed on the Specially Designated Nationals and
Blocked Person List maintained by the Office of Foreign Assets Control (“OFAC”), Department of the Treasury, and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or regulation or (Z) a
person designated under Section l(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any other similar Executive Orders, and (ii) compliance with all applicable Bank Secrecy Act
(“BSA”) laws, regulations and government guidance on BSA compliance and on the prevention and detection of money laundering violations.
17.
EARLY TERMINATION:
(a) On or after the First Termination Date (specified in the applicable Schedule), Lessee may, so long as no
default exists hereunder, terminate this Agreement as to all (but not less than all) of the Equipment on such Schedule as of a rent payment date (“Termination Date”). Lessee must give Lessor at least sixty (60) days prior written
notice of the termination.
(b) Lessee shall, and Lessor may, solicit cash bids for the Equipment on an AS IS, WHERE IS BASIS without
recourse to or warranty from Lessor, express or implied (“AS IS BASIS”). Prior to the Termination Date, Lessee shall (i) certify to Lessor any bids received by Lessee and (ii) pay to Lessor (A) the Termination Value
(calculated as of the rent due on the Termination Date) for the Equipment, and (B) all accrued rent and other sums due and unpaid as of the Termination Date.
(c) If all amounts due hereunder have been paid on the Termination Date, Lessor shall (i) sell the Equipment on an AS IS BASIS for cash to the highest bidder and (ii) refund the proceeds of such sale (net of
any related expenses) to Lessee up to the amount of the Termination Value. If such sale is not consummated, no termination shall occur and Lessor shall refund the Termination Value (less any expenses incurred by Lessor) to Lessee.
(d) Notwithstanding the foregoing, Lessor may elect by written notice, at any time prior to the Termination Date, not to sell the Equipment In that
event, on the Termination Date Lessee shall (i) return the Equipment (in accordance with Section 10) and (ii) pay to Lessor all amounts required under Section 17(b) less the amount of the highest bid certified by Lessee to
Lessor.
18. PURCHASE OPTION:
(a)
Lessee may at lease expiration purchase all (but not less than all) of the Equipment in any Schedule on an AS IS BASIS for cash equal to its then Fair Market Value (plus all applicable sales taxes). Lessee must notify Lessor of its intent to
purchase the Equipment in writing at least sixty (60) days in advance. If Lessee is in default or if the Lease has already been terminated Lessee may not purchase the Equipment.
(b) “Fair Market Value” shall mean the price that a willing buyer (who is neither a lessee in possession nor a used equipment dealer) would pay
for the Equipment in an arm’s-length transaction to a willing seller under no compulsion to sell. In determining the Fair Market Value the Equipment shall be assumed to be in the condition in which it is required to be maintained and returned
under this Agreement If the Equipment is installed it shall be valued on an installed basis. The costs of removal from current location shall not be a deduction from the value of the Equipment. If Lessor and Lessee are unable to agree on the Fair
Market Value at least
one hundred thirty-five (135) days before lease expiration, Lessor shall appoint an independent appraiser (reasonably acceptable to Lessee) to determine
Fair Market Value. The independent appraiser’s determination shall be final, binding and conclusive. Lessee shall bear all reasonable costs associated with any such appraisal.
(c) Lessee shall be deemed to have waived this option unless it provides Lessor with written notice of its irrevocable election to exercise the same
within fifteen (15) days after Fair Market Value is told to Lessee.
(a) LESSEE AND LESSOR
UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN LESSEE AND LESSOR RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION
OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN LESSEE AND LESSOR. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE.
THIS WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(b) The
Equipment shall remain Lessor’s property unless Lessee purchases the Equipment from Lessor and until such time Lessee shall only have the right to use the Equipment as a lessee. Any cancellation or termination by Lessor of this Agreement, any
Schedule, supplement or amendment hereto, or the lease of any Equipment hereunder shall not release Lessee from any then outstanding obligations to Lessor hereunder. All Equipment shall at all times remain personal property of Lessor even though it
may be attached to real property. The Equipment shall not become part of any other property by reason of any installation in, or attachment to, other real or personal property.
(c) Lessor’s failure at any time to require strict performance by Lessee of any of the provisions hereof shall not waive or diminish Lessor’s
right at any other time to demand strict compliance with this Agreement. Lessee agrees, upon Lessor’s reasonable request, to execute, or otherwise authenticate, any document, record or instrument necessary or expedient for filing, recording or
perfecting the interest of Lessor or to carry out the intent of this Agreement. In addition, Lessee hereby authorizes Lessor to file a financing statement and amendments thereto describing the Equipment described in any and all Schedules now and
hereafter executed pursuant hereto and adding any other collateral described therein and containing any other information required by the applicable Uniform Commercial Code. Lessee irrevocably grants to Lessor the power to sign Lessee’s name
and generally to act on behalf of Lessee to execute and file financing statements and other documents pertaining to any or all of the Equipment. Lessee hereby ratifies its prior authorization for Lessor to file financing statements and amendments
thereto describing the Equipment and containing any other information required by any applicable law (including without limitation the Uniform Commercial Code) if filed prior to the date hereof. All notices required to be given hereunder shall be
deemed adequately given if sent by registered or certified mail to the addressee at its address stated herein, or at such other place as such addressee may have specified in writing. This Agreement and any Schedule and Annexes thereto constitute the
entire agreement of the parties with respect to the subject matter hereof. NO VARIATION OR MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE PARTIES HERETO.
(d) If Lessee does not comply with any provision of this Agreement, Lessor shall have the right, but
shall not be obligated, to effect such compliance, in whole or in part. All reasonable amounts spent and obligations incurred or assumed by Lessor in effecting such compliance shall constitute additional rent due to Lessor. Lessee shall pay the
additional rent within five days after the date Lessor sends notice to Lessee requesting payment. Lessor’s effecting such compliance shall not be a waiver of Lessee’s default
(e) Any rent or other amount not paid to Lessor when due shall bear interest, from the due date until paid, at the lesser of eighteen percent
(18%) per annum or the maximum rate allowed by law. Any provisions in this Agreement and any Schedule that are in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto. Notwithstanding
anything to the contrary contained in this Agreement or any Schedule, in no event shall this Agreement or any Schedule require the payment or permit the collection of amounts in excess of the maximum permitted by applicable law.
(f) INTENTIONALLY OMITTED
(g) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CONNECTICUT (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE),
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT.
(h) Any cancellation or
termination by Lessor, pursuant to the provisions of this Agreement, any Schedule, supplement or amendment hereto, of the lease of any “Equipment hereunder, shall not release Lessee from any then outstanding obligations to Lessor hereunder.
(i) To the extent that any Schedule would constitute chattel paper, as such term is defined in the
Uniform Commercial Code as in effect in any applicable jurisdiction, no security interest therein may be created through the transfer or possession of this Agreement in and of itself without the transfer or possession of the original of a Schedule
executed pursuant to this Agreement and incorporating this Agreement by reference; and no security interest in this Agreement and a Schedule may be created by the transfer or possession of any counterpart of the Schedule other than the original
thereof, which shall be identified as the document marked “Original” and all other counterparts shall be marked “Duplicate”.
(j) Lessee may, without the consent of Lessor, merge or consolidate with or into any other entity or acquire all or substantially all of the capital stock or assets of another entity (collectively, a “Merger Event”) if
(A) such Merger Event shall require the expenditure of less than twenty-five percent (25%) of the cash on Lessee’s balance sheet immediately prior to such Merger Event or (B) the consideration paid by Lessee in such Merger Event
shall be comprised solely of its equity securities. For other mergers/acquisitions which do not meet this test, Lessor has the right to consent, not to be unreasonably withheld. If Lessor does not consent, Lessee has the right to exercise its early
purchase option as specified in the corresponding schedules.
(k) Except with Lessor’s prior written consent (which shall not be
unreasonably withheld), Lessee shall not have a material change in its ownership of greater than 49% (other than by the sale of Lessee’s equity securities in a public offering or to venture capital investors) (an “Ownership Event”);
provided, however, that, if the Ownership Event consists of an acquisition by a person/entity with a net worth of $100,000,000 or greater, Lessor’s consent to such Ownership Event shall not be required (collectively, an “Ownership
Event”). For an Ownership Event which does not meet this test, Lessor has the right to consent, not to be unreasonably withheld. If Lessor does not consent, Lessee has the right to exercise its early purchase option as specified in the
corresponding schedules.
(l) Each party hereto agrees to keep confidential, the terms and provisions of the Documents and the transactions
contemplated hereby and thereby (collectively, the
“Transactions”
). Notwithstanding the foregoing, the obligations of confidentiality contained herein, as they relate to the Transactions, shall not apply to the federal tax structure
or federal tax treatment of the Transactions, and each party hereto (and any employee, representative, or agent of any party hereto) may disclose to any and all persons, without limitation of any kind, the federal tax structure and federal tax
treatment of the Transactions. The preceding sentence is intended to cause each Transaction to be treated as not having been offered under conditions of confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the
Treasury Regulations promulgated under Section 6011 of the Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. In addition, each party hereto acknowledges that it has no proprietary or
exclusive rights to the federal tax structure of the Transactions or any federal tax matter or federal tax idea related to the Transactions.
IN WITNESS WHEREOF,
Lessee and Lessor have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.
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LESSOR:
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LESSEE:
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General Electric Capital Corporation
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ John Edel
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By:
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/s/ Steven H. Holtzman
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Name:
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John Edel
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Name:
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Title:
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SVP
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Title:
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CS(R020403) 4155925001 *LEAS8760*
BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO. 001
DATED THIS _______________
TO MASTER
LEASE AGREEMENT
DATED AS OF August 11, 2004
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Lessor & Mailing Address:
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Lessee & Mailing Address:
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General Electric Capital Corporation
83 Wooster Heights Road
Danbury, CT 06810
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Infinity Pharmaceuticals, Inc.
780 Memorial Drive
Cambridge, MA 02139
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This Schedule is executed pursuant to, and incorporates by reference the terms and conditions of, and capitalized
terms not defined herein shall have the meanings assigned to them in, the Master Lease Agreement identified above (
“Agreement”
said Agreement and this Schedule being collectively referred to as
“Lease”
). This
Schedule, incorporating by reference the Agreement, constitutes a separate instrument of lease.
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A. Equipment:
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Subject to the terms and conditions of the Lease, Lessor agrees to Lease to Lessee the Equipment described below (the “Equipment”).
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Number of Units
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Capitalized Lessor’s Cost
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Manufacturer
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Serial Number
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Model and Type of Equipment
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SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF
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1.
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Advance Rent (if any): $11,240.93
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5.
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Basic Term Commencement Date:
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2.
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Capitalized Lessor’s Cost: $324,424.81
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6.
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Lessee Federal Tax ID No.: 04-3549480
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3.
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Basic Term (No. of Months): 30 Months.
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7.
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Last Delivery Date:
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4.
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Basic Term Lease Rate Factor: 3.464879
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8.
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Daily Lease Rate Factor: .01155
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9.
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First Termination Date:
Thirty (30)
months after the Basic Term Commencement Date.
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10.
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Interim Rent: For the period from and including the Lease Commencement Date to but not including the Basic Term Commencement Date (“Interim Period”), Lessee shall pay as
rent (“Interim Rent”) for each unit of Equipment, the product of the Daily Lease Rate Factor times the Capitalized Lessor’s Cost of such unit times the number of days in the Interim Period. Interim Rent shall be due on the lease
commencement.
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11.
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Basic Term Rent Commencing on _____________ and on the same day of each month thereafter (each, a “Rent Payment Date”) during the Basic Term, Lessee shall pay as rent
(“Basic Term Rent”) the product of the Basic Term Lease Rate Factor times the Capitalized Lessor’s Cost of all Equipment on this Schedule.
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C.
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Tax Benefits
Depreciation Deductions:
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1. Depreciation method is the 200% declining balance method, switching to straight line method for the 1st taxable year for which using the straight line
method with respect to the adjusted basis as of the beginning of such year will yield a larger allowance.
2. Recovery Period: Five
(5) Years.
3. Basis: 100 % of the Capitalized Lessor’s Cost.
PROPERTY TAX NOT APPLICABLE ON
EQUIPMENT LOCATED IN MASSACHUSETTS.
Lessor may notify Lessee (and Lessee agrees to follow such notification) regarding any changes in
property tax reporting and payment responsibilities.
IN ACCORDANCE WITH THE
REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES THE FOLLOWING DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A) THE PERSON(S) SUPPLYING THE EQUIPMENT IS IBM (THE
“SUPPLIER(S)”
),
(B) LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES, INCLUDING THOSE OF ANY THIRD PARTY, PROVIDED TO THE LESSOR BY SUPPLIER(S), WHICH IS SUPPLYING THE EQUIPMENT IN CONNECTION WITH OR AS PART OF THE
CONTRACT BY WHICH LESSOR ACQUIRED THE EQUIPMENT AND (C) WITH RESPECT TO SUCH EQUIPMENT, LESSEE MAY COMMUNICATE WITH SUPPLIER(S) AND RECEIVE AN ACCURATE AND COMPLETE STATEMENT OF SUCH PROMISES AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND LIMITATIONS
OF THEM OR OF REMEDIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE IN ARTICLE 2A AND ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY LIMIT OR MODIFY
ANY OF LESSOR’S RIGHTS OR REMEDIES UNDER THE DEFAULT AND REMEDIES SECTION OF THE AGREEMENT.
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F.
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Stipulated Loss and Termination Value Table*
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*SEE
ANNEX D ATTACHED HERETO AND MADE A PART HEREOF.
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G.
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Modifications and Additions for This Schedule Only
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For purposes of this Schedule only, the Agreement is amended as follows:
1 EQUIPMENT SPECIFIC PROVISIONS
The MAINTENANCE Section of the Lease is amended by adding the following as the fifth sentence in subsection (a):
Lessee agrees that upon return of the Equipment, it will comply with all original manufacturer’s performance specifications for new Equipment without
expense to Lessor. Lessee shall, if requested by Lessor, obtain a certificate or service report from the manufacturer attesting to such condition.
Each reference contained in this Agreement to:
(a) “Adverse Environmental Condition” shall refer to (i) the
existence or the continuation of the existence, of an Environmental Emission (including, without limitation, a sudden or non-sudden accidental or non-accidental Environmental Emission), of, or exposure to, any substance, chemical, material,
pollutant, Contaminant, odor or audible noise or other release or emission in, into or onto the environment (including, without limitation, the air, ground, water or any surface) at, in, by, from or related to any Equipment, (ii) the
environmental aspect of the transportation, storage, treatment or disposal of materials in connection with the operation of any Equipment or (iii) the violation, or alleged violation of any statutes, ordinances, orders, rules regulations,
permits or licenses of, by or from any governmental authority, agency or court relating to environmental matters connected with any Equipment.
(b) “Affiliate” shall refer, with respect to any given Person, to any Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person.
(c) “Contaminant” shall refer to those substances which are regulated by or form the basis of liability under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls (“PCB’s”), and radioactive substances, or other material or substance which has in the past or could in the future constitute a health, safety or environmental hazard
to any Person, property or natural resources.
(d) “Environmental Claim” shall refer to any accusation, allegation, notice of
violation, claim, demand, abatement or other order on direction (conditional or otherwise) by any governmental authority or any Person for personal injury (including sickness, disease or death), tangible or intangible property damage, damage to the
environment or other adverse effects on the environment, or for fines, penalties or restrictions, resulting from or based upon any Adverse Environmental Condition.
(e) “Environmental Emission” shall refer to any actual or threatened release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or
outdoor environment, or into or out of any of the Equipment, including, without limitation, the movement of any Contaminant or other substance through or in the air, soil, surface water, groundwater or property.
(f) “Environmental Law
” shall mean any federal, foreign, state or local law, role or regulation pertaining to the protection of the environment, including, but not limited to,
the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) (42 U.S.C. Section 9601 et seq.), the Hazardous Material Transportation Act (49 U.S.C. Section 1801 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 1361 et seq.), and the Occupational Safety and Health Act (19 U.S.C. Section 651 et seq.), as these laws have been amended or
supplemented, and any analogous foreign, federal, state or local statutes, and the regulations promulgated pursuant thereto.
(g)
“Environmental Loss” shall mean any loss, cost, damage, liability, deficiency, fine, penalty or expense (including, without limitation, reasonable attorneys’ fees, engineering and other professional or expert fees), investigation,
removal, cleanup and remedial costs (voluntarily or involuntarily incurred) and damages to, loss of the use of or decrease in value of the Equipment arising out of or related to any Adverse Environmental Condition.
(h) “Person” shall include any individual, partnership, corporation, trust, unincorporated organization, government or department or agency
thereof and any other entity.
Lessee shall fully and promptly pay, perform, discharge, defend, indemnify and hold harmless Lessor and its
Affiliates, successors and assigns, directors, officers, employees and agents from and against any Environmental Claim or Environmental Loss.
The provisions of this Schedule shall survive any expiration or termination of the Lease and shall be enforceable by Lessor, its successors and assigns.
The MAINTENANCE Section subsection (a) of the Lease shall be amended by adding the following at the end thereof:
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN OF EQUIPMENT Section of the Lease, and provided that Lessee has elected not to exercise its option to purchase the Equipment, at
Lessor’s reasonable request, Lessee shall, at its expense:
(a) Upon the request of Lessor, Lessee shall no later than sixty (60) days prior to
the expiration or other termination of the Lease provide:
(i) a detailed inventory of the Equipment (including the model and serial number of each major
component thereof), including, without limitation, all internal circuit boards, module boards, and software features;
(ii) a complete and current set of
all manuals, equipment configuration, setup and operation diagrams, maintenance records and other data that may be reasonably requested by Lessor concerning the configuration and operation of the Equipment; and
(iii) a certification of the manufacturer or of a maintenance provider acceptable to Lessor that the Equipment (1) has been tested and is operating in accordance with
manufacturers specifications (together with a report detailing the condition of the Equipment), the results of such test(s) and inspection(s) and all repairs that were performed as a result of such test(s) and inspections) and (2) that the
Equipment qualifies for the manufacturers used equipment maintenance program.
(b) Upon the request of Lessor, Lessee shall, no later than sixty
(60) days prior to the expiration or other termination of the Lease, make the Equipment available for on-site operational inspection by persons designated by the Lessor who shall be duly qualified to inspect the Equipment in its operational
environment
(c) All Equipment shall be reasonably cleaned and treated with respect to rust, corrosion and appearance in accordance with manufacturers
recommendations and consistent with the best practices of dealers in used equipment similar to the Equipment; shall have no Lessee installed markings or labels which are not necessary for the operation, maintenance or repair of the Equipment; and
shall be in compliance with all applicable governmental laws, rules and regulations.
(d) The Equipment shall be deinstalled and packed by or under the
supervision of the manufacturer or such other person acceptable to Lessor in accordance with manufacturers recommendations. Without limitation, all internal fluids will either be drained and disposed of or filled and secured in accordance with
manufacturers recommendations and applicable governmental laws, rules and regulations.
(e) Provide for transportation of the Equipment in a manner
consistent with the manufacturer’s recommendations and practices to any locations within the continental United States as Lessor shall direct; and shall have the Equipment unloaded at such locations.
Yon are hereby irrevocably
authorized and directed to deliver and apply the proceeds due under this Schedule as follows:
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Company Name
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Address
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Amount
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IBM
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P.O. BOX 945684, ATLANTA, GA
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$
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324.424.81
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This authorization and direction is given pursuant to the same authority authorizing the
above-mentioned financing.
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2124 4137753011
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*LEAS2124*
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ANNEX D
TO
SCHEDULE NO. 011
TO MASTER LEASE AGREEMENT
DATED AS OF August 11, 2004
STIPULATED LOSS AND TERMINATION VALUE TABLE
*
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Rental Basic
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Termination
Value
Percentage
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Stipulated
Loss Value
Percentage
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Rental
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Termination
Value
Percentage
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Stipulate
Loss Value
Percentage
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1
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102.276
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106.556
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16
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57.729
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67.869
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2
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99.515
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104.186
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17
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54.567
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65.098
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3
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96.728
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101.790
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18
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51.375
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62.297
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4
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93.891
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99.344
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19
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48.152
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59.465
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5
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91.006
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96.850
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20
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44.914
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56.617
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6
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88.094
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94.327
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21
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41.661
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53.755
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7
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85.153
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91.778
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22
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38.393
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50.877
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8
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82.193
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89.209
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23
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35.108
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47.983
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9
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79.214
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86.620
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24
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31.792
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45.058
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10
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76.215
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84.011
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25
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28.460
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42.116
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11
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73.195
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81.382
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26
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25.111
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39.158
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12
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70.147
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78.725
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27
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21.730
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36.167
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13
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67.078
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76.046
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28
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18.332
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33.160
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14
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63.988
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73.348
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29
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14.918
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30.136
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15
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60.869
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70.619
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30
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11.470
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27.079
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Initials:
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/s/ Illegible
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/s/ Illegible
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Lessor
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Lessee
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*
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The Stipulated Loss Value or Termination Value for any unit of Equipment shall be equal to the Capitalized Lessor’s Cost of such unit multiplied by the appropriate percentage
derived from the above table. In the event that the Lease is for any reason extended; then the last percentage figure shown above shall control throughout any such extended term.
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iCS(R020403) 4155925003
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*LEAS8760*
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BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO. 003
DATED THIS 6/30/05
TO MASTER LEASE AGREEMENT
DATED AS
OF August 11, 2004
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Lessor & Mailing Address:
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Lessee & Mailing Address:
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General Electric Capital Corporation
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Infinity Pharmaceuticals, Inc.
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S3 Wooster Heights Road
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780 Memorial Drive
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Danbury, CT 06810
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Cambridge, MA 02139
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This Schedule is executed pursuant to, and incorporates by reference the terms and conditions of, and capitalized
terms not defined herein shall have the meanings assigned to them in, the Master Lease Agreement identified above
(“Agreement”
said Agreement and this Schedule being collectively referred to as
“Lease”
). This
Schedule, incorporating by reference the Agreement, constitutes a separate instrument of lease.
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A.
|
Equipment:
Subject to the terms and conditions of the Lease, Lessor agrees to Lease to Lessee the Equipment described below (the
“Equipment”
).
|
|
|
|
|
|
|
|
|
|
|
Number
of Units
|
|
Capitalized
Lessor’s Cost
|
|
Manufacturer
|
|
Serial
Number
|
|
Model and Type of Equipment
|
|
|
|
|
|
|
|
|
|
|
|
|
SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF
|
|
|
|
1. Advance Rent (if any):
$1,592.96
|
|
|
|
2. Capitalized Lessor’s Cost:
$46,598.47
|
|
|
|
3. Basic Term (No. of Months):
39 Months.
|
|
|
|
4. Basic Term Lease Rate Factor:
3.418476
|
|
|
|
5. Basic Term Commencement Date:
|
|
|
|
6. Lessee Federal Tax ID No.: 04-3549480
|
|
|
|
7. Last Delivery Date:
|
|
|
|
8. Daily Lease Rate Factor:
.11395
|
|
9.
|
First Termination Date:
Thirty
(30)
months after the Basic Term Commencement Date.
|
|
10.
|
Interim Rent: For the period from and including the Lease Commencement Date to but not including the Basic Term Commencement Date (“Interim Period”), Lessee shall pay as
rent (“Interim Rent”) for each unit of Equipment, the product of the Daily Lease Rate Factor times the Capitalized Lessor’s Cost of such unit times the number of days in the Interim Period. Interim Rent shall be due on the lease
commencement.
|
|
11.
|
Basic Term Rent. Commencing on 7/1/05 and on the same day of each month thereafter (each, a “Rent Payment Date”) during the Basic Term, Lessee shall pay as rent
(“Basic Term Rent”) the product of the Basic Term Lease Rate Factor times the Capitalized Lessor’s Cost of all Equipment on this Schedule.
|
|
C.
|
Tax Benefits
Depreciation Deductions:
|
|
|
1.
|
Depreciation method is the 200% declining balance method, switching to straight line method for the 1st taxable year for which using the straight line method with respect to the
adjusted basis as of the beginning of such year will yield a larger allowance.
|
|
|
2.
|
Recovery Period: Five (5) Years.
|
|
|
3.
|
Basis: 100% of the Capitalized Lessor’s Cost.
|
PROPERTY TAX NOT APPLICABLE ON
EQUIPMENT LOCATED IN MASSACHUSETTS.
Lessor may notify Lessee (and Lessee agrees to follow such notification) regarding any changes in
property tax reporting and payment responsibilities.
IN ACCORDANCE WITH THE
REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES THE FOLLOWING DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A) THE PERSON(S) SUPPLYING THE EQUIPMENT IS
IBM
(THE
“SUPPLIER(S)”),
(B) LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES, INCLUDING THOSE OF ANY THIRD PARTY, PROVIDED TO THE LESSOR BY SUPPLIER(S), WHICH IS SUPPLYING THE EQUIPMENT IN CONNECTION WITH OR AS PART OF THE CONTRACT BY
WHICH LESSOR ACQUIRED THE EQUIPMENT AND (C) WITH RESPECT TO SUCH EQUIPMENT, LESSEE MAY COMMUNICATE WITH SUPPLIER(S) AND RECEIVE AN ACCURATE AND COMPLETE STATEMENT OF SUCH PROMISES AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND LIMITATIONS OF
THEM OR OF REMEDIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE IN ARTICLE 2A AND ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY LIMIT OR MODIFY
ANY OF LESSOR’S RIGHTS OR REMEDIES UNDER THE DEFAULT AND REMEDIES SECTION OF THE AGREEMENT.
|
F.
|
Stipulated Loss and Termination Value Table*
|
*SEE
ANNEX D ATTACHED HERETO AND MADE A PART HEREOF.
|
G.
|
Modifications and Additions for This Schedule Only
|
For purposes of this Schedule only, the Agreement is amended as follows:
|
I.
|
EQUIPMENT SPECIFIC PROVISIONS
|
The MAINTENANCE
Section of the Lease is amended by adding the following as the fifth sentence in subsection (a):
Lessee agrees that upon return of the
Equipment, it will comply with all original manufacturer’s performance specifications for new Equipment without expense to Lessor. Lessee shall, if requested by Lessor, obtain a certificate or service report from the manufacturer attesting to
such condition.
Each reference contained in this Agreement to:
(a) “Adverse Environmental Condition” shall refer to (i) the existence or the continuation of the existence, of an Environmental Emission
(including, without limitation, a sudden or non-sudden accidental or non-accidental Environmental Emission), of, or exposure to, any substance, chemical, material, pollutant, Contaminant, odor or audible noise or other release or emission in, into
or onto the environment (including, without limitation, the air, ground, water or any surface) at, in, by, from or related to any Equipment, (ii) the environmental aspect of the transportation, storage, treatment or disposal of materials in
connection with the operation of any Equipment or (iii) the violation, or alleged violation of any statutes, ordinances, orders, rules regulations, permits or licenses of, by or from any governmental authority, agency or court relating to
environmental matters connected with any Equipment.
(b) “Affiliate” shall refer, with respect to any given Person, to any Person
that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person.
(c) “Contaminant” shall refer to those substances which are regulated by or form the basis of liability under any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls (“PCB’s”), and
radioactive substances, or other material or substance which has in the past or could in the future constitute a health, safety or environmental hazard to any Person, property or natural resources.
(d) “Environmental Claim” shall refer to any accusation, allegation, notice of violation, claim, demand, abatement or other order on direction
(conditional or otherwise) by any governmental authority or any Person for personal injury (including sickness, disease or death), tangible or intangible property damage, damage to the environment or other adverse effects on the environment, or for
fines, penalties or restrictions, resulting from or based upon any Adverse Environmental Condition.
(e) “Environmental Emission”
shall refer to any actual or threatened release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment, or into or out of any of the Equipment, including,
without limitation, the movement of any Contaminant or other substance through or in the air, soil, surface water, groundwater or property.
(f) “Environmental Law” shall mean any federal, foreign, state or local law, rule or regulation
pertaining to the protection of the environment, including, but not limited to, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) (42 U.S.C. Section 9601 et seq .), the Hazardous Material
Transportation Act (49 U.S.C. Section 1801 et seq .), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq .), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq .), the Clean Air Act (42
U.S.C. Section 7401 et seq .), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq .), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 1361 et seq .), and the Occupational Safety and Health Act
(19 U.S.C. Section 651 et seq .), as these laws have been amended or supplemented, and any analogous foreign, federal, state or local statutes, and the regulations promulgated pursuant thereto.
(g) “Environmental Loss” shall mean any loss, cost, damage, liability, deficiency, fine, penalty or expense (including, without limitation,
reasonable attorneys’ fees, engineering and other professional or expert fees), investigation, removal, cleanup and remedial costs (voluntarily or involuntarily incurred) and damages to, loss of the use of or decrease in value of the Equipment
arising out of or related to any Adverse Environmental Condition.
(h) “Person” shall include any individual, partnership,
corporation, trust, unincorporated organization, government or department or agency thereof and any other entity.
Lessee shall fully and
promptly pay, perform, discharge, defend, indemnify and hold harmless Lessor and its Affiliates, successors and assigns, directors, officers, employees and agents from and against any Environmental Claim or Environmental Loss.
The provisions of this Schedule shall survive any expiration or termination of the Lease and shall be enforceable by Lessor, its successors and assigns.
The MAINTENANCE Section subsection (a) of the Lease shall be amended by adding the following at the end thereof:
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN OF EQUIPMENT Section of the Lease, and provided that Lessee has elected not to
exercise its option to purchase the Equipment, at Lessor’s reasonable request, Lessee shall, at its expense:
(a) Upon the request of Lessor, Lessee
shall no later than sixty (60) days prior to the expiration or other termination of the Lease provide:
(i) a detailed inventory of the Equipment
(including the model and serial number of each major component thereof), including, without limitation, all internal circuit boards, module boards, and software features;
(ii) a complete and current set of all manuals, equipment configuration, setup and operation diagrams, maintenance records and other data that may be reasonably requested by Lessor concerning the configuration and
operation of the Equipment; and
(iii) a certification of the manufacturer or of a maintenance provider acceptable to Lessor that the Equipment
(I) has been tested and is operating in accordance with manufacturers specifications (together with a report detailing the condition of the Equipment), the results of such test(s) and inspection(s) and all repairs that were performed as a
result of such test(s) and inspection(s) and (2) that the Equipment qualifies for the manufacturers used equipment maintenance program.
(b) Upon the
request of Lessor, Lessee shall, no later than sixty (60) days prior to the expiration or other termination of the Lease, make the Equipment available for on-site operational inspection by persons designated by the Lessor who shall be duly
qualified to inspect the Equipment in its operational environment.
(c) All Equipment shall be reasonably cleaned and treated with respect to rust,
corrosion and appearance in accordance with manufacturers recommendations and consistent with the best practices of dealers in used equipment similar to the Equipment; shall have no Lessee installed markings or labels which are not necessary for the
operation, maintenance or repair of the Equipment; and shall be in compliance with all applicable governmental laws, rules and regulations.
(d) The
Equipment shall be deinstalled and packed by or under the supervision of the manufacturer or such other person acceptable to Lessor in accordance with manufacturers recommendations. Without limitation, all internal fluids will either be drained and
disposed of or filled and secured in accordance with manufacturers recommendations and applicable governmental laws, rules and regulations.
(e) Provide
for transportation of the Equipment in a manner consistent with the manufacturer’s recommendations and practices to any locations within the continental United States as Lessor shall direct; and shall have the Equipment unloaded at such
locations.
You are hereby irrevocably
authorized and directed to deliver and apply the proceeds due under this Schedule as follows:
|
|
|
|
|
|
|
|
Company Name
|
|
Address
|
|
Amount
|
|
IBM
|
|
P.O. BOX 945684, ATLANTA, GA
|
|
$
|
46,598.47
|
The following amounts will be auto debited from you account on 7/1/05
Interim Rent $53.10 and Advance Rent $1,592.96
This authorization and direction is given pursuant to the same authority authorizing the above-mentioned
financing.
Pursuant to the provisions of the lease, as it relates to this Schedule, Lessee hereby certifies and warrants that (i) all
Equipment listed above has been delivered and installed (if applicable) as of the date stated above, and copies of the Bill(s) of Lading or other documentation acceptable to Lessor which show the date of delivery are attached hereto;
(ii) Lessee has inspected the Equipment, and all such testing as it deems necessary has been performed by Lessee, Supplier or the manufacturer; and (iii) Lessee accepts the Equipment for all purposes of the Lease, the purchase documents
and all attendant documents.
Lessee does further certify that as of the date hereof (i) Lessee is not in default under the Lease;
(ii) the representations and warranties made by Lessee pursuant to or under the Lease are true and correct on the date hereof and (iii) Lessee has reviewed and approves of the purchase documents for the Equipment, if any.
Except as expressly modified hereby, all terms and provisions of the Agreement shall remain in full force and effect. This Schedule is not binding or
effective with respect to the Agreement or Equipment until executed on behalf of Lessor and Lessee by authorized representatives of Lessor and Lessee, respectively.
IN WITNESS WHEREOF,
Lessee and Lessor have caused this Schedule to be executed by their duly authorized representatives as of the date first above written.
|
|
|
|
|
|
|
|
|
|
|
LESSOR:
|
|
|
|
LESSEE:
|
|
|
|
|
|
General Electric Capital Corporation
|
|
|
|
Infinity Pharmaceuticals, Inc.
|
|
|
|
|
|
|
|
By:
|
|
/s/ John Edez
|
|
|
|
By:
|
|
/s/ Thomas J. Burke
|
|
Name:
|
|
John Edez
|
|
|
|
Name:
|
|
Thomas J. Burke
|
|
Title:
|
|
SVP
|
|
|
|
Title:
|
|
Controller
|
|
|
|
|
|
2124 4137754754
|
|
*LEAS2124*
|
ANNEX D
TO
SCHEDULE NO. 003
TO MASTER LEASE AGREEMENT
DATED AS OF August 11, 2004
STIPULATED LOSS AND TERMINATION VALUE TABLE
*
|
|
|
|
|
|
|
|
|
|
|
|
|
Rental Basic
|
|
Termination Value
Percentage
|
|
Stipulated Loss Value
Percentage
|
|
Rental
|
|
Termination Value
Percentage
|
|
Stipulated Loss Value
Percentage
|
|
1
|
|
103.930
|
|
107.965
|
|
16
|
|
63.441
|
|
69.521
|
|
2
|
|
101.491
|
|
105.663
|
|
17
|
|
60.473
|
|
66.689
|
|
3
|
|
99.004
|
|
103.311
|
|
18
|
|
57.471
|
|
63.823
|
|
4
|
|
96.467
|
|
100.911
|
|
19
|
|
54.434
|
|
60.922
|
|
5
|
|
93.901
|
|
98.481
|
|
20
|
|
51.363
|
|
57.988
|
|
6
|
|
91.297
|
|
96.014
|
|
21
|
|
48.259
|
|
55.020
|
|
7
|
|
88.657
|
|
93.510
|
|
22
|
|
45.135
|
|
52.032
|
|
8
|
|
85.986
|
|
90.975
|
|
23
|
|
41.991
|
|
49.024
|
|
9
|
|
83.284
|
|
88.409
|
|
24
|
|
38.826
|
|
45.996
|
|
10
|
|
80.549
|
|
85.810
|
|
25
|
|
35.640
|
|
42.947
|
|
11
|
|
77.781
|
|
83.179
|
|
26
|
|
32.420
|
|
39.863
|
|
12
|
|
74.979
|
|
80.514
|
|
27
|
|
29.179
|
|
36.758
|
|
13
|
|
72.144
|
|
77.815
|
|
28
|
|
25.917
|
|
33.632
|
|
14
|
|
69.277
|
|
75.084
|
|
29
|
|
22.620
|
|
30.471
|
|
15
|
|
66.376
|
|
72.320
|
|
30
|
|
19.301
|
|
27.288
|
|
|
|
|
|
|
|
|
|
Initials:
|
|
/s/ Illegible
|
|
|
|
/s/ Illegible
|
|
|
|
Lessor
|
|
|
|
Lessee
|
|
*
|
The Stipulated Loss Value or Termination Value for any unit of Equipment shall be equal to the Capitalized Lessor’s Cost of such unit multiplied by the appropriate percentage
derived from the above table. In the event that the Lease is for any reason extended, then the last percentage figure shown above shall control throughout any such extended term.
|
EXHIBIT
ACCOUNT 54-003
|
|
|
|
|
|
|
|
|
Company Name:
|
|
Infinity Pharmaceuticals
|
|
DEPRECIATION DATE
|
|
05/31/05
|
|
Equipment Location:
|
|
780 Memorial Drive, Cambridge MA 02139
|
|
DATE OF LAST FUNDING
|
|
06/23/05
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Inv.
Item
|
|
Supplier
|
|
Invoice
#
|
|
Inv.
Date
|
|
Description
|
|
QTY
|
|
Serial #
|
|
Customer’s
Internal
Tag #(if
applicable)
|
|
PO#
|
|
Amt.
Financed
|
|
Vendor
Total
|
|
Ck
#
|
|
Proof of
payment’s
|
|
Ck Amt.
|
|
Equip
Code
|
|
1
|
|
IBM
|
|
4716626
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
12530
|
|
$
|
1,992.00
|
|
|
|
|
GE
TO
PAY
|
|
YES
|
|
$
|
41,597.00
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
EXP T43 INTEL PENTIUM M 750 1.8 GHZ
|
|
1
|
|
|
|
|
|
|
|
$
|
1,992.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/19/05
|
|
Tax
|
|
|
|
|
|
|
|
|
|
$
|
1,757.00
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
4710498
|
|
|
|
|
|
05/09/05
|
|
1GB PC2 4200 CL4 NPDDR2 SD RAM
|
|
10
|
|
|
|
|
|
|
|
$
|
2,970.00
|
|
|
|
|
GE
TO
PAY
|
|
YES
|
|
$
|
5,001.47
|
|
COMP
|
|
|
|
|
|
|
|
05/09/05
|
|
512 MB PC2 4200 CL4 NPDDR2 SD RAM
|
|
10
|
|
|
|
|
|
|
|
$
|
1,350.00
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
|
|
|
|
|
|
05/09/05
|
|
Tax
|
|
|
|
|
|
|
|
|
|
$
|
238.17
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
|
|
|
|
|
|
05/09/05
|
|
Freight
|
|
|
|
|
|
|
|
|
|
$
|
443.30
|
|
$
|
46,598.47
|
|
|
|
|
|
|
|
|
SOFT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FUNDING TOTAL
|
|
$
|
46,598.47
|
|
$
|
46,598.47
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equipment Code List
LAB = Lab Equipment
COMP = Computer Hardware
OFC = Furniture, Telephone, Fax, Etc.
SOFT = Computer Software, Tooling/Molds, Tax, Freight, Extended Warranties, Service Contracts, Tenant Improvements, Etc.
|
|
|
|
|
|
|
|
|
Equip Code
|
|
Total
|
|
% of Total
|
|
|
LAB
|
|
$
|
—
|
|
0.00
|
%
|
|
COMP
|
|
$
|
44,160.00
|
|
94.77
|
%
|
|
OFC
|
|
$
|
—
|
|
0.00
|
%
|
|
SOFT
|
|
$
|
2,438.47
|
|
5.23
|
%
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
46,598.47
|
|
100.00
|
%
|
|
|
|
|
|
Infinity Pharmaceuticals
|
|
|
|
|
By:
|
|
/s/ Illegible
|
|
Title:
|
|
Controller
|
INITIALS:
|
|
|
|
|
|
|
CS(R020403) 4155925001
|
|
*LEAS8760*
|
|
|
BIOTECH EQUIPMENT SCHEDULE
SCHEDULE NO. 001
DATED THIS 8/13/04
TO MASTER LEASE AGREEMENT
DATED AS
OF
August 11, 2004
|
|
|
|
|
Lessor & Mailing Address:
|
|
Lessee & Mailing Address:
|
|
General Electric Capital Corporation
83 Wooster Heights
Road
Danbury, CT 06810
|
|
Infinity Pharmaceuticals, Inc.
780 Memorial
Drive
Cambridge, MA 02139
|
This Schedule is executed pursuant to, and incorporates by reference the terms and conditions of, and capitalized
terms not defined herein shall have the meanings assigned to them in, the Master Lease Agreement identified above (
“Agreement”
said Agreement and this Schedule being collectively referred to as
“Lease”
). This
Schedule, incorporating by reference the Agreement, constitutes a separate instrument of lease.
|
A.
|
Equipment:
Subject to the terms and conditions of the Lease, Lessor agrees to Lease to Lessee the Equipment described below (the
“Equipment”
).
|
|
|
|
|
|
|
|
|
|
|
|
Number of Units
|
|
Capitalized
Lessor’s Cost
|
|
Manufacturer
|
|
Serial Number
|
|
Model and Type of Equipment
|
|
|
|
|
|
|
|
|
|
|
SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF
|
|
|
1. Advance Rent (if any):
$11,240.93
|
|
|
|
2. Capitalized Lessor’s Cost:
$ 324,424.81
|
|
|
|
3. Basic Term (No. of Months):
30 Months
.
|
|
|
|
4. Basic Term Lease Rate Factor:
3.464879
|
|
|
|
5. Basic Term Commencement Date:
|
|
|
|
6. Lessee Federal Tax ID No.:
04-3549480
|
|
|
|
7. Last Delivery Date:
|
|
|
|
8. Daily Lease Rate Factor:
.01155
|
|
9.
|
First Termination Date: Thirty (30) months after the Basic Term Commencement Date.
|
|
10.
|
Interim Rent: For the period from and including the Lease Commencement Date to but not including the Basic Term Commencement Date (“Interim Period”), Lessee shall pay as
rent (“Interim Rent”) for each unit of Equipment, the product of the Daily Lease Rate Factor times the Capitalized Lessor's Cost of such unit times the number of days in the Interim Period. Interim Rent shall be due on the lease
commencement.
|
|
11.
|
Basic Term Rent. Commencing on 9/1/04 and on the same day of each month thereafter (each, a “Rent Payment Date”) during the Basic Term, Lessee shall pay as rent
(“Basic Term Rent”) the product of the Basic Term Lease Rate Factor times the Capitalized Lessor’s Cost of all Equipment on this Schedule.
|
|
C.
|
Tax Benefits
Depreciation Deductions:
|
|
1.
|
Depreciation method is the 200 % declining balance method, switching to straight line method for the 1st taxable year for which using the straight line method with respect to
the adjusted basis as of the beginning of such year will yield a larger allowance.
|
|
2.
|
Recovery Period: Five (5) Years.
|
|
3.
|
Basis: 100 % of the Capitalized Lessor’s Cost.
|
PROPERTY TAX NOT APPLICABLE ON
EQUIPMENT LOCATED IN MASSACHUSETTS.
Lessor may notify Lessee (and Lessee agrees to follow such notification) regarding any changes in
property as reporting and payment responsibilities.
IN ACCORDANCE WITH THE
REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES THE FOLLOWING DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A) THE PERSON(S) SUPPLYING THE EQUIPMENT IS
IBM
(THE
“
SUPPLIER(S)
”), (B) LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES, INCLUDING THOSE OF ANY THIRD PARTY, PROVIDED TO THE LESSOR BY SUPPLIER(S), WHICH IS SUPPLYING THE EQUIPMENT IN CONNECTION WITH OR AS PART OF THE CONTRACT BY
WHICH LESSOR ACQUIRED THE EQUIPMENT AND (C) WITH RESPECT TO SUCH EQUIPMENT, LESSEE MAY COMMUNICATE WITH SUPPLIER(S) AND RECEIVE AN ACCURATE AND COMPLETE STATEMENT OF SUCH PROMISES AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND LIMITATIONS OF
THEM OR OF REMEDIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE IN ARTICLE 2A AND ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY LIMIT OR MODIFY
ANY OF LESSOR'S RIGHTS OR REMEDIES UNDER THE DEFAULT AND REMEDIES SECTION OF THE AGREEMENT.
|
F.
|
Stipulated Loss and Termination Value Table*
|
*SEE
ANNEX D ATTACHED HERETO AND MADE A PART HEREOF.
|
G.
|
Modifications and Additions for This Schedule Only
|
For purposes of this Schedule only, the Agreement is amended as follows:
|
|
I
|
EQUIPMENT SPECIFIC PROVISIONS
|
The MAINTENANCE
Section of the Lease is amended by adding the following as the fifth sentence in subsection (a):
Lessee agrees that upon return of the
Equipment, it will comply with all original manufacturer's performance specifications for new Equipment without expense to Lessor. Lessee shall, if requested by Lessor, obtain a certificate or service report from the manufacturer attesting to such
condition.
Each reference contained in this Agreement to:
(a) “Adverse Environmental Condition” shall refer to (i) the existence or the continuation of the existence, of an Environmental Emission (including, without limitation, a sudden or non-sudden
accidental or non-accidental Environmental Emission), of, or exposure to, any substance, chemical, material, pollutant, Contaminant, odor or audible noise or other release or emission in, into or onto the environment (including, without limitation,
the air, ground, water or any surface) at, in, by, from or related to any Equipment, (ii) the environmental aspect of the transportation, storage, treatment or disposal of materials in connection with the operation of any Equipment or
(iii) the violation, or alleged violation of any statutes, ordinances, orders, rates regulations, permits or licenses of, by or from any governmental authority, agency or court relating to environmental matters connected with any Equipment.
(b) “Affiliate” shall refer, with respect to any given Person, to any Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, such Person.
(c) “Contaminant” shall refer to
those substances which are regulated by or form the basis of liability under any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls (“PCB's”), and radioactive substances, or other material or substance
which has in the past or could in the future constitute a health, safety or environmental hazard to any Person, property or natural resources.
(d) “Environmental Claim” shall refer to any accusation, allegation, notice of violation, claim, demand, abatement or other order on direction (conditional or otherwise) by any governmental authority or any Person for personal
injury (including sickness, disease or death), tangible or intangible property damage, damage to the environment or other adverse effects on the environment, or for fines, penalties or restrictions, resulting from or based upon any Adverse
Environmental Condition.
(e) “Environmental Emission” shall refer to any actual or threatened release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, teaching or migration into the indoor or outdoor environment, or into or out of any of the Equipment, including, without limitation, the movement of any Contaminant or other substance
through or in the air, soil, surface water, groundwater or property.
(f) “Environmental Law” shall mean any federal, foreign, state of local law, rule or regulation
pertaining to the protection of the environment, including, but not limited to, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) (42 U.S.C. Section 9601 et seq.), the Hazardous Material
Transportation Act (49 U.S.C. Section 1801 seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq .), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 1361 et seq.), and the Occupational Safety and Health Act (19 U.S.C.
Section 651 et seq.), as these laws have been amended or supplemented, and any analogous foreign, federal, state or local statutes, and the regulations promulgated pursuant thereto.
(g) “Environmental Loss” shall mean any loss, cost, damage, liability, deficiency, fine, penalty or expense (including, without limitation,
reasonable attorneys’ fees, engineering and other professional or expert fees), investigation, removal, cleanup and remedial costs (voluntarily or involuntarily incurred) and damages to, loss of the use of or decrease in value of the Equipment
arising out of or related to any Adverse Environmental Condition.
(h) “Person” shall include any individual, partnership,
corporation, trust, unincorporated organization, government or department or agency thereof and any other entity.
Lessee shall fully and
promptly pay, perform, discharge, defend, indemnify and hold harmless Lessor and its Affiliates, successors and assigns, directors, officers, employees and agents from and against any Environmental Claim or Environmental Loss.
The provisions of this Schedule shall survive any expiration or termination of the Lease and shall be enforceable by Lessor, its successors and assigns.
The MAINTENANCE Section subsection (a) of the Lease shall be amended by adding the following at the end thereof:
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN OF EQUIPMENT Section of the Lease, and provided that Lessee has elected not to
exercise its option to purchase the Equipment, at Lessor’s reasonable request, Lessee shall, at its expense:
(a) Upon the request of Lessor, Lessee
shall no later than sixty (60) days prior to the expiration or other termination of the Lease provide:
(i) a detailed inventory of the
Equipment (including the model and serial number of each major component thereof), including, without limitation, all internal circuit boards, module boards, and software features;
(ii) a complete and current set of all manuals, equipment configuration, setup and operation diagrams, maintenance records and other data that may be
reasonably requested by Lessor concerning the configuration and operation of the Equipment; and
(iii) a certification of the manufacturer
or of a maintenance provider acceptable to Lessor that the Equipment (1) has been tested and is operating in accordance with manufacturers specifications (together with a report detailing the condition of the Equipment), the results of such
test(s) and inspection(s) and all repairs that were performed as a result of such test(s) and inspection(s) and (2) that the Equipment qualifies for the manufacturers used equipment maintenance program.
(b) Upon the request of Lessor, Lessee shall, no later than sixty (60) days prior to the expiration or other termination of the Lease, make the Equipment available
for on-site operational inspection by persons designated by the Lessor who shall be duly qualified to inspect the Equipment in its operational environment.
(c) All Equipment shall be reasonably cleaned and treated with respect to rust, corrosion and appearance in accordance with manufacturers recommendations and consistent with the best practices of dealers in used equipment similar to the
Equipment; shall have no Lessee installed markings or labels which are not necessary for the operation, maintenance or repair of the Equipment; and shall be in compliance with all applicable governmental laws, rules and regulations.
(d) The Equipment shall be deinstalled and packed by or under the supervision of the manufacturer or such other person acceptable to Lessor in accordance with
manufacturers recommendations. Without limitation, all internal fluids will either be drained and disposed of or filled and secured in accordance with manufacturers recommendations and applicable governmental laws, rules and regulations.
(e) Provide for transportation of the Equipment in a manner consistent with the manufacturer’s recommendations and practices to any locations within the
continental United States as Lessor shall direct; and shall have the Equipment unloaded at such locutions.
You are hereby irrevocably
authorized and directed to deliver and apply the proceeds due under this Schedule as follows:
|
|
|
|
|
|
|
|
Company Name
|
|
Address
|
|
Amount
|
|
IBM
|
|
P.O. BOX 945684, ATLANTA, GA
|
|
$
|
324,424.81
|
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
Pursuant to the provisions of the lease, as it relates to this Schedule, Lessee hereby certifies and
warrants that (i) all Equipment listed above has been delivered and installed (if applicable) as of the date stated above, and copies of the Bill(s) of Lading or other documentation acceptable to Lessor which show the date of delivery are
attached hereto; (ii) Lessee has inspected the Equipment, and all such testing as it deems necessary has been performed by Lessee, Supplier or the manufacturer; and (iii) Lessee accepts the Equipment for all purposes of the Lease, the
purchase documents and all attendant documents.
Lessee does further certify that as of the date hereof (i) Lessee is not in default
under the Lease; (ii) the representations and warranties made by Lessee pursuant to or under the Lease are true and correct on the date hereof and (iii) Lessee has reviewed and approves of the purchase documents for the Equipment, if any.
Except as expressly modified hereby, all terms and provisions of the Agreement shall remain in full force and effect. This Schedule is not
binding or effective with respect to the Agreement or Equipment until executed on behalf of Lessor and Lessee by authorized representatives of Lessor and Lessee, respectively.
IN WITNESS WHEREOF,
Lessee and Lessor have caused this Schedule to be executed by their duly authorized representatives as of the date first above
written.
|
|
|
|
|
|
|
|
|
|
|
LESSOR:
|
|
|
|
LESSEE:
|
|
|
|
|
|
General Electric Capital Corporation
|
|
|
|
Infinity Pharmaceuticals, Inc.
|
|
|
|
|
|
|
|
By:
|
|
/s/ John Edez
|
|
|
|
By:
|
|
/s/ Thomas J. Burke
|
|
Name:
|
|
John Edez
|
|
|
|
Name:
|
|
Thomas J. Burke
|
|
Title:
|
|
S V P
|
|
|
|
Title:
|
|
Controller
|
EXHIBIT,
ACCOUNT #4137754-001
|
|
|
|
|
|
|
|
|
|
|
Company Name:
Equipment Location:
|
|
Infinity Pharmaceuticals
780 Memorial
Drive, Cambridge MA 02139
|
|
DEPRECIATION DATE
|
|
06/30/04
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Inv.
Item
|
|
|
|
Supplier
|
|
Invoice #
|
|
Inv Date
|
|
Description
|
|
QTY
|
|
Serial
#
|
|
Customer’s
Internal
Tag # (if
applicable)
|
|
PO#
|
|
Amt.
Financed
|
|
Vendor
Total
|
|
Ck #
|
|
Proof of
payment’s
|
|
Ck
Amt
|
|
Equip
Code
|
|
>90
Days
|
|
1
|
|
IBM
|
|
|
|
4142581
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
2,014.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
532.50
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4141778
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
2,014.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
88.75
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4143161
|
|
06/30/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
1,739.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
1
|
|
|
|
|
|
|
|
$
|
1,739.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
|
|
|
|
|
|
|
|
$
|
1,739.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
225.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4142582
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
2,014.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
355.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4140599
|
|
06/29/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
2,014.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/29/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/29/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
177.50
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4132500
|
|
06/25/04
|
|
THINKPAD X40 SERIES 8 CELL LIION BATTERY
|
|
7
|
|
|
|
|
|
9022
|
|
$
|
1,260.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/25/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
132.67
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
|
|
06/25/04
|
|
FREIGHT
|
|
|
|
|
|
|
|
|
|
$
|
1,393.45
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4133118
|
|
06/25/04
|
|
1GB PC2700 CL2.5 NP DDR WITH OTHER COMPUTER ATTACHMENTS
|
|
58
|
|
|
|
|
|
9022
|
|
$
|
38,628.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/25/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
1,931.40
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4135191
|
|
06/26/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
2,014.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/26/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/26/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/26/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
266.25
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4135401
|
|
06/26/04
|
|
THINKPAD 72W AC ADAPTER
|
|
60
|
|
|
|
|
|
9022
|
|
$
|
2,640.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/26/04
|
|
IBM USB 2.0 PORTABLE MULTI BURNER WITH OTHER ATTACHMENTS
|
|
|
|
|
|
|
|
|
|
$
|
1,561.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/26/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
210.05
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4138755
|
|
06/29/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
1,739.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/29/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
75.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4142583
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
2,014.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
532.50
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4137318
|
|
06/28/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
2,014.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/28/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
88.75
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4143157
|
|
06/30/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
1,739.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
1
|
|
|
|
|
|
|
|
$
|
1,739.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
1
|
|
|
|
|
|
|
|
$
|
1,739.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
225.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4142010
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
2,014.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
06/30/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
177.50
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4152064
|
|
07/06/04
|
|
IBM M400 PROJECTOR
|
|
1
|
|
|
|
|
|
9022
|
|
$
|
1,625.00
|
|
|
|
|
|
NO
|
|
|
|
OFC
|
|
N
|
|
|
|
|
|
|
|
|
|
07/06/04
|
|
IBM M400 PROJECTOR
|
|
1
|
|
|
|
|
|
|
|
$
|
1,625.00
|
|
|
|
|
|
|
|
|
|
OFC
|
|
N
|
|
|
|
|
|
|
|
|
|
07/06/04
|
|
IBM M400 PROJECTOR
|
|
1
|
|
|
|
|
|
|
|
$
|
1,625.00
|
|
|
|
|
|
|
|
|
|
OFC
|
|
N
|
|
|
|
|
|
|
|
|
|
07/06/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
243.75
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4147491
|
|
07/01/04
|
|
T42 INTEL PENTIUM M 1.8 2M L2
|
|
1
|
|
|
|
|
|
9068
|
|
$
|
2,584.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
T42 INTEL PENTIUM M 1.8 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,584.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
T42 INTEL PENTIUM M 1.8 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,584.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
T42 INTEL PENTIUM M 1.8 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,584.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
INITIALS: ____________
EXHIBIT,
ACCOUNT #4137754-001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
T42 INTEL PENTIUM M 1.8 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,584.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
T42 INTEL PENTIUM M 1.8 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,584.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
T42 INTEL PENTIUM M 1.8 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,584.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
T42 INTEL PENTIUM M 1.8 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,584.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
THINKPAD BATTERY
|
|
21
|
|
|
|
|
|
$
|
3,024.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
$
|
1,089.20
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4146262
|
|
07/01/04
|
|
THINKPAD BATTERY
|
|
|
|
|
|
9068
|
|
$
|
180.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
$
|
37.68
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
|
|
07/01/04
|
|
FREIGHT
|
|
|
|
|
|
|
|
$
|
573.50
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4148816
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
9068
|
|
$
|
2,014.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
$
|
1,153.75
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4148353
|
|
07/02/04
|
|
THINKPAD NYLON CARRYING CAS
|
|
22
|
|
|
|
9068
|
|
$
|
880.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/02/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
$
|
44.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4150205
|
|
07/05/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
1
|
|
|
|
9068
|
|
$
|
1,739.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/05/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
$
|
75.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4171341
|
|
07/16/04
|
|
THINKPAD NYLON CARRYING CAS
|
|
15
|
|
|
|
9140
|
|
$
|
600.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/16/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
$
|
30.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4171150
|
|
07/16/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
1
|
|
|
|
9140
|
|
$
|
1,739.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/16/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
1
|
|
|
|
|
|
$
|
1,739.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/16/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
$
|
150.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4158360
|
|
07/09/04
|
|
X40 INTEL PENTIUM M LV 1.2
|
|
1
|
|
|
|
9140
|
|
$
|
1,739.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/09/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
$
|
75.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4154120
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
9140
|
|
$
|
2,014.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
2,130.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4153790
|
|
07/07/04
|
|
THINKPAD NYLON CARRYING CASE AND BATTERY
|
|
9140
|
|
|
$1,900.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
95.00
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4155201
|
|
07/07/04
|
|
1GB PC2700 CL2.5 NP DDR
|
|
|
|
2
|
|
|
|
9140
|
|
$
|
1,050.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
52.50
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
4153680
|
|
07/07/04
|
|
THINKPAD T40 SERIES LION BATT
|
|
|
|
46
|
|
|
|
9140
|
|
$
|
6,624.00
|
|
|
|
|
|
NO
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
EXP T42 INTEL PENTIUM 1.8 2M
|
|
|
|
1
|
|
|
|
|
|
$
|
3,184.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
EXP T42 INTEL PENTIUM 1.8 2M
|
|
|
|
1
|
|
|
|
|
|
$
|
3,184.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
|
|
1
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
INITIALS: ______________
EXHIBIT,
ACCOUNT #4137754-001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
|
|
$
|
2,584.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
2,492.21
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
07/07/04
|
|
FREIGHT
|
|
|
|
|
|
|
|
|
|
$
|
1,260.15
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
4179777
|
|
07/21/04
|
|
THINKPAD T40 SERIES LION BATT
|
|
40
|
|
|
|
|
|
RMA#IC2A3A
|
|
$
|
(5,760.00
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
07/21/04
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
(288.00
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
4187833
|
|
07/23/04
|
|
IBM USB Keyboard
|
|
12
|
|
|
|
|
|
9287
|
|
$
|
432.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
Thinkpad Ultrabay Slim Battery
|
|
93
|
|
|
|
|
|
|
|
$
|
14,043.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
4
|
|
|
|
|
|
|
|
$
|
8,056.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
1,226.09
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
|
|
Shipping & Handling
|
|
|
|
|
|
|
|
|
|
$
|
976.50
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
|
|
Thinkpad CD-RW/DVD-ROM
|
|
11
|
|
|
|
|
|
|
|
$
|
1,970.10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
4188125
|
|
07/23/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
1
|
|
|
|
|
|
9287
|
|
$
|
2,014.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
Sales Tax
|
|
|
|
|
|
|
|
|
|
$
|
88.75
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
4192082
|
|
07/26/04
|
|
T42 INTEL PENTIUM M 1.7 2M L2
|
|
7
|
|
|
|
|
|
9287
|
|
$
|
14,098.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
Sales Tax
|
|
|
|
|
|
|
|
|
|
$
|
621.25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
4194021
|
|
07/27/04
|
|
THINKPAD X4 ULTRABASE DOCK
|
|
11
|
|
|
|
|
|
9395
|
|
$
|
1,970.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
Shipping & Handling
|
|
|
|
|
|
|
|
|
|
$
|
50.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
|
|
|
|
Sales Tax
|
|
|
|
|
|
|
|
|
|
$
|
101.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SOFT
|
|
N
|
|
|
|
|
|
4195741
|
|
07/28/04
|
|
THINKPAD MINI-DOCK
|
|
11
|
|
|
|
|
|
RMA#9AK57E
|
|
$
|
(2,013.00
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
(100.65
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
4195744
|
|
07/28/04
|
|
THINKPAD T40 SERIES LION
|
|
6
|
|
|
|
|
|
RMA#1C2A3A
|
|
$
|
(864.00
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
(43.20
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
4197995
|
|
07/28/04
|
|
THINKPAD T40 SERIES LION
|
|
8
|
|
|
|
|
|
RMA#9AKCW3
|
|
$
|
(1,152.00
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
THINKPAD T40 SERIES LION
|
|
13
|
|
|
|
|
|
RMA#9AKCW3
|
|
$
|
(1,872.00
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
SALES TAX
|
|
|
|
|
|
|
|
|
|
$
|
(151.20
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
COMP
|
|
N
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
324,424.81
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FUNDING
TOTAL
|
|
$
|
324,424.81
|
|
|
$
|
324,424.81
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equipment Code List
LAB = Lab Equipment
COMP = Computer Hardware
OFC = Furniture, Telephone Fax, Etc.
SOFT = Computer Software, Tooling/Molds, Tax Freight, Extended Warranties, Service Contracts, Tenant Improvements, Etc.
|
|
|
|
|
|
|
|
|
Equip. Code
|
|
Total (Cat.)
|
|
% of Total
|
|
|
LAB
|
|
$
|
—
|
|
0.00
|
%
|
|
COMP
|
|
$
|
300,861.15
|
|
92.74
|
%
|
|
OFC
|
|
$
|
4,875.00
|
|
1.50
|
%
|
|
SOFT
|
|
$
|
18,688.66
|
|
5.76
|
%
|
|
Total
|
|
$
|
324,424.81
|
|
100.00
|
%
|
|
|
|
|
|
Infinity Pharmaceuticals
|
|
|
|
|
By:
|
|
/s/ Illegible
|
|
Title:
|
|
|
INITIALS: _______________
Exhibit 10.8
VENTURE LOAN AND SECURITY AGREEMENT
Dated as of June 30, 2006
by and between
HORIZON TECHNOLOGY FUNDING
COMPANY LLC,
a Delaware limited liability company
76 Batterson Park Road
Farmington, CT 06032
as Lender
and
INFINITY PHARMACEUTICALS, INC.,
a Delaware corporation
780 Memorial Drive
Cambridge, MA 02139
as Borrower
Commitment Amount
Loan A: $5,000,000
Commitment Amount Loan B: $2,500,000
Commitment Termination Date Loan A: June 30, 2006
Commitment Termination Date Loan B: June 30, 2006
The Lender and Borrower hereby agree as follows:
AGREEMENT
1.
Definitions and Construction
.
1.1
Definitions
. As used in this Agreement, the following capitalized terms shall have the following meanings:
“
Account Control Agreement
” means deposit or investment account control agreements among the Borrower, Oxford Finance Corporation and
Silicon Valley Bank or State Street bank and Trust Company or an agreement acceptable to Lender which perfects via control Lender’s security interest in Borrower’s deposit accounts and/or accounts-holding securities.
“
Affiliate
” means any Person that owns or controls directly or indirectly ten percent (10%) or more of the stock of another entity,
any Person that controls or is controlled by or is under common control with such Persons or any Affiliate of such Persons and each of such Person’s officers, directors, joint venturers or partners.
“
Agreement
” means this certain Venture Loan and Security Agreement by and between Borrower and Lender dated as of the date on the cover
page hereto (as it may from time to time be amended or supplemented in writing signed by the Borrower and Lender).
“
Borrower
” means the Borrower as set forth on the cover page of this Agreement.
“
Borrower’s Home
State
” means Massachusetts.
“
Business Day
” means any day that is not a Saturday, Sunday, or other day on which
banking institutions are authorized or required to close in Connecticut or Borrower’s Home State.
“
Claim
” has the
meaning given such term in
Section 10.3
of this Agreement
“
Code
” means the Uniform Commercial Code as adopted
and in effect in the State of Connecticut, as amended from time to time;
provided
that
if by reason of mandatory provisions of law, the creation and/or perfection or the effect of perfection or non-perfection of the security interest
in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than Connecticut, the term “Code” shall also mean the Uniform Commercial Code as in effect from time to time in such jurisdiction for
purposes of the provisions hereof relating to such creation, perfection or effect of perfection or non-perfection.
“
Collateral
” has the meaning given such term in
Section 4.1
of this Agreement.
“
Commitment
Amount
” means collectively, Commitment Amount Loan A and Commitment Amount Loan B.
1
“
Commitment Amount Loan A
” and “
Commitment Amount Loan B
” each have the
respective meanings as set forth on the cover page of this Agreement.
“
Commitment Fee
” has the meaning given such term in
Section 2.6(c)
of this Agreement.
“
Commitment Termination Date
” means collectively, Commitment Termination
Date Loan A and Commitment Termination Date Loan B.
“
Commitment Termination Date Loan A
” and “
Commitment
Termination Date Loan B
” each have the respective meanings as set forth on the cover page of this Agreement.
“
Default
” means any event which with the passing of time or the giving of notice or both would become an Event of Default hereunder.
“
Default Rate
” means the per annum rate of interest equal to eighteen percent (18%), but such rate shall in no event be more than the highest rate permitted by applicable law to be charged on
commercial loans in a default situation.
“
Disclosure Schedule
” means
Exhibit A
attached hereto.
“
Environmental Laws
” means all foreign, federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and
codes, together with all administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authorities, in each case relating to environmental, health, safety and land use matters,
including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery Act, the
Toxic Substances Control Act and the Emergency Planning and Community Right-to-Know Act.
“
Equity Securities
” of any
Person means (a) all common stock, preferred stock, participations, shares, partnership interests, membership interests or other equity interests in and of such Person (regardless of how designated and whether or not voting or non-voting) and
(b) all warrants, options and other rights to acquire any of the foregoing.
“
ERISA
” has the meaning given to such
term in
Section 7.12
of this Agreement.
“
Event of Default
” has the meaning given to such term in
Section 8
of this Agreement.
“
Funding Certificate
” means a certificate executed by a Responsible Officer of
Borrower substantially in the form of
Exhibit B
or such other form as Lender may agree to accept.
“
Funding Date
”
means any date on which a Loan is made to or on account of Borrower under this Agreement.
“
GAAP
” means generally accepted
accounting principles as in effect in the United States of America from time to time, consistently applied.
2
“
Good Faith Deposit
” has the meaning given such term in
Section 2.6(a)
of
this Agreement.
“
Governmental Authority
” means (a) any federal, state, county, municipal or foreign government, or
political subdivision thereof, (b) any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality or public body, (c) any court or administrative tribunal, or (d) with respect to any
Person, any arbitration tribunal or other non-governmental authority to whose jurisdiction that Person has consented.
“
Hazardous
Materials
” means all those substances which are regulated by, or which may form the basis of liability under, any Environmental Law, including all substances identified under any Environmental Law as a pollutant, contaminant, hazardous
waste, hazardous constituent, special waste, hazardous substance, hazardous material, or toxic substance, or petroleum or petroleum derived substance or waste.
“
Indebtedness
” means, with respect to Borrower or any Subsidiary, the aggregate amount of, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade payables aged less than one hundred eighty
(180) days), (d) all capital lease obligations of such Person, (e) all obligations or liabilities of others secured by a Lien on any asset of such Person, whether or not such obligation or liability is assumed, (f) all
obligations or liabilities of others guaranteed by such Person, and (g) any other obligations or liabilities which are required by GAAP to be shown as debt on the balance sheet of such Person. Unless otherwise indicated, the term
“
Indebtedness
” shall include all Indebtedness of Borrower and the Subsidiaries.
“
Indemnified Person
” has
the meaning given such term in
Section 10.3
of this Agreement.
“
Intellectual Property
” shall mean
(a) all of the Borrower’s right, title and interest, whether now owned or existing or hereafter acquired or arising, in and to all domestic and foreign copyrights, copyright registrations and copyright applications, whether or not
registered or filed with any governmental authority, together with (i) all renewals thereof, (ii) all present and future rights of the Borrower under all present and future license agreements relating thereto, whether the Borrower is
licensee or licensor thereunder, (iii) all income, royalties, damages and payments now or hereafter due and/or payable to the Borrower thereunder or with respect thereto, including, without limitation, damages and payments for past, present or
future infringements thereof, (iv) all of the Borrower’s present and future claims, causes of action and rights to sue for past, present or future infringements thereof, and (v) all rights corresponding thereto throughout the world
(collectively
“Copyright Rights”
); (b) all of the Borrower’s right, title and interest, whether now owned or existing or hereafter acquired or arising, in and to all United States and foreign patents, and pending and
abandoned United States and foreign patent applications, including, without limitation, the inventions and improvements described or claimed therein, together with (i) any reissues, divisions, continuations, certificates of re-examination,
extensions and continuarions-in-part thereof, (ii) all present and future rights of the Borrower under all present and future license agreements relating thereto, whether the Borrower is licensee or licensor thereunder, (iii) all income,
royalties, damages and payments
3
now or hereafter due and/or payable to the Borrower thereunder or with respect thereto, including, without limitation, damages and payments for past, present
or future infringements thereof, (iv) all of the Borrower’s present and future claims, causes of action and rights to sue for past, present or future infringements thereof, and (v) all rights corresponding thereto throughout the world
(collectively
“Patent Rights”);
(c) all of the Borrower’s right, title and interest, whether now owned or existing or hereafter acquired or arising, in and to all domestic and foreign trademarks, trademark registrations,
trademark applications and trade names, whether or not registered or filed with any governmental authority, together with (i) all renewals thereof, (ii) all present and future rights of the Borrower under all present and future license
agreements relating thereto, whether the Borrower is licensee or licensor thereunder, (iii) all income, royalties, damages and payments now or hereafter due and/or payable to the Borrower thereunder or with respect thereto, including, without
limitation, damages and payments for past, present or future infringements thereof, (iv) all of the Borrower’s present and future claims, causes of action and rights to sue for past, present or future infringements thereof, and
(v) all rights corresponding thereto throughout the world and all goodwill related to the foregoing (collectively
“Trademark Rights”
); (d) all present and future licenses and license agreements of the Borrower, and all
rights of the Borrower under or in connection therewith, whether the Borrower is licensee or licensor thereunder, including, without limitation, any present or future franchise agreements under which the Borrower is franchisee or franchisor,
together with (i) all renewals thereof, (ii) all income, royalties, damages and payments now or hereafter due and/or payable to the Borrower thereunder or with respect thereto, including, without limitation, damages and payments for past,
present or future infringements thereof, (iii) all claims, causes of action and rights to sue for past, present or future infringements thereof, and (iv) all rights corresponding thereto throughout the world (collectively
“License
Rights”
); (e) all present and future trade secrets of the Borrower; and (f) all other present and future intellectual property of the Borrower.
“
Lender
” means the Lender as set forth on the cover page of this Agreement.
“
Lender’s Expenses
” means all reasonable costs or expenses (including reasonable attorneys’ fees and expenses) incurred in connection with the preparation, negotiation, documentation, administration and funding of
the Loan Documents; and Lender’s reasonable attorneys’ fees, costs and expenses incurred in amending, modifying, enforcing or defending the Loan Documents (including fees and expenses of appeal or review), including the exercise of any
rights or remedies afforded hereunder or under applicable law, whether or not suit is brought, whether before or after bankruptcy or insolvency, including without limitation all fees and costs incurred by Lender in connection with Lender’s
enforcement of its rights in a bankruptcy or insolvency proceeding filed by or against Borrower or its Property.
“
Lien
”
means any voluntary or involuntary security interest, pledge, bailment, lease, mortgage, hypothecation, conditional sales and title retention agreement, encumbrance or other lien with respect to any Property in favor of any Person.
“
Loan
” means each advance of credit to Borrower made under this Agreement, and “
Loans
” means, collectively, all such
advances of credit.
“
Loan A
” means the advance of credit to Borrower under this Agreement in the Commitment Amount Loan
A.
4
“
Loan B
” means the advance of credit to Borrower under this Agreement, if any, in the
Commitment Amount Loan B.
“
Loan Documents
” means, collectively, this Agreement, the Notes, the Warrant and all other
documents, instruments and agreements entered into in connection with this Agreement, all as amended or extended from time to time.
“
Loan Rate
” means, with respect to each Loan, the per annum rate of interest (based on a year of twelve 30-day months) equal to the 11.25%
plus
the difference, whether positive or negative, between (i) the one
month LIBOR Rate (rounded to the nearest one hundredth percent), as reported in the
Wall Street Journal
on the date which is five (5) Business Days before the Funding Date for such Loan (or, if the
Wall Street Journal i
s not
published on such date, the next earlier date on which it is published) and (ii) 4.64%.
“
Maturity Date
” means, with
respect to Loan A, September 1, 2009, or if earlier, the date of acceleration of Loan A following an Event of Default or the date of prepayment, whichever is applicable and, with respect to Loan B, the date which is thirty-nine (39) months
after the first day of the month following the month in which Loan B is made, or the date of prepayment, whichever is applicable.
“
Merger Agreement
” means a certain Agreement and Plan of Merger and Reorganization dated as of April 11, 2006 by and among Discovery Partners International, Inc., Darwin Corp. and Borrower.
“
Note
” means each promissory note executed in connection with a Loan in substantially the form of
Exhibit C
attached hereto, and,
collectively, “
Notes
” means all such promissory notes.
“
Obligations
” means all debt, principal,
interest, fees, charges, expenses and attorneys’ fees and costs and other amounts, obligations, covenants, and duties owing by Borrower to Lender of any kind and description pursuant to or evidenced by the Loan Documents (other than the
Warrant) whether or not for the payment of money), whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, including all Lender’s Expenses.
“
Officer’s Certificate
” means a certificate executed by a Responsible Officer substantially in the form of
Exhibit D
or such
other form as Lender may agree to accept.
“
Payment Date
” has the meaning given such term in
Section 2.2(a)
of
this Agreement.
“
Permitted Indebtedness
” means and includes:
(a) Indebtedness of Borrower to Lender;
(b) Indebtedness arising from the endorsement of instruments in the ordinary course of business;
5
(c) Indebtedness existing on the date hereof and set forth in the
Disclosure
Schedule
and any refinancings, refundings, renewals or extensions thereof;
provided
that
the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal
to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor
with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension;
(d) Indebtedness incurred pursuant to a secured loan arrangement entered into by and between the Borrower and Oxford Finance Corporation (or its designee) in connection with a certain Master Loan and Security Agreement dated as of
October 16, 2002 and amended as of March 31, 2006, all schedules and exhibits thereto, and any refinancings, refundings, renewals or extensions thereof;
provided
that
the amount of such Indebtedness is not increased at the
time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension;
(e) Indebtedness secured by Liens permitted under clause (j) of the definition of Permitted Liens;
(f) Indebtedness incurred in connection with any license, joint venture, partnership, corporate collaboration or project financing in the
ordinary course of business involving the Borrower’s Intellectual Property;
(g) Indebtedness owed from the Borrower to
any Subsidiary;
(h) Indebtedness existing in the books of any entity acquired by the Borrower in a transaction permitted
under this Agreement together with any Indebtedness incurred for the purpose of refinancing such existing Indebtedness; provided that such Indebtedness is in existence on the date of such acquisition and is not created in anticipation thereof;
(i) Indebtedness consisting of trade debt incurred in the ordinary course of business and guarantees by the Borrower of any
Subsidiary indebtedness not otherwise prohibited hereunder;
(j) Indebtedness incurred in the ordinary course of business
consisting of obligations from any interest rate, interest rate cap or collar, currency or currency swap or other agreements or arrangement designed to protect the Borrower against fluctuations in interest rates or currency exchange rates;
(k) Indebtedness with a maturity not to exceed six (6) months;
(1) Subordinated Indebtedness; and
6
(m) Other Indebtedness aggregating not in excess of One Million Dollars ($1,000,000).
“
Permitted Liens
” means and includes:
(a) liens in favor of Lender;
(b) liens for taxes not yet due or for taxes being contested in good faith for which adequate reserves have been established and which do not involve, any imminent sale, forfeiture or loss of any of the Collateral;
(c) inchoate material men’s, mechanic’s, repairmen’s and similar liens arising by operation of law in the
normal course of business for amounts which are not delinquent;
(d) Liens existing on the date hereof and set forth in the
Disclosure
Schedule
and any refinancings, renewals or extensions thereof,
provided
that
the property covered thereby is not changed and the amount secured or benefited thereby is not increased except by an amount equal to
a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, renewals or extensions;
(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other
social security legislation, other than any Liens imposed by ERISA;
(f) Liens on assets of any entity acquired by the
Borrower or any of its Subsidiaries in a transaction permitted under this Agreement; provided that such Liens are in existence on the date of such acquisition and are not created in anticipation thereof;
(g) Liens securing Indebtedness permitted under clauses (d), (f) or (j) of the definition of Permitted Indebtedness;
(h) any interest or title of a lessor under any lease entered into by the Borrower or any other subsidiary in the ordinary course of
its business and covering only the assets so leased; and
(i) Liens consisting of statutory or contractual liens in favor of
banks or institutions holding, providing or issuing Borrower’s deposit accounts and certificates of deposits, easements affecting real property, and Liens in the nature of performance bonds or security deposits arising in the ordinary course of
business; and
(j) Liens upon any Equipment and proceeds, leasehold improvements and soft costs acquired by Debtor after the
date hereof to secure (i) the purchase price (including the refunding to the Borrower of the purchase price) of such equipment or other personal property, or (ii) lease obligations or indebtedness incurred solely for the purpose of
financing such Equipment and proceeds, leasehold improvements and soft costs;
provided
that
(A) such Liens are confined solely to the Equipment so financed, leasehold improvements, soft costs and proceeds thereof and the amount
secured does not exceed the price thereof, and (B) no such Lien
7
shall be created, incurred, assumed or suffered to exist in favor of Borrower’s officers, directors or shareholders holding five percent (5%) or
more of Borrower’s equity securities.
“
Person
” means and includes any individual, any partnership, any corporation,
any business trust, any joint stock company, any limited liability company, any unincorporated association or any other entity and any domestic or foreign national, state or local government, any political subdivision thereof, and any department,
agency, authority or bureau of any of the foregoing.
“
Prepayment
” means to prepay, redeem, repurchase, defease or
otherwise satisfy any manner prior to the scheduled repayment thereof any Indebtedness (other than Subordinated Indebtedness) for borrowed money or lease obligations.
“
Property
” means any interest in any kind of property or asset, whether real, personal or mixed, whether tangible or intangible.
“
Ratable Portion
” means an amount equal to the product of (A) the amount of Indebtedness owed to Lender at the time multiplied by
(B) a fraction, the numerator of which is the dollar amount of all Prepayments made within that six (6) month period in excess of Ten Million Dollars ($10,000,000) and the denominator of which is the sum of (i) all outstanding
Indebtedness (other than Subordinated Indebtedness) and (ii) the Indebtedness owed to Lender.
“
Responsible Officer
”
has the meaning given such term in
Section 6.3
of this Agreement.
“
Scheduled Payments
” has the meaning given
such term in
Section 2.2(a)
of this Agreement.
“
Solvent
” has the meaning given such term in
Section 5.11
of this Agreement.
“
Subordinated Indebtedness
” means any Indebtedness which has been
subordinated to the Obligations on terms and conditions acceptable to Lender in its sole discretion.
“
Subsidiary
” means
any corporation or other entity of which a majority of the outstanding Equity Securities entitled to vote for the election of directors or other governing body (otherwise than as the result of a default) is owned by Borrower directly or indirectly
through Subsidiaries.
“
Third Party Equipment
” has the meaning given such term in
Section 4.8
of this
Agreement.
“
Transfer
” has the meaning given such term in
Section 7.4
of this Agreement.
“
Warrant
” means the separate warrant or warrants dated on or about the date hereof in favor of the Lender or its designees to purchase
securities of Borrower.
1.2
Construction
. References in this Agreement to “Articles,”
“Sections,” “Exhibits,” “Schedules” and “Annexes” are to recitals, articles, sections, exhibits, schedules and annexes herein and hereto unless otherwise indicated. References in this Agreement and each
8
of the other Loan Documents to any document, instrument or agreement shall include (a) all exhibits, schedules, annexes and other attachments thereto,
(b) all documents, instruments or agreements issued or executed in replacement thereof, and (c) such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified and supplemented from time to time and in
effect at any given time. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement or any other Loan Document shall refer to this Agreement or such other Loan Document, as the
case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be. The words “include” and “including” and words of similar import when used in this Agreement or any
other Loan Document shall not be construed to be limiting or exclusive. Unless otherwise indicated in this Agreement or any other Loan Document, all accounting terms used in this Agreement or any other Loan Document shall be construed, and all
accounting and financial computations hereunder or thereunder shall be computed, in accordance with GAAP, and all terms describing Collateral shall be construed in accordance with the Code. The terms and information set forth on the cover page of
this Agreement are incorporated into this Agreement.
2.
Loans; Repayment
.
2.1
Commitment
.
(a)
The Commitment Amount
. Subject to the terms and conditions of this Agreement and relying upon the representations and warranties herein set forth as and when made or deemed to be made, Lender agrees to lend
to Borrower prior to the Commitment Termination Date Loan A, Loan A in the principal amount of Commitment Amount Loan A. Subject to the terms and conditions of this Agreement, including, without limitation, Section 3.3 below, and relying upon
the representations and warranties herein set forth as and when made or deemed to be made, Lender agrees to lend to Borrower prior to the Commitment Termination Date Loan B, Loan B in the principal amount of Commitment Amount Loan B.
(b)
The Loans and the Notes
. The obligation of Borrower to repay the unpaid principal amount of and interest on each Loan shall be
evidenced by a Note issued to Lender.
(c)
Use of Proceeds
. The proceeds of each Loan shall be used solely for
working capital or general corporate purposes of Borrower.
(d)
Termination of Commitment to Lend
. Notwithstanding
anything in the Loan Documents, Lender’s obligation to lend the undisbursed portion of the Commitment Amount to Borrower hereunder shall terminate on the earlier of (i) at Lender’s sole election, the occurrence and the continuance of
any Default or the occurrence of any Event of Default (which has not been waived by Lender) hereunder, and (ii) the Commitment Termination Date. Notwithstanding the foregoing, Lender’s obligation to lend the undisbursed portion of the
Commitment Amount to Borrower shall terminate if, in Lender’s reasonable judgment, there has been a material adverse change in the results of operations or financial condition of Borrower, whether or not arising from transactions in the
ordinary course of business, or there has been any
9
material adverse deviation by Borrower from the business plan of Borrower presented to Lender on or before the date of this Agreement.
2.2
Payments
.
(a)
Scheduled Payments
. Borrower shall make payments of accrued interest only on the outstanding principal amount of each Loan on the first nine (9) Payment Dates specified in the Note applicable to such Loan and thirty
(30) equal payments of principal plus accrued interest on the outstanding principal amount of each Loan on each Payment Date as set forth in the Note applicable to such Loan (collectively, the “
Scheduled Payments
”). Borrower
shall make such Scheduled Payments commencing on the date set forth in the Note applicable to such Loan and continuing thereafter on the first Business Day of each calendar month (each a “
Payment Date
”) through the Maturity Date. In
any event, all unpaid principal and accrued interest shall be due and payable in full on the Maturity Date.
(b)
Interim
Payment
. Unless the Funding Date for a Loan is the first day of a calendar month, Borrower shall pay the per diem interest (accruing at the Loan Rate from the Funding Date through the last day of that month) payable with respect to such Loan on
the first Business Day of the next calendar month.
(c)
Payment of Interest
. Borrower shall pay interest on each Loan
at a per annum rate of interest equal to the Loan Rate. All computations of interest (including interest at the Default Rate, if applicable) shall be based on a year of twelve 30-day months. Notwithstanding any other provision hereof, the amount of
interest payable hereunder shall not in any event exceed the maximum amount permitted by the law applicable to interest charged on commercial loans.
(d)
Application of Payments
. All payments received by Lender prior to an Event of Default shall be applied as follows: (1) first, to Lender’s Expenses then due and owing; and (2) second to all
Scheduled Payments then due and owing (
provided
,
however
, if such payments are not sufficient to pay the whole amount then due, such payments shall be applied first to unpaid interest at the Loan Rate, then to the remaining amount then
due). After an Event of Default, all payments and application of proceeds shall be made as set forth in
Section 9.7
.
(e)
Late Payment Fee
. Borrower shall pay to Lender a late payment fee equal to five percent (5%) of any Scheduled Payment not paid when due.
(f)
Default Rate
. Borrower shall pay interest at a per annum rate equal to the Default Rate on any amounts required to be paid by
Borrower under this Agreement or the other Loan Documents (including Scheduled Payments), payable with respect to any Loan, accrued and unpaid interest, and any fees or other amounts which remain unpaid after such amounts are due. If an Event of
Default has occurred and the Obligations have been accelerated (whether automatically or by Lender’s election), Borrower shall pay interest on the aggregate, outstanding accelerated balance hereunder from the date of the Event of Default until
all Events of Default are cured, at a per annum rate equal to the Default Rate.
10
2.3
Prepayments
.
(a)
Mandatory Prepayment Upon an Acceleration
. If the Loans are accelerated following the occurrence of an Event of Default
pursuant to Section 9.1(a) hereof, then Borrower, in addition to any other amounts which may be due and owing hereunder, shall immediately pay to Lender the amount set forth in Section 2.3(b) below, as if the Borrower had opted to prepay
on the date of such acceleration.
(b) Upon ten (10) Business Days’ prior written notice to Lender, Borrower may,
at its option, at any time, prepay all of the Loans, by paying to Lender an amount equal to (i) any accrued and unpaid interest on the outstanding principal balance of the Loans; (ii) for each Loan an amount equal to (A) if the Loan
is prepaid within twelve (12) months from the Funding Date thereof, four (4%) percent of the then outstanding principal balance of the Loan, (B) if the Loan is prepaid on or after twelve (12) months from the Funding Date thereof
but less than twenty-four (24) months from the Funding Date, three (3%) percent of the then outstanding principal balance of the Loan, or (C) if the Loan is prepaid on or after twenty-four (24) months from the Funding Date
thereof but less than thirty-six (36) months from the Funding Date, two (2%) percent of the then outstanding principal balance of the Loan; and (D) if the Loan is prepaid on or after thirty-six (36) months from the Funding Date
thereof, zero (0%) percent of the then outstanding principal balance of the Loan; (iii) the outstanding principal balance of the Loans and (iv) all other sums, if any, that shall have become due and payable hereunder.
2.4
Other Payment Terms
.
(a)
Place and Manner
. Borrower shall make all payments due to Lender in lawful money of the United States. All payments of principal, interest, fees and other amounts payable by Borrower hereunder shall be
made, in immediately available funds, not later than 12:00 p.m. Connecticut time, on the date on which such payment is due. Borrower shall make such payments to Lender via wire transfer as follows:
|
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|
|
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Payment via wire transfer:
|
|
|
|
Credit:
|
|
Horizon Technology Funding Company LLC
|
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Bank Name:
|
|
ABN Amro/LaSalle Bank NA CDO Trust Services
|
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Bank Address:
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135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attn: Greg Meyers, 312-904-0283
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Account No.:
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2090067 – Trust GL
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FFCT-Reference Account Number
|
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721771.1
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ABA Routing No.:
|
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071000505
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Reference:
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Infinity Invoice #
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11
(b)
Date
. Whenever any payment is due hereunder on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of interest or fees, as the case may be.
2.5
Procedure for Making the Loans
.
(a)
Notice
. Borrower shall notify Lender of the date on which Borrower desires Lender to make any Loan at least five (5) Business Days in advance of the desired Funding Date, unless Lender elects at its
sole discretion to allow the Funding Date to be within five (5) Business Days of Borrower’s notice. Borrower’s execution and delivery to Lender of a Note shall be Borrower’s agreement to the terms and calculations thereunder with
respect to the Loan. Lender’s obligation to make any Loan shall be expressly subject to the satisfaction of the conditions set forth in
Section 3
.
(b)
Loan Rate Calculation
. Prior to each Funding Date, Lender shall establish the Loan Rate with respect to such Loan, which shall
be set forth in the Note to be executed by Borrower with respect to such Loan and shall be conclusive in the absence of a manifest error.
(c)
Disbursement
. Lender shall disburse the proceeds of each Loan by wire transfer to Borrower at the account specified in the Funding Certificate for the Loan.
2.6
Good Faith Deposit; Legal and Closing Expenses; and Commitment Fee
.
(a)
Good Faith Deposit
. Borrower has delivered to Lender a good faith deposit in the amount of Thirty Seven Thousand Five Hundred
Dollars ($37,500) (the
“Good Faith Deposit
”). The Good Faith Deposit will be utilized to pay the Commitment Fee and a portion of the amounts due under Section 2.6(b) below.
(b)
Legal, Due Diligence and Documentation Expenses
. Concurrently with its execution and delivery of this Agreement, Borrower shall
pay to Lender Lender’s legal, due diligence and documentation expenses in connection with the negotiation and documentation of this Agreement and the Loan Documents in an amount not to exceed Twelve Thousand Dollars ($12,000).
(c)
Commitment Fee
. Borrower shall pay Lender concurrently with its execution and delivery of this Agreement a commitment fee in
the amount of Thirty Thousand Dollars ($30,000) (the “
Commitment Fee
”). The Commitment Fee shall be retained by Lender and be deemed fully earned upon receipt.
3.
Conditions of Loan
.
3.1
Conditions Precedent to Closing
. At the time of the execution and delivery of this Agreement, Lender shall have received, in form and substance reasonably satisfactory to Lender, all of the following (unless Lender has agreed to
waive such condition or document, in which case such condition or document shall be a condition precedent to the making of any Loan and shall be deemed added to
Section 3.2
”):
(a)
Loan Agreement
. This Agreement duly executed by Borrower and Lender.
12
(b)
Warrant
. The Warrant duly executed by Borrower.
(c)
Intercreditor Agreement
. Lender and Oxford Finance Corporation shall have executed an agreement setting forth the rights and
responsibilities of Oxford and Lender, as lenders, with respect to the Borrower and its assets.
(d)
Secretary’s
Certificate
. A certificate of the secretary or assistant secretary of Borrower with copies of the following documents attached: (i) the certificate of incorporation and bylaws of Borrower certified by Borrower as being complete and in full
force and effect on the date thereof, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and each of the other Loan Documents.
(e)
Good Standing Certificates
. A good standing certificate from Borrower’s state of incorporation and the state in which
Borrower’s principal place of business is located, each dated as of a recent date.
(f)
Certificate of
Insurance
. Evidence of the insurance coverage required by
Section 6.8
of this Agreement.
(g)
Consents
. All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrant and the other Loan Documents.
(h)
Other Documents
. Such other documents and completion of such other matters, as Lender may reasonably deem necessary or
appropriate.
3.2
Conditions Precedent to Making a Loan
. The obligation of Lender to make each Loan is further
subject to the following conditions:
(a)
No Default
. No Default or Event of Default shall have occurred and be
continuing.
(b)
Note
. Borrower shall have duly executed and delivered to Lender a Note in the amount of the Loan.
(c)
UCC Financing Statements
. Lender shall have received such documents, instruments and agreements, including UCC
financing statements or amendments to UCC financing statements, as Lender shall reasonably request to evidence the perfection and priority of the security interests granted to Lender pursuant to
Section 4
. Borrower authorizes Lender to
file any UCC financing statements, continuations of or amendments to UCC financing statements it deems necessary to perfect its security interest in the Collateral.
(d)
Funding Certificate
. Borrower shall have duly executed and delivered to Lender a Funding Certificate for such Loan.
13
(e)
Other Documents
. Such other documents and completion of such other matters, as
Lender may reasonably deem necessary or appropriate.
3.3
Covenant to Deliver
. Borrower agrees (not as a condition
but as a covenant) to deliver to Lender each item required to be delivered to Lender as a condition to each Loan, if such Loan is advanced. Borrower expressly agrees that the extension of such Loan prior to the receipt by Lender of any such item
shall not constitute a waiver by Lender of Borrower’s obligation to deliver such item, and any such extension in the absence of a required item shall be in Lender’s sole discretion.
4.
Creation of Security Interest
.
4.1
Grant of Security Interest
. Borrower grants to Lender a valid, first priority (subject to Permitted Liens), continuing security interest in all presently existing and hereafter acquired or arising
Collateral in order to secure prompt, full and complete payment of any and all Obligations and in order to secure prompt, full and complete performance by Borrower of each of its covenants and duties under each of the Loan Documents (other than the
Warrant). The “
Collateral
” shall mean and include all right, title, interest, claims and demands of Borrower in and to all personal property of Borrower, including without limitation, all of the following:
(a) All goods (and embedded computer programs and supporting information included within the definition of “goods” under the
Code) and equipment now owned or hereafter acquired, including, without limitation, all laboratory equipment, computer equipment, office equipment, machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the
foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located;
(b) All inventory now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing
and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance
proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above, and Borrower’s books relating to any of the foregoing;
(c) All contract rights and general intangibles (except to the extent included within the definition of Intellectual Property), now owned
or hereafter acquired, including, without limitation, franchise agreements, blueprints, drawings, purchase orders, customer lists to the extent permitted by law, route lists, infringements, claims, non-proprietary software, computer programs,
computer disks, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payment intangibles, commercial tort claims, payments of insurance and rights to payment of any kind;
(d) All now existing and hereafter arising accounts, contract rights, royalties, license rights, license fees and all other forms of
obligations owing to Borrower arising
14
out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (subject, in each case, to the contractual rights of
third parties to require funds received by Borrower to be expended in a particular manner), whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or
reclaimed by Borrower and Borrower’s books relating to any of the foregoing;
(e) All documents, cash, deposit
accounts, letters of credit (whether or not the letter of credit is evidenced by a writing), certificates of deposit, instruments, promissory notes, chattel paper (whether tangible or electronic) and investment property, including, without
limitation, all securities, whether certificated or uncertificated, security entitlements, securities accounts, commodity contracts and commodity accounts, and all financial assets held in any securities account or otherwise, wherever located, now
owned or hereafter acquired and Borrower’s books relating to the foregoing; and
(f) Any and all claims, rights and
interests in any of the above and all substitutions for, additions and accessions to and proceeds thereof, including, without limitation, insurance, condemnation, requisition or similar payments and proceeds of the sale or licensing of Intellectual
Property to the extent such proceeds no longer constitute Intellectual Property; but
(g) Notwithstanding the foregoing, the
Collateral shall not include any Intellectual Property and contracts which by their terms do not permit or would be violated by the grant of a lien or security interest in them to the extent that such terms are enforceable under Section 9-408
of the UCC and assets which are subject to Liens described in clause (j) of the definition of Permitted Liens (until such Liens have been terminated, at which time such assets shall be part of the Collateral);
provided
,
however
,
that the Collateral shall include all accounts receivables, accounts, and general intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the foregoing (the “
Rights
to Payment
”).
4.2
After-Acquired Property
. If Borrower shall at any time acquire a commercial tort claim,
as defined in the Code having a reasonable expected value in excess of $250,000, Borrower shall immediately notify Lender in writing signed by Borrower of the brief details thereof and, upon request of Lender, grant to Lender in such writing a
security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to Lender.
4.3
Duration of Security Interest
. Lender’s security interest in the Collateral shall continue until the payment in full and
the satisfaction of all Obligations and termination of Lender’s commitment to fund the Loans, whereupon such security interest shall terminate. Lender shall, at Borrower’s sole cost and expense, execute such further documents and take such
further actions as may be reasonably necessary to make effective the release contemplated by this
Section 4.3,
including duly executing and delivering termination statements for filing in all relevant jurisdictions under the Code;
provided, however, that Lender’s security interest in the Collateral shall not continue with respect to any Obligations arising from Section 10.3(a) of this Agreement after the repayment in full of all other Obligations and termination of
Lender’s commitment to fund the Loans.
15
4.4
Location and Possession of Collateral
. The Collateral is and shall remain in
the possession of Borrower at its location listed on the cover page hereof or as set forth in the Disclosure Schedule or any other location of which Borrower has notified Lender as provided herein. Borrower shall remain in full possession, enjoyment
and control of the Collateral (except only as may be otherwise required by Lender for perfection of its security interest therein).
4.5
Delivery of Additional Documentation Required
. Borrower shall from time to time execute and deliver to Lender, at the request of Lender, all financing statements and other documents Lender may reasonably request, in form
satisfactory to Lender, to perfect and continue Lender’s perfected security interests in the Collateral and in order to consummate fully all of the transactions contemplated under the Loan Documents.
4.6
Right to Inspect
. Lender (through any of its officers, employees, or agents) shall have the right, upon reasonable prior
notice, from time to time during Borrower’s usual business hours, to inspect Borrower’s books and records and to make copies thereof and to inspect, test, and appraise the Collateral in order to verify Borrower’s financial condition
or the amount, condition of, or any other matter relating to, the Collateral, provided, that if no Event of Default shall have occurred, Lender shall not make more than one (1) inspection in any calendar year. If no Event of Default shall have
occurred, Lender shall use its best efforts to coordinate such inspection with Oxford Finance Corporation.
4.7
Protection of Intellectual Property
. Borrower shall protect, defend and maintain the validity and enforceability of the Intellectual Property necessary for the operation of its business.
4.8
Lien Subordination
. Lender agrees that the Liens granted to it hereunder in Third Party Equipment shall be subordinate to the
Liens of future lenders providing equipment financing and equipment lessors for equipment and other personal property acquired by Borrower after the date hereof (“
Third Party Equipment
”);
provided that
such Liens are confined
solely to the equipment so financed and the proceeds thereof and are Permitted Liens. Notwithstanding the foregoing, the Obligations hereunder shall not be subordinate in right of payment to any obligations to other equipment lenders or equipment
lessors and Lender’s rights and remedies hereunder with respect to Collateral that does not constitute Third Party Equipment shall not in any way be subordinate to the rights and remedies of any such lenders or equipment lessors. So long as no
Event of Default has occurred, Lender agrees to execute and deliver such agreements and documents as may be reasonably requested by Borrower from time to time which set forth the lien subordination described in this
Section 4.8
and are
reasonably acceptable to Lender. Lender shall have no obligation to execute any agreement or document which would impose obligations, restrictions or lien priority on Lender which are less favorable to Lender than those described in this
Section 4.8
.
5.
Representations and Warranties
. Except as set forth in the Disclosure Schedule, Borrower represents and
warrants as follows:
5.1
Organization and Qualification
. Borrower is a corporation duly organized and validly
existing under the laws of its state of incorporation and qualified and licensed to do
16
business in, and is in good standing in, any state in which the conduct of its business or its ownership of Property requires that it be so qualified or in
which the Collateral is located, except for such states as to which any failure to so qualify would not have a material adverse effect on Borrower.
5.2
Authority
, Borrower has all necessary power and authority to execute, deliver, and perform in accordance with the terms thereof, the Loan Documents to which it is a party. Borrower has all requisite power
and authority to own and operate its Property and to carry on its businesses as now conducted.
5.3
Conflict with Other
Instruments, etc
. Neither the execution and delivery of any Loan Document to which Borrower is a party nor the consummation of the transactions therein contemplated will conflict with or result in a breach of any of the terms, conditions or
provisions of the certificate of incorporation, the by-laws, or any other organizational documents of Borrower or any law or any regulation, order, writ, injunction or decree of any court or governmental instrumentality or any material agreement or
instrument to which Borrower is a party or by which it or any of its Property is bound or to which it or any of its Property is subject, or constitute a default thereunder or result in the creation or imposition of any Lien, other than Permitted
Liens.
5.4
Authorization; Enforceability
. The execution and delivery of this Agreement, the granting of the security
interest in the Collateral, the incurring of the Loans, the execution and delivery of the other Loan Documents to which Borrower is a party and the consummation of the transactions herein and therein contemplated have each been duly authorized by
all necessary action on the part of Borrower. No authorization, consent, approval, license or exemption of, and no registration, qualification, designation, declaration or filing with, or notice to, any Person is, was or will be necessary to
(i) the valid execution and delivery of any Loan Document to which Borrower is a party, (ii) the performance of Borrower’s obligations under any Loan Document, or (iii) the granting of the security interest in the Collateral,
except for filings and agreements in connection with the perfection of the security interest in any of the Collateral or the issuance of the Warrant. The Loan Documents have been duly executed and delivered and constitute legal, valid and binding
obligations of Borrower, enforceable in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general application relating to or affecting the enforcement of
creditors’ rights or by general principles of equity.
5.5
No Prior Encumbrances
. Borrower has good and
marketable title to the Collateral, free and clear of Liens except for Permitted Liens. Borrower has good title and ownership of, or is licensed under, all of Borrower’s current Intellectual Property. Borrower has not received any
communications alleging that Borrower has violated, or by conducting its business as proposed, would violate any proprietary rights of any other Person. Borrower has no knowledge of any infringement or violation by it of the intellectual property
rights of any third party and has no knowledge of any violation or infringement by a third party of any of its Intellectual Property, in each case as would have a material adverse effect on Borrower.
5.6
Name; Location of Chief Executive Office. Principal Place of Business and Collateral
. Borrower has not done business under any
name other than that specified on the
17
signature page hereof. Borrower’s jurisdiction of incorporation, chief executive office, principal place of business, and the place where Borrower
maintains its records concerning the Collateral are presently located in the state and at the address set forth on the cover page of this Agreement unless written notice is otherwise provided to Lender. The Collateral is presently located at the
address set forth on the cover page hereof or as set forth in the Disclosure Schedule.
5.7
Litigation
. There are no
actions or proceedings pending by or against Borrower before any court or administrative agency which would reasonably be likely to have a material adverse effect on Borrower or the aggregate value of the Collateral. Borrower does not have knowledge
of any such pending or threatened actions or proceedings, unless previously disclosed to Lender in writing.
5.8
Financial Statements
. All financial statements relating to Borrower or its Affiliates, if any that have been or may hereafter be delivered by Borrower to Lender present fairly in all material respects Borrower’s financial condition as of
the date thereof and Borrower’s results of operations for the period then ended.
5.9
No Material Adverse
Effect
. No event has occurred and no condition exists which would reasonably be expected to have a material adverse effect on the financial condition, business or operations of Borrower since December 31, 2004.
5.10
Full Disclosure
. No material representation, warranty or other statement made by Borrower in any Loan Document (including the
Disclosure Schedule), certificate or written statement furnished to Lender contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained in such certificates or statements not
misleading. There is no fact known to Borrower which materially adversely affects, or which would in the future be reasonably expected to materially adversely affect, its ability to perform its obligations under this Agreement.
5.11
Solvency, Etc.
Borrower is Solvent (as defined below) and, after the execution and delivery of the Loan Documents and the
consummation of the transactions contemplated thereby, Borrower will be Solvent. “
Solvent
” means, with respect to any Person on any date, that on such date (a) the fair value of the property of such Person is greater than the
fair value of the liabilities (including, without limitation, contingent liabilities) of such Person, (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities
mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.
5.12
Subsidiaries
. Borrower has no Subsidiaries, except as set forth on the Disclosure Schedule.
5.13
Catastrophic Events; Labor Disputes
. Neither Borrower nor its properties is or has been affected by any fire, explosion,
accident, strike, lockout or other labor dispute,
18
drought, storm, hail, earthquake, embargo, act of God or other casualty that would reasonably be expected to have a material adverse effect on the financial
condition, business or operations of Borrower. There are no disputes presently subject to grievance procedure, arbitration or litigation under any of the collective bargaining agreements, employment contracts or employee welfare or incentive plans
to which Borrower is a party, and there are no strikes, lockouts, work stoppages or slowdowns, or, to the knowledge of Borrower, jurisdictional disputes or organizing activity occurring or threatened which would reasonably be expected to have a
material adverse effect on the financial condition, business or operations of Borrower.
6.
Affirmative Covenants
. Borrower, until
the full and complete payment of the Obligations, covenants and agrees that:
6.1
Good Standing
. Borrower shall
maintain its corporate existence and its good standing in its jurisdiction of incorporation and maintain qualification in each jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the
financial condition, operations or business of Borrower. Borrower shall maintain in force all licenses, approvals and agreements, the loss of which would reasonably be expected to have a material adverse effect on its financial condition, operations
or business.
6.2
Government Compliance
. Borrower shall comply with all statutes, laws, ordinances and government
rules and regulations to which it is subject, noncompliance with which would reasonably be expected to materially adversely affect the financial condition, operations or business of Borrower.
6.3
Financial Statements, Reports. Certificates
. Borrower shall deliver to Lender: (a) as soon as available, but in any event
within forty-five (45) days after the end of each month, a company prepared balance sheet, income statement and cash flow statement covering Borrower’s operations during such period, subject to year-end audit adjustments and footnotes,
certified by Borrower’s president, treasurer, controller or chief financial officer (each, a “
Responsible Officer”
); (b) as soon as available, but in any event within one hundred twenty (120) days after the end of
Borrower’s fiscal year, audited financial statements of Borrower prepared in accordance with GAAP, together with an opinion on such financial statements of one of the largest four nationally recognized or other independent public accounting
firms; and (c) as soon as available, but in any event within ninety (90) days after the end of Borrower’s fiscal year or the date of Borrower’s board of directors’ adoption, Borrower’s operating budget and plan for the
next fiscal year. From and after such time as Borrower becomes a publicly reporting company, promptly as they are available and in any event: (x) within thirty (30) days of the filing of Borrower’s Form 10-K with the Securities and
Exchange Commission after the end of each fiscal year of Borrower, the financial statements of Borrower filed with such Form 10-K, unless publicly available over the internet at no charge; and (y) within thirty (30) days of filing of
Borrower’s Form 10-Q with the Securities and Exchange Commission after the end of each of the first three fiscal quarters of Borrower, the financial statements of Borrower filed with such Form 10-Q, unless publicly available over the internet
at no charge. In addition, Borrower shall deliver to Lender (i) promptly upon becoming available, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders in such capacity; and
(ii) immediately upon receipt of notice thereof, a report of any material legal actions pending or overtly threatened against Borrower or the commencement of
19
any action, proceeding or governmental investigation involving Borrower is commenced that is reasonably expected to result in damages or costs to Borrower of
Two Hundred Fifty Thousand Dollars ($250,000).
6.4
Certificates of Compliance
. Each time financial statements are
furnished pursuant to
Section 6.3
above, Borrower shall deliver to Lender an Officer’s Certificate signed by a Responsible Officer in the form of, and certifying to the matters set forth in
Exhibit D
hereto.
6.5
Notice of Defaults
. As soon as possible, and in any event within five (5) Business Days after the discovery of a Default
or an Event of Default, Borrower shall provide Lender with an Officer’s Certificate setting forth the facts relating to or giving rise to such Default or Event of Default and the action which Borrower proposes to take with respect thereto.
6.6
Taxes
. Borrower shall make due and timely payment or deposit of all federal, state, and local taxes,
assessments, or contributions required of it by law or imposed upon any Property belonging to it, and will execute and deliver to Lender, on demand, appropriate certificates attesting to the payment or deposit thereof; and Borrower will make timely
payment or deposit of all tax payments and withholding taxes required of it by applicable laws, including those laws concerning F.I.C.A., F.U.T.A., state disability, and local, state, and federal income taxes, and, if Lender has a reasonable belief
that such payments may not have been made, will, upon Lender’s request, furnish Lender with proof satisfactory to Lender indicating that Borrower has made such payments or deposits;
provided
that
Borrower need not make any payment
if the amount or validity of such payment is contested in good faith by appropriate proceedings which suspend the collection thereof (
provided
that
such proceedings do not involve any substantial danger of the sale, forfeiture or loss
of any material item of Collateral or Collateral which in the aggregate is material to Borrower and that Borrower has adequately bonded such amounts or reserves sufficient to discharge such amounts have been provided on the books of Borrower).
6.7
Use; Maintenance
. Borrower shall keep and maintain all items of equipment and other similar types of personal
property that form any significant portion or portions of the Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all
times be maintained and preserved. Borrower shall not permit any such material item of Collateral to become a fixture to real estate or an accession to other personal property (other than fixtures or items that are leasehold improvements), without
the prior written consent of Lender. Borrower shall not permit any such material item of Collateral to be operated or maintained in violation of any applicable law, statute, rule or regulation. With respect to items of leased equipment (to the
extent Lender has any security interest in any residual Borrower’s interest in such equipment under the lease), Borrower shall keep, maintain, repair, replace and operate such leased equipment in accordance with the terms of the applicable
lease.
6.8
Insurance
. Borrower agrees to maintain general liability insurance and to keep the Collateral insured
against loss or damage by fire and extended coverage perils, theft, burglary, risk of loss by collision (for any or all Collateral which are vehicles) and such other
20
risks as Lender may reasonably require. The liability insurance coverage shall be in an amount standard for companies similar to Borrower in Borrower’s
industry in Borrower’s geographic region. The property insurance coverage shall be in an amount no less than the full replacement value of the Collateral. All insurance policies shall be in a form, with companies and with deductible amounts,
reasonably acceptable to Lender. Borrower shall, upon request, deliver to Lender copies of policies or certificates of insurance evidencing such coverage. Each policy shall name Lender and/or Oxford Finance Corporation as a loss payee and an
additional insured, shall provide for coverage to Lender regardless of the breach by Borrower of any warranty or representation made therein, shall not be subject to co-insurance, and shall provide that coverage may not be canceled or altered by the
insurer except upon thirty (30) days prior written notice (10 days for non-payment) to Lender (the insurance coverage set forth in the Insurance Certificates provided by Borrower to Lender shall be deemed acceptable). Borrower appoints Lender
as its attorney-in-fact to make proof of loss, claim for insurance and adjustments with insurers, and to receive payment of and execute or endorse all documents, checks or drafts in connection with insurance payments. Lender shall not act as
Borrower’s attorney-in-fact unless an Event of Default exists. Proceeds of insurance with a value in excess of Two Million Five Hundred Thousand ($2,500,000) shall be applied, at the option of the Lender, to repair or replace the Collateral or
to reduce any of the Indebtedness. If Borrower fails to obtain insurance as required under Section 6.8 or to pay any amount or furnish any required proof of payment to third persons and Lender, Lender may make all or part of such payment or
obtain such insurance policies required in Section 6.8, and take any action under the policies Lender deems prudent. On or prior to the first Funding Date and prior to each policy renewal, Borrower shall furnish to Lender certificates of
insurance or other evidence satisfactory to Lender that insurance complying with all of the above requirements is in effect.
6.9
Security Interest
. Assuming the proper filing of one or more financing statement(s) identifying the Collateral with the proper state and/or local authorities, the security interests in the Collateral granted to Lender pursuant to
this Agreement (i) constitute and will continue to constitute first priority security interests (except to the extent any Permitted Liens may have a superior priority to Lender’s Lien under this Agreement) to the extent security interests
in such Collateral can be perfected by filing financing statements and (ii) are and will continue to be superior and prior to the rights of all other creditors of Borrower (except to the extent of such Permitted Liens).
6.10
Further Assurances
. At any time and from time to time Borrower shall execute and deliver such further instruments and take
such further action as may reasonably be requested by Lender to make effective the purposes of this Agreement, including without limitation, the continued perfection and priority of Lender’s security interest in the Collateral.
6.11
Equity Investment
. Borrower shall permit Lender or its assignees, subject to compliance with applicable securities laws, at
Lender’s option, to purchase up to Seven Hundred Fifty Thousand ($750,000) of the securities sold in Borrower’s next round of private equity financing at the same price and on the same terms as paid and received by investors generally in
such equity financing. Borrower agrees that it shall endeavor to notify Lender promptly upon the execution by Borrower of a term sheet or letter of intent setting forth the terms and conditions of such financing and in any event within thirty
(30) days of such execution.
21
6.12
Amendment
. Lender and Borrower agree that they will in good faith negotiate
an amendment to the Agreement which shall he effective as of the Effective Time (as defined in the Merger Agreement) to reflect the business and operations of the Borrower after the Effective Time (as defined in the Merger Agreement), and execute
and deliver any guarantees, security agreements or other documents, if any, necessary to continue the Lender’s perfection in the Collateral.
7.
Negative Covenants
. Borrower, until the full and complete payment of the Obligations (other than the Obligations arising from the indemnity provisions in Section 10.3(a)), covenants and agrees that Borrower shall not:
7.1
Chief Executive Office
. Change its name, jurisdiction of incorporation, chief executive office, principal place
of business or any of the items set forth in Section 1 of the Disclosure Schedule without fifteen (15) days prior written notice to Lender.
7.2
Collateral Control
. Subject to its rights under
Sections 4.4 and 7.4,
remove any items of Collateral from Borrower’s facility located at the address set forth on the cover page hereof or as set
forth on the Disclosure Schedule, unless Borrower has provided Lender twenty (20) days prior written notice of any location of Collateral not previously disclosed to Lender.
7.3
Liens
. Create, incur, assume or suffer to exist any Lien of any kind upon any of the Collateral, whether now owned or hereafter
acquired, except Permitted Liens.
7.4
Other Dispositions of Collateral
. Convey, sell, lease or otherwise dispose of
all or any part of the Collateral to any Person (collectively, a “
Transfer
”), except for: (i) Transfers of inventory in the ordinary course of business; (ii) Transfers of worn-out or obsolete equipment;
(iii) Transfers constituting Permitted Liens; (iv) Transfers from a parent or subsidiary of Borrower to another parent or subsidiary of Borrower in the ordinary course of business; (v) Transfers of cash in the ordinary course of
business or for which adequate consideration has been given to the Borrower; (vi) Transfers to employees of the Borrower in connection with an employee benefit program; or (vii) Transfers other than those described in (i)-(vi) above,
in the aggregate not to exceed a value of Two Hundred Fifty Thousand Dollars ($250,000) in any fiscal year.
7.5
Distributions
. (i) Pay any dividends or make any distributions on its Equity Securities; (ii) purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Securities (other than repurchases in an aggregate
amount not to exceed Five Hundred Thousand Dollars ($500,000) in any fiscal year); (iii) return any capital to any holder of its Equity Securities as such; (iv) make any distribution of assets, Equity Securities, obligations or securities
to any holder of its Equity Securities as such; or (v) set apart any sum for any such purpose;
provided
,
however
, Borrower may pay dividends or make distributions payable solely in Borrower’s common stock.
7.6
Mergers or Acquisitions
. Except for the transactions set forth in the Merger Agreement (i) merge with or consolidate into
any other entity (other than an acquisition by Borrower of the capital stock or assets of another entity where (A) the aggregate cash
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consideration paid or to be paid in connection with such acquisition does not exceed $7,500,000 or (B) the consideration paid by Borrower in such an
acquisition shall be comprised solely of its equity securities), if the resulting entity’s overall financial condition after the merger or consolidation is worse than the overall financial condition of Borrower before the merger or
consolidation in Lender’s sole but good faith opinion, or (ii) sell all or substantially all of its assets or (iii) in any manner terminate its existence, hi the event the Lender fails to consent to a proposed merger or consolidation
for which its consent is required, then Borrower may prepay the Loans, either prior to or simultaneously with the closing of the merger or consolidation, as provided in Section 2.3(b) above.
7.7
Change in Ownership
. If Borrower is a privately held corporation, there shall occur, without the prior written consent of
Lender, a change in its ownership of more than 50% of Borrower’s voting capital stock (other than by the sale in a public offering or to venture capital investors);
provided
that
, if such change in ownership consists of an
acquisition by an entity with a net worth of $250,000,000 or greater, Lender’s consent to such change in ownership shall not be required.
7.8
Transactions With Affiliates
. Without the prior written consent of Lender, directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower except for
(i) transactions disclosed in the Disclosure Schedule, (ii) transactions related to joint collaborations, joint ventures, partnerships, corporate collaborations, license agreements or project financing involving the Borrower’s
Intellectual Property and entered into in the ordinary course of business; or (iii) transactions that are on fair and reasonable terms and no less favorable to Borrower than would be obtained in an arm’s length transaction with a
nonaffiliated Person.
7.9
Indebtedness Payments
. (i) Prepay, redeem, purchase, defease or otherwise satisfy in
any manner prior to the scheduled repayment thereof any Indebtedness which has been subordinated to the Obligations on terms and conditions acceptable to Lender in its sole discretion (“Subordinated Indebtedness”) without the consent of
the Lender, which consent shall not be unreasonably withheld; (ii) prepay, redeem, purchase, defease or otherwise satisfy in any manner prior to the scheduled repayment thereof any Indebtedness (exclusive of Subordinated Indebtedness which is
governed by clause (i) above) for borrowed money or lease obligations (each a “Prepayment” and together the “Prepayments”) in an aggregate amount in excess of Ten Million Dollars ($10,000,000) within any six (6) month
period without also prepaying a Ratable Portion to the Lender; or (iii) amend, modify or otherwise change the terms of any Indebtedness for borrowed money or lease obligations so as to accelerate the scheduled repayment thereof in violation of
clauses (i) and (ii) above. For the avoidance of doubt, Borrower shall be permitted to make regularly scheduled or regularly required payment, repayment or redemptions of Permitted Indebtedness.
7.10
Indebtedness
. Create, incur, assume or permit to exist any Indebtedness except Permitted Indebtedness.
7.11
Intentionally Omitted
.
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7.12
Compliance
. Become an “investment company” or a company controlled
by an “investment company” under the Investment Company Act of 1940 or undertake as one of its important activities extending credit to purchase or carry margin stock, or use the proceeds of any Loan for that purpose; fail to meet the
minimum funding requirements of the Employment Retirement Income Security Act of 1974, and its regulations, as amended from time to time (“
ERISA
”), permit a Reportable Event or Prohibited Transaction, as defined in ERISA, to occur;
fail to comply with the Federal Fair Labor Standards Act or violate any other law or regulation, if the violation could reasonably be expected to have a material adverse effect on Borrower’s business or operations or could reasonably be
expected to cause a material adverse change, or permit any of its Subsidiaries to do so.
7.13
Maintenance of
Accounts
. (i) Maintain any deposit account or account holding securities owned by Borrower except accounts with respect to which Lender or Oxford Finance Corporation is able to take such actions as it deems necessary to obtain a perfected
security interest in such accounts through one or more Account Control Agreements; or (ii) grant or allow any other Person (other than Lender) to perfect a security interest in, or enter into any agreements with any Persons (other than Lender)
accomplishing perfection via control as to, any of its deposit accounts or accounts holding securities other than Oxford Finance Corporation.
7.14
Negative Pledge Regarding Intellectual Property
. Sell, transfer, assign, mortgage, pledge, lease, grant a security interest in, or encumber any of its Intellectual Property, or enter after the date of this
Agreement into any agreement, document, instrument or other arrangement (except with or in favor of Lender or in connection with Indebtedness described in clauses (d) or (f) of Permitted Indebtedness) with any entity which directly or
indirectly prohibits or has the effect of prohibiting Borrower from selling, transferring, assigning, mortgaging, pledging, leasing, granting a security interest in or upon, or encumbering any of Borrower’s Intellectual Property; provided,
however, that Borrower may (a) grant licenses with respect to its Intellectual Property in connection with joint ventures, corporate collaborations, financing of Intellectual Property projects or in the ordinary course of business or
(b) assign or otherwise transfer its Intellectual Property pursuant to agreements that the Borrower reasonably believes are in, or are not opposed to, the best interest of the Borrower; provided further, that, Borrower may request that this
covenant be waived in light of compelling special circumstances which require the pledge of any Intellectual Property to another creditor and Lender shall not unreasonably withhold its consent to such request.
8.
Events of Default
. Any one or more of the following events shall constitute an “
Event of Default
” by Borrower under this
Agreement:
8.1
Failure to Pay
. If Borrower fails to pay when due and payable or when declared due and payable in
accordance with the Loan Documents: (i) any Scheduled Payment within three (3) days of the relevant Payment Date or the relevant Maturity Date, or (ii) any other portion of the Obligations within ten (10) days after receipt of
written notice from Lender that such payment is due.
8.2
Certain Covenant Defaults
. If Borrower fails to perform any
obligation under
Section 6.8
or violates any of the covenants contained in
Section 7
of this Agreement.
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8.3
Other Covenant Defaults
. If Borrower fails or neglects to perform, keep, or
observe any other material term, provision, condition, covenant, or agreement contained in this Agreement (other than as set forth in
Sections 8.1. 8.2 or 8.4 through 8.13
), in any of the other Loan Documents and Borrower has failed to cure
such default within thirty (30) days of the occurrence of such default. During this thirty (30) day period, the failure to cure the default is not an Event of Default (but no Loan will be made during the cure period).
8.4
Material Adverse Change
. If there occurs a material adverse change in Borrower’s financial condition as determined by
Lender in its reasonable judgment.
8.5
Seizure of Assets. Etc.
If any material portion of Borrower’s assets is
attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or Person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been
removed, discharged or rescinded within twenty (20) days, or if Borrower is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs, or if a judgment or other
claim becomes a lien or encumbrance upon any material portion of Borrower’s assets, or if a notice of lien, levy, or assessment is filed of record with respect to any of Borrower’s assets by the United States Government, or any department,
agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, and the same is not released, discharged or paid within ten (10) days after Borrower receives notice thereof;
provided that
none of the
foregoing shall constitute an Event of Default where such action or event is stayed or an adequate bond has been posted pending a good faith contest by Borrower.
8.6
Service of Process
. The delivery of a notice of foreclosure or exclusive control to any entity holding or maintaining
Borrower’s deposit accounts or accounts holding securities by any Person (other than Lender) seeking to foreclose or attach any such accounts or securities.
8.7
Default on Indebtedness
. One or more defaults shall exist under any agreement with any third party or parties which consists of
the failure to pay any Indebtedness at maturity or which results in a right by such third party or parties, whether or not exercised, to accelerate the maturity of Indebtedness in an aggregate amount in excess of Two Hundred Fifty Thousand Dollars
($250,000).
8.8
Judgments
. If a final judgment or judgments for the payment of money (not adequately covered by
Borrower’s insurer) in an amount, individually or in the aggregate, of at least Two Hundred Fifty Thousand Dollars ($250,000) shall be rendered against Borrower and shall remain unsatisfied and unstayed for a period of twenty (20) days or
more.
8.9
Misrepresentations
. If any material misrepresentation or material misstatement exists now or hereafter in
any warranty, representation, statement, certification, or report made to Lender by Borrower or any officer, employee, agent, or director of Borrower.
8.10
Breach of Warrant
. If Borrower shall fail to issue, in accordance with the terms of the Warrant, shares of preferred stock or common stock, as the case may be, upon a valid conversion of the Warrant.
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8.11
Unenforceable Loan Document
. If any Loan Document shall in any material
respect cease to be, or Borrower shall assert that any Loan Document is not, a legal, valid and binding obligation of Borrower enforceable in accordance with its terms.
8.12
Involuntary Insolvency Proceeding
. If a proceeding shall have been instituted in a court having jurisdiction in the premises
seeking a decree or order for relief in respect of Borrower in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or for the appointment of a receiver, liquidator, assignee, custodian,
trustee (or similar official) of Borrower or for any substantial part of its Property, or for the winding-up or liquidation of its affairs, and such proceeding shall remain undismissed or unstayed and in effect for a period of forty-five
(45) consecutive days or such court shall enter a decree or order granting the relief sought in such proceeding.
8.13
Voluntary Insolvency Proceeding
. If Borrower shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian (or other similar official) of Borrower or for any substantial part of its Property, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action in furtherance of any of the foregoing.
9.
Lender’s Rights and Remedies
.
9.1
Rights and Remedies
. Upon the occurrence and during the continuance of any Default or Event of Default, Lender shall not have any further obligation to advance money or extend credit to or for the benefit
of Borrower. In addition, upon the occurrence and during the continuance of an Event of Default, Lender shall have the rights, options, duties and remedies of a secured party as permitted by law and, in addition to and without limitation of the
foregoing. Lender may, at its election, without notice of election and without demand, do any one or more of the following, all of which are authorized by Borrower:
(a)
Acceleration of Obligations
. Declare all Obligations, whether evidenced by this Agreement, by any of the other Loan Documents,
or otherwise, including (i) any accrued and unpaid interest, (ii) the amounts which would have otherwise come due under Section 2.3(b)(ii) if the Loans bad been voluntarily prepaid, (iii) the unpaid principal balance of the Loans
and (iv) all other sums, if any, that shall have become due and payable hereunder, immediately due and payable
(provided that
upon the occurrence of an Event of Default described in
Section 8.12 or 8.13
all Obligations shall
become immediately due and payable without any action by Lender);
(b)
Protection of Collateral
. Make such payments
and do such acts as Lender considers necessary or reasonable to protect Lender’s security interest in the Collateral. Borrower agrees to assemble the Collateral if Lender so requires and to make the Collateral available to Lender as Lender may
designate. Borrower authorizes Lender and its designees and agents to enter the premises where the Collateral is located, to take and maintain possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any Lien
which in
26
Lender’s determination appears or is claimed to be prior or superior to its security interest and to pay all expenses incurred in connection therewith.
With respect to any of Borrower’s owned premises, Borrower hereby grants Lender a license to enter into possession of such premises and to occupy the same, without charge, for up to one hundred twenty (120) days in order to exercise any of
Lender’s rights or remedies provided herein, at law, in equity, or otherwise;
(c)
Preparation of Collateral for
Sale
. Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein) the Collateral;
(d)
Sale of Collateral
. Sell the Collateral at either a public or private sale, or both, by way of one or more contracts or
transactions, for cash or on terms, in such manner and at such places (including Borrower’s premises) as Lender determines are commercially reasonable; and
(e)
Purchase of Collateral
. Credit bid and purchase all or any portion of the Collateral at any public sale.
Any deficiency that exists after disposition of the Collateral as provided above will be paid immediately by Borrower.
9.2
Set Off Right
. Upon the occurrence and during the continuance of an Event of Default, Lender may set off and apply to the
Obligations any and all indebtedness at any time owing to or for the credit or the account of Borrower or any other assets of Borrower in Lender’s possession or control.
9.3
Effect of Sale
. Upon the occurrence and during the continuance of an Event of Default, to the extent permitted by law, Borrower
covenants that it will not at any time insist upon or plead, or in any manner whatsoever claim or take any benefit or advantage of, any stay or extension law now or at any time hereafter in force, nor claim, take nor insist upon any benefit or
advantage of or from any law now or hereafter in force providing for the valuation or appraisement of the Collateral or any part thereof prior to any sale or sales thereof to be made pursuant to any provision herein contained, or to the decree,
judgment or order of any court of competent jurisdiction; nor, after such sale or sales, claim or exercise any right under any statute now or hereafter made or enacted by any state or otherwise to redeem the property so sold or any part thereof,
and, to the full extent legally permitted, except as to rights expressly provided herein, hereby expressly waives for itself and on behalf of each and every Person, except decree or judgment creditors of Borrower, acquiring any interest in or title
to the Collateral or any part thereof subsequent to the date of this Agreement, all benefit and advantage of any such law or laws, and covenants that it will not invoke or utilize any such law or laws or otherwise hinder, delay or impede the
execution of any power herein granted and delegated to Lender, but will suffer and permit the execution of every such power as though no such power, law or laws had been made or enacted. Any sale, whether under any power of sale hereby given or by
virtue of judicial proceedings, shall operate to divest all right, title, interest, claim and demand whatsoever, either at law or in equity, of Borrower in and to the Property sold, and shall be a perpetual bar, both at law and in equity, against
Borrower, its successors and assigns, and
27
against any and all Persons claiming the Property sold or any part thereof under, by or through Borrower, its successors or assigns.
9.4
Power of Attorney in Respect of the Collateral
. Borrower does hereby irrevocably appoint Lender (which appointment is coupled
with an interest), the true and lawful attorney in fact of Borrower with full power of substitution, for it and in its name to file any notices of security interests, financing statements and continuations and amendments thereof pursuant to the Code
or federal law, as may be necessary to perfect, or to continue the perfection of Lender’s security interests in the Collateral. Borrower does hereby irrevocably appoint Lender (which appointment is coupled with an interest) on the occurrence
and during the continuance of an Event of Default, the true and lawful attorney in fact of Borrower with full power of substitution, for it and in its name: (a) to ask, demand, collect, receive, receipt for, sue for, compound and give
acquittance for any and all rents, issues, profits, avails, distributions, income, payment draws and other sums in which a security interest is granted under
Section 4
with full power to settle, adjust or compromise any claim thereunder
as fully as if Lender were Borrower itself; (b) to receive payment of and to endorse the name of Borrower to any items of Collateral (including checks, drafts and other orders for the payment of money) that come into Lender’s possession or
under Lender’s control; (c) to make all demands, consents and waivers, or take any other action with respect to, the Collateral; (d) in Lender’s discretion to file any claim or take any other action or proceedings, either in its
own name or in the name of Borrower or otherwise, which Lender may reasonably deem necessary or appropriate to protect and preserve the right, title and interest of Lender in and to the Collateral; (e) endorse Borrower’s name on any checks
or other forms of payment or security; (f) sign Borrower’s name on any invoice or bill of lading for any account or drafts against account debtors; (g) make, settle, and adjust all claims under Borrower’s insurance policies;
(h) settle and adjust disputes and claims about the accounts directly with account debtors, for amounts and on terms Lender determines reasonable; (i) transfer the Collateral into the name of Lender or a third party as the Code permits;
and (j) to otherwise act with respect thereto as though Lender were the outright owner of the Collateral.
9.5
Lender’s Expenses
. If Borrower fails to pay any amounts or furnish any required proof of payment due to third persons or entities, as required under the terms of this Agreement, then Lender may do any or all of the following:
(a) make payment of the same or any part thereof; or (b) obtain and maintain insurance policies of the type discussed in
Section 6.8
of this Agreement, and take any action with respect to such policies as Lender deems prudent.
Any amounts paid or deposited by Lender shall constitute Lender’s Expenses, shall be immediately due and payable, shall bear interest at the Default Rate and shall be secured by the Collateral. Any payments made by Lender shall not constitute
an agreement by Lender to make similar payments in the future or a waiver by Lender of any Event of Default under this Agreement. Borrower shall pay all reasonable fees and expenses, including without limitation, Lender’s Expenses, incurred by
Lender in the enforcement or attempt to enforce any of the Obligations hereunder not performed when due.
9.6
Remedies
Cumulative
. Lender’s rights and remedies under this Agreement, the Loan Documents, and all other agreements shall be cumulative. Lender shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law,
or in equity. No exercise by Lender of one right or remedy shall be deemed an election, and no waiver by
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Lender of any Event of Default on Borrower’s part shall be deemed a continuing waiver. No delay by Lender shall constitute a waiver, election, or
acquiescence by it.
9.7
Application of Collateral Proceeds
. The proceeds and/or avails of the Collateral, or any
part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Lender, at the time of or received by Lender after the occurrence of an Event of Default hereunder) shall be paid to and applied
as follows:
(a)
First
, to the payment of reasonable out-of-pocket costs and expenses, including all amounts expended
to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and
attorneys’ fees, incurred or made hereunder by Lender, including, without limitation, Lender’s Expenses;
(b)
Second
, to the payment to Lender of the amount then owing or unpaid on the Loans for any accrued and unpaid interest, the amounts which would have otherwise come due under Section 2.3(b)(ii), if the Loans had been voluntarily prepaid,
the principal balance of the Loans, and all other Obligations with respect to the Loans (“
provided
,
however
, if such proceeds shall be insufficient to pay in full the whole amount so due, owing or unpaid upon the Loans, then to
the unpaid interest thereon, then to the amounts which would have otherwise come due under Section 2.3(b)(ii), if the Loans had been voluntarily prepaid, then to the principal balance of the Loans, and then to the payment of other amounts then
payable to Lender under any of the Loan Documents); and
(c)
Third
, to the payment of the surplus, if any, to
Borrower, its successors and assigns, or to the Person lawfully entitled to receive the same.
9.8
Reinstatement of
Rights
. If Lender shall have proceeded to enforce any right under this Agreement or any other Loan Document by foreclosure, sale, entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason or shall have
been determined adversely, then and in every such case (unless otherwise ordered by a court of competent jurisdiction), Lender shall be restored to its former position and rights hereunder with respect to the Property subject to the security
interest created under this Agreement.
10.
Waivers; Indemnification.
10.1
Demand; Protest
. Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and
nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel paper, and guarantees at any time held by Lender on which Borrower may in any way be
liable; except for notices, if any, specifically provided for herein.
10.2
Lender’s Liability for Collateral
.
So long as Lender complies with its obligations, if any, under the Code, Lender shall not in any way or manner be liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss or damage thereto occurring or arising in any
manner or fashion from any cause other than Lender’s gross negligence or willful misconduct; (c) any diminution in the value thereof; or (d) any act or default of any
29
carrier, warehouseman, bailee, forwarding agency, or other Person whomsoever. All risk of loss, damage or destruction of the Collateral shall be borne by
Borrower.
10.3
Indemnification and Waiver
. Whether or not the transactions contemplated hereby shall be consummated:
(a)
General Indemnity
. Borrower agrees upon demand to pay or reimburse Lender for all liabilities, obligations and
reasonable out-of-pocket expenses, including Lender’s Expenses and reasonable fees and expenses of counsel for Lender from time to time arising in connection with the enforcement or collection of sums due under the Loan Documents, and in
connection with any amendment or modification of the Loan Documents or any “work-out” in connection with the Loan Documents. Borrower shall indemnify, reimburse and hold Lender, and each of its respective successors, assigns, agents,
attorneys, officers, directors, shareholders, servants, agents and employees (each an
“Indemnified Person”
“) harmless from and against all liabilities, losses, damages, actions, suits, demands, claims of any kind and nature
(including claims relating to environmental discharge, cleanup or compliance), all costs and expenses whatsoever to the extent they may be incurred or suffered by such Indemnified Person in connection therewith (including reasonable attorneys’
fees and expenses), fines, penalties (and other charges of any applicable Governmental Authority), licensing fees relating to any item of Collateral, damage to or loss of use of property (including consequential or special damages to third parties
or damages to Borrower’s property), or bodily injury to or death of any person (including any agent or employee of Borrower) (each, a
“Claim”
), directly or indirectly relating to or arising out of the use of the proceeds of the
Loans or otherwise, die falsity of any representation or warranty of Borrower or Borrower’s failure to comply with the terms of this Agreement or any other Loan Document. The foregoing indemnity shall cover, without limitation, (i) any
Claim in connection with a design or other defect (latent or patent) in any item of equipment or product included in the Collateral, (ii) any Claim for infringement of any patent, copyright, trademark or other intellectual property right,
(iii) any Claim resulting from the presence on or under or the escape, seepage, leakage, spillage, discharge, emission or release of any Hazardous Materials on the premises owned, occupied or leased by Borrower, including any Claims asserted or
arising under any Environmental Law, (iv) any Claim for negligence or strict or absolute liability in tort, or (v) any Claim asserted as to or arising under any Account Control Agreement;
provided,
however
. Borrower shall not
indemnify Lender for any liability incurred by Lender as a result of Lender’s breach of this Agreement, gross negligence or willful misconduct. Such indemnities shall continue in full force and effect, notwithstanding the expiration or
termination of this Agreement. Upon Lender’s written demand, Borrower shall assume and diligently conduct, at its sole cost and expense, the entire defense of Lender, each of its partners, and each of their respective, agents, employees,
directors, officers, shareholders, successors and assigns against any indemnified Claim described in this
Section 10.3(a)
. Borrower shall not settle or compromise any Claim against or involving Lender without first obtaining
Lender’s written consent thereto, which consent shall not be unreasonably withheld.
(b)
Waiver
. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR ANYWHERE ELSE, BORROWER AGREES THAT IT SHALL NOT SEEK FROM LENDER UNDER ANY THEORY OF LIABILITY (INCLUDING ANY THEORY IN TORTS), ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES.
30
(c)
Survival: Defense
. The obligations in this
Section 10.3
shall
survive payment of all other Obligations pursuant to
Section 12.8
. At the election of any Indemnified Person, Borrower shall defend such Indemnified Person using legal counsel satisfactory to such Indemnified Person in such Person’s
reasonable discretion, at the sole cost and expense of Borrower. All amounts owing under this
Section 10.3
shall be paid within thirty (30) days after written demand.
11.
Notices
. Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any other agreement
entered into in connection herewith shall be in writing and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by certified mail, postage
prepaid, return receipt requested, by prepaid nationally recognized overnight courier, or by prepaid facsimile to Borrower or to Lender, as the case may be, at their respective addresses set forth below:
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If to Borrower:
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Infinity Pharmaceuticals, Inc.
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780 Memorial Drive
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Cambridge, MA 02139
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Attention:
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Fax:
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Ph:
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If to Lender:
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Horizon Technology Funding Company LLC
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76 Batterson Park Road
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Farmington, CT 06032
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Attention: Legal Department
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Fax: (860) 676-8655
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Ph: (860) 676-8654
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The parties hereto may change the address at which they are to receive notices hereunder, by
notice in writing in the foregoing manner given to the other.
12.
General Provisions
.
12.1
Successors and Assigns
. This Agreement and the Loan Documents shall bind and inure to the benefit of the respective successors
and permitted assigns of each of the parties;
provided, however,
neither this Agreement nor any rights hereunder may be assigned by Borrower without Lender’s prior written consent, which consent may be granted or withheld in
Lender’s sole discretion. Lender shall have the right without the consent of or notice to Borrower to sell, transfer, assign, negotiate, or grant participations in all or any part of, or any interest in Lender’s rights and benefits
hereunder. Lender may disclose the Loan Documents and any other financial or other information relating to Borrower or any Subsidiary to any potential participant or assignee of any of the Loans,
provided that
such participant or assignee
agrees in a manner enforceable by Borrower to protect the confidentiality of such documents and information in accordance with the terms of Section 14.
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12.2
Time of Essence
. Time is of the essence for the performance of all
obligations set forth in this Agreement.
12.3
Severability of Provisions
. Each provision of this Agreement shall be
several from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.
12.4
Entire Agreement; Construction; Amendments and Waivers
.
(a)
Entire
Agreement
. This Agreement and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement between Borrower and Lender and supersede any and all prior agreements, negotiations,
correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof. Borrower acknowledges that it is not relying on any representation or agreement made by Lender or any employee,
attorney or agent thereof, other than the specific agreements set forth in this Agreement and the Loan Documents.
(b)
Construction
. This Agreement is the result of negotiations between and has been reviewed by each of Borrower and Lender executing this Agreement as of the date hereof and their respective counsel; accordingly, this Agreement shall be deemed
to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrower or Lender. Borrower and Lender agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol
evidence shall be necessary or appropriate to establish Borrower’s or Lender’s actual intentions.
(c)
Amendments and Waivers
. Any and all discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Lender. Any and all
amendments and modifications of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Lender and Borrower. Any waiver or consent with respect to any provision of the Loan Documents shall be
effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on Borrower in any case shall entitle Borrower to any other or further notice or demand in similar or other circumstances. Any
amendment, modification, waiver or consent affected in accordance with this
Section 12.4
shall be binding upon Lender and on Borrower.
12.5
Reliance by Lender
. All covenants, agreements, representations and warranties made herein by Borrower shall be deemed to be material to and to have been relied upon by Lender, notwithstanding any
investigation by Lender.
12.6
No Set-Offs by Borrower
. All sums payable by Borrower pursuant to this Agreement or
any of the other Loan Documents shall be payable without notice or demand and shall be payable in United States Dollars without set-off or reduction of any manner whatsoever.
12.7
Counterparts
. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts,
each of which, when executed
32
and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement.
12.8
Survival
. All covenants, representations and warranties made in this Agreement shall continue in full force and effect so long
as any Obligations or commitment to fund remain outstanding. The obligations of Borrower to indemnify Lender with respect to the expenses, damages, losses, costs and liabilities described in
Section 10.3
shall survive until all
applicable statute of limitations periods with respect to actions that may be brought against Lender have run.
13.
Special
Provisions
. Lender agrees that it has reviewed the Merger Agreement and consents to all the transactions contemplated in the Merger Agreement and the consummation thereof. Lender further confirms that it has reviewed Borrower’s Disclosure
Schedule filed with the Merger Agreement and agrees that, to the extent information is disclosed in Borrower’s Disclosure Schedule to the Merger Agreement, that information is deemed to have been disclosed to the Lender under this Agreement and
incorporated, to the extent applicable, into the Disclosure Schedule to the Agreement.
14.
Relationship of Parties
. Borrower and
Lender acknowledge, understand and agree that the relationship between Borrower, on the one hand, and Lender, on the other, is, and at all time shall remain solely that of a borrower and lender. Lender shall not under any circumstances be construed
to be a partner or a joint venturer of Borrower or any of its Affiliates; nor shall Lender under any circumstances be deemed to be in a relationship of confidence or trust or a fiduciary relationship with Borrower or any of its Affiliates, or to owe
any fiduciary duty to Borrower or any of its Affiliates. Lender does not undertake or assume any responsibility or duty to Borrower or any of its Affiliates to select, review, inspect, supervise, pass judgment upon or otherwise inform Borrower or
any of its Affiliates of any matter in connection with its or their Property, any Collateral held by Lender or the operations of Borrower or any of its Affiliates. Borrower and each of its Affiliates shall rely entirely on their own judgment with
respect to such matters, and any review, inspection, supervision, exercise of judgment or supply of information undertaken or assumed by Lender in connection with such matters is solely for the protection of Lender and neither Borrower nor any
Affiliate is entitled to rely thereon.
15.
Confidentiality
. All information (other than periodic reports filed by Borrower with the
Securities and Exchange Commission) disclosed by Borrower to Lender in writing or through inspection pursuant to this Agreement that is marked confidential or that a reasonable person would expect to be confidential shall be considered confidential.
Lender agrees to use the same degree of care to safeguard and prevent disclosure of such confidential information as Lender uses with its own confidential information, but in any event no less than a reasonable degree of care. Lender shall not
disclose such information to any third party (other than to Lender’s partners, attorneys, governmental regulators, or auditors, or to Lender’s subsidiaries and affiliates and prospective transferees and purchasers of the Loans, all subject
to the same confidentiality obligation set forth herein or as required by law, regulation, subpoena or other order to be disclosed) and shall use such information only for purposes of evaluation of its investment in Borrower and the exercise of
Lender’s rights and the enforcement of its remedies under this Agreement and the other Loan Documents. The obligations of confidentiality shall not apply to any information that (a) was known to the public prior to disclosure by Borrower
33
under this Agreement, (b) becomes known to the public through no fault of Lender, (c) is disclosed to Lender by a third party having a legal right
to make such disclosure, or (d) is independently developed by Lender. Notwithstanding the foregoing, Lender’s agreement of confidentiality shall not apply if Lender has acquired indefeasible title to any Collateral or in connection with
any enforcement or exercise of Lender’s rights and remedies under this Agreement following an Event of Default, including the enforcement of Lender’s security interest in the Collateral.
16.
CHOICE OF LAW AND VENUE: JURY TRIAL WAIVER
. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF CONNECTICUT, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF BORROWER AND LENDER HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF CONNECTICUT. BORROWER AND LENDER HEREBY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND
ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
[Remainder of page intentionally left blank.]
34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first
above written.
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BORROWER:
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Thomas J. Burke
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Name:
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Thomas J. Burke
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Title:
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Controller/Treasurer
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LENDER:
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HORIZON TECHNOLOGY FUNDING COMPANY LLC
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By: Horizon Technology Finance, LLC, its sole member
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By:
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/s/ Robert D. Pomeroy, Jr.
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Name:
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Robert D. Pomeroy, Jr.
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Title:
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Managing Member
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35
LIST OF EXHIBITS AND SCHEDULES
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Exhibit A
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Disclosure Schedule
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Exhibit B
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Funding Certificate
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Exhibit C
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Form of Note
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Exhibit D
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Form of Officer’s Certificate
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EXHIBIT B
FUNDING CERTIFICATE
The undersigned, being the duly elected and acting ___________________________
of INFINITY PHARMACEUTICALS, INC., a Delaware corporation (“Borrower”), does hereby certify in such capacity to HORIZON TECHNOLOGY FUNDING COMPANY LLC (the “Lender”) in connection with that certain Venture Loan and Security
Agreement dated as of [Date] by and between Borrower and Lender (the “Loan Agreement”; with other capitalized terms used below having the meanings ascribed thereto in the Loan Agreement) that:
1. The representations and warranties made by Borrower in
Section 5
of the Loan Agreement and in the other Loan Documents are true and
correct as of the date hereof in all material respects.
2. No event or condition exists that would constitute a Default or an Event of
Default under the Loan Agreement or any other Loan Document.
3. Borrower is in compliance with the covenants and requirements contained in
Sections 4, 6 and 7
of the Loan Agreement in all material respects.
4. All conditions referred to in
Section 3.1
and
3.2 of the Loan Agreement to the making of the Loan to be made on or about the date hereof have been satisfied.
5. No material adverse
change in the results of operations or financial condition of Borrower, whether or not arising from transactions in the ordinary course of business, has occurred since December 31, 2005.
6. The proceeds for Loan [
] should be disbursed as follows:
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Disbursement from Lender:
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Loan Amount
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$
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Less:
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Legal Fees
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$
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Balance of Commitment Fee
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$
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Net Proceeds due from Lender:
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$
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7. The aggregate net proceeds of Loan [
] in the amount of
$
shall be transferred to Borrower’s account as follows:
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Account Name:
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Operating Account
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Bank Name:
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Silicon Valley Bank
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Bank Address:
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3003 Tasman Drive, Santa Clara, CA 95054
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Attention:
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Telephone:
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Account Number:
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3300323007
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ABA Number:
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121140399
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BORROWER:
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INFINITY PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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EXHIBIT C
SECURED PROMISSORY NOTE
(Loan[ ])
FOR VALUE RECEIVED, the undersigned, INFINITY PHARMACEUTICALS, INC., a Delaware corporation
(
“Borrower
”“), HEREBY PROMISES TO PAY to the order of HORIZON TECHNOLOGY FUNDING COMPANY LLC, a Delaware limited liability company (“
Lender
”) the principal amount of __________ Dollars ($_________) or such
lesser amount as shall equal the outstanding principal balance of the Loan [ ] (the “
Loan
”) made to Borrower by Lender pursuant to the Loan Agreement (as defined below), and to pay all other amounts due with
respect to the Loan on the dates and in the amounts set forth in the Loan Agreement.
Interest on the principal amount of this Note from
the date of this Note shall accrue at the Loan Rate or, if applicable, the Default Rate. The Loan Rate for this Note is
__%
per annum based on a year of twelve 30-day months. If the Funding Date is not the first day of the month, interim
interest accruing from the Funding Date through the last day of that month shall be paid on the first calendar day of the next calendar month. Commencing ___________, 200_, through and including __________, 200_, on the first day of each month (each
an “
Interest Payment Date
”) Borrower shall make payments of accrued interest only on the outstanding principal amount of the Loan. Commencing on
, 200_, and continuing on the first day of each month thereafter (each a “
Principal and Interest Payment
Date
” and, collectively with each Interest Payment Date, each a “
Payment Date
”). Borrower shall make to Lender ________ (___) equal payments of principal plus accrued interest on the then outstanding principal amount due
hereunder of _________ Dollars ($_____). If not sooner paid, all outstanding amounts hereunder and under the Loan Agreement shall become due and payable on _______________.
Principal, interest and all other amounts due with respect to the Loan, are payable in lawful money of the United States of America to Lender as set
forth in the Loan Agreement. The principal amount of this Note and the interest rate applicable thereto, and all payments made with respect thereto, shall be recorded by Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
which is part of this Note.
This Note is referred to in, and is entitled to the benefits of, the Venture Loan and Security Agreement dated
as of [Date] by and between Borrower and Lender (the “Loan Agreement”). The Loan Agreement, among other things, (a) provides for the making of a secured Loan to Borrower, and (b) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
This Note may not be prepaid, except as set forth in
Section 2.3
of the Loan Agreement.
This Note and the obligation of Borrower to repay the unpaid principal amount of the Loan, interest on the Loan and
all other amounts due Lender under the Loan Agreement is secured under the Loan Agreement.
Presentment for payment, demand, notice of protest and all other demands and notices of any kind in
connection with the execution, delivery, performance and enforcement of this Note are hereby waived.
Borrower shall pay all reasonable
fees and expenses, including, without limitation, reasonable attorneys’ fees and costs, incurred by Lender in the enforcement or attempt to enforce any of Borrower’s obligations hereunder not performed when due. This Note shall be governed
by, and construed and interpreted in accordance with, the laws of the State of Connecticut.
Note Register; Ownership of Note
. The
ownership of an interest in this Note shall be registered on a record of ownership maintained by Borrower or its agent. Borrower shall register any transfers of any interest in this Note on such register within ten (10) days of notice by the
last registered holder of such transfer. Notwithstanding anything else in this Note to the contrary, the right to the principal of, and stated interest on, this Note may be transferred only if the transfer is registered on such record of ownership
and the transferee is identified as the owner of an interest in the obligation. Borrower shall be entitled to treat the registered holder of this Note (as recorded on such record of ownership) as the owner in fact thereof for all purposes and shall
not be bound to recognize any equitable or other claim to or interest in this Note on the part of any other person or entity.
IN WITNESS
WHEREOF, Borrower has caused this Note to be duly executed by one of its officers thereunto duly authorized on the date hereof.
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BORROWER:
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INFINITY PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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EXHIBIT D
FORM OF OFFICER’S CERTIFICATE
TO: HORIZON TECHNOLOGY FUNDING COMPANY LLC
Reference is made to the Venture Loan and Security Agreement dated as of _______, 200_ (as it may be amended from time to time, the “
Loan
Agreement
”) by and between INFINITY PHARMACEUTICALS, INC. (“
Borrower
”) and HORIZON TECHNOLOGY FUNDING COMPANY LLC (“
Lender
”). Unless otherwise defined herein, capitalized terms have the meanings given such
terms in the Loan Agreement.
The undersigned Responsible Officer of Borrower, in such capacity, hereby certifies to Lender that:
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1.
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No Event of Default or Default exists under the Loan Agreement. (If a Default or Event of Default has occurred, specify the nature and extent thereof and the action Borrower
proposes to take with respect thereto.)
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2.
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The information provided in Section 1 of the Disclosure Schedule is currently true and accurate, except as noted below.
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3.
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Borrower is in compliance in all material respects with the provisions of
Sections 4, 6 and 7
of the Loan Agreement, except as noted below.
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4.
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Attached herewith are the [monthly financial statements pursuant to Section 6.3(a) of the Loan Agreement/annual audited financial statements pursuant to Section 6.3(b) of
the Loan Agreement]. These have been prepared in accordance with GAAP and are consistent from one period to the next except as noted below.
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NOTES TO ABOVE CERTIFICATIONS
:
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BORROWER:
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INFINITY PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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SECURED PROMISSORY NOTE
(Loan A)
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$5,000,000.00
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Dated: June 30, 2006
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FOR VALUE RECEIVED, the undersigned, INFINITY PHARMACEUTICALS, INC., a Delaware corporation
(“
Borrower
”), HEREBY PROMISES TO PAY to the order of HORIZON TECHNOLOGY FUNDING COMPANY LLC, a Delaware limited liability company (“
Lender
”) the principal amount of Five Million Dollars ($5,000,000.00) or such
lesser amount as shall equal the outstanding principal balance of the Loan A (the “
Loan
”) made to Borrower by Lender pursuant to the Loan Agreement (as defined below), and to pay all other amounts due with respect to the Loan on the
dates and in the amounts set forth in the Loan Agreement.
Interest on the principal amount of this Note from the date of this Note shall
accrue at the Loan Rate or, if applicable, the Default Rate. The Loan Rate for this Note is 11.93% per annum based on a year of twelve 30-day months. If the Funding Date is not the first day of the month, interim interest accruing from the
Funding Date through the last day of that month shall be paid on the first calendar day of the next calendar month. Commencing August 1, 2006, through and including April 1, 2007, on the first day of each month (each an “
Interest
Payment Date
”) Borrower shall make payments of accrued interest only on the outstanding principal amount of the Loan, each in the amount of Forty-Nine Thousand Seven Hundred Eight and 33/100 Dollars ($49,708.33). Commencing on May 1,
2007, and continuing on the first day of each month thereafter through and including October 1, 2009 (each a “
Principal and Interest Payment Date
” and, collectively with each Interest Payment Date, each a “
Payment
Date
”), Borrower shall make to Lender equal payments of principal plus accrued interest on the then outstanding principal amount due hereunder in the amount of One Hundred Ninety Three Thousand Five Hundred Seventy-Five and 50/100 Dollars
($193,575.50). If not sooner paid, all outstanding amounts hereunder and under the Loan Agreement shall become due and payable on October 1, 2009.
Principal, interest and all other amounts due with respect to the Loan, are payable in lawful money of the United States of America to Lender as set forth in the Loan Agreement. The principal amount of this Note and
the interest rate applicable thereto, and all payments made with respect thereto, shall be recorded by Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Note.
This Note is referred to in, and is entitled to the benefits of, the Venture Loan and Security Agreement dated on or about the date hereof by and between
Borrower and Lender (the “Loan Agreement”). Capitalized terms in this Note not otherwise defined herein shall have the meanings set forth in the Loan Agreement. The Loan Agreement, among other things, (a) provides for the making of a
secured Loan to Borrower, and (b) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events.
This Note may not be prepaid, except as set forth in
Section 2.3
of the Loan Agreement.
This Note and the obligation of Borrower to repay the unpaid principal amount of the Loan, interest on the Loan and all other amounts due
Lender under the Loan Agreement is secured under the Loan Agreement.
Presentment for payment, demand, notice of protest and all other
demands and notices of any kind in connection with the execution, delivery, performance and enforcement of this Note are hereby waived.
Borrower shall pay all reasonable fees and expenses, including, without limitation, reasonable attorneys’ fees and costs, incurred by Lender in the enforcement or attempt to enforce any of Borrower’s obligations hereunder not
performed when due. This Note shall be governed by, and construed and interpreted in accordance with, the laws of the State of Connecticut.
Note Register; Ownership of Note
. The ownership of an interest in this Note shall be registered on a record of ownership maintained by Borrower or its agent. Borrower shall register any transfers of any interest in this Note on such
register within ten (10) days of notice by the last registered holder of such transfer. Notwithstanding anything else in this Note to the contrary, the right to the principal of, and stated interest on, this Note may be transferred only if the
transfer is registered on such record of ownership and the transferee is identified as the owner of an interest in the obligation. Borrower shall be entitled to treat the registered holder of this Note (as recorded on such record of ownership) as
the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to or interest in this Note on the part of any other person or entity.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed by one of its officers thereunto duly authorized on the date hereof.
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BORROWER:
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Thomas J. Burke
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Name:
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Thomas J. Burke
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Title:
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Controller/Treasurer
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2
SECURED PROMISSORY NOTE
(Loan B)
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|
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$2,500,000.00
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Dated: June 30, 2006
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FOR VALUE RECEIVED, the undersigned, INFINITY PHARMACEUTICALS, INC., a Delaware corporation
(“
Borrower
”) HEREBY PROMISES TO PAY to the order of HORIZON TECHNOLOGY FUNDING COMPANY LLC, a Delaware limited liability company (“
Lender
”) the principal amount of Two Million Five Hundred Thousand Dollars
($2,500,000.00) or such lesser amount as shall equal the outstanding principal balance of the Loan B (the “
Loan
”) made to Borrower by Lender pursuant to the Loan Agreement (as defined below), and to pay all other amounts due with
respect to the Loan on the dates and in the amounts set forth in the Loan Agreement.
Interest on the principal amount of this Note from
the date of this Note shall accrue at the Loan Rate or, if applicable, the Default Rate. The Loan Rate for tins Note is 11.93% per annum based on a year of twelve 30-day months. If the Funding Date is not the first day of the month, interim
interest accruing from the Funding Date through the last day of that month shall be paid on the first calendar day of the next calendar month. Commencing August 1, 2006, through and including April 1, 2007, on the first day of each month
(each an “
Interest Payment Date
”) Borrower shall make payments of accrued interest only on the outstanding principal amount of the Loan, each in the amount of Twenty-Four Thousand Eight Hundred Fifty-Four and 17/100 Dollars
($24,854.17). Commencing on May 1, 2007, and continuing on the first day of each month thereafter through and including October 1, 2009 (each a “
Principal and Interest Payment Date
” and, collectively with each Interest
Payment Date, each a “
Payment Date
”), Borrower shall make to Lender equal payments of principal plus accrued interest on the then outstanding principal amount due hereunder in the amount of Ninety-Six Thousand Seven Hundred
Eighty-Seven and 75/100 Dollars ($96,787.75). If not sooner paid, all outstanding amounts hereunder and under the Loan Agreement shall become due and payable on October 1, 2009.
Principal, interest and all other amounts due with respect to the Loan, are payable in lawful money of the United States of America to Lender as set
forth in the Loan Agreement. The principal amount of this Note and the interest rate applicable thereto, and all payments made with respect thereto, shall be recorded by Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
winch is part of this Note.
This Note is referred to in, and is entitled to the benefits of, the Venture Loan and Security Agreement dated
on or about the date hereof by and between Borrower and Lender (the “Loan Agreement”). Capitalized terms in tins Note not otherwise defined herein shall have the meanings set forth in the Loan Agreement. The Loan Agreement, among other
things, (a) provides for the making of a secured Loan to Borrower, and (b) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events.
This Note may not be prepaid, except as set forth in
Section 2.3
of the Loan Agreement.
This Note and the obligation of Borrower to repay the unpaid principal amount of the Loan, interest on the Loan and all other amounts due
Lender under the Loan Agreement is secured under the Loan Agreement.
Presentment for payment, demand, notice of protest and all other
demands and notices of any kind in connection with the execution, delivery, performance and enforcement of this Note are hereby waived.
Borrower shall pay all reasonable fees and expenses, including, without limitation, reasonable attorneys’ fees and costs, incurred by Lender in the enforcement or attempt to enforce any of Borrower’s obligations hereunder not
performed when due. This Note shall be governed by, and construed and interpreted in accordance with, the laws of the State of Connecticut.
Note Register; Ownership of Note
. The ownership of an interest in this Note shall be registered on a record of ownership maintained by Borrower or its agent. Borrower shall register any transfers of any interest in this Note on such
register within ten (10) days of notice by the last registered holder of such transfer. Notwithstanding anything else in this Note to the contrary, the right to the principal of, and stated interest on, this Note may be transferred only if the
transfer is registered on such record of ownership and the transferee is identified as the owner of an interest in the obligation. Borrower shall be entitled to treat the registered holder of this Note (as recorded on such record of ownership) as
the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to or interest in this Note on the part of any other person or entity.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed by one of its officers thereunto duly authorized on the date hereof.
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BORROWER:
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Thomas J. Burke
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Name:
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Thomas J. Burke
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Title:
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Controller/Treasurer
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2
Exhibit 10.9
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MOAB, Inc.
c/o Millennium Pharmaceuticals,
Inc.
One Broadway, 15
th
Floor
Cambridge, MA 02139
Tel 617 679 7219
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August 1, 2001
Steven H. Holtzman
115 Powers Road
Sudbury, MA 01776
Dear Steve,
On behalf of Moab, Inc. (the “Company”). I am pleased to offer you the position of President and Chief Executive Officer.
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1.
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Effective Date
: The effective date of your full-time employment with the Company shall be Monday, July 2, 2001.
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2.
|
Salary
: Your base salary will be $10,000 per bi-weekly pay period. Your salary will be paid periodically in accordance with the Company’s payroll procedures. In
addition, in accordance with the Company’s regular compensation practices, from time to time the Company may adjust your salary based on your performance, the Company’s performance and such other factors as may be determined at the sole
discretion of the Company’s Board of Directors or its designee. It is anticipated that your base salary will be increased as the Company’s size and scope of activities expand.
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3.
|
Success Sharing
: Commencing 2002, in addition to your eligibility for a merit increase, you may also be eligible to participate in the Moab Success Sharing cash bonus
program, which includes a fixed percentage of salary target for each position, prorated for length of active service in the calendar year. The funding of the target is based on the Company meeting overall goals established at the beginning of each
calendar year. In the event of Company performance below or above target, your personal bonus target may vary. Your individual bonus payment will also vary based on your individual performance. Your manager will work with you to establish your
individual goals, which will be the primary factor in determining your bonus payment. Bonus payments will be made to eligible and active employees in March of 2003 for the 2002 Success Sharing Plan.
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4.
|
Benefits
: You may participate in any and all of the benefit programs that the Company establishes and makes available to its employees from time to time, provided you are
eligible under (and subject to all provisions of) the plan documents governing these programs. At present, the Company has no medical benefit program, but, upon receipt of appropriate documentation, the Company will reimburse you for any premium
payments you make for family medical and dental coverage under the law known as COBRA for coverage following July 30, 2001.
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5.
|
Vacation
: You are eligible for 15 days vacation accrual per year with an additional day added each year from 3 to 7 years, up to a total of 4 weeks. 11 paid holidays annually
will be observed.
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6.
|
Equity Participation, Vesting of Stock
: Subject to approval by the Company’s Board of Directors, you will be granted a restricted stock award for
1,500,000 shares of the Company’s Common Stock, without payment of consideration by you. A complete description of the terms and conditions of the restricted stock award will be contained in the Company’s 2001 Stock Incentive
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Plan and the form of stock restriction agreement to be entered into by you and the Company. The restricted stock award will vest as to one fourth (l/4th) of
the shares on the first anniversary of your commencement of full-time employment with the Company and as to one forty-eighth (l/48th) of the shares monthly thereafter until all shares are vested, provided that you remain employed by the Company. You
will be entitled to a cash gross-up payment of $92,045 for the income taxes owed by you as a result of restricted stock grant. You should consider making a Section 83(b) election with respect to the restricted stock award within thirty (30) days of
the Board action authorizing the restricted stock award.
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The 1,000,000 shares of restricted common stock previously
purchased by you on May 14, 2001 will continue to vest in accordance with the terms of the applicable Stock Purchase Agreements, each dated May 14, 2001, by and between the Company and you; provided that, each such agreement will be amended to
provide that the Company’s Right of Repurchase (as defined therein) shall be exercisable when your employment terminates, not when your service as a director or advisor terminates, as previously provided therein.
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7.
|
Employment At-Will
: Your employment with the Company will be at-will, meaning that you will not be obligated to remain employed by the Company for any specified period of
time and the Company will not be obligated to continue your employment for any specific period. Both you and the Company may terminate the employment relationship, with or without cause, at any time, with or without notice.
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8.
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Employment Eligibility Verification
: Please note that all persons employed in the United States, are required to complete an Employment Eligibility Verification Form on the
first day of employment and submit an original document or documents that establish identity and employment eligibility within three business days of employment. For your convenience, we are enclosing Form 1-9 for your review. You will need to
complete Section 1 and present original document(s) of your choice as listed on the reverse side of the form once you begin work.
Please note: the 1-9 form and valid identification are
legal
requirements and must be submitted
within 3 days
of your start date. If you do not submit the required documentation within the 3-day time frame, by law we cannot allow you to continue to work.
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9.
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Proprietary Information, No Conflicts
: As a condition of employment, you agree to execute the Company’s standard form of Invention, Non-Disclosure and Non-Competition
Agreement and to be bound by all of the provisions thereof. You hereby represent that you are not presently bound by any employment agreement, confidential or proprietary information agreement or similar agreement with any current or previous
employer that would impose any restriction on your acceptance of this offer or that would interfere with your ability to fulfill the responsibilities of your position with the Company.
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10.
|
Severance Agreement
: If your employment is terminated by the Company without cause or by you for good reason, each as defined below, provided that you execute a severance
agreement and release of claims provided by the Company you will be eligible for severance pay in the form of salary continuation until the earlier of: (1)12 months from date of termination or (2) the date on which you commence employment with
another employer or commence working as a consultant or independent contractor, on either a full or part-time basis. (A condition for receipt of such severance shall be for you to use your best efforts to find such employment or other work
relationship and provide moab, inc., with any and all documentation of such efforts as it may request.) All vesting of shares shall cease at the time of termination and you shall receive no other benefits following your termination, except as
required by law.
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“Cause” for termination shall be deemed to exist upon (a) good faith finding by the
Company of failure by you to perform your assigned duties for the Company in a manner acceptable to the Company; (b) dishonesty, gross negligence or misconduct; or (c) your conviction, or the entry of a pleading of guilty or nolo
contendere by you to, any felony or any crime involving moral turpitude, dishonesty, or theft.
“Good Reason” for termination
shall be deemed to exist upon a significant diminution in your title, authority or duties or material reduction in your annual cash base compensation, in either case without your prior consent.
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11.
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Termination of Advisory Agreements
. Upon your commencement of employment, each of the following agreements by and between moab, inc. and you will be terminated in its
entirety and shall have no further force or effect: (i) Advisory Agreement dated May 14, 2001 and (ii) Consulting Agreement dated May 14, 2001.
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Steve, all of us here at Moab are very enthusiastic about your commitment to joining the company and have the highest expectation of your future contributions.
Please indicate your understanding and acceptance of the foregoing terms of your employment by signing the enclosed copy of this letter and returning it to me no later
than August 3, 2001. After that date, the offer will expire.
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Very truly yours,
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MOAB, INC.
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/s/ James B. Tananbaum
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James Tananbaum
Director
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The foregoing correctly sets forth the terms of my at-will employment by Moab, Inc.
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/s/ Steven H. Holtzman
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8/1/01
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Steven H. Holtzman
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Date
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Exhibit 10.10
August 19, 2003
Julian Adams, Ph.D.
121 Laurel Road
Brookline, MA 02146
Dear Julian:
On behalf of Infinity Pharmaceuticals, Inc. (the “Company”), I am pleased to offer you the position
of Chief Scientific Officer, reporting to me.
The specifics of the Company’s offer are:
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1.
|
Effective Date:
The effective date of your full-time employment with the Company shall be no later than October 6, 2003.
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2.
|
Salary:
Your base salary will be $11,538.47 per biweekly pay period (equivalent to $300,000 on an annualized basis). In addition, in accordance with the Company’s
regular compensation practices, you will receive, approximately annually, a salary review, and the Company may adjust your salary based on your performance, the Company’s performance, and/or such other factors as may be determined at the sole
discretion of the Company’s Board of Directors or its designee.
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3.
|
Success Sharing:
In addition to your base salary, you may be eligible to participate in the Infinity Success Sharing bonus program (commencing in 2005 for performance
in 2004), under which you may receive a bonus depending upon the achievement by you and the Company of goals and objectives which shall be established by the Company in its sole discretion. The amount, if any, and timing of such bonus shall be
determined by the terms of the program.
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4.
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Benefits:
You may participate in any and all of the benefit programs that the Company establishes and makes available to its employees from time to time, provided you
are eligible under (and subject to all provisions of) the plan documents governing these programs.
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5.
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Vacation:
Upon your date of hire, you will start to accrue vacation time at a rate of 15 days per year, which may be taken in accordance with Company policy; 12 paid
holidays annually will be observed.
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6.
|
Equity Participation, Vesting of Stock:
Subject to approval by the Company’s Board of Directors, you will be granted a restricted stock award to
purchase 750,000 shares of the Company’s Common Stock. A complete description of the terms and conditions of the restricted stock award will be contained in the Company’s 2001 Stock Incentive Plan and the Company’s standard restricted
stock agreement to be entered into by you and the Company. The restricted stock will be subject to repurchase by the Company, which repurchase option shall lapse as to one fourth (1/4) of the shares on the first anniversary of your commencement
of full-time employment with the Company and as to one forty-eighth (1/48) of the shares
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August 19, 2003
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Page
2
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Julian Adams, Ph.D.
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monthly thereafter until the Company’s repurchase right with respect to all shares has lapsed. In the event of your death or permanent disability while
employed by the Company, the repurchase option will lapse immediately as to all shares. If you voluntarily terminate your employment or the Company terminates your employment for cause, vesting will cease as of the date of your termination, and you
will be entitled to retain those shares that have vested as of such date. In addition, in accordance with the Company’s compensation practices, you will receive, approximately annually, a merit stock review which will be based on your
performance, the Company’s performance, and such other factors as may be determined by the Company’s Board of Directors.
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7.
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Repayable Equity Loan:
Subject to Board approval, the Company will loan you an amount equal to the purchase price of the restricted stock award made to you in
connection with the commencement of your employment. The loan will bear interest at the lowest applicable federal interest rate, will be full recourse to your assets, and will be secured by the shares of restricted common stock purchased by you.
Repayment will be made in cash or, to the extent permitted by law, in shares of the Company’s stock owned by you. Principal plus all accrued interest shall become due and payable in full on the earlier to occur of:
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a.
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Five days prior to the consummation of an acquisition, merger, or business combination if, prior to such transaction, the acquiring entity was subject to the Securities Exchange Act
of 1934 (the “Exchange Act”) and, upon the acquisition, merger, or business combination, (i) the acquiring entity will continue to be subject to the Exchange Act and (ii) the Borrower will be a director or executive officer (as
defined in Rule 3b-7 of the Exchange Act) of the acquiring entity;
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b.
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Five days prior to the date the Company files a registration statement with the Securities and Exchange Commission if the Company determines that, upon the filing of the
registration statement, the Borrower will be a director or executive officer (as defined in Rule 3b-7 of the Exchange Act) of the Company; and
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c.
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Immediately prior to the Borrower becoming a director or executive officer (as defined in Rule 3b-7 of the Exchange Act) of the Company or a successor entity if the Company or
successor entity, as the case may be, is subject to the Exchange Act at the time that the Borrower assumes such position with the Company or successor entity, as the case may be.
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In the event of termination of the Borrower’s employment by the Company without Cause (as defined in Section 12 below), the principal of the Note, plus
interest accrued thereon, will be due and payable six months from the date on which the Borrower’s employment is terminated, provided that you execute a severance agreement and release of claims provided by the Company. If the Borrower’s
employment is terminated by the Company with Cause, the principal, plus accrued interest thereon, will be due and payable upon the date of termination.
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August 19, 2003
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Page
3
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Julian Adams, Ph.D.
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8.
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Sign-on Bonus:
The Company will pay you a bonus of $25,000 on the date of the first paycheck following commencement of your full-time employment. Should you terminate
for any reason within 12 months of your starting date after having received your bonus, the Company reserves the right to seek repayment of all or a pro-rata portion of your bonus.
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9.
|
Employment At-Will:
Your employment with the Company will be at-will, meaning that you will not be obligated to remain employed by the Company for any specified period
of time and the Company will not be obligated to continue your employment for any specific period. Both you and the Company may terminate the employment relationship, with or without cause, at any time, with or without notice. Similarly, nothing in
this letter shall be construed as an agreement, either express or implied, to pay you any compensation or grant you any benefit beyond the end of your employment with the Company (except as described herein).
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|
10.
|
Proprietary Information, No Conflicts:
As a condition of employment, you agree to execute the Company’s standard form of Invention, Non-Disclosure, and
Non-Competition Agreement and to be bound by all of the provisions thereof. You hereby represent that you are not presently bound by any employment agreement, confidential or proprietary information agreement, or similar agreement with any current
or previous employer that would impose any restriction on your acceptance of this offer or that would interfere with your ability to fulfill the responsibilities of your position with the Company.
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|
11.
|
Employment Eligibility Verification:
Please note that all persons employed in the United States are required to complete an Employment Eligibility Verification Form on
the first day of employment and to submit an original document or documents that establish identity and employment eligibility within three business days of employment.
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12.
|
Severance Agreement:
If your employment is terminated without Cause, as defined below, or if you resign from employment due to a material diminution in your job
responsibilities or title or as a result of the Company not fulfilling its obligations as provided for in this agreement, (1) the Company will continue to pay you your then-current base salary for a period of six months following the effective
date of your termination, and (2) the vesting of your unvested shares will continue for a period of six months from the date of your termination, provided that you execute a severance agreement and release of claims provided by the Company. You
shall receive no other benefits following your termination, except as required by law.
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*“Cause” for termination shall be deemed to exist upon (a) good faith finding by the Company of failure of the Employee to perform her material
duties for the Company in a manner acceptable to the Company, which failure continues for a period of more than 30 days after notice thereof has been provided to you in writing by the Company, setting forth in reasonable detail the nature of such
failure;
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August 19, 2003
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Page
4
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Julian Adams, Ph.D.
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(b) dishonesty; gross negligence or misconduct; or (c) the conviction of the employee of, or the entry of a pleading of guilty or nolo contendere by the
employee to, any felony or any crime involving extortion, dishonesty, or theft.
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13.
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Successors and Assigns:
This letter of offer will be binding upon and inure to the benefit of the Company’s successors and assignees. In the event of a merger or
consolidation (whether or not the Company is the surviving or the resulting corporation), the surviving or resulting corporation will be bound by the obligations set forth in this letter offer.
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Julian, all of us here at Infinity are very enthusiastic about your joining the Company, are committed to your growth, and have the highest expectation of your future
contributions.
Please indicate your understanding and acceptance of the foregoing terms of your employment by signing the enclosed copy of this letter and
returning it to me no later than August 25, 2003. After that date, the offer will expire.
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Very truly yours,
INFINITY PHARMACEUTICALS,
INC.
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/s/ Steven H. Holtzman
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Steven H. Holtzman
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President and Chief Executive Officer
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The foregoing correctly sets forth the terms of my at-will employment by Infinity Pharmaceuticals, Inc.
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/s/ Julian Adams
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8/22/03
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Julian Adams
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Date
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Exhibit 10.11
February 6, 2002
Ms. Adelene Perkins
83
Lincoln Road
Wayland, MA 01778
Dear Adelene,
On behalf of Infinity Pharmaceuticals, Inc. (the “Company”), I am pleased to offer you the position of Chief Business Officer reporting to the Chief Executive
Officer.
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1.
|
Effective Date:
The effective date of your full-time employment with the Company shall be Monday, June 3, 2002.
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|
2.
|
Salary:
Your base salary will be $9,134.62 per biweekly payroll period (equal to $237,500 on an annual basis). In addition, in accordance with the Company’s regular
compensation practices, you will receive, approximately annually, a salary review, and the Company may adjust your salary based on your performance, the Company’s performance, and/or such other factors as may be determined at the sole
discretion of the Company’s Board of Directors or its designee.
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|
3.
|
Success Sharing:
In addition to your base salary, you may be eligible to participate in the Infinity Success Sharing cash bonus program, under which you may receive a bonus
depending upon the achievement by you and the Company of goals and objectives which shall be established by the Company in its sole discretion. The amount, if any, and timing of such bonus shall be determined by the terms of the program.
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|
4.
|
Benefits:
You may participate in any and all of the benefit programs that the Company establishes and makes available to its employees from time to time, provided you are
eligible under (and subject to all provisions of) the plan documents governing these programs.
|
|
5.
|
Vacation:
Upon your date of hire, you will start to accrue vacation time at a rate of 15 days per year, which may be taken in accordance with Company policy; 12 paid holidays
annually will be observed. It is understood that you have long-standing family plans for a vacation in late-June/early July which, of course, you may take.
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|
6.
|
Equity Participation, Vesting of Stock:
Subject to approval by the Company’s Board of Directors, you will be granted a restricted stock award to
purchase 450,000 shares of the Company’s Common Stock. A complete description of the terms and conditions of the restricted stock award will be contained in the Company’s 2001 Stock Incentive Plan and the form of restricted stock agreement
to be entered into by you and the Company. The restricted stock will be subject to repurchase by the Company, which repurchase option shall lapse as to 75,000 of the shares on
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February 6, 2002
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Page
2
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Ms. Adelene Perkins
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January 1, 2003. Over the following 36 months (through December 31, 2005), the Company’s repurchase option shall lapse at a rate of 10,416.667
shares per month. In the event of your death or permanent disability while employed by the Company, the repurchase option will lapse immediately as to all shares. Other than as provided in Section 11 below, if you voluntarily terminate your
employment or the Company terminates your employment for Cause (as defined in Section 11 below), vesting will cease as of the date of your termination, and you will be entitled to retain those shares that have vested as of such date. In
addition, in accordance with the Company’s compensation practices, you will receive, approximately annually, a merit stock review which will be based on your performance, the Company’s performance, and such other factors as may be
determined by the Company’s Board of Directors.
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|
7.
|
Repayable Loan:
Subject to Board approval, the Company will loan you $67,500 to pay the purchase price of the restricted stock award made to you in connection with the
commencement of your employment. The loan will bear interest at the lowest applicable federal interest rate, will be full recourse to your assets, and will be secured by the shares of restricted common stock purchased by you. Repayment will be made
in cash or, to the extent permitted by law, in shares of the Company’s stock owned by you. Principal plus all accrued interest shall become due and payable in full on the first to occur of (1) the first date on which the fair market value
of the shares of common stock held by you exceeds $500,000 and such shares are freely tradable or (2) the first date on which you receive cash or freely tradable securities having a value of at least $500,000 in an acquisition of the Company by
a third party (a “Liquidity Event”). In the event that your employment with the Company is terminated either voluntarily by you or by the Company without Cause prior to a Liquidity Event, then the principal, plus interest will be due on
the first to occur of (1) the first anniversary of the termination of your employment or (2) a Liquidity Event. In the event you are terminated for Cause by the Company, the principal and all interest will be due and payable on the earlier
to occur of 30 days after such termination or a Liquidity Event. If upon termination for any reason, the Company exercises its repurchase right, any amounts due from the Company in connection with such repurchase will be applied to reduce the
remaining out standing loan balance.
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|
8.
|
Employment At-Will:
Your employment with the Company will be at-will, meaning that you will not be obligated to remain employed by the Company for any specified period of
time and the Company will not be obligated to continue your employment for any specific period. Both you and the Company may terminate the employment relationship, with or without Cause, at any time, with or without notice. Similarly, nothing in
this letter shall be construed as an agreement, either express or implied, to pay you any compensation or grant you any benefit beyond the end of your employment with the Company (except as herein described).
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February 6, 2002
|
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Page
3
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Ms. Adelene Perkins
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9.
|
Proprietary Information, No Conflicts:
As a condition of employment, you agree to execute the Company’s standard form of Invention, Non-Disclosure, and Non-Competition
Agreement and to be bound by all of the provisions thereof. You hereby represent that, to the best of your knowledge, you are not presently bound by any employment agreement, confidential or proprietary information agreement, or similar agreement
with any current or previous employer that would impose any restriction on your acceptance of this offer or that would interfere with your ability to fulfill the responsibilities of your position with the Company. The non-compete agreement you
entered into with your most recent employer is attached and Infinity has been provided the opportunity to review it.
|
|
10.
|
Employment Eligibility Verification:
Please note that all persons employed in the United States are required to complete an Employment Eligibility Verification Form on the
first day of employment and to submit an original document or documents that establish identity and employment eligibility within three business days of employment.
|
|
11.
|
Severance Agreement:
If your employment is terminated without Cause, as defined below, or if you resign from employment due to a material diminution in your job
responsibilities or title or as a result of the Company not fulfilling its obligations as provided for in this agreement, (1) the Company will continue to pay you your then-current base salary for a period of 12 months following the effective
date of your termination, and (2) the vesting of your unvested shares will continue for a period of 12 months from the date of your termination, provided that you execute a severance agreement and release of claims provided by the Company. You
shall receive no other benefits following your termination, except as required by law.
|
*“Cause” for termination
shall be deemed to exist upon (a) good faith finding by the Company of failure of the Employee to perform her material duties for the Company in a manner acceptable to the Company, which failure continues for a period of more than 30 days after
notice thereof has been provided to you in writing by the Company, setting forth in reasonable detail the nature of such failure; (b) dishonesty; gross negligence or misconduct; or (c) the conviction of the employee of, or the entry of a
pleading of guilty or nolo contendere by the employee to, any felony or any crime involving extortion, dishonesty, or theft.
|
12.
|
Successors and Assigns:
This letter of offer will be binding upon and inure to the benefit of the Company’s successors and assignees. In the event of a merger or
consolidation of the Company (whether or not the Company is the surviving or the resulting corporation), the surviving or resulting corporation will be bound by the obligations set forth in this letter offer.
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February 6, 2002
|
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Page
4
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|
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Ms. Adelene Perkins
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Adelene, all of us here at Infinity
are very enthusiastic about your commitment to joining the company and have the highest expectation of your future contributions.
Please indicate your
understanding and acceptance of the foregoing terms of your employment by signing the enclosed copy of this letter and returning it to me no later than February 11, 2002. After that date, the offer will expire.
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|
|
Very truly yours,
|
|
INFINITY PHARMACEUTICALS, INC.
|
|
|
|
/s/ Steven H. Holtzman
|
|
Steven H. Holtzman
|
|
Chief Executive Officer
|
The foregoing correctly sets forth the terms of my at-will employment by Infinity Pharmaceuticals, Inc.
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|
|
/s/ Adelene Q. Perkins
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2/15/02
|
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Adelene Perkins
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Date
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Exhibit 10.12
Infinity
Pharmaceuticals
Effective as
of March 31, 2006
Steven H. Holtzman
115 Powers Road
Sudbury, MA 01776
Dear Steve:
Reference is hereby made to that certain Stock Restriction
Agreement (the “Stock Restriction Agreement”) dated June 16, 2004 between Infinity Pharmaceuticals, Inc. (the “Company”) and you, pursuant to which the Company issued and sold to you an aggregate of 700,000 shares (the
“Shares”) of common stock, $.0001 par value per share (the “Common Stock”), of the Company. As of April 1, 2006, 568,750 Shares (the “Vested Shares”) had vested and were no longer subject to the Purchase Option (as
defined in the Stock Restriction Agreement).
The aggregate purchase price for the Shares was paid by you by delivery of that certain Secured Promissory
Note and Pledge Agreement dated as of June 16, 2004 in the principal amount of $341,910 (the “Promissory Note”), except that the aggregate par value of the Shares was paid by you by check. As of March 31, 2006, you owe the
Company an aggregate of $364,874.24, representing the entire principal amount and accrued interest due under the Promissory Note.
By signing below,
(a) the Company hereby agrees to forgive, as of the date hereof, the entire principal amount and accrued interest owed by you to the Company pursuant to the Promissory Note and (b) in exchange therefor, you agree that, as of April 1,
2006, (i) 66,500 of the Vested Shares (the “Forgiveness Shares”), which were issued to you pursuant to the Stock Restriction Agreement, shall be subject to a right of repurchase in favor of the Company for a period of twenty-four
months following April 1, 2006 and (ii) in furtherance of the foregoing, such Forgiveness Shares shall become Unvested Shares (as defined in the Stock Restriction Agreement) as of April 1, 2006, and shall be subject to all of the
terms and conditions applicable to Unvested Shares, including the Purchase Option and vesting schedule, set forth in the Stock Restriction Agreement.
By
signing below, you also acknowledge that the forgiveness of the principal and interest on the Promissory Note will constitute compensation income to you and will be subject to federal, state and local withholding taxes. The forgiveness will not be
effective unless and until you provide the Company with cash equal to the withholding taxes payable, or you make other provisions satisfactory to the Company for the payment of the withholding taxes payable.
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|
|
|
|
INFINITY PHARMACEUTICALS, INC.
|
|
|
|
|
By:
|
|
/s/ Thomas J. Burke
|
|
Name:
|
|
Thomas J. Burke
|
|
Title:
|
|
Controller
|
|
|
|
Agreed and acknowledged as
of the date first written
above.
|
|
|
|
/s/ Steven H. Holtzman
|
|
Steven H. Holtzman
|
Infinity Pharmaceuticals, Inc.
780 Memorial Drive Cambridge, MA 02139
tel: 617.453.1000 fax: 617.453.1001 www.ipi.com
Exhibit 10.13
Infinity
Pharmaceuticals
Effective as of March 31, 2006
Julian Adams
673 Boylston Street
Boston, MA 02116
Dear Julian:
Reference is hereby made to that certain Restricted Stock Agreement (the “Stock Restriction Agreement”) dated October 6, 2003 between Infinity Pharmaceuticals, Inc. (the “Company”) and you,
pursuant to which the Company issued and sold to you an aggregate of 750,000 shares (the “Shares”) of common stock, $.0001 par value per share (the “Common Stock”), of the Company. As of April 1, 2006, 453,125 Shares (the
“Vested Shares”) had vested and were no longer subject to the Purchase Option (as defined in the Stock Restriction Agreement).
The aggregate
purchase price for the Shares was paid by you by delivery of that certain Secured Promissory Note and Pledge Agreement dated as of October 6, 2003 in the principal amount of $285,000 (the “Promissory Note”), except that the aggregate
par value of the Shares was paid by you by check. In connection with the transfer of a portion of the loan under the Promissory Note and certain of the Shares by you to Fran Shtull Adams (the “Transferee”), the Promissory Note was
cancelled and replaced with (a) that certain Amended and Restated Secured Promissory Note and Pledge Agreement dated as of January 4, 2005 in the principal amount of $223,121.89 between you and the Company (the “Amended and Restated
Note”) and (b) that certain Secured Promissory Note and Pledge Agreement dated as of January 4, 2005 in the principal amount of $74,373.96 between the Transferee and the Company (together with the Amended and Restated Note, the
“Outstanding Notes”). As of March 31, 2006, you and the Transferee collectively owe the Company an aggregate of $311,239.79, representing the entire principal amount and accrued interest due under the Outstanding Notes.
By signing below, (a) the Company hereby agrees to forgive, as of the date hereof, the entire principal amount and accrued interest owed by you and the Transferee
to the Company pursuant to the Outstanding Notes and (b) in exchange therefor, you agree that, as of April 1, 2006, (i) 56,500 of the Vested Shares (the “Forgiveness Shares”), which were issued to you pursuant to the Stock
Restriction Agreement and continue to be held by you as of April 1, 2006, shall be subject to a right of repurchase in favor of the Company for a period of twenty-four months following April 1, 2006 and (ii) in furtherance of the
foregoing, such Forgiveness Shares shall become Unvested Shares (as defined in the Stock Restriction Agreement) as of April 1, 2006, and shall be subject to all of the terms and conditions applicable to Unvested Shares, including the Purchase
Option and vesting schedule (vesting in the same manner as Unvested Shares vest after October 6, 2004), set forth in the Stock Restriction Agreement.
Infinity Pharmaceuticals, Inc.
780 Memorial Drive Cambridge, MA 02139
tel: 617.453.1000 fax: 617.453.1001 www.ipi.com
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Effective as of March 31, 2006
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Page 2
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Julian Adams
By signing below, you also acknowledge that the forgiveness of the principal and interest on the Outstanding Notes will constitute compensation income to you and will be subject to federal, state and local withholding
taxes. The forgiveness will not be effective unless and until you provide the Company with cash equal to the withholding taxes payable, or you make other provisions satisfactory to the Company for the payment of the withholding taxes payable.
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|
|
|
|
INFINITY PHARMACEUTICALS, INC.
|
|
|
|
|
By:
|
|
/s/ Thomas J. Burke
|
|
Name:
|
|
Thomas J. Burke
|
|
Title:
|
|
Controller
|
|
|
|
Agreed and acknowledged as
of the date first written
above.
|
|
|
|
/s/ Julian Adams
|
|
Julian Adams
|
Exhibit 10.14
Infinity
Pharmaceuticals
Effective as
of March 31, 2006
Adelene Q. Perkins
83 Lincoln Road
Wayland, MA 01778
Dear Adelene:
Reference is
hereby made to that certain Restricted Stock Agreement (the “Stock Restriction Agreement”) dated March 19, 2002 between Infinity Pharmaceuticals, Inc. (the “Company”) and you, pursuant to which the Company issued and sold to
you an aggregate of 450,000 shares (the “Shares”) of common stock, $.0001 par value per share (the “Common Stock”), of the Company. As of April 1, 2006, all 450,000 Shares (the “Vested Shares”) had vested and were
no longer subject to the Purchase Option (as defined in the Stock Restriction Agreement).
The aggregate purchase price for the Shares was paid by you by
delivery of that certain Secured Promissory Note and Pledge Agreement dated as of March 19, 2002 in the principal amount of $67,500 (the “Promissory Note”), except that the aggregate par value of the Shares was paid by you by check.
As of March 31, 2006, you owe the Company an aggregate of $81,153.91, representing the entire principal amount and accrued interest due under the Promissory Note.
By signing below, (a) the Company hereby agrees to forgive, as of the date hereof, the entire principal amount and accrued interest owed by you to the Company pursuant to the Promissory Note and (b) in
exchange therefor, you agree that, as of April 1, 2006, (i) 14,750 of the Vested Shares (the “Forgiveness Shares”), which were issued to you pursuant to the Stock Restriction Agreement, shall be subject to a right of repurchase
in favor of the Company for a period of twenty-four months following April 1, 2006 and (ii) in furtherance of the foregoing, such Forgiveness Shares shall become Unvested Shares (as defined in the Stock Restriction Agreement) as of
April 1, 2006, and shall be subject to all of the terms and conditions applicable to Unvested Shares, including the Purchase Option and vesting schedule (vesting in the same manner as Unvested Shares vest after January 1, 2003), set forth
in the Stock Restriction Agreement.
By signing below, you also acknowledge that the forgiveness of the principal and interest on the Promissory Note will
constitute compensation income to you and will be subject to federal, state and local withholding taxes. The forgiveness will not be effective unless and until you provide the Company with cash equal to the withholding taxes payable, or you make
other provisions satisfactory to the Company for the payment of the withholding taxes payable.
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Thomas J. Burke
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Name:
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Thomas J. Burke
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Title:
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Controller
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Agreed and acknowledged as
of the date first written
above.
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/s/ Adelene Q. Perkins
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Adelene Q. Perkins
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Infinity Pharmaceuticals, Inc.
780 Memorial Drive Cambridge, MA 02139
tel: 617.453.1000 fax: 617.453.1001 www.ipi.com
Exhibit 10.15
May 14, 2001
Eric Lander
74R Fayerweather
Street
Cambridge, MA 02138
Subject:
Advisor to moab,
inc.
Dear Eric,
moab, inc. (the “Company”) is
pleased to invite you to serve as an Advisor to the Company on the following terms:
1.
Service
. You agree to serve as an Advisor to the Company for
a period of four years. You have been chosen for this position because of your expertise in areas that are consistent with the Company’s research and development, business and product strategy. As an Advisor, we hope that you will contribute to
the success of the Company by engaging in the following activities (the “Services”):
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•
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Participating through informal meetings and telephone calls, as well as attending quarterly meetings with other Advisors.
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•
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Advising the Company on business matters in your area of expertise.
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•
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Advising the Company on market strategies and trends in areas of interest to the Company.
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•
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Providing expert advice to the Company’s engineers and researchers on technical matters related to the Company’s research and development efforts, concepts and strategies.
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•
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Reviewing and critiquing the Company’s product concepts, specifications and designs.
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Unless otherwise notified, I will serve as your primary point of contact with the Company regarding your role as an Advisor.
2.
Compensation.
Subject to the approval of the Company’s Board of Directors, you will be granted the right
to purchase 400,000 shares of the Company’s Common Stock at a purchase price per share equal to the fair market value per share on the date the stock award is approved by the Board of Directors. The stock purchased would be subject to
repurchase by the Company at the purchase price. The Company’s repurchase right would lapse and you would vest with respect to 25% of the purchased shares after 12 months of continuous service, and the balance in equal monthly installments over
the next 36 months of continuous service, as described in the applicable Stock Purchase Agreement. You will also be paid a fee of $8,500 in cash monthly for your service as an Advisor. You will be reimbursed for any travel and incidental expenses
incurred associated with serving as an Advisor, subject to the Company’s generally applicable policies for the reimbursement of employee expenses.
3.
Independent Contractor.
In performing Services for the Company pursuant to this letter agreement, you will act in the capacity of an independent contractor with respect to the Company and not as an employee of the Company. As an independent
contractor, you will not be eligible to participate in any of the Company’s employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs and you will be solely responsible for any tax withholdings and the
like.
4.
Conflict of Interest.
The Company recognizes and agrees that you may perform services for other persons and entities, provided that such
services do not represent a conflict of interest or a breach of your duties to the Company. While you act as an Advisor to the Company, however, you will be expected not to serve as an advisor to or on the board of directors of any other commercial
entity active in the area of chemical genomics. Also, while acting as an Advisor to the Company and for a period of one year thereafter, you will not directly or indirectly, or in conjunction with other person or organization, compete with the
Company, prepare to compete with the Company or solicit or hire any of the Company’s employees or independent contractors. By signing this letter agreement, you represent and warrant to the Company that your participation as an Advisor to the
Company will not be inconsistent with any other contractual commitments that you may already have.
5.
Confidentiality Agreement.
During the term of
this letter agreement and thereafter, you will not, without the prior written consent of the Company, use for any purpose (except in the course providing Services under this letter agreement and in furtherance of the business of the Company) or
disclose to any third party confidential information or proprietary data of the Company; provided, however, that “confidential information” will not include any information known generally to the public or ascertainable from public or
published information (other than as a result of unauthorized disclosure by you) or information that you received from third parties who do not have an obligation to maintain the confidentiality of the information disclosed. You may disclose the
Company’s confidential information if you are required to do so by law or court order, provided that you promptly notify the Company so that it may limit disclosure or
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receive a protective order. You agree to deliver to the Company at the termination of your service, or at any other time that the Company may request, all
memoranda, notes, plans, records, reports and other documents (and copies thereof) relating to the business of the Company which you may then possess or have under your control.
6.
Ownership of Inventions.
The Company shall own, and you hereby assign to the Company, all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark
rights,
sui generis
database rights and all other intellectual and industrial property rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, mask works, designations,
designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by you during the term of this letter agreement and that arise out of the Services or any “confidential information” (collectively,
“Inventions”) and you will promptly disclose and provide all Inventions to the Company. The term Inventions shall not include any generally applicable, widely known skills or knowledge learned by you during your tenure as an Advisor to the
Company. You also agree to assist the Company, at the Company’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned. You agree and warrant that all
Inventions will be your original work and you will not knowingly infringe any third party intellectual property rights in performance of Services to the Company hereunder.
7.
Publicity.
In your capacity as an Advisor to the Company, the Company may not use your name or likeness in connection with the promotion of its business, products and services without your written consent.
8.
Term of Agreement.
This letter agreement may be terminated at any time prior to its expiration by either party by giving five
(5) days’ advance notice in writing. Upon termination or expiration of the relationship contemplated by this letter agreement, the provisions of paragraphs 4 through 9 shall survive.
9.
General Provisions.
This letter agreement (together with your stock option agreement) contains all of the terms of your participation as an Advisor of the
Company and no agreements, representations or understandings (whether oral or written and whether express or implied) which are not expressly set forth in this letter agreement have been made or entered into by either party with respect to the
subject matter hereof. You agree that any of the Company’s rights or obligations hereunder may be assigned to any successor or resultant corporation in a merger or consolidation or other acquisition of the Company or its subsidiary, but that
you may not assign any of your rights or obligations under this letter agreement without the consent of the Company. This letter agreement may not be amended or modified except by an express written agreement signed by you and a duly authorized
officer of the Company. The terms of this letter agreement and the resolution of any disputes will be governed by Massachusetts law without reference to its conflicts of laws provisions. Any breach of paragraphs 4, 5 or 6
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will cause irreparable harm to the Company for which damages would not be an adequate remedy, and therefore the Company will be entitled to injunctive relief
with respect thereto in addition to any other remedies. In any action or proceeding to enforce rights under this letter agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
We hope that you find the foregoing terms acceptable. You may indicate your agreement with these terms and accept this offer by signing and dating the enclosed duplicate
original of this letter and returning it to me. This offer, if not accepted, will expire at the close of business on June 30, 2001.
We, at moab, are
excited about the tremendous opportunity that lies ahead of us. Your expertise will be a significant contributor to our success. On behalf of everyone at moab, I look forward to our working together.
If you have any questions, please call me at 650–808–6001.
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Very truly yours,
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moab, inc.
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By:
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/s/ James Tananbaum
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Name:
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James Tananbaum, M.D.
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Title:
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President & CEO
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I have read, understand and accept this offer:
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/s/ Eric Lander
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Signature of Eric Lander
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Dated: June 1, 2001
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Page 4
INFINITY PHARMACEUTICALS, INC.
AMENDMENT NO. 1 TO
ADVISORY AGREEMENT
This Amendment No. 1, effective as of May 14, 2001 (“Amendment”), amends the Advisory Agreement dated May 14, 2001 (the
“Agreement”) by and between Infinity Pharmaceuticals (f/k/a moab, inc), a Delaware corporation (the “Company”) and Eric Lander. Capitalized terms not otherwise defined herein are defined in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Section 8 of the Agreement is hereby terminated in its entirety and a new Section 8 is hereby inserted in lieu thereof which
reads as follows:
“8. Term of Agreement. You may terminate this letter agreement at any time prior to its expiration by giving five
(5) days’ advance notice in writing. In addition, the Company may, without prejudice to any right or remedy it may have under this letter agreement, terminate this letter agreement, with or without Cause (as defined below) upon five
(5) days’ advance written notice to you.
8.1
Termination Without Cause
. In the event of termination
without cause, you will be entitled to payment for services performed and expenses paid or incurred prior to the effective date of termination.
8.2
Termination For Cause
. In the event of termination for Cause, you have the opportunity, at your request and upon 10 calendar days’ prior written notice to the Company (which shall be given no later
than 20 days after receiving notice from the Company), to meet with the Board of Directors to review and discuss the basis on which such termination for Cause was made and to dispute such determination. If, at the end of such 30 day period, the
Board of Directors determines to maintain the finding of termination for Cause, then you agree that an amount equal to 20% of the aggregate cash retainer theretofore paid to you by the Company pursuant to Section 2 above shall be repaid to the
Company in cash or certified funds within 30 days. As used herein, “Cause” shall mean a good faith determination by the Chief Executive Officer that you have failed to perform the consulting, advisory and related services for the Company
set forth in this letter agreement and have failed to remedy such failure within 10 calendar days following written notice from the Company to you notifying you of such failure.
8.3
Survival
. Upon termination or expiration of the relationship contemplated by
this letter agreement, the provisions of paragraphs 4 through 9 shall survive.”
2. The Agreement, as supplemented and modified by
this Amendment, together with the other writings referred to in the Agreement or delivered pursuant thereto which form a part thereof, contains the entire agreement among the parties with respect to the subject matter thereof and amends, restates
and supersedes all prior and contemporaneous arrangements or understandings with respect thereto.
3. Upon the effectiveness of this
Amendment, on and after the date hereof, each reference in the Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the other documents entered into in
connection with the Agreement, shall mean and be a reference to the Agreement, as amended hereby. Except as specifically amended above, the Agreement shall remain in full force and effect and is hereby ratified and confirmed.
4. This Amendment shall be governed by the laws of the Commonwealth of Massachusetts without reference to its conflicts of laws provision.
5. This Amendment may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
IN WITNESS WHEREOF, this Amendment No. 1 to Advisory Agreement is executed
as of the date first written above.
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INFINITY PHARMACEUTICALS, INC.
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By:
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Name:
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Steven H. Holtzman
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Title:
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Chief Executive Officer and President
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ADVISOR:
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Eric Lander
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2
March 1, 2002
Dear
Steve:
Reference is made to the letter agreement of May 14, 2001 between Eric Lander and moab, inc. (now Infinity Pharmaceuticals). This agreement is
attached.
This Amendment No. 2 amends the aforementioned agreement as follows:
Section 1. (Service)
Delete the bullet reading “Endorsing the Company and its products to
potential customers as well as to industry and financial analysts”
Section 4, line 5.
Insert the word “commercial” before “entity”
Section 6, line 15
Insert the word “knowingly” before “infringe”
Section 7.
After the first sentence, insert a
sentence reading:
“However, the Company will first seek a written authorization by you before such use.”
Signed:
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Infinity Pharmaceuticals
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/s/ Steve Holtzman
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By: Steve Holtzman
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Title: Chairman and CEO
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3/11/02
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Date
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/s/ Eric S. Lander
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Eric S. Lander
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March 2, 2002
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Date
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Infinity
Pharmaceuticals
December 10, 2004
Eric Lander
75R Fayerweather Street
Cambridge, MA 02138
Dear Eric:
The purpose of this letter is to amend your Advisory Agreement with Infinity Pharmaceuticals dated May 14,
2001, as has been amended over time with Amendment No. 1 and Amendments dated March 1, 2002 and September 16, 2003 (collectively known as the “Agreement”). In particular, the
Effective Date
of the Agreement,
Section 1 (Service), Section 2
(Compensation) and Section 8 (Term) are
hereby amended as follows.
Effective Date:
The
effective date of this amendment will be January 1, 2005.
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1.
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Service:
The section is deleted and replaced by the following:
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Responsibilities: Assist R&D leadership as a member of the Scientific Advisor Board (“SAB”), to build a highly productive Discovery organization and pipeline. Responsibilities will include:
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Identification of strategic and operational issues
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Advise on how to solve some issues/challenges
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Advise on development of the organization (what to build when and how)
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Assist in R&D recruitment
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Advise on target selection strategies, project strategies and plans, and on the drug discovery process itself
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Advisor to CSO as a senior and experienced veteran of and leader in the life sciences
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Please note the above is meant to be an example of the types of duties you will be responsible for and is not meant to be a complete list. From time to time you may be asked to perform additional services based on
mutual agreement of both parties of this Agreement.
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2.
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Compensation:
The section, “The Advisor agrees to perform such consulting, advisory, and related services to and for the Company as may be reasonably requested
from time to time by the Company. The Advisor agrees to devote 12 full-time days a year in the performance of such services for as long as the Agreement is in effect. During this Period, the Company shall pay the Advisor a fee of $2,083.33 a month
(equivalent to $25,000 per year). To the extent the Advisor performs services in excess of the 12 days, the Company will pay the Advisor a fee of $2,500 per day, due upon receipt of an invoice detailing out the extra day(s) incurred,
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Infinity Pharmaceuticals, Inc. 780 Memorial Drive Cambridge, MA 02139
tel: 617.453.1000 fax: 617.453.1001 www.ipi.com
Mr. Eric Lander
subject to approval by the Company”, is hereby deleted and replaced by the following:
Subject to Section 8
below, the Company shall pay the Consultant a yearly fee totaling $25,000.00 for consulting services described in Section 1. The fee will be paid in quarterly installments of $6,250 starting on March 31, 2005.
8.
Term of Agreement:
The following language is added to this section:
This Agreement shall commence on the date hereof and shall continue until December 31, 2006 (such period, as it may be extended in writing, being referred to as the “Consultation Period”), unless sooner terminated in
accordance with the provisions of Section 8.
All other sections of your Agreement are still in effect and unchanged, such as the section related to
your
Stock Option Award,
Section 8
(Term of Agreement),
etc.
Please indicate your understanding and acceptance of the foregoing terms
of your Advisory Agreement by signing the enclosed copy of this letter and returning it to me no later than January 15, 2005. After that date, the offer will expire.
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Very truly yours,
INFINITY PHARMACEUTICALS, INC.
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/s/ Steven H. Holtzman
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Steven H. Holtzman
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President and CEO
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The foregoing correctly sets forth the terms of my Advisory Agreement by Infinity Pharmaceuticals, Inc.
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/s/ Eric Lander
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Dec 29 2004
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Eric Lander
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Date
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Exhibit 10.16
INFINITY PHARMACEUTICALS, INC.
SAB CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the
“Agreement”), effective as of the 1st day of January 2005, is entered into by Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and Arnold Levine (the “Consultant”).
INTRODUCTION
The Company desires to
retain the services of the Consultant and the Consultant desires to perform certain services for the Company. In consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the parties agree as follows:
1.
Services
. The Consultant agrees
to perform such consulting, advisory and related services to and for the Company as may be reasonably requested from time to time by the Company, including, but not limited to, the services specified on
Schedule
A
to this Agreement.
The Consultant agrees to devote at least 12 days per year to the performance of such services.
2.
Term
. This Agreement shall
commence on the date hereof and shall continue until December 31, 2008 (such period, as it may be extended in writing, being referred to as the “Consultation Period”), unless sooner terminated in accordance with the provisions of
Section 4.
3.
Compensation
.
3.1
Fee
. Subject to Section 4 below, the Company shall pay the Consultant a yearly fee totaling $25,000.00 for consulting services described in Schedule A. The fee will be paid in quarterly installments of
$6,250 starting on March 31, 2005.
3.2
Stock Option Award
. In connection with the execution and delivery of
this Agreement, the Company shall grant to the Consultant a stock option pursuant to, and in accordance with the terms of, the Company’s 2001 Stock Incentive Plan, to purchase 25,000 shares of Common Stock of the Company at the then current
market value, subject to Board approval. The shares will vest in equal amounts monthly over four years starting January 31, 2005.
3.3
Reimbursement of Expenses
. The Company shall reimburse the Consultant for all reasonable and necessary expenses incurred or paid by the Consultant in connection with, or related to, the performance of his
services under this Agreement. The Consultant shall submit to the Company itemized monthly statements, in a form satisfactory to the Company, of such expenses incurred in the previous month. The Company shall pay to the Consultant all reasonable and
necessary amounts shown on each such statement within 30 days after receipt thereof.
3.4
Benefits
. The Consultant shall not be entitled to any benefits, coverages or
privileges, including, without limitation, social security, unemployment, medical or pension payments, made available to employees of the Company.
4.
Termination
. The Company may, without prejudice to any right or remedy it may have under this Agreement, terminate the Consultation Period, with or without Cause (as defined below) upon 10 days’ prior written notice to the
Consultant. Notwithstanding the foregoing, the Company may terminate the Consultation Period, effective immediately upon receipt of written “‘notice, if the Consultant breaches or threatens to breach any provision of Section 6.
4.1
Termination Without Cause
. In the event of termination without Cause, the Consultant shall be entitled to
payment for services performed and expenses paid or incurred prior to the effective date of termination. Such payments shall constitute full settlement of any and all claims of the Consultant of every description against the Company.
4.2
Termination For Cause
. In the event of termination for Cause, the Consultant shall have the opportunity, at his request and
upon 10 calendar days’ prior written notice to the Company (which shall be given no later than 20 days after receiving notice from the Company), to meet with the Chief Executive Officer to review and discuss the basis on which such termination
for Cause was made and to dispute such determination. If, at the end of such 30 day period, the Chief Executive Officer determines to maintain his finding of termination for Cause, then the Consultant agrees that an amount equal to not less than 75%
of the aggregate cash received by the Consultant, pursuant to Section 3.1, between the date this Agreement was first entered into and the date of such termination for Cause shall be repaid to the Company in cash or certified funds within 30
days. As used herein, “Cause” shall mean a good faith determination by the Chief Executive Officer that the Consultant has failed to perform the consulting, advisory and related services for the Company set forth in this Agreement and has
failed to remedy such failure within 10 calendar days following written notice from the Company to the Consultant notifying him of such failure.
5.
Cooperation
. The Consultant shall use his best efforts in the performance of his obligations under this Agreement. The Company shall provide such access to its information and property as may be reasonably required in order to
permit the Consultant to perform his obligations hereunder. The Consultant shall cooperate with the Company’s personnel, shall not interfere with the conduct of the Company’s business and shall observe all rules, regulations and security
requirements of the Company concerning the safety of persons and property.
6. Inventions and Proprietary Information.
6.1 Inventions.
(a) All inventions, discoveries, computer programs, data, technology, designs, innovations and improvements (whether or not patentable and whether or not copyrightable) (“Inventions”) related to the business of the Company which
are made, conceived, reduced to practice, created, written, designed or developed by the Consultant, solely or jointly with others and whether during normal business hours or otherwise, during the
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Consultation Period or thereafter if resulting or directly derived from Proprietary Information (as defined below), shall be the sole property of the
Company. The Consultant hereby assigns to the Company all Inventions and any and all related patents, copyrights, trademarks, trade names, and other industrial and intellectual property rights and applications therefor, in the United States and
elsewhere and appoints any officer of the Company as his duly authorized attorney to execute, file, prosecute and protect the same before any government agency, court or authority. Upon the request of the Company and at the Company’s expense,
the Consultant shall execute such further assignments, documents and other instruments as may be necessary or desirable to fully and completely assign all Inventions to the Company and to assist the Company in applying for, obtaining and enforcing
patents or copyrights or other rights in the United States and in any foreign country with respect to any Invention. The Consultant also hereby waives all claims to moral rights in any Inventions.
(b) The Consultant shall promptly disclose to the Company all Inventions and will maintain adequate and current written records (in the
form of notes, sketches, drawings and as may be specified by the Company) to document the conception and/or first actual reduction to practice of any Invention. Such written records shall be available to and remain the sole property of the Company
at all times.
6.2 Proprietary Information.
(a) The Consultant acknowledges that his relationship with the Company is one of high trust and confidence and that in the course of his
service to the Company he will have access to and contact with Proprietary Information. The Consultant agrees that he will not, during the Consultation Period or at any time thereafter, disclose to others, or use for his benefit or the benefit of
others, any Proprietary Information or Invention.
(b) For purposes of this Agreement, Proprietary Information shall mean,
by way of illustration and not limitation, all information (whether or not patentable and whether or not copyrightable) owned, possessed or used by the Company, including, without limitation, any Invention, formula, vendor information, customer
information, apparatus, equipment, trade secret, process, research, report, technical data, know-how, computer program, software, software documentation, hardware design, technology, marketing or business plan, forecast, unpublished financial
statement, budget, license, price, cost and employee list that is communicated to, learned of, developed or otherwise acquired by the Consultant in the course of his service as a consultant to the Company.
(c) The Consultant’s obligations under this Section 6.2 shall not apply to any information that (i) is or becomes known to
the general public under circumstances involving no breach by the Consultant or others of the terms of this Section 6.2, (ii) is generally disclosed to third parties by the Company without restriction on such third parties, or
(iii) is approved for release by written authorization of the Board of Directors of the Company.
(d) Upon termination
of this Agreement or at any other time upon request by the Company, the Consultant shall promptly deliver to the Company all records, files, memoranda, notes, designs, data, reports, price lists, customer lists, drawings, plans, computer
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programs, software, software documentation, sketches, laboratory and research notebooks and other documents (and all copies or reproductions of such
materials) relating to the business of the Company.
(e) The Consultant represents that his retention as a consultant with
the Company and his performance under this Agreement does not, and shall not, breach any agreement that obligates him to keep in confidence any trade secrets or confidential or proprietary information of his or of any other party or to refrain from
competing, directly or indirectly, with the business of any other party. The Consultant shall not disclose to the Company any trade secrets or confidential or proprietary information of any other party.
(f) The Consultant acknowledges that the Company from time to time may have agreements with other persons or with the United States
Government, or agencies thereof, that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements or regarding the confidential nature of such work. The Consultant agrees to be bound by
all such obligations and restrictions that are known to him and to take all action necessary to discharge the obligations of the Company under such agreements.
6.3
Remedies
. The Consultant acknowledges that any breach of the provisions of this Section 6 shall result in serious and
irreparable injury to the Company for which the Company cannot be adequately compensated by monetary damages alone. The Consultant agrees, therefore, that, in addition to any other remedy it may have, the Company shall be entitled to enforce the
specific performance of this Agreement by the Consultant and to seek both temporary and permanent injunctive relief (to the extent permitted by law) without the necessity of proving actual damages.
7.
Independent Contractor Status
. The Consultant shall perform all services under this Agreement as an “independent contractor” and not
as an employee or agent of the Company. The Consultant is not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the Company or to bind the Company in any manner.
8.
Notices
. All notices required or permitted under this Agreement shall be in writing and shall be deemed effective upon personal delivery or
upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party at the address shown below, or at such other address or addresses as either party shall designate to the other in
accordance with this Section 8.
9.
Pronouns
. Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns and pronouns shall include the plural, and vice versa.
10.
Entire Agreement
. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this
Agreement.
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11.
Amendment
. This Agreement may be amended or modified only by a written instrument executed by both
the Company and the Consultant.
12.
Governing Law
. This Agreement shall be construed, interpreted and enforced in accordance with
the laws of the Commonwealth of Massachusetts.
13.
Successors and Assigns
. This Agreement shall be binding upon, and inure to the
benefit of, both parties and their respective successors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to its assets or business, provided, however, that the obligations of the
Consultant are personal and shall not be assigned by him.
14. Miscellaneous.
14.1 No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
14.2 The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope
or substance of any section of this Agreement.
14.3 In the event that any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Thomas J. Burke
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Thomas J. Burke
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Title:
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Controller
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CONSULTANT
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Signature of Consultant
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Printed Name of Consultant
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Address:
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SCHEDULE A
Services
Responsibilities: Assist R&D leadership as a member of the Scientific Advisor Board
(“SAB”), to build a highly productive Discovery organization and pipeline. Responsibilities will include:
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•
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Identification of strategic and operational issues
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•
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Advise on how to solve some issues/challenges
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Advise on development of the organization (what to build when and how)
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•
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Assist in R&D recruitment
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Advise on target selection strategies, project strategies and plans, and on the drug discovery process itself
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•
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Advisor to CSO as a senior and experienced veteran of and leader in the life sciences
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Please note the above is meant to be an example of the types of duties you will be responsible for and is not meant to be a complete list. From time to time you may be asked to perform additional services based
on mutual agreement of both parties of this Agreement.
Exhibit 10.17
INFINITY PHARMACEUTICALS, INC.
SAB CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the
“Agreement”), effective as of the 1st day of January 2005, is entered into by Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and Vicki Sato (the “Consultant”).
INTRODUCTION
The Company desires to
retain the services of the Consultant and the Consultant desires to perform certain services for the Company. In consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the parties agree as follows:
1.
Services
. The Consultant agrees
to perform such consulting, advisory and related services to and for the Company as may be reasonably requested from time to time by the Company, including, but not limited to, the services specified on
Schedule
A to this Agreement. The
Consultant agrees to devote at least 12 days per year to the performance of such services.
2.
Term
. This Agreement shall commence
on the date hereof and shall continue until December 31, 2008 (such period, as it may be extended in writing, being referred to as the “Consultation Period”), unless sooner terminated in accordance with the provisions of
Section 4.
3.
Compensation
.
3.1
Fee
. Subject to Section 4 below, the Company shall pay the Consultant a yearly fee totaling $25,000.00 for consulting services described in Schedule A. The fee will be paid in quarterly installments of
$6,250 starting on March 31, 2005.
3.2
Stock Option Award
. In connection with the execution and delivery of
this Agreement, the Company shall grant to the Consultant a stock option pursuant to, and in accordance with the terms of, the Company’s 2001 Stock Incentive Plan, to purchase 25,000 shares of Common Stock of the Company at the then current
market value, subject to Board approval. The shares will vest in equal amounts monthly over four years starting January 31, 2005.
3.3
Reimbursement of Expenses
. The Company shall reimburse the Consultant for all reasonable and necessary expenses incurred or paid by the Consultant in connection with, or related to, the performance of his
services under this Agreement. The Consultant shall submit to the Company itemized monthly statements, in a form satisfactory to the Company, of such expenses incurred in the previous month. The Company shall pay to the Consultant all reasonable and
necessary amounts shown on each such statement within 30 days after receipt thereof.
3.4
Benefits
. The Consultant shall not be entitled to any benefits, coverages or
privileges, including, without limitation, social security, unemployment, medical or pension payments, made available to employees of the Company.
4.
Termination
. The Company may, without prejudice to any right or remedy it may have under this Agreement, terminate the Consultation Period, with or without Cause (as defined below) upon 10 days’ prior written notice to the
Consultant. Notwithstanding the foregoing, the Company may terminate the Consultation Period, effective immediately upon receipt of written notice, if the Consultant breaches or threatens to breach any provision of Section 6.
4.1
Termination Without Cause
. In the event of termination without Cause, the Consultant shall be entitled to payment for services
performed and expenses paid or incurred prior to the effective date of termination. Such payments shall constitute full settlement of any and all claims of the Consultant of every description against the Company.
4.2
Termination For Cause
. In the event of termination for Cause, the Consultant shall have the opportunity, at his request and
upon 10 calendar days’ prior written notice to the Company (which shall be given no later than 20 days after receiving notice from the Company), to meet with the Chief Executive Officer to review and discuss the basis on which such termination
for Cause was made and to dispute such determination. If, at the end of such 30 day period, the Chief Executive Officer determines to maintain his finding of termination for Cause, then the Consultant agrees that an amount equal to not less than 75%
of the aggregate cash received by the Consultant, pursuant to Section 3.1, between the date this Agreement was first entered into and the date of such termination for Cause shall be repaid to the Company in cash or certified funds within 30
days. As used herein, “Cause” shall mean a good faith determination by the Chief Executive Officer that the Consultant has failed to perform the consulting, advisory and related services for the Company set forth in this Agreement and has
failed to remedy such failure within 10 calendar days following written notice from the Company to the Consultant notifying him of such failure.
5.
Cooperation
. The Consultant shall use his best efforts in the performance of his obligations under this Agreement. The Company shall provide such access to its information and property as may be reasonably required in order to
permit the Consultant to perform his obligations hereunder. The Consultant shall cooperate with the Company’s personnel, shall not interfere with the conduct of the Company’s business and shall observe all rules, regulations and security
requirements of the Company concerning the safety of persons and property.
6. Inventions and Proprietary Information.
6.1 Inventions.
(a) All inventions, discoveries, computer programs, data, technology, designs, innovations and improvements (whether or not patentable and whether or not copyrightable) (“Inventions”) related to the business of the Company which
are made, conceived, reduced to practice, created, written, designed or developed by the Consultant, solely or jointly with others and whether during normal business hours or otherwise, during the
- 2 -
Consultation Period or thereafter if resulting or directly derived from Proprietary Information (as defined below), shall be the sole property of the
Company. The Consultant hereby assigns to the Company all Inventions and any and all related patents, copyrights, trademarks, trade names, and other industrial and intellectual property rights and applications therefor, in the United States and
elsewhere and appoints any officer of the Company as his duly authorized attorney to execute, file, prosecute and protect the same before any government agency, court or authority. Upon the request of the Company and at the Company’s expense,
the Consultant shall execute such further assignments, documents and other instruments as may be necessary or desirable to fully and completely assign all Inventions to the Company and to assist the Company in applying for, obtaining and enforcing
patents or copyrights or other rights in the United States and in any foreign country with respect to any Invention. The Consultant also hereby waives all claims to moral rights in any Inventions.
(b) The Consultant shall promptly disclose to the Company all Inventions and will maintain adequate and current written records (in the
form of notes, sketches, drawings and as may be specified by the Company) to document the conception and/or first actual reduction to practice of any Invention. Such written records shall be available to and remain the sole property of the Company
at all times.
6.2 Proprietary Information.
(a) The Consultant acknowledges that his relationship with the Company is one of high trust and confidence and that in the course of his
service to the Company he will have access to and contact with Proprietary Information. The Consultant agrees that he will not, during the Consultation Period or at any time thereafter, disclose to others, or use for his benefit or the benefit of
others, any Proprietary Information or Invention.
(b) For purposes of this Agreement, Proprietary Information shall mean,
by way of illustration and not limitation, all information (whether or not patentable and whether or not copyrightable) owned, possessed or used by the Company, including, without limitation, any Invention, formula, vendor information, customer
information, apparatus, equipment, trade secret, process, research, report, technical data, know-how, computer program, software, software documentation, hardware design, technology, marketing or business plan, forecast, unpublished financial
statement, budget, license, price, cost and employee list that is communicated to, learned of, developed or otherwise acquired by the Consultant in the course of his service as a consultant to the Company.
(c) The Consultant’s obligations under this Section 6.2 shall not apply to any information that (i) is or becomes known to
the general public under circumstances involving no breach by the Consultant or others of the terms of this Section 6.2, (ii) is generally disclosed to third parties by the Company without restriction on such third parties, or
(iii) is approved for release by written authorization of the Board of Directors of the Company.
(d) Upon termination
of this Agreement or at any other time upon request by the Company, the Consultant shall promptly deliver to the Company all records, files, memoranda, notes, designs, data, reports, price lists, customer lists, drawings, plans, computer
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programs, software, software documentation, sketches, laboratory and research notebooks and other documents (and all copies or reproductions of such
materials) relating to the business of the Company.
(e) The Consultant represents that his retention as a consultant with
the Company and his performance under this Agreement does not, and shall not, breach any agreement that obligates him to keep in confidence any trade secrets or confidential or proprietary information of his or of any other party or to refrain from
competing, directly or indirectly, with the business of any other party. The Consultant shall not disclose to the Company any trade secrets or confidential or proprietary information of any other party.
(f) The Consultant acknowledges that the Company from time to time may have agreements with other persons or with the United States
Government, or agencies thereof, that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements or regarding the confidential nature of such work. The Consultant agrees to be bound by
all such obligations and restrictions that are known to him and to take all action necessary to discharge the obligations of the Company under such agreements.
6.3
Remedies
. The Consultant acknowledges that any breach of the provisions of this Section 6 shall result in serious and
irreparable injury to the Company for which the Company cannot be adequately compensated by monetary damages alone. The Consultant agrees, therefore, that, in addition to any other remedy it may have, the Company shall be entitled to enforce the
specific performance of this Agreement by the Consultant and to seek both temporary and permanent injunctive relief (to the extent permitted by law) without the necessity of proving actual damages.
7.
Independent Contractor Status
. The Consultant shall perform all services under this Agreement as an “independent contractor” and not
as an employee or agent of the Company. The Consultant is not authorized to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the Company or to bind the Company in any manner.
8.
Notices
. All notices required or permitted under this Agreement shall be in writing and shall be deemed effective upon personal delivery or
upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party at the address shown below, or at such other address or addresses as either party shall designate to the other in
accordance with this Section 8.
9.
Pronouns
. Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns and pronouns shall include the plural, and vice versa.
10.
Entire Agreement
. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this
Agreement.
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11.
Amendment
. This Agreement may be amended or modified only by a written instrument executed by both
the Company and the Consultant.
12.
Governing Law
. This Agreement shall be construed, interpreted and enforced in accordance with
the laws of the Commonwealth of Massachusetts.
13.
Successors and Assigns
. This Agreement shall be binding upon, and inure to the
benefit of, both parties and their respective successors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to its assets or business, provided, however, that the obligations of the
Consultant are personal and shall not be assigned by him.
14. Miscellaneous.
14.1 No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
14.2 The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope
or substance of any section of this Agreement.
14.3 In the event that any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Thomas J. Burke
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Thomas J. Burke
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Title:
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Controller
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CONSULTANT
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/s/ Vicki L. Sato
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Signature of Consultant
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Vicki L. Sato
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Printed Name of Consultant
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Address:
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43 Larch Rd
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Cambridge, MA 02138
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SCHEDULE A
Services
Responsibilities: Assist R&D leadership as a member of the Scientific Advisor Board
(“SAB”), to build a highly productive Discovery organization and pipeline. Responsibilities will include:
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•
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Identification of strategic and operational issues
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•
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Advise on how to solve some issues/challenges
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•
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|
Advise on development of the organization (what to build when and how)
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|
•
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|
Assist in R&D recruitment
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|
•
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Advise on target selection strategies, project strategies and plans, and on the drug discovery process itself
|
|
|
•
|
|
Advisor to CSO as a senior and experienced veteran of and leader in the life sciences
|
Please note the above is meant to be an example of the types of duties you will be responsible for and is not meant to be a complete list. From time to time you may be asked to perform additional services based
on mutual agreement of both parties of this Agreement.
Exhibit 10.18
INFINITY PHARMACEUTICALS, INC.
2001 STOCK INCENTIVE PLAN
1.
Purpose
The
purpose of this 2001 Stock Incentive Plan (the “Plan”) of Infinity Pharmaceuticals, Inc., (f/k/a moab, inc.), a Delaware corporation (the “Company”), is to advance the interests of the Company’s stockholders by enhancing the
Company’s ability to attract, retain and motivate persons who make (or are expected to make) important contributions to the Company by providing such persons with equity ownership opportunities and performance-based incentives and thereby
better aligning the interests of such persons with those of the Company’s stockholders. Except where the context otherwise requires, the term “Company” shall include any of the Company’s present or future parent or subsidiary
corporations as defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”) and any other business venture (including, without limitation, joint
venture or limited liability company) in which the Company has a significant interest, as determined by the Board of Directors of the Company (the “Board”).
2.
Eligibility
All
of the Company’s employees, officers, directors, consultants and advisors (and any individuals who have accepted an offer for employment) are eligible to be granted options, restricted stock awards, or other stock-based awards (each, an
“Award”) under the Plan. Each person who has been granted an Award under the Plan shall be deemed a “Participant”.
3.
Administration and Delegation
(a)
Administration by Board of Directors
. The Plan will be
administered by the Board. The Board shall have authority to grant Awards and to adopt, amend and repeal such administrative rules, guidelines and practices relating to the Plan as it shall deem advisable. The Board may correct any defect, supply
any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency. All decisions by the Board shall
be made in the Board’s sole discretion and shall be final and binding on all persons having or claiming any interest in the Plan or in any Award. No director or person acting pursuant to the authority delegated by the Board shall be liable for
any action or determination relating to or under the Plan made in good faith.
(b)
Appointment of Committees
. To the extent
permitted by applicable law, the Board may delegate any or all of its powers under the Plan to one or more committees or subcommittees of the Board (a “Committee”). All references in the Plan to the “Board” shall mean the Board
or a Committee of the Board to the extent that the Board’s powers or authority under the Plan have been delegated to such Committee.
4.
Stock Available for Awards
. Subject to adjustment under Section 8, Awards may be made under the Plan for
up to 2,425,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”). If any Award expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part
(including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results in any Common Stock not being issued, the unused Common
Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any limitations under the Code. Shares issued under the Plan may
consist in whole or in part of authorized but unissued shares or treasury shares.
5.
Stock Options
(a)
General
. The Board may grant options to purchase Common Stock (each, an “Option”) and determine the number of shares of Common Stock
to be covered by each Option, the exercise price of each Option and the conditions and limitations applicable to the exercise of each Option, including conditions relating to applicable federal or state securities laws, as it considers necessary or
advisable. An Option which is not intended to be an Incentive Stock Option (as hereinafter defined) shall be designated a “Nonstatutory Stock Option”.
(b)
Incentive Stock Options
. An Option that the Board intends to be an “incentive stock option” as defined in Section 422 of the Code (an “Incentive Stock Option”) shall only be granted
to employees of the Company and shall be subject to and shall be construed consistently with the requirements of Section 422 of the Code. The Company shall have no liability to a Participant, or any other party, if an Option (or any part
thereof) which is intended to be an Incentive Stock Option is not an Incentive Stock Option.
(c)
Exercise Price
. The Board shall
establish the exercise price at the time each Option is granted and specify it in the applicable option agreement.
(d)
Duration of
Options
. Each Option shall be exercisable at such times and subject to such terms and conditions as the Board may specify in the applicable option agreement.
(e)
Exercise of Option
. Options may be exercised by delivery to the Company of a written notice of exercise signed by the proper person or by any other form of notice (including electronic notice) approved by
the Board together with payment in full as specified in Section 5(f) for the number of shares for which the Option is exercised.
(f)
Payment Upon Exercise.
Common Stock purchased upon the exercise of an Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may,
in its sole discretion, otherwise provide in an option agreement, by (i) delivery of an irrevocable and unconditional undertaking by a
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creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price and any required tax withholding or (ii) delivery by
the Participant to the Company of a copy of irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price and any required tax withholding;
(3) when the Common Stock is registered under the Securities Exchange Act of 1934 (the “Exchange Act”), by delivery of shares of
Common Stock owned by the Participant valued at their fair market value as determined by (or in a manner approved by) the Board in good faith (“Fair Market Value”), provided (i) such method of payment is then permitted under
applicable law and (ii) such Common Stock, if acquired directly from the Company, was owned by the Participant at least six months prior to such delivery;
(4) to the extent permitted by the Board, in its sole discretion by (i) delivery of a promissory note of the Participant to the
Company on terms determined by the Board, or (ii) payment of such other lawful consideration as the Board may determine; or
(5) by any combination of the above permitted forms of payment.
(g)
Substitute Options
. In connection with a merger or
consolidation of an entity with the Company or the acquisition by the Company of property or stock of an entity, the Board may grant Options in substitution for any options or other stock or stock-based awards granted by such entity or an affiliate
thereof. Substitute Options may be granted on such terms as the Board deems appropriate in the circumstances, notwithstanding any limitations on Options contained in the other sections of this Section 5 or in Section 2.
6.
Restricted Stock
(a)
Grants
. The Board may grant Awards entitling recipients to acquire shares of Common Stock, subject to the right of the Company to repurchase all or part of such shares at their issue price or other stated or formula price (or to
require forfeiture of such shares if issued at no cost) from the recipient in the event that conditions specified by the Board in the applicable Award are not satisfied prior to the end of the applicable restriction period or periods established by
the Board for such Award (each, a “Restricted Stock Award”).
(b)
Terms and Conditions
. The Board shall determine the
terms and conditions of any such Restricted Stock Award, including the conditions for repurchase (or forfeiture) and the issue price, if any.
(c)
Stock Certificates
. Any stock certificates issued in respect of a Restricted Stock Award shall be registered in the name of the Participant and, unless otherwise determined by the Board, deposited by the Participant, together
with a stock power endorsed in blank, with the Company (or its designee). At the expiration of the applicable restriction periods, the Company (or such designee) shall deliver the certificates no longer subject to such restrictions to the
Participant or if the Participant has died, to the beneficiary designated, in a manner determined
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by the Board, by a Participant to receive amounts due or exercise rights of the Participant in the event of the Participant’s death (the
“Designated Beneficiary”). In the absence of an effective designation by a Participant, Designated Beneficiary shall mean the Participant’s estate.
7.
Other Stock-Based Awards
The Board shall have the right to grant other Awards based upon the Common Stock having such terms and conditions as the Board may determine, including the grant of shares based upon certain conditions, the grant of securities convertible
into Common Stock and the grant of stock appreciation rights.
8.
Adjustments for Changes in Common Stock and Certain
Other Events
(a)
Changes in Capitalization
. In the event of any stock split, reverse stock split, stock dividend,
recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any distribution to holders of Common Stock other than a normal cash dividend, (i) the number and class of
securities available under this Plan, (ii) the number and class of securities and exercise price per share subject to each outstanding Option, (iii) the repurchase price per share subject to each outstanding Restricted Stock Award, and
(iv) the terms of each other outstanding Award shall be appropriately adjusted by the Company (or substituted Awards may be made, if applicable) to the extent the Board shall determine, in good faith, that such an adjustment (or substitution)
is necessary and appropriate. If this Section 8(a) applies and Section 8(c) also applies to any event, Section 8(c) shall be applicable to such event, and this Section 8(a) shall not be applicable.
(b)
Liquidation or Dissolution
. In the event of a proposed liquidation or dissolution of the Company, the Board shall upon written notice to the
Participants provide that all then unexercised Options will (i) become exercisable in full as of a specified time at least 10 business days prior to the effective date of such liquidation or dissolution and (ii) terminate effective upon
such liquidation or dissolution, except to the extent exercised before such effective date. The Board may specify the effect of a liquidation or dissolution on any Restricted Stock Award or other Award granted under the Plan at the time of the grant
of such Award.
(c)
Reorganization Events
(1)
Definition
. A “Reorganization Event” shall mean: (a) any merger or consolidation of the Company with or into
another entity as a result of which all of the Common Stock of the Company is converted into or exchanged for the right to receive cash, securities or other property or (b) any exchange of all of the Common Stock of the Company for cash,
securities or other property pursuant to a share exchange transaction.
(2)
Consequences of a Reorganization Event on
Options
. Upon the occurrence of a Reorganization Event, or the execution by the Company of any agreement with respect to a Reorganization Event, except as the Board may otherwise provide in the written instrument evidencing any Option, the Board
shall provide that all outstanding Options shall be
4
assumed, or equivalent options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof). For purposes hereof, an Option
shall be considered to be assumed if, following consummation of the Reorganization Event, the Option confers the right to purchase, for each share of Common Stock subject to the Option immediately prior to the consummation of the Reorganization
Event, the consideration (whether cash, securities or other property) received as a result of the Reorganization Event by holders of Common Stock for each share of Common Stock held immediately prior to the consummation of the Reorganization Event
(and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares of Common Stock); provided, however, that if the consideration received as a result of the Reorganization
Event is not solely common stock of the acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation, provide for the consideration to be received upon the exercise of
Options to consist solely of common stock of the acquiring or succeeding corporation (or an affiliate thereof) equivalent in fair market value to the per share consideration received by holders of outstanding shares of Common Stock as a result of
the Reorganization Event.
Notwithstanding the foregoing, if the acquiring or succeeding corporation (or an affiliate thereof) does not
agree to assume, or substitute for, such Options, then the Board shall, upon written notice to the Participants, provide that all then unexercised Options will become exercisable in full as of a specified time prior to the Reorganization Event and
will terminate immediately prior to the consummation of such Reorganization Event, except to the extent exercised by the Participants before the consummation of such Reorganization Event; provided, however, that in the event of a Reorganization
Event under the terms of which holders of Common Stock will receive upon consummation thereof a cash payment for each share of Common Stock surrendered pursuant to such Reorganization Event (the “Acquisition Price”), then the Board may
instead provide that all outstanding Options shall terminate upon consummation of such Reorganization Event and that each Participant shall receive, in exchange therefor, a cash payment equal to the amount (if any) by which (A) the Acquisition
Price multiplied by the number of shares of Common Stock subject to such outstanding Options (whether or not then exercisable), exceeds (B) the aggregate exercise price of such Options. To the extent all or any portion of an Option becomes
exercisable solely as a result of the first sentence of this paragraph, upon exercise of such Option the Participant shall receive shares subject to a right of repurchase by the Company or its successor at the Option exercise price. Such repurchase
right (1) shall lapse at the same rate as the Option would have become exercisable under its terms and (2) shall not apply to any shares subject to the Option that were exercisable under its terms without regard to the first sentence of
this paragraph.
If any Option provides that it may be exercised for shares of Common Stock which remain subject to a repurchase right in
favor of the Company, upon the occurrence of a Reorganization Event, any shares of restricted stock received upon exercise of such Option shall be treated in accordance with Section 8(c)(3) as if they were a Restricted Stock Award.
(3)
Consequences of a Reorganization Event on Restricted Stock Awards
. Upon the occurrence of a Reorganization Event, except as
the Board may otherwise provide in
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any written instrument evidencing any Restricted Stock Award, the repurchase and other rights of the Company under each outstanding Restricted Stock Award
shall inure to the benefit of the Company’s successor and shall apply to the cash, securities or other property which the Common Stock was converted into or exchanged for pursuant to such Reorganization Event in the same manner and to the same
extent as they applied to the Common Stock subject to such Restricted Stock Award.
(4)
Consequences of a Reorganization
Event on Other Awards
. The Board shall specify the effect of a Reorganization Event on any other Award granted under the Plan at the time of the grant of such Award.
9.
General Provisions Applicable to Awards
(a)
Transferability of Awards
. Except as the Board may otherwise determine or provide in an Award, Awards shall not be sold, assigned, transferred, pledged or otherwise encumbered by the person to whom they are
granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the life of the Participant, shall be exercisable only by the Participant. References to a Participant, to the extent relevant in
the context,/ shall include references to authorized transferees.
(b)
Documentation
. Each Award shall be evidenced in such form
(written, electronic or otherwise) as the Board shall determine. Such written instrument may be in the form of an agreement signed by the Company and the Participant or a written confirming memorandum to the Participant from the Company. Each Award
may contain terms and conditions in addition to those set forth in the Plan.
(c)
Board Discretion
. Except as otherwise provided by
the Plan, each Award may be made alone or in addition or in relation to any other Award. The terms of each Award need not be identical, and the Board need not treat Participants uniformly.
(d)
Termination of Status
. The Board shall determine the effect on an Award of the disability, death, retirement, authorized leave of absence or
other change in the employment or other status of a Participant and the extent to which, and the period during which, the Participant, the Participant’s legal representative, conservator, guardian or Designated Beneficiary may exercise rights
under the Award.
(e)
Withholding
. Each Participant shall pay to the Company, or make provision satisfactory to the Board for
payment of, any taxes required by law to be withheld in connection with Awards to such Participant no later than the date of the event creating the tax liability. Except as the Board may otherwise provide in an Award, when the Common Stock is
registered under the Exchange Act, Participants may satisfy such tax obligations in whole or in part by delivery of shares of Common Stock, including shares retained from the Award creating the tax obligation, valued at their Fair Market Value;
provided, however, that the total tax withholding where stock is being used to satisfy such tax obligations cannot exceed the Company’s minimum statutory withholding obligations (based on minimum statutory withholding rates for federal and
6
state tax purposes, including payroll taxes, that are applicable to such supplemental taxable income). The Company may, to the extent permitted by law,
deduct any such tax obligations from any payment of any kind otherwise due to a Participant.
(f)
Amendment of Award
. The Board may
amend, modify or terminate any outstanding Award, including but not limited to, substituting therefor another Award of the same or a different type, changing the date of exercise or realization, and converting an Incentive Stock Option to a
Nonstatutory Stock Option, provided that the Participant’s consent to such action shall be required unless the Board determines that the action, taking into account any related action, would not materially and adversely affect the Participant.
(g)
Conditions on Delivery of Stock
. The Company will not be obligated to deliver any shares of Common Stock pursuant to the Plan
or to remove restrictions from shares previously delivered under the Plan until (i) all conditions of the Award have been met or removed to the satisfaction of the Company, (ii) in the opinion of the Company’s counsel, all other legal
matters in connection with the issuance and delivery of such shares have been satisfied, including any applicable securities laws and any applicable stock exchange or stock market rules and regulations, and (iii) the Participant has executed
and delivered to the Company such representations or agreements as the Company may consider appropriate to satisfy the requirements of any applicable laws, rules or regulations.
(h)
Acceleration
. The Board may at any time provide that any Award shall become immediately exercisable in full or in part, free of some or all
restrictions or conditions, or otherwise realizable in full or in part, as the case may be.
10.
Miscellaneous
(a)
No Right To Employment or Other Status
. No person shall have any claim or right to be granted an Award, and the grant of an
Award shall not be construed as giving a Participant the right to continued employment or any other relationship with the Company. The Company expressly reserves the right at any time to dismiss or otherwise terminate its relationship with a
Participant free from any liability or claim under the Plan, except as expressly provided in the applicable Award.
(b)
No Rights As
Stockholder
. Subject to the provisions of the applicable Award, no Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed with respect to an Award until becoming
the record holder of such shares. Notwithstanding the foregoing, in the event the Company effects a split of the Common Stock by means of a stock dividend and the exercise price of and the number of shares subject to such Option are adjusted as of
the date of the distribution of the dividend (rather than as of the record date for such dividend), then an optionee who exercises an Option between the record date and the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of business on the record date for such stock
dividend.
7
(c)
Effective Date and Term of Plan
. The Plan shall become effective on the date on which it is
adopted by the Board. No Awards shall be granted under the Plan after the completion of ten years from the earlier of (i) the date on which the Plan was adopted by the Board or (ii) the date the Plan was approved by the Company’s
stockholders, but Awards previously granted may extend beyond that date.
(d)
Amendment of Plan
. The Board may amend, suspend or
terminate the Plan or any portion thereof at any time.
(e)
Authorization of Sub-Plans
. The Board may from time to time establish
one or more sub-plans under the Plan for purposes of satisfying applicable blue sky, securities or tax laws of various jurisdictions. The Board shall establish such sub-plans by adopting supplements to this Plan containing (i) such limitations
on the Board’s discretion under the Plan as the Board deems necessary or desirable or (ii) such additional terms and conditions not otherwise inconsistent with the Plan as the Board shall deem necessary or desirable. All supplements
adopted by the Board shall be deemed to be part of the Plan, but each supplement shall apply only to Participants within the affected jurisdiction and the Company shall not be required to provide copies of any supplement to Participants in any
jurisdiction which is not the subject of such supplement.
(f)
Governing Law
. The provisions of the Plan and all Awards made
hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to any applicable conflicts of law.
8
AMENDMENT NO. 1 TO
2001 STOCK INCENTIVE PLAN
OF
INFINITY PHARMACEUTICALS, INC.
The 2001 Stock Incentive Plan of Infinity Pharmaceuticals, Inc.
be and hereby is amended by deleting Section 4 thereof which reads as follows:
“
Stock Available for Awards
. Subject to
adjustment under Section 8, Awards may be made under the Plan for up to 2,425,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”). If an Award expires or is terminated, surrendered or canceled
without having been fully exercised or is forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase
right) or results in any Common Stock not being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined),
to any limitations under the Code. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares.”
and substituting in lieu thereof the following:
“
Stock Available for Awards
. Subject to adjustment under
Section 8, Awards may be made under the Plan for up to 6,500,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”). If an Award expires or is terminated, surrendered or canceled without having
been fully exercised or is forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results
in any Common Stock not being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any
limitations under the Code. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares.”
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Adopted by the Board of Directors
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on December 14, 2001
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Adopted by the Stockholders on
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December 17, 2001
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AMENDMENT NO. 2 TO
2001 STOCK INCENTIVE PLAN
OF
INFINITY PHARMACEUTICALS, INC.
The 2001 Stock Incentive Plan of Infinity Pharmaceuticals, Inc.
be and hereby is amended by deleting Section 4 thereof which reads as follows:
“
Stock Available for Awards
. Subject to
adjustment under Section 8, Awards may be made under the Plan for up to 6,500,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”). If an Award expires or is terminated, surrendered or canceled
without having been fully exercised or is forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase
right) or results in any Common Stock not being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined),
to any limitations under the Code. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares. “
and substituting in lieu thereof the following:
“
Stock Available for Awards
. Subject to adjustment under
Section 8, Awards may be made under the Plan for up to 7,500,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”). If an Award expires or is terminated, surrendered or canceled without having
been fully exercised or is forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results
in any Common Stock not being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any
limitations under the Code. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares. “
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Adopted by the Board of Directors on
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April 9, 2003
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AMENDMENT NO. 3 TO
2001 STOCK INCENTIVE PLAN
OF
INFINITY PHARMACEUTICALS, INC.
The 2001 Stock Incentive Plan of Infinity Pharmaceuticals,
Inc., as amended, be and hereby is further amended by deleting Section 4 thereof which reads as follows:
“
Stock Available for
Awards
. Subject to adjustment under Section 8, Awards may be made under the Plan for up to 7,500,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”). If an Award expires or is terminated,
surrendered or canceled without having been fully exercised or is forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a
contractual repurchase right) or results in any Common Stock not being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options
(as hereinafter defined), to any limitations under the Code. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares.”
and substituting in lieu thereof the following:
“
Stock Available for Awards
. Subject to adjustment under Section 8, Awards may be made under the Plan for up to 8,000,000 shares of common stock, $.0001 par value per share, of the Company (the
“Common Stock”). If an Award expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being
repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results in any Common Stock not being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards
under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any limitations under the Code. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury
shares.”
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Adopted by the Board of Directors on
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September 18, 2003
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Approved by the Stockholders on
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December 1, 2003
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AMENDMENT NO. 4 TO
2001 STOCK INCENTIVE PLAN
OF
INFINITY PHARMACEUTICALS, INC.
The 2001 Stock Incentive Plan of Infinity Pharmaceuticals,
Inc., as amended, be and hereby is further amended by deleting Section 4 thereof which reads as follows:
“
Stock Available for
Awards
. Subject to adjustment under Section 8, Awards may be made under the Plan for up to 8,000,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”). If an Award expires or is terminated,
surrendered or canceled without having been fully exercised or is forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a
contractual repurchase right) or results in any Common Stock not being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options
(as hereinafter defined), to any limitations under the Code. Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares.”
and substituting in lieu thereof the following:
“
Stock Available for Awards
. Subject to
adjustment under Section 8, Awards may be made under the Plan for up to (i) 9,500,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”), minus (ii) the number of shares as to which
Awards have previously been made or shares issued under the Company’s 2003 California Only Stock Incentive Plan. If an Award expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in
part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results in any Common Stock not being issued, the unused
Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any limitations under the Code. Shares issued under the Plan
may consist in whole or in part of authorized but unissued shares or treasury shares.”
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Adopted by the Board of Directors
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on January 28, 2004
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Adopted by the Stockholders on
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February 5, 2004
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AMENDMENT NO. 5 TO
2001 STOCK INCENTIVE PLAN
OF
INFINITY PHARMACEUTICALS, INC.
The 2001 Stock Incentive Plan of Infinity Pharmaceuticals,
Inc., as amended, be and hereby is further amended by deleting Section 4 thereof which reads as follows:
“
Stock Available for
Awards
. Subject to adjustment under Section 8, Awards may be made under the Plan for up to (i) 9,500,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”), minus (ii) the number of
shares as to which Awards have previously been made or shares issued under the Company’s 2003 California Only Stock Incentive Plan. If an Award expires or is terminated, surrendered or canceled without having been fully exercised or is
forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results in any Common Stock not
being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any limitations under the Code. Shares
issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares.”
and substituting in lieu thereof the
following:
“
Stock Available for Awards
. Subject to adjustment under Section 8, Awards may be made under the Plan for up to
(i) 12,800,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”), minus (ii) the number of shares as to which Awards are or have previously been made, or shares are or have previously been
issued, under the Company’s 2003 California Only Stock Incentive Plan. If an Award expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part (including as the result of shares of
Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results in any Common Stock not being issued, the unused Common Stock covered by such Award shall again
be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any limitations under the Code. Shares issued under the Plan may consist in whole or in part of authorized but
unissued shares or treasury shares.”
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Adopted by the Board of Directors
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on January 26, 2005
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Adopted by the Stockholders
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on March 24, 2005
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AMENDMENT NO. 6 TO
2001 STOCK INCENTIVE PLAN
OF
INFINITY PHARMACEUTICALS, INC.
The 2001 Stock Incentive Plan of Infinity Pharmaceuticals,
Inc., as amended, be and hereby is further amended by deleting Section 4 thereof which reads as follows:
“
Stock Available for
Awards
. Subject to adjustment under Section 8, Awards may be made under the Plan for up to (i) 12,800,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”), minus (ii) the number of
shares as to which Awards have previously been made or shares issued under the Company’s 2003 California Only Stock Incentive Plan. If an Award expires or is terminated, surrendered or canceled without having been fully exercised or is
forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results in any Common Stock not
being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any limitations under the Code. Shares
issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares.”
and substituting in lieu thereof the
following:
“
Stock Available for Awards
. Subject to adjustment under Section 8, Awards may be made under the Plan for up to
(i) 14,300,000 shares of common stock, $.0001 par value per share, of the Company (the “Common Stock”), minus (ii) the number of shares as to which Awards are or have previously been made, or shares are or have previously been
issued, under the Company’s 2003 California Only Stock Incentive Plan. If an Award expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part (including as the result of shares of
Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results in any Common Stock not being issued, the unused Common Stock covered by such Award shall again
be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options (as hereinafter defined), to any limitations under the Code. Shares issued under the Plan may consist in whole or in part of authorized but
unissued shares or treasury shares.”
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Adopted by the Board of Directors on
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January 26, 2006
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Adopted by the Stockholders on
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February 6, 2006
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Exhibit 10.19
Attached hereto is a form of restricted stock agreement by and among the Registrant and each of the below-named persons. The restricted stock agreement by and among the Registrant and each of the below-named persons is substantially
identical in all material respects to such form, except with respect to the details that are set forth below.
The number of shares and the exercise or
purchase price of each of the awards listed in the table below is presented after giving effect to the business combination between Discovery Partners International, Inc. (“Discovery Partners”) and Infinity Pharmaceuticals, Inc.
(“IPI”) in accordance with the terms of the Agreement and Plan of Merger among Discovery Partners, Darwin Corp, a wholly owned subsidiary of Discovery Partners (“Darwin Corp.”), and IPI dated as of April 11, 2006, pursuant
to which IPI merged with and into Darwin Corp. and became a wholly owned subsidiary of Discovery Partners and Discovery Partners changed its name to Infinity Pharmaceuticals, Inc. In addition, the number of shares and the exercise or purchase price
of each of the awards listed in the table below is presented after giving effect to the Registrant’s 1-for-4 reverse stock split, which became effective on September 12, 2006.
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Date of
Agreement
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Name
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Number of Shares
Subject to Award
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Exercise/
Purchase Price
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Vesting
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3/1/05
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D. Ronald Daniel
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2,210
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$2.04
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(1)
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8/14/01
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Eric Lander
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77,359
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$0.68
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(2)
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3/1/05
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Eric Lander
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2,210
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$2.04
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(1)
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3/1/05
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Arnold Levine
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2,210
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$2.04
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(1)
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3/1/05
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Arnold Levine
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5,525
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$2.04
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(3)
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3/1/05
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Viko Sato
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11,051
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$0.68
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(1)
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3/1/05
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Franklin Moss
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2,210
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$2.04
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(1)
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(1) Each of these awards is currently fully vested as
of the date hereof. In accordance with terms of each such award, the underlying share were initially subject to a right of repurchase by the Registrant, which right lapsed, or “vested” as to the shares underlying the award in time-based
installments.
(2) Subject to a right of repurchase, which right lapses, or “vests” as to a portion of the shares monthly for a period of five
years from the date of grant.
(3) Subject to a right of repurchase, which right lapses, or “vests” in equal monthly installments over four
years, beginning on March 31, 2005.
RESTRICTED STOCK AGREEMENT
AGREEMENT made this th day of 200 , between
Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and (the “Participant”).
For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.
Purchase of Shares
. The Company shall issue and sell to the Participant and the Participant shall purchase from the Company, subject to the
terms and conditions set forth in this Agreement and in the Company’s 2001 Stock Incentive Plan (the “Plan”), an aggregate of shares (the “Shares”) of
common stock, $.0001 par value per share (“Common Stock”) of the Company at a price of $ per share (the “Option Price”), purchasable as set forth in and subject to the terms and
conditions of this Agreement and the Plan.
The aggregate par value of the Shares shall be paid by the Participant by check payable to the
Company. Upon receipt of payment by the Company for the Shares, the Company shall issue to the Participant one or more certificates in the name of the Participant for that number of Shares purchased by the Participant. The Participant agrees that
the Shares shall be subject to the Purchase Option set forth in Section 2 of this Agreement and the restrictions on transfer set forth in Sections 4 and 5 of this Agreement.
2.
Purchase Option
.
(a) In the event that the Participant ceases to serve as a Director of the Company for any reason or no reason, with or without cause, prior to
, the Company shall have the right and option (the “Purchase Option”) to purchase from the Participant, for a sum equal to the Option Price per
share, any shares then subject to the Purchase Option. All of the Shares shall be subject to the Purchase Option prior to . On
, ] of such Shares will no longer be subject to the Purchase Option and at the
end of each full month thereafter, ] of such Shares shall no longer be subject to the Purchase Option until such time as all of such Shares are no longer subject to the Purchase
Option. The Shares that are subject to the Purchase Option are referred to hereon as the “Unvested Shares” and the Shares that are no longer subject to the Purchase Option are referred to hereby as the “Vested Shares.”
(b) In the event that the Participant’s employment with the Company is terminated by reason of death or permanent and
total disability (within the meaning of Section 22(e)(3) of the Internal Revenue code of 1986, as amended), the Purchase Option shall lapse as to all of the Unvested Shares for which the Purchase Option would have otherwise become exercisable.
(c) Upon the occurrence of a Change of Control Event (as hereinafter defined), the
Purchase Option shall immediately lapse as to all remaining Unvested Shares, thereby rendering all Shares Vested Shares. For purposes of this subsection (c), a “Change of Control Event” shall mean:
(i) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
“Person”) of beneficial ownership of any capital stock of the Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) 75% or more of either (x) the
then-outstanding shares of Common Stock (the “Outstanding Company Common Stock”) or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors (the
“Outstanding Company Voting Securities”);
provided
,
however
, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control Event: (A) any acquisition directly from the
Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company, unless the Person exercising, converting or
exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company), (B) any acquisition by any Participant benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (C) any acquisition by any corporation pursuant to a Business Combination (as defined below) which complies with clauses (x) and (y) of subsection (ii) of this definition; or
(ii) the consummation of a merger, consolidation, reorganization, recapitalization or share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless, immediately following such Business Combination, each of the following two conditions is satisfied: (x) all or
substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors, respectively, of the resulting or acquiring
corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company’s assets either directly or through one or more
subsidiaries) (such resulting or acquiring corporation is referred to herein as the “Acquiring Corporation”) in substantially the same proportions as their ownership of the Outstanding Company Common Stock and Outstanding Company Voting
Securities, respectively, immediately prior to such Business Combination and (y) no Person (excluding the Acquiring Corporation or any Participant benefit plan (or related trust) maintained or sponsored by the Company or by the Acquiring
Corporation) beneficially owns, directly or indirectly, 75% or more of the then-outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding securities of such corporation entitled to vote
generally in the election of directors (except to the extent that such ownership existed prior to the Business Combination).
- 2 -
(d) For purposes of this Agreement, employment with the Company shall include employment
with a parent or subsidiary of the Company or with another subsidiary of the parent of the Company.
3.
Exercise of Purchase Option and
Closing
.
(a) The Company may exercise the Purchase Option by delivering or mailing to the Participant (or his estate),
in accordance with Section 10(e) within 90 days after the termination of the employment of the Participant with the Company, a written notice of exercise of the Purchase Option. Such notice shall specify the number of Shares to be purchased. If
and to the extent the Purchase Option is not so exercised by the giving of such a notice within such 90-day period, the Purchase Option shall automatically expire and terminate effective upon the expiration of such 90-day period.
(b) Within 10 days after his receipt of the Company’s notice of the exercise of the Purchase Option pursuant to subsection
(a) above, the Participant (or his estate or any escrow agent) shall tender to the Company at its principal offices the certificate or certificates representing the Shares which the Company has elected to purchase, duly endorsed in blank by the
Participant or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such Shares to the Company. Upon its receipt of such certificate or certificates, the Company shall pay the aggregate Option Price therefor in
the form of a check or by canceling indebtedness owed by the Participant to the Company, or any combination thereof.
(c)
After the time at which any Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Shares or permit the
Participant to exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Shares.
(d) In the event that, due to the sale (whether by foreclosure or otherwise), transfer, assignment or other disposition of the Shares
(other than pursuant to the Company’s exercise of the Purchase Option), including, without limitation, a sale by the Company or any assignee of the Shares pursuant to the terms of the Note (each, a “Sale Event”), the Company is unable
to exercise the Purchase Option with respect to any Shares for which the Purchase Option has not terminated (the “Repurchase Shares”), the Participant agrees to pay the Company, as liquidated damages, a sum, if any, by which the market
value of the Repurchase Shares (as determined by such Sale Event) exceeds the aggregate Option Price paid for the Repurchase Shares (the “Damage Amount”).
(e) The Option Price may be payable, at the option of the Company, in cancellation of all or a portion of any outstanding indebtedness of
the Participant to the Company or in cash (by check) or both.
(f) The Company shall not purchase any fraction of a Share
upon exercise of the Purchase Option, and any fraction of a Share resulting from a computation made pursuant to Section 2 of this Agreement shall be rounded to the nearest whole Share (with any one-half Share being rounded upward).
- 3 -
4.
Restrictions on Transfer
.
(a) The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively “transfer”) any Shares, or any interest therein, that are subject to the Purchase Option, except that the Participant may (i) transfer such Shares to or for the benefit of any spouse, domestic partner sharing the same
household as the Participant, sibling, child or grandchild, or to a trust for the benefit of the Participant or any of such family member’s benefit (an “Approved Relative”),
provided
that such Shares shall remain subject to
this Agreement (including without limitation the restrictions on transfer set forth in this Section 4, the Purchase Option, and the right of first refusal set forth in Section 5) and such permitted transferee shall, as a condition to such
transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement, (ii) transfer such Shares as part of the sale of all or substantially all of the shares
of capital stock of the Company (including pursuant to a merger or consolidation),
provided
that, in accordance with the Plan, the securities or other property received by the Participant in connection with such transaction shall remain
subject to this Agreement, or (iii) pledge to the Company pursuant to the Note such Shares to secure payment of part or all of the purchase price of such Shares.
(b) The Participant shall not transfer any Shares, or any interest therein, that are no longer subject to the Purchase Option, except in
accordance with Section 5 below.
5.
Right of First Refusal
.
(a) If the Participant proposes to transfer any Shares that are no longer subject to the Purchase Option, then the Participant shall first
give written notice of the proposed transfer (the “Transfer Notice”) to the Company. The Transfer Notice shall name the proposed transferee and state the number of such Shares he proposes to transfer (the “Offered Shares”), the
price per share and all other material terms and conditions of the transfer.
(b) For 30 days following delivery to the
Company of such Transfer Notice, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the
Offered Shares, it shall give written notice of such election to the Participant within such 30-day period. Within 10 days after delivery to the Participant of such notice, the Participant shall tender to the Company at its principal offices the
certificate or certificates representing the Offered Shares, duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in form suitable for transfer of the Offered Shares to the Company. Promptly following
receipt of such certificate or certificates, the Company shall deliver or mail to the Participant a check in payment of the purchase price for the Offered Shares;
provided
that
if the terms of payment set forth in the Transfer Notice
were other than cash against delivery, the Company may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice; and
provided
further
that any delay in making such payment shall not
invalidate the Company’s exercise of its option to purchase the Offered Shares.
- 4 -
(c) If the Company does not elect to acquire all of the Offered Shares, the Participant
may, within the 30-day period following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee,
provided
that
such transfer shall not be on terms and
conditions more favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 5 shall remain subject to this Agreement (including without
limitation the restrictions on transfer set forth in Section 4 and the right of first refusal set forth in this Section 5) and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming
that such transferee shall be bound by all of the terms and conditions of this Agreement.
(d) After the time at which the
Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Offered Shares or permit the Participant to
exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Offered Shares.
(e) The following transactions shall be exempt from the provisions of this Section 5:
(i) a transfer of Shares to or for the benefit of any Approved Relatives, or to a trust established solely for the benefit of the
Participant and/or Approved Relatives;
(ii) any transfer pursuant to an effective registration statement filed by the
Company under the Securities Act of 1933, as amended (the “Securities Act”); and
(iii) the sale of all or
substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation),
provided, however, that in the case of
a transfer pursuant to clause (i) above, such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in Section 4 and the right of first refusal set forth in this Section 5)
and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement.
(f) The Company may assign its rights to purchase Offered Shares in any particular transaction under this Section 5 to one or more
persons or entities.
(g) The provisions of this Section 5 shall terminate upon the earlier of the following events:
(i) the closing of the sale of shares of Common Stock in an underwritten public offering pursuant to an effective
registration statement filed by the Company under the Securities Act; or
- 5 -
(ii) the sale of all or substantially all of the capital stock, assets or business of the
Company, by merger, consolidation, sale of assets or otherwise (other than a merger or consolidation in which all or substantially all of the individuals and entities who were beneficial owners of the Common Stock immediately prior to such
transaction beneficially own, directly or indirectly, more than 75% of the outstanding securities entitled to vote generally in the election of directors of the resulting, surviving or acquiring corporation in such transaction).
(h) The Company shall not be required (i) to transfer on its books any of the Shares which shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement, or (ii) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or transferred.
6.
Agreement in Connection with Public Offering
.
The Participant agrees, in connection with the initial underwritten public offering of the Company’s securities pursuant to a registration statement under the Securities Act, (i) not to sell, make short sale
of, loan, grant any options for the purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without the prior written consent of the Company or the underwriters
managing such initial underwritten public offering of the Company’s securities for a period of 180 days from the effective date of such registration statement, and (ii) to execute any agreement reflecting clause (i) above as may be
requested by the Company or the managing underwriters at the time of such offering.
7.
Restrictive Legends
.
All certificates representing Shares shall have affixed thereto legends in substantially the following form, in addition to any other legends that may be
required under federal or state securities laws:
“The shares of stock represented by this certificate are subject to restrictions on
transfer and an option to purchase set forth in a certain Restricted Stock Agreement between the corporation and the registered owner of these shares (or his predecessor in interest), and such Agreement is available for inspection without charge at
the office of the Secretary of the corporation.”
“The shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be sold, transferred or otherwise disposed of in the absence of an effective registration statement under such Act or an opinion of counsel satisfactory to the corporation to the effect that such
registration is not required.”
- 6 -
8.
Investment Representations
.
The Participant represents, warrants and covenants as follows:
(a) The Participant is purchasing the Shares for his own account for investment only, and not with a view to, or for sale in connection
with, any distribution of the Shares in violation of the Securities Act, or any rule or regulation under the Securities Act.
(b) The Participant has had such opportunity as he has deemed adequate to obtain from representatives of the Company such information as is necessary to permit him to evaluate the merits and risks of his investment in the Company.
(c) The Participant has sufficient experience in business, financial and investment matters to be able to evaluate the
risks involved in the purchase of the Shares and to make an informed investment decision with respect to such purchase.
(d)
The Participant can afford a complete loss of the value of the Shares and is able to bear the economic risk of holding such Shares for an indefinite period.
(e) The Participant understands that (i) the Shares have not been registered under the Securities Act and are “restricted
securities” within the meaning of Rule 144 under the Securities Act; (ii) the Shares cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under the Securities Act or an exemption from registration is
then available; (iii) in any event, the exemption from registration under Rule 144 will not be available for at least one year and even then will not be available unless a public market then exists for the Common Stock, adequate information
concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and (iv) there is now no registration statement on file with the Securities and Exchange Commission with respect to any stock
of the Company and the Company has no obligation or current intention to register the Shares under the Securities Act.
9.
Withholding
Taxes; Section 83(b) Election
.
(a) The Participant acknowledges and agrees that the Company has the right to
deduct from payments of any kind otherwise due to the Participant any federal, state or local taxes of any kind required by law to be withheld with respect to the purchase of the Shares by the Participant or the lapse of the Purchase Option.
(b) The Participant has reviewed with the Participant’s own tax advisors the federal, state, local and foreign tax
consequences of this investment and the transactions contemplated by this Agreement. The Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Participant understands
that the Participant (and not the Company) shall be responsible for the Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement. The Participant understands that it may be
beneficial in many circumstances to elect to be taxed at the time the Shares are purchased rather than when and as the Company’s Purchase Option expires by filing an election under Section 83(b) of the Code with the I.R.S. within 30 days
from the date of purchase.
- 7 -
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT’S SOLE RESPONSIBILITY AND NOT THE
COMPANY’S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANT’S BEHALF.
10.
Miscellaneous
.
(a)
No Rights to Employment
. The Participant acknowledges and agrees that the vesting of the Shares pursuant to Section 2 hereof is earned only by continuing service at the will of the Company (not through the act of being hired
or purchasing shares hereunder). The Participant further acknowledges and agrees that the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued engagement as an
employee or consultant for the vesting period, for any period, or at all.
(b)
Severability
. The invalidity or
unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by
law.
(c)
Waiver
. Any provision for the benefit of the Company contained in this Agreement may be waived, either
generally or in any particular instance, by the Board of Directors of the Company.
(d)
Binding Effect
. This
Agreement shall be binding upon and inure to the benefit of the Company and the Participant and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in
Sections 4 and 5 of this Agreement.
(e)
Notice
. All notices required or permitted hereunder shall be in writing and
deemed effectively given upon personal delivery or five days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown beneath his or its respective
signature to this Agreement, or at such other address or addresses as either party shall designate to the other in accordance with this Section 10(e).
(f)
Pronouns
. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include
the plural, and vice versa.
(g)
Entire Agreement
. This Agreement and the Plan constitute the entire agreement
between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
(h)
Amendment
. This Agreement may be amended or modified only by a written instrument executed by both the Company and the Participant.
- 8 -
(i)
Governing Law
. This Agreement shall be construed, interpreted and enforced in
accordance with the internal laws of the State of Delaware without regard to any applicable conflicts of laws.
(j)
Participant’s Acknowledgments
. The Participant acknowledges that he or she: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the
Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; (iv) is fully aware of the legal and binding effect of this Agreement; and (v) understands
that the law firm of Hale and Dorr LLP, is acting as counsel to the Company in connection with the transactions contemplated by the Agreement, and is not acting as counsel for the Participant.
11.
Delivery of Certificates
. The Participant authorizes the Company, on his or her behalf, to hold the stock certificates representing the Shares
until the latest of:
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(i)
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the date on which the Shares are no longer subject to the Purchase Option;
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(ii)
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the closing of an initial underwritten public offering of the Company’s securities pursuant to an effective registration statement filed by the Company under the Securities
Act;
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(iii)
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a sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise; or
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(iv)
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the date which is no later than thirty days (30) after the date on which the Participant ceases to be employed by the Company,
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provided
that
, if Participant has paid the purchase price of the Shares pursuant to a Note issued to the Company, the Company shall hold such Shares until
payment of the Note in full as pledgee under the Note and not on behalf of the Participant pursuant to this Section 11.
12.
Escrow
. The Participant shall execute Joint Escrow Instructions in the form attached hereto as
Exhibit B
simultaneously with the execution hereof. The Joint Escrow Instructions shall be delivered to the person named by the Company to
serve as escrow agent thereunder. The Participant shall simultaneously deliver to such escrow agent a stock assignment in the form attached hereto as
Exhibit C
duly endorsed in blank and hereby instructs the Company to deliver to such escrow
agent, on behalf of the Participant, the certificate(s) evidencing the Shares issued hereunder;
provided
that
, if Participant is paying for part or all of the Option Price for the Shares by delivering a Note to the Company then, in
accordance with the terms of the Note, the Participant shall irrevocably instruct the Company, as pledgee under such Note, to deliver to the escrow agent the certificate(s) evidencing the Shares issued hereunder which have been pledged as collateral
for payment in full of the Note and the related blank stock assignment(s), and the Joint Escrow Instructions shall become effective only upon such deposit.
- 9 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above
written.
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INFINITY PHARMACEUTICALS, INC.
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By:
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(Signature)
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Print Name
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Print Title
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PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy
of the Company’s 2001 Stock Incentive Plan.
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PARTICIPANT
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(Signature)
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Print Name
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Address:
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- 10 -
Exhibit 10.20
Attached hereto is a form of non-statutory stock option agreement by and among the Registrant and each of the below-named persons. The non-statutory stock option agreement by and among the Registrant and each of the below-named persons is
substantially identical in all material respects to such form, except with respect to the details that are set forth below.
The number of shares and the
exercise or purchase price of each of the awards listed in the table below is presented after giving effect to the business combination between Discovery Partners International, Inc. (“Discovery Partners”) and Infinity Pharmaceuticals,
Inc. (“IPI”) in accordance with the terms of the Agreement and Plan of Merger among Discovery Partners, Darwin Corp, a wholly owned subsidiary of Discovery Partners (“Darwin Corp.”), and IPI dated as of April 11, 2006,
pursuant to which IPI merged with and into Darwin Corp. and became a wholly owned subsidiary of Discovery Partners and Discovery Partners changed its name to Infinity Pharmaceuticals, Inc. In addition, the number of shares and the exercise or
purchase price of each of the awards listed in the table below is presented after giving effect to the Registrant’s 1-for-4 reverse stock split, which became effective on September 12, 2006.
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Date of
Agreement
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Name
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Number of Shares
Subject to Award
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Exercise/
Purchase Price
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Vesting
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6/12/06
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D. Ronald Daniel
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2,210
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$3.48
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(1)
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6/12/06
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Eric Lander
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2,210
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$3.48
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(1)
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6/12/06
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Arnold Levine
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2,210
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$3.48
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(1)
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6/12/06
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Franklin Moss
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2,210
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$3.48
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(1)
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6/12/06
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Viki Sato
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2,210
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$3.48
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(1)
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3/1/05
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Viki Sato
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2,210
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$2.04
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(2)
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3/1/05
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Viki Sato
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5,525
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$2.04
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(3)
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(1) Vests and becomes exercisable as to 552 shares on
June 12, 2006, 184 shares on June 30, 2006 and the remainder in monthly installments through February 2007.
(2) This award is currently fully
vested. In accordance with the terms of such award, the underlying shares initially became exercisable, or “vested’” in time-based installments.
(3) Vests and becomes exercisable in equal monthly installments over four years, beginning on March 31, 2005.
Infinity Pharmaceuticals, Inc.
Nonstatutory Stock Option Agreement
Granted Under 2001 Stock Incentive Plan
This agreement evidences the
grant by Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), on _______, 200_ (the “Grant Date”) to ________, a consultant to the Company (the “Participant”), of an option to purchase, in whole or in
part, on the terms provided herein and in the Company’s 2001 Stock Incentive Plan (the “Plan”), a total of ________ shares (the “Shares”) of common stock, $.0001 par value per share, of the Company (“Common Stock”)
at $_____ per Share. Unless earlier terminated, this option shall expire on ____________ (the “Final Exercise Date”).
It is
intended that the option evidenced by this agreement shall not be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”). Except as
otherwise indicated by the context, the term “Participant”, as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.
(a)
Vesting
. Subject to
Section 3 below, this option will become exercisable (“vest”) as to ____________) of the original number of Shares starting __________, and as to an additional ___________ of the original number of Shares at the end of each successive
month following __________ until __________. The shares subject to the portion of this option that are not yet exercisable are referred to herein as “Unvested Shares,” and the shares subject to the portion of this option that has become
exercisable are referred to herein as “Vested Shares.”
The right of exercise shall be cumulative so that to the extent the
option is not exercised in any period to the maximum extent permissible it shall continue to be exercisable, in whole or in part, with respect to all shares for which it is vested until the earlier of the Final Exercise Date or the termination of
this option under Section 3 hereof or the Plan.
(b)
Early Exercise
. Notwithstanding the vesting schedule set forth in
paragraph (a), the Participant may elect to exercise this option as to the Unvested Shares (in addition to the Vested Shares) if simultaneously with such exercise the Participant enters into a Stock Restriction Agreement with the Company in the form
attached hereto as
Exhibit A
(the “Stock Restriction Agreement”). The Stock Restriction Agreement provides that the Unvested Shares shall be subject to a right of repurchase (the “Purchase Option”) in favor of the Company
in the event that the Participant ceases to provide services to the Company, as that term is defined in the Plan.
(a)
Form of Exercise.
Subject to the procedures set forth in this Agreement, each election to exercise this option shall be in writing in the form attached to this Agreement as
Exhibit B
, signed by the Participant, and received by the Company at its principal
office, accompanied by this agreement, and payment in full in accordance with Section 4. The Participant may purchase less than the number of shares covered hereby, provided that no partial exercise of this option may be for any fractional
share.
(b)
Continuous Relationship with the Company Required
. Except as otherwise provided in this Section 3, this option may
not be exercised unless the Participant, at the time he or she exercises this option, is, and has been at all times since the Grant Date, an employee, officer, director, consultant or advisor, as the case may be, to the Company or any parent or
subsidiary of the Company as defined in Section 424(e) or (f) of the Code (an “Eligible Participant”).
(c)
Termination of Relationship with the Company
. If the Participant ceases to be an Eligible Participant for any reason, then, except as provided in paragraph (d) below, the right to exercise this option shall terminate three months after
such cessation (but in no event after the Final Exercise Date),
provided
that
this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation. Notwithstanding
the foregoing, if the Participant, prior to the Final Exercise Date, violates the non-competition or confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and
the Company, the right to exercise this option shall terminate immediately upon such violation. The rights provided in this paragraph are also subject to the limitations provided in paragraph (e) below.
(d)
Exercise Period Upon Death or Disability
. If the Participant dies or becomes permanently and totally disabled (within the meaning of
Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for “cause” as specified in paragraph (e) below, this option shall be
exercisable, within the period of one year following the date of death or disability of the Participant, by the Participant (or in the case of death by an authorized transferee),
provided
that
this option shall be exercisable only to
the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further provided that this option shall not be exercisable after the Final Exercise Date.
(e)
Discharge for Cause
. If the Participant, prior to the Final Exercise Date, is discharged by the Company for “cause” (as defined
below), the right to exercise this option shall terminate immediately upon the effective date of such discharge. “Cause” shall mean willful misconduct by the Participant or willful failure by the Participant to perform his or her
responsibilities to the Company (including, without limitation, breach by the Participant of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar agreement between the Participant and the Company),
as determined by the Company, which determination shall be conclusive. The Participant shall be considered to have been discharged for “Cause” if the Company determines, within 30 days after the Participant’s resignation, that
discharge for cause was warranted.
- 2 -
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4.
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Payment of Purchase Price
.
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(a)
Method of
Payment
. Payment of the purchase price for shares purchased upon exercise of this option shall be made by any means permitted by the terms of the Plan.
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5.
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Right of First Refusal
.
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(a) If the Participant
proposes to sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively, “transfer”) any Shares acquired upon exercise of this option, then the Participant shall first give written
notice of the proposed transfer (the “Transfer Notice”) to the Company. The Transfer Notice shall name the proposed transferee and state the number of such Shares the Participant proposes to transfer (the “Offered Shares”), the
price per share and all other material terms and conditions of the transfer.
(b) For 30 days following its receipt of such Transfer
Notice, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the Offered Shares, it shall
give written notice of such election to the Participant within such 30-day period. Within 10 days after his receipt of such notice, the Participant shall tender to the Company at its principal offices the certificate or certificates representing the
Offered Shares, duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in a form suitable for transfer of the Offered Shares to the Company. Promptly following receipt of such certificate or certificates,
the Company shall deliver or mail to the Participant a check in payment of the purchase price for the Offered Shares;
provided
that
if the terms of payment set forth in the Transfer Notice were other than cash against delivery, the
Company may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice; and
provided
further
that any delay in making such payment shall not invalidate the Company’s exercise of its option
to purchase the Offered Shares.
(c) If the Company does not elect to acquire all of the Offered Shares, the Participant may, within the
30-day period following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee,
provided
that
such transfer shall not be on terms and conditions more
favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 5 shall remain subject to the right of first refusal set forth in this
Section 5 and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 5.
(d) After the time at which the Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection
(b) above, the Company shall not pay any dividend to the Participant on account of such Offered Shares or permit the Participant to exercise any of the privileges or rights of a stockholder with respect to such Offered Shares, but shall, in so
far as permitted by law, treat the Company as the owner of such Offered Shares.
- 3 -
(e) The following transactions shall be exempt from the provisions of this Section 5:
(1) any transfer of Shares to or for the benefit of any spouse, domestic partner sharing the same household as the Participant, sibling,
child or grandchild of the Participant, or to a trust for their benefit;
(2) any transfer pursuant to an effective
registration statement filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”); and
(3) the sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation);
provided
,
however
, that in the case of a transfer pursuant to clause (1) above, such Shares shall remain subject to the right of first refusal set forth in this Section 5 and such transferee shall, as a condition to
such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 5.
(f) The Company may assign its rights to purchase Offered Shares in any particular transaction under this Section 5 to one or more persons or entities.
(g) The provisions of this Section 5 shall terminate upon the earlier of the following events:
(1) the closing of the sale of shares of Common Stock in an underwritten public offering pursuant to an effective registration statement
filed by the Company under the Securities Act; or
(2) the sale of all or substantially all of the capital stock, assets or
business of the Company, by merger, consolidation, sale of assets or otherwise (other than a merger or consolidation in which all or substantially all of the individuals and entities who were beneficial owners of the Common Stock immediately prior
to such transaction beneficially own, directly or indirectly, more than 75% of the outstanding securities entitled to vote generally in the election of directors of the resulting, surviving or acquiring corporation in such transaction).
(h) The Company shall not be required (a) to transfer on its books any of the Shares which shall have been sold or transferred in violation of
any of the provisions set forth in this Section 5, or (b) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or transferred.
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6.
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Agreement in Connection with Public Offering
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The
Participant agrees, in connection with the initial underwritten public offering of the Company’s securities pursuant to a registration statement under the Securities Act, (i) not to sell, make short sale of, loan, grant any options for the
purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without the prior written consent of the Company or the underwriters managing such initial underwritten public
offering of the Company’s securities for a period of 180 days from the effective date of such registration statement, and (ii) to execute any agreement reflecting clause (i) above as may be requested by the Company or the managing
underwriters at the time of such offering.
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7.
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Legends on Stock Certificates
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All stock
certificates representing Shares issued to the Participant upon exercise of this option shall have affixed thereto legends substantially in the following forms, in addition to any other legends required by applicable federal or state law:
“The shares of stock represented by this certificate have not been registered under the Securities Act of 1933 and may not be
transferred, sold or otherwise disposed of in the absence of an effective registration statement with respect to the shares evidenced by this certificate, filed and made effective under the Securities Act of 1933, or an opinion of counsel
satisfactory to the Company to the effect that registration under such Act is not required.”
“The shares of stock represented by
this certificate are subject to certain restrictions on transfer contained in a Stock Option Agreement, a copy of which will be furnished upon request by the issuer.”
No Shares will be issued pursuant to
the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withheld in respect of this option.
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9.
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Nontransferability of Option
.
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This option may not
be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the lifetime of the Participant, this option shall be
exercisable only by the Participant.
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10.
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Provisions of the Plan
.
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This option is subject to
the provisions of the Plan, a copy of which is furnished to the Participant with this option.
- 5 -
IN WITNESS WHEREOF, the Company has caused this option to be executed under its corporate seal by its duly authorized
officer. This option shall take effect as a sealed instrument.
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Infinity Pharmaceuticals, Inc.
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Dated:
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By:
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Name:
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Title:
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PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy
of the Company’s 2001 Stock Incentive Plan.
- 6 -
Exhibit 10.21
Attached hereto is a form of stock restriction agreement by and among the Registrant and each of the below-named persons. The stock restriction agreement by and among the Registrant and each of the below-named persons is substantially
identical in all material respects to such form, except with respect to the details that are set forth below.
The number of shares and the exercise or
purchase price of each of the awards listed in the table below is presented after giving effect to the business combination between Discovery Partners International, Inc. (“Discovery Partners”) and Infinity Pharmaceuticals, Inc.
(“IPI”) in accordance with the terms of the Agreement and Plan of Merger among Discovery Partners, Darwin Corp, a wholly owned subsidiary of Discovery Partners (“Darwin Corp.”), and IPI dated as of April 11, 2006, pursuant
to which IPI merged with and into Darwin Corp. and became a wholly owned subsidiary of Discovery Partners and Discovery Partners changed its name to Infinity Pharmaceuticals, Inc. In addition, the number of shares and the exercise or purchase price
of each of the awards listed in the table below is presented after giving effect to the Registrant’s 1-for-4 reverse stock split, which became effective on September 12, 2006.
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Date of
Agreement
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Name
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Number of Shares
Subject to Award
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Exercise/
Purchase Price
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Vesting
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8/14/01
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Arnold Levine
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11,051
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$0.68
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(1)
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8/14/01
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Franklin Moss
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11,051
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$0.68
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(1)
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8/14/01
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D. Ronald Daniel
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11,051
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$0.68
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(1)
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(1) Each of these awards is currently fully vested. In
accordance with the terms of each such award, the underlying shares were initially subject to a right of repurchase which right of repurchase lapsed, or “vested” as to the shares underlying the award in time-based installments.
STOCK RESTRICTION AGREEMENT
AGREEMENT made this day of
200 , between Infinity Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), and (the “Director”).
For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.
Purchase of Shares
. The Company shall issue and sell to the Director and the Director shall purchase from the Company, subject to the terms and
conditions set forth in this Agreement and in the Company’s 2001 Stock Incentive Plan (the “Plan”), an aggregate of shares (the
“Shares”) of common stock, $.0001 par value per share (“Common Stock”) of the Company at a price of $ per share (the “Option Price”), purchasable as set forth in and
subject to the terms and conditions of this Agreement and the Plan.
The aggregate purchase price for the Shares shall be paid by the
Director in accordance with the terms of the Plan and the Stock Option Agreement issued to the Director thereunder. Upon receipt of payment by the Company for the Shares, the Company shall issue to the Director one or more certificates in the name
of the Director for that number of Shares purchased by the Director. The Director agrees that the Shares shall be subject to the Purchase Option set forth in Section 2 of this Agreement and the restrictions on transfer set forth in
Section 4 of this Agreement.
2.
Purchase Option
.
(a) In the event that the Director ceases to provide services to the Company for any reason or no reason, with or without cause, prior to
, the Company shall have the right and option (the “Purchase Option”)
to purchase from the Director, for a sum equal to the Option Price per share, any shares then subject to the Purchase Option. All of the Shares shall be subject to the Purchase Option prior to
. On
,
of such Shares will no longer be subject to the Purchase Option and at the end
of each full month thereafter, of such Shares shall no longer be subject to the
Purchase Option until such time as all of such Shares are no longer subject to the Purchase Option.
(b) Upon the occurrence of a Change of
Control Event (as hereinafter defined), the Purchase Option shall immediately lapse as to all remaining Unvested Shares, thereby rendering all Shares Vested Shares. For purposes of this subsection (c), a “Change of Control Event” shall
mean:
(i) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (a “Person”) of beneficial ownership of any capital stock of the Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) 75% or more of either
(x) the then-outstanding shares of Common Stock (the “Outstanding Company Common Stock”) or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”);
provided
,
however
, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control Event: (A) any acquisition directly from the
Company (excluding an
acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting
securities of the Company, unless the Person exercising, converting or exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company), (B) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (C) any acquisition by any corporation pursuant to a Business Combination (as defined below) which complies with clauses (x) and
(y) of subsection (ii) of this definition; or
(ii) the consummation of a merger, consolidation, reorganization,
recapitalization or share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless, immediately following such Business Combination, each of
the following two conditions is satisfied: (x) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors,
respectively, of the resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company’s assets
either directly or through one or more subsidiaries) (such resulting or acquiring corporation is referred to herein as the “Acquiring Corporation”) in substantially the same proportions as their ownership of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, respectively, immediately prior to such Business Combination and (y) no Person (excluding the Acquiring Corporation or any employee benefit plan (or related trust) maintained or sponsored by the
Company or by the Acquiring Corporation) beneficially owns, directly or indirectly, 75% or more of the then-outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding securities of such
corporation entitled to vote generally in the election of directors (except to the extent that such ownership existed prior to the Business Combination).
3.
Exercise of Purchase Option and Closing
.
(a) The Company may exercise the
Purchase Option by delivering or mailing to the Director (or his estate), in accordance with Section 13, within 90 days after the termination of the service of the Director for the Company, a written notice of exercise of the Purchase Option.
Such notice shall specify the number of Shares to be purchased. If and to the extent the Purchase Option is not so exercised by the giving of such a notice within such 90-day period, the Purchase Option shall automatically expire and terminate
effective upon the expiration of such 90-day period.
(b) Within 10 days after his receipt of the Company’s notice of
the exercise of the Purchase Option pursuant to subsection (a) above, the Director (or his estate or any escrow agent) shall tender to the Company at its principal offices the certificate or certificates representing the Shares which the
Company has elected to purchase, duly endorsed in blank by the Director or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such Shares to the Company. Upon its receipt of such certificate or certificates,
the
- 2 -
Company shall pay the aggregate Option Price therefor in the form of a check or by canceling indebtedness owed by the Director to the Company, or any
combination thereof.
(c) After the time at which any Shares are required to be delivered to the Company for transfer to the
Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Director on account of such Shares or permit the Director to exercise any of the privileges or rights of a stockholder with respect to such Shares, but
shall, in so far as permitted by law, treat the Company as the owner of such Shares.
(d) In the event that, due to the sale
(whether by foreclosure or otherwise), transfer, assignment or other disposition of the Shares (other than pursuant to the Company’s exercise of the Purchase Option) (each, a “Sale Event”), the Company is unable to exercise the
Purchase Option with respect to any Shares for which the Purchase Option has not terminated (the “Repurchase Shares”), the Director agrees to pay the Company, as liquidated damages, a sum, if any, by which the market value of the
Repurchase Shares (as determined by such Sale Event) exceeds the aggregate Option Price paid for the Repurchase Shares (the “Damage Amount”).
(e) The Company shall not purchase any fraction of a Share upon exercise of the Purchase Option, and any fraction of a Share resulting from a computation made pursuant to Section 2 of this Agreement shall be
rounded to the nearest whole Share (with any one-half Share being rounded upward).
4.
Restrictions on Transfer
. The Director shall
not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively “transfer”) any Shares, or any interest therein, that are subject to the Purchase Option, except that the Director may
transfer such Shares to or for the benefit of any spouse, domestic partner sharing the same household as the Director, sibling, child or grandchild, or to a trust for their benefit,.
provided
that such Shares shall remain subject to this
Agreement (including without limitation the restrictions on transfer set forth in this Section 4 and the Purchase Option) and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument
confirming that such transferee shall be bound by all of the terms and conditions of this Agreement.
5.
Effect of Prohibited
Transfer
. The Company shall not be required (a) to transfer on its books any of the Shares which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement, or (b) to treat as owner of such
Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or transferred.
6.
Restrictive Legend
.
All certificates representing Shares shall have affixed thereto a legend in substantially the following form, in addition to any other legends that may be required under federal or state securities laws:
“The shares of stock represented by this certificate are subject to restrictions on transfer and an option to purchase set forth in a certain Stock
Restriction Agreement between the corporation and the registered owner of these shares (or his predecessor in interest),
- 3 -
and such Agreement is available for inspection without charge at the office of the Secretary of the corporation.”
7.
Adjustments for Stock Splits, Stock Dividends, etc.
(a) If from time to time during the term of the Purchase Option there is any stock split-up, stock dividend, stock distribution or other
reclassification of the Common Stock of the Company, any and all new, substituted or additional securities to which the Director is entitled by reason of his ownership of the Shares shall be immediately subject to the Purchase Option, the
restrictions on transfer and other provisions of this Agreement in the same manner and to the same extent as the Shares, and the Option Price shall be appropriately adjusted.
(b) If the Shares are converted into or exchanged for, or stockholders of the Company receive by reason of any distribution in total or
partial liquidation, securities of another corporation, or other property (including cash), pursuant to any merger of the Company or acquisition of its assets, then the rights of the Company under this Agreement shall inure to the benefit of the
Company’s successor and this Agreement shall apply to the securities or other property received upon such conversion, exchange or distribution in the same manner and to the same extent as the Shares.
8.
Withholding Taxes
.
(a) The Director acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Director any federal, state or local taxes of any kind required by law to be withheld with respect to the
purchase of the Shares by the Director or the lapse of the Purchase Option.
(b) The Director acknowledges that he has been
informed of the advisability of making an election in accordance with Section 83(b) of the Internal Revenue Code of 1986, as amended; that such election must be filed with the Internal Revenue Service within 30 days of the transfer of shares to
the Director; and that the Director is solely responsible for making such election.
9.
Severability
. The invalidity or
unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by
law.
10.
Waiver
. Any provision contained in this Agreement may be waived, either generally or in any particular instance, by the
Board of Directors of the Company.
11.
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Company
and the Director and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Section 4 of this Agreement.
- 4 -
12.
No Rights To Continued Service as a Director
. Nothing contained in this Agreement shall be
construed as giving the Director any right to continued service as a Director of the Company.
13.
Notice
. All notices required or
permitted hereunder shall be in writing and deemed effectively given upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other address or addresses as either party shall designate to the other in accordance with this Section 13.
14.
Pronouns
. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.
15.
Entire Agreement
. This Agreement
and the Plan constitute the entire agreement between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
16.
Amendment
. This Agreement may be amended or modified only by a written instrument executed by both the Company and the Director.
17.
Governing Law
. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the Commonwealth of
Massachusetts.
18.
Delivery of Certificates
. The Director authorizes the Company, on his or her behalf, to hold the stock
certificates representing the Shares until the latest of:
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(i)
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the date on which the Shares are no longer subject to the Purchase Option;
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(ii)
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the closing of an initial underwritten public offering of the Company’s securities pursuant to an effective registration statement filed by the Company under the Securities
Act;
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(iii)
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a sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise; or
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(iv)
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the date which is no later than thirty days (30) after the date on which the Director ceases to serve as Director of the Company.
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19.
Escrow
. The Director shall execute Joint Escrow Instructions in the form attached hereto as
Exhibit B
simultaneously with the execution
hereof. The Joint Escrow Instructions shall be delivered to the person named by the Company to serve as escrow agent thereunder. The Director shall simultaneously deliver to such escrow agent a stock assignment duly endorsed in blank and hereby
instructs the Company to deliver to such escrow agent, on behalf of the Director, the certificate(s) evidencing the Shares issued hereunder.
- 5 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above
written.
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INFINITY PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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DIRECTOR
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(Signature)
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Print Name
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- 6 -
EXHIBIT 10.22
STOCK RESTRICTION AGREEMENT
AGREEMENT made this 1st day of November 2001, between Infinity Pharmaceuticals, Inc., a
Delaware corporation (the “Company”), and Franklin H. Moss (the “Consultant”).
For valuable consideration, receipt of which is
acknowledged, the parties hereto agree as follows:
1.
Purchase of Shares
. The Company shall issue and sell to the Consultant and
the Consultant shall purchase from the Company, subject to the terms and conditions set forth in this Agreement and in the Company’s 2001 Stock Incentive Plan (the “Plan”), an aggregate of 150,000 shares (the “Shares”) of
common stock, $.0001 par value per share (“Common Stock”) of the Company at a price of $0.15 per share (the “Option Price”), purchasable as set forth in and subject to the terms and conditions of this Agreement and the Plan.
The aggregate purchase price for the Shares shall be paid by the Consultant in accordance with the terms of the Plan and the Stock Option
Agreement issued to the Consultant thereunder. Upon receipt of payment by the Company for the Shares, the Company shall issue to the Consultant one or more certificates in the name of the Consultant for that number of Shares purchased by the
Consultant. The Consultant agrees that the Shares shall be subject to the Purchase Option set forth in Section 2 of this Agreement and the restrictions on transfer set forth in Section 4 of this Agreement.
2.
Purchase Option
.
(a) In the event that the Consultant ceases to provide services to the Company for any reason or no reason, with or without cause, prior to August 14, 2005, the Company shall have the right and option (the “Purchase Option”)
to purchase from the Consultant, for a sum equal to the Option Price per share, any shares then subject to the Purchase Option. All of the Shares shall be subject to the Purchase Option prior to August 14, 2002. On August 14, 2002,
one-fourth (1/4
th
) of such Shares will no longer be subject to the Purchase Option and at the end of each full
month thereafter, one forty-eighth (1/48
th
) of such Shares shall no longer be subject to the Purchase Option until
such time as all of such Shares are no longer subject to the Purchase Option.
(b) For purposes of this Agreement,
consulting service with the Company shall include consulting service with a parent or subsidiary of the Company or with another subsidiary of the parent of the Company.
3.
Exercise of Purchase Option and Closing
.
(a) The Company may exercise the
Purchase Option by delivering or mailing to the Consultant (or his estate), in accordance with Section 13, within 90 days after the termination of the service of the Consultant for the Company, a written notice of exercise of the Purchase
Option. Such notice shall specify the number of Shares to be purchased. If and to the extent the Purchase Option is not so exercised by the giving of such a notice within such 90-day period, the Purchase Option shall automatically expire and
terminate effective upon the expiration of such 90-day period.
(b) Within 10 days after his receipt of the Company’s notice of the exercise of the
Purchase Option pursuant to subsection (a) above, the Consultant (or his estate or any escrow agent) shall tender to the Company at its principal offices the certificate or certificates representing the Shares which the Company has elected to
purchase, duly endorsed in blank by the Consultant or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such Shares to the Company. Upon its receipt of such certificate or certificates, the Company shall pay
the aggregate Option Price therefor in the form of a check or by canceling indebtedness owed by the Consultant to the Company, or any combination thereof.
(c) After the time at which any Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Consultant on account
of such Shares or permit the Consultant to exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Shares.
(d) In the event that, due to the sale (whether by foreclosure or otherwise), transfer, assignment or other disposition of the Shares
(other than pursuant to the Company’s exercise of the Purchase Option) (each, a “Sale Event”), the Company is unable to exercise the Purchase Option with respect to any Shares for which the Purchase Option has not terminated (the
“Repurchase Shares”), the Consultant agrees to pay the Company, as liquidated damages, a sum, if any, by which the market value of the Repurchase Shares (as determined by such Sale Event) exceeds the aggregate Option Price paid for the
Repurchase Shares (the “Damage Amount”).
(e) The Company shall not purchase any fraction of a Share upon exercise
of the Purchase Option, and any fraction of a Share resulting from a computation made pursuant to Section 2 of this Agreement shall be rounded to the nearest whole Share (with any one-half Share being rounded upward).
4.
Restrictions on Transfer
. The Consultant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or
otherwise (collectively “transfer”) any Shares, or any interest therein, that are subject to the Purchase Option, except that the Consultant may transfer such Shares to or for the benefit of any spouse, domestic partner sharing the same
household as the Consultant, sibling, child or grandchild, or to a trust for their benefit,
provided
that such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in this
Section 4 and the Purchase Option) and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this
Agreement.
5.
Effect of Prohibited Transfer
. The Company shall not be required (a) to transfer on its books any of the Shares
which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement, or (b) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or
transferred.
- 2 -
6.
Restrictive Legend
. All certificates representing Shares shall have affixed thereto a legend in
substantially the following form, in addition to any other legends that may be required under federal or state securities laws:
“The
shares of stock represented by this certificate are subject to restrictions on transfer and an option to purchase set forth in a certain Stock Restriction Agreement between the corporation and the registered owner of these shares (or his predecessor
in interest), and such Agreement is available for inspection without charge at the office of the Secretary of the corporation.”
7.
Adjustments for Stock Splits, Stock Dividends, etc.
(a) If from time to time during the term of the Purchase Option
there is any stock split-up, stock dividend, stock distribution or other reclassification of the Common Stock of the Company, any and all new, substituted or additional securities to which the Consultant is entitled by reason of his ownership of the
Shares shall be immediately subject to the Purchase Option, the restrictions on transfer and other provisions of this Agreement in the same manner and to the same extent as the Shares, and the Option Price shall be appropriately adjusted.
(b) If the Shares are converted into or exchanged for, or stockholders of the Company receive by reason of any distribution
in total or partial liquidation, securities of another corporation, or other property (including cash), pursuant to any merger of the Company or acquisition of its assets, then the rights of the Company under this Agreement shall inure to the
benefit of the Company’s successor and this Agreement shall apply to the securities or other property received upon such conversion, exchange or distribution in the same manner and to the same extent as the Shares.
8.
Withholding Taxes
.
(a) The Consultant acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Consultant any federal, state or local taxes of any kind required by law to be withheld with respect to the
purchase of the Shares by the Consultant or the lapse of the Purchase Option.
(b) The Consultant acknowledges that he has
been informed of the advisability of making an election in accordance with Section 83(b) of the Internal Revenue Code of 1986, as amended; that such election must be filed with the Internal Revenue Service within 30 days of the transfer of
shares to the Consultant; and that the Consultant is solely responsible for making such election.
9.
Severability
. The invalidity
or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by
law.
10.
Waiver
. Any provision contained in this Agreement may be waived, either generally or in any particular instance, by the
Board of Directors of the Company.
11.
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Company
and the Consultant and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Section 4 of this Agreement.
- 3 -
12.
No Rights To Employment as a Consultant
. Nothing contained in this Agreement shall be
construed as giving the Consultant any right to be retained, in any position, as a Consultant of the Company.
13.
Notice
. All
notices required or permitted hereunder shall be in writing and deemed effectively given upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto
at the address shown beneath his or its respective signature to this Agreement, or at such other address or addresses as either party shall designate to the other in accordance with this Section 13.
14.
Pronouns
. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.
15.
Entire Agreement
. This Agreement
and the Plan constitute the entire agreement between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
16.
Amendment
. This Agreement may be amended or modified only by a written instrument executed by both the Company and the Consultant.
17.
Governing Law
. This Agreement shall be construed, interpreted and enforced in accordance with the laws of The Commonwealth of
Massachusetts.
18.
Delivery of Certificates
. The Consultant authorizes the Company, on his or her behalf, to hold the stock
certificates representing the Shares until the latest of:
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(i)
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the date on which the Shares are no longer subject to the Purchase Option;
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(ii)
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the closing of an initial underwritten public offering of the Company’s securities pursuant to an effective registration statement filed by the Company under the Securities
Act;
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(iii)
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a sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise; or
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(iv)
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the date which is no later than thirty days (30) after the date on which the Consultant cease ; to serve as a Consultant to the Company.
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- 4 -
19.
Escrow
. The Consultant shall execute Joint Escrow Instructions in the form attached hereto as
Exhibit A
simultaneously with the execution hereof. The Joint Escrow Instructions shall be delivered to the person named by the Company to serve as escrow agent thereunder. The Consultant shall simultaneously deliver to such escrow agent a
stock assignment duly endorsed in blank and hereby instructs the Company to deliver to such escrow agent, on behalf of the Consultant, the certificate(s) evidencing the Shares issued hereunder.
[Remainder of page intentionally left blank]
- 5 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above
written.
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Steven H. Holtzman
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Steven H. Holtzman
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President and Chief Executive Officer
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CONSULTANT
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/s/ Franklin H. Moss
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(Signature)
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Franklin H. Moss
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Print Name
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Address:
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85 Chestnut Street
Weston, MA 02493
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The undersigned co-owner of the Shares agrees by signing below to join herein and be bound by all of the terms and conditions hereof.
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/s/ Kimberly S. Moss
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(Signature)
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Kimberly S. Moss
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Print Name
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Address:
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85 Chestnut Street
Weston, MA 02493
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- 6 -
Exhibit 10.23
Attached hereto is a form of restricted stock agreement by and among the Registrant and each of the below-named persons. The restricted stock agreement by and among the Registrant and each of the below-named persons is substantially
identical in all material respects with such form, except with respect to the details that are set forth below.
The number of shares and the exercise or
purchase price of each of the awards listed in the table below is presented after giving effect to the business combination between Discovery Partners International, Inc. (“Discovery Partners”) and Infinity Pharmaceuticals, Inc.
(“IPI”) in accordance with the terms of the Agreement and Plan of Merger among Discovery Partners, Darwin Corp, a wholly owned subsidiary of Discovery Partners (“Darwin Corp.”), and IPI dated as of April 11, 2006, pursuant
to which IPI merged with and into Darwin Corp. and became a wholly owned subsidiary of Discovery Partners and Discovery Partners changed its name to Infinity Pharmaceuticals, Inc. In addition, the number of shares and the exercise or purchase price
of each of the awards listed in the table below is presented after giving effect to the Registrant’s 1-for-4 reverse stock split, which became effective on September 12, 2006.
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Date of
Agreement
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Name
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Number of Shares
Subject to Award
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Exercise/
Purchase Price
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Vesting
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3/25/04
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Steven Holtzman
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552
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$1.72
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(1)
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5/10/05
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Steven Holtzman
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1,105
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$2.04
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(1)
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3/25/05
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Julian Adams
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130
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$1.72
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(1)
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5/10/05
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Julian Adams
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1,105
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$2.04
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(1)
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3/25/04
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Adelene Perkins
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552
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$1.72
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(1)
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5/10/05
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Adelene Perkins
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1,105
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$2.04
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(1)
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6/16/04
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Franklin Moss
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3,453
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$1.72
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(1)
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(1) Each of these awards was fully vested upon grant.
INFINITY PHARMACEUTICALS, INC.
Restricted Stock Agreement
Granted Under 2001 Stock Incentive Plan
AGREEMENT made this day of
200 , between Infinity Pharmaceuticals, Inc. a Delaware corporation (the “Company”), and
(the “Participant”).
For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.
Purchase of Shares
.
The Company
shall issue and sell to the Participant, and the Participant shall purchase from the Company, subject to the terms and conditions set forth in this Agreement and in the Company’s 2001 Stock Incentive Plan (the “Plan”),
shares (the “Shares”) of common stock, $.0001 par value, of the Company (“Common Stock”), at a purchase price of
$ per share. The aggregate purchase price for the Shares shall be paid by the Participant by check payable to the order of the Company or such other method as may be acceptable to the Company. Upon
receipt by the Company of payment for the Shares, the Company shall issue to the Participant one or more certificates in the name of the Participant for that number of Shares purchased by the Participant. The Participant agrees that the Shares shall
be subject to the purchase option set forth in Section 3 of this Agreement and the restrictions on transfer set forth in Section 2 of this Agreement.
2.
Restrictions on Transfer
.
(a) The Participant shall not sell, assign, transfer,
pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively “transfer”) any Shares, or any interest therein, except that the Participant may transfer Shares (i) to or for the benefit of any spouse,
domestic partner sharing the same household, children, parents, uncles, aunts, siblings, grandchildren and any other relatives approved by the Board of Directors (collectively, “Approved Relatives”) or to a trust established solely for the
benefit of the Participant and/or Approved Relatives,
provided
that such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in this Section 2, and the right of first refusal
set forth in 3) and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement or (ii) as
part of the sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation),
provided
that, in accordance with the Plan, the securities or other property received by the
Participant in connection with such transaction shall remain subject to this Agreement.
(b) The Participant shall not
transfer any Shares, or any interest therein, except in accordance with Section 3 below.
3.
Right of First Refusal
.
(a) If the Participant proposes to transfer any Shares, then the Participant shall first give written notice of the proposed transfer (the
“Transfer Notice”) to the Company. The Transfer Notice shall name the proposed transferee and state the number of such Shares he proposes to transfer (the “Offered Shares”), the price per share and all other material terms and
conditions of the transfer.
(b) For 30 days following delivery to the Company of such Transfer Notice, the Company shall
have the option to purchase all (but not less than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the Offered Shares, it shall give written notice of
such election to the Participant within such 30-day period. Within 10 days after delivery to the Participant of such notice, the Participant shall tender to the Company at its principal offices the certificate or certificates representing the
Offered Shares, duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in form suitable for transfer of the Offered Shares to the Company. Promptly following receipt of such certificate or certificates,
the Company shall deliver or mail to the Participant a check in payment of the purchase price for the Offered Shares;
provided
that
if the terms of payment set forth in the Transfer Notice were other than cash against delivery, the
Company may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice; and
provided
further
that any delay in making such payment shall not invalidate the Company’s exercise of its option
to purchase the Offered Shares.
(c) If the Company does not elect to acquire all of the Offered Shares, the Participant
may, within the 30-day period following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee,
provided
that
such transfer shall not be on terms and
conditions more favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 3 shall remain subject to this Agreement (including without
limitation the restrictions on transfer set forth in Section 2 and the right of first refusal set forth in this Section 3) and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming
that such transferee shall be bound by all of the terms and conditions of this Agreement.
(d) After the time at which the
Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Offered Shares or permit the Participant to
exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Offered Shares.
(e) The following transactions shall be exempt from the provisions of this
Section 3:
(1) a transfer of Shares to or for the benefit of any Approved Relatives, or to a trust established solely
for the benefit of the Participant and/or Approved Relatives;
(2) any transfer pursuant to an effective registration
statement filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”); and
(3) the
sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation);
(4)
provided
,
however
, that in the case of a transfer pursuant to clause (1) above, such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in Section 2
and the right of first refusal set forth in this Section 3) and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and
conditions of this Agreement.
(f) The Company may assign its rights to purchase Offered Shares in any particular
transaction under this Section 3 to one or more persons or entities.
(g) The provisions of this Section 3 shall
terminate upon the earlier of the following events:
(1) the closing of the sale of shares of Common Stock in an
underwritten public offering pursuant to an effective registration statement filed by the Company under the Securities Act; or
(2) the sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise (other than a merger or consolidation in which all or substantially all of the
individuals and entities who were beneficial owners of the Common Stock immediately prior to such transaction beneficially own, directly or indirectly, more than 75% of the outstanding securities entitled to vote generally in the election of
directors of the resulting, surviving or acquiring corporation in such transaction).
(h) The Company shall not be required
(i) to transfer on its books any of the Shares which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement, or (ii) to treat as owner of such Shares or to pay dividends to any transferee to
whom any such Shares shall have been so sold or transferred.
4.
Agreement in Connection with Public Offering
.
The Participant agrees, in connection with the initial underwritten public offering of the Company’s securities pursuant to a registration statement
under the Securities Act, (i) not to sell, make short sale of, loan, grant any options for the purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without
the prior written consent of the Company or the underwriters managing such initial underwritten public offering of the Company’s securities for a period of 180 days from the effective date of such registration statement, and (ii) to
execute any agreement reflecting clause (i) above as may be requested by the Company or the managing underwriters at the time of such offering.
5.
Restrictive Legends
.
All certificates representing Shares shall have affixed thereto legends in substantially the following form, in addition to any other legends that may be
required under federal or state securities laws:
“The shares of stock represented by this certificate are subject to restrictions on
transfer and an option to purchase set forth in a certain Restricted Stock Agreement between the corporation and the registered owner of these shares (or his predecessor in interest), and such Agreement is available for inspection without charge at
the office of the Secretary of the corporation.”
“The shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be sold, transferred or otherwise disposed of in the absence of an effective registration statement under such Act or an opinion of counsel satisfactory to the corporation to the effect that such
registration is not required.”
6.
Provisions of the Plan
.
(a) This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the Participant with this Agreement.
(b) As provided in the Plan, upon the occurrence of a Reorganization Event (as defined in the Plan), the repurchase and
other rights of the Company hereunder shall inure to the benefit of the Company’s successor and shall apply to the cash, securities or other property which the Shares were converted into or exchanged for pursuant to such Reorganization Event in
the same manner and to the same extent as they applied to the Shares under this Agreement. If, in connection with a Reorganization Event, a portion of the cash, securities and/or other property received upon the conversion or exchange of the Shares
is to be placed into escrow to secure indemnification or similar obligations, the mix between the vested and unvested portion of such cash, securities and/or other property that is placed into escrow shall be the same as the mix between the vested
and unvested portion of such cash, securities and/or other property that is not subject to escrow.
7.
Investment Representations
.
The Participant represents, warrants and covenants as follows:
(a) The Participant is purchasing the Shares for his own account for investment only, and not with a view to, or for sale in connection
with, any distribution of the Shares in violation of the Securities Act, or any rule or regulation under the Securities Act.
(b) The Participant has had such opportunity as he has deemed adequate to obtain from
representatives of the Company such information as is necessary to permit him to evaluate the merits and risks of his investment in the Company.
(c) The Participant has sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the purchase of the Shares and to make an informed investment decision with
respect to such purchase.
(d) The Participant can afford a complete loss of the value of the Shares and is able to bear the
economic risk of holding such Shares for an indefinite period.
(e) The Participant understands that (i) the Shares
have not been registered under the Securities Act and are “restricted securities” within the meaning of Rule 144 under the Securities Act; (ii) the Shares cannot be sold, transferred or otherwise disposed of unless they are
subsequently registered under the Securities Act or an exemption from registration is then available; (iii) in any event, the exemption from registration under Rule 144 will not be available for at least one year and even then will not be
available unless a public market then exists for the Common Stock, adequate information concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and (iv) there is now no registration
statement on file with the Securities and Exchange Commission with respect to any stock of the Company and the Company has no obligation or current intention to register the Shares under the Securities Act.
8.
Withholding Taxes
.
(a) The Participant acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Participant any federal, state or local taxes of any kind required by law to be withheld with respect to the
purchase of the Shares by the Participant or the lapse of the Purchase Option.
The Participant has reviewed with the Participant’s own tax advisors
the federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. The Participant is relying solely on such advisors and not on any statements or representations of the Company or any of
its agents. The Participant understands that the Participant (and not the Company) shall be responsible for the Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.
9.
Miscellaneous
.
(a)
No Rights to Employment
. The Participant acknowledges and agrees that the transactions contemplated hereunder does not constitute an express or implied promise of continued engagement as an employee or
consultant for the vesting period, for any period, or at all.
(b)
Severability
. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(c)
Waiver
. Any provision for the benefit of the Company contained in this
Agreement may be waived, either generally or in any particular instance, by the Board of Directors of the Company.
(d)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Company and the Participant and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions
on transfer set forth in Sections 2 and 3 of this Agreement.
(e)
Notice
. All notices required or permitted hereunder
shall be in writing and deemed effectively given upon personal delivery or five days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown beneath
his or its respective signature to this Agreement, or at such other address or addresses as either party shall designate to the other in accordance with this Section 9(e).
(f)
Pronouns
. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.
(g)
Entire Agreement
. This Agreement and the Plan constitute the entire agreement between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
(h)
Amendment
. This Agreement may be amended or modified only by a written instrument executed by both the Company and the
Participant.
(i)
Governing Law
. This Agreement shall be construed, interpreted and enforced in accordance with the
internal laws of the State of Delaware without regard to any applicable conflicts of laws.
(j)
Participant’s
Acknowledgments
. The Participant acknowledges that he or she: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the Participant’s own choice
or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; (iv) is fully aware of the legal and binding effect of this Agreement; and (v) understands that the law firm of Hale and
Dorr LLP, is acting as counsel to the Company in connection with the transactions contemplated by the Agreement, and is not acting as counsel for the Participant.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above
written.
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INFINITY PHARMACEUTICALS, INC.
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By:
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Name:
Title:
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Address:
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780 Memorial Drive
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Cambridge, MA 02139
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[Signature of Participant]
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[Name of Participant]
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Address:
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Exhibit 10.24
Attached hereto is a form of restricted stock agreement by and among the Registrant and each of the below-named persons. The restricted stock agreement by and among the Registrant and each of the below-named persons is substantially
identical in all material respects with such form, except with respect to the details that are set forth below.
The number of shares and the exercise or
purchase price of each of the awards listed in the table below is presented after giving effect to the business combination between Discovery Partners International, Inc. (“Discovery Partners”) and Infinity Pharmaceuticals, Inc.
(“IPI”) in accordance with the terms of the Agreement and Plan of Merger among Discovery Partners, Darwin Corp, a wholly owned subsidiary of Discovery Partners (“Darwin Corp.”), and IPI dated as of April 11, 2006, pursuant
to which IPI merged with and into Darwin Corp. and became a wholly owned subsidiary of Discovery Partners and Discovery Partners changed its name to Infinity Pharmaceuticals, Inc. In addition, the number of shares and the exercise or purchase price
of each of the awards listed in the table below is presented after giving effect to the Registrant’s 1-for-4 reverse stock split, which became effective on September 12, 2006.
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Date of
Agreement
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Name
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Number of Shares
Subject to Award
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Exercise/
Purchase Price
|
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Vesting
|
|
3/25/04
|
|
Adelene Perkins
|
|
22,102
|
|
$1.72
|
|
(1)
|
|
|
|
|
|
|
|
5/10/05
|
|
Adelene Perkins
|
|
27,352
|
|
$2.04
|
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(1)
|
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|
|
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5/10/05
|
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Adelene Perkins
|
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27,352
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$2.04
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(2)
|
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4/14/03
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Arnold Levine
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11,051
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$1.72
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(3)
|
(1) Subject to a right of repurchase, which right
lapses, or “vests” in equal monthly installments over four years, beginning as of February 1, 2004.
(2) Subject to a right of repurchase, which
right lapses, or “vests” in equal monthly installments over six years, beginning as of February 1, 2005.
(3) This award is currently fully
vested. In accordance with the terms of such award, the underlying shares were initially subject to a right of repurchase which right of repurchase lapsed, or “vested” as to the shares underlying the award in time-based installments.
INFINITY PHARMACEUTICALS, INC.
Restricted Stock Agreement
Granted Under 2001 Stock Incentive Plan
AGREEMENT made this day of
, 200 , between Infinity Pharmaceuticals, Inc. a Delaware corporation (the “Company”), and
(the “Participant”).
For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.
Purchase of Shares
.
The Company
shall issue and sell to the Participant, and the Participant shall purchase from the Company, subject to the terms and conditions set forth in this Agreement and in the Company’s 2001 Stock Incentive Plan (the “Plan”),
shares (the “Shares”) of common stock, $.0001 par value, of the Company (“Common Stock”), at a purchase price of
$ per share. The aggregate purchase price for the Shares shall be paid by the Participant by check payable to the order of the Company or such other method as may be acceptable to the Company. Upon
receipt by the Company of payment for the Shares, the Company shall issue to the Participant one or more certificates in the name of the Participant for that number of Shares purchased by the Participant. The Participant agrees that the Shares shall
be subject to the purchase options set forth in Sections 2 and 5 of this Agreement and the restrictions on transfer set forth in Section 4 of this Agreement.
2.
Purchase Option
.
(a) In the event that the Participant ceases to be employed by
the Company for any reason or no reason, with or without cause, prior to
, the Company shall have the
right and option (the “Purchase Option”) to purchase from the Participant, for a sum of $ per share (the “Option Price”), some or all of the Unvested Shares (as defined below).
“Unvested Shares” means the total number of Shares multiplied by the Applicable Percentage at the time the Purchase Option
becomes exercisable by the Company. The “Applicable Percentage” shall be 100% less % for each month of employment
completed by the Participant with the Company from and after
, and (ii) zero on or after
.
(b) In the event that the Participant’s employment with the Company is terminated by reason of death or disability, the Purchase
Option shall lapse to all of the Unvested Shares for which the Purchase Option would otherwise become exercisable. For this purpose, “disability” shall mean the inability of the Participant, due to a medical reason, to carry out his duties
as an employee of the Company for a period of six consecutive months.
(c) For purposes of this Agreement, employment with
the Company shall include employment with a parent or subsidiary of the Company.
- 1 -
3.
Exercise of Purchase Option and Closing
.
(a) The Company may exercise the Purchase Option by delivering or mailing to the Participant (or his estate), within 90 days after the
termination of the employment of the Participant with the Company, a written notice of exercise of the Purchase Option. Such notice shall specify the number of Shares to be purchased. If and to the extent the Purchase Option is not so exercised by
the giving of such a notice within such 90-day period, the Purchase Option shall automatically expire and terminate effective upon the expiration of such 90-day period.
(b) Within 10 days after delivery to the Participant of the Company’s notice of the exercise of the Purchase Option pursuant to
subsection (a) above, the Participant (or his estate) shall, pursuant to the provisions of the Joint Escrow Instructions referred to in Section 7 below, tender to the Company at its principal offices the certificate or certificates
representing the Shares which the Company has elected to purchase in accordance with the terms of this Agreement, duly endorsed in blank or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such Shares to the
Company. Promptly following its receipt of such certificate or certificates, the Company shall pay to the Participant the aggregate Option Price for such Shares (provided that any delay in making such payment shall not invalidate the Company’s
exercise of the Purchase Option with respect to such Shares).
(c) After the time at which any Shares are required to be
delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Shares or permit the Participant to exercise any of the privileges or rights of
a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Shares.
(d) The Option Price may be payable, at the option of the Company, in cancellation of all or a portion of any outstanding indebtedness of the Participant to the Company or in cash (by check) or both.
(e) The Company shall not purchase any fraction of a Share upon exercise of the Purchase Option, and any fraction of a Share resulting
from a computation made pursuant to Section 2 of this Agreement shall be rounded to the nearest whole Share (with any one-half Share being rounded upward).
(f) The Company may assign its Purchase Option to one or more persons or entities.
4.
Restrictions on Transfer
.
(a) The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively “transfer”) any Shares, or any interest therein, that are subject to the Purchase
Option, except that the Participant may transfer such Shares (i) to or for the benefit of any spouse, domestic partner sharing the same household, children, parents, uncles, aunts, siblings, grandchildren and any other relatives approved by the
Board of Directors (collectively, “Approved Relatives”) or to a trust established solely for the benefit of the Participant and/or Approved Relatives,
provided
that such Shares shall remain subject to this Agreement (including
without limitation the restrictions on transfer
- 2 -
set forth in this Section 4, the Purchase Option and the right of first refusal set forth in Section 5) and such permitted transferee shall, as a
condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement or (ii) as part of the sale of all or substantially all of the shares of
capital stock of the Company (including pursuant to a merger or consolidation),
provided
that, in accordance with the Plan, the securities or other property received by the Participant in connection with such transaction shall remain subject
to this Agreement.
(b) The Participant shall not transfer any Shares, or any interest therein, that are no longer subject
to the Purchase Option, except in accordance with Section 5 below.
5.
Right of First Refusal
.
(a) If the Participant proposes to transfer any Shares that are no longer subject to the Purchase Option (either because they are no
longer Unvested Shares or because the Purchase Option expired unexercised), then the Participant shall first give written notice of the proposed transfer (the “Transfer Notice”) to the Company. The Transfer Notice shall name the proposed
transferee and state the number of such Shares he proposes to transfer (the “Offered Shares”), the price per share and all other material terms and conditions of the transfer.
(b) For 30 days following delivery to the Company of such Transfer Notice, the Company shall have the option to purchase all (but not less
than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the Offered Shares, it shall give written notice of such election to the Participant within such
30-day period. Within 10 days after delivery to the Participant of such notice, the Participant shall tender to the Company at its principal offices the certificate or certificates representing the Offered Shares, duly endorsed in blank by the
Participant or with duly endorsed stock powers attached thereto, all in form suitable for transfer of the Offered Shares to the Company. Promptly following receipt of such certificate or certificates, the Company shall deliver or mail to the
Participant a check in payment of the purchase price for the Offered Shares;
provided
that
if the terms of payment set forth in the Transfer Notice were other than cash against delivery, the Company may pay for the Offered Shares on
the same terms and conditions as were set forth in the Transfer Notice; and
provided
further
that any delay in making such payment shall not invalidate the Company’s exercise of its option to purchase the Offered Shares.
(c) If the Company does not elect to acquire all of the Offered Shares, the Participant may, within the 30-day period
following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee,
provided
that
such transfer shall not be on terms and conditions more favorable to
the transferee than those contained in the Transfer Notice. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 5 shall remain subject to this Agreement (including without limitation the restrictions on
transfer set forth in Section 4 and the right of first refusal set forth in this Section 5) and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be
bound by all of the terms and conditions of this Agreement.
- 3 -
(d) After the time at which the Offered Shares are required to be delivered to the
Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Offered Shares or permit the Participant to exercise any of the privileges or rights of a
stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Offered Shares.
(e) The following transactions shall be exempt from the provisions of this Section 5:
(1) a transfer of Shares to or for the benefit of any Approved Relatives, or to a trust established solely for the benefit of the Participant and/or Approved Relatives;
(2) any transfer pursuant to an effective registration statement filed by the Company under the Securities Act of 1933, as amended (the
“Securities Act”); and
(3) the sale of all or substantially all of the shares of capital stock of the Company
(including pursuant to a merger or consolidation);
(4)
provided
,
however
, that in the case of a transfer
pursuant to clause (1) above, such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in Section 4 and the right of first refusal set forth in this Section 5) and such
transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement.
(f) The Company may assign its rights to purchase Offered Shares in any particular transaction under this Section 5 to one or more
persons or entities.
(g) The provisions of this Section 5 shall terminate upon the earlier of the following events:
(1) the closing of the sale of shares of Common Stock in an underwritten public offering pursuant to an effective
registration statement filed by the Company under the Securities Act; or
(2) the sale of all or substantially all of the
capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise (other than a merger or consolidation in which all or substantially all of the individuals and entities who were beneficial owners of the Common
Stock immediately prior to such transaction beneficially own, directly or indirectly, more than 75% of the outstanding securities entitled to vote generally in the election of directors of the resulting, surviving or acquiring corporation in such
transaction).
(h) The Company shall not be required (i) to transfer on its books any of the Shares which shall have
been sold or transferred in violation of any of the provisions set forth in this Agreement, or (ii) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or transferred.
- 4 -
6.
Agreement in Connection with Public Offering
.
The Participant agrees, in connection with the initial underwritten public offering of the Company’s securities pursuant to a registration statement
under the Securities Act, (i) not to sell, make short sale of, loan, grant any options for the purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without
the prior written consent of the Company or the underwriters managing such initial underwritten public offering of the Company’s securities for a period of 180 days from the effective date of such registration statement, and (ii) to
execute any agreement reflecting clause (i) above as may be requested by the Company or the managing underwriters at the time of such offering.
7.
Escrow
.
The Participant shall, upon the execution of this Agreement, execute Joint Escrow
Instructions in the form attached to this Agreement as
Exhibit A
. The Joint Escrow Instructions shall be delivered to the Secretary of the Company, as escrow agent thereunder. The Participant shall deliver to such escrow agent a stock
assignment duly endorsed in blank, in the form attached to this Agreement as
Exhibit B
, and hereby instructs the Company to deliver to such escrow agent, on behalf of the Participant, the certificate(s) evidencing the Shares issued hereunder.
Such materials shall be held by such escrow agent pursuant to the terms of such Joint Escrow Instructions.
8.
Restrictive Legends
.
All certificates representing Shares shall have affixed thereto legends in substantially the following form, in addition to any other
legends that may be required under federal or state securities laws:
“The shares of stock represented by this certificate are subject
to restrictions on transfer and an option to purchase set forth in a certain Restricted Stock Agreement between the corporation and the registered owner of these shares (or his predecessor in interest), and such Agreement is available for inspection
without charge at the office of the Secretary of the corporation.”
“The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not be sold, transferred or otherwise disposed of in the absence of an effective registration statement under such Act or an opinion of counsel satisfactory to the corporation to the
effect that such registration is not required.”
- 5 -
9.
Provisions of the Plan
.
(a) This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the Participant with this Agreement.
(b) As provided in the Plan, upon the occurrence of a Reorganization Event (as defined in the Plan), the repurchase and
other rights of the Company hereunder shall inure to the benefit of the Company’s successor and shall apply to the cash, securities or other property which the Shares were converted into or exchanged for pursuant to such Reorganization Event in
the same manner and to the same extent as they applied to the Shares under this Agreement. If, in connection with a Reorganization Event, a portion of the cash, securities and/or other property received upon the conversion or exchange of the Shares
is to be placed into escrow to secure indemnification or similar obligations, the mix between the vested and unvested portion of such cash, securities and/or other property that is placed into escrow shall be the same as the mix between the vested
and unvested portion of such cash, securities and/or other property that is not subject to escrow.
10.
Investment Representations
.
The Participant represents, warrants and covenants as follows:
(a) The Participant is purchasing the Shares for his own account for investment only, and not with a view to, or for sale in connection
with, any distribution of the Shares in violation of the Securities Act, or any rule or regulation under the Securities Act.
(b) The Participant has had such opportunity as he has deemed adequate to obtain from representatives of the Company such information as is necessary to permit him to evaluate the merits and risks of his investment in the Company.
(c) The Participant has sufficient experience in business, financial and investment matters to be able to evaluate the
risks involved in the purchase of the Shares and to make an informed investment decision with respect to such purchase.
(d)
The Participant can afford a complete loss of the value of the Shares and is able to bear the economic risk of holding such Shares for an indefinite period.
(e) The Participant understands that (i) the Shares have not been registered under the Securities Act and are “restricted
securities” within the meaning of Rule 144 under the Securities Act; (ii) the Shares cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under the Securities Act or an exemption from registration is
then available; (iii) in any event, the exemption from registration under Rule 144 will not be available for at least one year and even then will not be available unless a public market then exists for the Common Stock, adequate information
concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and (iv) there is now no registration statement on file with the Securities and Exchange Commission with respect to any stock
of the Company and the Company has no obligation or current intention to register the Shares under the Securities Act.
- 6 -
11.
Withholding Taxes; Section 83(b) Election
.
(a) The Participant acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the
Participant any federal, state or local taxes of any kind required by law to be withheld with respect to the purchase of the Shares by the Participant or the lapse of the Purchase Option.
(b) The Participant has reviewed with the Participant’s own tax advisors the federal, state, local and foreign tax consequences of
this investment and the transactions contemplated by this Agreement. The Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Participant understands that the
Participant (and not the Company) shall be responsible for the Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement. The Participant understands that it may be
beneficial in many circumstances to elect to be taxed at the time the Shares are purchased rather than when and as the Company’s Purchase Option expires by filing an election under Section 83(b) of the Code with the I.R.S. within 30 days
from the date of purchase.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S
TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANT’S BEHALF.
12.
Miscellaneous
.
(a)
No Rights to Employment
. The Participant acknowledges
and agrees that the vesting of the Shares pursuant to Section 2 hereof is earned only by continuing service as an employee at the will of the Company (not through the act of being hired or purchasing shares hereunder). The Participant further
acknowledges and agrees that the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued engagement as an employee or consultant for the vesting period, for any
period, or at all.
(b)
Severability
. The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(c)
Waiver
. Any provision for the benefit of the Company contained in this Agreement may be waived, either generally or in any
particular instance, by the Board of Directors of the Company.
(d)
Binding Effect
. This Agreement shall be binding
upon and inure to the benefit of the Company and the Participant and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Sections 4 and 5 of this
Agreement.
- 7 -
(e)
Notice
. All notices required or permitted hereunder shall be in writing and
deemed effectively given upon personal delivery or five days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown beneath his or its respective
signature to this Agreement, or at such other address or addresses as either party shall designate to the other in accordance with this Section 12(e).
(f)
Pronouns
. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include
the plural, and vice versa.
(g)
Entire Agreement
. This Agreement and the Plan constitute the entire agreement
between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
(h)
Amendment
. This Agreement may be amended or modified only by a written instrument executed by both the Company and the Participant.
(i)
Governing Law
. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of Delaware without regard to any applicable conflicts of laws.
(j)
Participant’s Acknowledgments
. The Participant acknowledges that he or she: (i) has read this Agreement;
(ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences
of this Agreement; (iv) is fully aware of the legal and binding effect of this Agreement; and (v) understands that the law firm of Hale and Dorr LLP, is acting as counsel to the Company in connection with the transactions contemplated by
the Agreement, and is not acting as counsel for the Participant.
- 8 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above
written.
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INFINITY PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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Address:
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780 Memorial Drive
Cambridge, MA
02139
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[Signature of Participant]
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[Name of Participant]
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Address:
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- 9 -
Exhibit 10.25
Attached hereto is a form of incentive stock option agreement by and among the Registrant and each of the below-named persons. The incentive stock option agreement by and among the Registrant and each of the below-named persons is
substantially identical in all material respects to such form, except with respect to the details that are set forth below.
The number of shares and the
exercise or purchase price of each of the awards listed in the table below is presented after giving effect to the business combination between Discovery Partners International, Inc. (“Discovery Partners”) and Infinity Pharmaceuticals,
Inc. (“IPI”) in accordance with the terms of the Agreement and Plan of Merger among Discovery Partners, Darwin Corp, a wholly owned subsidiary of Discovery Partners (“Darwin Corp.”), and IPI dated as of April 11, 2006,
pursuant to which IPI merged with and into Darwin Corp. and became a wholly owned subsidiary of Discovery Partners and Discovery Partners changed its name to Infinity Pharmaceuticals, Inc. In addition, the number of shares and the exercise or
purchase price of each of the awards listed in the table below is presented after giving effect to the Registrant’s 1-for-4 reverse stock split, which became effective on September 12, 2006.
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Date of
Agreement
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Name
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Number of Shares
Subject to Award
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Exercise/
Purchase Price
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Vesting
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3/31/06
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Steven Holtzman
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28,704
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$3.48
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(1)
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5/10/06
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Julian Adams
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24,558
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$2.04
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(2)
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5/10/06
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Julian Adams
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24,558
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$2.04
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(3)
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3/31/06
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Julian Adams
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331
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$3.48
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(4)
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3/31/06
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Julian Adams
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27,628
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$3.48
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(1)
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3/31/06
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Adelene Perkins
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22,102
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$3.48
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(1)
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3/31/06
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Adelene Perkins
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331
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$3.48
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(4)
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(1) Vests in monthly equal installments over four
years, beginning as of February 1, 2006.
(2) Vests in monthly equal installments over six years, beginning as of January 31, 2005.
(3) Vests in monthly equal installments over four years, beginning as of January 31, 2006.
(4) Vests in monthly equal installments over one year, beginning as of February 1, 2006.
Infinity Pharmaceuticals, Inc.
Incentive Stock Option Agreement
Granted Under 2001 Stock Incentive Plan
This agreement evidences the
grant by Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), on ________, 200_ (the “Grant Date”) to __________, an employee of the Company (the “Participant”), of an option to purchase, in whole or
in part, on the terms provided herein and in the Company’s 2001 Stock Incentive Plan (the “Plan”), a total of _______ shares (the “Shares”) of common stock, $.0001 par value per share, of the Company (“Common
Stock”) at $____ per Share. Unless earlier terminated, this option shall expire on __________ (the “Final Exercise Date”).
It is intended that the option evidenced by this agreement shall be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the
“Code”). Except as otherwise indicated by the context, the term “Participant”, as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.
(a)
Vesting
. Subject to
Section 3 below, this option will become exercisable (“vest”) as to
_______________ of the original
number of Shares on ___________ and as to an additional
________________) of the original number of Shares on the
first day of each successive month thereafter until fully vested on ____________. The shares subject to the portion of this option that are not yet exercisable are referred to herein as “Unvested Shares,” and the shares subject to the
portion of this option that has become exercisable are referred to herein as “Vested Shares.” The right of exercise shall be cumulative so that to the extent the option is not exercised in any period to the maximum extent permissible it
shall continue to be exercisable, in whole or in part, with respect to all shares for which it is vested until the earlier of the Final Exercise Date or the termination of this option under Section 3 hereof or the Plan.
(b)
Early Exercise
. Notwithstanding the vesting schedule set forth in paragraph (a), the Participant may elect to exercise this option as to the
Unvested Shares (in addition to the Vested Shares) if simultaneously with such exercise the Participant enters into a Stock Restriction Agreement with the Company in the form attached hereto as
Exhibit A
(the “Stock Restriction
Agreement”). The Stock Restriction Agreement provides that the Unvested Shares shall be subject to a right of repurchase (the “Purchase Option”) in favor of the Company in the event that the Participant ceases to be an employee of the
Company, as that term is defined in the Plan.
- 1 -
(a)
Form of Exercise
.
Subject to the procedures set forth in this Agreement, each election to exercise this option shall be in writing in the form attached to this Agreement as
Exhibit A
, signed by the Participant, and received by the Company at its principal
office, accompanied by this agreement, and payment in full in accordance with the terms of the Plan. The Participant may purchase less than the number of shares covered hereby, provided that no partial exercise of this option may be for any
fractional share.
(b)
Continuous Relationship with the Company Required
. Except as otherwise provided in this Section 3, this
option may not be exercised unless the Participant, at the time he or she exercises this option, is, and has been at all times since the Grant Date, an employee or officer of, or consultant or advisor to, the Company or any parent or subsidiary of
the Company as defined in Section 424(e) or (f) of the Code (an “Eligible Participant”).
(c)
Termination of
Relationship with the Company
. If the Participant ceases to be an Eligible Participant for any reason, then, except as provided in paragraphs (d) and (e) below, the right to exercise this option shall terminate three months after such
cessation (but in no event after the Final Exercise Date),
provided
that
this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation. Notwithstanding the
foregoing, if the Participant, prior to the Final Exercise Date, violates the non-competition or confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and the
Company, the right to exercise this option shall terminate immediately upon such violation. The rights provided in this paragraph are also subject to the limitations provided in paragraph (f) below.
(d)
Exercise Period Upon Death or Disability
. If the Participant dies or becomes permanently and totally disabled (within the meaning of
Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for “cause” as specified in paragraph (f) below, this option shall
become immediately exercisable in full and shall be exercisable within the period of three years following the date of death or disability of the Participant, by the Participant (or in the case of death by an authorized transferee), but in no event
after the Final Exercise Date (it being understood that the option must be exercised within the period of one year following the date of death or disability for the option to qualify is an incentive stock option).
(e)
Exercise Period Upon Retirement
. If the Participant retires prior to the Final Exercise Date while he or she is an Eligible Participant and
the Company has not terminated such relationship for “cause” as specified in paragraph (f) below, and such Participant has, at the time of such retirement, served as an employee of the Company for a period of ten years and has, at the
time of cessation, reached the age of 55, then the right to exercise this option shall terminate three years after such cessation, but in no event after the Final Exercise Date (it being understood that the option must be exercised within the period
of three months following the date of cessation in order for the option to qualify as an incentive stock option). In this circumstance, this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on
the date of such cessation.
- 2 -
(f)
Discharge for Cause
. If the Participant, prior to the Final Exercise Date, is discharged by
the Company for “cause” (as defined below), the right to exercise this option shall terminate immediately upon the effective date of such discharge. “Cause” shall mean willful misconduct by the Participant or willful failure by
the Participant to perform his or her responsibilities to the Company (including, without limitation, breach by the Participant of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar agreement
between the Participant and the Company), as determined by the Company, which determination shall be conclusive. The Participant shall be considered to have been discharged for “Cause” if the Company determines, within 30 days after the
Participant’s resignation, that discharge for cause was warranted.
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4.
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Right of First Refusal
.
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(a) If the Participant
proposes to sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively, “transfer”) any Shares acquired upon exercise of this option, then the Participant shall first give written
notice of the proposed transfer (the “Transfer Notice”) to the Company. The Transfer Notice shall name the proposed transferee and state the number of such Shares the Participant proposes to transfer (the “Offered Shares”), the
price per share and all other material terms and conditions of the transfer.
(b) For 30 days following its receipt of such Transfer
Notice, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the Offered Shares, it shall
give written notice of such election to the Participant within such 30-day period. Within 10 days after his receipt of such notice, the Participant shall tender to the Company at its principal offices the certificate or certificates representing the
Offered Shares, duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in a form suitable for transfer of the Offered Shares to the Company. Promptly following receipt of such certificate or certificates,
the Company shall deliver or mail to the Participant a check in payment of the purchase price for the Offered Shares;
provided
that
if the terms of payment set forth in the Transfer Notice were other than cash against delivery, the
Company may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice; and
provided
further
that any delay in making such payment shall not invalidate the Company’s exercise of its option
to purchase the Offered Shares.
(c) If the Company does not elect to acquire all of the Offered Shares, the Participant may, within the
30-day period following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee,
provided
that
such transfer shall not be on terms and conditions more
favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 4 shall remain subject to the right of first refusal set forth in this
Section 4 and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 4.
(d) After the time at which the Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection
(b) above, the Company shall not
- 3 -
pay any dividend to the Participant on account of such Offered Shares or permit the Participant to exercise any of the privileges or rights of a stockholder
with respect to such Offered Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Offered Shares.
(e)
The following transactions shall be exempt from the provisions of this Section 4:
(1) any transfer of Shares to or for
the benefit of any spouse, domestic partner sharing the Participant’s household, sibling, child or grandchild of the Participant, or to a trust for their benefit;
(2) any transfer pursuant to an effective registration statement filed by the Company under the Securities Act of 1933, as amended (the
“Securities Act”); and
(3) the sale of all or substantially all of the shares of capital stock of the Company
(including pursuant to a merger or consolidation);
provided
,
however
, that in the case of a transfer pursuant to clause (1) above, such
Shares shall remain subject to the right of first refusal set forth in this Section 4 and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all
of the terms and conditions of this Section 4.
(f) The Company may assign its rights to purchase Offered Shares in any particular
transaction under this Section 4 to one or more persons or entities.
(g) The provisions of this Section 4 shall terminate upon
the earlier of the following events:
(1) the closing of the sale of shares of Common Stock in an underwritten public
offering pursuant to an effective registration statement filed by the Company under the Securities Act; or
(2) the sale of
all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise (other than a merger or consolidation in which all or substantially all of the individuals and entities who were
beneficial owners of the Common Stock immediately prior to such transaction beneficially own, directly or indirectly, more than 75% of the outstanding securities entitled to vote generally in the election of directors of the resulting, surviving or
acquiring corporation in such transaction).
(h) The Company shall not be required (a) to transfer on its books any of the Shares
which shall have been sold or transferred in violation of any of the provisions set forth in this Section 4, or (b) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or
transferred.
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5.
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Agreement in Connection with Public Offering
.
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The
Participant agrees, in connection with the initial underwritten public offering of the Company’s securities pursuant to a registration statement under the Securities Act, (i) not to sell, make short sale of, loan, grant any options for the
purchase of, or otherwise dispose of any shares
- 4 -
of Common Stock held by the Participant (other than those shares included in the offering) without the prior written consent of the Company or the
underwriters managing such initial underwritten public offering of the Company’s securities for a period of 180 days from the effective date of such registration statement, and (ii) to execute any agreement reflecting clause (i) above
as may be requested by the Company or the managing underwriters at the time of such offering.
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6.
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Legends on Stock Certificates
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All stock
certificates representing Shares issued to the Participant upon exercise of this option shall have affixed thereto legends substantially in the following forms, in addition to any other legends required by applicable federal or state law:
“The shares of stock represented by this certificate have not been registered under the Securities Act of 1933 and may not be
transferred, sold or otherwise disposed of in the absence of an effective registration statement with respect to the shares evidenced by this certificate, filed and made effective under the Securities Act of 1933, or an opinion of counsel
satisfactory to the Company to the effect that registration under such Act is not required.”
“The shares of stock represented by
this certificate are subject to certain restrictions on transfer contained in a Stock Option Agreement, a copy of which will be furnished upon request by the issuer.”
No Shares will be issued pursuant to
the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withheld in respect of this option.
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8.
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Nontransferability of Option
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This option may not
be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the lifetime of the Participant, this option shall be
exercisable only by the Participant.
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9.
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Disqualifying Disposition
.
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If the Participant
disposes of Shares acquired upon exercise of this option within two years from the Grant Date or one year after such Shares were acquired pursuant to exercise of this option, the Participant shall notify the Company in writing of such disposition.
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10.
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Provisions of the Plan
.
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This option is subject to
the provisions of the Plan, a copy of which is furnished to the Participant with this option.
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IN WITNESS WHEREOF, the Company has caused this option to be executed under its corporate seal by its
duly authorized officer. This option shall take effect as a sealed instrument.
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INFINITY PHARMACEUTICALS, INC.
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Dated:
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By:
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Name:
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Title:
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PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy
of the Company’s 2001 Stock Incentive Plan.
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Exhibit 10.26
RESTRICTED STOCK AGREEMENT
AGREEMENT made this 19th day of March 2002, between Infinity
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and Adelene Perkins (the “Participant”).
For valuable
consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.
Purchase of Shares
. The Company shall
issue and sell to the Participant and the Participant shall purchase from the Company, subject to the terms and conditions set forth in this Agreement and in the Company’s 2001 Stock Incentive Plan (the “Plan”), an aggregate of
450,000 shares (the “Shares”) of common stock, $.0001 par value per share (“Common Stock”) of the Company at a price of $0.15 per share (the “Option Price”), purchasable as set forth in and subject to the terms and
conditions of this Agreement and the Plan.
The aggregate purchase price for the Shares shall be paid by the Participant by delivery of a
promissory note (the “Note”) of the Participant in the form attached hereto as
Exhibit A
(except that the aggregate par value of the Shares shall be paid by the Participant by check payable to the Company). Upon receipt of payment
by the Company for the Shares, the Company shall issue to the Participant one or more certificates in the name of the Participant for that number of Shares purchased by the Participant. The Participant agrees that the Shares shall be subject to the
Purchase Option set forth in Section 2 of this Agreement and the restrictions on transfer set forth in Sections 4 and 5 of this Agreement.
2.
Purchase Option
.
(a) Subject to sections 2(b) through 2(d) below, In the event that the Participant
ceases to be employed by the Company for any reason or no reason, prior to December 31, 2005, the Company shall have the right and option (the “Purchase Option”) to purchase from the Participant, for a sum equal to the Option Price
per share, any shares then subject to the Purchase Option. All of the Shares shall be subject to the Purchase Option prior to January 1, 2003. On January 1, 2003, 75,000 Shares will no longer be subject to the Purchase Option and at the
end of each full month thereafter, an additional 10,416.667 of such Shares shall no longer be subject to the Purchase Option until such time as all of such Shares are no longer subject to the Purchase Option. The Shares that are subject to the
Purchase Option are referred to hereon as the “Unvested Shares” and the Shares that are no longer subject to the Purchase Option are referred to hereby as the “Vested Shares.”
(b) Notwithstanding the above, in the event that the Participant’s employment is terminated:
(i) by the Company without Cause (as defined below),
(ii) by the Participant due to a material diminution in the Participant’s job responsibilities or title, or
(iii) by the Participant as a result of the Company materially breaching its obligations
as provided in the Participant’s offer letter, dated February 6, 2002 (the “Offer Letter”),
then subject to the conditions of
Section 11 of the Offer Letter, Participant shall be deemed to have completed an additional 12 months of employment for purposes of calculating the number of Shares that remain subject to the Purchase Option.
As used herein, “Cause” shall mean (a) a good faith finding by the Board of Directors of the Company of (i) failure by the Participant to perform her
material duties as an employee of the Company in a manner acceptable to the Company, which failure continues for a period of more than thirty (30) days after the Company has provided the Participant written notice of such failure, setting forth
in reasonable detail the nature of such failure, (ii) the commission by the Participant of acts of dishonesty, gross negligence or misconduct, or (iii) the conviction of the Participant of, or the entry of a pleading of guilty or
nolo
contendre
by the Participant to, any felony or any crime involving extortion, dishonesty or theft.
(c) In the event
that the Participant’s employment with the Company is terminated by reason of death or permanent and total disability (within the meaning of Section 22(e)(3) of the Internal Revenue code of 1986, as amended), the Purchase Option shall
lapse as to all of the Unvested Shares for which the Purchase Option would have otherwise become exercisable.
(d) Upon the
occurrence of a Change of Control Event (as hereinafter defined), the Purchase Option shall immediately lapse as to all remaining Unvested Shares, thereby rendering all Shares Vested Shares. For purposes of this subsection (d), a “Change of
Control Event” shall mean:
(i) the acquisition by an individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership of any capital stock of the Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) 75% or more of either (x) the then-outstanding shares of Common Stock (the “Outstanding Company Common Stock”) or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote
generally in the election of directors (the “Outstanding Company Voting Securities”);
provided
,
however
, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control Event:
(A) any acquisition directly from the Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company,
unless the Person exercising, converting or exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company), (B) any acquisition by any Participant benefit plan (or related trust) sponsored
or maintained by the Company or any corporation controlled by the Company, or (C) any acquisition by any corporation pursuant to a Business Combination (as defined below) which complies with clauses (x) and (y) of subsection
(ii) of this definition; or
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(ii) the consummation of a merger, consolidation, reorganization, recapitalization or
share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless, immediately following such Business Combination, each of the following two
conditions is satisfied: (x) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors,
respectively, of the resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company’s assets
either directly or through one or more subsidiaries) (such resulting or acquiring corporation is referred to herein as the “Acquiring Corporation”) in substantially the same proportions as their ownership of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, respectively, immediately prior to such Business Combination and (y) no Person (excluding the Acquiring Corporation or any Participant benefit plan (or related trust) maintained or sponsored by
the Company or by the Acquiring Corporation) beneficially owns, directly or indirectly, 75% or more of the then-outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding securities of
such corporation entitled to vote generally in the election of directors (except to the extent that such ownership existed prior to the Business Combination).
(e) For purposes of this Agreement, employment with the Company shall include employment with a parent or subsidiary of the Company or
with another subsidiary of the parent of the Company.
3.
Exercise of Purchase Option and Closing
.
(a) The Company may exercise the Purchase Option by delivering or mailing to the Participant (or her estate), in accordance with
Section 10(e) within 90 days after the termination of the employment of the Participant with the Company, a written notice of exercise of the Purchase Option. Such notice shall specify the number of Shares to be purchased. If and to the extent
the Purchase Option is not so exercised by the giving of such a notice within such 90-day period, the Purchase Option shall automatically expire and terminate effective upon the expiration of such 90-day period.
(b) Within 10 days after her receipt of the Company’s notice of the exercise of the Purchase Option pursuant to subsection
(a) above, the Participant (or her estate or any escrow agent) shall tender to the Company at its principal offices the certificate or certificates representing the Shares which the Company has elected to purchase, duly endorsed in blank by the
Participant or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such Shares to the Company. Upon its receipt of such certificate or certificates, the Company shall pay the aggregate Option Price therefor in
the form of a check or by canceling indebtedness owed by the Participant to the Company, or any combination thereof.
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(c) After the time at which any Shares are required to be delivered to the Company for
transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Shares or permit the Participant to exercise any of the privileges or rights of a stockholder with respect to
such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Shares.
(d) In the event
that, due to the sale (whether by foreclosure or otherwise), transfer, assignment or other disposition of the Shares (other than pursuant to the Company’s exercise of the Purchase Option), including, without limitation, a sale by the Company or
any assignee of the Shares pursuant to the terms of the Note (each, a “Sale Event”), the Company is unable to exercise the Purchase Option with respect to any Shares for which the Purchase Option has not terminated (the “Repurchase
Shares”), the Participant agrees to pay the Company, as liquidated damages, a sum, if any, by which the market value of the Repurchase Shares (as determined by such Sale Event) exceeds the aggregate Option Price paid for the Repurchase Shares
(the “Damage Amount”).
(e) The Option Price may be payable, at the option of the Company, in cancellation of all
or a portion of any outstanding indebtedness of the Participant to the Company or in cash (by check) or both.
(f) The
Company shall not purchase any fraction of a Share upon exercise of the Purchase Option, and any fraction of a Share resulting from a computation made pursuant to Section 2 of this Agreement shall be rounded to the nearest whole Share (with any
one-half Share being rounded upward).
4.
Restrictions on Transfer
.
(a) The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively “transfer”) any Shares, or any interest therein, that are subject to the Purchase Option, except that the Participant may (i) transfer such Shares to or for the benefit of any spouse, domestic partner sharing the same
household as the Participant, sibling, child or grandchild, or to a trust for the benefit of the Participant or any of such family member’s benefit (an “Approved Relative”),
provided
that such Shares shall remain subject to
this Agreement (including without limitation the restrictions on transfer set forth in this Section 4, the Purchase Option, and the right of first refusal set forth in Section 5) and such permitted transferee shall, as a condition to such
transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement, (ii) transfer such Shares as part of the sale of all or substantially all of the shares
of capital stock of the Company (including pursuant to a merger or consolidation),
provided
that, in accordance with the Plan, the securities or other property received by the Participant in connection with such transaction shall remain
subject to this Agreement, or (iii) pledge to the Company pursuant to the Note such Shares to secure payment of part or all of the purchase price of such Shares.
(b) The Participant shall not transfer any Shares, or any interest therein, that are no longer subject to the Purchase Option, except in
accordance with Section 5 below.
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5.
Right of First Refusal
.
(a) If the Participant proposes to transfer any Shares that are no longer subject to the Purchase Option, then the Participant shall first
give written notice of the proposed transfer (the “Transfer Notice”) to the Company. The Transfer Notice shall name the proposed transferee and state the number of such Shares she proposes to transfer (the “Offered Shares”), the
price per share and all other material terms and conditions of the transfer.
(b) For 30 days following delivery to the
Company of such Transfer Notice, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the
Offered Shares, it shall give written notice of such election to the Participant within such 30-day period. Within 10 days after delivery to the Participant of such notice, the Participant shall tender to the Company at its principal offices the
certificate or certificates representing the Offered Shares, duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in form suitable for transfer of the Offered Shares to the Company. Promptly following
receipt of such certificate or certificates, the Company shall deliver or mail to the Participant a check in payment of the purchase price for the Offered Shares;
provided
that
if the terms of payment set forth in the Transfer Notice
were other than cash against delivery, the Company may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice; and
provided
further
that any delay in making such payment shall not
invalidate the Company’s exercise of its option to purchase the Offered Shares.
(c) If the Company does not elect to
acquire all of the Offered Shares, the Participant may, within the 30-day period following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee,
provided
that
such transfer shall not be on terms and conditions more favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 5 shall
remain subject to this Agreement (including without limitation the restrictions on transfer set forth in Section 4 and the right of first refusal set forth in this Section 5) and such transferee shall, as a condition to such transfer,
deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement.
(d) After the time at which the Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant
on account of such Offered Shares or permit the Participant to exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Offered Shares.
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(e) The following transactions shall be exempt from the provisions of this
Section 5:
(i) a transfer of Shares to or for the benefit of any Approved Relatives, or to a trust established solely
for the benefit of the Participant and/or Approved Relatives;
(ii) any transfer pursuant to an effective registration
statement filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”); and
(iii) the
sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation),
provided, however, that
in the case of a transfer pursuant to clause (i) above, such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in Section 4 and the right of first refusal set forth in this
Section 5) and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement.
(f) The Company may assign its rights to purchase Offered Shares in any particular transaction under this Section 5 to one or more
persons or entities.
(g) The provisions of this Section 5 shall terminate upon the earlier of the following events:
(i) the closing of the sale of shares of Common Stock in an underwritten public offering pursuant to an effective
registration statement filed by the Company under the Securities Act; or
(ii) the sale of all or substantially all of the
capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise (other than a merger or consolidation in which all or substantially all of the individuals and entities who were beneficial owners of the Common
Stock immediately prior to such transaction beneficially own, directly or indirectly, more than 75% of the outstanding securities entitled to vote generally in the election of directors of the resulting, surviving or acquiring corporation in such
transaction).
(h) The Company shall not be required (i) to transfer on its books any of the Shares which shall have
been sold or transferred in violation of any of the provisions set forth in this Agreement, or (ii) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or transferred.
6.
Agreement in Connection with Public Offering
.
The Participant agrees, in connection with the initial underwritten public offering of the Company’s securities pursuant to a registration statement under the Securities Act, (i) not to sell, make short sale
of, loan, grant any options for the purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without the prior written consent of the Company or the underwriters
managing such initial underwritten public offering of the Company’s securities for a period of 180 days from the effective date of such registration statement, and (ii) to execute any agreement reflecting clause (i) above as may be
requested by the Company or the managing underwriters at the time of such offering.
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7.
Restrictive Legends
.
All certificates representing Shares shall have affixed thereto legends in substantially the following form, in addition to any other legends that may be
required under federal or state securities laws:
“The shares of stock represented by this certificate are subject to restrictions on
transfer and an option to purchase set forth in a certain Restricted Stock Agreement between the corporation and the registered owner of these shares (or her predecessor in interest), and such Agreement is available for inspection without charge at
the office of the Secretary of the corporation.”
“The shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be sold, transferred or otherwise disposed of in the absence of an effective registration statement under such Act or an opinion of counsel satisfactory to the corporation to the effect that such
registration is not required.”
8.
Investment Representations
.
The Participant represents, warrants and covenants as follows:
(a) The Participant is purchasing the Shares for her own account for investment only, and not with a view to, or for sale in connection
with, any distribution of the Shares in violation of the Securities Act, or any rule or regulation under the Securities Act.
(b) The Participant has had such opportunity as she has deemed adequate to obtain from representatives of the Company such information as is necessary to permit him to evaluate the merits and risks of her investment in the Company.
(c) The Participant has sufficient experience in business, financial and investment matters to be able to evaluate the
risks involved in the purchase of the Shares and to make an informed investment decision with respect to such purchase.
(d)
The Participant can afford a complete loss of the value of the Shares and is able to bear the economic risk of holding such Shares for an indefinite period.
(e) The Participant understands that (i) the Shares have not been registered under the Securities Act and are “restricted
securities” within the meaning of Rule 144 under the Securities Act; (ii) the Shares cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under the Securities Act or an exemption from registration is
then available; (iii) in any event, the exemption from registration under Rule 144 will not be available for at least one year and even then will not be available unless a public market then exists for the Common Stock, adequate information
concerning the Company is then available to the public,
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and other terms and conditions of Rule 144 are complied with; and (iv) there is now no registration statement on file with the Securities and Exchange
Commission with respect to any stock of the Company and the Company has no obligation or current intention to register the Shares under the Securities Act.
9.
Withholding Taxes; Section 83(b) Election
.
(a) The Participant acknowledges
and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Participant any federal, state or local taxes of any kind required by law to be withheld with respect to the purchase of the Shares by the Participant
or the lapse of the Purchase Option.
(b) The Participant has reviewed with the Participant’s own tax advisors the
federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. The Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its
agents. The Participant understands that the Participant (and not the Company) shall be responsible for the Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement. The
Participant understands that it may be beneficial in many circumstances to elect to be taxed at the time the Shares are purchased rather than when and as the Company’s Purchase Option expires by filing an election under Section 83(b) of
the Code with the I.R.S. within 30 days from the date of purchase.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT’S SOLE
RESPONSIBILITY AND NOT THE COMPANY’S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANT’S BEHALF.
10.
Miscellaneous
.
(a)
No Rights to Employment
. The Participant acknowledges and agrees that the vesting of the Shares pursuant to Section 2 hereof is earned only by continuing service at the will of the Company (not through the act of being hired
or purchasing shares hereunder). The Participant further acknowledges and agrees that the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued engagement as an
employee or consultant for the vesting period, for any period, or at all.
(b)
Severability
. The invalidity or
unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by
law.
(c)
Waiver
. Any provision for the benefit of the Company contained in this Agreement may be waived, either
generally or in any particular instance, by the Board of Directors of the Company.
(d)
Binding Effect
. This
Agreement shall be binding upon and inure to the benefit of the Company and the Participant and their respective heirs, executors, administrators,
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legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Sections 4 and 5 of this Agreement.
(e)
Notice
. All notices required or permitted hereunder shall be in writing and deemed effectively given upon personal delivery or
five days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown beneath her or its respective signature to this Agreement, or at such other address
or addresses as either party shall designate to the other in accordance with this Section 10(e).
(f)
Pronouns
.
Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.
(g)
Entire Agreement
. This Agreement and the Plan constitute the entire agreement between the parties, and supersedes all prior
agreements and understandings, relating to the subject matter of this Agreement.
(i)
Amendment
. This Agreement may
be amended or modified only by a written instrument executed by both the Company and the Participant.
(h)
Governing
Law
. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of Delaware without regard to any applicable conflicts of laws.
(i)
Participant’s Acknowledgments
. The Participant acknowledges that he or she: (i) has read this Agreement;
(ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences
of this Agreement; (iv) is fully aware of the legal and binding effect of this Agreement; and (v) understands that the law firm of Hale and Dorr LLP, is acting as counsel to the Company in connection with the transactions contemplated by
the Agreement, and is not acting as counsel for the Participant.
11.
Delivery of Certificates
. The Participant authorizes the
Company, on his or her behalf, to hold the stock certificates representing the Shares until the latest of:
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(i)
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the date on which the Shares are no longer subject to the Purchase Option;
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(ii)
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the closing of an initial underwritten public offering of the Company’s securities pursuant to an effective registration statement filed by the Company under the Securities
Act;
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(iii)
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a sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise; or
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(iv)
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the date which is no later than thirty days (30) after the date on which the Participant ceases to be employed by the Company,
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provided
that
, if Participant has paid the purchase price of the Shares pursuant to a Note issued to the Company, the Company shall hold such
Shares until payment of the Note in full as pledgee under the Note and not on behalf of the Participant pursuant to this Section 11.
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2.
Escrow
. The Participant shall execute Joint Escrow Instructions in the form attached hereto as
Exhibit B
simultaneously with the execution hereof. The Joint Escrow Instructions shall be delivered to
the person named by the Company to serve as escrow agent thereunder. The Participant shall simultaneously deliver to such escrow agent a stock assignment in the form attached hereto as
Exhibit C
duly endorsed in blank and hereby instructs the
Company to deliver to such escrow agent, on behalf of the Participant, the certificate(s) evidencing the Shares issued hereunder;
provided
that
, if Participant is paying for part or all of the Option Price for the Shares by delivering
a Note to the Company then, in accordance with the terms of the Note, the Participant shall irrevocably instruct the Company, as pledgee under such Note, to deliver to the escrow agent the certificate(s) evidencing the Shares issued hereunder which
have been pledged as collateral for payment in full of the Note and the related blank stock assignment(s), and the Joint Escrow Instructions shall become effective only upon such deposit.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above
written.
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ David Neafus
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Name:
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David Neafus
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Title:
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Vice President, Finance and Administration
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PARTICIPANT
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/s/ Adelene Q. Perkins
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(Signature)
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Adelene Perkins
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Print Name
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Address:
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83 Lincoln Rd
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Wayland, MA 01778
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Exhibit 10.27
Attached hereto is a form of non-statutory stock option agreement by and among the Registrant and each of the below-named persons. The non-statutory stock option agreement by and among the Registrant and each of the below-named persons is
substantially identical in all material respects to such form, except with respect to the details that are set forth below.
The number of shares and the
exercise or purchase price of each of the awards listed in the table below is presented after giving effect to the business combination between Discovery Partners International, Inc. (“Discovery Partners”) and Infinity Pharmaceuticals,
Inc. (“IPI”) in accordance with the terms of the Agreement and Plan of Merger among Discovery Partners, Darwin Corp, a wholly owned subsidiary of Discovery Partners (“Darwin Corp.”), and IPI dated as of April 11, 2006,
pursuant to which IPI merged with and into Darwin Corp. and became a wholly owned subsidiary of Discovery Partners and Discovery Partners changed its name to Infinity Pharmaceuticals, Inc. In addition, the number of shares and the exercise or
purchase price of each of the awards listed in the table below is presented after giving effect to the Registrant’s 1-for-4 reverse stock split, which became effective on September 12, 2006.
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Date of
Agreement
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Name
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Number of Shares
Subject to Award
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Exercise/
Purchase Price
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Vesting
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|
5/10/05
|
|
Steven Holtzman
|
|
55,256
|
|
$2.04
|
|
(1)
|
|
|
|
|
|
|
|
3/31/06
|
|
Steven Holtzman
|
|
331
|
|
$3.48
|
|
(2)
|
|
|
|
|
|
|
|
3/31/06
|
|
Steven Holtzman
|
|
4,449
|
|
$3.48
|
|
(3)
|
|
|
|
|
|
|
|
5/10/05
|
|
Julian Adams
|
|
30,168
|
|
$2.04
|
|
(1)
|
|
|
|
|
|
|
|
5/10/05
|
|
Julian Adams
|
|
30,169
|
|
$2.04
|
|
(4)
|
(1) Vests in equal monthly installments over four
years, beginning as of January 31, 2005.
(2) Vests in monthly equal installments over one year, beginning as of February 1, 2005.
(3) Vests in monthly equal installments over four years, beginning as of February 1, 2006.
(4) Vests in monthly equal installments over six years, beginning as of January 31, 2005.
Infinity Pharmaceuticals, Inc.
Nonstatutory Stock Option Agreement
Granted Under 2001 Stock Incentive Plan
This agreement evidences the
grant by Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), May 10, 2005 (the “Grant Date”) to Julian Adams, an employee of the Company (the “Participant”), of an option to purchase, in whole
or in part, on the terms provided herein and in the Company’s 2001 Stock Incentive Plan (the “Plan”), a total of 136,494 shares (the “Shares”) of common stock, $.0001 par value per share, of the Company (“Common
Stock”) at $0.45 per Share. Unless earlier terminated, this option shall expire on May 9, 2015 (the “Final Exercise Date”).
It is intended that the option evidenced by this agreement shall not be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the
“Code”). Except as otherwise indicated by the context, the term “Participant”, as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.
(a)
Vesting
. Subject to
Section 3 below, this option will become exercisable (“vest”) as to one forty-eighth (l/48th) of the original number of Shares on January 31, 2005 and as to an additional one forty-eighth of the original number of Shares at the
end of each successive month following January 31, 2005 until December 31, 2008. The shares subject to the portion of this option that are not yet exercisable are referred to herein as “Unvested Shares,” and the shares subject to
the portion of this option that has become exercisable are referred to herein as “Vested Shares.”
The right of exercise shall be
cumulative so that to the extent the option is not exercised in any period to the maximum extent permissible it shall continue to be exercisable, in whole or in part, with respect to all shares for which it is vested until the earlier of the Final
Exercise Date or the termination of this option under Section 3 hereof or the Plan.
(b)
Early Exercise
. Notwithstanding the
vesting schedule set forth in paragraph (a), the Participant may elect to exercise this option as to the Unvested Shares (in addition to the Vested Shares) if simultaneously with such exercise the Participant enters into a Stock Restriction
Agreement with the Company in the form attached hereto as
Exhibit A
(the “Stock Restriction Agreement”). The Stock Restriction Agreement provides that the Unvested Shares shall be subject to a right of repurchase (the “Purchase
Option”) in favor of the Company in the event that the Participant ceases to provide services to the Company, as that term is defined in the Plan.
(a)
Form of Exercise.
Subject to the procedures set forth in this Agreement, each election to exercise this option shall be in writing in the form attached to this Agreement as
Exhibit B
, signed by the Participant, and received by the Company at its principal
office, accompanied by this agreement, and payment in full in accordance with Section 4. The Participant may purchase less than the number of shares covered hereby, provided that no partial exercise of this option may be for any fractional
share.
(b)
Continuous Relationship with the Company Required
. Except as otherwise provided in this Section 3, this option may
not be exercised unless the Participant, at the time he or she exercises this option, is, and has been at all times since the Grant Date, an employee, officer, director, employee or advisor, as the case may be, to the Company or any parent or
subsidiary of the Company as defined in Section 424(e) or (f) of the Code (an “Eligible Participant”).
(c)
Termination of Relationship with the Company
. If the Participant ceases to be an Eligible Participant for any reason, then, except as provided in paragraph (d) and (e) below, the right to exercise this option shall terminate three
months after such cessation (but in no event after the Final Exercise Date),
provided
that
this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation.
Notwithstanding the foregoing, if the Participant, prior to the Final Exercise Date, violates the non-competition or confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the
Participant and the Company, the right to exercise this option shall terminate immediately upon such violation. The rights provided in this paragraph are also subject to the limitations provided in paragraph (f) below.
(d)
Exercise Period Upon Death or Disability
. If the Participant dies or becomes permanently and totally disabled (within the meaning of
Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for “cause” as specified in paragraph (f) below, this option shall be
exercisable, within the period of one year following the date of death or disability of the Participant, by the Participant (or in the case of death by an authorized transferee),
provided
that
this option shall be exercisable only to
the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further provided that this option shall not be exercisable after the Final Exercise Date.
(e)
Exercise Period Upon Retirement
. If the Participant retires prior to the Final Exercise Date while he or she is an Eligible Participant and
the Company has not terminated such relationship for “cause” as specified in paragraph (f) below, and such Participant has, at the time of such retirement, served as an employee of the Company for a period of ten years and has, at the
time of cessation, reached the age of 55, then the right to exercise this option shall terminate three years after such cessation, but in no event after the Final Exercise Date (it being understood that the option must be exercised within the period
of three months following the date of cessation in order for the option to qualify as an incentive stock option). In this circumstance, this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on
the date of such cessation.
- 2 -
(f)
Discharge for Cause
. If the Participant, prior to the Final Exercise Date, is discharged by
the Company for “cause” (as defined below), the right to exercise this option shall terminate immediately upon the effective date of such discharge. “Cause” shall mean willful misconduct by the Participant or willful failure by
the Participant to perform his or her responsibilities to the Company (including, without limitation, breach by the Participant of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar agreement
between the Participant and the Company), as determined by the Company, which determination shall be conclusive. The Participant shall be considered to have been discharged for “Cause” if the Company determines, within 30 days after the
Participant’s resignation, that discharge for cause was warranted.
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4.
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Payment of Purchase Price
.
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(a)
Method of
Payment
. Payment of the purchase price for shares purchased upon exercise of this option shall be made (i) by delivery of a promissory note of the Participant in the form attached hereto as
Exhibit C
(except that the aggregate par
value of the shares of Common Stock purchased upon exercise of this option shall be paid by the Participant by check payable to the Company), or (ii) by any other means permitted by the terms of the Plan.
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5.
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Right of First Refusal
.
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(a) If the Participant
proposes to sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively, “transfer”) any Shares acquired upon exercise of this option, then the Participant shall first give written
notice of the proposed transfer (the “Transfer Notice”) to the Company. The Transfer Notice shall name the proposed transferee and state the number of such Shares the Participant proposes to transfer (the “Offered Shares”), the
price per share and all other material terms and conditions of the transfer.
(b) For 30 days following its receipt of such Transfer
Notice, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the Offered Shares, it shall
give written notice of such election to the Participant within such 30-day period. Within 10 days after his receipt of such notice, the Participant shall tender to the Company at its principal offices the certificate or certificates representing the
Offered Shares, duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in a form suitable for transfer of the Offered Shares to the Company. Promptly following receipt of such certificate or certificates,
the Company shall deliver or mail to the Participant a check in payment of the purchase price for the Offered Shares;
provided
that
if the terms of payment set forth in the Transfer Notice were other than cash against delivery, the
Company may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice; and
provided
further
that any delay in making such payment shall not invalidate the Company’s exercise of its option
to purchase the Offered Shares.
(c) If the Company does not elect to acquire all of the Offered Shares, the Participant may, within the
30-day period following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee,
provided
that
- 3 -
such transfer shall not be on terms and conditions more favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the
above, all Offered Shares transferred pursuant to this Section 5 shall remain subject to the right of first refusal set forth in this Section 5 and such transferee shall, as a condition to such transfer, deliver to the Company a written
instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 5.
(d) After the time at
which the Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Offered Shares or permit the
Participant to exercise any of the privileges or rights of a stockholder with respect to such Offered Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Offered Shares.
(e) The following transactions shall be exempt from the provisions of this Section 5:
(1) any transfer of Shares to or for the benefit of any spouse, domestic partner sharing the same household as the Participant, sibling,
child or grandchild of the Participant, or to a trust for their benefit;
(2) any transfer pursuant to an effective
registration statement filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”); and
(3) the sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation);
provided
,
however
, that in the case of a transfer pursuant to clause (1) above, such Shares shall remain subject to the right of first refusal set forth in this Section 5 and such transferee shall, as a condition to
such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 5.
(f) The Company may assign its rights to purchase Offered Shares in any particular transaction under this Section 5 to one or more persons or entities.
(g) The provisions of this Section 5 shall terminate upon the earlier of the following events:
(1) the closing of the sale of shares of Common Stock in an underwritten public offering pursuant to an effective registration statement
filed by the Company under the Securities Act; or
(2) the sale of all or substantially all of the capital stock, assets or
business of the Company, by merger, consolidation, sale of assets or otherwise (other than a merger or consolidation in which all or substantially all of the individuals and entities who were beneficial owners of the Common Stock immediately prior
to such transaction beneficially own, directly or indirectly, more than 75% of the outstanding securities entitled to vote generally in the election of directors of the resulting, surviving or acquiring corporation in such transaction).
- 4 -
(h) The Company shall not be required (a) to transfer on its books any of the Shares which shall
have been sold or transferred in violation of any of the provisions set forth in this Section 5, or (b) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or transferred.
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6.
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Agreement in Connection with Public Offering
.
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The
Participant agrees, in connection with the initial underwritten public offering of the Company’s securities pursuant to a registration statement under the Securities Act, (i) not to sell, make short sale of, loan, grant any options for the
purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without the prior written consent of the Company or the underwriters managing such initial underwritten public
offering of the Company’s securities for a period of 180 days from the effective date of such registration statement, and (ii) to execute any agreement reflecting clause (i) above as may be requested by the Company or the managing
underwriters at the time of such offering.
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7.
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Legends on Stock Certificates
.
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All stock
certificates representing Shares issued to the Participant upon exercise of this option shall have affixed thereto legends substantially in the following forms, in addition to any other legends required by applicable federal or state law:
“The shares of stock represented by this certificate have not been registered under the Securities Act of 1933 and may not be
transferred, sold or otherwise disposed of in the absence of an effective registration statement with respect to the shares evidenced by this certificate, filed and made effective under the Securities Act of 1933, or an opinion of counsel
satisfactory to the Company to the effect that registration under such Act is not required.”
“The shares of stock represented by
this certificate are subject to certain restrictions on transfer contained in a Stock Option Agreement, a copy of which will be furnished upon request by the issuer.”
No Shares will be issued pursuant to
the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withheld in respect of this option.
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9.
|
Nontransferability of Option
.
|
This option may not
be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the lifetime of the Participant, this option shall be
exercisable only by the Participant.
- 5 -
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10.
|
Provisions of the Plan
.
|
This option is subject to
the provisions of the Plan, a copy of which is furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused this option to be
executed under its corporate seal by its duly authorized officer. This option shall take effect as a sealed instrument.
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Infinity Pharmaceuticals, Inc.
,
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Dated: May 18, 2005
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By:
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/s/ Thomas J. Burke
|
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Name:
|
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Thomas J. Burke
|
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Title:
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Controller
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PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy
of the Company’s 2001 Stock Incentive Plan.
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PARTICIPANT:
|
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/s/ Julian Adams
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Address:
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673 Boylston St.
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Boston, MA 02116
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- 6 -
Exhibit 10.28
RESTRICTED STOCK AGREEMENT
AGREEMENT made this 6th day of October 2003, between Infinity
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and Julian Adams (the “Participant”).
For valuable
consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.
Purchase of Shares
. The Company shall
issue and sell to the Participant and the Participant shall purchase from the Company, subject to the terms and conditions set forth in this Agreement and in the Company’s 2001 Stock Incentive Plan (the “Plan”), an aggregate of
750,000 shares (the “Shares”) of common stock, $.0001 par value per share (“Common Stock”) of the Company at a price of $0.38 per share (the “Option Price”), purchasable as set forth in and subject to the terms and
conditions of this Agreement and the Plan.
The aggregate purchase price for the Shares shall be paid by the Participant by delivery of a
promissory note (the “Note”) of the Participant in the form attached hereto as
Exhibit A
(except that the aggregate par value of the Shares shall be paid by the Participant by check payable to the Company). Upon receipt of payment
by the Company for the Shares, the Company shall issue to the Participant one or more certificates in the name of the Participant for that number of Shares purchased by the Participant. The Participant agrees that the Shares shall be subject to the
Purchase Option set forth in Section 2 of this Agreement and the restrictions on transfer set forth in Sections 4 and 5 of this Agreement.
2.
Purchase Option.
(a) In the event that the Participant ceases to be employed by the Company for any
reason or no reason, with or without cause, prior to October 6, 2007, the Company shall have the right and option (the “Purchase Option”) to purchase from the Participant, for a sum equal to the Option Price per share, any shares then
subject to the Purchase Option. All of the Shares shall be subject to the Purchase Option prior to October 6, 2004. On October 6, 2004, one-fourth (l/4
th
) of such Shares will no longer be subject to the Purchase Option and at the end of each full month thereafter, one forty-eighth (l/48
th
) of such Shares shall no longer be subject to the Purchase Option until such time as all of such Shares are no longer subject to the Purchase Option. The
Shares that are subject to the Purchase Option are referred to hereon as the “Unvested Shares” and the Shares that are no longer subject to the Purchase Option are referred to hereby as the “Vested Shares.”
(b) Notwithstanding paragraph (a) above, in the event that the Participant’s employment is terminated by the Company without
Cause (as defined below) or the Participant resigns for Good Reason (as defined below), then, subject to the Participant entering into a severance agreement and general release of claims, in a form acceptable to the Company,, the Participant shall
be deemed to have completed an additional six (6) months of employment for purposes of calculating the number of Shares that remain subject to the Purchase Option.
(c) As used herein, “Cause” for termination shall be deemed to exist upon
(a) good faith finding by the Board of Directors of the Company of (i) failure of the Participant to perform his material duties as an employee of the Company in a manner acceptable to the Company, which failure continues for a period of
more than thirty (30) days after the Company has provided the Participant with notice thereof has been provided to you in writing by the Company, setting forth in reasonable detail the nature of such failure or (ii) the commission by the
Participant of acts of dishonesty; gross negligence or misconduct; or (b) the conviction of the Participant of, or the entry of a pleading of guilty or
nolo contendere
by the Participant to, any felony or any crime involving extortion,
dishonesty, or theft.
(d) As used herein, “Good Reason” for resignation shall be deemed to exist if the
Participant resigns due to (a) a material diminution in the Participant’s job responsibilities or titles or (b) the Company materially breaching an employment contract with the Participant, including the Offer Letter between the
Company and the Participant dated August 19, 2003.
3.
Exercise of Purchase Option and Closing
.
(a) The Company may exercise the Purchase Option by delivering or mailing to the Participant (or his estate), in accordance with
Section 10(e) within 90 days after the termination of the employment of the Participant with the Company, a written notice of exercise of the Purchase Option. Such notice shall specify the number of Shares to be purchased. If and to the extent
the Purchase Option is not so exercised by the giving of such a notice within such 90-day period, the Purchase Option shall automatically expire and terminate effective upon the expiration of such 90-day period.
(b) Within 10 days after his receipt of the Company’s notice of the exercise of the Purchase Option pursuant to subsection
(a) above, the Participant (or his estate or any escrow agent) shall tender to the Company at its principal offices the certificate or certificates representing the Shares which the Company has elected to purchase, duly endorsed in blank by the
Participant or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such Shares to the Company. Upon its receipt of such certificate or certificates, the Company shall pay the aggregate Option Price therefor in
the form of a check or by canceling indebtedness owed by the Participant to the Company, or any combination thereof.
(c)
After the time at which any Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Shares or permit the
Participant to exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Shares.
(d) In the event that, due to the sale (whether by foreclosure or otherwise), transfer, assignment or other disposition of the Shares
(other than pursuant to the Company’s exercise of the Purchase Option), including, without limitation, a sale by the Company or any assignee of the Shares pursuant to the terms of the Note (each, a “Sale Event”), the Company is unable
to exercise the Purchase Option with respect to any Shares for which the Purchase Option has not terminated (the “Repurchase Shares”), the Participant agrees to pay the Company, as liquidated damages, a sum, if any, by which the market
value of the Repurchase Shares (as
- 2 -
determined by such Sale Event) exceeds the aggregate Option Price paid for the Repurchase Shares (the “Damage Amount”).
(e) The Option Price may be payable, at the option of the Company, in cancellation of all or a portion of any outstanding indebtedness of
the Participant to the Company or in cash (by check) or both.
(f) The Company shall not purchase any fraction of a Share
upon exercise of the Purchase Option, and any fraction of a Share resulting from a computation made pursuant to Section 2 of this Agreement shall be rounded to the nearest whole Share (with any one-half Share being rounded upward).
4.
Restrictions on Transfer
.
(a) The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively “transfer”) any Shares, or any interest therein, that are
subject to the Purchase Option, except that the Participant may (i) transfer such Shares to or for the benefit of any spouse, domestic partner sharing the same household as the Participant, sibling, child or grandchild, or to a trust for the
benefit of the Participant or any of such family member’s benefit (an “Approved Relative”),
provided
that such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth
in this Section 4, the Purchase Option, and the right of first refusal set forth in Section 5) and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such
transferee shall be bound by all of the terms and conditions of this Agreement, (ii) transfer such Shares as part of the sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or
consolidation),
provided
that, in accordance with the Plan, the securities or other property received by the Participant in connection with such transaction shall remain subject to this Agreement, or (iii) pledge to the Company pursuant
to the Note such Shares to secure payment of part or all of the purchase price of such Shares.
(b) The Participant shall
not transfer any Shares, or any interest therein, that are no longer subject to the Purchase Option, except in accordance with Section 5 below.
5.
Right of First Refusal
.
(a) If the Participant proposes to transfer any Shares
that are no longer subject to the Purchase Option, then the Participant shall first give written notice of the proposed transfer (the “Transfer Notice”) to the Company. The Transfer Notice shall name the proposed transferee and state the
number of such Shares he proposes to transfer (the “Offered Shares”), the price per share and all other material terms and conditions of the transfer.
(b) For 30 days following delivery to the Company of such Transfer Notice, the Company shall have the option to purchase all (but not less
than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice, hi the event the Company elects to purchase all of the Offered Shares, it shall give written notice of such election to the Participant within such
30-day period. Within 10 days after delivery to the Participant of such notice, the Participant shall tender to the Company at its principal offices the certificate or certificates
- 3 -
representing the Offered Shares, duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in form suitable for
transfer of the Offered Shares to the Company. Promptly following receipt of such certificate or certificates, the Company shall deliver or mail to the Participant a check in payment of the purchase price for the Offered Shares;
provided
that
if the terms of payment set forth in the Transfer Notice were other than cash against delivery, the Company may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice; and
provided
further
that any delay in making such payment shall not invalidate the Company’s exercise of its option to purchase the Offered Shares.
(c) If the Company does not elect to acquire all of the Offered Shares, the Participant may, within the 30-day period following the expiration of the option granted to the Company under subsection (b) above,
transfer the Offered Shares to the proposed transferee,
provided
that
such transfer shall not be on terms and conditions more favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the above,
all Offered Shares transferred pursuant to this Section 5 shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in Section 4 and the right of first refusal set forth in this
Section 5) and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement.
(d) After the time at which the Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to
subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Offered Shares or permit the Participant to exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in
so far as permitted by law, treat the Company as the owner of such Offered Shares.
(e) The following transactions shall be
exempt from the provisions of this Section 5:
(i) a transfer of Shares to or for the benefit of any Approved
Relatives, or to a trust established solely for the benefit of the Participant and/or Approved Relatives;
(ii) any transfer
pursuant to an effective registration statement filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”); and
(iii) the sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation),
provided, however, that in the case of a transfer pursuant to clause (i) above, such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in
Section 4 and the right of first refusal set forth in this Section 5) and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the
terms and conditions of this Agreement.
- 4 -
(f) The Company may assign its rights to purchase Offered Shares in any particular
transaction under this Section 5 to one or more persons or entities.
(g) The provisions of this Section 5 shall
terminate upon the earlier of the following events:
(i) the closing of the sale of shares of Common Stock in an
underwritten public offering pursuant to an effective registration statement filed by the Company under the Securities Act; or
(ii) the sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise (other than a merger or consolidation in which all or substantially all of the
individuals and entities who were beneficial owners of the Common Stock immediately prior to such transaction beneficially own, directly or indirectly, more than 75% of the outstanding securities entitled to vote generally in the election of
directors of the resulting, surviving or acquiring corporation in such transaction).
(h) The Company shall not be required
(i) to transfer on its books any of the Shares which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement, or (ii) to treat as owner of such Shares or to pay dividends to any transferee to
whom any such Shares shall have been so sold or transferred.
6.
Agreement in Connection with Public Offering
.
The Participant agrees, in connection with the initial underwritten public offering of the Company’s securities pursuant to a registration statement
under the Securities Act, (i) not to sell, make short sale of, loan, grant any options for the purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without
the prior written consent of the Company or the underwriters managing such initial underwritten public offering of the Company’s securities for a period of 180 days from the effective date of such registration statement, and (ii) to
execute any agreement reflecting clause (i) above as may be requested by the Company or the managing underwriters at the time of such offering.
7.
Restrictive Legends
.
All certificates representing Shares shall have affixed thereto legends in
substantially the following form, in addition to any other legends that may be required under federal or state securities laws:
“The
shares of stock represented by this certificate are subject to restrictions on transfer and an option to purchase set forth in a certain Restricted Stock Agreement between the corporation and the registered owner of these shares (or his predecessor
in interest), and such Agreement is available for inspection without charge at the office of the Secretary of the corporation.”
- 5 -
“The shares represented by this certificate have not been registered under the Securities Act of
1933, as amended, and may not be sold, transferred or otherwise disposed of in the absence of an effective registration statement under such Act or an opinion of counsel satisfactory to the corporation to the effect that such registration is not
required.”
8.
Investment Representations
.
The Participant represents, warrants and covenants as follows:
(a) The Participant is
purchasing the Shares for his own account for investment only, and not with a view to, or for sale in connection with, any distribution of the Shares in violation of the Securities Act, or any rule or regulation under the Securities Act.
(b) The Participant has had such opportunity as he has deemed adequate to obtain from representatives of the Company such information
as is necessary to permit him to evaluate the merits and risks of his investment in the Company.
(c) The Participant has
sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the purchase of the Shares and to make an informed investment decision with respect to such purchase.
(d) The Participant can afford a complete loss of the value of the Shares and is able to bear the economic risk of holding such Shares for
an indefinite period.
(e) The Participant understands that (i) the Shares have not been registered under the
Securities Act and are “restricted securities” within the meaning of Rule 144 under the Securities Act; (ii) the Shares cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under the Securities
Act or an exemption from registration is then available; (iii) in any event, the exemption from registration under Rule 144 will not be available for at least one year and even then will not be available unless a public market then exists for
the Common Stock, adequate information concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and (iv) there is now no registration statement on file with the Securities and
Exchange Commission with respect to any stock of the Company and the Company has no obligation or current intention to register the Shares under the Securities Act.
9.
Withholding Taxes; Section 83(b) Election
.
(a) The Participant acknowledges
and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Participant any federal, state or local taxes of any kind required by law to be withheld with respect to the purchase of the Shares by the Participant
or the lapse of the Purchase Option.
(b) The Participant has reviewed with the Participant’s own tax advisors the
federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. The Participant is relying solely on such advisors and not on
- 6 -
any statements or representations of the Company or any of its agents. The Participant understands that the Participant (and not the Company) shall be
responsible for the Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement. The Participant understands that it may be beneficial in many circumstances to elect to be
taxed at the time the Shares are purchased rather than when and as the Company’s Purchase Option expires by filing an election under Section 83(b) of the Code with the I.R.S. within 30 days from the date of purchase.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANT’S BEHALF.
10.
Miscellaneous
.
(a)
No Rights to Employment
. The Participant acknowledges and agrees that the vesting of the
Shares pursuant to Section 2 hereof is earned only by continuing service at the will of the Company (not through the act of being hired or purchasing shares hereunder). The Participant further acknowledges and agrees that the transactions
contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued engagement as an employee or consultant for the vesting period, for any period, or at all.
(b)
Severability
. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
(c)
Waiver
. Any provision for the benefit of the Company contained in this Agreement may be waived, either generally or in any
particular instance, by the Board of Directors of the Company.
(d)
Binding Effect
. This Agreement shall be binding
upon and inure to the benefit of the Company and the Participant and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Sections 4 and 5 of this
Agreement.
(e)
Notice
. All notices required or permitted hereunder shall be in writing and deemed effectively given
upon personal delivery or five days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown beneath his or its respective signature to this Agreement,
or at such other address or addresses as either party shall designate to the other in accordance with this Section 10(e).
(f)
Pronouns
. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice
versa.
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(g)
Entire Agreement
. This Agreement and the Plan constitute the entire agreement
between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
(h)
Amendment
. This Agreement may be amended or modified only by a written instrument executed by both the Company and the Participant.
(i)
Governing Law
. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of Delaware without regard to any applicable conflicts of laws.
(j)
Participant’s Acknowledgments
. The Participant acknowledges that he or she: (i) has read this Agreement;
(ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences
of this Agreement; (iv) is fully aware of the legal and binding effect of this Agreement; and (v) understands that the law firm of Hale and Dorr LLP, is acting as counsel to the Company in connection with the transactions contemplated by
the Agreement, and is not acting as counsel for the Participant.
11.
Delivery of Certificates
. The Participant authorizes the
Company, on his or her behalf, to hold the stock certificates representing the Shares until the latest of:
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(i)
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the date on which the Shares are no longer subject to the Purchase Option;
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(ii)
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the closing of an initial underwritten public offering of the Company’s securities pursuant to an effective registration statement filed by the Company under the Securities
Act;
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(iii)
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a sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise; or
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(iv)
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the date which is no later than thirty days (30) after the date on which the Participant ceases to be employed by the Company,
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provided that
, if Participant has paid the purchase price of the Shares pursuant to a Note issued to the Company, the Company shall hold such Shares until payment
of the Note in full as pledgee under the Note and not on behalf of the Participant pursuant to this Section 11.
12.
Escrow
.
The Participant shall execute Joint Escrow Instructions in the form attached hereto as
Exhibit B
simultaneously with the execution hereof. The Joint Escrow Instructions shall be delivered to the person named by the Company to serve as escrow
agent thereunder. The Participant shall simultaneously deliver to such escrow agent a stock assignment in the form attached hereto as
Exhibit C
duly endorsed in blank and hereby instructs the Company to deliver to such escrow agent, on behalf
of the Participant, the certificate(s) evidencing the Shares issued hereunder;
provided
that
, if Participant is paying for part or all of the Option Price for the Shares by delivering a Note to the Company then, in accordance with the
terms of the Note, the Participant shall irrevocably instruct the Company, as pledgee under such Note, to deliver to the escrow agent the certificate(s) evidencing the Shares issued hereunder
- 8 -
which have been pledged as collateral for payment in full of the Note and the related blank stock assignment(s), and the Joint Escrow Instructions shall
become effective only upon such deposit.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first
above written.
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Steven H. Holtzman
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Name:
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Steven H. Holtzman
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Title:
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President and CEO
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PARTICIPANT
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/s/ Julian Adams
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(Signature)
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Julian Adams
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Print Name
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Address:
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280 Newbury St # 5
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Boston, MA 02116
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- 9 -
Exhibit 10.29
Attached hereto is a form of stock restriction agreement by and among the Registrant and each of the below-named persons. The stock restriction agreement by and among the Registrant and each of the below-named persons is substantially
identical in all material respects to such form, except with respect to the details that are set forth below.
The number of shares and the exercise or
purchase price of each of the awards listed in the table below is presented after giving effect to the business combination between Discovery Partners International, Inc. (“Discovery Partners”) and Infinity Pharmaceuticals, Inc.
(“IPI”) in accordance with the terms of the Agreement and Plan of Merger among Discovery Partners, Darwin Corp, a wholly owned subsidiary of Discovery Partners (“Darwin Corp.”), and IPI dated as of April 11, 2006, pursuant
to which IPI merged with and into Darwin Corp. and became a wholly owned subsidiary of Discovery Partners and Discovery Partners changed its name to Infinity Pharmaceuticals, Inc. In addition, the number of shares and the exercise or purchase price
of each of the awards listed in the table below is presented after giving effect to the Registrant’s 1-for-4 reverse stock split, which became effective on September 12, 2006.
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Date of
Agreement
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Name
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Number of Shares
Subject to Award
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Exercise/
Purchase Price
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Vesting
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8/1/03
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Steven Holtzman
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154,718
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$1.72
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(1)
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3/25/04
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Steven Holtzman
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40,337
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$1.72
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(2)
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(1) Subject to a right of repurchase, which right
lapses, or “vests” in equal monthly installments over four years, beginning as of January 31, 2003
(3) Subject to a right of repurchase,
which right lapses, or “vests” in equal monthly installments over four years, beginning as of January 31, 2004.
STOCK RESTRICTION AGREEMENT
AGREEMENT made this ____ day of ____ 200_, between Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and Steven H.
Holtzman (the “Participant”).
For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.
Purchase of Shares
. The Company shall issue and sell to the Participant and the Participant shall purchase from the Company,
subject to the terms and conditions set forth in this Agreement and in the Company’s 2001 Stock Incentive Plan (the “Plan”), an aggregate of ________ shares (the “Shares”) of common stock, $.0001 par value per share
(“Common Stock”) of the Company at a price of $____ per share (the “Option Price”), purchasable as set forth in and subject to the terms and conditions of this Agreement and the Plan.
The aggregate purchase price for the Shares shall be paid by the Participant by delivery of a promissory note (the “Note”) of the Participant
in the form attached hereto as
Exhibit A
(except that the aggregate par value of the Shares shall be paid by the Participant by check payable to the Company). Upon receipt of payment by the Company for the Shares, the Company shall issue to
the Participant one or more certificates in the name of the Participant for that number of Shares purchased by the Participant. The Participant agrees that the Shares shall be subject to the Purchase Option set forth in Section 2 of this
Agreement and the restrictions on transfer set forth in Sections 4 and 5 of this Agreement.
2.
Purchase Option.
(a) In the event that the Participant ceases to be employed in any capacity by the Company for any reason or no reason, with or without
cause, prior to __________, the Company shall have the right and option (the “Purchase Option”) to purchase from the Participant, for a sum of $____ per share (the “Option Price”), some or all of the Unvested Shares (as defined
below).
“Unvested Shares” means the total number of Shares multiplied by the Applicable Percentage at the time the Purchase
Option becomes exercisable by the Company. The “Applicable Percentage” shall be 100% less 2.08333% for each month of employment completed by the Participant with the Company from and after ___________, and (ii) zero on or after
___________.
(b) In the event that the Participant’s employment with the Company is terminated by reason of death or
disability, the Purchase Option shall lapse to all of the Unvested Shares for which the Purchase Option would otherwise become exercisable. For this purpose, “disability” shall mean the inability of the Participant, due to a medical
reason, to carry out his duties as an employee of the Company for a period of six consecutive months.
(c) For purposes of
this Agreement, the Participant shall be deemed employed by the Company if he is an employee, consultant, advisor or member of the Board of Directors of the Company or of a parent or subsidiary of the Company.
- 10 -
3.
Exercise of Purchase Option and Closing
.
(a) The Company may exercise the Purchase Option by delivering or mailing to the Participant (or his estate), in accordance with
Section 10(e) within 90 days after the termination of the employment of the Participant with the Company, a written notice of exercise of the Purchase Option. Such notice shall specify the number of Shares to be purchased. If and to the extent
the Purchase Option is not so exercised by the giving of such a notice within such 90-day period, the Purchase Option shall automatically expire and terminate effective upon the expiration of such 90-day period.
(b) Within 10 days after his receipt of the Company’s notice of the exercise of the Purchase Option pursuant to subsection
(a) above, the Participant (or his estate or any escrow agent) shall tender to the Company at its principal offices the certificate or certificates representing the Shares which the Company has elected to purchase, duly endorsed in blank by the
Participant or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such Shares to the Company. Upon its receipt of such certificate or certificates, the Company shall pay the aggregate Option Price therefore in
the form of a check or by canceling indebtedness owed by the Participant to the Company, or any combination thereof.
(c)
After the time at which any Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Shares or permit the
Participant to exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Shares.
(d) In the event that, due to the sale (whether by foreclosure or otherwise), transfer, assignment or other disposition of the Shares
(other than pursuant to the Company’s exercise of the Purchase Option), including, without limitation, a sale by the Company or any assignee of the Shares pursuant to the terms of the Note (each, a “Sale Event”), the Company is unable
to exercise the Purchase Option with respect to any Shares for which the Purchase Option has not terminated (the “Repurchase Shares”), the Participant agrees to pay the Company, as liquidated damages, a sum, if any, by which the market
value of the Repurchase Shares (as determined by such Sale Event) exceeds the aggregate Option Price paid for the Repurchase Shares (the “Damage Amount”).
(e) The Option Price may be payable, at the option of the Company, in cancellation of all or a portion of any outstanding indebtedness of
the Participant to the Company or in cash (by check) or both.
(f) The Company shall not purchase any fraction of a Share
upon exercise of the Purchase Option, and any fraction of a Share resulting from a computation made pursuant to Section 2 of this Agreement shall be rounded to the nearest whole Share (with any one-half Share being rounded upward).
- 11 -
4.
Restrictions on Transfer
.
(a) The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively “transfer”) any Shares, or any interest therein, that are subject to the Purchase Option, except that the Participant may (i) transfer such Shares to or for the benefit of any spouse, domestic partner sharing the same
household as the Participant, sibling, child or grandchild, or to a trust for the benefit of the Participant or any of such family member’s benefit (an “Approved Relative”),
provided
that such Shares shall remain subject to
this Agreement (including without limitation the restrictions on transfer set forth in this Section 4, the Purchase Option, and the right of first refusal set forth in Section 5) and such permitted transferee shall, as a condition to such
transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement, (ii) transfer such Shares as part of the sale of all or substantially all of the shares
of capital stock of the Company (including pursuant to a merger or consolidation),
provided
that, in accordance with the Plan, the securities or other property received by the Participant in connection with such transaction shall remain
subject to this Agreement, or (iii) pledge to the Company pursuant to the Note such Shares to secure payment of part or all of the purchase price of such Shares.
(b) The Participant shall not transfer any Shares, or any interest therein, that are no longer subject to the Purchase Option, except in
accordance with Section 5 below.
5.
Right of First Refusal
.
(a) If the Participant proposes to transfer any Shares that are no longer subject to the Purchase Option, then the Participant shall first
give written notice of the proposed transfer (the “Transfer Notice”) to the Company. The Transfer Notice shall name the proposed transferee and state the number of such Shares he proposes to transfer (the “Offered Shares”), the
price per share and all other material terms and conditions of the transfer.
(b) For 30 days following delivery to the
Company of such Transfer Notice, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the
Offered Shares, it shall give written notice of such election to the Participant within such 30-day period. Within 10 days after delivery to the Participant of such notice, the Participant shall tender to the Company at its principal offices the
certificate or certificates representing the Offered Shares, duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in form suitable for transfer of the Offered Shares to the Company. Promptly following
receipt of such certificate or certificates, the Company shall deliver or mail to the Participant a check in payment of the purchase price for the Offered Shares;
provided
that
if the terms of payment set forth in the Transfer Notice
were other than cash against delivery, the Company may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice; and
provided
further
that any delay in making such payment shall not
invalidate the Company’s exercise of its option to purchase the Offered Shares.
- 12 -
(c) If the Company does not elect to acquire all of the Offered Shares, the Participant
may, within the 30-day period following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee,
provided
that
such transfer shall not be on terms and
conditions more favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 5 shall remain subject to this Agreement (including without
limitation the restrictions on transfer set forth in Section 4 and the right of first refusal set forth in this Section 5) and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming
that such transferee shall be bound by all of the terms and conditions of this Agreement.
(d) After the time at which the
Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Offered Shares or permit the Participant to
exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Offered Shares.
(e) The following transactions shall be exempt from the provisions of this Section 5:
(i) a transfer of Shares to or for the benefit of any Approved Relatives, or to a trust established solely for the benefit of the
Participant and/or Approved Relatives;
(ii) any transfer pursuant to an effective registration statement filed by the
Company under the Securities Act of 1933, as amended (the “Securities Act”); and
(iii) the sale of all or
substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation),
provided, however, that in the case of
a transfer pursuant to clause (i) above, such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in Section 4 and the right of first refusal set forth in this Section 5)
and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement.
(f) The Company may assign its rights to purchase Offered Shares in any particular transaction under this Section 5 to one or more
persons or entities.
(g) The provisions of this Section 5 shall terminate upon the earlier of the following events:
(i) the closing of the sale of shares of Common Stock in an underwritten public offering pursuant to an effective
registration statement filed by the Company under the Securities Act; or
- 13 -
(ii) the sale of all or substantially all of the capital stock, assets or business of the
Company, by merger, consolidation, sale of assets or otherwise (other than a merger or consolidation in which all or substantially all of the individuals and entities who were beneficial owners of the Common Stock immediately prior to such
transaction beneficially own, directly or indirectly, more than 75% of the outstanding securities entitled to vote generally in the election of directors of the resulting, surviving or acquiring corporation in such transaction).
(h) The Company shall not be required (i) to transfer on its books any of the Shares which shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement, or (ii) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or transferred.
6.
Agreement in Connection with Public Offering
.
The Participant agrees, in connection with the initial underwritten public offering of the Company’s securities pursuant to a registration statement under the Securities Act, (i) not to sell, make short sale
of, loan, grant any options for the purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without the prior written consent of the Company or the underwriters
managing such initial underwritten public offering of the Company’s securities for a period of 180 days from the effective date of such registration statement, and (ii) to execute any agreement reflecting clause (i) above as may be
requested by the Company or the managing underwriters at the time of such offering.
7.
Restrictive Legends
.
All certificates representing Shares shall have affixed thereto legends in substantially the following form, in addition to any other legends that may be
required under federal or state securities laws:
“The shares of stock represented by this certificate are subject to restrictions on
transfer and an option to purchase set forth in a certain Stock Restriction Agreement between the corporation and the registered owner of these shares (or his predecessor in interest), and such Agreement is available for inspection without charge at
the office of the Secretary of the corporation.”
“The shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be sold, transferred or otherwise disposed of in the absence of an effective registration statement under such Act or an opinion of counsel satisfactory to the corporation to the effect that such
registration is not required.”
- 14 -
8.
Investment Representations
.
The Participant represents, warrants and covenants as follows:
(a) The Participant is purchasing the Shares for his own account for investment only, and not with a view to, or for sale in connection
with, any distribution of the Shares in violation of the Securities Act, or any rule or regulation under the Securities Act.
(b) The Participant has had such opportunity as he has deemed adequate to obtain from representatives of the Company such information as is necessary to permit him to evaluate the merits and risks of his investment in the Company.
(c) The Participant has sufficient experience in business, financial and investment matters to be able to evaluate the
risks involved in the purchase of the Shares and to make an informed investment decision with respect to such purchase.
(d)
The Participant can afford a complete loss of the value of the Shares and is able to bear the economic risk of holding such Shares for an indefinite period.
(e) The Participant understands that (i) the Shares have not been registered under the Securities Act and are “restricted
securities” within the meaning of Rule 144 under the Securities Act; (ii) the Shares cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under the Securities Act or an exemption from registration is
then available; (iii) in any event, the exemption from registration under Rule 144 will not be available for at least one year and even then will not be available unless a public market then exists for the Common Stock, adequate information
concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and (iv) there is now no registration statement on file with the Securities and Exchange Commission with respect to any stock
of the Company and the Company has no obligation or current intention to register the Shares under the Securities Act.
9.
Withholding
Taxes; Section 83(b) Election
.
(a) The Participant acknowledges and agrees that the Company has the right to
deduct from payments of any kind otherwise due to the Participant any federal, state or local taxes of any kind required by law to be withheld with respect to the purchase of the Shares by the Participant or the lapse of the Purchase Option.
(b) The Participant has reviewed with the Participant’s own tax advisors the federal, state, local and foreign tax
consequences of this investment and the transactions contemplated by this Agreement. The Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Participant understands
that the Participant (and not the Company) shall be responsible for the Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement. The Participant understands that it may be
beneficial in many circumstances to elect to be taxed at the time the Shares are purchased rather than when and as the Company’s Purchase Option expires by filing an election under Section 83(b) of the Code with the I.R.S. within 30 days
from the date of purchase.
- 15 -
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT’S SOLE RESPONSIBILITY AND NOT THE
COMPANY’S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANT’S BEHALF.
10.
Miscellaneous
.
(a)
No Rights to Employment
. The Participant acknowledges and agrees that the vesting of the Shares pursuant to Section 2 hereof is earned only by continuing service at the will of the Company (not through the act of being hired
or purchasing shares hereunder). The Participant further acknowledges and agrees that the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued engagement as an
employee or consultant for the vesting period, for any period, or at all.
(b)
Severability
. The invalidity or
unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by
law.
(c)
Waiver
. Any provision for the benefit of the Company contained in this Agreement may be waived, either
generally or in any particular instance, by the Board of Directors of the Company.
(d)
Binding Effect
. This
Agreement shall be binding upon and inure to the benefit of the Company and the Participant and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in
Sections 4 and 5 of this Agreement.
(e)
Notice
. All notices required or permitted hereunder shall be in writing and
deemed effectively given upon personal delivery or five days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown beneath his or its respective
signature to this Agreement, or at such other address or addresses as either party shall designate to the other in accordance with this Section 10(e).
(f)
Pronouns
. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include
the plural, and vice versa.
(g)
Entire Agreement
. This Agreement and the Plan constitute the entire agreement
between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
(h)
Amendment
. This Agreement may be amended or modified only by a written instrument executed by both the Company and the Participant.
- 16 -
(i)
Governing Law
. This Agreement shall be construed, interpreted and enforced in
accordance with the internal laws of the State of Delaware without regard to any applicable conflicts of laws.
(j)
Participant’s Acknowledgments
. The Participant acknowledges that he or she: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the
Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; (iv) is fully aware of the legal and binding effect of this Agreement; and (v) understands
that the law firm of Hale and Dorr LLP, is acting as counsel to the Company in connection with the transactions contemplated by the Agreement, and is not acting as counsel for the Participant.
11.
Delivery of Certificates
. The Participant authorizes the Company, on his or her behalf, to hold the stock certificates representing the Shares
until the latest of:
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(i)
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the date on which the Shares are no longer subject to the Purchase Option;
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(ii)
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the closing of an initial underwritten public offering of the Company’s securities pursuant to an effective registration statement filed by the Company under the Securities
Act;
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(iii)
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a sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise; or
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(iv)
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the date which is no later than thirty days (30) after the date on which the Participant ceases to be employed by the Company,
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provided
that
, if Participant has paid the purchase price of the Shares pursuant to a Note issued to the Company, the Company shall hold such Shares until
payment of the Note in full as pledgee under the Note and not on behalf of the Participant pursuant to this Section 11.
12.
Escrow
. The Participant shall execute Joint Escrow Instructions in the form attached hereto as
Exhibit B
simultaneously with the execution hereof. The Joint Escrow Instructions shall be delivered to the person named by the Company to
serve as escrow agent thereunder. The Participant shall simultaneously deliver to such escrow agent a stock assignment in the form attached hereto as
Exhibit C
duly endorsed in blank and hereby instructs the Company to deliver to such escrow
agent, on behalf of the Participant, the certificate(s) evidencing the Shares issued hereunder;
provided
that
, if Participant is paying for part or all of the Option Price for the Shares by delivering a Note to the Company then, in
accordance with the terms of the Note, the Participant shall irrevocably instruct the Company, as pledgee under such Note, to deliver to the escrow agent the certificate(s) evidencing the Shares issued hereunder which have been pledged as collateral
for payment in full of the Note and the related blank stock assignment(s), and the Joint Escrow Instructions shall become effective only upon such deposit.
- 17 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above
written.
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INFINITY PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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PARTICIPANT
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(Signature)
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Steven H. Holtzman
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Print Name
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Address:
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115 Powers Rd
Sudbury, MA 01776
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- 18 -
Exhibit 10.30
Infinity Pharmaceuticals, Inc.
Nonstatutory Stock Option Agreement
Granted Under 2001 Stock Incentive Plan
This agreement evidences the
grant by Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), on March 25, 2004 (the “Grant Date”) to Steven H. Holtzman, a consultant to the Company (the “Participant”), of an option to
purchase, in whole or in part, on the terms provided herein and in the Company’s 2001 Stock Incentive Plan (the “Plan”), a total of 17,500 shares (the “Shares”) of common stock, $.0001 par value per share, of the Company
(“Common Stock”) at $0.38 per Share. Unless earlier terminated, this option shall expire on March 24, 2014 (the “Final Exercise Date”).
It is intended that the option evidenced by this agreement shall not be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder (the “Code”). Except as otherwise indicated by the context, the term “Participant”, as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.
Vesting
. Subject to
Section 3 below, this option will become exercisable (“vest”) as to 100% of the original number of Shares on the Grant Date.
The right of exercise shall be cumulative so that to the extent the option is not exercised in any period to the maximum extent permissible it shall continue to be exercisable, in whole or in part, with respect to all shares for which it is
vested until the earlier of the Final Exercise Date or the termination of this option under Section 3 hereof or the Plan.
(a)
Form of Exercise.
Subject to the procedures set forth in this Agreement, each election to exercise this option shall be in writing in the form attached to this Agreement as
Exhibit A
, signed by the Participant, and received by the Company at its principal
office, accompanied by this agreement, and payment in full in accordance with Section 4. The Participant may purchase less than the number of shares covered hereby, provided that no partial exercise of this option may be for any fractional
share.
(b)
Continuous Relationship with the Company Required
. Except as otherwise provided in this Section 3, this option may
not be exercised unless the Participant, at the time he or she exercises this option, is, and has been at all times since the Grant Date, an employee, officer, director, consultant or advisor, as the case may be, to the Company or any parent or
subsidiary of the Company as defined in Section 424(e) or (f) of the Code (an “Eligible Participant”).
(c)
Termination of Relationship with the Company
. If the Participant ceases to be an Eligible Participant for any reason, then, except as provided in paragraph (d) below, the right to exercise this option shall terminate three months after
such cessation (but in no event after the Final Exercise Date),
provided
that
this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation. Notwithstanding
the foregoing, if the Participant, prior to the Final Exercise Date, violates the non-competition or confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and
the Company, the right to exercise this option shall terminate immediately upon such violation. The rights provided in this paragraph are also subject to the limitations provided in paragraph (e) below.
(d)
Exercise Period Upon Death or Disability
. If the Participant dies or becomes permanently and totally disabled (within the meaning of
Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for “cause” as specified in paragraph (e) below, this option shall be
exercisable, within the period of one year following the date of death or disability of the Participant, by the Participant (or in the case of death by an authorized transferee),
provided
that
this option shall be exercisable only to
the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further provided that this option shall not be exercisable after the Final Exercise Date.
(e)
Discharge for Cause
. If the Participant, prior to the Final Exercise Date, is discharged by the Company for “cause” (as defined
below), the right to exercise this option shall terminate immediately upon the effective date of such discharge. “Cause” shall mean willful misconduct by the Participant or willful failure by the Participant to perform his or her
responsibilities to the Company (including, without limitation, breach by the Participant of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar agreement between the Participant and the Company),
as determined by the Company, which determination shall be conclusive. The Participant shall be considered to have been discharged for “Cause” if the Company determines, within 30 days after the Participant’s resignation, that
discharge for cause was warranted.
- 2 -
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4.
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Payment of Purchase Price
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(a)
Method of
Payment
. Payment of the purchase price for shares purchased upon exercise of this option shall be made (i) by delivery of a promissory note of the Participant in the form attached hereto as
Exhibit C
(except that the aggregate par
value of the shares of Common Stock purchased upon exercise of this option shall be paid by the Participant by check payable to the Company), or (ii) by any other means permitted by the terms of the Plan.
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5.
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Right of First Refusal
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(a) If the Participant
proposes to sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively, “transfer”) any Shares acquired upon exercise of this option, then the Participant shall first give written
notice of the proposed transfer (the “Transfer Notice”) to the Company. The Transfer Notice shall name the proposed transferee and state the number of such Shares the Participant proposes to transfer (the “Offered Shares”), the
price per share and all other material terms and conditions of the transfer.
(b) For 30 days following its receipt of such Transfer
Notice, the Company shall have the option to purchase all (but not less than all) of the Offered Shares at the price and upon the terms set forth in the Transfer Notice. In the event the Company elects to purchase all of the Offered Shares, it shall
give written notice of such election to the Participant within such 30-day period. Within 10 days after his receipt of such notice, the Participant shall tender to the Company at its principal offices the certificate or certificates representing the
Offered Shares, duly endorsed in blank by the Participant or with duly endorsed stock powers attached thereto, all in a form suitable for transfer of the Offered Shares to the Company. Promptly following receipt of such certificate or certificates,
the Company shall deliver or mail to the Participant a check in payment of the purchase price for the Offered Shares;
provided
that
if the terms of payment set forth in the Transfer Notice were other than cash against delivery, the
Company may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice; and
provided
further
that any delay in making such payment shall not invalidate the Company’s exercise of its option
to purchase the Offered Shares.
(c) If the Company does not elect to acquire all of the Offered Shares, the Participant may, within the
30-day period following the expiration of the option granted to the Company under subsection (b) above, transfer the Offered Shares to the proposed transferee,
provided
that
such transfer shall not be on terms and conditions more
favorable to the transferee than those contained in the Transfer Notice. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 5 shall remain subject to the right of first refusal set forth in this
Section 5 and such transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 5.
(d) After the time at which the Offered Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection
(b) above, the Company shall not pay any dividend to the Participant on account of such Offered Shares or permit the Participant to exercise any of the privileges or rights of a stockholder with respect to such Offered Shares, but shall, in so
far as permitted by law, treat the Company as the owner of such Offered Shares.
- 3 -
(e) The following transactions shall be exempt from the provisions of this Section 5:
(1) any transfer of Shares to or for the benefit of any spouse, domestic partner sharing the same household as the Participant, sibling,
child or grandchild of the Participant, or to a trust for their benefit;
(2) any transfer pursuant to an effective
registration statement filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”); and
(3) the sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation);
provided
,
however
, that in the case of a transfer pursuant to clause (1) above, such Shares shall remain subject to the right of first refusal set forth in this Section 5 and such transferee shall, as a condition to
such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Section 5.
(f) The Company may assign its rights to purchase Offered Shares in any particular transaction under this Section 5 to one or more persons or entities.
(g) The provisions of this Section 5 shall terminate upon the earlier of the following events:
(1) the closing of the sale of shares of Common Stock in an underwritten public offering pursuant to an effective registration statement
filed by the Company under the Securities Act; or
(2) the sale of all or substantially all of the capital stock, assets or
business of the Company, by merger, consolidation, sale of assets or otherwise (other than a merger or consolidation in which all or substantially all of the individuals and entities who were beneficial owners of the Common Stock immediately prior
to such transaction beneficially own, directly or indirectly, more than 75% of the outstanding securities entitled to vote generally in the election of directors of the resulting, surviving or acquiring corporation in such transaction).
(h) The Company shall not be required (a) to transfer on its books any of the Shares which shall have been sold or transferred in violation of
any of the provisions set forth in this Section 5, or (b) to treat as owner of such Shares or to pay dividends to any transferee to whom any such Shares shall have been so sold or transferred.
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6.
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Agreement in Connection with Public Offering
.
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The
Participant agrees, in connection with the initial underwritten public offering of the Company’s securities pursuant to a registration statement under the Securities Act, (i) not to sell, make short sale of, loan, grant any options for the
purchase of, or otherwise dispose of any shares of Common Stock held by the Participant (other than those shares included in the offering) without the prior written consent of the Company or the underwriters managing such initial underwritten public
offering of the Company’s securities for a period of 180 days from the effective date of such registration statement, and (ii) to execute any agreement reflecting clause (i) above as may be requested by the Company or the managing
underwriters at the time of such offering.
- 4 -
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7.
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Legends on Stock Certificates
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All stock
certificates representing Shares issued to the Participant upon exercise of this option shall have affixed thereto legends substantially in the following forms, in addition to any other legends required by applicable federal or state law:
“The shares of stock represented by this certificate have not been registered under the Securities Act of 1933 and may not be
transferred, sold or otherwise disposed of in the absence of an effective registration statement with respect to the shares evidenced by this certificate, filed and made effective under the Securities Act of 1933, or an opinion of counsel
satisfactory to the Company to the effect that registration under such Act is not required.”
“The shares of stock represented by
this certificate are subject to certain restrictions on transfer contained in a Stock Option Agreement, a copy of which will be furnished upon request by the issuer.”
No Shares will be issued pursuant to
the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withheld in respect of this option.
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9.
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Nontransferability of Option
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This option may not
be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the lifetime of the Participant, this option shall be
exercisable only by the Participant.
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10.
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Provisions of the Plan
.
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This option is subject to
the provisions of the Plan, a copy of which is furnished to the Participant with this option.
- 5 -
IN WITNESS WHEREOF, the Company has caused this option to be executed under its corporate seal by its duly authorized
officer. This option shall take effect as a sealed instrument.
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Infinity Pharmaceuticals, Inc.
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Dated: April 6, 2004
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By:
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/s/ Thomas T. Burke
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Name:
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Thomas T. Burke
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Title:
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Controller
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PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy
of the Company’s 2001 Stock Incentive Plan.
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PARTICIPANT:
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/s/ Steven H. Holtzman
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Address:
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115 Powers Rd
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Sudbury MA 01776
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- 6 -
Exhibit 10.31
STOCK RESTRICTION AGREEMENT
AGREEMENT made this 14th day of August 2001, between Infinity Pharmaceuticals, Inc., a
Delaware corporation (the “Company”), and Steven H. Holtzman (the “Employee”).
For valuable consideration; receipt of which is
acknowledged, the parties hereto agree as follows:
1.
Purchase of Shares
. The Company shall issue and sell to the Employee and the
Employee shall purchase from the Company, subject to the terms and conditions set forth in this Agreement and in the Company’s 2001 Stock Incentive Plan (the “Plan”), an aggregate of 750,000 shares (the “Shares”) of common
stock, $.0001 par value per share (“Common Stock”) of the Company at a price of $.0001 per share (the “Option Price”), purchasable as set forth in and subject to the terms and conditions of this Agreement and the Plan.
The aggregate purchase price for the Shares shall be paid in accordance with the terms of the Plan. Upon receipt of payment by the Company
for the Shares, the Company shall issue to the Employee one or more certificates in the name of the Employee for that number of Shares purchased by the Employee. The Employee agrees that the Shares shall be subject to the Purchase Option set forth
in Section 2 of this Agreement and the restrictions on transfer set forth in Section 4 of this Agreement.
2.
Purchase
Option
.
(a) In the event that the Employee ceases to be employed by the Company for any reason or no reason, with or
without cause, prior to July 3, 2005, the Company shall have the right and option (the “Purchase Option”) to purchase from the Employee, for a sum equal to the Option Price per share, any shares then subject to the Purchase Option.
All of the Shares shall be subject to the Purchase Option prior to July 3, 2002. On July 3, 2002, one-fourth (1/4) of such Shares will no longer be subject to the Purchase Option and at the end of each full month thereafter, one
forty-eighth (1/48) of such Shares shall no longer be subject to the Purchase Option until such time as all of such Shares are no longer subject to the Purchase Option.
(b) In the event that the Participant’s employment with the Company is terminated by reason of death or permanent and total
disability (within the meaning of Section 22(e)(3) of the Internal Revenue code of 1986, as amended), the Purchase Option shall lapse as to all of the Unvested Shares for which the Purchase Option would have otherwise become exercisable.
(c) Upon the occurrence of a Change of Control Event (as hereinafter defined), the Purchase Option shall immediately lapse
as to all remaining Unvested Shares, thereby rendering all Shares Vested Shares. For purposes of this subsection (c), a “Change of Control Event” shall mean:
(i) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
“Person”) of beneficial ownership of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) 75% or more of either (x) the
then-outstanding shares of Common Stock (the “Outstanding Company Common Stock”) or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors (the
“Outstanding Company Voting Securities”);
provided
,
however
, that for purposes of this subsection (i), the following acquisitions shall not constitute a Change in Control Event: (A) any acquisition directly from the
Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company, unless the Person exercising, converting or
exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company), (B) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company, or (C) any acquisition by any corporation pursuant to a Business Combination (as defined below) which complies with clauses (x) and (y) of subsection (ii) of this definition; or
(ii) the consummation of a merger, consolidation, reorganization, recapitalization or share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless, immediately following such Business Combination, each of the following two conditions is satisfied: (x) all or
substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors, respectively, of the resulting or acquiring
corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company’s assets either directly or through one or more
subsidiaries) (such resulting or acquiring corporation is referred to herein as the “Acquiring Corporation”) in substantially the same proportions as their ownership of the Outstanding Company Common Stock and Outstanding Company Voting
Securities, respectively, immediately prior to such Business Combination and (y) no Person (excluding the Acquiring Corporation or any employee benefit plan (or related trust) maintained or sponsored by the Company or by the Acquiring
Corporation) beneficially owns, directly or indirectly, 75% or more of the then-outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding securities of such corporation entitled to vote
generally in the election of directors (except to the extent that such ownership existed prior to the Business Combination).
(d) For purposes of this Agreement, employment with the Company shall include employment with a parent or subsidiary of the Company or with another subsidiary of the parent of the Company.
- 2 -
3.
Exercise of Purchase Option and Closing
.
(a) The Company may exercise the Purchase Option by delivering or mailing to the Employee (or his estate), in accordance with
Section 13, within 90 days after the termination of the employment of the Employee with the Company, a written notice of exercise of the Purchase Option. Such notice shall specify the number of Shares to be purchased. If and to the extent the
Purchase Option is not so exercised by the giving of such a notice within such 90-day period, the Purchase Option shall automatically expire and terminate effective upon the expiration of such 90-day period.
(b) Within 10 days after his receipt of the Company’s notice of the exercise of the Purchase Option pursuant to subsection
(a) above, the Employee (or his estate or any escrow agent) shall tender to the Company at its principal offices the certificate or certificates representing the Shares which the Company has elected to purchase, duly endorsed in blank by the
Employee or with duly endorsed stock powers attached thereto, all in form suitable for the transfer of such Shares to the Company. Upon its receipt of such certificate or certificates, the Company shall pay the aggregate Option Price therefor in the
form of a check or by cancelling indebtedness owed by the Employee to the Company, or any combination thereof.
(c) After
the time at which any Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Employee on account of such Shares or permit the Employee to
exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Shares.
(d) In the event that, due to the sale (whether by foreclosure or otherwise), transfer, assignment or other disposition of the Shares
(other than pursuant to the Company’s exercise of the Purchase Option) (each, a “Sale Event”), the Company is unable to exercise the Purchase Option with respect to any Shares for which the Purchase Option has not terminated (the
“Repurchase Shares”), the Employee agrees to pay the Company, as liquidated damages, a sum, if any, by which the market value of the Repurchase Shares (as determined by such Sale Event) exceeds the aggregate Option Price paid for the
Repurchase Shares (the “Damage Amount”).
(e) The Company shall not purchase any fraction of a Share upon exercise
of the Purchase Option, and any fraction of a Share resulting from a computation made pursuant to Section 2 of this Agreement shall be rounded to the nearest whole Share (with any one-half Share being rounded upward).
4.
Restrictions on Transfer
. The Employee shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or
otherwise (collectively “transfer”) any Shares, or any interest therein, that are subject to the Purchase Option, except that the Employee may (i) transfer such Shares to or for the benefit of any spouse, domestic partner sharing the
same household as the Employee, sibling, child or grandchild, or to a trust for their benefit,
provided
that such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in this
Section 4 and the Purchase Option) and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written
- 3 -
instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement or (ii) pledge to the Company pursuant to
the Note such Shares to secure payment of part or all of the purchase price of such Shares.
5.
Effect of Prohibited Transfer
. The
Company shall not be required (a) to transfer on its books any of the Shares which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement, or (b) to treat as owner of such Shares or to pay
dividends to any transferee to whom any such Shares shall have been so sold or transferred.
6.
Restrictive Legend
. All certificates
representing Shares shall have affixed thereto a legend in substantially the following form, in addition to any other legends that may be required under federal or state securities laws:
“The shares of stock represented by this certificate are subject to restrictions on transfer and an option to purchase set forth in a certain Stock
Restriction Agreement between the corporation and the registered owner of these shares (or his predecessor in interest), and such Agreement is available for inspection without charge at the office of the Secretary of the corporation.”
7.
Adjustments for Stock Splits, Stock Dividends, e
tc.
(a) If from time to time during the term of the Purchase Option there is any stock split-up, stock dividend, stock distribution or other
reclassification of the Common Stock of the Company, any and all new, substituted or additional securities to which the Employee is entitled by reason of his ownership of the Shares shall be immediately subject to the Purchase Option, the
restrictions on transfer and other provisions of this Agreement in the same manner and to the same extent as the Shares, and the Option Price shall be appropriately adjusted.
(b) If the Shares are converted into or exchanged for, or stockholders of the Company receive by reason of any distribution in total or
partial liquidation, securities of another corporation, or other property (including cash), pursuant to any merger of the Company or acquisition of its assets, then the rights of the Company under this Agreement shall inure to the benefit of the
Company’s successor and this Agreement shall apply to the securities or other property received upon such conversion, exchange or distribution in the same manner and to the same extent as the Shares.
8.
Withholding Taxes
.
(a) The Employee acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Employee any federal, state or local taxes of any kind required by law to be withheld with respect to the
purchase of the Shares by the Employee or the lapse of the Purchase Option.
(b) The Participant acknowledges that he has
been informed of the advisability of making an election in accordance with Section 83(b) of the Internal Revenue Code of 1986, as amended; that such election must be filed with the Internal Revenue Service
- 4 -
within 30 days of the transfer of shares to the Participant; and that the Participant is solely responsible for making such election.
9.
Severability
. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
10.
Waiver
. Any provision contained in this Agreement may be waived, either generally or in any particular instance, by the Board of Directors of the Company.
11.
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Company and the Employee and their respective heirs,
executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Section 4 of this Agreement.
12.
No Rights To Employment
. Nothing contained in this Agreement shall be construed as giving the Employee any right to be retained, in any position, as an Employee of the Company.
13.
Notice
. All notices required or permitted hereunder shall be in writing and deemed effectively given upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown beneath his or its respective signature to this Agreement, or at such other address or addresses as either
party shall designate to the other in accordance with this Section 13.
14.
Pronouns
. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.
15.
Entire Agreement
. This Agreement and the Plan constitute the entire agreement between the parties, and supersedes all prior agreements and
understandings, relating to the subject matter of this Agreement.
16.
Amendment
. This Agreement may be amended or modified only by
a written instrument executed by both the Company and the Employee.
17.
Governing Law
. This Agreement shall be construed,
interpreted and enforced in accordance with the laws of the Commonwealth of Massachusetts.
18.
Delivery of Certificates
. The
Employee authorizes the Company, on his or her behalf, to hold the stock certificates representing the Shares until the latest of:
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(i)
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the date on which the Shares are no longer subject to the Purchase Option;
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(ii)
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the closing of an initial underwritten public offering of the Company’s securities pursuant to an effective registration statement filed by the Company under the Securities
Act;
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(iii)
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a sale of all or substantially all of the capital stock, assets or business of the Company, by merger, consolidation, sale of assets or otherwise; or
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(iv)
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the date which is no later than thirty days (30) after the date on which the Employee ceases to be employed by the Company,
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provided
that
, if Employee has paid the purchase price of the Shares pursuant to a Note issued to, the Company, the Company shall hold such Shares until
payment of the Note in full as pledgee under the Note and not on behalf of the Employee pursuant to this Section 18.
19.
Escrow
. The Employee shall execute Joint Escrow Instructions in the form attached hereto as
Exhibit A
simultaneously with the execution hereof. The Joint Escrow Instructions shall be delivered to the person named by the Company to
serve as escrow agent thereunder. The Employee shall simultaneously deliver to such escrow agent a stock assignment duly endorsed in blank and hereby instructs the Company to deliver to such escrow agent, on behalf of the Employee, the
certificate(s) evidencing the Shares issued hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Steven H. Holtzman
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Steven H. Holtzman
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President and Chief Executive Officer
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EMPLOYEE
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/s/ Steven H. Holtzman
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(Signature)
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Steven H. Holtzman
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(Print Name)
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Address:
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115 Powers Road
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Sudbury, MA 01776
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Exhibit 10.32
AMENDMENT NO. 1 TO
DISCOVERY PARTNERS INTERNATIONAL, INC.
2000 STOCK INCENTIVE PLAN
The
Discovery Partners International, Inc. 2000 Stock Incentive Plan (the “Plan”) be and hereby is amended as follows:
1. Article
Five, Section I.A. is hereby deleted in its entirety and a new Article Five, Section I.A. is inserted in lieu thereof which reads as follows:
“Notwithstanding anything to the contrary contained herein:
(1) Each non-employee
director who serves on the Board immediately after the closing of the merger (the “Merger”) of Darwin Corp. with and into Infinity Pharmaceuticals, Inc. pursuant to the Agreement and Plan of Merger and Reorganization, dated as of April 11,
2006, by and among the Corporation, Darwin Corp. and Infinity Pharmaceuticals, Inc. (as defined below) shall receive a Non-Statutory Option to purchase 112,500 shares of Common Stock (the “Initial Option”). Shares of Common Stock subject
to the Initial Option will become exercisable as to 37,500 of the shares underlying such Initial Option on the first anniversary of the date of grant and the remainder will be exercisable in quarterly installments of 9,375 shares beginning at the
end of the first quarter thereafter, provided that the holder of the Initial Option continues to serve as a director.
(2)
Each non-employee director serving as a director on the third anniversary of (a) the closing of the Merger, in case of directors serving on the Board immediately after the closing of the Merger, or (b) his or her election to the Board, in the case
of directors elected after the closing of the Merger, shall, on the date of the first Annual Stockholders Meeting following such third anniversary and on the date of each Annual Stockholders Meeting thereafter, receive a Non-Statutory Option to
purchase 22,500 shares of Common Stock (an “Annual Option”). Shares of Common Stock subject to the Annual Option will be exercisable in equal quarterly installments of 5,625 shares beginning at the end of the first quarter after the date
of grant, provided that the holder of the Annual Option continues to serve as a director.
(3) The non-employee director
who serves as the lead outside director of the Board shall receive an additional Non-Statutory Option to purchase 37,500 shares of Common Stock upon the date of commencement of service in such position and upon each anniversary thereafter. Shares of
Common Stock subject to each such option will be exercisable in equal quarterly installments of 9,375 shares beginning at the end of the first quarter after the date of grant, provided that the holder of such option continues to serve as the lead
outside director.
(4) The non-employee director who serves as the lead research and development director of the Board and
the non-employee director who serves as the chair of the audit committee of the Board shall each receive an additional Non-Statutory Option to purchase 15,000 shares of Common Stock upon the date of commencement of service in such position and each
anniversary thereafter. Shares of Common Stock subject to such options will be exercisable in equal quarterly installments of 3,750 shares beginning at the end of the first quarter after the date of grant, provided that the holder of the option
continues to serve as the lead research and development director or the chair of the audit committee, as applicable.
(5)
The non-employee director who serves as the chair of the compensation committee of the Board and the non-employee director who serves as the chair of the corporate governance committee of the Board shall each receive an additional Non-Statutory
Option to purchase 7,500 shares upon the commencement of service in such position and each anniversary thereafter. Shares of Common Stock subject to such options will be exercisable in equal quarterly installments of 1,875 shares beginning at the
end of the first quarter after the date of grant, provided that the holder of the option continues to serve as the chair of the compensation committee or the chair of the corporate governance committee, as applicable.”
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2.
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Article Five, Section I.D. is hereby deleted in its entirety and a new Article Five, Section I.D. is inserted in lieu thereof which reads as follows:
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“I.D.
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[Intentionally omitted.]”
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2
AMENDMENT NO. 2 TO
DISCOVERY PARTNERS INTERNATIONAL, INC.
2000 STOCK INCENTIVE PLAN
The Discovery Partners International, Inc. 2000 Stock Incentive Plan (the “Plan”) be and hereby is amended as follows:
1. Effective immediately following the Effective Time (as defined in the Agreement and Plan of Merger and Reorganization by and among the Corporation,
Darwin Corp. and Infinity Pharmaceuticals, Inc. dated as of April 11, 2006 (the “Merger Agreement”)), Article One, Section V.E. is hereby deleted in its entirety and a new Article One, Section V.E. is inserted in lieu thereof which
reads as follows:
“E. If any change is made to the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without the Corporation’s receipt of consideration, appropriate adjustments shall be made by the Plan Administrator to
(i) the maximum number and/or class of securities issuable under the Plan, (ii) the maximum number and/or class of securities for which any one person may be granted stock options, separately exercisable stock appreciation rights and
direct stock issuances under the Plan per calendar year, (iii) the number and/or class of securities for which grants are subsequently to be made under the Automatic Option Grant Program to new and continuing non-employee Board members,
(iv) the number and/or class of securities and the exercise price per share in effect under each outstanding option under the Plan, (v) the number and/or class of securities and exercise price per share in effect under each outstanding
option transferred to this Plan from the Predecessor Plan, (vi) the maximum number and/or class of securities by which the share reserve is to increase automatically each calendar year pursuant to the provisions of Section V.B. of this Article
One and (vii) the maximum number of shares with respect to which awards other than options and stock appreciation rights may be granted under this Plan. Such adjustments to the outstanding options are to be effected in a manner which shall
preclude the enlargement or dilution of rights and benefits under such options. The adjustments determined by the Plan Administrator shall be final, binding and conclusive.”
2. Effective immediately following the Effective Time, a new Section V.F. is inserted in Article One, which reads as follows:
“The maximum number of shares with respect to which awards other than options and stock appreciation rights may be granted under
this Plan shall be 4,850,000.”
3. Effective immediately following the Effective Time, Article Two, Section IV of the Plan is hereby
deleted in its entirety and a new Article Two, Section IV is inserted in lieu thereof which reads as follows:
“IV.
LIMITATION ON REPRICING
Unless such action is approved by the Corporation’s stockholders: (i) no outstanding
option granted under this Plan may be amended to provide an exercise price per share that is lower than the then-current exercise price per share of such outstanding option (other than adjustments pursuant to Article One, Section V.E.) and
(2) the Board may not cancel any outstanding option (whether or not granted under this Plan) and grant in substitution therefor new awards under this Plan covering the same or a different number of shares of Common Stock and having an exercise
price per share lower than the then-current exercise price per share of the cancelled option.”
3
AMENDMENT NO. 3 TO
DISCOVERY PARTNERS INTERNATIONAL, INC.
2000 STOCK INCENTIVE PLAN
The Discovery Partners International, Inc. 2000 Stock Incentive Plan (the “Plan”) be and hereby is amended as follows:
1.
Effective immediately following the Effective Time (as defined in the Merger Agreement (as defined below)), Article One, Section
V.A. of the Plan is hereby deleted in its entirety and a new Article One, Section V.A. is inserted in lieu thereof which reads as follows:
“A. The stock issuable under the Plan shall be shares of authorized but unissued or reacquired Common Stock, including shares repurchased by the Corporation on the open market. Subject to adjustments as provided for herein, the number
of shares of Common Stock reserved for issuance under the Plan shall be equal to the sum of:
(a) the number of shares of the
Corporation’s Common Stock issuable upon exercise of any options with an exercise price equal to or greater than $3.00 per share (prior to giving effect to the Reverse Stock Split (as defined in the Merger Agreement)) issued and outstanding
under, and the number of shares of the Corporation’s Common Stock issued and outstanding and subject to a right of repurchase in favor of the Corporation pursuant to the Plan as of immediately prior to the closing of the merger (the
“Merger”) of Darwin Corp. with and into Infinity Pharmaceuticals, Inc. (“Infinity”) pursuant to the Merger Agreement (as defined below); plus
(b) the number of shares of the Corporation’s Common Stock issuable to holders of options to purchase common stock of Infinity assumed by the Corporation, and the number of shares of the Corporation’s Common
Stock issued to holders of common stock of Infinity issued pursuant to Infinity’s stock incentive plans and subject to a right of repurchase of Infinity as of immediately prior to the closing of the Merger, pursuant to the Merger Agreement;
plus
(c) the number of shares of the Corporation’s Common Stock available for future grant under the Plan as of immediately prior to
the closing of the Merger; plus
(d) the number of shares equal to seven percent (7%) of the Corporation’s issued and outstanding
Common Stock, as determined immediately following the Effective Time, calculated on a fully-diluted basis at such time, after giving effect to the increase in shares reserved for issuance under the Plan pursuant to this Amendment No. 2 to the Plan.
Notwithstanding the foregoing, in no event shall the number of shares reserved for issuance under the Plan exceed 9,700,000 shares,
subject to adjustment as provided for herein.
For purposes of clause (d), the Corporation’s fully-diluted issued and outstanding
Common Stock shall be equal to the sum of:
(i) the Corporation’s issued and outstanding Common Stock; plus
(ii) all shares of the Corporation’s Common Stock issuable upon exercise, exchange or conversion of any outstanding option, warrant or other right
that is exercisable, exchangeable or convertible into the Corporation’s Common Stock, including, without limitation, any options with an exercise price equal to or greater than $3.00 per share (prior to giving effect to the Reverse Stock Split)
or other awards issued and outstanding under the Plan, and shares of Common Stock subject to future issuance pursuant to outstanding grants of deferred issuance restricted stock of the Corporation; plus
(iii) the increase in shares reserved for issuance under the Plan pursuant to this Amendment No. 2 to the Plan; plus
(iv) the issuance of all of the shares of Common Stock of the Corporation issuable pursuant to the terms of that certain Agreement and Plan of Merger and
Reorganization by and among the Corporation,
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Darwin Corp. and Infinity dated as of April 11, 2006 (the “Merger Agreement”), including, without limitation, shares of Common Stock issuable to
holders of options to purchase common stock and warrants to purchase preferred stock of Infinity Pharmaceuticals, Inc. assumed by the Corporation pursuant to the Merger Agreement.”
2. Effective immediately prior to the effective time of the Reverse Stock Split, Article One, Section V.B. of the Plan is hereby deleted in its entirety
and a new Article One, Section V.B. is inserted in lieu thereof which reads as follows:
“The number of shares of Common Stock
available for issuance under the Plan shall automatically increase on the first trading day of January each calendar year during the term of the Plan, beginning with calendar year 2001, by an amount equal to four percent (4%) of the total number of
shares of Common Stock outstanding on the last trading day in December of the immediately preceding calendar year, but in no event shall any such annual increase exceed two million (2,000,000) shares. Notwithstanding anything to the contrary
contained herein, including without limitation, the provisions of Article One, Section V.E., the maximum number by which the share reserve is to increase automatically each calendar year set forth in this Article One, Section V.B. shall not be
adjusted to give effect to the Reverse Stock Split (as defined in the Merger Agreement).”
3. Effective immediately prior to the
effective time of the Reverse Stock Split, Article One, Section V.C. of the Plan is hereby deleted in its entirety and a new Article One, Section V.C. is inserted in lieu thereof which reads as follows:
“No one person participating in the Plan may receive stock options, separately exercisable stock appreciation rights and direct stock issuances for
more than five hundred thousand (500,000) shares of Common Stock in the aggregate per calendar year. Notwithstanding anything to the contrary contained herein, including without limitation, the provisions of Article One, Section V.E., the per
calendar year limit set forth in this Article One, Section V.C. shall not be adjusted to give effect to the Reverse Stock Split (as defined in the Merger Agreement).”
4. Effective immediately following the Effective Time (as defined in the Merger Agreement), Article Four, Section I.A.1. of the Plan is hereby deleted in
its entirety and a new Article Four, Section I.A.1. is inserted in lieu thereof which reads as follows:
“The purchase per share, if
any, shall be determined by the Plan Administrator.”
5
Exhibit 10.33
INFINITY PHARMACEUTICALS, INC.
Incentive Stock Option Agreement
Granted Under 2000 Stock Incentive Plan, as amended
This agreement evidences the
grant by Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), on
, 200[__] (the “Grant Date”) to
[
], an employee of the Company (the “Participant”), of an option to purchase, in whole or in part, on the
terms provided herein and in the Company’s 2000 Stock Incentive Plan, as amended (the “Plan”), a total of
[
] shares (the “Shares”) of common stock, $0.001 par value per share, of the Company (“Common
Stock”) at $
[
] per Share. Unless earlier terminated, this option shall expire at 5:00 p.m., Eastern time, on
[
] (the “Final Exercise Date”).
It is intended that the option evidenced by this agreement shall be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder
(the “Code”). Except as otherwise indicated by the context, the term “Participant”, as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.
This option will become
exercisable (“vest”) as to
% of the original number of Shares on the [first] anniversary of the Grant Date and as to an additional
% of the original number of Shares at the end of each successive [three-month] period following the first anniversary of the Grant Date until the [fourth] anniversary of the Grant Date.
The right of exercise shall be cumulative so that to the extent the option is not exercised in any period to the maximum extent
permissible it shall continue to be exercisable, in whole or in part, with respect to all Shares for which it is vested until the earlier of the Final Exercise Date or the termination of this option under Section 3 hereof or the Plan.
(a)
Form of Exercise
.
Each election to exercise this option shall be in writing in the form attached to this Agreement as
Exhibit A
, signed by the Participant, and received by the Company at its principal office, accompanied by this agreement, and payment in
full in the manner provided in the Plan. The Participant may purchase less than the number of shares covered hereby, provided that no partial exercise of this option may be for any fractional share.
(b)
Continuous Relationship with the Company Required
. Except as otherwise provided in this Section 3, this option may not be exercised
unless the Participant, at the time he or she exercises this option, is, and has been at all times since the Grant Date, an employee or officer of, or consultant or advisor to, the Company or any parent or subsidiary of the Company as defined in
Section 424(e) or (f) of the Code (an “Eligible Participant”).
(c)
Termination of Relationship with the Company
. If the Participant ceases to be an Eligible
Participant for any reason, then, except as provided in paragraphs (d) and (e) below, the right to exercise this option shall terminate three months after such cessation (but in no event after the Final Exercise Date),
provided
that
this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation. Notwithstanding the foregoing, if the Participant, prior to the Final Exercise Date, violates
the non-competition or confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and the Company, the right to exercise this option shall terminate immediately upon
such violation.
(d)
Exercise Period Upon Death or Disability
. If the Participant dies or becomes disabled (within the meaning of
Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for “cause” as specified in paragraph (e) below, this option shall be
exercisable, within the period of one year following the date of death or disability of the Participant, by the Participant (or in the case of death by an authorized transferee),
provided
that
this option shall be exercisable only to
the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further provided that this option shall not be exercisable after the Final Exercise Date.
(e)
Termination for Cause
. If, prior to the Final Exercise Date, the Participant’s employment is terminated by the Company for Cause (as
defined below), the right to exercise this option shall terminate immediately upon the effective date of such termination of employment. If the Participant is party to an employment or severance agreement with the Company that contains a definition
of “cause” for termination of employment, “Cause” shall have the meaning ascribed to such term in such agreement. Otherwise, “Cause” shall mean willful misconduct by the Participant or willful failure by the Participant
to perform his or her responsibilities to the Company (including, without limitation, breach by the Participant of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar agreement between the
Participant and the Company), as determined by the Company, which determination shall be conclusive. The Participant shall be considered to have been discharged for Cause if the Company determines, within 30 days after the Participant’s
resignation, that discharge for cause was warranted.
(a)
Withholding
. No Shares
will be issued pursuant to the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withheld
in respect of this option.
(b)
Disqualifying Disposition
. If the Participant disposes of Shares acquired upon exercise of this
option within two years from the Grant Date or one year after such Shares were acquired pursuant to exercise of this option, the Participant shall notify the Company in writing of such disposition.
- 2 -
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5.
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Nontransferability of Option
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This option may not
be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the lifetime of the Participant, this option shall be
exercisable only by the Participant.
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6.
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Provisions of the Plan
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This option is subject to
the provisions of the Plan, a copy of which is furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused
this option to be executed under its corporate seal by its duly authorized officer. This option shall take effect as a sealed instrument.
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INFINITY PHARMACEUTICALS, INC.
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Dated: _______________
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By:
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Name:
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Title:
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PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy
of the Company’s 2000 Stock Incentive Plan, as amended.
- 4 -
Exhibit A
NOTICE OF STOCK OPTION EXERCISE
Date: ____________
Infinity Pharmaceuticals, Inc.
780 Memorial Drive
Cambridge, MA 02139
Attention: Treasurer
Dear Sir or Madam:
I am the holder of Incentive Stock Option granted to me under the Infinity
Pharmaceuticals, Inc. (the “Company”) 2000 Stock Incentive Plan, as amended, on __________ for the purchase of __________ shares of Common Stock of the Company at a purchase price of $__________ per share.
I hereby exercise my option to purchase _________ shares of Common Stock (the “Shares”), for which I have enclosed __________ in the amount of
________. Please register my stock certificate as follows:
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Name(s):
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________________________________
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________________________________
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Address:
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________________________________
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Tax I.D. #:
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________________________________
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Very truly yours,
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(Signature)
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- 5 -
Exhibit 10.34
INFINITY PHARMACEUTICALS, INC.
Nonstatutory Stock Option Agreement
Granted Under 2000 Stock Incentive Plan, as amended
This agreement evidences the
grant by Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), on
[ ]
, 200[ ] (the “Grant Date”) to
[
], an [employee], [consultant], [director] of the Company (the “Participant”), of an option to purchase,
in whole or in part, on the terms provided herein and in the Company’s 2000 Stock Incentive Plan, as amended (the “Plan”), a total of
[
] shares (the “Shares”) of common stock, $0.001 par value per share, of the Company (“Common
Stock”) at $
[
] per Share. Unless earlier terminated, this option shall expire at 5:00 p.m., Eastern time, on
[
] (the “Final Exercise Date”).
It is intended that the option evidenced by this agreement shall not be an incentive stock option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder (the “Code”). Except as otherwise indicated by the context, the term “Participant”, as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.
This option will become
exercisable (“vest”) as to
% of the original number of Shares on the [first] anniversary of the Grant Date and as to an additional
% of the original number of Shares at the end of each successive [three-month] period following the first anniversary of the Grant Date until the [fourth] anniversary of the Grant Date.
The right of exercise shall be cumulative so that to the extent the option is not exercised in any period to the maximum extent
permissible it shall continue to be exercisable, in whole or in part, with respect to all Shares for which it is vested until the earlier of the Final Exercise Date or the termination of this option under Section 3 hereof or the Plan.
(a)
Form of Exercise
.
Each election to exercise this option shall be in writing in the form attached to this Agreement as
Exhibit A
, signed by the Participant, and received by the Company at its principal office, accompanied by this agreement, and payment in
full in the manner provided in the Plan. The Participant may purchase less than the number of shares covered hereby, provided that no partial exercise of this option may be for any fractional share.
(b)
Continuous Relationship with the Company Required
. Except as otherwise provided in this Section 3, this option may not be exercised
unless the Participant, at the time he or she exercises this option, is, and has been at all times since the Grant Date, an employee, officer or director of, or consultant or advisor to, the Company or any other entity the employees,
officers, directors, consultants, or advisors of which are eligible to receive option grants under the Plan (an “Eligible Participant”).
(c)
Termination of Relationship with the Company
. If the Participant ceases to be an Eligible Participant for any reason, then,
except as provided in paragraphs (d) and (e) below, the right to exercise this option shall terminate three months after such cessation (but in no event after the Final Exercise Date),
provided
that
this option shall be
exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation. Notwithstanding the foregoing, if the Participant, prior to the Final Exercise Date, violates the non-competition or
confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and the Company, the right to exercise this option shall terminate immediately upon such violation.
(d)
Exercise Period Upon Death or Disability
. If the Participant dies or becomes disabled (within the meaning of
Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for “cause” as specified in paragraph (e) below, this option shall be
exercisable, within the period of one year following the date of death or disability of the Participant, by the Participant (or in the case of death by an authorized transferee),
provided
that
this option shall be exercisable only to
the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further provided that this option shall not be exercisable after the Final Exercise Date.
(e)
Termination for Cause
. If, prior to the Final Exercise Date, the Participant’s employment or other relationship with the Company is
terminated by the Company for Cause (as defined below), the right to exercise this option shall terminate immediately upon the effective date of such termination of employment or other relationship. If the Participant is party to an employment,
consulting or severance agreement with the Company that contains a definition of “cause” for termination of employment or other relationship, “Cause” shall have the meaning ascribed to such term in such agreement. Otherwise,
“Cause” shall mean willful misconduct by the Participant or willful failure by the Participant to perform his or her responsibilities to the Company (including, without limitation, breach by the Participant of any provision of any
employment, consulting, advisory, nondisclosure, non-competition or other similar agreement between the Participant and the Company), as determined by the Company, which determination shall be conclusive. The Participant shall be considered to have
been discharged for “Cause” if the Company determines, within 30 days after the Participant’s resignation, that discharge for cause was warranted.
No Shares will be issued pursuant to
the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes required by law to be withheld in respect of this option.
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5.
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Nontransferability of Option
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This option may not
be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the lifetime of the Participant, this option shall be
exercisable only by the Participant.
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6.
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Provisions of the Plan
.
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This option is subject to
the provisions of the Plan, a copy of which is furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused
this option to be executed under its corporate seal by its duly authorized officer. This option shall take effect as a sealed instrument.
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INFINITY PHARMACEUTICALS, INC.
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Dated: _______________
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By:
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Name:
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Title:
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-3-
PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy
of the Company’s 2000 Stock Incentive Plan, as amended.
-4-
Exhibit A
NOTICE OF STOCK OPTION EXERCISE
Date: ____________
Infinity Pharmaceuticals, Inc.
780 Memorial Drive
Cambridge, MA 02139
Attention: Treasurer
Dear Sir or Madam:
I am the holder of Nonstatutory Stock Option granted to me under the Infinity Pharmaceuticals, Inc. (the “Company”) 2000 Stock Incentive Plan, as amended, on __________ for the purchase of __________ shares of Common Stock of the
Company at a purchase price of $__________ per share.
I hereby exercise my option to purchase _________ shares of Common Stock (the
“Shares”), for which I have enclosed __________ in the amount of ________. Please register my stock certificate as follows:
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Name(s):
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________________________________
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________________________________
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Address:
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________________________________
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Tax I.D. #:
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________________________________
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Very truly yours,
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(Signature)
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-5-
Exhibit 10.35
Restricted Stock Agreement
Granted Under 2000 Stock Incentive Plan, as amended
AGREEMENT made this
day of
, 200[ ], between Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and
________________________ (the “Participant”).
For valuable consideration, receipt of which is acknowledged, the parties hereto
agree as follows:
The Company shall issue and
sell to the Participant, and the Participant shall purchase from the Company, subject to the terms and conditions set forth in this Agreement and in the Company’s 2000 Stock Incentive Plan, as amended (the “Plan”),
[
] shares (the “Shares”) of common stock, $0.001 par value, of the Company (“Common Stock”), at a purchase price of
$[
] per share. The aggregate purchase price for the Shares shall be paid by the Participant by check payable to the order of the Company or such other method as may be
acceptable to the Company. Upon receipt by the Company of payment for the Shares, the Company shall issue to the Participant one or more certificates in the name of the Participant for that number of Shares purchased by the Participant. The
Participant agrees that the Shares shall be subject to the purchase option set forth in Section 2 of this Agreement and the restrictions on transfer set forth in Section 4 of this Agreement.
(a) In the event
that the Participant ceases to be employed by the Company for any reason or no reason, with or without cause, prior to [
], the Company shall have the right and option
(the “Purchase Option”) to purchase from the Participant, for a sum of $[
] per share (the “Option Price”), some or all of the Unvested Shares (as
defined below).
“Unvested Shares” means the total number of Shares multiplied by the Applicable Percentage at the time the
Purchase Option becomes exercisable by the Company. The “Applicable Percentage” shall be (i) 100% during the 12-month period ending
, 200_, (ii) [75%] less [6.25%] for each three months of employment completed by the Participant with the Company
from and after
, 200_, and (iii) zero on or after
, 200__.
(b) In the event that the Participant’s employment with the Company is terminated by reason of death or disability, the number of the Shares for which the Purchase Option becomes exercisable shall be
percent (__%) of the number of Unvested Shares for which the Purchase Option would otherwise become exercisable. For this
purpose, “disability” shall mean the inability of the Participant, due to a medical reason, to carry out his duties as an employee of the Company for a period of six consecutive months.
(c) If the Participant is employed by a parent or subsidiary of the Company, any references in this Agreement to employment with the
Company or termination of employment by or with the Company shall instead be deemed to refer to such parent or subsidiary.
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3.
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Exercise of Purchase Option and Closing
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(a) The Company may exercise the Purchase Option by delivering or mailing to the Participant (or his estate), within 90 days after the termination of the employment of the Participant with the Company, a written notice of exercise of the
Purchase Option. Such notice shall specify the number of Shares to be purchased. If and to the extent the Purchase Option is not so exercised by the giving of such a notice within such 90-day period, the Purchase Option shall automatically expire
and terminate effective upon the expiration of such 90-day period.
(b) Within 10 days after delivery to the Participant of
the Company’s notice of the exercise of the Purchase Option pursuant to subsection (a) above, the Participant (or his estate) shall, pursuant to the provisions of the Joint Escrow Instructions referred to in Section 5 below, tender to
the Company at its principal offices the certificate or certificates representing the Shares which the Company has elected to purchase in accordance with the terms of this Agreement, duly endorsed in blank or with duly endorsed stock powers attached
thereto, all in form suitable for the transfer of such Shares to the Company. Promptly following its receipt of such certificate or certificates, the Company shall pay to the Participant the aggregate Option Price for such Shares (provided that any
delay in making such payment shall not invalidate the Company’s exercise of the Purchase Option with respect to such Shares).
(c) After the time at which any Shares are required to be delivered to the Company for transfer to the Company pursuant to subsection (b) above, the Company shall not pay any dividend to the Participant on account of such Shares or
permit the Participant to exercise any of the privileges or rights of a stockholder with respect to such Shares, but shall, in so far as permitted by law, treat the Company as the owner of such Shares.
(d) The Option Price may be payable, at the option of the Company, in cancellation of all or a portion of any outstanding indebtedness of
the Participant to the Company or in cash (by check) or both.
(e) The Company shall not purchase any fraction of a Share
upon exercise of the Purchase Option, and any fraction of a Share resulting from a computation made pursuant to Section 2 of this Agreement shall be rounded to the nearest whole Share (with any one-half Share being rounded upward).
(f) The Company may assign its Purchase Option to one or more persons or entities.
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4.
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Restrictions on Transfer
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(a) The
Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively “transfer”) any Shares, or any interest therein, that are subject to the Purchase Option, except that
the Participant may transfer such Shares (i) to or for the benefit of any spouse, domestic partner sharing the same household as the Participant, children, parents, uncles, aunts, siblings, grandchildren and any other relatives approved by the
Board of Directors (collectively, “Approved Relatives”) or to a trust established solely for the benefit of the Participant and/or Approved Relatives,
provided
that
- 2 -
such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in this Section 4 and the
Purchase Option) and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement or (ii) as
part of the sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation),
provided
that, in accordance with the Plan, the securities or other property received by the
Participant in connection with such transaction shall remain subject to this Agreement.
(b) The Participant shall not
transfer any Shares, or any interest therein, that are no longer subject to the Purchase Option.
The Participant shall, upon the execution
of this Agreement, execute Joint Escrow Instructions in the form attached to this Agreement as
Exhibit A
. The Joint Escrow Instructions shall be delivered to the Secretary of the Company, as escrow agent thereunder. The Participant shall
deliver to such escrow agent a stock assignment duly endorsed in blank, in the form attached to this Agreement as
Exhibit B
, and hereby instructs the Company to deliver to such escrow agent, on behalf of the Participant, the certificate(s)
evidencing the Shares issued hereunder. Such materials shall be held by such escrow agent pursuant to the terms of such Joint Escrow Instructions.
All certificates representing
Shares shall have affixed thereto legends in substantially the following form, in addition to any other legends that may be required under federal or state securities laws:
“The shares of stock represented by this certificate are subject to restrictions on transfer and an option to purchase set forth in a certain
Restricted Stock Agreement between the corporation and the registered owner of these shares (or his predecessor in interest), and such Agreement is available for inspection without charge at the office of the Secretary of the corporation.”
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7.
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Provisions of the Plan
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(a) This
Agreement is subject to the provisions of the Plan, a copy of which is furnished to the Participant with this Agreement.
(b) As provided in the Plan, upon the occurrence of a Change in Control (as defined in the Plan), the repurchase and other rights of the Company hereunder shall inure to the benefit of the Company’s successor and shall apply to the
cash, securities or other property which the Shares were converted into or exchanged for pursuant to such Change in Control in the same manner and to the same extent as they applied to the Shares under this Agreement. If, in connection with a Change
in Control, a portion of the cash, securities and/or other property
- 3 -
received upon the conversion or exchange of the Shares is to be placed into escrow to secure indemnification or similar obligations, the mix between the
vested and unvested portion of such cash, securities and/or other property that is placed into escrow shall be the same as the mix between the vested and unvested portion of such cash, securities and/or other property that is not subject to escrow.
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8.
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Withholding Taxes; Section 83(b) Election
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(a) The Participant acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Participant any federal, state or local taxes of any kind required by law to be
withheld with respect to the purchase of the Shares by the Participant or the lapse of the Purchase Option.
(b) The
Participant has reviewed with the Participant’s own tax advisors the federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Agreement. The Participant is relying solely on such advisors
and not on any statements or representations of the Company or any of its agents. The Participant understands that the Participant (and not the Company) shall be responsible for the Participant’s own tax liability that may arise as a result of
this investment or the transactions contemplated by this Agreement. The Participant understands that it may be beneficial in many circumstances to elect to be taxed at the time the Shares are purchased rather than when and as the Company’s
Purchase Option expires by filing an election under Section 83(b) of the Internal Revenue Code of 1986 with the I.R.S. within 30 days from the date of purchase.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS SOLELY THE PARTICIPANT’S RESPONSIBILITY AND NOT THE COMPANY’S TO FILE TIMELY THE
ELECTION UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANT’S BEHALF.
(a)
No Rights to
Employment
. The Participant acknowledges and agrees that the vesting of the Shares pursuant to Section 2 hereof is earned only by continuing service as an employee at the will of the Company (not through the act of being hired or purchasing
shares hereunder). The Participant further acknowledges and agrees that the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued engagement as an employee or
consultant for the vesting period, for any period, or at all.
(b)
Severability
. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.
- 4 -
(c)
Waiver
. Any provision for the benefit of the Company contained in this
Agreement may be waived, either generally or in any particular instance, by the Board of Directors of the Company.
(d)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the Company and the Participant and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions
on transfer set forth in Section 4 of this Agreement.
(e)
Notice
. All notices required or permitted hereunder
shall be in writing and deemed effectively given upon personal delivery or five days after deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party hereto at the address shown beneath
his or its respective signature to this Agreement, or at such other address or addresses as either party shall designate to the other in accordance with this Section 12(e).
(f)
Pronouns
. Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.
(g)
Entire Agreement
. This Agreement and the Plan constitute the entire agreement between the parties, and supersedes all prior agreements and understandings, relating to the subject matter of this Agreement.
(h)
Amendment
. This Agreement may be amended or modified only by a written instrument executed by both the Company and the
Participant.
(i)
Governing Law
. This Agreement shall be construed, interpreted and enforced in accordance with the
internal laws of the State of Delaware without regard to any applicable conflicts of laws.
(j)
Participant’s
Acknowledgments
. The Participant acknowledges that he or she: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the Participant’s own choice
or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; (iv) is fully aware of the legal and binding effect of this Agreement; and (v) understands that the law firm of
WilmerHale, is acting as counsel to the Company in connection with the transactions contemplated by the Agreement, and is not acting as counsel for the Participant.
- 5 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above
written.
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INFINITY PHARMACEUTICALS, INC.
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By:
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Address:
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[Name of Participant]
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Address:
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- 6 -
Exhibit A
INFINITY PHARMACEUTICALS, INC.
Joint Escrow Instructions
_________, [ ]
Infinity Pharmaceuticals, Inc.
780 Memorial Drive
Cambridge, MA 02139
Attention: Treasurer
Dear Sir or Madam:
As Escrow Agent for Infinity Pharmaceuticals, Inc., a Delaware corporation, and its successors in interest under the Restricted Stock Agreement (the
“Agreement”) of even date herewith, to which a copy of these Joint Escrow Instructions is attached (the “Company”), and the undersigned person (“Holder”), you are hereby authorized and directed to hold the documents
delivered to you pursuant to the terms of the Agreement in accordance with the following instructions:
1.
Appointment
. Holder
irrevocably authorizes the Company to deposit with you any certificates evidencing Shares (as defined in the Agreement) to be held by you hereunder and any additions and substitutions to said Shares. For purposes of these Joint Escrow Instructions,
“Shares” shall be deemed to include any additional or substitute property. Holder does hereby irrevocably constitute and appoint you as his attorney-in-fact and agent for the term of this escrow to execute with respect to such Shares all
documents necessary or appropriate to make such Shares negotiable and to complete any transaction herein contemplated. Subject to the provisions of this Section 1 and the terms of the Agreement, Holder shall exercise all rights and privileges
of a stockholder of the Company while the Shares are held by you.
2.
Closing of Purchase
.
(a) Upon any purchase by the Company of the Shares pursuant to the Agreement, the Company shall give to Holder and you a written notice
specifying the number of Shares to be purchased, the purchase price for the Shares, as determined pursuant to the Agreement, and the time for a closing hereunder (the “Closing”) at the principal office of the Company. Holder and the
Company hereby irrevocably authorize and direct you to close the transaction contemplated by such notice in accordance with the terms of said notice.
(b) At the Closing, you are directed (i) to date the stock assignment form or forms necessary for the transfer of the Shares, (ii) to fill in on such form or forms the number of Shares being transferred, and
(iii) to deliver the same, together with the certificate or certificates
- 7 -
evidencing the Shares to be transferred, to the Company against the simultaneous delivery to you of the purchase price for the Shares being purchased
pursuant to the Agreement.
3.
Withdrawal
. The Holder shall have the right to withdraw from this escrow any Shares as to which the
Purchase Option (as defined in the Agreement) has terminated or expired.
4.
Duties of Escrow Agent
.
(a) Your duties hereunder may be altered, amended, modified or revoked only by a writing signed by all of the parties hereto.
(b) You shall be obligated only for the performance of such duties as are specifically set forth herein and may rely and shall be
protected in relying or refraining from acting on any instrument reasonably believed by you to be genuine and to have been signed or presented by the proper party or parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact of Holder while acting in good faith and in the exercise of your own good judgment, and any act done or omitted by you pursuant to the advice of your own attorneys shall be conclusive evidence of such
good faith.
(c) You are hereby expressly authorized to disregard any and all warnings given by any of the parties hereto or
by any other person or entity, excepting only orders or process of courts of law, and are hereby expressly authorized to comply with and obey orders, judgments or decrees of any court. If you are uncertain of any actions to be taken or instructions
to be followed, you may refuse to act in the absence of an order, judgment or decrees of a court. In case you obey or comply with any such order, judgment or decree of any court, you shall not be liable to any of the parties hereto or to any other
person or entity, by reason of such compliance, notwithstanding any such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
(d) You shall not be liable in any respect on account of the identity, authority or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers deposited or called for hereunder.
(e) You shall
be entitled to employ such legal counsel and other experts as you may deem necessary properly to advise you in connection with your obligations hereunder and may rely upon the advice of such counsel.
(f) Your rights and responsibilities as Escrow Agent hereunder shall terminate if (i) you cease to be Secretary of the Company or
(ii) you resign by written notice to each party. In the event of a termination under clause (i), your successor as Secretary shall become Escrow Agent hereunder; in the event of a termination under clause (ii), the Company shall
appoint a successor Escrow Agent hereunder.
(g) If you reasonably require other or further instruments in connection with
these Joint Escrow Instructions or obligations in respect hereto, the necessary parties hereto shall join in furnishing such instruments.
- 8 -
(h) It is understood and agreed that if you believe a dispute has arisen with respect to
the delivery and/or ownership or right of possession of the securities held by you hereunder, you are authorized and directed to retain in your possession without liability to anyone all or any part of said securities until such dispute shall have
been settled either by mutual written agreement of the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction after the time for appeal has expired and no appeal has been perfected, but you shall be under no
duty whatsoever to institute or defend any such proceedings.
(i) These Joint Escrow Instructions set forth your sole duties
with respect to any and all matters pertinent hereto and no implied duties or obligations shall be read into these Joint Escrow Instructions against you.
(j) The Company shall indemnify you and hold you harmless against any and all damages, losses, liabilities, costs, and expenses, including attorneys’ fees and disbursements, (including without limitation the fees
of counsel retained pursuant to Section 4(e) above, for anything done or omitted to be done by you as Escrow Agent in connection with this Agreement or the performance of your duties hereunder, except such as shall result from your gross
negligence or willful misconduct.
5.
Notice
. Any notice required or permitted hereunder shall be given in writing and shall be
deemed effectively given upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail with postage and fees prepaid, addressed to each of the other parties thereunto entitled at the following addresses, or
at such other addresses as a party may designate by ten days’ advance written notice to each of the other parties hereto.
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COMPANY:
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Notices to the Company shall be sent to the address set forth in the salutation hereto, Attn: Chief Executive Officer
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HOLDER:
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Notices to Holder shall be sent to the address set forth below Holder’s signature below.
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ESCROW AGENT:
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Notices to the Escrow Agent shall be sent to the address set forth in the salutation hereto.
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(a) By signing
these Joint Escrow Instructions, you become a party hereto only for the purpose of said Joint Escrow Instructions, and you do not become a party to the Agreement.
(b) This instrument shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns.
- 9 -
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Very truly yours,
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INFINITY PHARMACEUTICALS, INC.
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By:
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Title:
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HOLDER:
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(Signature)
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Print Name
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Address:
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- 10 -
Exhibit B
(STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE)
FOR VALUE RECEIVED
, I hereby sell, assign and
transfer unto __________________ (
) shares of Common Stock, $0.001 par value per share, of Infinity Pharmaceuticals, Inc.
(the “Corporation”) standing in my name on the books of the Corporation represented by Certificate(s) Number __________ herewith, and do hereby irrevocably constitute and appoint ______________________ attorney to transfer the said stock
on the books of the Corporation with full power of substitution in the premises.
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Dated: ____________________
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IN PRESENCE OF
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NOTICE: The signature(s) to this assignment must correspond with the name as written upon the face
of the certificate, in every particular, without alteration, enlargement, or any change whatever and must be guaranteed by a commercial bank, trust company or member firm of the Boston, New York or Midwest Stock Exchange.
- 11 -
Exhibit 10.36
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Net/Gross Multi-Tenant Office/Laboratory
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Street Address/Tenant - Page 1
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LEASE AGREEMENT
THIS LEASE AGREEMENT is made as of this 2
nd
day of July, 2002, between ARE-770/784/790 MEMORIAL DRIVE, LLC, a Delaware limited liability company (“Landlord”), and INFINITY PHARMACEUTICALS, INC., a Delaware corporation (“Tenant”).
BASIC LEASE PROVISIONS
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Address:
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770 and 790 Memorial Drive, Cambridge, Massachusetts
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Premises:
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That portion of the Project, containing, in the aggregate, approximately 67,300 rentable square feet, namely, (i) all three (3) floors of the building located at 770 Memorial Drive, Cambridge,
Massachusetts, consisting of approximately 51,000 rentable square feet (the
“770 Premises”
), and (ii) the entire third floor of the building located at 790 Memorial Drive, Cambridge, Massachusetts, consisting of approximately 16,167
rentable square feet (the
“790 Premises”
), as determined by Landlord, as shown on
Exhibit A.
The 770 Premises and the 790 Premises are sometimes referred to collectively herein as the
“Premises”.
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Project:
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The real property on which the building located at 770 Memorial Drive, Cambridge, Massachusetts (the
“770 Building”
) and the building located at 790 Memorial Drive, Cambridge,
Massachusetts (the
“790 Building”
) in which the Premises are located, together with all improvements thereon and appurtenances thereto as described on
Exhibit B.
The 770 Building and 790 Building are sometimes referred to
herein as the
“Buildings”
and individually as a
“Building,
as the context may require.
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Base Rent:
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770 Premises:
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$242,250.00 per month
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790 Premises:
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$76,793.25 per month
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Total:
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$319,043.25 per month
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(based on $57.00 per rentable square foot)
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Rentable Area of Premises:
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770 Premises:
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51,000 sq. ft.
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790 Premises:
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16,167 sq. ft.
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Total:
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67,167 sq. ft.
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Rentable Area of Project:
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770 Building:
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51,000 sq. ft.
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790 Building:
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48,500 sq. ft.
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Total:
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99,500 sq. ft.
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Tenant’s Share of Operating Expenses:
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100% as to 770 Building, 33.3% as to 790 Building
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Security Deposit:
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$1,450,000, to be increased to $1,915,000 on or before January 1, 2003
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Target Commencement Date:
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November 20, 2002
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Rent Commencement Date:
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770 Building - Commencement Date
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790 Building – January 1, 2003
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Rent Adjustment Percentage:
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3%
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©
All rights reserved – Alexandria Real Estate Equities 2001
CONFIDENTIAL – DO NOT COPY OR DISTRIBUTE
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Net/Gross Multi-Tenant Office/Laboratory
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Street Address/Tenant - Page 2
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Base Term:
Beginning on the Commencement Date and ending 120 months from the first day of the first full
month commencing on or after the Commencement Date (as defined in
Section 2
) hereof
Permitted Use:
biochemical research and development
laboratory (including use of chemical and biological substances and isotopes, and including use of nuclear magnetic resonance equipment and a small animal vivarium), related office and other related uses consistent with the character of the Project
and otherwise in compliance with the provisions of
Section 7
hereof.
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Address for Rent Payment:
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: Accounts Receivable
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Landlord’s Notice Address:
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: Corporate Secretary
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Tenant’s Notice Address:
770 Memorial Drive
Cambridge, Massachusetts 02139
Attention: Joseph McPherson
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Guarantor of Lease:
None
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The following Exhibits and Addenda are attached hereto and incorporated herein by this reference:
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[ ]
EXHIBIT A
– PREMISES DESCRIPTION
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[ ]
EXHIBIT B
– DESCRIPTION OF PROJECT
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[ ]
EXHIBIT C –
WORK LETTER
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[ ]
EXHIBIT D –
COMMENCEMENT DATE
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[ ]
EXHIBIT E –
LOCATION OF TENANT’S
PARKING SPACES
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[ ]
EXHIBIT F –
GOVERNMENT REQUIREMENTS FOR
PARKING AND TRANSPORTATION
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[ ]
EXHIBIT G –
TENANT’S PERSONAL PROPERTY
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[ ]
EXHIBIT H –
RULES AND REGULATIONS
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1.
Lease of Premises.
Upon and subject to all of the terms and conditions hereof, Landlord
hereby leases the Premises to Tenant and Tenant hereby leases the Premises from Landlord. The portions of the Project which are for the non-exclusive use of tenants of the Project are collectively referred to herein as the
“Common
Areas.”
Landlord reserves the right to modify Common Areas, provided that such modifications do not materially adversely affect Tenant’s use of or access to the Premises for the Permitted Use.
2.
Delivery; Acceptance of Premises; Commencement Date.
Landlord shall use reasonable efforts to deliver the Premises to Tenant on or before the
Target Commencement Date, with Landlord’s Work Substantially Completed
(“Delivery”
or
“Deliver”).
If Landlord fails to timely Deliver the Premises, Landlord shall not be liable to Tenant for any loss or damage
resulting therefrom, and this Lease shall not be void or voidable except as provided herein. If Landlord does not Deliver the Premises within 60 days after the Target Commencement Date for any reason other than Force Majeure Delays and Tenant
Delays, this Lease may be terminated by Tenant by written notice to Landlord, and if so terminated: (a) the Security Deposit, or any balance thereof (i.e., after deducting therefrom all amounts to which Landlord is entitled under the provisions
of this Lease), shall be returned to Tenant, and (b) neither Landlord nor Tenant shall have any further rights, duties or obligations under this Lease, except with respect to provisions which expressly survive termination of this Lease. As used
herein, the terms “
Landlord’s Work,” “Tenants’ Work,”, “Force Majeure Delays,” “Tenant Delays”
and
“Substantially Completed”
shall have the meanings set forth for such terms
in the Work Letter attached to this Lease as
Exhibit C
(the
“Work Letter”
)
.
If Tenant does not deliver notice to Landlord of Tenant’s election to void this Lease within 15 business days of the lapse of such 60 day
period, such right to void this Lease shall be waived and this Lease shall remain in full force and effect.
©
All rights reserved – Alexandria Real Estate Equities 2001
CONFIDENTIAL – DO NOT COPY OR DISTRIBUTE
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Net/Gross Multi-Tenant Office/Laboratory
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Street Address/Tenant - Page 3
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The
“Commencement Date”
shall be the earliest of: (i) the date Landlord
Delivers the 770 Premises to Tenant; (ii) the date Landlord could have Delivered the 770 Premises but for Tenant Delays; and (iii) the date Tenant conducts any business in the 770 Premises or any part thereof. Upon request of Landlord,
Tenant shall execute and deliver a written acknowledgment of the Commencement Date and the expiration date of the Term when such are established in the form of the “Acknowledgement of Commencement Date” attached to this Lease as
Exhibit
D
;
provided
,
however
, Tenant’s failure to execute and deliver such acknowledgment shall not affect Landlord’s rights hereunder. The
“Term”
of this Lease shall be the Base Term, as defined above in the
Basic Lease Provisions and any Extension Terms which Tenant may elect pursuant to Section 41 hereof. Notwithstanding the foregoing, Tenant shall have the right to occupy and use some or all of the 790 Premises prior to the Commencement Date,
commencing on a date (the
“Early Commencement Date”
) not earlier than June 15, 2002 and not later than December 31, 2002.
Except as otherwise set forth herein and in the Work Letter: (i) Tenant shall accept the Premises in their condition as of the Commencement Date or the Early Commencement Date, as applicable, subject to all
applicable Legal Requirements (as defined in
Section 7
hereof); (ii) Landlord shall have no obligation for any defects in the Premises; and (iii) Tenant’s taking possession of the Premises shall be conclusive evidence that
Tenant accepts the Premises and that the Premises were in good condition at the time possession was taken. Any occupancy of the Premises by Tenant before the Commencement Date shall be subject to all of the terms and conditions of this Lease,
including the obligation to pay administrative rent in the amount of $127,500 out of the Tenant Improvement Allowance during the performance of Landlord’s Work
Tenant agrees and acknowledges that, except as otherwise set forth herein, neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the condition of all or any portion of the
Premises or the Project, and/or the suitability of the Premises or the Project for the conduct of Tenant’s business, and Tenant waives any implied warranty that the Premises or the Project are suitable for the Permitted Use. This Lease
constitutes the complete agreement of Landlord and Tenant with respect to the subject matter hereof and supersedes any and all prior representations, inducements, promises, agreements, understandings and negotiations which are not contained herein.
Landlord in executing this Lease does so in reliance upon Tenant’s representations, warranties, acknowledgments and agreements contained herein.
If Landlord does not deliver the 770 Premises within thirty (30) days after the Target Commencement Date for any reason other than Force Majeure Delays and Tenant Delays, and if the Lease is not later terminated
by the Tenant in accordance with the provisions of this Section, then Tenant shall receive a credit against its obligation to pay Base Rent first becoming due and payable hereunder, in an amount equal to the product of (x) the number of days of
such delay from the thirty-first (31
st
) day after the Target Commencement Date through and including the actual
Commencement Date, multiplied by (y) $8,075.00 (being one thirtieth of the monthly Base Rent for the 770 Premises).
3.
Rent.
(a)
Base Rent.
The first month’s Base Rent and the Security Deposit shall be due and payable on delivery of an executed copy
of this Lease to Landlord. Tenant shall pay to Landlord in advance, without demand, abatement, deduction or set-off, monthly installments of Base Rent on or before the first day of each calendar month during the Term hereof, in lawful money of the
United States of America, at the office of Landlord for payment of Rent set forth above, or to such other person or at such other place as Landlord may from time to time designate in writing. Payments of Base Rent for any fractional calendar month
shall be prorated. The obligation of Tenant to pay Base Rent and other sums to Landlord and the obligations of Landlord under this Lease are independent obligations. Tenant shall have no right at any time to abate, reduce, or set-off any Rent (as
defined in
Section 5
) due hereunder except for any abatement as may be expressly provided in this Lease.
(b)
Additional
Rent.
In addition to Base Rent, Tenant agrees to pay to Landlord as additional rent (“
Additional Rent”
): (i) Tenant’s Share of “Operating Expenses” (as defined in
Section 5
),
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and (ii) any and all other amounts Tenant assumes or agrees to pay under the provisions of this Lease, including, without limitation, any and all other
sums that may become due by reason of any default of Tenant or failure to comply with the agreements, terms, covenants and conditions of this Lease to be performed by Tenant, after any applicable notice and cure period. Tenant’s obligation to
pay Operating Expenses for the 770 Premises shall commence on the Commencement Date. Tenant’s obligation to pay Operating Expenses for the 790 Premises shall commence on the Early Commencement Date, provided, however, that until January 1,
2003, Tenant’s obligation to pay Operating Expenses for the 790 Premises shall be calculated based on the proportion of the rentable area of the 790 Premises actually used and occupied by Tenant for the conduct of its business to the total
rentable area of the 790 Building.
4.
Base Rent Adjustments
. Base Rent shall be adjusted (i) by reducing the Base Rent due for
the first year of the Base Term by an amount equal to 12% of any amount of the Tl Allowance which is not distributed by or is returned to Landlord following completion of the improvements to the Premises, as more particularly described in the Work
Letter, and (ii) on each annual anniversary of the first day of the first full month during the Term of this Lease (each an
“Adjustment Date”
) by multiplying the Base Rent payable immediately before such Adjustment Date (in the
case of the first such adjustment, as reduced pursuant to the immediately preceding clause) by the Rent Adjustment Percentage and adding the resulting amount to the Base Rent payable immediately before such Adjustment Date. Base Rent, as so
adjusted, shall thereafter be due as provided herein. Base Rent adjustments for any fractional calendar month shall be prorated.
5.
Operating Expense Payments
. Landlord shall deliver to Tenant a written estimate of Operating Expenses for each calendar year during the Term (the
“Annual Estimate”
), which may be revised by Landlord from time to time during
such calendar year. During each month of the Term, on the same date that Base Rent is due, Tenant shall pay Landlord an amount equal to 1/12
th
of Tenant’s Share of the Annual Estimate. Payments for any fractional calendar month shall be prorated.
The
term
“Operating Expenses”
means all costs and expenses of any kind or description whatsoever incurred or accrued each calendar year by Landlord with respect to the operation, maintenance and repair of each of the 770 Building (the
“770 Operating Expenses”
) and the 790 Building (the
“790 Operating Expenses”
) (including each such Building’s Share of all such costs and expenses of any kind or description incurred or accrued by Landlord with
respect to the Project which are not specific to the Building or any other building located in the Project) (including, without duplication, all Building and Project related operating costs in connection with the shell and core of each Building,
site improvements, maintenance, utilities, insurance, Taxes (as defined in
Section 9
), capital repairs and improvements to the extent permitted herein, and the costs of Landlord’s third party property manager not to exceed 1.875% of
Base Rent, or, if there is no third party property manager, administration rent in the amount of 1.875% of Base Rent), excluding only:
(a)
the original construction costs of the Project and renovation prior to the date of the Lease and costs of correcting defects in such original construction or renovation;
(b) capital expenditures except for (i) capital improvements required to bring the Project into compliance with Legal Requirements enacted, adopted, applied or otherwise promulgated after the Commencement Date,
and (ii) capital improvements reasonably intended to result in a reduction of Operating Expenses. In either case, the amount of such capital expenditure includable in Operating Expenses in any calendar year shall be the annual amortization of
such expense over ten (10) years.
(c) interest, principal payments of Mortgage (as defined in
Section 27
) debts of
Landlord, financing costs and amortization of funds borrowed by Landlord, whether secured or unsecured and all payments of base rent (but not taxes or operating expenses) under any ground lease or other underlying lease of all or any portion of the
Project;
(d) depreciation of the Project (except for those capital improvements, the cost of which are includable in Operating Expenses
pursuant to subsection (b) above);
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(e) advertising, legal and space planning expenses and leasing commissions and other costs and
expenses incurred in procuring and leasing space to tenants for the Project, including any leasing office maintained in the Project, free rent and construction allowances for tenants;
(f) legal and other expenses incurred in the negotiation or enforcement of leases;
(g) completing, fixturing, improving, renovating, painting, redecorating or other work, which Landlord pays for or performs for other tenants within
their premises, and costs of correcting defects in such work;
(h) costs of utilities outside normal business hours sold to tenants of the
Project;
(i) costs to be reimbursed by other tenants of the Project or Taxes to be paid directly by Tenant or other tenants of the
Project, whether or not actually paid;
(j) salaries, wages, benefits and other compensation paid to officers and employees of Landlord
above the level of building manager or who are not assigned in whole or in part to the operation, management, maintenance or repair of the Project;
(k) general organizational, administrative and overhead costs relating to maintaining Landlord’s existence, either as a corporation, partnership, or other entity, including general corporate, legal and accounting expenses;
(l) costs (including attorneys’ fees and costs of settlement, judgments and payments in lieu thereof) incurred in connection with disputes with
tenants, other occupants, or prospective tenants, and costs and expenses, including legal fees, incurred in connection with negotiations or disputes with employees, consultants, management agents, leasing agents, purchasers or mortgagees of the
Building;
(m) costs incurred by Landlord due to the violation by Landlord, its employees, agents or contractors or any tenant of the terms
and conditions of any lease of space in the Project or any Legal Requirement (as defined in
Section 7
);
(n) penalties, fines
or interest incurred as a result of Landlord’s inability or failure to make payment of Taxes and/or to file any tax or informational returns when due, or from Landlord«‘s failure to make any payment of Taxes required to be made by
Landlord hereunder before delinquency;
(o) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for
goods and/or services in or to the Project to the extent the same exceeds the costs of such goods and/or services rendered by unaffiliated third parties on a competitive basis;
(p) costs of Landlord’s charitable or political contributions, or of fine art maintained at the Project;
(q) costs in connection with services (including electricity), items or other benefits of a type which are not standard for the Project and which are not
available to Tenant without specific charges therefor, but which are provided to another tenant or occupant of the Project, whether or not such other tenant or occupant is specifically charged therefor by Landlord;
(r) costs incurred in the sale or refinancing of the Project;
(s) income taxes of Landlord or the owner of any interest in the Project, franchise, capital stock, gift, estate or inheritance taxes or any federal, state or local documentary taxes imposed against Landlord, the
Project or any portion thereof or interest therein; and
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(t) any expenses otherwise includable within Operating Expenses to the extent actually reimbursed by
persons other than tenants of the Project under leases for space in the Project. Landlord agrees to use commercially reasonable efforts to obtain reimbursement from any such third party; provided, however, that Landlord shall have no obligation to
bring a legal action to obtain any such reimbursement. At Tenant’s election, Landlord shall assign Landlord’s right to reimbursement to Tenant, provided that any such right is assignable by Landlord, and Tenant shall thereafter have the
right to exercise any rights Landlord would have to obtain such reimbursement including the right prosecute a legal proceeding to obtain such reimbursement, if such a right is available. Tenant hereby indemnifies and agrees to defend and hold
Landlord harmless from and against any claims that may arise against Landlord as a result of Tenant’s exercise of the rights set forth in this Section 5(t)
Within 90 days after the end of each calendar year (or such longer period as may be reasonably required), Landlord shall furnish to Tenant a statement (an
“Annual Statement”
) showing in reasonable
detail: (a) the total and Tenant’s Share of actual 770 Operating Expenses and 790 Operating Expenses for the previous calendar year, and (b) the total of Tenant’s payments in respect of Operating Expenses for such year. If
Tenant’s Share of actual Operating Expenses for either Building for such year exceeds Tenant’s payments of Operating Expenses for such Building for such year, the excess shall be due and payable by Tenant as Rent within 30 days after
delivery of such Annual Statement to Tenant. If Tenant’s payments of Operating Expenses for either Building for such year exceed Tenant’s Share of actual Operating Expenses for such Building for such year Landlord shall pay the excess to
Tenant within 30 days after delivery of such Annual Statement, except that after the expiration, or earlier termination of the Term or if Tenant is delinquent in its obligation to pay Rent, Landlord shall pay the excess to Tenant after deducting all
other amounts due Landlord.
The Annual Statement shall be final and binding upon Tenant unless Tenant, within 60 days after Tenant’s
receipt thereof, shall contest any item therein by giving written notice to Landlord, specifying each item contested and the reason therefor. If, during such 60 day period, Tenant reasonably and in good faith questions or contests the accuracy of
Landlord’s statement of Tenant’s Share of Operating Expenses for either Building, Landlord will provide Tenant and its representatives with access to Landlord’s books and records relating to the operation of such Building and the
Project and such information as Landlord reasonably determines to be responsive to Tenant’s questions (the
“Expense Information”
). If after Tenant’s review of such Expense Information, Landlord and Tenant cannot agree upon
the amount of Tenant’s Share of Operating Expenses for such Building, then Tenant shall have the right to have an independent public accounting firm selected by Tenant and reasonably acceptable to Landlord, working pursuant to a fee arrangement
other than a contingent fee (at Tenant’s sole cost and expense) and approved by Landlord (which approval shall not be unreasonably withheld or delayed), audit and/or review the Expense Information for the year in question (the
“Independent Review”
). The results of any such Independent Review shall be binding on Landlord and Tenant. If the Independent Review shows that the payments actually made by Tenant with respect to Operating Expenses for such
Building for the calendar year in question exceeded Tenant’s Share of Operating Expenses for such Building for such calendar year, Landlord shall at Tenant’s option either (i) credit the excess amount to the next succeeding
installments of estimated Operating Expenses for such Building or (ii) pay the excess to Tenant within 30 days after delivery of such statement, except that after the expiration or earlier termination of this Lease or if Tenant is delinquent in
its obligation to pay Rent, Landlord shall pay the excess to Tenant after deducting all other amounts due Landlord. If the Independent Review shows that Tenant’s payments with respect to Operating Expenses for such Building for such calendar
year were less than Tenant’s Share of Operating Expenses for such Building for the calendar year, Tenant shall pay the deficiency to Landlord within 30 days after delivery of such statement. If the Independent Review shows that Tenant has
overpaid with respect to Operating Expenses for such Building by more than 5% then Landlord shall reimburse Tenant for all costs incurred by Tenant for the Independent Review. Operating Expenses for the calendar years in which Tenant’s
obligation to share therein begins and ends shall be prorated.
“Tenant’s Share”
shall be the percentage set forth in
the Basic Lease Provisions as Tenant’s Share as reasonably adjusted by Landlord for changes in the physical size of the Premises or the Project occurring thereafter. Landlord may equitably increase Tenant’s Share for any item of expense or
cost
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reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the Premises or only a portion of the Project that includes the
Premises or that varies with occupancy or use. Base Rent, Tenant’s Share of Operating Expenses and all other amounts payable by Tenant to Landlord hereunder are collectively referred to herein as
“Rent.”
6.
Security Deposit.
Tenant shall deposit with Landlord, upon delivery of an executed copy of this Lease to Landlord, a security deposit (the
“Security Deposit”
) for the performance of all of Tenant’s obligations hereunder in the amount set forth in the Basic Lease Provisions, which Security Deposit shall be in the form of an unconditional and irrevocable letter of
credit (the
“Letter of Credit”
): (i) in form and substance satisfactory to Landlord, (ii) naming Landlord as beneficiary, (iii) expressly allowing Landlord to draw upon it at any time from time to time by delivering
to the issuer notice that Landlord is entitled to draw thereunder, (iv) issued by Silicon Valley Bank, and (v) redeemable by presentation of a sight draft in the State of California and permitted manner by Silicon Valley Bank. If Tenant
does not provide Landlord with a substitute Letter of Credit complying with all of the requirements hereof at least 10 days before the stated expiration date of any then current Letter of Credit, Landlord shall have the right to draw the full amount
of the current Letter of Credit and hold the funds drawn in cash without obligation for interest thereon as the Security Deposit, provided that, if Tenant thereafter delivers such substitute Letter of Credit, all funds drawn in cash shall be
reimbursed to Tenant within ten (10) business days after deliver of such substitute Letter of Credit. The Security Deposit shall be held by Landlord as security for the performance of Tenant’s obligations under this Lease. The Security
Deposit is not an advance rental deposit or a measure of Landlord’s damages in case of Tenant’s default. Upon each occurrence of a Default (as defined in
Section 20
), Landlord may use all or any part of the Security Deposit to
pay delinquent payments due under this Lease, and the cost of any damage, injury, expense or liability caused by such Default, without prejudice to any other remedy provided herein or provided by law. Upon any such use of all or any portion of the
Security Deposit, Tenant shall pay Landlord on demand the amount that will restore the Security Deposit to the amount set forth in the Basic Lease Provisions. Tenant hereby waives the provisions of any law, now or hereafter in force, which provide
that Landlord may claim from a security deposit only those sums reasonably necessary to remedy defaults in the payment of Rent, to repair damage caused by Tenant or to clean the Premises, it being agreed that Landlord may, in addition, claim those
sums reasonably necessary to compensate Landlord for any other loss or damage, foreseeable or unforeseeable, caused by the act or omission of Tenant or any officer, employee, agent or invitee of Tenant which is a Default under the Lease. Upon
bankruptcy or other debtor-creditor proceedings against Tenant, the Security Deposit shall be deemed to be applied first to the payment of Rent and other charges due Landlord for periods prior to the filing of such proceedings. Upon any such use of
all or any portion of the Security Deposit, Tenant shall, within 5 days after demand from Landlord, restore the Security Deposit to its original amount. If Tenant shall fully perform every provision of this Lease to be performed by Tenant, the
Security Deposit, or any balance thereof (i.e., after deducting therefrom all amounts to which Landlord is entitled under the provisions of this Lease), shall be returned to Tenant (or, at Landlord’s option, to the last assignee of
Tenant’s interest hereunder) within 60 days after the expiration or earlier termination of this Lease.
If Landlord transfers its
interest in the Project or this Lease, Landlord shall either (a) transfer any Security Deposit then held by Landlord to a person or entity assuming Landlord’s obligations under this
Section 6
, or (b) return to Tenant any
Security Deposit then held by Landlord and remaining after the deductions permitted herein. Upon such transfer to such transferee or the return of the Security Deposit to Tenant, Landlord shall have no further obligation with respect to the Security
Deposit, and Tenant’s right to the return of the Security Deposit shall apply solely against Landlord’s transferee. The Security Deposit is not an advance rental deposit or a measure of Landlord’s damages in case of Tenant’s
default. Landlord’s obligation respecting the Security Deposit is that of a debtor, not a trustee, and no interest shall accrue thereon.
If at any time during the Term of this Lease Tenant’s stock shall be listed on any nationally recognized exchange, including, without limitation, the New York Stock Exchange, NASDAQ stock market or American Stock Exchange (the
“Reduction Requirement”
), then the Security Deposit shall be reduced to an amount equal to three months then applicable monthly Base Rent (the
“Reduced Security Deposit”
).
If Tenant notifies Landlord, in
writing, that Tenant has met the Reduction Requirement, then
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Landlord shall return the unapplied portion of the Security Deposit then held by Landlord, less the Reduced Security Deposit, to Tenant within 30 days of
Tenant’s delivery of such written notice, or shall accept delivery of an amendment to the Letter of Credit reducing the face amount thereof. If Landlord returns to Tenant any portion of the Security Deposit in accordance with this Section, then
from and after the date such monies are returned to Tenant, the
“Security Deposit”
shall be deemed to be the Reduced Security Deposit for all purposes of this Lease.
The Reduced Security Deposit shall be increased in accordance with the terms of this Section if (i) Tenant is in Default hereunder, or
(ii) Tenant fails at any time after reduction of the Security Deposit to continue to meet the Reduction Requirement (provided that, notwithstanding Tenant’s failure to continue to meet the Reduction Requirement, the Reduced Security
Deposit shall not be increased if Tenant is able to provide evidence, reasonably satisfactory to Landlord, that Tenant’s valuation, which valuation has been confirmed by an outside private equity financing round in the immediately preceding six
(6) months, is then at least $250,000,000). Landlord shall have the right (not to be exercised more than 2 times per calendar year) to request written evidence from Tenant that Tenant continues to meet the Reduction Requirement. If Tenant is in
Default under the Lease or fails to continue to meet the Reduction Requirement, the Security Deposit shall be increased to an amount equal to 6 times the then applicable monthly Base Rent. Such increased Security Deposit shall be paid to Landlord
within 10 days of Landlord’s written demand, in the case of Tenant’s Default under the Lease, or within 10 days of Landlord’s written demand, in the case of Tenant’s failure to meet the Reduction Requirement. If Tenant is
required to increase the Reduced Security Deposit in accordance with this Section, then from and after the date such monies are deposited with Landlord, the
“Security Deposit”
shall be deemed to be the amount then held by Landlord
hereunder.
7.
Use.
The Premises shall be used solely for the Permitted Use set forth in the Basic Lease Provisions, and in
compliance with all laws, orders, judgments, ordinances, regulations, codes, directives, permits, licenses, covenants and restrictions now or hereafter applicable to the Premises, and to the use and occupancy thereof, including, without limitation,
the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. (together with the regulations promulgated pursuant thereto,
“ADA”
) (collectively,
“Legal Requirements”
and each, a
“Legal
Requirement”
). Tenant shall, upon 5 days’ written notice from Landlord, discontinue any use of the Premises which is declared by any Governmental Authority (as defined in
Section 9
) having jurisdiction to be a violation of
a Legal Requirement. Tenant will not use or permit the Premises to be used for any purpose or in any manner that would void Tenant’s or Landlord’s insurance, increase Landlord’s insurance premiums, or cause the disallowance of any
sprinkler or other credits. To the extent that any part of the Premises is determined to be a “place of public accommodation”, as defined in the ADA or any similar legal requirement, as a result of Tenant’s particular use thereof,
Tenant shall be responsible, at Tenant’s sole cost and expense, for performing any alterations to the Project and providing any services required in order to cause the Project to comply with the ADA or such similar legal requirement. Tenant
shall reimburse Landlord promptly upon demand for any additional premium charged for any such insurance policy by reason of Tenant’s failure to comply with the provisions of this Section or otherwise caused by Tenant’s use and/or occupancy
of the Premises. Tenant will use the Premises in a careful, safe and proper manner and will not commit or permit waste, overload the floor or structure of the Premises, subject the Premises to use that would damage the Premises or obstruct or
interfere with the rights of Landlord or other tenants or occupants of the Project, including conducting or giving notice of any auction, liquidation, or going out of business sale on the Premises, or using or allowing the Premises to be used for
any unlawful purpose. Tenant shall cause any equipment or machinery to be installed in the Premises so as to reasonably prevent sounds or vibrations from the Premises from extending into Common Areas, or other space in the Project. Tenant shall not
place any machinery or equipment weighing exceeding the live load capacity of the Premises or transport or move such items through the Common Areas of the Project or in the Project elevators without the prior written consent of Landlord. Except as
may be provided under the Work Letter, Tenant shall not, without the prior written consent of Landlord, use the Premises in any manner which will require ventilation, air exchange, heating, gas, steam, electricity or water beyond the existing
capacity of the Project as proportionately allocated to the Premises based upon Tenant’s Share as usually furnished for the Permitted Use.
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Landlord shall deliver the Premises to Tenant in compliance with all Legal Requirements applicable to
the Premises and in effect as of the Delivery Date, including, without limitation, the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. (together with regulations promulgated pursuant thereto,
“ADA”
). Landlord shall
be responsible for any alterations necessary to cause the Common Areas and any elements of the Buildings and Property under Landlord’s exclusive control to comply with all Legal Requirements, except to the extent that any such work is required
due to Tenant’s particular use of the Premises.
Landlord shall, as an Operating Expense (to the extent such Legal Requirement is
first in effect or applied to the Project after the Commencement Date and is generally applicable to similar buildings in the area in which the Project is located) or at Tenant’s expense (to the extent such Legal Requirement is applicable
solely by reason of Tenant’s, as compared to other tenants of the Project, particular use of the Premises) make any alterations or modifications to the Common Areas or the exterior of the Building that are required by Legal Requirements,
including the ADA. Tenant, at its sole expense, shall make any alterations or modifications to the interior of the Premises that are required by Legal Requirements as a result of the Tenant’s particular use of the Premises (including, without
limitation, compliance of the Premises with the ADA). Notwithstanding any other provision herein to the contrary, Tenant shall be responsible for any and all demands, claims, liabilities, losses, costs, expenses, actions, causes of action, damages
or judgments, and all reasonable expenses incurred in investigating or resisting the same (including, without limitation, reasonable attorneys’ fees, charges and disbursements and costs of suit) (collectively,
“Claims”
) arising
out of or in connection with Legal Requirements arising solely in connection with Tenant’s as compared to other tenants, particular use of the Project, and Tenant shall indemnify, defend, hold and save Landlord harmless from and against any and
all such Claims arising out of or in connection with any failure of the Premises to comply with any such Legal Requirement.
8.
Holding
Over.
If, with Landlord’s express written consent, Tenant retains possession of the Premises after the termination of the Term, (i) unless otherwise agreed in such written consent, such possession shall be subject to immediate
termination by Landlord at any time, (ii) all of the other terms and provisions of this Lease (including, without limitation, the adjustment of Base Rent pursuant to
Section 4
hereof) shall remain in full force and effect (excluding
any expansion or renewal option or other similar right or option) during such holdover period, (iii) Tenant shall continue to pay Base Rent in the amount payable upon the date of the expiration or earlier termination of this Lease or such other
amount as Landlord may indicate, in Landlord’s sole and absolute discretion, in such written consent, and (iv) all other payments shall continue under the terms of this Lease. If Tenant remains in possession of the Premises after the
expiration or earlier termination of the Term without the express written consent of Landlord, (A) Tenant shall become a tenant at sufferance upon the terms of this Lease except that the monthly rental shall be equal to 150% of Rent in effect
during the last 30 days of the Term, and (B) Tenant shall be responsible for all damages suffered by Landlord resulting from or occasioned by Tenant’s holding over, other than consequential damages. No holding over by Tenant, whether with
or without consent of Landlord, shall operate to extend this Lease except as otherwise expressly provided, and this
Section 8
shall not be construed as consent for Tenant to retain possession of the Premises. Acceptance by Landlord of
Rent after the expiration of the Term or earlier termination of this Lease shall not result in a renewal or reinstatement of this Lease.
9.
Taxes.
Landlord shall pay, as part of Operating Expenses, all real property taxes, levies, assessments and governmental charges of any kind (collectively referred to as
“Taxes”
) imposed by any federal, state,
regional, municipal, local or other governmental authority or agency, including, without limitation, quasi-public agencies (collectively,
“Governmental Authority”
) and attributable to the period within the Term, including, without
limitation, all Taxes: (i) imposed on or measured by or based, in whole or in part, on rent payable to Landlord under this Lease and/or from the rental by Landlord of the Project or any portion thereof, or (ii) based on the square footage,
assessed value or other measure or evaluation of any kind of the Premises or the Project, or (iii) assessed or imposed by or on the operation or maintenance of any portion of the Premises or the Project, including parking, or (iv) assessed
or imposed in addition to, or in substitution, partially or totally, of any assessment, tax, fee, levy or charge previously included within the definition of real property tax, or (v) imposed as a license or other fee on Landlord’s
business of leasing space in the Project. Taxes shall not include any income taxes or any other taxes
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excluded from Operating Expenses pursuant to Section 5 hereof. Landlord agrees to pay all assessments and municipal betterments in the maximum number of
installments legally permitted. Landlord may contest by appropriate legal proceedings the amount, validity, or application of any Taxes or liens securing Taxes. If Landlord elects not to contest any such Taxes or liens, Tenant shall have the right
to do so, provided Tenant is then occupying 50% or more of the Building for which taxes are being contested, and Landlord shall cooperate to extent reasonably necessary in order to permit Tenant to contest such matters. Tenant shall reimburse
Landlord for all of Landlord’s reasonable out-of-pocket expenses incurred in cooperating with Tenant as aforesaid. If any such Tax is levied or assessed directly against Tenant, then Tenant shall be responsible for and shall pay the same at
such times and in such manner as the taxing authority shall require. If Tenant is successful in achieving a reduction of Taxes for the Project, Landlord shall reimburse Tenant for a pro rata share of Tenant’s reasonable legal fees and other
reasonable, out-of-pocket costs incurred in achieving such reduction, which pro rata share shall be calculated by multiplying the total amount of such permitted fees and costs by a fraction, the numerator of which shall be the total rentable square
footage of the 790 Building not leased to Tenant as of the date of such reduction and the denominator of which shall be the total rentable square footage of the Project. Tenant shall pay, prior to delinquency, any and all Taxes levied or assessed
against any personal property or trade fixtures placed by Tenant in the Premises, whether levied or assessed against Landlord or Tenant. If any Taxes on Tenant’s personal property or trade fixtures are levied against Landlord or Landlord’s
property, or if the assessed valuation of the Project is increased by a value attributable to improvements in or alterations to the Premises, whether owned by Landlord or Tenant and whether or not affixed to the real property so as to become a part
thereof, higher than the base valuation on which Landlord from time-to-time allocates Taxes to all tenants in the Project, Landlord shall have the right, but not the obligation, to pay such Taxes. Landlord’s determination of any excess assessed
valuation shall be binding and conclusive, absent manifest error. The amount of any such payment by Landlord shall constitute Additional Rent due from Tenant to Landlord immediately upon demand.
10.
Parking, Transportation.
Subject to all matters of record, Force Majeure, a Taking (as defined in Section 19 below) and the exercise by
Landlord of its rights hereunder, Tenant shall have the right to park in 58 reserved spaces in the parking garage located in the Project in the locations shown on
Exhibit E
and 22 non-reserved spaces on the surface parking lot in the Project,
in each case in those areas designated for non-reserved parking, in common with other tenants of the Project and subject to Landlord’s rules and regulations. Landlord shall impose and uniformly enforce parking rules and regulations upon all
users of the parking garage and surface parking lot in the Project. Tenant shall pay a license fee for such parking in the amount of $160 per month for each garage space and $110 per month for each surface lot space, which license fees may be
adjusted to a market rate annually, each such increase not to exceed 5% of the amount paid for the immediately preceding year.
Tenant
shall comply with the requirements set forth in
Exhibit F
attached hereto, setting forth certain governmentally imposed requirements related to parking and transportation demand management which are binding on tenants in the Project.
11.
Utilities, Services.
Landlord shall provide, subject to the terms of this
Section 11
, water, electricity, heat, light, power, telephone, sewer, and other utilities (including gas and fire sprinklers to the extent the Project is plumbed for such
services), refuse and trash collection and janitorial services (collectively,
“Utilities”
). Landlord shall pay, as Operating Expenses or subject to Tenant’s reimbursement obligation, for all Utilities used on the Premises, all
maintenance charges for Utilities, and any storm sewer charges or other similar charges for Utilities imposed by any Governmental Authority or Utility provider, and any taxes, penalties, surcharges or similar charges thereon. Landlord may cause, at
Tenant’s expense, any Utilities to be separately metered or charged directly to Tenant by the provider. After written notice from Landlord, Tenant shall pay directly to the Utility provider, prior to delinquency, any separately metered
Utilities and services which may be furnished to Tenant or the Premises during the Term. Tenant shall pay, as part of Operating Expenses, its share of all charges for jointly metered Utilities based upon consumption, as reasonably determined by
Landlord. No interruption or failure of Utilities, from any cause whatsoever other than Landlord’s willful misconduct, shall result in eviction or constructive eviction of Tenant,
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termination of this Lease or the abatement of Rent. Tenant agrees to limit use of water and sewer with respect to Common Areas to normal restroom use.
12.
Alterations and Tenant’s Property.
Any alterations, additions, or improvements made to the Premises by or on behalf of
Tenant, including additional locks or bolts of any kind or nature upon any doors or windows in the Premises, but excluding installation, removal or realignment of furniture systems (other than removal of furniture systems owned or paid for by
Landlord) not involving any modifications to the structure or connections (other then by ordinary plugs or jacks) to Building Systems (as defined in
Section 13
) (
“Alterations”
) shall be subject to Landlord’s prior
written consent, which may be given or withheld in Landlord’s sole discretion if any such Alteration affects the structure or Building Systems, but which shall otherwise not be unreasonably withheld or delayed. Tenant may construct
nonstructural Alterations in the Premises without Landlord’s prior approval if the aggregate cost of all such work in any 12 month period does not exceed $100,000.00 (a
“Notice-Only Alteration”
)
,
provided Tenant notifies
Landlord in writing of such intended Notice-Only Alteration, and such notice shall be accompanied by plans, specifications, work contracts and such other information concerning the nature and cost of the Notice-Only Alteration as may be reasonably
requested by Landlord, which notice and accompanying materials shall be delivered to Landlord not less than 10 business days in advance of any proposed construction. If Landlord approves any Alterations, Landlord may impose such conditions on Tenant
in connection with the commencement, performance and completion of such Alterations as Landlord may deem appropriate in Landlord’s reasonable discretion. Any request for approval shall be in writing, delivered not less than 15 business days in
advance of any proposed construction, and accompanied by plans, specifications, bid proposals, work contracts and such other information concerning the nature and cost of the alterations as may be reasonably requested by Landlord, including the
identities and mailing addresses of all persons performing work or supplying materials. Landlord’s right to review plans and specifications and to monitor construction shall be solely for its own benefit, and Landlord shall have no duty to
ensure that such plans and specifications or construction comply with applicable Legal Requirements. If Landlord fails to respond within such 15-day period to Tenant’s written request for approval, Tenant shall deliver a second written request
for approval. If Landlord fails to respond within five (5) business days after delivery of such second copy of Tenant’s written request for approval of Alterations, then Landlord shall be deemed to have approved such Alterations. Tenant
shall cause, at its sole cost and expense, all Alterations to comply with insurance requirements and with Legal Requirements and shall implement at its sole cost and expense any alteration or modification required by Legal Requirements as a result
of any Alterations. Tenant shall pay to Landlord, as Additional Rent, on demand an amount equal to 2% of all charges incurred by Tenant or its contractors or agents in connection with any Alteration, not to exceed $5,000.00, plus the reasonable cost
of any third party design consultants hired by Landlord at its discretion to review Tenant’s plans, to cover Landlord’s overhead and expenses for plan review, coordination, scheduling and supervision. Before Tenant begins any Alteration,
Landlord may post on and about the Premises notices of non-responsibility pursuant to applicable law. Tenant shall reimburse Landlord for, and indemnify and hold Landlord harmless from, any expense incurred by Landlord by reason of faulty work done
by Tenant or its contractors, delays caused by such work, or inadequate cleanup.
At Landlord’s option, which option Landlord shall be
commercially reasonable in exercising, Tenant shall furnish security or make other arrangements satisfactory to Landlord to assure payment for the completion of all Alterations work free and clear of liens, and shall provide (and cause each
contractor or subcontractor to provide) certificates of insurance for workers’ compensation and other coverage in amounts and from an insurance company satisfactory to Landlord protecting Landlord against liability for personal injury or
property damage during construction. Upon completion of any Alterations, Tenant shall deliver to Landlord: (i) sworn statements setting forth the names of all contractors and subcontractors who did the work and final lien waivers from all such
contractors and subcontractors; and (ii) “as built” plans for any such Alteration.
Other than (i) the items, if any,
listed on
Exhibit G
attached hereto, (ii) any items agreed by Landlord in writing to be included on
Exhibit G
in the future, and (iii) any trade fixtures, machinery, equipment and other personal property not paid for out of
the Tl Fund (as defined in the Work Letter) which may be removed without material damage to the Premises, which damage shall be repaired
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(including capping or terminating utility hook-ups behind walls) by Tenant during the Term (collectively,
“Tenant’s Property”
)
,
all property of any kind paid for with the Tl Fund, all Alterations, and all fixtures, machinery and equipment, built-in casework and cabinets and other similar additions and improvements built into the Premises so as to become an integral part
of the Premises such as fume hoods which penetrate the roof or plenum area, built-in cold rooms, built-in warm rooms, walk-in cold rooms, walk-in warm rooms, deionized water systems, glass washing equipment (unless purchased by Tenant at its sole
cost and expense and not as part of the Tl Allowance), autoclaves (unless purchased by Tenant at its sole cost and expense and not as part of the Tl Allowance), chillers, built-in plumbing, electrical and mechanical equipment and systems, and any
power generator and transfer switch (collectively,
“Installations”
) shall be and shall remain the property of Landlord during the Term and following the expiration or earlier termination of the Term, shall not be removed by Tenant
at any time during the Term and shall remain upon and be surrendered with the Premises as a part thereof in accordance with
Section 28
following the expiration or earlier termination of this Lease;
provided
,
however
, that
Landlord shall, at the time its approval of such Installation is requested or at the time it receives notice of a Notice-Only Alteration, notify Tenant if it has elected to cause Tenant to remove such Installation upon the expiration or earlier
termination of this Lease. If Landlord so elects, Tenant shall remove such Installation upon the expiration or earlier termination of this Lease and restore any damage caused by or occasioned as a result of such removal, including, when removing any
of Tenant’s Property which was plumbed, wired or otherwise connected to any of the Building Systems, capping off all such connections behind the walls of the Premises and repairing any holes. During any such restoration period, Tenant shall pay
Rent to Landlord as provided herein as if said space were otherwise occupied by Tenant.
13.
Landlord’s Repairs.
Landlord, as
an Operating Expense (subject to the exclusions from Operating Expenses as described in Section 5 hereof), shall maintain all of the structural portions, including all elements of the roof, exterior, parking and other Common Areas of the
Project, including HVAC, plumbing, fire sprinklers, elevators and all other building systems serving the Premises and other portions of the Project (
“Building Systems”
)
,
in good repair, reasonable wear and tear and uninsured
losses and damages caused by Tenant, or by any of Tenant’s agents, servants, employees, invitees and contractors (collectively,
“Tenant Parties”
) excluded. Losses and damages caused by Tenant or any Tenant Party shall be
repaired by Landlord, to the extent not covered by insurance, at Tenant’s sole cost and expense. Landlord reserves the right to stop Building Systems services when necessary (i) by reason of accident or emergency, or (ii) for planned
repairs, alterations or improvements, which are, in the judgment of Landlord, desirable or necessary to be made, until said repairs, alterations or improvements shall have been completed. Landlord shall have no responsibility or liability for
failure to supply Building Systems services during any such period of interruption;
provided
,
however
, that Landlord shall, except in case of emergency, make a commercially reasonable effort to schedule such work during hours that are
not normal business hours, and shall give Tenant 24 hours advance notice of any planned stoppage of Building Systems services for routine maintenance, repairs, alterations or improvements. Tenant shall promptly give Landlord written notice of any
repair required by Landlord pursuant to this Section or with respect to any emergency, oral notice followed immediately by written notice), after which Landlord shall have a reasonable opportunity to effect such repair. Landlord shall not be liable
in any legal action for any failure to make any repairs unless such failure shall persist for an unreasonable time after Tenant’s written notice of the need for such repairs. Tenant waives its rights under any state or local law to terminate
this Lease or to make such repairs at Landlord’s expense and agrees that the parties’ respective rights with respect to such matters shall be solely as set forth herein. Repairs required as the result of fire, earthquake, flood, vandalism,
war, or similar cause of damage or destruction shall be controlled by
Section 18
.
14.
Tenant’s Repairs.
Subject to
Section 13
hereof, Tenant, at its expense, shall repair, replace and maintain in good condition, reasonable wear and tear excepted, all portions of the Premises, including, without limitation, entries, doors, ceilings, interior windows,
interior walls, and the interior side of demising walls. Tenant acknowledges that such repair and replacement may include expenditures and repairs whose benefit may extend beyond the Term. Should Tenant fail to make any such repair or replacement or
fail to maintain the Premises, Landlord shall give Tenant notice of such failure. If Tenant fails to commence cure of such failure within 10 business days of Landlord’s notice, and thereafter diligently prosecute such cure to completion,
Landlord may perform such work and shall be reimbursed
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by Tenant within 10 business days after demand therefor; provided, however, that if such failure by Tenant creates or could create an emergency, Landlord may
immediately commence cure of such failure and shall thereafter be entitled to recover the costs of such cure from Tenant. Subject to
Sections 17
and
18
, Tenant shall bear the full uninsured cost of any repair or replacement to any part
of the Project that results from damage caused by Tenant or any Tenant Party.
15.
Mechanic’s Liens.
Tenant shall discharge, by
bond or otherwise, any mechanic’s lien filed against the Premises or against the Project for work claimed to have been done for, or materials claimed to have been furnished to, Tenant within 10 days after the filing thereof, at Tenant’s
sole cost and shall otherwise keep the Premises and the Project free from any liens arising out of work performed, materials furnished or obligations incurred by Tenant. Should Tenant fail to discharge any lien described herein, Landlord shall have
the right, but not the obligation, to pay such claim or post a bond or otherwise provide security to eliminate the lien as a claim against title to the Project and the cost’ thereof shall be immediately due from Tenant as Additional Rent. If
Tenant shall lease or finance the acquisition of office equipment, furnishings, or other personal property of a removable nature utilized by Tenant in the operation of Tenant’s business, Tenant warrants that any Uniform Commercial Code
Financing Statement filed as a matter of public record by any lessor or creditor of Tenant will upon its face or by exhibit thereto indicate that such Financing Statement is applicable only to removable personal property of Tenant located within the
Premises. In no event shall the address of the Project be furnished on the statement without qualifying language as to applicability of the lien only to removable personal property, located in an identified suite held by Tenant.
16.
Indemnification.
Tenant hereby indemnifies and agrees to defend, save and hold Landlord harmless from and against any and all Claims for
injury or death to persons or damage to property occurring within or about the Premises, arising directly or indirectly out use or occupancy of the Premises or a breach or default by Tenant in the performance of any of its obligations hereunder,
unless caused solely by the willful misconduct or negligence of Landlord. Landlord shall not be liable to Tenant for, and Tenant assumes all risk of damage to, personal property (including, without limitation, loss of records kept within the
Premises). Tenant further hereby irrevocably waives any and all Claims for injury to Tenant’s business or loss of income relating to any such damage or destruction of personal property (including, without limitation, any loss of records),
unless caused by the willful misconduct or negligence of Landlord. Landlord shall not be liable for any damages arising from any act, omission or neglect of any tenant in the Project or of any other third party.
17.
Insurance.
Landlord shall maintain all risk property and, if applicable, sprinkler damage insurance covering the full replacement cost of the
Project with agreed value endorsement. Landlord shall further procure and maintain commercial general liability insurance with a single loss limit of not less than $2,000,000 for bodily injury and property damage with respect to the Project.
Landlord may, but is not obligated to, maintain such other insurance and additional coverages as it may deem necessary, including, but not limited to, flood, environmental hazard and earthquake, loss or failure of building equipment, errors and
omissions, rental loss during the period of repair or rebuilding, workers’ compensation insurance and fidelity bonds for employees employed to perform services and insurance for any improvements installed by Tenant or which are in addition to
the standard improvements customarily furnished by Landlord without regard to whether or not such are made a part of the Project. All such insurance shall be included as part of the Operating Expenses. The Project may be included in a blanket policy
(in which case the cost of such insurance allocable to the Project will be determined by Landlord based upon the insurer’s cost calculations).
Tenant, at its sole cost and expense, shall maintain during the Term: all risk property insurance with business interruption and extra expense coverage, covering the full replacement cost of all property and improvements installed or placed
in the Premises by Tenant at Tenant’s expense; workers’ compensation insurance with no less than the minimum limits required by law; employer’s liability insurance with such limits as required by law and commercial general liability
insurance, with a minimum limit of not less than $2,000,000 per occurrence for bodily injury and property damage with respect to the Premises. The commercial general liability insurance policy shall name Landlord, its officers, directors, employees,
managers, agents, invitees and contractors (collectively,
“Landlord Parties”)
, as additional
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insureds. The commercial general liability insurance policy shall insure on an occurrence and not a claims-made basis; shall be issued by insurance companies
which have a rating of not less than policyholder rating of A and financial category rating of at least Class X in “Best’s Insurance Guide”; shall not be cancelable for nonpayment of premium unless 10 days prior written notice shall
have been given to Landlord from the insurer; contain a hostile fire endorsement and a contractual liability endorsement; and provide primary coverage to Landlord (any policy issued to Landlord providing duplicate or similar coverage shall be deemed
excess over Tenant’s policies). Copies of such policies (if requested by Landlord), or certificates of insurance showing the limits of coverage required hereunder and showing Landlord as an additional insured, along with reasonable evidence of
the payment of premiums for the applicable period, shall be delivered to Landlord by Tenant upon commencement of the Term and upon each renewal of said insurance. Tenant’s policy may be a “blanket policy” with an aggregate per
location endorsement which specifically provides that the amount of insurance shall not be prejudiced by other losses covered by the policy. Tenant shall, at least 5 days prior to the expiration of such policies, furnish Landlord with renewal
certificates.
In each instance where insurance is to name Landlord as an additional insured, Tenant shall upon written request of Landlord
also designate and furnish certificates so evidencing Landlord as additional insured to: (i) any lender of Landlord holding a security interest in the Project or any portion thereof, (ii) the landlord under any lease wherein Landlord is
tenant of the real property on which the Project is located, if the interest of Landlord is or shall become that of a tenant under a ground or other underlying lease rather than that of a fee owner, and/or (iii) any management company retained
by Landlord to manage the Project.
The property insurance obtained by Landlord and Tenant shall include a waiver of subrogation by the
insurers and all rights based upon an assignment from its insured, against Landlord or Tenant, and their respective officers, directors, employees, managers, agents, invitees and contractors (
“Related Parties”
), in connection with
any loss or damage thereby insured against. Neither party nor its respective Related Parties shall be liable to the other for loss or damage caused by any risk insured against under property insurance required to be maintained hereunder, and each
party waives any claims against the other party, and its respective Related Parties, for such loss or damage. The failure of a party to insure its property shall not void this waiver. Landlord and its respective Related Parties shall not be liable
for, and Tenant hereby waives all claims against such parties for, business interruption and losses occasioned thereby sustained by Tenant or any person claiming through Tenant resulting from any accident or occurrence in or upon the Premises or the
Project from any cause whatsoever. If the foregoing waivers shall contravene any law with respect to exculpatory agreements, the liability of Landlord or Tenant shall be deemed not released but shall be secondary to the other’s insurer.
At any time after the second anniversary of the Commencement Date, Landlord may require insurance policy limits to be raised to conform
with requirements of Landlord’s lender and/or to bring coverage limits to levels then being generally required of new tenants in comparable buildings in Cambridge, Massachusetts.
18.
Restoration.
If, at any time during the Term, one or both of the Buildings are damaged or destroyed by a fire or other insured casualty,
Landlord shall notify Tenant within 60 days after discovery of such damage as to the amount of time Landlord reasonably estimates it will take to restore such Building, as applicable (the
“Restoration Period”
). If the Restoration
Period is estimated to exceed 12 months (the
“Maximum Restoration Period”
), Landlord may, in such notice, or Tenant may, by written notice to Landlord delivered within thirty (30) days after receipt of Landlord’s notice,
elect to terminate this Lease with regard to the Building which has been damaged or destroyed as of the date of such damage or destruction. Unless Landlord or Tenant so elects to terminate this Lease, Landlord shall, subject to receipt of sufficient
insurance proceeds, provided that Landlord has been maintaining the amount of property insurance required pursuant to Section 17 hereof (with any deductible to be treated as a current Operating Expense, provided that such deductible is in a
commercially reasonable amount), promptly restore the affected Building (excluding the improvements installed by Tenant or by Landlord and paid for by Tenant), subject to delays arising from the collection of insurance proceeds, from Force Majeure
events or as needed to obtain any license, clearance or other authorization of any kind required
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to enter into and restore the affected Building issued by any Governmental Authority having jurisdiction over the use, storage, handling, treatment,
generation, release, disposal, removal or remediation of Hazardous Materials (as defined in
Section 30
) in, on or about the Premises (collectively referred to herein as
“Hazardous Materials Clearances”
). Tenant’s
rights, duties and obligations with respect to any Building not damaged or destroyed and the use of which is not materially impaired by such casualty shall remain in full force and effect and shall not be affected in any way as a result of such
casualty.
Tenant, at its expense, shall promptly perform, subject to delays arising from the collection of insurance proceeds, from Force
Majeure (as defined in
Section 34
) events or to obtain Hazardous Material Clearances, all repairs or restoration not required to be done by Landlord and shall promptly re-enter the affected Building and commence doing business in
accordance with this Lease. Notwithstanding the foregoing, either Tenant or Landlord may terminate this Lease if any material portion of the Premises is damaged during the last 1 year of the Term and Landlord reasonably estimates that it will take
more than 2 months to repair such damage, or if insurance proceeds are not available for such restoration. Rent shall be abated from the date all required Hazardous Material Clearances are obtained until the Premises are repaired and restored, in
the proportion which the area of the Premises, if any, which is not usable by Tenant bears to the total area of the Premises, unless Landlord provides Tenant with other space during the period of repair that is suitable for the temporary conduct of
Tenant’s business. Such abatement shall be the sole remedy of Tenant, and except as provided in this
Section 18
, Tenant waives any right to terminate the Lease by reason of damage or casualty loss.
The provisions of this Lease, including this
Section 18
, constitute an express agreement between Landlord and Tenant with respect to any and
all damage to, or destruction of, all or any part of the Premises, or any other portion of the Project, and any statute or regulation which is now or may hereafter be in effect shall have no application to this Lease or any damage or destruction to
all or any part of the Premises or any other portion of the Project, the parties hereto expressly agreeing that this
Section 18
sets forth their entire understanding and agreement with respect to such matters.
19.
Condemnation.
If the whole or any material part of the Premises or the Project or access thereto is taken for any public or quasi-public use
under governmental law, ordinance, or regulation, or by right of eminent domain, or by private purchase in lieu thereof (a
“Taking”
or
‘Taken”
), and the Taking would in the reasonable judgment of the parties either
prevent or materially interfere with Tenant’s use of the Premises or materially interfere with or impair Landlord’s ownership or operation of the Project, then upon written notice by Landlord this Lease shall terminate and Rent shall be
apportioned as of said date. If part of the Premises shall be Taken, and this Lease is not terminated as provided above, Landlord shall promptly restore the Premises and the Project as nearly as is commercially reasonable under the circumstances to
their condition prior to such partial Taking and the rentable square footage of the Building, the rentable square footage of the Premises, Tenant’s Share of Operating Expenses and the Rent payable hereunder during the unexpired Term shall be
reduced to such extent as may be fair and reasonable under the circumstances. Upon any such Taking, Landlord shall be entitled to receive the entire price or award from any such Taking without any payment to Tenant, and Tenant hereby assigns to
Landlord Tenant’s interest, if any, in such award. Tenant shall have the right, to the extent that same shall not diminish Landlord’s award, to make a separate claim against the condemning authority (but not Landlord) for such compensation
as may be separately awarded or recoverable by Tenant for moving expenses and damage to Tenant’s trade fixtures, if a separate award for such items is made to Tenant. Tenant hereby waives any and all rights it might otherwise have pursuant to
any provision of state law to terminate this Lease upon a partial Taking of the Premises or the Project. If only one of the Buildings is affected by any such Taking, Tenant’s rights, duties and obligations with respect to any Building not Taken
shall remain in full force and effect and shall not be affected in any way as a result of such Taking.
20.
Events of Default.
Each
of the following events shall be a default
(“Default”)
by Tenant under this Lease:
(a)
Payment Defaults.
Tenant
shall fail to pay any installment of Rent or any other payment hereunder when due, and such failure shall continue for five (5) business days after written notice from
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Landlord of such failure; provided, however, that Landlord shall not be required to deliver such a notice more than twice in any twelve (12) month
period.
(b)
Insurance.
Any insurance required to be maintained by Tenant pursuant to this Lease shall be canceled or terminated or
shall expire or shall be reduced or materially changed, or Landlord shall receive a notice of nonrenewal of any such insurance and Tenant shall fail to obtain replacement insurance at least 20 days before the expiration of the current coverage.
(c)
Abandonment.
Tenant shall abandon the Premises without provision for the security and maintenance thereof and continuing
compliance with the terms and conditions of this Lease.
(d)
Improper Transfer.
Tenant shall assign, sublease or otherwise transfer
or attempt to transfer all or any portion of Tenant’s interest in this Lease or the Premises except as expressly permitted herein, or Tenant’s interest in this Lease shall be attached, executed upon, or otherwise judicially seized and such
action is not released within 90 days of the action.
(e)
Liens.
Tenant shall fail to discharge, bond over or otherwise obtain the
release of any lien placed upon the Premises in violation of this Lease within 10 days after receiving notice that any such lien is filed against the Premises.
(f)
Insolvency Events.
Tenant or any guarantor or surety of Tenant’s obligations hereunder shall: (A) make a general assignment for the benefit of creditors; (B) commence any case, proceeding or
other action seeking to have an order for relief entered on its behalf as a debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for it or for all or of any substantial part of its property (collectively a
“Proceeding for Relief”);
(C) become the subject of any Proceeding for Relief
which is not dismissed within 90 days of its filing or entry; or (D) be dissolved or otherwise fail to maintain its legal existence (if Tenant, guarantor or surety is a corporation, partnership or other entity).
(g)
Estoppel Certificate or Subordination Agreement.
Tenant fails to execute any document required from Tenant under
Sections 23
or
27
within 5 days after a second notice requesting such document.
(h)
Other Defaults.
Tenant shall fail to comply with any
provision of this Lease other than those specifically referred to in this
Section 20
, and, except as otherwise expressly provided herein, such failure shall continue for a period of 21 days after written notice thereof from Landlord to
Tenant.
Any notice given under
Section 20(h)
hereof shall: (i) specify the alleged default, (ii) demand that Tenant cure such
default, (iii) be in lieu of, and not in addition to, or shall be deemed to be, any notice required under any provision of applicable law, and (iv) not be deemed a forfeiture or a termination of this Lease unless Landlord elects otherwise
in such notice;
provided
that if the nature of Tenant’s default pursuant to
Section 20(h)
is such that it cannot be cured by the payment of money and reasonably requires more than 21 days to cure, then Tenant shall not be
deemed to be in default if Tenant commences such cure within said 21 day period and thereafter diligently prosecutes the same to completion;
provided
,
however
, that such cure shall be completed no later than 60 days from the date of
Landlord’s notice.
21.
Landlord’s Remedies.
(a)
Payment By Landlord; Interest.
Upon a Default by Tenant hereunder, Landlord may, without waiving or releasing any obligation of Tenant
hereunder, make such payment or perform such act. All sums so paid or incurred by Landlord, together with interest thereon, from the date such sums were paid or incurred, at the annual rate equal to 12% per annum or the highest rate permitted
by law (the
“Default Rate”),
whichever is less, shall be payable to Landlord on demand as additional Rent. Nothing
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herein shall be construed to create or impose a duty on Landlord to mitigate any damages resulting from Tenant’s Default hereunder.
(b)
Late Payment Rent.
Late payment by Tenant to Landlord of Rent and other sums due will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult and impracticable to ascertain. Such costs include, but are not limited to, processing and accounting charges and late charges which may be imposed on Landlord under any Mortgage covering
the Premises. Therefore, if any installment of Rent due from Tenant is not received by Landlord within 5 days after the date such payment is due, Tenant shall pay to Landlord an additional sum of 5% of the overdue Rent as a late charge. The parties
agree that this late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. In addition to the late charge, Rent not paid within thirty (30) days after the date due shall bear
interest at the Default Rate from the 5th day after the date due until paid.
(c)
Remedies.
Upon the occurrence of a Default,
Landlord, at its option, without further notice or demand to Tenant, shall have in addition to all other rights and remedies provided in this Lease, at law or in equity, the option to pursue any one or more of the following remedies, each and all of
which shall be cumulative and nonexclusive, without any notice or demand whatsoever.
(i) Terminate this Lease, or at
Landlord’s option, Tenant’s right to possession only, in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim or damages
therefor;
(ii) Upon any termination of this Lease or Tenant’s right of possession, whether pursuant to the foregoing
Section 21(c)(i)
or otherwise, Landlord may recover from Tenant the following:
(A) The worth at the time of
award of any unpaid rent which has been earned at the time of such termination; plus
(B) The worth at the time of award of
the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(C) The worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the
amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(D) Any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, specifically including, but not limited
to, brokerage commissions and advertising expenses incurred, expenses of remodeling the Premises or any portion thereof for a new tenant, whether for the same or a different use, and any special concessions made to obtain a new tenant; and
(E) At Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted from
time to time by applicable law.
The term “rent” as used in this
Section 21
shall be deemed to be and to mean all sums
of every nature required to be paid by Tenant pursuant to the terms of this Lease, whether to Landlord or to others. As used in
Sections 21(c)(ii)(A)
and
(B)
, above, the “
worth at the time of award
”
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shall be computed by allowing interest at the Default Rate. As used in
Section 21(c)(ii)(C)
above, the
“worth at the time of
award”
shall be computed by discounting such amount at the discount rate of Fleet National Bank at the time of award plus 2%.
(iii) Landlord may continue this Lease in effect after Tenant’s Default and recover rent as it becomes due. Accordingly, if Landlord does not elect to terminate this Lease following a Default by Tenant, Landlord
may, from time to time, without terminating this Lease, enforce all of its rights and remedies hereunder, including the right to recover all Rent as it becomes due.
(iv) Whether or not Landlord elects to terminate this Lease following a Default by Tenant, Landlord shall have the right to terminate any
and all subleases, licenses, concessions or other consensual arrangements for possession entered into by Tenant and affecting the Premises or may, in Landlord’s sole discretion, succeed to Tenant’s interest in such subleases, licenses,
concessions or arrangements. Upon Landlord’s election to succeed to Tenant’s interest in any such subleases, licenses, concessions or arrangements, Tenant shall, as of the date of notice by Landlord of such election, have no further right
to or interest in the rent or other consideration receivable thereunder.
(v) Independent of the exercise of any other
remedy of Landlord hereunder or under applicable law, Landlord may conduct an environmental test of the Premises as generally described in
Section 30(d)
hereof, at Tenant’s expense.
(d)
Effect of Exercise.
Exercise by Landlord of any remedies hereunder or otherwise available shall not be deemed to be an acceptance of surrender
of the Premises and/or a termination of this Lease by Landlord, it being understood that such surrender and/or termination can be effected only by the express written agreement of Landlord and Tenant. Any law, usage, or custom to the contrary
notwithstanding, Landlord shall have the right at all times to enforce the provisions of this Lease in strict accordance with the terms hereof; and the failure of Landlord at any time to enforce its rights under this Lease strictly in accordance
with same shall not be construed as having created a custom in any way or manner contrary to the specific terms, provisions, and covenants of this Lease or as having modified the same and shall not be deemed a waiver of Landlord’s right to
enforce one or more of its rights in connection with any subsequent default. A receipt by Landlord of Rent or other payment with knowledge of the breach of any covenant hereof shall not be deemed a waiver of such breach, and no waiver by Landlord of
any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. To the greatest extent permitted by law, Tenant waives the service of notice of Landlord’s intention to re-enter, re-take or
otherwise obtain possession of the Premises as provided in any statute, or to institute legal proceedings to that end, and also waives all right of redemption in case Tenant shall be dispossessed by a judgment or by warrant of any court or judge.
Any reletting of the Premises or any portion thereof shall be on such terms and conditions as Landlord in its sole discretion may determine. Landlord shall not be liable for, nor shall Tenant’s obligations hereunder be diminished because of,
Landlord’s failure to relet the Premises or collect rent due in respect of such reletting or otherwise to mitigate any damages arising by reason of Tenant’s Default.
22.
Assignment and Subletting.
(a)
General Prohibition
. Without Landlord’s prior written consent subject to and on the conditions described in this
Section 22
, Tenant shall not, directly or indirectly, voluntarily or by operation of law, assign this Lease or
sublease the Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold interest or grant any concession or license within the Premises, and any attempt to do any of the foregoing shall be void and of no effect. Landlord’s
consent may be withheld in Landlord’s reasonable discretion in connection with an assignment of the Lease or a sublease or subleases for less than 50% of the Premises and may be withheld in Landlord’s sole discretion in connection with any
sublease or subleases that result in 50% or more of the Premises being subleased. Except as set forth in subsection (c) below, if Tenant is a corporation, partnership or limited liability company, the shares or other ownership interests thereof
which are not actively traded upon a stock exchange or in the over-the-counter market, a transfer or series of transfers whereby 50% or more of the
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issued and outstanding shares or other ownership interests of such corporation are, or voting control is, transferred (but excepting transfers upon deaths of
individual owners) from a person or persons or entity or entities which were owners thereof at time of execution of this Lease to persons or entities who were not owners of shares or other ownership interests of the corporation, partnership or
limited liability company at time of execution of this Lease, shall be deemed an assignment of this Lease requiring the consent of Landlord as provided in this
Section 22
. Notwithstanding the foregoing, neither any public offering of
shares or other ownership interest in Tenant, any transfer of such publicly traded shares thereafter, nor any transfer of ownership interest or voting control pursuant to Tenant’s venture capital financing arrangement shall be deemed an
assignment.
(b)
Recapture.
If Landlord withholds its consent in its sole discretion (and not in its reasonable discretion) in
connection with any sublease or subleases that result in 50% or more of the Premises being subleased, Landlord shall be required to terminate this Lease with respect to the proposed sublet space (subject to the right of Tenant to withdraw the
subject Assignment Notice as set forth below), whereupon, the Rentable Area of the Premises, Base Rent, Tenant’s Share of Operating Expenses, Tenant’s Parking Spaces and any other amounts calculated based on the Rentable Area of the
Premises shall be proportionately revised to reflect such deletion in an instrument to be executed by Landlord and Tenant confirming the same.
(c)
Permitted Transfers.
If Tenant desires to assign, sublease, hypothecate or otherwise transfer this Lease or sublet the Premises other than pursuant to a Permitted Assignment (as defined below), then at least 15 business days, but
not more than 45 business days, before the date Tenant desires the assignment or sublease to be effective (the
“Assignment Date”
), Tenant shall give Landlord a notice (the
“Assignment Notice”
) containing such
information about the proposed assignee or sublessee, including the proposed use of the Premises and any Hazardous Materials proposed to be used, stored handled, treated, generated in or released or disposed of from the Premises, the Assignment
Date, any relationship between Tenant and the proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or sublease, including a copy of any proposed assignment or sublease, to be followed by such assignment or
sublease in its final form when available (provided that Landlord shall further have the right to review and approve or disapprove the proposed form of sublease prior to the effective date of any such subletting), and such other information as
Landlord may deem reasonably necessary or appropriate to its consideration whether to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days after receipt of the Assignment Notice: (i) grant such consent,
(ii) refuse such consent, in its sole and absolute discretion, if the proposed assignment, hypothecation or other transfer or subletting concerns more than (together with all other then effective subleases) 50% of the Premises and terminate
this Lease with respect to the space described in the Assignment Notice as of the Assignment Date (as “Assignment Termination”), subject to Tenant’s right to withdraw the subject Assignment Notice as set forth below, or
(iii) refuse such consent, in its reasonable discretion, if the proposed subletting concerns (together with all other then effective subleases) 50% or less of the Premises. If Landlord delivers notice of its election to exercise an Assignment
Termination, Tenant shall have the right to withdraw such Assignment Notice by written notice to Landlord of such election within 5 business days after Landlord’s notice electing to exercise the Assignment Termination. If Tenant withdraws such
Assignment Notice, this Lease shall continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease, and the term and estate herein granted, shall terminate as of the Assignment Date with respect to the space
described in such Assignment Notice. No failure of Landlord to exercise any such option to terminate this Lease, or to deliver a timely notice in response to the Assignment Notice, shall be deemed to be Landlord’s consent to the proposed
assignment, sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord’s reasonable out-of-pocket expenses in connection with its consideration of any Assignment Notice, in an amount not to exceed $2,250 per request.
Notwithstanding the foregoing, Landlord’s consent to an assignment of this Lease or a subletting of any portion of the Premises to
any entity controlling, controlled by or under common control with Tenant shall not be required. For purposes of this Lease, an entity shall be deemed to “control” another entity if it owns eighty percent (80%) or more of the
outstanding voting stock of such entity, if such entity is a corporation, or other majority equity and control interest, if such entity is not a corporation, and
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possesses the power to direct or cause the direction of the management and policy of such corporation or other entity, whether through the ownership of
voting securities, by statute or according to the provisions of a contract. In addition, Tenant shall have the right to assign this Lease, upon prior written notice to Landlord but without obtaining Landlord’s prior written consent, to a
corporation or other entity which is a successor-in-interest to Tenant, by way of merger, consolidation or corporate reorganization, or by the purchase of all or substantially all of the assets or the ownership interests of Tenant provided that
(i) such merger or consolidation, or such acquisition or assumption, as the case may be, is for a good business purpose and not principally for the purpose of transferring the Lease, and (ii) the valuation or equity market capitalization
(as independently determined in accordance with generally accepted accounting principles (
“GAAP”
) or by a professional third party investor) of the assignee is not less than $250,000,000, and (iii) such assignee shall agree in
writing to assume all of the terms, covenants and conditions of this Lease arising after the effective date of the assignment. The transfers described in this paragraph are sometimes referred to herein as a
“Permitted Assignment”
.
(d)
Additional Conditions.
As a condition to any such assignment or subletting, whether or not Landlord’s consent is required,
Landlord may require:
(i) that any assignee or subtenant agree, in writing at the time of such assignment or subletting,
that if Landlord gives such party notice that Tenant is in default under this Lease, such party shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments will be received by Landlord without any liability except to
credit such payment against those due under the Lease, and any such third party shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason;
provided
,
however
, in no event shall
Landlord or its successors or assigns be obligated to accept such attornment; and
(ii) A list of Hazardous Materials,
certified by the proposed assignee or sublessee to be true and correct, which the proposed assignee or sublessee intends to use, store, handle, treat, generate in or release or dispose of from the Premises, together with copies of all documents
relating to such use, storage, handling, treatment, generation, release or disposal of Hazardous Materials by the proposed assignee or subtenant in the Premises or on the Project, prior to the proposed assignment or subletting, including, without
limitation: permits; approvals; reports and correspondence; storage and management plans; plans relating to the installation of any storage tanks to be installed in or under the Project (provided, said installation of tanks shall only be permitted
after Landlord has given its written consent to do so, which consent may be withheld in Landlord’s sole and absolute discretion); and all closure plans or any other documents required by any and all federal, state and local Governmental
Authorities for any storage tanks installed in, on or under the Project for the closure of any such tanks. Neither Tenant nor any such proposed assignee or subtenant is required, however, to provide Landlord with any portion(s) of the such documents
containing information of a proprietary nature which, in and of themselves, do not contain a reference to any Hazardous Materials or hazardous activities.
(e)
No Release of Tenant, Sharing of Excess Rents.
Notwithstanding any assignment or subletting, whether or not Landlord’s prior consent to such assignment or subletting is required, Tenant shall at all
times remain fully and primarily responsible and liable for the payment of Rent and for compliance with all of Tenant’s other obligations under this Lease. If the Rent due and payable by a sublessee or assignee (or a combination of the rental
payable under such sublease or assignment plus any bonus or other consideration therefor or incident thereto in any form) exceeds the sum of the rental payable under this Lease, (excluding however, any Rent payable under this Section) and actual and
reasonable brokerage fees, legal costs and any design or construction fees directly related to and required pursuant to the terms of any such sublease) (
“Excess Rent”
), then Tenant shall be bound and obligated to pay Landlord as
Additional Rent hereunder 50% of such Excess Rent within 10 days following receipt thereof by Tenant. If Tenant shall sublet the Premises or any part thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for
Tenant’s obligations under this Lease, all rent from any such subletting, and Landlord as assignee and as attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord’s application, may collect such rent and apply it toward
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Tenant’s obligations under this Lease; except that, until the occurrence of a Default, Tenant shall have the right to collect such rent.
(f)
No Waiver.
The consent by Landlord to an assignment or subletting shall not relieve Tenant or any assignees of this Lease or any sublessees of
the Premises from obtaining the consent of Landlord to any further assignment or subletting nor shall it release Tenant or any assignee or sublessee of Tenant from full and primary liability under the Lease. The acceptance of Rent hereunder, or the
acceptance of performance of any other term, covenant, or condition thereof, from any other person or entity shall not be deemed to be a waiver of any of the provisions of this Lease or a consent to any subletting, assignment or other transfer of
the Premises.
(g)
Prior Conduct of Proposed Transferee.
Notwithstanding any other provision of this
Section 22
, if
(i) the proposed assignee or sublessee of Tenant has been required by any prior landlord, lender or Governmental Authority to take remedial action in connection with Hazardous Materials contaminating a property, where the contamination resulted
from such party’s wrongful or negligent action or use of the property in question, or (ii) the proposed assignee or sublessee is subject to an enforcement order issued by any Governmental Authority in connection with the use, storage,
handling, treatment, generation, release or disposal of Hazardous Materials (including, without limitation, any order related to the failure to make a required reporting to any Governmental Authority), Landlord shall have the absolute right to
refuse to consent to any assignment or subletting to any such party.
23.
Estoppel Certificate.
Each party shall, within 10 business
days of written notice from the other, execute, acknowledge and deliver a statement in writing in any form reasonably requested by a proposed lender or purchaser, (i) certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this Lease as so modified is in full force and effect) and the dates to which the rental and other charges are paid in advance, if any, (ii) acknowledging that there are not
any uncured defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed, and (iii) setting forth such further information with respect to the status of this Lease or the Premises as may be reasonably requested
thereon. Any such statement may be relied upon by any prospective purchaser or encumbrancer of all or any portion of the real property of which the Premises are a part or of Tenant’s business, as the case may be. Failure to deliver such
statement within such time shall, after a second notice thereof, be conclusive upon the party failing to deliver such statement that the Lease is in full force and effect and without modification except as may be represented in any certificate
prepared by the party requesting such statement and delivered to the other party for execution.
24.
Quiet Enjoyment.
So long as
Tenant shall perform all of the covenants and agreements herein required to be performed by Tenant, Tenant shall, subject to the terms of this Lease, at all times during the Term, have peaceful and quiet enjoyment of the Premises against any person
claiming by, through or under Landlord. Landlord represents that it has delivered to Tenant, and Tenant acknowledges receiving from Landlord, a copy of Landlord’s owner’s policy of title insurance covering the Project (with the insured
amount and amount of any financing redacted).
25.
Prorations.
All prorations required or permitted to be made hereunder shall be
made on the basis of a 360 day year and 30 day months.
26.
Rules and Regulations.
Tenant shall, at all times during the Term and
any extension thereof, comply with all reasonable rules and regulations at any time or from time to time established by Landlord covering use of the Premises and the Project. The current rules and regulations are attached hereto as
Exhibit H
.
If there is any conflict between said rules and regulations and other provisions of this Lease, the terms and provisions of this Lease shall control. Landlord shall not have any liability or obligation for the breach of any rules or regulations by
other tenants in the Project and shall not enforce such rules and regulations in a discriminatory manner.
27.
Subordination.
This
Lease and Tenant’s interest and rights hereunder are hereby made and shall be subject and subordinate at all times to the lien of any Mortgage now existing or hereafter
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created on or against the Project or the Premises, and all amendments, restatements, renewals, modifications, consolidations, refinancing, assignments and
extensions thereof, without the necessity of any further instrument or act on the part of Tenant;
provided
,
however
that so long as there is no Default hereunder, Tenant’s right to possession of the Premises shall not be disturbed
by the Holder of any such Mortgage. Tenant agrees, at the election of the Holder of any such Mortgage, to attorn to any such Holder. Tenant agrees upon demand to execute, acknowledge and deliver such instruments, confirming such subordination, and
such instruments of attornment as shall be reasonably requested by any such Holder, provided any such instruments contain appropriate non-disturbance provisions recognizing Tenant’s rights and obligations hereunder and assuring Tenant’s
quiet enjoyment of the Premises as set forth in
Section 24
hereof. Tenant hereby appoints Landlord attorney-in-fact for Tenant irrevocably (such power of attorney being coupled with an interest) to execute, acknowledge and deliver any
such instrument and instruments for and in the name of Tenant and to cause any such instrument to be recorded.
]
Notwithstanding the foregoing, any such Holder may at any time subordinate its Mortgage to this Lease, without Tenant’s
consent, by notice in writing to Tenant, and thereupon this Lease shall be deemed prior to such Mortgage without regard to their respective dates of execution, delivery or recording and in that event such Holder shall have the same rights with
respect to this Lease as though this Lease had been executed prior to the execution, delivery and recording of such Mortgage and had been assigned to such Holder. The term
“Mortgage”
whenever used in this Lease shall be deemed to
include deeds of trust, security assignments and any other encumbrances, and any reference to the
“Holder”
of a Mortgage shall be deemed to include the beneficiary under a deed of trust. Landlord hereby represents that there is no
mortgagee of record as of the date hereof.
28.
Surrender.
Upon the expiration of the Term or earlier termination of Tenant’s
right of possession, Tenant shall surrender the Premises to Landlord in the same condition as received, subject to any Alterations or Installations permitted by Landlord to remain in the Premises, free, to the level required by Tenant’s
Surrender Plan (as defined herein), as reasonably approved by Landlord, of Hazardous Materials brought upon, kept, used, stored, handled, treated, generated in, or released or disposed of from, the Premises by any person other than a Landlord Party
(collectively,
“Tenant HazMat Operations”
) and released of all Hazardous Materials Clearances, broom clean, ordinary wear and tear and casualty loss and condemnation covered by
Sections 18
and
19
excepted. At least 3
months prior to the surrender of the Premises, Tenant shall deliver to Landlord a narrative description of the actions proposed (or required by any Governmental Authority) to be taken by Tenant in order to surrender the Premises (including any
Installations permitted by Landlord to remain in the Premises) at the expiration or earlier termination of the Term, free from any residual impact from the Tenant HazMat Operations and otherwise released for unrestricted use and occupancy (the
“Surrender Plan”
). Such Surrender Plan shall be accompanied by a current listing of (i) all Hazardous Materials licenses and permits held by or on behalf of any Tenant Party with respect to the Premises, and (ii) all
Hazardous Materials used, stored, handled, treated, generated, released or disposed of from the Premises, and shall be subject to the review and approval of Landlord’s environmental consultant. In connection with the review and approval of the
Surrender Plan, upon the request of Landlord, Tenant shall deliver to Landlord or its consultant such additional non-proprietary information concerning Tenant HazMat Operations as Landlord shall request. On or before such surrender, Tenant shall
deliver to Landlord evidence that the approved Surrender Plan shall have been satisfactorily completed and Landlord shall have the right to cause Landlord’s environmental consultant to inspect the Premises and perform such additional procedures
as may be deemed reasonably necessary to confirm that the Premises are, as of the effective date of such surrender or early termination of the Lease, free from any residual impact from Tenant HazMat Operations. Tenant shall reimburse Landlord, as
Additional Rent, for the actual out-of pocket expense incurred by Landlord for Landlord’s environmental consultant to review and approve the Surrender Plan and to visit the Premises and verify satisfactory completion of the same, which cost
shall not exceed $5,000. Landlord shall have the right to deliver such Surrender Plan and any report by Landlord’s environmental consultant with respect to the surrender of the Premises for a legitimate business purpose to Landlord’s
consulting engineers, attorneys, lenders, insurance provider, potential tenants of the Premises, potential purchasers of the Project and investors, in each case provided such parties agree to keep such information confidential except as required of
them by law.
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If Tenant shall fail to prepare or submit a Surrender Plan approved by Landlord, or if Tenant shall
fail to complete the approved Surrender Plan, or if such Surrender Plan, whether or not approved by Landlord, shall fail to adequately address any residual effect of Tenant HazMat Operations in, on or about the Premises, Landlord shall have the
right to take such actions as Landlord may deem reasonable or appropriate to assure that the Premises and the Project are surrendered free from any residual impact from Tenant HazMat Operations, the reasonable cost of which actions shall be
reimbursed by Tenant as Additional Rent, without regard to the limitation set forth in the first paragraph of this
Section 28
.
Tenant shall immediately return to Landlord all keys and/or access cards to parking, the Project, restrooms or all or any portion of the Premises furnished to or otherwise procured by Tenant. If any such access card or key is lost, Tenant
shall pay to Landlord, at Landlord’s election, either the cost of replacing such lost access card or key or the cost of reprogramming the access security system in which such access card was used or changing the lock or locks opened by such
lost key. Any Tenant’s Property, Alterations and property not so removed by Tenant as permitted or required herein shall be deemed abandoned and may be stored, removed, and disposed of by Landlord at Tenant’s expense, and Tenant waives all
claims against Landlord for any damages resulting from Landlord’s retention and/or disposition of such property. All obligations of Tenant hereunder not fully performed as of the termination of the Term, including the obligations of Tenant
under
Section 30
hereof, shall survive the expiration or earlier termination of the Term, including, without limitation, indemnity obligations, payment obligations with respect to Rent and obligations concerning the condition and repair
of the Premises.
29.
Waiver of Jury Trial.
TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED
HERETO.
30.
Environmental Requirements.
(a)
Prohibition/Compliance/lndemnity.
Tenant shall not cause or permit any Hazardous Materials (as hereinafter defined) to be brought upon, kept, used, stored, handled, treated, generated in or about, or
released or disposed of from, the Premises or the Project in violation of applicable Environmental Requirements (as hereinafter defined) by Tenant or any Tenant Party. If Tenant breaches the obligation stated in the preceding sentence, or if the
presence of Hazardous Materials in the Premises during the Term or any holding over results in contamination of the Premises, the Project or any adjacent property or if contamination of the Premises, the Project or any adjacent property by Hazardous
Materials brought into, kept, used, stored, handled, treated, generated in or about, or released or disposed of from, the Premises by anyone other than Landlord and Landlord’s employees, agents and contractors otherwise occurs during the Term
or any holding over, unless Tenant can establish, at Tenant’s sole cost and expense, by evidence acceptable to Landlord, in Landlord’s reasonable discretion, that any such contamination of the Premises, the Property or any adjacent
property was caused solely by a third party and not by Tenant or any Tenant Party, Tenant hereby indemnifies and shall defend and hold Landlord, its officers, directors, employees, agents and contractors harmless from any and all actions (including,
without limitation, remedial or enforcement actions of any kind, administrative or judicial proceedings, and orders or judgments arising out of or resulting therefrom), costs, claims, damages (including, without limitation, punitive damages and
damages based upon diminution in value of the Premises or the Project, or the loss of, or restriction on, use of the Premises or any portion of the Project), expenses (including, without limitation, attorneys’, consultants’ and
experts’ fees, court costs and amounts paid in settlement of any claims or actions), fines, forfeitures or other civil, administrative or criminal penalties, injunctive or other relief (whether or not based upon personal injury, property
damage, or contamination of, or adverse effects upon, the environment, water tables or natural resources), liabilities or losses (collectively,
“Environmental Claims”
) which arise during or after the Term as a result of such
contamination. This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, treatment, remedial, removal, or restoration work required by any federal,
state or local Governmental Authority because of Hazardous Materials present in the air, soil or ground water above, on, or under the Premises. Without limiting the foregoing, if the presence of
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any Hazardous Materials on either of the Buildings, the Project or any adjacent property caused or permitted by Tenant or any Tenant Party results in any
contamination of either of the Buildings, the Project or any adjacent property, Tenant shall promptly take all actions at its sole expense and in accordance with applicable Environmental Requirements as are necessary to return such Building, the
Project or any adjacent property to the condition existing prior to the time of such contamination, provided that Landlord’s approval of such action shall first be obtained, which approval shall not unreasonably be withheld so long as such
actions would not potentially have any material adverse long-term or short-term effect on the affected Building or the Project.
(b)
Business
. Landlord acknowledges that it is not the intent of this
Section 30
to prohibit Tenant from using the Premises for the Permitted Use. Tenant may operate its business according to prudent industry practices so long as the
use or presence of Hazardous Materials is strictly and properly monitored according to all then applicable Environmental Requirements. As a material inducement to Landlord to allow Tenant to use Hazardous Materials in connection with its business,
Tenant agrees to deliver to Landlord prior to the Commencement Date a list identifying each type of Hazardous Materials to be brought upon, kept, used, stored, handled, treated, generated on, or released or disposed of from, the Premises and setting
forth any and all governmental approvals or permits required in connection with the presence, use, storage, handling, treatment, generation, release or disposal of such Hazardous Materials on or from the Premises (
“Hazardous Materials
List”
). Tenant shall deliver to Landlord an updated Hazardous Materials List at least once a year and shall also deliver an updated list before any new Hazardous Material is brought onto, kept, used, stored, handled, treated, generated on,
or released or disposed of from, the Premises. Tenant shall deliver to Landlord true and correct copies of the following documents (the
“Haz Mat Documents”
) relating to the use, storage, handling, treatment, generation, release or
disposal of Hazardous Materials prior to the Commencement Date, or if unavailable at that time, concurrent with the receipt from or submission to a Governmental Authority: permits; approvals; reports and correspondence; storage and management plans,
notice of violations of any Legal Requirements; plans relating to the installation of any storage tanks to be installed in or under the Project (provided, said installation of tanks shall only be permitted after Landlord has given Tenant its written
consent to do so, which consent may be withheld in Landlord’s sole and absolute discretion, Landlord hereby being deemed to have granted such consent to Tenant for the installation of outdoor nitrogen and argon storage tanks, subject to
Landlord’s reasonable approval of plans therefor); all closure plans or any other documents required by any and all federal, state and local Governmental Authorities for any storage tanks installed in, on or under the Project for the closure of
any such tanks; and a Surrender Plan (to the extent surrender in accordance with
Section 28
cannot be accomplished in 3 months). Tenant is not required, however, to provide Landlord with any portion(s) of the Haz Mat Documents containing
information of a proprietary nature which, in and of themselves, do not contain a reference to any Hazardous Materials or hazardous activities. It is not the intent of this Section to provide Landlord with information which could be detrimental to
Tenant’s business should such information become possessed by Tenant’s competitors. Landlord agreed to keep confidential all such information delivered by Tenant under this section except to the extent required by law, and except for
disclosure for a legitimate business purpose to Landlord’s consulting engineers, attorneys, lenders and investors, in each case provided such parties agree to keep such information confidential except as required of them by law.
(c)
Tenant Representation and Warranty
. Tenant hereby represents and warrants to Landlord that (i) neither Tenant nor any of its legal
predecessors has been required by any prior landlord, lender or Governmental Authority at any time to take remedial action in connection with Hazardous Materials contaminating a property which contamination was permitted by Tenant of such
predecessor or resulted from Tenant’s or such predecessor’s action or use of the property in question, and (ii) Tenant is not subject to any enforcement order issued by any Governmental Authority in connection with the use, storage,
handling, treatment, generation, release or disposal of Hazardous Materials (including, without limitation, any order related to the failure to make a required reporting to any Governmental Authority). If Landlord determines that this representation
and warranty was not true as of the date of this lease, Landlord shall have the right to terminate this Lease in Landlord’s sole and absolute discretion.
(d)
Testing
. Landlord shall have the right, at its sole expense prior to any Default with respect to Hazardous Materials, and at Tenant’s expense after any such Default, or if any pre-Default
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testing by Landlord should result in the discovery of a Default condition hereunder, to conduct annual tests of the Premises to determine whether any
contamination of the Premises or the Project has occurred as a result of Tenant’s use. In addition, at any time, and from time to time, prior to the expiration or earlier termination of the Term, Landlord shall have the right to conduct
appropriate tests of the Premises and the Project to determine if contamination has occurred as a result of Tenant’s use of the Premises. In connection with such testing, upon the request of Landlord, Tenant shall deliver to Landlord or its
consultant such non-proprietary information concerning the use of Hazardous Materials in or about the Premises by Tenant or any Tenant Party. If contamination has occurred for which Tenant is liable under this
Section 30
, Tenant shall
pay all costs to conduct such tests. If no such contamination is found, Landlord shall pay the costs of such tests (which shall not constitute an Operating Expense). Landlord shall provide Tenant with a copy of all third party, non-confidential
reports and tests of the Premises made by or on behalf of Landlord during the Term without representation or warranty and subject to a confidentiality agreement. Tenant shall, at its sole cost and expense, promptly and satisfactorily remediate any
environmental conditions identified by such testing in accordance with all Environmental Requirements. Landlord’s receipt of or satisfaction with any environmental assessment in no way waives any rights which Landlord may have against Tenant.
(e)
Underground Tanks
. If underground or other storage tanks storing Hazardous Materials located on the Premises or the Project are
used by Tenant or are hereafter placed on the Premises or the Project by Tenant, Tenant shall install, use, monitor, operate, maintain, upgrade and manage such storage tanks, maintain appropriate records, obtain and maintain appropriate insurance,
implement reporting procedures, properly close any underground storage tanks, and take or cause to be taken all other actions necessary or required under applicable state and federal Legal Requirements, as such now exists or may hereafter be adopted
or amended in connection with the installation, use, maintenance, management, operation, upgrading and closure of such storage tanks.
(f)
Tenant’s Obligations
. Tenant’s obligations under this
Section 30
shall survive the expiration or earlier termination of the Lease. During any period of time after the expiration or earlier termination of this Lease
required by Tenant or Landlord to complete the removal from the Premises of any Hazardous Materials (including, without limitation, the release and termination of any licenses or permits restricting the use of the Premises and the completion of the
approved Surrender Plan), Tenant shall continue to pay the full Rent in accordance with this Lease for any portion of the Premises not relet by Landlord in Landlord’s sole discretion, which Rent shall be prorated daily.
(g)
Definitions
. As used herein, the term
“Environmental Requirements”
means all applicable present and future statutes,
regulations, ordinances, rules, codes, judgments, orders or other similar enactments of any Governmental Authority regulating or relating to health, safety, or environmental conditions on, under, or about the Premises or the Project, or the
environment, including without limitation, the following: the Comprehensive Environmental Response, Compensation and Liability Act; the Resource Conservation and Recovery Act; and all state and local counterparts thereto, and any regulations or
policies promulgated or issued thereunder. As used herein, the term
“Hazardous Materials”
means and includes any substance, material, waste, pollutant, or contaminant listed or defined as hazardous or toxic, or regulated by reason
of its impact or potential impact on humans, animals and/or the environment under any Environmental Requirements, asbestos and petroleum, including crude oil or any fraction thereof, natural gas liquids, liquefied natural gas, or synthetic gas
usable for fuel (or mixtures of natural gas and such synthetic gas). As defined in Environmental Requirements, Tenant is and shall be deemed to be the
“operator”
of Tenant’s
“facility”
and the
“owner”
of all Hazardous Materials brought on the Premises by Tenant or any Tenant Party, and the wastes, by-products, or residues generated, resulting, or produced therefrom.
31.
Tenant’s Remedies/Limitation of Liability
. Landlord shall not be in default hereunder unless Landlord fails to perform any of its
obligations hereunder within 30 days after written notice from Tenant specifying such failure (unless such performance will, due to the nature of the obligation, require a period of time in excess of 30 days, then after such period of time as is
reasonably necessary). Upon any default by Landlord, Tenant shall give notice by registered or certified mail to any Holder of a Mortgage covering the Premises and to any landlord of any lease of property in or on which the Premises are
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located and Tenant shall offer such Holder and/or landlord a reasonable opportunity to cure the default, including time to obtain possession of the Project
by power of sale or a judicial action if such should prove necessary to effect a cure;
provided
Landlord shall have furnished to Tenant in writing the names and addresses of all such persons who are to receive such notices. All obligations of
Landlord hereunder shall be construed as covenants, not conditions; and, except as may be otherwise expressly provided in this Lease, Tenant may not terminate this Lease for breach of Landlord’s obligations hereunder.
All obligations of Landlord under this Lease will be binding upon Landlord only with respect to the period of its ownership of the Premises and not
thereafter. The term
“Landlord”
in this Lease shall mean only the owner for the time being of the Premises. Upon the transfer by such owner of its interest in the Premises, such owner shall thereupon be released and discharged from
all obligations of Landlord thereafter accruing, but such obligations shall be binding during the Term upon each new owner for the duration of such owner’s ownership.
32.
Inspection and Access
. Landlord and its agents, representatives, and contractors may enter the Premises at any reasonable time to inspect the
Premises and to make such repairs as may be required or permitted pursuant to this Lease and for any other business purpose. Landlord and Landlord’s representatives may enter the Premises during business hours on not less than 48 hours advance
written notice (except in the case of emergencies in which case no such notice shall be required and such entry may be at any time) for the purpose of effecting any such repairs, inspecting the Premises, showing the Premises to prospective
purchasers and, during the nine (9) months of the Term, to prospective tenants or for any other business purpose. Landlord may erect a suitable sign on the Premises stating the Premises are available to let or that the Project is available for
sale. Landlord may grant easements, make public dedications, designate Common Areas and create restrictions on or about the Premises,
provided
that no such easement, dedication, designation or restriction materially, adversely affects
Tenant’s use or occupancy of the Premises for the Permitted Use. At Landlord’s request, Tenant shall execute such instruments as may be necessary for such easements, dedications or restrictions. Tenant shall at all times, except in the
case of emergencies, have the right to escort Landlord or its agents, representatives, contractors or guests while the same are in the Premises, provided such escort does not materially and adversely affect Landlord’s access rights hereunder.
33.
Security
. Tenant acknowledges and agrees that security devices and services, if any, while intended to deter crime may not in
given instances prevent theft or other criminal acts and that Landlord is not providing any security services with respect to the Premises except as the parties may agree during the Term hereof. Tenant agrees that Landlord shall not be liable to
Tenant for, and Tenant waives any claim against Landlord with respect to, any loss by theft or any other damage suffered or incurred by Tenant in connection with any unauthorized entry into the Premises or any other breach of security with respect
to the Premises. Tenant shall be solely responsible for the personal safety of Tenant’s officers, employees, agents, contractors, guests and invitees while any such person is in, on or about the Premises and/or the Project. Tenant shall at
Tenant’s cost obtain insurance coverage to the extent Tenant desires protection against such criminal acts.
34.
Force Majeure
.
Landlord shall not be held responsible for delays in the performance of its obligations hereunder when caused by strikes, lockouts, labor disputes, weather, natural disasters, inability to obtain labor or materials or reasonable substitutes
therefor, governmental restrictions, governmental regulations, governmental controls, delay in issuance of permits, enemy or hostile governmental action, civil commotion, fire or other casualty, and other causes beyond the reasonable control of
Landlord (
“Force Majeure”
).
35.
Brokers, Entire Agreement, Amendment
. Landlord and Tenant each represents and
warrants that it has not dealt with any broker, agent or other person (collectively,
“Broker”
) in connection with this transaction and that no Broker brought about this transaction other than Insignia ESG and Spaulding &
Slye Colliers. Landlord and Tenant each hereby agree to indemnify and hold the other harmless from and against any claims by any Broker, other than the broker, if any named in this
Section 35
, claiming a commission or other form of
compensation by virtue of having dealt with Tenant or Landlord, as applicable, with regard to this leasing transaction.
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36.
Limitation on Landlord’s Liability
. NOTWITHSTANDING ANYTHING SET FORTH HEREIN OR IN
ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT TO THE CONTRARY: (A) LANDLORD SHALL NOT BE LIABLE TO TENANT OR ANY OTHER PERSON FOR (AND TENANT AND EACH SUCH OTHER PERSON ASSUME ALL RISK OF) LOSS, DAMAGE OR INJURY, WHETHER ACTUAL OR
CONSEQUENTIAL TO: TENANT’S PERSONAL PROPERTY OF EVERY KIND AND DESCRIPTION, INCLUDING, WITHOUT LIMITATION TRADE FIXTURES, EQUIPMENT, INVENTORY, SCIENTIFIC RESEARCH, SCIENTIFIC EXPERIMENTS, LABORATORY ANIMALS, PRODUCT, SPECIMENS, SAMPLES, AND/OR
SCIENTIFIC, BUSINESS, ACCOUNTING AND OTHER RECORDS OF EVERY KIND AND DESCRIPTION KEPT AT THE PREMISES AND ANY AND ALL INCOME DERIVED OR DERIVABLE THEREFROM; (B) THERE SHALL BE NO PERSONAL RECOURSE TO LANDLORD FOR ANY ACT OR OCCURRENCE IN, ON OR
ABOUT THE PREMISES OR ARISING IN ANY WAY UNDER THIS LEASE OR ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT WITH RESPECT TO THE SUBJECT MATTER HEREOF AND ANY LIABILITY OF LANDLORD HEREUNDER SHALL BE STRICTLY LIMITED SOLELY TO LANDLORD’S
INTEREST IN THE PROJECT OR ANY PROCEEDS FROM SALE OR CONDEMNATION THEREOF AND ANY INSURANCE PROCEEDS PAYABLE IN RESPECT OF LANDLORD’S INTEREST IN THE PROJECT OR IN CONNECTION WITH ANY SUCH LOSS; AND (C) IN NO EVENT SHALL ANY PERSONAL
LIABILITY BE ASSERTED AGAINST ANY OF LANDLORD’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS. UNDER NO CIRCUMSTANCES SHALL LANDLORD OR ANY OF LANDLORD’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS BE LIABLE FOR INJURY TO
TENANT’S BUSINESS OR FOR ANY LOSS OF INCOME OR PROFIT THEREFROM.
37.
Severability
. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby. It is also the intention of the parties to this Lease
that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or provision as similar in effect to such illegal, invalid or unenforceable clause or provision as
shall be legal, valid and enforceable.
38.
Signs; Exterior Appearance
. Tenant shall not, without the prior written consent of
Landlord, which may be granted or withheld in Landlord’s sole discretion: (i) attach any awnings, exterior lights, decorations, balloons, flags, pennants, banners, painting or other projection to any outside wall of the Project,
(ii) use any curtains, blinds, shades or screens other than Landlord’s standard window coverings, (iii) coat or otherwise sunscreen the interior or exterior of any windows, (iv) place any bottles, parcels, or other articles on
the window sills, (v) place any equipment, furniture or other items of personal property on any exterior balcony, or (vi) paint, affix or exhibit on any part of the Premises or the Project any signs, notices, window or door lettering,
placards, decorations, or advertising media of any type which can be viewed from the exterior of the Premises. Landlord shall provide one exterior tenant identification sign and directory signage in the entry lobbies of the Buildings. Such signs
shall be inscribed, painted or affixed for Tenant by Landlord, shall comply with all local regulations and shall be of a size, color and type acceptable to Landlord. Nothing may be placed on the exterior of corridor walls or corridor doors other
than Landlord’s standard lettering. The directory tablet shall be provided exclusively for the display of the name and location of tenants. Tenant shall have the right to work with the City of Cambridge to maximize the size and number of
potential exterior building signs.
39.
Communications Equipment
. Tenant, at no additional cost, shall have the right to use up to
500 square feet on the roof of each of the 770 Building and the 790 Building for the installation of Tenant’s communications equipment (“Tenant’s Equipment”). Landlord reserves the right, for itself and other tenants of the
Project, to install communications and other equipment (collectively, “Landlord’s Equipment”) on the roofs of the Buildings. Landlord shall cause any such Landlord’s Equipment not to interfere with the operations of Tenant’s
Equipment, and any lease, license or other agreement which Landlord enters into with a third party for the installation of Landlord’s Equipment on the Buildings shall specifically prohibit interference with Tenant’s Equipment, provided
that Tenant agrees to cooperate reasonably with Landlord and any tenant or licensee installing Landlord’s Equipment on the Buildings so as to resolve any issues regarding interference, whether such interference is caused by Tenant’s
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Equipment or Landlord’s Equipment. Tenant shall, at Tenant’s sole cost and expense, obtain all necessary permits and approvals from all federal,
state and local Governmental Agencies regarding the installation, maintenance and operation of Tenant’s Equipment at the Buildings. Tenant’s inability to obtain, or any delay in obtaining, any such permit or approval shall not affect
Tenant’s obligations under this Lease, including, without limitation, Tenant’s obligation to take possession and commence payment of Rent as set forth herein. Tenant’s Equipment, and the installation, operation, replacement and
removal thereof, shall be performed in accordance with all applicable laws, rules and regulations, shall not penetrate the roof membrane, or, if so, all such work shall be performed by Tenant’s roofing contractor so as not to otherwise
compromise Landlord’s roof warranty, and shall be subject to such reasonable rules and regulations as Landlord shall from time to time impose.
40.
Right to Expand.
(a)
Expansion in the 790 Building
. Tenant acknowledges that Landlord intends to lease and
operate the first and second floors of the 790 Building as a “Science Hotel (sm)” beginning in May 2002. Tenant at any time during the first five years of the Term of this Lease shall have the right (the “Expansion Right”) to
notify Landlord in writing (the “Expansion Notice”) of its desire to expand into the 2nd floor of the 790 Building (the “790 2nd Floor Premises”) and/or the 1st floor of the 790 Building (the “790 1st Floor Premises”),
each containing approximately 16,100 rentable square feet. The 790 2nd Floor Premises and the 790 1st Floor Premises are sometimes referred to herein as an “Expansion Space”. Each such Tenant’s Expansion Notice shall specify a date
(the “Start Date”) on which Tenant shall take possession of such floor and begin paying Base Rent at the then current amount per rentable square foot, plus applicable Operating Costs and Parking Rent and Fees, provided, however, that the
Start Date for each floor shall be not less than 12 months after the date of Tenant’s Expansion Notice. Tenant shall be entitled to sixteen (16) additional reserved parking spaces in the parking garage upon taking possession of the 790
2
nd
Floor Premises, and an additional sixteen (16) reserved parking spaces in the parking garage upon taking
possession of the 790 1
st
Floor Premises, at the same rates and under the same terms and conditions as its then
existing parking spaces. Tenant shall not have the right to exercise its Expansion Right with regard to the 790 1st Floor Premises unless Tenant has previously exercised its Expansion Right with regard to the 790 2nd Floor Premises as provided
herein (unless Landlord has previously elected not to make such space available to Tenant after Tenant’s delivery of an Expansion Notice for the 790 2
nd
Floor Space as set forth herein). Upon receipt of Tenant’s Expansion Notice, Landlord shall endeavor to procure space suitable, in Landlord’s sole discretion, for the relocation of
Landlord’s “Science Hotel (sm)” operation from the applicable Expansion Space. Tenant acknowledges that the “Science Hotel (sm)” is a specialized use and that, although Landlord shall use reasonable efforts to procure
replacement space, the final determination as to the suitability of any replacement space for Landlord’s “Science Hotel (sm)” operation shall be made by Landlord, in Landlord’s sole discretion, and Landlord is under no obligation
to deliver the Expansion Space to Tenant if Landlord is unable to procure such replacement space which is acceptable to Landlord, in Landlord’s sole discretion. If Landlord notifies Tenant, with respect to any exercise by Tenant of its
Expansion Right with a Start Date on or after November 1, 2004, with respect to the 790 2nd Floor Premises, or November 1, 2005, with respect to the 790 1st Floor Premises, that Landlord has elected not to relocate its existing
“Science Hotel (sm)” operation from the Expansion Space in question, Tenant shall have the right to terminate this Lease upon thirty (30) days prior written notice to Landlord. If Tenant does not elect to terminate this Lease as
aforesaid, then if either Expansion Space thereafter become available due to Landlord’s decision to terminate its “Science Hotel (sm)” operation within such premises (and not simply due to a current vacancy of such premises), Tenant
shall have a right of first offer for such space on the same terms as if such space had been timely delivered to Tenant. Upon the Start Date of the 790 2nd Floor Premises or the 790 1st Floor Premises, the Lease shall be amended to include the
specified Premises, and Rentable Area of the Premises, Base Rent, Tenant’s Share of Operating Expenses, and Parking Rent and Fees shall be adjusted to reflect the additional rentable area. Tenant shall take possession of the Expansion Space on
the date specified in Tenant’s notice, in “as is”, “where is” condition and without any representations by Landlord as to the suitability of such premises for Tenant’s purposes. Any alterations to the Expansion Space
shall be at Tenant’s sole cost.
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(b)
Amended Lease
. If: (i) Tenant fails to timely deliver either Expansion Notice, or
(ii) after the expiration of a period of 30 days from the date Tenant gives either Expansion Notice, no lease amendment or lease agreement for the applicable Expansion Space has been executed, and Landlord tenders to Tenant an amendment to this
Lease setting forth the terms for the rental of the Expansion Space consistent with those set forth in the Expansion Notice and otherwise consistent with the terms of this Lease and Tenant fails to execute such Lease amendment within 10 business
days following such tender, Tenant shall be deemed to have waived its right to lease such Expansion Space.
(c)
Exceptions
.
Notwithstanding the above, the Expansion Right shall not be in effect and may not be exercised by Tenant:
(i) during any
period of time that Tenant is in Default under any provision of the Lease; or
(ii) if Tenant has been in Default under any
provision of the Lease 3 or more times, whether or not the Defaults are cured, during the 12 month period prior to the date on which Tenant seeks to exercise the Expansion Right.
(d)
Termination
. The Expansion Right shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of the
Expansion Right, if, after such exercise, but prior to the commencement date of the lease of such Available Space, (i) Tenant fails to timely cure any Default by Tenant then existing under the Lease; or (ii) Tenant has Defaulted 3 or more
times during the period from the date of the exercise of the Expansion Right to the date of the commencement of the lease of the Available Space, whether or not such Defaults are cured.
(e)
Rights Personal
. Expansion Rights are personal to Tenant and are only assignable by Tenant pursuant to a Permitted Assignment. All other
assignments of the Expansion Rights shall be subject to Landlord’s prior written consent, which may be granted or withheld in Landlord’s sole discretion separate and apart from any consent by Landlord to an assignment of Tenant’s
interest in the Lease. In addition to the foregoing, Tenant shall not have the right to exercise the Expansion Rights unless Tenant is occupying the entire 790 Premises (including the 790 2
nd
Floor Premises, in the case of Tenant’s exercise of its Expansion Right with regard to the 790 1
st
Floor Premises) and at least 50% of the 770 Premises at the time of such exercise and at the applicable Start Date.
(f)
No Extensions
. The period of time within which any Expansion Rights may be exercised shall not be extended or enlarged by reason of
Tenant’s inability to exercise the Expansion Rights.
41.
Right to Extend Term.
Tenant shall have the right to extend the Term
of the Lease upon the following terms and conditions:
(a)
Extension Rights
. Tenant shall have two (2) consecutive rights
(each, an
“Extension Right”
) to extend the term of this Lease for five (5) years each (each, an
“Extension Term”
) on the same terms and conditions as this Lease (other than Base Rent) by giving Landlord written
notice of its election to exercise each Extension Right at least nine (9) months prior to the expiration of the Base Term of the Lease or the expiration of any prior Extension Term.
Upon the commencement of any Extension Term, Base Rent shall be payable at the greater of (i) the then fair market rent for the Premises calculated
at the Market Rate (as defined below), or (ii) the Base Rent payable during the last year of the Base Term, in the case of the first Extension Term, or the first Extension Term, in the case of the second Extension Term. Base Rent shall
thereafter be adjusted on each annual anniversary of the commencement of such Extension Term by a percentage as determined by Landlord and agreed to by Tenant at the time the Market Rate is determined. As used herein, “Market Rate” shall
mean the then market rental rate as determined pursuant to this Section 41(a), which shall in no event be less than the Base Rent payable as of the date immediately preceding the commencement of such Extension Term increased by the Rent
Adjustment Percentage multiplied by
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such Base Rent. In addition, Landlord may impose a reasonably determined market rent for the parking rights provided hereunder.
On or before the date which is 150 days prior to the expiration of the Base Term of this Lease, or the expiration of any prior Extension Term, Landlord
shall notify Tenant, in writing, of Landlord’s determination of Market Rent and the rent escalations during such subsequent Extension Term. If, within thirty (30) days after receipt of such notice from Landlord, Tenant has not agreed with
Landlord’s determination of the Market Rate and the rent escalations during such subsequent Extension Term after negotiating in good faith, Tenant may by written notice to Landlord not later than 120 days prior to the expiration of the Base
Term of this Lease, or the expiration of any then effective Extension Term, elect arbitration as described in Section (b) below. If Tenant does not elect such arbitration, Tenant shall be deemed to have waived any right to extend, or further
extend, the Term of the Lease and all of the remaining Extension Rights shall terminate.
(b) (i) Within 10 days of Tenant’s
notice to Landlord of its election to arbitrate Market Rate and escalations, each party shall deliver to the other a proposal containing the Market Rate and escalations that the submitting party believes to be correct (“Extension
Proposal”). If either party fails to timely submit an Extension Proposal, the other party’s submitted proposal shall determine the Base Rent and escalations for the Extension Term. If both parties submit Extension Proposals, then Landlord
and Tenant shall meet within 7 days after delivery of the last Extension Proposal and make a good faith attempt to mutually appoint a single Arbitrator (as defined below) to determine the Market Rate and escalations. If Landlord and Tenant are
unable to agree upon a single Arbitrator, then each shall, by written notice delivered to the other within 10 days after the meeting, select an Arbitrator. If either party fails to timely give notice of its selection for an Arbitrator, the other
party’s submitted proposal shall determine the Base Rent for the Extension Term. The 2 Arbitrators so appointed shall, within 5 business days after their appointment, appoint a third Arbitrator. If the 2 Arbitrators so selected cannot agree on
the selection of the third Arbitrator within the time above specified, then either party, on behalf of both parties, may request such appointment of such third Arbitrator by application to any state court of general jurisdiction in the jurisdiction
in which the Premises are located, upon 10 days prior written notice to the other party of such intent.
(ii) The Arbitrators shall be
instructed to take into account the annual percentage increases in Base Rent during such subsequent Extension Term in determining a proper Market Rent. The decision of the Arbitrator(s) shall be made within 30 days after the appointment of a single
Arbitrator or the third Arbitrator, as applicable. The decision of the single Arbitrator shall be final and binding upon the parties. The average of the two closest Arbitrators in a three Arbitrator panel shall be final and binding upon the parties.
Each party shall pay the fees and expenses of the Arbitrator appointed by or on behalf of such party and the fees and expenses of the third Arbitrator shall be borne equally by both parties. If the Market Rate and escalations are not determined by
the first day of the Extension Term, then Tenant shall pay Landlord Base Rent in an amount equal to the Base Rent in effect immediately prior to the Extension Term and increased by the Rent Adjustment Percentage until such determination is made.
After the determination of the Market Rate and escalations, the parties shall make any necessary adjustments to such payments made by Tenant. Landlord and Tenant shall then execute an amendment recognizing the Market Rate and escalations for the
Extension Term.
(iii) An “Arbitrator” shall be any person appointed by or on behalf of either party or appointed pursuant to the
provisions hereof and: (i) shall be (A) a member of the American Institute of Real Estate Appraisers with not less than 10 years of experience in the appraisal of improved office and high tech industrial real estate in the greater Boston
metropolitan area, or (B) a licensed commercial real estate broker with not less than 15 years experience representing landlords and/or tenants in the leasing of high tech or life sciences space in the greater Boston metropolitan area,
(ii) devoting substantially all of their time to professional appraisal or brokerage work, as applicable, at the time of appointment and (iii) be in all respects impartial and disinterested.
(c) Base Rent shall be adjusted on the commencement date of such Extension Term and on each annual anniversary of the commencement of such Extension Term
by multiplying the Base Rent payable immediately before such adjustment by the Rent Adjustment Percentage and adding the
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resulting amount to the Base Rent payable immediately before such adjustment. In addition, Landlord may impose a market rent for the parking rights provided
hereunder.
(d)
Rights Personal.
Extension Rights are personal to Tenant and are only assignable by Tenant pursuant to a Permitted
Assignment. All other assignments of the Extension Rights shall be subject to Landlord’s prior written consent, which may be granted or withheld in Landlord’s sole discretion separate and apart from any consent by Landlord to an assignment
of Tenant’s interest in the Lease. In addition to the foregoing, Tenant shall not have the right to exercise the Extension Rights unless Tenant is occupying the entire 790 Premises (including any Expansion Space, in the case of Tenant’s
exercise of its Expansion Rights as provided in Section 39 hereof) and at least 50% of the 770 Premises at the time of such exercise and at the commencement of the applicable Extension Term.
(e)
Exceptions.
Notwithstanding anything set forth above to the contrary, Extension Rights shall not be in effect and Tenant may not exercise any
of the Extension Rights:
(i) during any period of time that Tenant is in Default under any provision of this Lease; or
(ii) if Tenant has been in Default under any provision of this Lease 3 or more times, whether or not the Defaults are
cured, during the 12 month period immediately prior to the date that Tenant intends to exercise an Extension Right, whether or not the Defaults are cured.
(f)
No Extensions.
The period of time within which any Extension Rights may be exercised shall not be extended or enlarged by reason of Tenant’s inability to exercise the Extension Rights.
(g)
Termination.
The Extension Rights shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of an
Extension Right, if, after such exercise, but prior to the commencement date of an Extension Term, (i) Tenant fails to timely cure any Default by Tenant then existing under this Lease; or (ii) Tenant has Defaulted 3 or more times during
the period from the date of the exercise of an Extension Right to the date of the commencement of the applicable Extension Term, whether or not such Defaults are cured.
42.
Miscellaneous.
(a)
Notices.
All notices or other communications between the parties
shall be in writing and shall be deemed duly given upon delivery or refusal to accept delivery by the addressee thereof if delivered in person, or upon actual receipt if delivered by reputable overnight guaranty courier, addressed and sent to the
parties at their addresses set forth above, and in the case of any notice to Landlord, with a copy of such notice to Palmer & Dodge LLP, 111 Huntington Avenue, Boston, MA 02110, Attention: Kathryn C. Murphy, Esquire, and in the case of any
notice to Tenant, with a copy of such notice to Hale and Dorr LLP, 60 State Street, Boston, MA 02109, Attention: Stephen M. Edwards, Esquire. Landlord and Tenant may from time to time by written notice to the other designate another address for
receipt of future notices.
(b)
Joint and Several Liability.
If and when included within the term
“Tenant,”
as used
in this instrument, there is more than one person or entity, each shall be jointly and severally liable for the obligations of Tenant.
(c)
Tenant’s Financial Statements.
Tenant shall furnish Landlord with true and complete copies of (i) Tenant’s most recent audited annual financial statements within 90 days of the end of each of Tenant’s fiscal years during
the Term, (ii) Tenant’s most recent unaudited quarterly financial statements within 45 days of the end of each of Tenant’s first three fiscal quarters of each of Tenant’s fiscal years during the Term, (iii) at
Landlord’s request from time to time, but not more than once in any twelve (12) month period, updated business plans, including cash flow projections and/or pro forma balance sheets and income statements, all of which shall be treated by
Landlord as confidential information belonging to
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Tenant, (iv) not more than once in any twelve (12) month period, corporate brochures and/or profiles prepared by Tenant for prospective investors,
and (v) any other financial information or summaries that Tenant typically provides to its lenders or shareholders. Notwithstanding the foregoing, following the occurrence of a Default by Tenant hereunder, Landlord shall have the right to
require Tenant to provide the information described in subsections (iii) and (iv) of this Section 42(c) at any time, and not only at 12-month intervals. Landlord agrees that, so long as Tenant is providing such statements and other
information described in this Section 42(c) to an affiliate of Landlord pursuant to other agreements with Tenant, Tenant shall not be required to provide such statements and other information to Landlord, as well.
(d)
Confidentiality.
Landlord and Tenant agree that this Lease and all negotiations and related documentation will remain confidential and that no
press or other publicity release or communication to the general public concerning the proposed transaction contemplated herein will be issued without the other party’s prior written approval, unless applicable law requires such disclosure.
(e)
Recordation.
This Lease shall not be filed in any public record. Either party, at the request of the other, shall execute, a
notice of lease, which the requesting party shall have the right to record with the Middlesex South Registry District of the Land Court at its own expense. If so recorded, the recording party shall furnish recording information to the other party.
Notwithstanding the foregoing, Tenant may include a copy of this Lease in any filings with the Securities Exchange Commission, provided that Landlord shall have the right to excise any confidential business information from the Lease prior to such
filing.
(f)
Interpretation.
The normal rule of construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Lease or any exhibits or amendments hereto. Words of any gender used in this Lease shall be held and construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires. The captions inserted in this Lease are for convenience only and in no way define, limit or otherwise describe the scope or intent of this Lease, or any provision hereof, or in any
way affect the interpretation of this Lease.
(g)
Not Binding Until Executed.
The submission by Landlord to Tenant of this Lease
shall have no binding force or effect, shall not constitute an option for the leasing of the Premises, nor confer any right or impose any obligations upon either party until execution of this Lease by both parties.
(h)
Limitations on Interest.
It is expressly the intent of Landlord and Tenant at all times to comply with applicable law governing the maximum
rate or amount of any interest payable on or in connection with this Lease. If applicable law is ever judicially interpreted so as to render usurious any interest called for under this Lease, or contracted for, charged, taken, reserved, or received
with respect to this Lease, then it is Landlord’s and Tenant’s express intent that all excess amounts theretofore collected by Landlord be credited on the applicable obligation (or, if the obligation has been or would thereby be paid in
full, refunded to Tenant), and the provisions of this Lease immediately shall be deemed reformed and the amounts thereafter collectible hereunder reduced, without the necessity of the execution of any new document, so as to comply with the
applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder.
(i)
Choice of Law.
Construction and interpretation of this Lease shall be governed by the internal laws of the state in which the Premises are located, excluding any principles of conflicts of laws.
(j)
Time.
Time is of the essence as to the performance of Tenant’s obligations under this Lease.
(k)
Incorporation by Reference.
All exhibits and addenda attached hereto are hereby incorporated into this Lease and made a part hereof. If there
is any conflict between such exhibits or addenda and the terms of this Lease, such exhibits or addenda shall control.
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(l)
Hazardous Activities.
Notwithstanding any other provision of this Lease, Landlord, for
itself and its employees, agents and contractors, reserves the right to refuse to perform any repairs or services in any portion of the Premises which, pursuant to Tenant’s routine safety guidelines, practices or custom or prudent industry
practices, require any form of protective clothing or equipment other than safety glasses. In any such case, Tenant shall contract with parties who are acceptable to Landlord, in Landlord’s reasonable discretion, for all such repairs and
services, and Landlord shall, to the extent required, equitably adjust Tenant’s Share of Operating Expenses in respect of such repairs or services to reflect that Landlord is not providing such repairs or services to Tenant.
(m)
Post-Occupancy Payment.
Within thirty (30) days after Tenant takes possession of the 770 Premises, Landlord shall make a one-time payment
to Tenant in the amount of $5,000.00.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year first above
written.
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TENANT:
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INFINITY PHARMACEUTICALS, INC. a Delaware corporation
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By:
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/s/ David Neafus
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Its:
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VP Finance and Administration
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LANDLORD:
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ARE-770/784/790 MEMORIAL DRIVE, LLC,
a Delaware limited liability company
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By:
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ALEXANDRIA REAL ESTATE EQUITIES,
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L.P.,
managing me
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By:
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ARE-QRS CORP
., general partner
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By:
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/s/ Joel S. Marcus
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Its:
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CEO
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EXHIBIT A TO LEASE
DESCRIPTION OF PREMISES
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770 Memorial Drive -
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Office Level 1
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Office Level 2
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Office Level 3
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Parking Level 2 (cross-hatched areas only)
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Parking Level 1 (Subject to rights of others to access and use parking spaces on this Level) (cross-hatched areas only)
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790 Memorial Drive -
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EXHIBIT B TO LEASE
DESCRIPTION OF PROJECT
Legal Description of Parcels attached
EXHIBIT C TO LEASE
WORK LETTER
THIS WORK LETTER dated July 2, 2002(this “Work Letter”) is made
and entered into by and between ARE-770/784/790 Memorial Drive, LLC, a Delaware limited liability company (“Landlord”), and Infinity Pharmaceuticals, Inc., a Delaware corporation (“Tenant”), and is attached to and made a part of
the Lease dated July 2, 2002 (the “Lease”), by and between Landlord and Tenant. Any initially capitalized terms used but not defined herein shall have the meanings given them in the Lease.
1.
General Requirements.
(a)
Tenant’s Authorized Representative.
Tenant designates Joe McPherson (“
Tenant’s Representative
”) as the only person authorized to act for Tenant pursuant to this Work Letter. Landlord shall not be obligated to
respond to or act upon any request, approval, inquiry or other communication (“Communication”) from or on behalf of Tenant in connection with this Work Letter unless such Communication is in writing from Tenant’s Representative.
Tenant may change either Tenant’s Representative at any time upon not less than 5 business days advance written notice to Landlord. No period set forth herein for any approval of any matter by Tenant’s Representative shall be extended by
reason of any change in Tenant’s Representative. Neither Tenant nor Tenant’s Representative shall be authorized to direct Landlord’s contractors in the performance of Landlord’s Work (as hereinafter defined).
(b)
Landlord’s Authorized Representative.
Landlord designates Thomas Andrews and Stuart Berry (either such individual acting alone,
“Landlord’s Representative”)
as the only persons authorized to act for Landlord pursuant to this Work Letter. Tenant shall not be obligated to respond to or act upon any request, approval, inquiry or other Communication from or
on behalf of Landlord in connection with this Work Letter unless such Communication is in writing from Landlord’s Representative. Landlord may change either Landlord’s Representative at any time upon not less than 5 business days advance
written notice to Tenant. No period set forth herein for any approval of any matter by Landlord’s Representative shall be extended by reason of any change in Landlord’s Representative. Landlord’s Representative shall be the sole
persons authorized to direct Landlord’s contractors in the performance of Landlord’s Work.
(c)
Development Schedule.
The
schedule for design and development of Landlord’s Improvements (as defined below) and the Tenant Improvements (as defined below), including without limitation, the time periods for delivery of construction documents and performance, shall be as
provided in this Work Letter, subject to adjustment as mutually agreed upon by the parties.
(d)
Architect, Contractor, and Consultants.
Landlord and Tenant hereby acknowledge and agree that: (i) Olson Lewis & Dioli Architects, Inc. shall be the architect (the
“Architect”)
for the Tenant Improvements; (ii) Linbeck Kennedy & Rossi, Inc.
shall be the construction management contractor (the
“Contractor”)
for the Tenant Improvements; and (iii) any subcontractors and/or consultants for the Tenant Improvements shall be selected by Landlord, subject to Tenant’s
approval, which approval shall not be unreasonably withheld, conditioned, or delayed
2.
Tenant Improvements.
(a)
Tenant Improvements Defined.
As used herein,
“Tenant Improvements”
shall mean all improvements to the 770 Building and the
790 Building desired by Tenant of a fixed and permanent nature, exclusive of the improvements indicated as
“Landlord’s Improvements”
on
Schedule A
attached hereto. Other than the Tenant Improvements and Landlord’s Improvements, Landlord shall not have any obligation whatsoever
with respect to the finishing of the Premises for Tenant’s use and occupancy.
(b)
Tenant’s Program.
Tenant has delivered
to Landlord, the Architect, and the Contractor program information describing Tenant’s requirements for the Tenant Improvements.
(c)
Schematic Floor Plan.
Landlord has caused the Architect to prepare and submit for Tenant’s review and approval preliminary floor plans and specifications for the Tenant Improvements (the
“Schematic Floor Plan”
) Tenant
has approved the Schematic Floor Plan.
(d)
Permit Drawings.
Landlord and Tenant shall cause the Architect to prepare preliminary
design drawings, outline specifications, and other documents sufficient in detail to allow for the filing of a building permit application for the construction of the Tenant Improvements (the
“Permit Drawings”
). Not later than 5
business days following Tenant’s receipt of the Permit Drawings, Tenant shall deliver its written comments to the Permit Drawings to Landlord. Landlord shall cause Architect to promptly revise the Permit Drawings to reflect Tenant’s
comments pertinent to permit issuance. Upon Tenant’s approval of the Permit Drawings and Architect’s revision of same reflecting Tenant’s comments, Landlord shall cause the Contractor to file a complete building permit application
with the City of Cambridge for the construction of the Tenant Improvements. Landlord and Tenant hereby acknowledge that the revised Permit Drawings must be completed and the building permit application filed by July 3, 2002 in order for
Landlord Work (as defined below) to be Substantially Complete on or before the Target Commencement Date, and Landlord and Tenant each agree to use diligent efforts to achieve completion of the Permit Drawings within such time.
(e)
Construction Drawings.
Tenant shall be solely responsible for ensuring that the Permit Drawings reflect Tenant’s requirements for the
Tenant Improvements. Not later than 15 business days following Landlord’s receipt of Tenant’s comments to the Permit Drawings, Landlord and Tenant shall cause the Architect and Contractor to prepare and deliver to Tenant for review and
comment construction plans, specifications and drawings for the Tenant Improvements (
“Construction Drawings”
), which Construction Drawings shall be prepared substantially in accordance with the Permit Drawings, as modified by
Tenant’s written comments. Not later than 5 business days following Tenant’s receipt of the Construction Drawings, Tenant shall deliver its written comments to the Construction Drawings to Landlord; provided, however, that Tenant may not
disapprove any matter that is consistent with the Permit Drawings, as modified by Tenant’s written comments, without submitting a Change Request. Tenant shall be solely responsible for ensuring that the Construction Drawings reflect
Tenant’s requirements for the Tenant Improvements. Any disputes in connection with Tenant’s comments set forth in this
Section 2(e)
shall be resolved in accordance with
Section 2(g)
hereof. Once approved by Tenant,
subject to the provisions of
Section 2(g)
below, Landlord shall not materially modify the Construction Drawings except as may be reasonably required in connection with the issuance of the TI Permit (as defined in
Section 3(b)
below) pursuant to
Section 3(b)
below.
(f)
Budget.
Not later than 15 business days following Tenant’s approval of
the Construction Drawings, Landlord shall obtain and deliver to Tenant a budget in accordance with
Section 5(a)
hereof.
(g)
Approval and Completion.
Landlord and Tenant hereby acknowledge that the Permit Drawings must be completed and approved, and a complete building permit application filed, not later than 101 business days before the Target Commencement Date in
order for Landlord’s Work to be Substantially Complete by the Target Commencement Date. Upon any dispute regarding the design of Landlord’s Improvements or the Tenant Improvements, which is not settled within 5 business days after notice
of such dispute is delivered by one party to the other, Landlord shall make the final decision regarding the design of Landlord’s Improvements, provided Landlord acts reasonably and such final decision is either consistent with or a
compromise between Landlord’s and Tenant’s positions with respect to such dispute, and Tenant shall make the final decision regarding the design of
the Tenant Improvements, provided Tenant acts reasonably and such final decision is either consistent with or a compromise between Landlord’s and Tenant’s positions with respect to such dispute, provided further that all costs and expenses
resulting from any such decision by Tenant, or resulting from a decision by Landlord in response to a request by Tenant shall be payable out of the TI Fund (as defined in
Section 5(d)
below). Any costs resulting from a decision by
Landlord with respect to changes to Landlord’s Improvements, which decision is made solely by Landlord, shall be paid by Landlord. Any changes to the Construction Drawings following Landlord’s and Tenant’s approval of same requested
by Tenant shall be processed as provided in
Section 4
hereof.
3.
Performance of Landlord’s Work.
(a)
Definition of Landlord’s Work.
As used herein,
“Landlord’s Work”
shall mean the work of
constructing Landlord’s Improvements and the Tenant Improvements.
(b)
Commencement and Permitting of Landlord’s Work.
Landlord at its expense has obtained a building permit authorizing the construction of Landlord’s Improvements (the
“Building Permit”
). Landlord shall commence construction of the Tenant Improvements up on obtaining a building
permit (the
“TI Permit”
) authorizing the construction of the Tenant Improvements consistent with the Permit Drawings approved by the City of Cambridge, as such TI Permit may be amended to be consistent with the Construction Drawings
as required by the City of Cambridge. The cost of obtaining the TI Permit shall be payable from the TI Fund. Tenant shall assist Landlord as necessary in obtaining the TI Permit. If any Governmental Authority having jurisdiction over the
construction of Landlord’s Work or any portion thereof shall impose terms or conditions upon the construction thereof which: (i) are inconsistent with Landlord’s obligations hereunder, (ii) increase the cost of constructing
Landlord’s Work, or (iii) will materially delay the construction of Landlord’s Work, Landlord and Tenant shall reasonably and in good faith seek means by which to mitigate or eliminate any such adverse terms and conditions.
(c)
Completion of Landlord’s Work.
On or before the Target Commencement Date (subject to Tenant Delays and Force-Majeure
Delays), Landlord shall Substantially Complete or cause to be Substantially Completed Landlord’s Work in a good and workmanlike manner, in compliance with all Legal Requirements, and in accordance with the Building Permit and the TI Permit
subject, in each case, to Minor Variations and normal “punch list” items of a non-material nature which do not interfere with the use of the Premises (
“Substantial Completion”
). Upon the Substantial Completion of
Landlord’s Work, Landlord shall require the Architect and Contractor to execute and deliver, for the benefit of Tenant and Landlord, a Certificate of Substantial Completion in the form of the American Institute of Architects document G704. For
purposes of this Work Letter,
“Minor Variations”
shall mean any modifications reasonably required: (i) to comply with all applicable Legal Requirements and/or to obtain or to comply with any required permit (including the
Building Permit and the TI Permit); (ii) to comply with any request by Tenant for modifications to Landlord’s Work; (iii) to comport with good design, engineering, and construction practices which are not material; or (iv) to
make reasonable adjustments for field deviations or conditions encountered during the construction of Landlord’s Work.
(d)
Selection of Materials, Etc.
Where more than one type of material or structure is indicated on the Construction Drawings approved by Landlord and Tenant, the option will be within Landlord’s sole discretion. As to all building materials
and equipment which Landlord is obligated to supply under this Work Letter, Landlord shall select the manufacturer thereof in its sole discretion.
(e)
Delivery of the Premises.
When Landlord’s Work is Substantially Complete, subject to the remaining terms and provisions of this
Section 3(e)
, Tenant shall accept the Premises. Tenant’s taking possession and
acceptance of the Premises shall not constitute a
waiver of: (i) any warranty with respect to workmanship (including installation of equipment) or material (exclusive of equipment provided directly by
manufacturers), (ii) any non-compliance of Landlord’s Work with Legal Requirements, or (iii) any claim that Landlord’s Work was not completed substantially in accordance with the Construction Drawings (subject to Minor Variations
and such other changes as are permitted hereunder) (collectively, a
“Construction Defect”
). Tenant shall have 1 year after Substantial Completion (or, with respect to any latent Construction Defect, thirty (30) days after
Tenant discovers or reasonably should have discovered such latent Construction Defect, if Landlord receives a similar extended warranty regarding latent defects from the Contractor) within which to notify Landlord of any such Construction Defect
discovered by Tenant, and Landlord shall use reasonable efforts to remedy or cause the responsible contractor to remedy any such Construction Defect within 30 days thereafter. Notwithstanding the foregoing, Landlord shall not be in default under the
Lease if:
with respect to the Tenant Improvements, the applicable contractor, despite Landlord’s reasonable efforts,
fails to remedy such Construction Defect within such 30-day period, in which case Landlord shall have no further obligation with respect to such Construction Defect other than to cooperate, at no cost to Landlord, with Tenant should Tenant elect to
pursue a claim against such contractor or the Architect, provided that Tenant indemnifies and holds Landlord harmless from and against any liability, loss, cost damage or expense in connection with any such claim, or
with respect to Landlord’s Improvements, the applicable contractor, despite Landlord’s reasonable efforts, fails to remedy such
Construction Defect within such 30-day period, but Landlord, within 30 days thereafter, commences and diligently and continuously prosecutes such remedial action to completion.
Tenant shall be entitled to receive the benefit of all construction warranties and manufacturer’s equipment warranties relating to equipment installed in the Premises. If requested by Tenant, Landlord shall
attempt to obtain extended warranties from manufacturers and suppliers of such equipment, but the cost of any such extended warranties shall be borne solely out of the TI Fund. Landlord shall diligently pursue any claims arising out of latent
defects in the Project. Landlord shall promptly undertake and complete, or cause to be completed, all punch list items.
(f)
Commencement Date Delay.
If the date that Landlord’s Work has been Substantially Completed shall have been actually delayed by any one or more of the following causes (a
“Tenant Delay”
):
Tenant’s Representative was not reasonably available to give or receive any Communication or to take any other action required to be
taken by Tenant hereunder;
Tenant’s request for Change Requests (as defined in
Section 4(a)
below) whether
or not any such Change Requests are actually performed;
Construction of any Change Requests;
Tenant’s request for materials, finishes or installations requiring unusually long lead times;
Tenant’s delay in reviewing, revising or approving plans and specifications beyond the periods set forth herein;
Tenant’s delay in providing information critical to the normal progression of the Project. Tenant shall provide such information as
soon as reasonably possible, but
in no event longer than one week after receipt of any request for such information from Landlord;
Tenant’s delay in making payments to Landlord for Excess TI Costs (as defined in
Section 5(d)
below);
then Landlord shall cause the Architect to certify the date on which the Tenant Improvements would have been completed but for such Tenant Delay and such certified date
shall be the Commencement Date under the Lease.
4.
Changes.
Any changes requested by Tenant to Landlord’s
Improvements at any time, or to the Tenant Improvements after the delivery and approval by Tenant of the Construction Drawings, shall be requested and instituted in accordance with the provisions of this
Section 4
and shall be subject to
the written approval of Landlord and the Architect, such approval not to be unreasonably withheld, conditioned or delayed.
(a)
Tenant’s Right to Request Changes.
If Tenant shall request changes to Tenant Improvements after Tenant’s approval of the Construction Drawings or if Tenant shall request changes to Landlord’s Improvements (collectively,
“Changes”
), Tenant shall request such Changes by notifying Landlord in writing in substantially the same form as the AIA standard change order form (a
“Change Request”
), which Change Request shall detail the nature
and extent of any such Change. Such Change Request must be signed by Tenant’s Representative. Landlord shall, before proceeding with any Change, use its best efforts to respond to Tenant as soon as is reasonably possible with an estimate of:
(i) the time it will take, and (ii) the architectural and engineering fees and costs which will be incurred, to analyze such Change Request (which costs shall be paid from the TI Fund to the extent actually incurred, whether or not such
change is implemented). Landlord shall thereafter submit to Tenant in writing, within 5 business days of receipt of the Change Request (or such longer period of time as is reasonably required depending on the extent of the Change Request), an
analysis of the additional cost or savings involved, including, without limitation, architectural and engineering costs and the period of time, if any, that the Change will extend the date on which Landlord’s Work will be Substantially
Complete. Any such delay in the completion of Landlord’s Work caused by a Change, including any suspension of Landlord’s Work while any such Change is being evaluated and/or designed, shall be a Tenant Delay.
(b)
Implementation of Changes.
If Tenant: (i) approves in writing the cost or savings and the estimated extension in the time for completion
of Landlord’s Work, if any, and (ii) deposits with Landlord any Excess TI Costs required in connection with such Change, Landlord shall cause the approved Change to be instituted. Notwithstanding any approval or disapproval by Tenant of
any estimate of the delay caused by such proposed Change, the Architect’s determination of the amount of Tenant Delay in connection with such Change shall be final and binding on Landlord and Tenant.
5.
Costs.
(a)
Budget For Tenant Improvements.
Before the commencement of construction of the Tenant Improvements, Landlord shall obtain a detailed breakdown, by trade, of the costs incurred or which will be incurred in connection with the design and
construction of Tenant Improvements (the
“Budget”
). The Budget shall be based upon the Construction Drawings and shall include a payment to Landlord of administrative rent (
“Administrative Rent”
) equal to $127,500
for monitoring and inspecting the construction of Tenant’s Work, which sum shall be payable from the TI Fund. Such Administrative Rent shall include, without limitation, all out-of-pocket costs, internal or overhead costs, expenses and fees
incurred by or on behalf of Landlord arising from, out of, or in connection with, such monitoring of the construction of the Tenant Improvements, and shall be payable out of the TI Fund. If the Budget is greater than the TI Allowance, Tenant shall
deposit with Landlord the difference, in cash, prior to the commencement
of construction of the Tenant Improvements, for
disbursement by Landlord as described in
Section 5(d)
.
(b)
TI Allowance.
Landlord shall provide to Tenant a tenant improvement allowance
(
“TI Allowance”
) of $6,630,000. The TI Allowance shall be disbursed in accordance with this Work Letter. If the TI Costs (as defined herein) are less than the amount of the TI Allowance, Tenant may apply some or all of the remaining
balance of the TI Allowance, in an amount not to exceed $500,000, toward the cost of Tenant’s alterations and improvements to the 790 Building made before the Commencement Date. Any remaining balance not so applied to alterations and
improvements to the 790 Premises shall be retained by Landlord. Except as specifically provided in the Lease and herein, Tenant shall have no right to the use or benefit (including any reduction to Base Rent) of any portion of the Tenant Improvement
Allowance not required for the construction of (i) the Tenant Improvements described in the Construction Drawings approved pursuant to
Section 2(e)
or (ii) any Changes pursuant to
Section 4
.
(c)
Costs Includable in TI Fund.
The TI Fund shall be used solely for the payment of design and construction costs in connection with the
construction of the Tenant Improvements, including, without limitation, the cost of preparing the Schematic Floor Plan, Permit Drawings and Constructions Drawings, all costs set forth in the Budget, including Landlord’s Administrative Rent,
costs resulting from Tenant Delays and the cost of Changes (collectively,
“TI Costs”
). Notwithstanding anything to the contrary contained herein, the TI Fund shall not be used to purchase any furniture, personal property or other
non-Building System materials or equipment, including, but not limited to, biological safety cabinets and other scientific equipment not incorporated into the Tenant Improvements.
(d)
Excess TI Costs.
It is understood and agreed that Landlord is under no obligation to bear any portion of the cost of any of the Tenant
Improvements except to the extent of the TI Allowance. If at any time and from time-to-time, the remaining TI Costs under the Budget exceeds the remaining unexpended TI Allowance, then within 10 business days of notice from Landlord, Tenant shall
deposit with Landlord, as a condition precedent to Landlord’s obligation to complete the Tenant Improvements, 100% of the then current TI Cost in excess of the remaining TI Allowance (
“Excess TI Costs”
). If Tenant fails to
deposit, or is late in depositing, any Excess TI Costs amount with Landlord, Landlord shall have all of the rights and remedies set forth in the Lease for nonpayment of Rent (including, but not limited to, the right to interest at the Default Rate
and the right to assess a late charge), and for purposes of any litigation instituted with regard to such amounts the same will be considered Rent. Such deposit of Excess TI Costs, together with the remaining TI Allowance, is herein referred to as
the
“ TI Fund.”
Funds so deposited by Tenant shall be the first thereafter disbursed to pay TI Costs. Notwithstanding anything to the contrary set forth in this
Section 5(d)
, Tenant shall be fully and solely liable for
Excess TI Costs and the cost of Minor Variations. If upon Substantial Completion of the Tenant Improvements and the payment of all sums due in connection therewith there remains any undisbursed TI Fund, within 30 days thereafter, Tenant shall be
entitled to such undisbursed TI Fund solely to the extent of any Excess TI Costs deposit Tenant has actually made with Landlord.
(e)
Payment for Landlord’s Improvements.
Landlord shall bear all costs, expenses and fees incurred by or on behalf of Landlord in connection with the construction of Landlord’s Improvements, other than as a result of
Tenant requested Changes, subject to the terms hereof and the terms of the Lease.
6.
Tenant Access.
(a)
Tenant’s Access Rights.
Landlord hereby agrees to permit Tenant access, at Tenant’s sole risk and expense, to the 770 Building
(i) 60 days prior to the Term Commencement Date, and to the 790 Building from and after July 1, 2002, to perform any work (“
Tenant’s Work”
) required by Tenant other than Landlord’s Work and provided that such
Tenant’s Work is
coordinated with the Architect and the general contractor, and complies with the Lease and all other reasonable restrictions and conditions Landlord may
impose, and (ii) at all times prior to the completion of Landlord’s Work, to inspect and observe work in process; all such access shall be during normal business hours or at such other times as are reasonably designated by Landlord.
Notwithstanding the foregoing, Tenant shall have no right to enter onto the Premises or the Project unless and until Tenant shall deliver to Landlord evidence reasonably satisfactory to Landlord demonstrating that any insurance reasonably required
by Landlord in connection with such pre-commencement access is in full force and effect. Any entry by Tenant shall comply with all established safety practices of Landlord’s contractor and Landlord until completion of Landlord’s Work and
acceptance thereof by Tenant.
(b)
No Interference.
Neither Tenant nor any Tenant Party shall materially interfere with the
performance of Landlord’s Work, nor with any inspections or issuance of final approvals by the City of Cambridge, and upon any such interference, after notice and a reasonable opportunity to stop such interference, Landlord shall have the right
to exclude Tenant and any Tenant Party from the Premises and the Project until Substantial Completion of Landlord’s Work.
(c)
No
Acceptance of Premises.
The fact that Tenant may, with Landlord’s consent, enter into the Project prior to the date Landlord’s Work is Substantially Complete for the purpose of performing any Tenant’s Work shall not be deemed an
acceptance by Tenant of possession of the Premises, but in such event Tenant shall indemnify and hold Landlord harmless from any loss of or damage to Tenant’s property, completed work, fixtures, equipment, materials or merchandise, and from
liability for death of, or injury to, any person, caused by the willful misconduct or negligence of Tenant or any Tenant Party.
7.
Notification of Delays.
Not less than once each calendar month from the date of this Work Letter through the Term Commencement Date, Landlord shall deliver to Tenant written notification of the number of days during the immediately preceding
calendar month Landlord’s performance under this Work Letter or the Lease was delayed as a result of Tenant Delays or delays arising by reason of any Force Majeure as defined in
Section 34
of the Lease (a
“Force Majeure
Delay”
), which written notification shall also include a description of the nature of such Tenant Delay or Force Majeure Delay.
8.
Miscellaneous.
(a)
Consents.
Whenever consent or approval of either party is required under this Work Letter,
that party shall not unreasonably withhold, condition or delay such consent or approval, except as may be expressly set forth herein to the contrary.
(b)
Modification.
No modification, waiver or amendment of this Work Letter or of any of its conditions or provisions shall be binding upon Landlord or Tenant unless in writing signed by Landlord and Tenant.
(c)
Governing Law.
This Work Letter shall be governed by, construed and enforced in accordance with the internal laws of the state
in which the Premises are located, without regard to choice of law principles of such State.
(d)
Time of the Essence.
Time is of
the essence of this Work Letter and of each and all provisions thereof.
(e)
Default.
Notwithstanding anything set forth herein or
in the Lease to the contrary, Landlord shall not have any obligation to perform any work hereunder or to fund any portion of the TI Fund during any period Tenant is in material Default under the Lease.
(f)
Severability.
If any term or provision of this Work Letter is declared invalid or
unenforceable, the remainder of this Work Letter shall not be affected by such determination and shall continue to be valid and enforceable.
(g)
Merger.
All understandings and agreements, oral or written, heretofore made between the parties hereto and relating to Landlord’s Work and Tenant’s Work are merged in this Work Letter, which alone (but inclusive of
provisions of the Lease incorporated herein and the final approved constructions drawings and specifications prepared pursuant hereto) fully and completely expresses the agreement between Landlord and Tenant with regard to the matters set forth in
this Work Letter.
(h)
Entire Agreement.
This Work Letter is made as a part of and pursuant to the Lease and, together with the
Lease, constitutes the entire agreement of the parties with respect to the subject matter hereof. This Work Letter is subject to all of the terms and limitation set forth in the Lease, and neither party shall have any rights or remedies under this
Work Letter separate and apart from their respective remedies pursuant to the Lease.
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Street Address/Tenant - Page 1
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EXHIBIT D TO LEASE
ACKNOWLEDGMENT OF COMMENCEMENT DATE
This
ACKNOWLEDGMENT OF COMMENCEMENT
DATE
is made as of this ____ day of _________, 2002, between ARE-770/784/790 Memorial Drive, LLC, a Delaware limited liability company (
“Landlord”
), and Infinity Pharmaceuticals, Inc., a Delaware corporation
(
“Tenant”
), and is attached to and made a part of the Lease dated as of ____________, 2002 (the
“
Lease
”
), by and between Landlord and Tenant. Any initially capitalized terms used but not defined herein shall
have the meanings given them in the Lease.
Landlord and Tenant hereby acknowledge and agree, for all purposes of the Lease, that the
Commencement Date of the Base Term of the Lease is _________, 2002 and the termination date of the Base Term of the Lease shall be midnight on __________, 2012.
IN WITNESS WHEREOF, Landlord and Tenant have executed this ACKNOWLEDGMENT OF COMMENCEMENT DATE to be effective on the date first above written.
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TENANT:
INFINITY PHARMACEUTICALS, INC.,
a Delaware corporation
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By:
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Its:
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LANDLORD:
ARE-770/784/790 MEMORIAL DRIVE, LLC,
a Delaware limited liability company
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By:
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ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
managing member
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By:
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ARE-QRS CORP.,
general partner
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By:
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Thomas J. Andrews
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Its:
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Vice President
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©
All rights reserved – Alexandria Real Estate Equities 2001
CONFIDENTIAL – DO NOT COPY OR DISTRIBUTE
EXHIBIT E TO LEASE
Location of Tenant’s Parking Spaces
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770 Memorial Drive
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Parking Level 2 – 45 garage spaces
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Parking Level 1 – 2 garage handicap spaces
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790 Memorial Drive
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Parking Level 2 – 10 garage spaces
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Parking Level 1 – 1 garage handicap space
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Surface Parking
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22 surface spaces
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Street Address/Tenant - Page 3
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EXHIBIT F TO LEASE
Government Parking and Transportation Requirements
City of Cambridge –
Parking and Transportation Demand Management Plan
1. Tenant shall identify an employee representative or liaison to work with the Employee
Transportation Coordinator.
2. Tenant shall participate in employee incentive programs, developed by the Employee Transportation Coordinator, to encourage
the use of alternative modes of transportation.
3. Tenant shall charge employees for the full cost of their parking, either directly or through a commuter
choice program.
4. Tenant’s Human Resources representative shall coordinate with the Employee Transportation Coordinator to incorporate the
distribution of the Commuter Services Program, New Employee Orientation Packet as part of Tenant’s internal orientation system.
5. Tenant shall
participate in all programs, studies, surveys, monitoring and reports as required by the Parking and Transportation Demand Management Plan.
City of
Cambridge – IPOP Special Permit
1. Tenant shall provide a 100% subsidy of transit passes including commuter rail passes to all employees at
the site.
Neighborhood Groups Settlement Agreement
1. Tenant’s employees and invitees are prohibited from making left turns onto Pleasant Street from the commercial curb cut during the hours of 7-9 a.m. and 4-7 p.m. weekdays.
©
All rights reserved – Alexandria Real Estate Equities 2001
CONFIDENTIAL – DO NOT COPY OR DISTRIBUTE
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Street Address/Tenant - Page 4
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EXHIBIT G TO LEASE
Tenant’s Personal Property
None except as set forth below:
©
All rights reserved – Alexandria Real Estate Equities 2001
CONFIDENTIAL – DO NOT COPY OR DISTRIBUTE
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Street Address/Tenant - Page 1
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EXHIBIT H TO LEASE
Rules and Regulations
43. The sidewalk, entries, and driveways of the
Project shall not be obstructed by Tenant, or any Tenant Party, or used by them for any purpose other than ingress and egress to and from the Premises.
44. Tenant shall not place any objects, including antennas, outdoor furniture, etc., in the parking areas, landscaped areas or other areas outside of its Premises, or on the roof of the Project.
45. Except for animals assisting the disabled and laboratory animals, no animals shall be allowed in the Project.
46. Tenant shall not disturb the occupants of the Project or adjoining buildings by the use of any radio or musical instrument or by the making of loud
or improper noises.
47. If Tenant desires telegraphic, telephonic or other electric connections in the Premises, Landlord or its agent
will direct the electrician as to where and how the wires may be introduced; and, without such direction, no boring or cutting of wires will be permitted. Any such installation or connection shall be made at Tenant’s expense.
48. Tenant shall not install or operate any steam or gas engine or boiler, or other mechanical apparatus in the Premises, except as specifically approved
in the Lease. The use of oil, gas or inflammable liquids for heating, lighting or any other purpose is expressly prohibited, except in connection with the operation of such approved apparatus. Explosives or other articles deemed extra hazardous
shall not be brought into the Project, except in amounts necessary for the Permitted Uses, handled in compliance with all Legal Requirements.
49. Parking any type of recreational vehicles is specifically prohibited on or about the Project. Except for the overnight parking of operative vehicles, no vehicle of any type shall be stored in the parking areas at any time. In the event
that a vehicle is disabled, it shall be removed within 48 hours. All vehicles shall be parked in the designated parking areas in conformity with all signs and other markings. All parking will be open parking, and no reserved parking, numbering or
lettering of individual spaces will be permitted except as specified by Landlord.
50. Tenant shall maintain the Premises free from
rodents, insects and other pests (except those used as laboratory animals).
51. Landlord reserves the right to exclude or expel from the
Project any person who, in the judgment of Landlord, is intoxicated or under the influence of liquor or drugs or who shall in any manner do any act in violation of the Rules and Regulations of the Project.
52. Tenant shall not cause any unnecessary labor by reason of Tenant’s carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss of property on the Premises, however occurring, or for any damage done to the effects of Tenant by the janitors or any other employee or person.
53. Tenant shall give Landlord prompt notice of any defects in the water, lawn sprinkler, sewage, gas pipes, electrical lights and fixtures, heating
apparatus, or any other service equipment affecting the Premises.
54. Tenant shall not permit storage outside the Premises, including
without limitation, outside storage of trucks and other vehicles, or dumping of waste or refuse or permit any harmful materials to be placed in any drainage system or sanitary system in or about the Premises.
©
All rights reserved – Alexandria Real Estate Equities 2001
CONFIDENTIAL – DO NOT COPY OR DISTRIBUTE
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Street Address/Tenant - Page 2
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55. All moveable trash receptacles provided by the trash disposal firm for the Premises must be kept
in the trash enclosure areas, if any, provided for that purpose.
56. No auction, public or private, will be permitted on the Premises or
the Project.
57. No awnings shall be placed over the windows in the Premises except with the prior written consent of Landlord.
58. The Premises shall not be used for lodging, sleeping or cooking or for any immoral or illegal purposes or for any purpose other than
that specified in the Lease. No gaming devices shall be operated in the Premises.
59. Tenant shall ascertain from Landlord the maximum
amount of electrical current which can safely be used in the Premises, taking into account the capacity of the electrical wiring in the Project and the Premises and the needs of other tenants, and shall not use more than such safe capacity.
Landlord’s consent to the installation of electric equipment shall not relieve Tenant from the obligation not to use more electricity than such safe capacity.
60. Tenant assumes full responsibility for protecting the Premises from theft, robbery and pilferage.
61.
Tenant shall not install or operate on the Premises any machinery or mechanical devices of a nature not directly related to Tenant’s ordinary use of the Premises and shall keep all such machinery free of vibration, noise and air waves which may
be transmitted beyond the Premises.
©
All rights reserved – Alexandria Real Estate Equities 2001
CONFIDENTIAL – DO NOT COPY OR DISTRIBUTE
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this “Amendment”) is dated as of the 25
th
day of March, 2003, by and between
ARE-770/784/790 Memorial Drive LLC,
a Delaware limited liability company (“Landlord”) and
Infinity Pharmaceuticals, Inc.,
a Delaware corporation (“Tenant”).
A. Pursuant to that certain Lease between Landlord and Tenant, dated as of July 2, 2002 (the “Original Lease”) (together, the Original
Lease and this Amendment are referred to herein as the “Lease”), Landlord agreed to lease to Tenant, and Tenant leased from Landlord certain premises located in the buildings known as 770 Memorial Drive, Cambridge, Massachusetts (the
“770 Premises”) and 790 Memorial Drive, Cambridge, Massachusetts (the “790 Premises”), as further identified in the Original Lease, subject to the terms and conditions more particularly set forth in the Original Lease. The 770
Premises and the 790 Premises are sometimes referred to collectively herein as the “Premises”.
B. Landlord desires to make use
of certain portions of the Premises on a short term basis in order to furnish additional space to another existing tenant of Landlord, Alnylam Pharmaceuticals, Inc. (“Alnylam”), under the terms of that certain lease, dated as of
August 5, 2002, between Landlord and Alnylam (the “Alnylam Lease”).
C. Tenant desires to permit Landlord to make such use
of certain portions of the Premises, and in furtherance thereof, Landlord and Tenant now desire to reduce the rentable area of the 790 Premises and adjust the amount of the Base Rent due under the Lease temporarily, and to cause other changes to the
Lease in accordance with the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. From and after the date hereof, the Original Lease is hereby amended to add the following new definitions to the Basic Lease Provisions:
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3D Reduced Premises:
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One thousand sixty-two (1,062) rentable square feet on the third (3
rd
) floor of the 790 Premises, designated as Suite 3D, as shown on
Exhibit A-1
attached hereto.
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3D Reduced Premises Effective Date:
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January 24, 2003.
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3C Reduced Premises:
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Two thousand five hundred (2,500) rentable square feet on the third (3
rd
) floor of the 790 Premises, designated as Suite 3C, as shown on
Exhibit A-2
attached hereto.
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3C Reduced Premises Effective Date:
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April 15, 2003.
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2. During the 3D Premises Reduction Period (as hereinafter defined), subject to the provisions of
Paragraphs 6 and 7 hereof, the definitions of “Premises”, “Base Rent” and “Tenant’s Share” set forth in the Basic Lease Provisions of the Original Lease are hereby deleted and the following new definitions are
added to the Lease:
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Rentable Area of Premises:
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770 Premises: 51,000 sq. ft.
790 Premises: 15,105 sq.
ft.
Total: 66,105 sq. ft.
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Base Rent:
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770 Premises: $242,250.00 per month
790 Premises:
$71,748.75 per month
Total: $313,998.75 per month
(based on
$57.00 per rentable square foot)
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Tenant’s Share of Operating Expenses:
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100% as to 770 Premises, 31.8% as to 790 Premises.
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3. During the 3C Premises Reduction Period (as hereinafter defined), unless sooner terminated as
provided herein, subject to the provisions of Paragraphs 6 and 7 hereof, the definitions of “Premises”, “Base Rent” and “Tenant’s Share” set forth in the Basic Lease Provisions of the Original Lease are hereby
deleted and the following new definitions are added to the Lease:
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Rentable Area of Premises:
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770 Premises: 51,000 sq. ft.
790 Premises: 13,667 sq.
ft.
Total: 64,667 sq. ft.
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Base Rent:
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770 Premises: $242,250.00 per month
790 Premises:
$64,918.25 per month
Total: $307,168.25 per month
(based on
$57.00 per rentable square foot)
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Tenant’s Share of Operating Expenses:
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100% as to 770 Premises, 28.7% as to 790 Premises.
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If the 3D Premises Reduction Period and the 3C Premises Reduction Period overlap, the foregoing defined terms
shall be adjusted to account for the reduction of the Premises by the sum of the 3D Premises and the 3C Premises for such overlapping period.
4.
Reduction of Leased Premises
. Landlord and Tenant agree that, for the period (“3D Premises Reduction Period”) commencing on the 3D Reduced Premises Effective Date and expiring on the later of (i) the 3C Reduced
Premises Effective Date, or (ii) the date on which Landlord delivers the 3D Premises to Tenant free of occupants and in its condition as of the date hereof (ordinary wear and tear only excepted), the Rentable Area of the Premises will be
reduced
2
by One Thousand Sixty-Two rentable square feet, representing the 3D Reduced Premises. Landlord and Tenant agree that, for the period (“3C Premises
Reduction Period”) commencing on the 3C Reduced Premises Effective Date and expiring on the later of (x) October 31, 2003, which date Landlord warrants to Tenant is the expiration date of the Alnylam Lease (“Alnylam Lease
Expiration Date”), or (y) the date on which Landlord delivers the 3C Premises to Tenant free of occupants and in its condition as of the date hereof (ordinary wear and tear only excepted), the Rentable Area of the Premises will be reduced
by Two Thousand Five Hundred rentable square feet, representing the 3C Reduced Premises. If the Alnylam Lease terminates for any reason prior to the Alnylam Lease Expiration Date, Landlord will give written notice to Tenant, as soon as reasonably
possible after Landlord has actual knowledge of the date on which such early termination is to occur, of the date of the early termination of the Alnylam Lease, and upon such notice Tenant shall have the right, but not the obligation, to re-assume
the 3C Reduced Premises prior to the expiration of the 3C Premises Reduction Period by written notice to Landlord of the date on which Tenant shall re-assume the 3C Premises. The parties agree that, within three (3) days after Tenant re-assumes
the 3C Reduced Premises, the parties shall execute and deliver a certificate, in the form attached hereto as Exhibit B, acknowledging the date of the return of the 3C Reduced Premises to Tenant; provided, however, that Tenant’s failure to
execute and deliver such certificate shall not affect Landlord’s rights hereunder.
5.
Tenant’s Termination Right
.
Notwithstanding anything to the contrary herein, Tenant shall have the right, to be exercised on thirty (30) days’ prior written notice to Landlord at any time during the 3C Premises Reduction Period, to request the return of the 3C
Reduced Premises. Landlord shall deliver the 3C Reduced Premises to Tenant free of occupants, and in its condition as of the date hereof (ordinary wear and tear only excepted), prior to the expiration of such thirty (30) day period.
6.
Premises; Rentable Square Feet; Tenant’s Share
.
a. During the 3D Premises Reduction Period, for all purposes of the Lease, including, without limitation, the calculation of Base Rent and
Tenant’s Share of Operating Expenses (as defined in the Original Lease), all references in the Lease to the “Premises” shall be deemed to mean the definition of Premises set forth in Paragraph 2 hereof and shown on
Exhibit A-l
attached hereto, all references in the Lease to the “Rentable Area of the Premises” shall be deemed to mean the Rentable Area of the Premises set forth in Paragraph 2 hereof, and all references in the Lease to “Tenant’s
Share” shall mean the Tenant’s Share as set forth in Paragraph 2 hereof. Upon the expiration of the 3D Premises Reduction Period, as described in Paragraph 4 hereof, this Paragraph 6a shall automatically be of no further force and effect.
b. During the 3C Premises Reduction Period, for all purposes of the Lease, including, without limitation, the calculation
of Base Rent and Tenant’s Share of Operating Expenses (as defined in the Original Lease), all references in the Lease to the “Premises” shall be deemed to mean the definition of Premises set forth in Paragraph 3 hereof and shown on
Exhibit A-2
attached hereto, all references in the Lease to the “Rentable Area of the Premises” shall be deemed to mean the Rentable Area of the Premises set forth in Paragraph 3 hereof, and all references in the Lease to
“Tenant’s Share” shall mean the Tenant’s Share as set forth in Paragraph 3 hereof. Upon the expiration or earlier termination of the 3C Premises Reduction
3
Period, as described in Paragraphs 4 and 5 hereof, this Amendment shall automatically be of no further force and effect, and the definition of
“Premises” shall be deemed to mean the definition of Premises in the Original Lease, as shown on Exhibit A to the Original Lease, all references to the “Rentable Area of the Premises” shall be deemed to mean the Rentable Area of
the Premises set forth in the Original Lease, and all references to “Tenant’s Share” shall mean Tenant’s Share as set forth in the Original Lease.
7.
Base Rent
.
a. During the 3D Premises Reduction Period, all references in the
Lease to “Base Rent” shall be deemed to mean the Base Rent set forth in Paragraph 2 of this Amendment. All Base Rent shall be paid by Tenant at the times and in the manner set forth in the Original Lease. Upon the expiration of the 3D
Premises Reduction Period, “Base Rent” shall be deemed to mean the definition of Base Rent set forth in Paragraph 6b hereof.
b. During the 3C Premises Reduction Period, all references in the Lease to “Base Rent” shall be deemed to mean the Base Rent set forth in Paragraph 3 of this Amendment. All Base Rent shall be paid by Tenant
at the times and in the manner set forth in the Original Lease. Upon the expiration of the 3C Premises Reduction period, this Amendment shall be of no further force and effect and “Base Rent” shall be deemed to mean the definition of Base
Rent in the Original Lease.
8.
Broker
. Each party represents and warrants to the other that it has not dealt with any broker or
person in connection with this Amendment. Each party hereby indemnifies and agrees to defend and hold the other party harmless from and against any and all claims for commission, fee or other compensation by any person who shall claim to have dealt
with such party in connection with this Amendment and for any and all costs incurred in connection with such claims, including, without limitation, reasonable attorneys’ fees and disbursements.
9.
Condition of Reduced Premises
. Landlord shall be responsible to return the 3D Premises and the 3C Premises to Tenant in their condition as of
the date hereof, ordinary wear and tear only excepted. Landlord must look solely to Alnylam for any recourse as a result of the condition of the 3D Reduced Premises or 3C Reduced Premises at the end of their respective Reduction Periods.
10.
Exhibits
. All references in the Lease to
Exhibit A
shall be deemed to refer to
Exhibit A-l
attached hereto during the 3D
Premises Reduction Period. All references in the Lease to
Exhibit A
shall be deemed to refer to
Exhibit A-2
during the 3C Premises Reduction Period.
11.
Miscellaneous
. All other terms and conditions of the Original Lease, as amended hereby, remain in full force and effect, as so amended. All capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Lease. The recitals set forth above are specifically incorporated into the body of this Amendment and shall be binding upon the parties hereto. Except as expressly amended hereby, all of the terms and conditions
of the Lease remain unchanged and in full force and effect. This Amendment is deemed incorporated
4
into the Lease by reference as of the date hereof; provided, however, in the event of any conflict or inconsistency between the terms and provisions of the
Lease and the terms of provisions of this Amendment, the terms and provisions of this Amendment shall govern and control. This Amendment may be executed in any number of counterparts with the same effect as if all of the signatures on such
counterparts appeared on one document, and each such counterpart shall be deemed to be an original.
IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be executed as of the day and year first written.
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LANDLORD:
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ARE-770/784/790 MEMORIAL DRIVE, LLC,
a Delaware limited liability company
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By:
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Alexandria Real Estate Equities, L.P.,
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managing member
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By:
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ARE-QRS Corp.,
general partner
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By:
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/s/ Joel S. Marcus
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Name:
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Joel S. Marcus
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Title:
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CEO
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TENANT:
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INFINITY PHARMACEUTICALS, INC.,
a Delaware corporation
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By:
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/s/ Thomas J. Burke
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Name:
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Thomas J. Burke
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Title:
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Controller
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5
Exhibit B
ACKNOWLEDGEMENT OF TERMINATION OF 3C REDUCED PREMISES REDUCTION
PERIOD
This ACKNOWLEDGEMENT OF TERMINATION OF 3C PREMISES REDUCTION PERIOD is made as of this _____ day of ___________________, 2003, by Infinity
Pharmaceuticals, Inc., a Delaware corporation (“Tenant”), and is attached to and made a part of the Amendment to Lease dated as of March _____, 2003 (the “Amendment”), by and between ARE-770/784/790 Memorial Drive LLC
(“Landlord”) and Tenant. Any initially capitalized terms used but not defined herein shall have the meanings given them in the Amendment.
Landlord and Tenant hereby acknowledge and agree that the 3C Premises Reduction Period has expired or that Tenant has agreed to re-assume the 3C Reduced Premises prior to such expiration and that the date of Tenant’s re-assumption of
the 3C Reduced Premises is ______________, 2003. Tenant hereby agrees that, from and after such date, the definitions of Premises, Rentable Area of the Premises, Tenant’s Share and Base Rent will be deemed to mean the definitions of those terms
set forth in the Original Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this ACKNOWLEDGEMENT OF TERMINATION OF 3C PREMISES
REDUCTION PERIOD to be effective on the date first written above.
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LANDLORD:
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ARE-770/784/790 MEMORIAL DRIVE, LLC,
a Delaware limited liability company
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By:
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Alexandria Real Estate Equities, L.P.,
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|
|
managing member
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|
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By:
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|
ARE-QRS Corp.,
general partner
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|
|
|
By:
|
|
|
|
Name:
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|
Title:
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|
|
|
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TENANT:
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INFINITY PHARMACEUTICALS, INC.,
a Delaware corporation
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By:
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Name:
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Title:
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8
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this “Amendment”) is dated as of the 30
th
day of April, 2003, by and between
ARE-770/784/790 Memorial Drive LLC,
a Delaware limited liability company (“Landlord”) and
Infinity Pharmaceuticals, Inc.,
a Delaware corporation (“Tenant”).
A. Pursuant to that certain Lease between Landlord and Tenant, dated as of July 2, 2002, as amended by that certain First Amendment
to Lease (the “First Amendment”), dated as of March 25, 2003 (the “Original Lease”) (together, the Original Lease and this Amendment are referred to herein as the “Lease”), Landlord agreed to lease to Tenant, and
Tenant leased from Landlord certain premises located in the buildings known as 770 Memorial Drive, Cambridge, Massachusetts (the “770 Premises”) and 790 Memorial Drive, Cambridge, Massachusetts (the “790 Premises”), as further
identified in the Original Lease, subject to the terms and conditions more particularly set forth in the Original Lease. The 770 Premises and the 790 Premises are sometimes referred to collectively herein as the “Premises”.
B. Landlord desires to make use of certain portions of the Premises on a short term basis in order to furnish additional space to another existing tenant
of Landlord, Alnylam Pharmaceuticals, Inc. (“Alnylam”), under the terms of that certain lease, dated as of August 5, 2002, between Landlord and Alnylam (as amended, the “Alnylam Lease”).
C. Pursuant to the First Amendment, Tenant and Landlord had previously agreed to reduce the Premises by removing a portion of that area of the 790
Premises known as Suite 3D therefrom, as defined and more particularly described in the First Amendment as the 3D Reduced Premises.
D.
Tenant desires to permit Landlord to make such use of the remainder of Suite 3D, and in furtherance thereof, Landlord and Tenant now desire to reduce the rentable area of the 790 Premises and adjust the amount of the Base Rent due under the Lease
temporarily, and to cause other changes to the Lease in accordance with the terms and conditions set forth in this Amendment.
E. The
purpose of this Amendment is to amend and restate the First Amendment to clarify which portions of the 790 Premises have been removed from the Premises and to further amend the Lease to remove the remainder of Suite 3D from the 790 Premises under
the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. From and after the date hereof, the
Original Lease is hereby amended to add the following new definitions to the Basic Lease Provisions:
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|
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Additional 3D Reduced Premises:
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|
One Thousand Six Hundred Thirty-Three (1,633) rentable square feet on the third (3
rd
) floor of the 790 Premises, the remainder being of Suite 3D, as shown on
Exhibit A-3
attached hereto.
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|
|
|
|
Additional 3D Reduced Premises Effective Date:
|
|
May 1, 2003.
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2. The definition of “3D Premises Reduction Period” set forth in the First Amendment is
hereby deleted in its entirety and the following inserted in its place:
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|
|
|
|
3D Premises Reduction Period:
|
|
The period from the 3D Reduced Premises Effective Date until the later of (x) October 31, 2003, which date Landlord warrants to Tenant is the expiration date of the Alnylam Lease
(“Alnylam Lease Expiration Date”), or (y) the date on which Landlord delivers the 3D Reduced Premises to Tenant free of occupants and in its condition as of the date hereof (ordinary wear and tear only excepted).
|
3. Notwithstanding the provisions of the First Amendment to the contrary, commencing on the 3C
Reduced Premises Effective Date (as defined in the First Amendment) and ending on the Additional 3D Reduced Premises Effective Date, subject to the provisions of Paragraphs 5 and 6 hereof, the definitions of “Premises”, “Base
Rent” and “Tenant’s Share” set forth in the Basic Lease Provisions of the Original Lease are hereby deleted and the following new definitions are added to the Lease:
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Rentable Area of Premises:
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|
770 Premises: 51,000 sq. ft.
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790 Premises: 12,605 sq. ft.
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Total: 63,605 sq. ft.
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Base Rent:
|
|
770 Premises: $242,250.00 per month
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790 Premises: $59,873.75 per month
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Total: $302,123.75 per month
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(based on $57.00 per rentable square foot)
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Tenant’s Share of Operating Expenses:
|
|
100% as to 770 Premises, 26.5% as to 790 Premises.
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2
4. During the Additional 3D Premises Reduction Period (as hereinafter defined), subject to the provisions
of Paragraphs 5 and 6 hereof, the definitions of “Premises”, “Base Rent” and “Tenant’s Share” set forth in the Basic Lease Provisions of the Original Lease are hereby deleted and the following new definitions are
added to the Lease:
|
|
|
|
|
Rentable Area of Premises:
|
|
770 Premises: 51,000 sq. ft.
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|
790 Premises: 10,972 sq. ft.
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|
Total: 62,880 sq. ft.
|
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|
Base Rent:
|
|
770 Premises: $242,250.00 per month
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790 Premises: $52,117.00 per month
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Total: $294,367.00 per month
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|
(based on $57.00 per rentable square foot)
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|
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Tenant’s Share of Operating Expenses:
|
|
100% as to 770 Premises, 23.1% as to 790 Premises.
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5. Reduction of Leased Premises.
(a) Notwithstanding the provisions of the First Amendment to the contrary, the parties agree that the 3D Premises Reduction Period will
run concurrently with the 3C Premises Reduction Period and the Additional 3D Premises Reduction Period, rather than expiring on the 3C Reduced Premises Effective Date as provided in the First Amendment. If the Alnylam Lease terminates for any reason
prior to the Alnylam Lease Expiration Date, Landlord will give written notice to Tenant, as soon as reasonably possible after Landlord has actual knowledge of the date on which such early termination is to occur, of the date of the early termination
of the Alnylam Lease, and upon such notice Tenant shall have the right, but not the obligation, to re-assume the 3D Reduced Premises prior to the Alnylam Lease Expiration Date. The parties agree that, within three (3) days after Tenant
re-assumes the 3D Reduced Premises, the parties shall execute and deliver a certificate, in the form attached hereto as Exhibit B, acknowledging the date of the return of the 3D Reduced Premises to Tenant; provided, however, that Tenant’s
failure to execute and deliver such certificate shall not affect Landlord’s rights hereunder.
(b) Landlord and Tenant
agree that, for the period (“Additional 3D Premises Reduction Period”) commencing on the Additional 3D Reduced Premises Effective Date and expiring on the later of (x) the Alnylam Lease Expiration Date, or (y) the date on which
Landlord delivers the Additional 3D Reduced Premises to Tenant free of occupants and in its condition as of the date hereof (ordinary wear and tear only excepted), the Rentable Area of the Premises will be reduced by One Thousand Six Hundred Thirty
Three (1,633) rentable square feet, representing the Additional 3D Reduced Premises. If the Alnylam Lease terminates for any reason prior to the Alnylam Lease Expiration Date, Landlord will give written notice to Tenant, as soon as reasonably
possible after Landlord has actual knowledge of the date on which such early termination is to occur, of the date of the early termination of the Alnylam Lease, and upon such notice Tenant shall have the right, but not the obligation, to re-assume
the Additional 3D Reduced Premises prior to the Alnylam Lease Expiration Date. The parties agree that, within three (3) days after Tenant re-assumes the Additional 3D Reduced Premises, the parties shall execute and deliver a certificate, in the
form attached hereto as Exhibit B, acknowledging the date of the return of the Additional 3D Reduced Premises to Tenant; provided, however, that Tenant’s failure to execute and deliver such certificate shall not affect Landlord’s rights
hereunder.
3
6.
Premises; Rentable Square Feet; Tenant’s Share
.
(a) Notwithstanding the applicable provisions of the First Amendment to the contrary, the parties hereby agree that, during the period
from the 3C Reduced Premises Effective Date until the Additional 3D Reduced Premises Effective Date, for all purposes of the Lease, including, without limitation, the calculation of Base Rent and Tenant’s Share of Operating Expenses (as defined
in the Original Lease), all references in the Lease to the “Premises” shall be deemed to mean the definition of Premises set forth in Paragraph 3 hereof, all references in the Lease to the “Rentable Area of the Premises” shall be
deemed to mean the Rentable Area of the Premises set forth in Paragraph 3 hereof, and all references in the Lease to “Tenant’s Share” shall mean the Tenant’s Share as set forth in Paragraph 3 hereof.
(b) During the Additional 3D Premises Reduction Period, for all purposes of the Lease, including, without limitation, the calculation of
Base Rent and Tenant’s Share of Operating Expenses (as defined in the Original Lease), all references in the Lease to the “Premises” shall be deemed to mean the definition of Premises set forth in Paragraph 4 hereof and shown on
Exhibit A-3
attached hereto, all references in the Lease to the “Rentable Area of the Premises” shall be deemed to mean the Rentable Area of the Premises set forth in Paragraph 4 hereof, and all references in the Lease to
“Tenant’s Share” shall mean the Tenant’s Share as set forth in Paragraph 4 hereof.
7. Base Rent.
(a) Notwithstanding the applicable provisions of the First Amendment to the contrary, the parties hereby agree that, during the period
from the 3C Reduced Premises Effective Date until the Additional 3D Reduced Premises Effective Date, all references in the Lease to “Base Rent” shall be deemed to mean the Base Rent set forth in Paragraph 3 of this Amendment. All Base Rent
shall be paid by Tenant at the times and in the manner set forth in the Original Lease.
(b) During the Additional 3D
Premises Reduction Period, all references in the Lease to “Base Rent” shall be deemed to mean the Base Rent set forth in Paragraph 4 of this Amendment. All Base Rent shall be paid by Tenant at the times and in the manner set forth in the
Original Lease.
8.
Broker
. Each party represents and warrants to the other that it has not dealt with any broker or person in
connection with this Amendment. Each party hereby indemnifies and agrees to defend and hold the other party harmless from and against any and all claims for commission, fee or other compensation by any person who shall claim to have dealt with such
party in connection with this Amendment and for any and all costs incurred in connection with such claims, including, without limitation, reasonable attorneys’ fees and disbursements.
9.
Condition of Reduced Premises
. Landlord shall be responsible to return the Additional 3D Premises to Tenant in its condition as of the date
hereof, ordinary wear and tear only excepted. Landlord must look solely to Alnylam for any recourse as a result of the condition of the Additional 3D Reduced Premises at the end of the Additional 3D Premises Reduction Period.
4
10.
Exhibits
. All references in the Lease to
Exhibit A
shall be deemed to refer to
Exhibit A-3
attached hereto during the Additional 3D Premises Reduction Period.
11.
Miscellaneous
. All other terms and
conditions of the Original Lease, as amended hereby, remain in full force and effect, as so amended. All capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Lease. The recitals set forth above are
specifically incorporated into the body of this Amendment and shall be binding upon the parties hereto. Except as expressly amended hereby, all of the terms and conditions of the Lease remain unchanged and in full force and effect. This Amendment is
deemed incorporated into the Lease by reference as of the date hereof; provided, however, in the event of any conflict or inconsistency between the terms and provisions of the Lease and the terms of provisions of this Amendment, the terms and
provisions of this Amendment shall govern and control. This Amendment may be executed in any number of counterparts with the same effect as if all of the signatures on such counterparts appeared on one document, and each such counterpart shall be
deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day and year first
written.
LANDLORD:
|
|
|
|
|
ARE-770/784/790 MEMORIAL DRIVE, LLC,
|
|
|
|
a Delaware limited liability company
|
|
|
|
|
By:
|
|
Alexandria Real Estate Equities, L.P.,
managing member
|
|
|
|
|
By:
|
|
ARE-QRS Corp.,
general partner
|
|
|
|
|
By:
|
|
/s/ Peter J. Nelson
|
|
Name:
|
|
Peter J. Nelson
|
|
Title
|
|
Senior Vice President & Chief Financial Officer
|
|
|
|
|
|
TENANT:
|
|
|
|
INFINITY PHARMACEUTICALS, INC.,
|
|
|
|
a Delaware corporation
|
|
|
|
|
By:
|
|
/s/ Steven H. Holtzman
|
|
Name:
|
|
Steven H. Holtzman
|
|
Title:
|
|
CEO/President
|
5
Exhibit B
ACKNOWLEDGEMENT OF TERMINATION OF ADDITIONAL 3D REDUCED PREMISES
REDUCTION PERIOD
This ACKNOWLEDGEMENT OF TERMINATION OF ADDITIONAL 3D PREMISES REDUCTION PERIOD is made as of this ________ day of _______________________, 2003, by
Infinity Pharmaceuticals, Inc., a Delaware corporation (“Tenant”), and is attached to and made a part of the Second Amendment to Lease dated as of April ________, 2003 (the “Amendment”), by and between ARE-770/784/790 Memorial
Drive LLC (“Landlord”) and Tenant. Any initially capitalized terms used but not defined herein shall have the meanings given them in the Amendment.
Landlord and Tenant hereby acknowledge and agree that the Additional 3D Premises Reduction Period has expired or that Tenant has agreed to re-assume the Additional 3D Reduced Premises prior to such expiration and that
the date of Tenant’s re-assumption of the Additional 3D Reduced Premises is _______________, 2003. Tenant hereby agrees that, from and after such date, the definitions of Premises, Rentable Area of the Premises, Tenant’s Share and Base
Rent will be deemed to mean the definitions of those terms set forth in the Original Lease.
IN WITNESS WHEREOF, Landlord and Tenant have
executed this Acknowledgement of Termination of Additional 3D Premises Reduction Period to be effective on the date first written above.
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|
|
|
|
LANDLORD:
|
|
|
|
ARE-770/784/790 MEMORIAL DRIVE, LLC,
a Delaware limited liability company
|
|
|
|
|
By:
|
|
Alexandria Real Estate Equities, L.P.,
managing member
|
|
|
|
|
By:
|
|
ARE-QRS Corp.,
general partner
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
|
|
|
TENANT:
|
|
|
|
INFINITY PHARMACEUTICALS, INC.,
a Delaware corporation
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
|
7
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE (this “Amendment”) is dated as of the 30
th
day of October, 2003, by and between
ARE-770/784/790 Memorial Drive LLC,
a Delaware limited liability company (“Landlord”) and
Infinity Pharmaceuticals, Inc.,
a Delaware corporation (‘Tenant”).
A. Pursuant to that certain Lease between Landlord and Tenant, dated as of July 2, 2002, as amended by that certain Amendment to
Lease (the “First Amendment”), dated as of March 25, 2003 and as further amended by that certain Second Amendment to Lease (the “Second Amendment), dated as of April 30, 2003 (the “Original Lease”) (together, the
Original Lease and this Amendment are referred to herein as the “Lease”), Landlord agreed to lease to Tenant, and Tenant leased from Landlord certain premises located in the buildings known as 770 Memorial Drive, Cambridge, Massachusetts
(the “770 Premises”) and 790 Memorial Drive, Cambridge, Massachusetts (the “790 Premises”), as further identified in the Original Lease, subject to the terms and conditions more particularly set forth in the Original Lease. The
770 Premises and the 790 Premises are sometimes referred to collectively herein as the “Premises”.
B. Landlord desires to make
use of certain portions of the Premises on a short term basis in order to furnish additional space to another existing tenant of Landlord, Alnylam Pharmaceuticals, Inc. (“Alnylam”), under the terms of that certain lease, dated as of
August 5, 2002, between Landlord and Alnylam (as amended, the “Alnylam Lease”).
C. Pursuant to the First Amendment, Tenant
and Landlord had previously agreed to reduce the Premises by removing a portion of that area of the 790 Premises known as Suite 3C therefrom, which portion of Suite 3C is defined and more particularly described in the First Amendment as the 3C
Reduced Premises.
D. Tenant desires to permit Landlord to make such use of the remainder of Suite 3C, and in furtherance thereof, Landlord
and Tenant now desire to reduce the rentable area of the 790 Premises and adjust the amount of the Base Rent due under the Lease temporarily, and to cause other changes to the Lease in accordance with the terms and conditions set forth in this
Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. From and after the date hereof, the Original Lease is hereby
amended to add the following new definitions to the Basic Lease Provisions:
|
|
|
|
|
Additional 3C Reduced Premises:
|
|
One Thousand Four Hundred Ninety (1,490) rentable square feet on the third (3
rd
) floor of the 790 Premises, being the remainder of Suite 3C, as shown on
Exhibit A-4
attached hereto.
|
|
|
|
|
Additional 3C Reduced Premises Effective Date:
|
|
October 1, 2003.
|
2. The definition of “3C Premises Reduction Period” set forth in the First Amendment is hereby
deleted in its entirety and the following inserted in its place:
|
|
|
|
|
3C Premises Reduction Period:
|
|
The period from the 3C Reduced Premises Effective Date until the later of (x) April 30, 2004, or (y) the date on which Landlord delivers the 3C Reduced Premises and the Additional 3C
Reduced Premises to Tenant free of occupants and in its condition as of the date hereof (ordinary wear and tear only excepted).
|
3. Notwithstanding the provisions of the First Amendment to the contrary, commencing on the
Additional 3C Reduced Premises Effective Date (as defined in the First Amendment) and ending upon the expiration of the 3C Premises Reduction Period, subject to the provisions of Paragraphs 4 and 5 hereof, the definitions of “Premises”,
“Rentable Area of Premises”, “Base Rent” and “Tenant’s Share” set forth in the Basic Lease Provisions of the Original Lease are hereby deleted and the following new definitions are added to the Lease:
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Premises:
|
|
That portion of the Project, containing, in the aggregate, approximately 60,482 rentable square feet, namely, (i) all three (3) floors of the building located at 770 Memorial Drive,
Cambridge, Massachusetts, consisting of approximately 51,000 rentable square feet (the “770 Premises”), and (ii) the entire third floor of the building located at 790 Memorial Drive, Cambridge, Massachusetts, except for Suite 3C and Suite
3D, consisting of approximately 9,482 rentable square feet (the “790 Premises”), as determined by Landlord, as shown on Exhibit A, A-l, A-2, A-3 and A-4.
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Rentable Area of Premises:
|
|
770 Premises:
790 Premises:
Total:
|
|
51,000 sq. ft.
9, 482 sq. ft.
60,482 sq. ft.
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|
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|
Base Rent:
|
|
770 Premises:
790 Premises:
Total:
|
|
$242,250.00 per month
$45,039.50 per month
$287,289.50 per month
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|
(based on $57.00 per rentable square foot)
|
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Tenant’s Share of Operating Expenses:
|
|
100% as to 770 Premises, 20% as to 790 Premises.
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4.
Reduction of Leased Premises.
Landlord and Tenant agree that, for the period
(“Additional 3C Premises Reduction Period”) commencing on the Additional 3C Reduced
2
Premises Effective Date and expiring on the later of (x) April 30, 2004, or (y) the date on which Landlord delivers the Additional 3C Reduced
Premises to Tenant free of occupants and in its condition as of the date hereof (ordinary wear and tear only excepted), the Rentable Area of the Premises will be reduced by One Thousand Four Hundred Ninety (1,490) rentable square feet,
representing the Additional 3C Reduced Premises. If the Alnylam Lease terminates for any reason prior to the Alnylam Lease Expiration Date, Landlord will give written notice to Tenant, as soon as reasonably possible after Landlord has actual
knowledge of the date on which such early termination is to occur, of the date of the early termination of the Alnylam Lease, and upon such notice Tenant shall have the right, but not the obligation, to re-assume the Additional 3C Reduced Premises
prior to the Alnylam Lease Expiration Date. The parties agree that, within three (3) days after Tenant re-assumes the Additional 3C Reduced Premises, the parties shall execute and deliver a certificate, in the form attached hereto as Exhibit B,
acknowledging the date of the return of the Additional 3C Reduced Premises to Tenant; provided, however, that Tenant’s failure to execute and deliver such certificate shall not affect Landlord’s rights hereunder.
5.
Tenant’s Termination Right.
Notwithstanding anything to the contrary herein. Tenant shall not have any right to request the return of the
3C Reduced Premises, the Additional 3C Reduced Premises, the 3D Reduced Premises or the Additional 3D Reduced Premises prior to the Alnylam Lease Expiration Date unless the Alnylam Lease is terminated earlier as provided in Section 4 hereof.
6.
Premises; Rentable Square Feet; Tenant’s Share
. During the Additional 3C Premises Reduction Period, for all purposes of the
Lease, including, without limitation, the calculation of Base Rent and Tenant’s Share of Operating Expenses (as defined in the Original Lease), all references in the Lease to the “Premises” shall be deemed to mean the definition of
Premises set forth in Paragraph 3 hereof and shown on
Exhibits
A-1
,
A-2
,
A-3
and
A-4
attached hereto, all references in the Lease to the “Rentable Area of the Premises” shall be deemed to mean the
Rentable Area of the Premises set forth in Paragraph 3 hereof, and all references in the Lease to “Tenant’s Share” shall mean the Tenant’s Share as set forth in Paragraph 3 hereof.
7.
Base Rent.
During the Additional 3C Premises Reduction Period, all references in the Lease to “Base Rent” shall be deemed to mean the
Base Rent set forth in Paragraph 3 of this Amendment. All Base Rent shall be paid by Tenant at the times and in the manner set forth in the Original Lease.
8.
Broker
. Each party represents and warrants to the other that it has not dealt with any broker or person in connection with this Amendment. Each party hereby indemnifies and agrees to defend and hold the
other party harmless from and against any and all claims for commission, fee or other compensation by any person who shall claim to have dealt with such party in connection with this Amendment and for any and all costs incurred in connection with
such claims, including, without limitation, reasonable attorneys’ fees and disbursements.
9.
Condition of Reduced Premises
.
Landlord shall be responsible to return the Additional 3C Premises to Tenant in its condition as of the date hereof, ordinary wear and tear only excepted. Landlord must look solely to Alnylam for any recourse as a result of the
3
condition of the Additional 3C Reduced Premises at the end of the Additional 3C Premises Reduction Period.
10.
Exhibits
. All references in the Lease to
Exhibit A
shall be deemed to refer to
Exhibits
A-l
,
A-2
,
A-3
and
A-4
attached hereto during the Additional 3C Premises Reduction Period.
11.
Second Amendment Exhibits
. Notwithstanding the
provisions of Sections 6(b) and 10(b) of the Second Amendment, the Premises under the Second Amendment was intended to be that shown on
Exhibits A
,
A-l
,
A-2
and
A-3
to the Lease.
12.
Miscellaneous
. All other terms and conditions of the Original Lease, as amended hereby, remain in full force and effect, as so amended. All
capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Lease. The recitals set forth above are specifically incorporated into the body of this Amendment and shall be binding upon the parties hereto.
Except as expressly amended hereby, all of the terms and conditions of the Lease remain unchanged and in full force and effect. This Amendment is deemed incorporated into the Lease by reference as of the date hereof; provided, however, in the event
of any conflict or inconsistency between the terms and provisions of the Lease and the terms of provisions of this Amendment, the terms and provisions of this Amendment shall govern and control. This Amendment may be executed in any number of
counterparts with the same effect as if all of the signatures on such counterparts appeared on one document, and each such counterpart shall be deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day and year first written.
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LANDLORD:
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ARE-770/784/790 MEMORIAL DRIVE, LLC,
a Delaware limited liability company
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By:
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Alexandria Real Estate Equities, L.P.,
managing member
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By:
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ARE-QRS Corp.,
general partner
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By:
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/s/ Joel S. Marcus
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Name:
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Joel S. Marcus
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Title:
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CEO
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4
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TENANT:
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INFINITY PHARMACEUTICALS, INC.,
a Delaware corporation
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By:
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/s/ Steven H. Holtzman
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Name:
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Steven H. Holtzman
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Title:
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CEO/President
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5
Exhibit B
ACKNOWLEDGEMENT OF TERMINATION OF ADDITIONAL 3D REDUCED PREMISES
REDUCTION PERIOD
This ACKNOWLEDGEMENT OF TERMINATION OF ADDITIONAL 3C PREMISES REDUCTION PERIOD is made as of this ________ day of ______________, 2003, by Infinity
Pharmaceuticals, Inc., a Delaware corporation (“Tenant”), and is attached to and made a part of the Third Amendment to Lease dated as of October ______, 2003 (the “Amendment”), by and between ARE-770/784/790 Memorial Drive LLC
(“Landlord”) and Tenant. Any initially capitalized terms used but not defined herein shall have the meanings given them in the Amendment.
Landlord and Tenant hereby acknowledge and agree that the Additional 3C Premises Reduction Period has expired or that Tenant has agreed to re-assume the Additional 3C Reduced Premises prior to such expiration and that the date of
Tenant’s re-assumption of the Additional 3C Reduced Premises is _____, 2003. Tenant hereby agrees that, from and after such date, the definitions of Premises, Rentable Area of the Premises, Tenant’s Share and Base Rent will be deemed to
mean the definitions of those terms set forth in the Original Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Acknowledgement of Termination of Additional 3C Premises Reduction Period to be effective on the date first written above.
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LANDLORD:
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ARE-770/784/790 MEMORIAL DRIVE, LLC,
a Delaware limited liability company
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By:
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Alexandria Real Estate Equities, L.P.,
managing member
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By:
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ARE-QRS Corp.,
general partner
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By:
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Name:
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Title:
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TENANT:
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INFINITY PHARMACEUTICALS, INC.,
a Delaware corporation
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By:
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Name:
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Title:
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7
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (“Amendment”) is entered into as of December 15, 2003, by and between
ARE-770/784/790 Memorial Drive LLC,
a Delaware limited liability company
(“Landlord”), and
Infinity Pharmaceuticals, Inc.,
a Delaware corporation (“Tenant”). This Amendment amends that certain Lease between Landlord and Tenant dated as of July 2, 2002, as previously amended by a First
Amendment dated March 25, 2003, a Second Amendment dated April 30, 2003, and a Third Amendment dated October 31, 2003 (as so amended, the “Lease”), pertaining to premises located at 780 and 790 Memorial Drive, Cambridge,
Massachusetts. All capitalized terms not defined herein shall have the meanings ascribed to them in the Lease. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree that the Lease is amended as follows:
1. The definition of “Security Deposit” set forth in the Basic Lease
Provisions of the Lease, i.e., “$1,450,000, to be increased to $1,915,000 on or before January 1, 2003”, is deleted in its entirety, and the following is substituted in its place: “$1,415,000.00”. Landlord and Tenant agree
to cooperate reasonably to arrange for either (a) amendment of the existing Letter of Credit or (b) if such amendment is not available, replacement of the existing Letter of Credit with a new Letter of Credit meeting the requirements of
Section 6 of the Lease, to reflect this reduction in the amount of the Security Deposit.
2. The first sentence of Section 39 of the Lease is
hereby deleted in its entirety and the following inserted in its place: “Tenant, at no additional cost, shall have the right to use up to 500 square feet on the roof of the 770 Building for the installation of Tenant’s communications
equipment (“Tenant’s Equipment”). The Tenant has until January 15, 2004, to remove the Tenant’s Equipment which is on the roof of the 790 Building”
3. Section 40 of the Lease (“Right to Expand”) is deleted in its entirety, it being agreed that Tenant shall no longer have any right under the Lease (a) to expand the Demised Premises into either
the 790 1
st
Floor Premises or the 790 2
nd
Floor Premises, (b) to use the additional parking attributable to the 790 1
st
Floor Premises and the 790 2
nd
Floor Premises, or (c) to exercise the right of first offer on any portion of the 790 1
st
Floor Premises or the 790 2
nd
Floor Premises if Landlord elects to terminate the Science Hotel (sm) operation within
such premises, all as described in such Section 40.
4. As of the date hereof, each of Landlord and Tenant confirms that there are no uncured Defaults
under the Lease, and that to its knowledge no condition exists that, with the giving of notice or the passage of time or both, if uncured would constitute a Default under the Lease.
5. As amended hereby, the Lease remains in full force and effect. This Amendment may be executed in any number of counterparts with the same effect as if all of the signatures on such counterparts appeared on one
document, and each such counterpart shall be deemed to be an original.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day and year
first written.
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LANDLORD:
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TENANT:
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ARE-770/784/790 MEMORIAL DRIVE, LLC,
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INFINITY PHARMACEUTICALS, INC.,
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a Delaware limited liability company
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a Delaware corporation
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By:
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Alexandria Real Estate Equities, L.P.,
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By:
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/s/ Steven H. Holtzman
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a Delaware limited partnership, managing member
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Name:
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Steven H. Holtzman
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By:
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ARE-QRS Corp.,
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Title:
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President & CEO
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a Maryland corporation, general partner
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By:
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/s/ Joel S. Marcus
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Joel S. Marcus
Chief Executive Officer
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2
Exhibit 10.37
8.23.04
SUBLEASE
THIS SUBLEASE AGREEMENT (“Sublease”) is made as of the 24
th
day of August,
2004, by and between Infinity Pharmaceuticals, Inc. (hereinafter called “Sublandlord”), a Delaware corporation, and Hydra Biosciences, Inc. (hereinafter called “Subtenant”), a Delaware corporation.
RECITALS:
A. Pursuant to a Lease Agreement
dated as of July 2, 2002, as amended by a First Amendment to Lease dated March 25, 2003, a Second Amendment to Lease dated April 30, 2003, a Third Amendment to Lease dated October 30, 2003, and a Fourth Amendment to Lease dated
as of December 15, 2003 (hereinafter collectively, the “Prime Lease”), Sublandlord, as tenant, leased from ARE-770/784/790 Memorial Drive LLC, as landlord (hereinafter called “Prime Landlord”), certain premises consisting of
approximately 67,167 rentable square feet, together with all rights appurtenant thereto, including without limitation, such parking as is provided thereunder (hereinafter, the “Leased Premises”), located at 770 and 790 Memorial Drive,
Cambridge, Massachusetts, all as more particularly described in the Prime Lease.
B. Sublandlord and Subtenant have agreed that Sublandlord
will sublet to Subtenant approximately 16,167 rentable square feet of space located on the third (3
rd
) floor of
the portion of the Leased Premises located at 790 Memorial Drive, as shown on
Exhibit A
attached hereto (hereinafter, the “Subleased Premises”).
C. Sublandlord and Subtenant hereby execute and deliver this Sublease subject to the condition precedent of Sublandlord’s obtaining the Prime Landlord’s written consent hereto.
D. Capitalized terms defined in the Prime Lease and not otherwise defined herein shall have the same meanings as the Prime Lease.
AGREEMENTS:
For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and for the mutual covenants contained herein, the parties agree as follows.
1.
Lease; Term; Early Access
. Sublandlord hereby leases to Subtenant, and Subtenant hereby leases from Sublandlord, the Subleased Premises, for a term commencing on December 1, 2004 (the “Commencement
Date”), and expiring on November 30, 2007 (the “Expiration Date”).
The Subleased Premises will be delivered to
Subtenant in two phases. Phase 1 will consist of approximately 13,243 rentable square feet located in Suites A, B, D, E and the portion of Suite C allocated to the support staff and located adjacent to Suite A. Phase 2 shall consist of approximately
2,924 rentable square feet located on the balance of the 3
rd
Floor of the Building and which is not included in
Phase 1. Notwithstanding the foregoing, upon signature of this Sublease by Sublandlord and Subtenant, Subtenant shall
-1-
have access to all of Suite A and that portion of Suite B that does not contain the nuclear magnetic resonance machine. The balance of Suite B (the portion
containing the nuclear magnetic resonance machine) will be delivered to Subtenant on the earlier of (a) the date the nuclear magnetic resonance machine is removed from the Building, or (b) November 1, 2004. The balance of Phase 1 of
the Subleased Premises shall be delivered to Subtenant on the earlier of (i) the date such space is vacated by the existing tenant, or (ii) on or before November 1, 2004. Phase 2 of the Subleased Premises shall be delivered to
Subtenant on December 1, 2005, provided, however, that Sublandlord agrees to grant Subtenant early access to Phase 2 of the Subleased Premises commencing on October 1, 2005 in the event that Phase 2 of the Subleased Premises is vacant as
of October 1, 2005. The early access rights granted to Subtenant for both Phase 1 and Phase 2 herein are to ensure that Subtenant shall have early access to all respective portions of the Subleased Premises then being delivered to Subtenant to
enable Subtenant to install furniture, trade fixtures and/or cabling and communications systems and to make initial arrangements for occupancy of the Subleased Premises (collectively, “Tenant’s Preparations”), commencing upon
execution of this Sublease, provided that Tenant’s Preparations shall include no work which would require Prime Landlord’s consent under the Prime Lease unless Prime Landlord’s consent is obtained, and further provided that
Subtenant’s early access under this section shall be subject to all provisions of the Prime Lease and this Sublease except for the payment of rent. Sublandlord shall use its best efforts to remove the nuclear magnetic resonance machine or cause
the nuclear magnetic resonance machine to be removed from the Building at the earliest possible date (and in any event prior to November 1, 2004) to enable Subtenant to access that portion of Suite B. Furthermore, Sublandlord covenants and
agrees that it will make a timely request for approval of this Sublease from the Prime Landlord and that it will use its best efforts to obtain the approval of Prime Landlord to this Sublease.
2.
Extension Options
. Subtenant shall have the continuing option to extend the term of this Sublease for periods of not less than six
(6) months at a time (each an “Extension Period”) upon written notice to Sublandlord not less six (6) months before the end of the then current term of this Sublease setting forth the length of the extension period, provided that
Subtenant may not extend the term of this Sublease beyond December 31, 2010 unless Subtenant extends the term of this Sublease to December 31, 2012 (the date on which the Prime Lease expires by its terms). The base rental rate for any
Extension Period from December 1, 2007 through November 30, 2009 (the “Initial Extension Years”) shall be $35.00 per rentable square foot. The base rental rate for any Extension Period commencing on or after December 1, 2009
(the “Final Extension Years”) shall be equal to ninety-five percent (95%) of the then current fair market rate for comparable space in comparable condition, as reasonably determined by Sublandlord, which determination shall be
delivered to Subtenant by written notice (the “Market Rent Notice”) within thirty (30) days after Sublandlord receives Subtenant’s extension notice. Sublandlord’s determination of fair market rent shall take into account all
concessions being offered in the marketplace, but in no event shall the base rental rate during the Final Extension Years be less than $35.00 per rentable square foot. Subtenant shall have a period of ten (10) days after receipt of
Sublandlord’s Market Rent Notice to accept or reject such determination. If the Sublandlord and Subtenant are unable to agree to the determination of the fair market rate for the Premises for such period then the matter will
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be submitted to arbitration in accordance with the procedures set forth for determination of market rent in Section 41 of the Prime Lease.
3.
Condition of the Subleased Premises
. The Subleased Premises are leased to Subtenant in their condition on the date hereof. Sublandlord has
made no representations, warranties, guaranties or promises with respect to the Subleased Premises or the suitability thereof for the uses contemplated by this Sublease. Subtenant agrees to accept possession of the Subleased Premises on the
Commencement Date “as is,” “where is,” in their same condition as on the date hereof.
4.
Subtenant’s Work
.
Subject to Sublandlord’s prior written consent and approval, which shall not be unreasonably withheld, and Prime Landlord’s prior written consent and approval in accordance with the Prime Lease, Subtenant shall have the right to construct,
at Subtenant’s sole cost and expense, reasonably necessary alterations to the Subleased Premises to accommodate Subtenant’s occupancy thereof. All alterations shall be performed in accordance with the terms of the Prime Lease (including
but not limited to the right to make Notice Only Alterations in accordance with Section 12 of the Prime Lease). Subtenant shall be solely responsible for removing any alterations installed by Subtenant upon the expiration or termination of this
Sublease, to the extent that such removal is required by the Prime Lease. Sublandlord agrees to cooperate with Subtenant in obtaining Prime Landlord’s consent to Subtenant’s proposed alterations.
5.
Rent
. The annual base rent per year, drawn on a U.S. bank, payable in advance in equal monthly installments, commencing on January 1, 2005
(the “Rent Commencement Date”), and thereafter on the first day of each calendar month in advance, prorated for any partial month at the beginning or end of the Sublease Term, shall be paid and lease years shall be defined as follows:
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Period
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Annual Rent Rate
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Monthly Rent
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Year 1(1/1/05-11/30/05)
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$
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423,776.00
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$
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35,314.67
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Year 2 (12/1/05-11/30/06)
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$
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533,511.00
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$
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44,459.25
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Year 3 (12/1/06-11/30/07)
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$
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549,678.00
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$
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45,806.50
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Initial Extension Years
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$
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565,845.00
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$
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47,153.75
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Final Extension Years
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See Section 2 above
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The foregoing rent calculations reflect the following base rental rates per square foot and square
footage on which Subtenant will occupy and pay base rent:
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Period
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Rental Rate
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Square Footage
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Year 1
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$
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32.00
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13,243
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(Phase 1 only)
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Year 2
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$
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33.00
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16,167
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Year 3
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$
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34.00
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16,167
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Initial Extension Years
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$
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35.00
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16,167
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Final Extension Years
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See Section 2 above
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16,167
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Rent and all other charges due hereunder shall be payable without demand, notice, set-off, or
counterclaim at Sublandlord’s address set forth below or at such other place as may be set forth by notice from Sublandlord to Subtenant. Any installment of rent due or accruing hereunder and any other sum, whether termed rent or otherwise, and
payable hereunder by Subtenant to Sublandlord, not paid within five (5) days from the date when due, shall bear interest from the due date at a rate equal to the prime rate published by the
Wall Street Journal
from time to time plus four
percent (4%).
6.
Additional Rent
. Subtenant agrees to pay to Sublandlord Subtenant’s proportionate share of any and all
additional rent payable by Sublandlord under the Prime Lease during the Sublease Term (other than any additional rents resulting from any default by Sublandlord under the Prime Lease, unless such default was caused by Subtenant or is related to a
default by Subtenant under this Sublease), including without limitation, common area operating expenses, taxes, water, HVAC, and other utilities and services provided to the Subleased Premises during the Sublease Term, at the same time and in the
same manner as provided under the Prime Lease. Subtenant’s proportionate share shall be based on 13,243 square feet commencing on the Commencement Date through Year 1 and 16,167 in Year 2 and Year 3 and during any Extension Years. Subtenant
shall also pay for the cost of all after-hours HVAC provided to the Subleased Premises during the Sublease Term as additional rent hereunder, in accordance with the terms of the Prime Lease.
7.
Utilities
. Subtenant acknowledges that the Subleased Premises are separately metered for electricity for plugs and lights. Subtenant shall pay
for all electricity consumption for plugs and lights associated with the Subleased Premises at the same time and in the same manner as provided under the Prime Lease, provided that during Year 1 Subtenant shall only pay eighty-two percent
(82%) of the electricity consumption for plugs and lights associated with the Subleased Premises. Sublandlord acknowledges and agrees that Subtenant may separately contract with a provider of Subtenant’s choice (which provider is
reasonably acceptable to Sublandlord) for telephone service and T-l cable service.
8.
Access
. Subtenant shall have access to the
Subleased Premises 24 hours per day, 7 days per week and 52 weeks per year, subject to the requirements of the Prime Lease and to causes beyond the reasonable control of Sublandlord.
9.
Signage
. Subject to the terms and provisions of the Prime Lease and Prime Landlord’s consent, Sublandlord shall provide, at
Sublandlord’s sole cost and expense, signage similar to other signage in the Building for Subtenant on the building directory and at the entryway to the Subleased Premises.
10.
Parking
. Subject to the terms and conditions of the Prime Lease, Subtenant shall pay for the non-exclusive use of nine (9) parking spaces
in the Building’s garage and nine (9) parking spaces in the Building’s surface lot at the rate charged under the Prime Lease, as such rate may change from time to time, at the same time and in the same manner as provided under the
Prime Lease.
-4-
11.
Personal Property Taxes
. Subtenant agrees to pay to local tax authorities and other
governmental agencies throughout the term of this Sublease all personal property taxes which may be levied against Subtenant’s merchandise, trade fixtures and other personal property in and about the Subleased Premises.
12.
Use
. Subtenant shall use the Subleased Premises solely as permitted under the Prime Lease.
13.
Prime Lease Terms and Conditions
. The terms and conditions of the Prime Lease are hereby incorporated by reference and made a part hereof,
meaning that, as applicable, references to “Tenant” therein shall be deemed to be “Subtenant” hereunder, references to “Landlord” therein shall be deemed to be “Sublandlord” hereunder, and such other terms
shall be deemed modified as may be appropriate in the given context, provided (i) Prime Landlord shall continue to have all rights set forth in the Prime Lease (notwithstanding the fact that Sublandlord shall also have the same rights under
this Sublease), and (ii) Sublandlord shall not be deemed to have assumed any of the obligations of Prime Landlord as a result of the incorporation of the Prime Lease. This Sublease and all of its terms, covenants, representations, warranties,
agreements and conditions are in all respects subject and subordinate to the Prime Lease. Subtenant agrees that in no event shall Prime Landlord be (a) liable for any act or omission of Sublandlord; (b) liable for the return of any
security deposit unless Prime Landlord is holding the same; (c) subject to any offsets or defenses which Subtenant may have against Sublandlord; or (d) bound by any rent or additional rent which Subtenant may have prepaid for more than ten
(10) days in advance of its due date under the Sublease.
14.
Subtenant Obligations Under Prime Lease
. Subtenant agrees to
perform, fulfill, and observe all of the covenants, agreements, obligations, conditions, representations, warranties, terms and provisions imposed upon Sublandlord as Tenant of the Subleased Premises under the Prime Lease arising from and after the
Commencement Date, except for rent, which shall be governed by this Sublease. Subtenant agrees to indemnify and hold Sublandlord harmless from and against any and all claims, liabilities, losses and damages of any kind whatsoever (including, without
limitation, attorneys’ fees and expenses) which Sublandlord may incur by reason of Subtenant’s failure to perform, fulfill or observe any of the covenants or agreements set forth herein or the applicable provisions set forth in the Prime
Lease. Sublandlord agrees to indemnify and hold Subtenant harmless from and against any and all claims, liabilities, losses and damages of any kind whatsoever (including, without limitation, attorneys fees and expenses) which Subtenant may incur by
reason of Sublandlord’s failure to pay rent when due under the Prime Lease, or any other default by Sublandlord under the Prime Lease, provided that Subtenant has timely paid to Sublandlord rent when due hereunder. The indemnification
obligations of each party shall survive the termination or expiration of this Sublease.
15.
Termination
. This Sublease shall
terminate upon the termination of the Prime Lease for any reason whatsoever, without any liability therefor on the part of Sublandlord to Subtenant (except as expressly set forth in Section 14 above), with the same force and effect as if the
date of such termination had been provided expressly in this Sublease as the Expiration Date.
-5-
16.
Compliance with Law
. Subtenant shall comply with all statutes, ordinances, rules, orders,
regulations or requirements, including environmental regulations applicable to its use of the Subleased Premises, and shall obtain all government permits and approvals required in connection with Subtenant’s activities in the Subleased
Premises.
17.
Insurance
. Prior to the Commencement Date, and at least twenty (20) days prior to the expiration thereof during
the Sublease Term, Subtenant shall provide to Sublandlord certificates which evidence the insurance coverages required under the Prime Lease, which insurance shall name both Prime Landlord and Sublandlord as additional insureds thereunder.
18.
Holding Over
. If Subtenant remains on the Subleased Premises after the Expiration Date or after any earlier termination provided
for herein, then such holding over shall not be deemed to extend or renew the term of this Sublease or to create any tenancy at will, but such holding over shall be as a tenancy-at-sufferance only subject to all the terms and provisions of this
Sublease; provided, however, Subtenant shall be liable for one hundred fifty percent (150%) of all rent and other charges related to occupancy of the Subleased Premises. In addition, Subtenant shall indemnify and hold harmless Sublandlord from
and against all liability, damages, losses and claims (including, without limitation, attorneys’ fees and expenses) incurred by Sublandlord in connection with the holding over of Subtenant including, without limitation, any liability of
Sublandlord to Prime Landlord. Notwithstanding the foregoing, Sublandlord may, at its option, regain possession of the Subleased Premises or any part thereof by any and all means available to Sublandlord under this Sublease, the Prime Lease, or at
law. The provisions of this Section 18 shall be superceded by any separate agreement between Prime Landlord and Subtenant under which Subtenant retains occupancy of the Subleased Premises from and after the Expiration Date, provided that
Sublandlord shall have no liability with respect to the Leased Premises from and after the Expiration Date.
19.
Brokerage
Representations
. Sublandlord and Subtenant each represent that it has not dealt with any broker in connection with this Sublease except GVA Thompson Doyle Hennessey & Stevens and CB Richard Ellis (the “Brokers”). Each party
hereby agrees to defend, indemnify and hold harmless the other party from and against any loss, cost or expense (including reasonable attorneys fees) incurred as a result of its breach of the foregoing representation. Sublandlord shall pay all fees
due to the Brokers in connection with both the initial term and any exercised extension period of this Sublease pursuant to a separate agreement.
20.
Assignment and Subletting
. Except for a Permitted Assignment as defined in Section 22(c) of the Prime Lease for which no consent shall be required, Subtenant shall not assign this Sublease or sub-sublease all or any part of
the Subleased Premises without the prior written consent of Sublandlord, not to be unreasonably withheld, conditioned or delayed, and the prior written consent of Prime Landlord, as provided in the Prime Lease. If Sublandlord consents to a
sub-sublease or assignment of this Sublease by Subtenant at a rent which, in either case, exceeds the rent payable hereunder by Subtenant, after deduction of Subtenant’s reasonable subleasing expenses, Sublandlord and Subtenant
-6-
shall share equally the amount of such excess allocated to Sublandlord under Section 22(e) of the Prime Lease.
21.
Prime Landlord’s Consent Contingency
. This Sublease is conditioned upon obtaining Prime Landlord’s written consent to this Sublease
in form and substance reasonably acceptable to Subtenant.
22.
Security Deposit
. Subtenant agrees to deliver to Sublandlord, upon the
execution and delivery of this Sublease, a security deposit in the amount of Eighty-Nine Thousand and 00/100 ($89,000.00) Dollars in the form of cash or an irrevocable, unconditional, absolutely “clean” letter of credit running to
Sublandlord as the sole beneficiary, which letter of credit shall in all ways be satisfactory to Sublandlord in its reasonable discretion (the “
Letter of Credit
”). If the security deposit shall be delivered in the form of cash,
within thirty (30) days after expiration or earlier termination of this Sublease, the portion of the security deposit not applied to cure any outstanding default of Subtenant hereunder shall be returned to Subtenant by Sublandlord without
interest. Sublandlord shall not be obligated to hold the security deposit in a segregated account nor shall interest accrue thereon. If the security deposit shall be delivered in the form of a letter of credit, the Letter of Credit shall have a
stated duration of and shall be effective for at least one (1) year with provision for automatic successive annual one-year extensions during the Sublease Term. Subtenant shall keep the Letter of Credit in force throughout the Sublease Term.
Subtenant shall deliver to Sublandlord a renewal Letter of Credit no later than thirty (30) days prior to the expiration date of any Letter of Credit issued under this paragraph, and if Subtenant fails to do so, Sublandlord may draw the entire
amount of the expiring Letter of Credit and hold the proceeds in cash as the security deposit. Any cash security deposit shall not be held by Sublandlord in a separate interest bearing account nor shall interest accrue or be payable thereon. The
Letter of Credit shall be issued by a financially sound major regional or national financial institution satisfactory to and approved by Sublandlord in its reasonable discretion. If the issuer of the Letter of Credit shall admit in writing its
inability to pay its debts generally as they become due, shall file a petition in bankruptcy or a petition to take advantage of any insolvency act, shall consent to the appointment of a receiver or conservator of itself or the whole or any
substantial part of its property, shall file a petition or answer seeking reorganization or arrangement under the United States Bankruptcy Code, shall have a receiver or conservator appointed or shall become subject to operational supervision by any
Federal or State regulatory authority, then Subtenant within thirty (30) days after written demand by Sublandlord shall obtain a replacement Letter of Credit from another financial institution satisfactory to Sublandlord, in its reasonable
judgment.
The security deposit is given as security for the faithful performance by Subtenant of all the terms, covenants and conditions of
this Sublease to be kept and performed by Subtenant, and not as an advance rental deposit or as a measure of Sublandlord’s damage in case of Subtenant’s default. If Subtenant defaults after the expiration of any applicable grace periods,
Sublandlord may draw upon the security deposit in whole or in part for the payment of any rent and/or any other sum in default, and/or for the payment of any amount which Sublandlord may spend or become obligated to spend by reason of such default,
and/or to compensate Sublandlord for any other loss or amount which
-7-
Sublandlord may suffer by reason of Subtenant’s default to which Sublandlord may be entitled under this Sublease. If any portion is so used, Subtenant
shall within five (5) business days after written demand therefor, increase the security deposit to the amount required hereunder, and Subtenant’s failure to do so shall be deemed to be a default under this Sublease. Sublandlord shall not
be required to indemnify itself from the security deposit, or any portion therefore with respect to any particular violation or default of the Subtenant, and the appropriation of such money from the security deposit shall be discretionary with
Sublandlord.
23.
Notices
. Any notice required hereunder shall be deemed to have been given when deposited with the U.S. Mail
(certified mail, postage prepaid, return receipt requested), when deposited with a recognized overnight courier, or when delivered in hand by a direct courier who obtains a receipt for such delivery. Such notices shall be sent to the following
addresses:
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If to Sublandlord:
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Infinity Pharmaceuticals, Inc.
780 Memorial
Drive
Cambridge, Massachusetts 02139
Attention: Mr. Joseph
McPherson
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With a copy to:
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Wilmer Cutler Pickering Hale and Dorr LLP
60 State
Street
Boston, Massachusetts 02109
Attention: Melvin R. Shuman,
Esq.
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If to Subtenant:
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Hydra Biosciences, Inc.
790 Memorial Drive
Cambridge, Massachusetts 02139
Attention: Matthew Gantz, President and
CEO
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With a copy to:
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MBV Law
855 Front Street
San Francisco, CA 94111
Attention: J. Michael Whisman
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Any party may change its address for notice by notifying the other parties as aforesaid.
-8-
24.
No Partnership
. Sublandlord shall not be held to be a partner, joint venturer, or associate of
Subtenant in the conduct of its business, it being expressly understood and agreed that the relationship between the parties hereto is and at all times shall remain that of Sublandlord and Subtenant.
25.
Entire Agreement
. All prior understandings and agreements between the parties are merged within this Sublease, which alone fully and completely
sets forth the understanding of the parties, and this Sublease may not be changed or terminated orally or in any manner other than by an agreement in writing and signed by the party against whom enforcement of the change or termination is sought.
26.
Binding Effect
. The covenants and agreements herein contained shall bind and inure to the benefit of Sublandlord and Subtenant
and their permitted successors and assigns.
27.
Governing Law
. The Sublease and all rights and remedies thereunder shall be governed
by the law of the Commonwealth of Massachusetts.
[Remainder of page intentionally left blank]
-9-
IN WITNESS WHEREOF the parties hereto set their hands and seals as of the day and year first above written.
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SUBLANDLORD:
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INFINITY PHARMACEUTICALS, INC.
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By:
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/s/ Steven H. Holtzman
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Name: Steven H. Holtzman
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Title: President & CEO
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SUBTENANT:
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HYDRA BIOSCIENCES, INC.
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By:
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/s/ Matthew Gantz
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Name: Matthew Gantz
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Title: President and CEO
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-10-
EXHIBIT A
SUBLEASED PREMISES
-11-
CONSENT TO SUBLEASE
This Consent to Sublease (this
“Consent”
) is made as of September 16, 2004, by
ARE-770/784/790 MEMORIAL DRIVE, LLC
, a Delaware limited liability company, having an address of 135 North Los
Robles Avenue, Suite 250, Pasadena, California 91101 (
“Landlord”
),
INFINITY PHARMACEUTICALS, INC.
, a Delaware corporation, having an address of 780 Memorial Drive, Cambridge, Massachusetts (
“Tenant”
)
,
and
HYDRA BIOSCIENCES, INC.
, a Delaware corporation, having an address at 790 Memorial Drive, Cambridge, Massachusetts (
“Sublessee”
) with reference to the following Recitals.
RECITALS
A.
Landlord
and Tenant entered into that certain Lease Agreement, dated July 2, 2002, as amended by a First Amendment to Lease dated March 25, 2003, a Second Amendment to Lease dated April 30, 2003, a Third Amendment to Lease dated
October 30, 2003 and a Fourth Amendment to Lease dated December 15, 2003 (as so amended, the
“Lease”
), wherein Landlord leased to Tenant certain premises (the
“Premises”
) commonly known as and located at
770 and 790 Memorial Drive, Cambridge, Massachusetts, and more particularly described in the Lease.
B.
Tenant desires to sublease
to Sublessee a portion of the Premises consisting of approximately 16,167 rentable square feet located on the third (3
rd
) floor of the portion of the Premises located at 790 Memorial Drive (the
“Subleased Premises”
) more particularly described in and pursuant to the provisions of that certain Sublease, dated as of August 24,
2004 (the
“Sublease”
), a copy of which is attached hereto as
Exhibit A
.
C.
Tenant desires to obtain
Landlord’s consent to the Sublease.
NOW, THEREFORE,
in consideration of the foregoing and the agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord hereby consents to the sublease of the Subleased Premises to Sublessee, such consent being subject to and upon the following terms and
conditions to which Tenant and Sublessee hereby agree:
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1.
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All initially capitalized terms not otherwise defined in this Consent shall have the meanings set forth in the Lease unless the context clearly indicates otherwise.
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2.
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This Consent shall not be effective and the Sublease shall not be valid unless and until Landlord shall have received: (a) a fully executed counterpart of the Sublease, and
(b) a fully executed counterpart of this Consent. Tenant and Sublessee each represent and warrant to Landlord that the copy of the Sublease attached hereto as Exhibit A is true, correct and complete in all material respects.
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3.
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Landlord’s consent set forth herein is subject to the following additional conditions:
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a.
|
Landlord shall have received and approved any drawings for any proposed alterations, additions or improvements to be made in connection with Sublessee’s occupancy of the
Subleased Premises (collectively,
“Subleased Improvements”
);
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b.
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Landlord shall have received and approved a Hazardous Materials List and all Documents relating to Sublessee’s proposed use of the Subleased Premises; and
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c.
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Tenant and Sublessee hereby acknowledge and agree that notwithstanding anything to the contrary contained in the Lease or the Sublease, Landlord shall have the right at the time
such improvements are approved by Landlord to require that the Sublease Improvements be removed at the expiration or earlier termination of the Lease at no cost or expense to Landlord and that the Subleased Premises be fully restored to their
condition prior to the installation of such Sublease Improvements with all damage occasioned by such removal being fully repaired, reasonable wear and tear excepted.
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4.
|
Landlord neither approves nor disapproves the terms, conditions and agreements contained in the Sublease, all of which shall be subordinate and at all times subject to: (a) all
of the covenants, agreements, terms, provisions and conditions contained in the Lease, (b) superior ground leases, mortgages, deeds of trust, or any other hypothecation or security now existing or hereafter placed upon the real property of
which the Premises are a part and to any and all advances secured thereby and to all renewals, modifications, consolidations, replacements and extensions thereof, and (c) all matters of record affecting the Premises and all laws, ordinances and
regulations now or hereafter affecting the Premises.
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5.
|
Nothing contained herein or in the Sublease shall be construed to:
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a.
|
modify, waive, impair, or affect any of the terms, covenants or conditions contained in the Lease (including Tenant’s obligation to obtain any required consents for any other
or future sublettings), or to waive any breach thereof, or any rights or remedies of Landlord under the Lease against any person, firm, association or corporation liable for the performance thereof, or to enlarge or increase Landlord’s
obligations or liabilities under the Lease (including, without limitation, any liability to Sublessee for any portion of the security deposit held by Tenant under the Sublease), and all terms, covenants and conditions of the Lease are hereby
declared by each of Landlord and Tenant to be in full force and effect.
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b.
|
require Landlord to accept any payments from Sublessee on behalf of Tenant, except as expressly provided in Section 8 hereof.
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Tenant shall remain liable and responsible for the due keeping, performance and observance of all the terms, covenants and conditions set forth in the
Lease on the part of the Tenant to be kept, performed and observed and for the payment of the annual rent, additional rent and all other sums now and hereafter becoming payable thereunder for all of the Premises, including, without limitation, the
Subleased Premises.
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6.
|
Notwithstanding anything in the Sublease to the contrary:
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a.
|
As among Landlord, Tenant and Sublessee, Sublessee does hereby expressly assume and agree to be bound by and to perform and comply with, for the benefit of
Landlord, each and every obligation of Tenant under the Lease to the extent applicable to the Subleased Premises to the extent such obligation is
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2
|
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[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
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incorporated into the Sublease. With respect to the foregoing sentence, as between Tenant and Sublessee, the provisions of the Sublease shall control.
Landlord and Sublessee each hereby release the other, and waive their respective rights of recovery against the other for direct or consequential loss or damage arising out of or incident to the perils covered by property insurance carried by such
party to the extent of such insurance and waive any right of subrogation which might otherwise exist in or accrue to any person on account thereof.
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b.
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Tenant and Sublessee agree to each of the terms and conditions of this Consent, and, as among Landlord, Tenant and Sublessee, upon any conflict between the terms of the Sublease and
this Consent, the terms of this Consent shall control. As between Tenant and Sublessee, upon any conflict between the terms of the Sublease and this Consent, the terms of the Sublease shall control.
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c.
|
The Sublease shall be deemed and agreed to be a sublease only and not an assignment and there shall be no further subletting or assignment of all or any portion of the Premises
demised under the Lease (including the Subleased Premises demised by the Sublease) except in accordance with the terms and conditions of the Lease.
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d.
|
If Landlord terminates the Lease as a result of a default by Tenant thereunder or the Lease terminates for any other reason, the Sublease shall automatically terminate concurrently
therewith;
provided
,
however
, if Landlord elects, in its sole and absolute discretion and without obligation, exercisable by giving written notice to Sublessee within 7 days of such termination (a
“Reinstatement
Notice”
), to reinstate the Sublease and Sublessee consents to such attornment in writing within 5 days of receipt of the Reinstatement Notice, then Sublessee shall attorn to Landlord, in which case the Sublease shall become and be deemed to
be a direct lease between Landlord and Sublessee. If Landlord exercises the option provided under this section, Landlord shall undertake the obligations of Tenant under the Sublease from the time of the Reinstatement Notice through the expiration or
earlier termination of the Sublease, but Landlord shall not (a) be liable for more than 1 month’s rent or any security deposit paid by Sublessee (except to the extent actually delivered to Landlord), (b) be liable for any prior
act or omission of Tenant under the Lease prior to the Reinstatement Notice or for any other defaults of Tenant under the Sublease prior to the Reinstatement Notice, (c) be subject to any defenses or offsets previously accrued which Sublessee
may have against Tenant for any period prior to the Reinstatement Notice, or (d) be bound by any changes or modifications made to the Sublease without the prior written consent of Landlord.
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e.
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Tenant and Sublessee acknowledge and agree that if Tenant or Landlord elects to terminate the Lease pursuant to the terms thereof, or if Landlord and Tenant voluntarily elect to
terminate the Lease, Landlord shall have no responsibility, liability or obligation to Sublessee, and the Sublease shall terminate unless reinstated in Landlord’s sole and absolute discretion as expressly provided in
Section 6(d)
above. With respect to the foregoing sentence, as between Tenant and Sublessee, the provisions of the Sublease shall control.
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3
|
|
[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
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f.
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Tenant agrees to reimburse all of Landlord’s costs and expenses in connection with this Consent.
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7.
|
As between Landlord and Tenant, any act or omission of Sublessee or anyone claiming under or through Sublessee that violates any of the provisions of the Lease shall be deemed a
violation of the Lease by Tenant. As between Tenant and Sublessee, with respect to the foregoing sentence, the terms and conditions of the Sublease shall control.
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8.
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Upon a default by Tenant under the Lease, Landlord may proceed directly against Tenant, any guarantors or anyone else liable under the Lease or the Sublease without first exhausting
Landlord’s remedies against any other person or entity liable thereon to Landlord. If Landlord gives Sublessee notice that Tenant is in default under the Lease, Sublessee shall thereafter make directly to Landlord all payments otherwise due
Tenant, which payments will be received by Landlord without any liability to Landlord except to credit such payments against amounts due under the Lease. The mention in this Consent of any particular remedy shall not preclude Landlord from any other
remedy in law or in equity. Landlord and Tenant agree that Sublessee may rely on such notice from Landlord without liability to Sublessee.
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9.
|
Tenant shall pay any broker commissions or fees that may be payable as a result of the Sublease and Tenant hereby indemnifies and agrees to hold Landlord harmless from and against
any loss or liability arising therefrom or from any other commissions or fees payable in connection with the Sublease which result from the actions of Tenant. Sublessee hereby indemnifies and agrees to hold Landlord harmless from and against any
loss or liability arising from any commissions or fees payable in connection with the Sublease which result from the actions of Sublessee.
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10.
|
Tenant and Sublessee agree that Landlord shall not be bound by any amendments or modifications made to the Sublease without the prior written consent of Landlord. If Tenant and
Sublessee request Landlord’s consent to any amendment or modification of the Sublease, such consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Tenant and Sublessee hereby agree that it shall be reasonable for
Landlord to withhold its consent (and Tenant and Sublessee agree that they shall not agree) to any modification or amendment of the Sublease which would change the permitted use of the Subleased Premises or which would affect Landlord’s status
as a real estate investment trust. Any modification or amendment of the Sublease which would change the permitted use of the Subleased Premises or purport to amend the terms of this Consent, or which would affect Landlord’s status as a real
estate investment trust shall be void and of no force or effect. Tenant shall provide a copy of any and all amendments or modifications to the Sublease to Landlord, whether or not Tenant has requested Landlord’s consent to such amendment or
modification.
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11.
|
This Consent may not be changed orally, but only by an agreement in writing signed by Landlord and the party against whom enforcement of any change is sought.
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12.
|
This Consent may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute but one and the same
instrument.
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4
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|
[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
|
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13.
|
This Consent and the legal relations between the parties hereto shall be governed by and construed and enforced in accordance with the internal laws of the State in which the
Project is located, without regard to its principles of conflicts of law.
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IN WITNESS WHEREOF,
Landlord, Tenant and
Sublessee have caused their duly authorized representatives to execute this Consent as of the date first above written.
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LANDLORD:
|
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ARE-770/784/790 MEMORIAL DRIVE, LLC,
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a Delaware limited liability company
|
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By:
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Alexandria Real Estate Equities, L.P.,
a Delaware limited partnership,
managing member
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By:
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ARE-QRS Corp., a Maryland corporation,
general partner
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By:
|
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/s/ Jennifer Pappas
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Name:
|
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Jennifer Pappas
|
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Title:
|
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V.P. & Assistant Secretary
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TENANT:
|
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INFINITY PHARMACEUTICALS, INC.,
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a Delaware corporation
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By:
|
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/s/ Steven H. Holtzman
|
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Name:
|
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Steven H. Holtzman
|
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Title:
|
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President & CEO
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SUBLESSEE:
|
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HYDRA BIOSCIENCES, INC.,
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a Delaware corporation
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By:
|
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/s/ Matthew Gantz
|
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|
Name:
|
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Matthew Gantz
|
|
|
|
|
|
|
|
Title:
|
|
President & CEO
|
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5
|
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[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
|
EXHIBIT A
COPY OF SUBLEASE
SEE ATTACHED
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6
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[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
|
FIRST AMENDMENT TO SUBLEASE
THIS FIRST AMENDMENT TO SUBLEASE (“
Amendment
”) is made as of the 17
th
day of October, 2005
,
by and between
INFINITY PHARMACEUTICALS, INC.
(“
Sublandlord
”), a Delaware corporation, and
HYDRA BIOSCIENCES, INC.
(“
Subtenant
”), a Delaware corporation.
WITNESSETH:
WHEREAS, Sublandlord and Subtenant are parties to that certain Sublease dated August 24, 2004 (the “
Sublease
”) pursuant to which
Subtenant subleased from Sublandlord certain premises containing approximately 16,167 rentable square feet of space (the “
Subleased Premises
”) located on the third (3
rd
) floor of the building located at 790 Memorial Drive, Cambridge, Massachusetts, all as more particularly described in the Sublease; and
WHEREAS, Sublandlord and Subtenant have agreed to postpone the delivery of Phase 2 of the Subleased Premises on the terms and conditions set forth
herein.
NOW THEREFORE, for good and valuable consideration, and in consideration of the covenants and agreements herein contained, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.
Defined Terms
. Capitalized
terms not defined herein shall have the meanings ascribed to them in the Sublease.
2.
Phase 2
. Section 1 of the Sublease is
hereby amended by deleting “Phase 2 of the Subleased Premises shall be delivered to Subtenant on December 1, 2005, provided, however, that Sublandlord agrees to grant Subtenant early access to Phase 2 of the Subleased Premises commencing
on October 1, 2005 in the event that Phase 2 of the Subleased Premises is vacant as of October 1, 2005” and substituting therefor the following:
“Phase 2 of the Subleased Premises shall be delivered to Subtenant on February 1, 2006, provided, however, that Sublandlord agrees to grant Subtenant early access to Phase 2 of the Subleased Premises before
February 1, 2006 in the event that Phase 2 of the Subleased Premises is vacant before February 1, 2006”
3.
Rent
. The
Sublease is hereby amended by deleting the text of Section 5 in its entirety and substituting therefor the following:
“The annual
base rent per year, drawn on a U.S. bank, payable in advance in equal monthly installments, commencing on January 1, 2005 (the “Rent Commencement Date”), and thereafter on the first day of each calendar month in advance, prorated for
any partial month at the beginning or end of the Sublease Term, shall be paid and lease years shall be defined as follows:
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Period
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Annual Rent Rate
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Monthly
Rent
|
|
Year 1 (1/1/05-11/30/05)
|
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$
|
423,776.00
|
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$
|
35,314.67
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Year 2A (12/1/05-1/31/06)
|
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$
|
437,019.00
|
|
$
|
36,418.25
|
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Year 2B (2/1/06-11/30/06)
|
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$
|
533,511.00
|
|
$
|
44,459.25
|
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Year 3 (12/1/06-11/30/07)
|
|
$
|
549,678.00
|
|
$
|
45,806.50
|
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Initial Extension Years
|
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$
|
565,845.00
|
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$
|
47,153.75
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Final Extension Years
|
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See Section 2 above
|
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The foregoing rent calculations reflect the following base rental rates per square foot and square
footage on which Subtenant will occupy and pay base rent:
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Period
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Rental Rate
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Square Footage
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Year 1
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$32.00
|
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13,243
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(Phase 1 only)
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Year 2A
|
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$33.00
|
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13,243
|
(Phase 1 only)
|
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Year 2B
|
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$33.00
|
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16,167
|
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Year 3
|
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$34.00
|
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16,167
|
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|
Initial Extension Years
|
|
$35.00
|
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16,167
|
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|
Final Extension Years
|
|
See Section 2 above
|
|
16,167
|
|
Rent and all other charges due hereunder shall be payable without demand, notice, set-off, or
counterclaim at Sublandlord’s address set forth below or at such other place as may be set forth by notice from Sublandlord to Subtenant. Any installment of rent due or accruing hereunder and any other sum, whether termed rent or otherwise, and
payable hereunder by Subtenant to Sublandlord, not paid within five (5) days from the date when due, shall bear interest from the due date at a rate equal to the prime rate published by the Wall Street Journal from time to time plus four
percent (4%).”
4.
Additional Rent
. Section 6 of the Sublease is hereby amended by deleting “Subtenant’s
proportionate share shall be based on 13,243 square feet commencing on the Commencement Date through Year 1 and 16,167 in Year 2 and Year 3 and during any Extension Years” and substituting therefor the following: “Subtenant’s
proportionate share shall be based on 13,243 square feet commencing on the Commencement Date through Year 2A and 16,167 in Year 2B and Year 3 and during any Extension Years.”
5.
Brokerage Representations
. Sublandlord and Subtenant each represent that said party has not been represented by, retained or employed any
broker in connection with this Amendment. Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any loss, cost or expense (including reasonable attorneys fees) incurred as a result of its breach of the
foregoing representation.
6.
Ratification
. Except as herein amended, the Sublease shall remain in full force and effect in
accordance with its terms.
7.
Counterparts
. This Amendment may be executed in one or more identical counterparts, each of
which shall be deemed an original but all of which together will constitute one and the same instrument.
[End of text on page]
IN WITNESS WHEREOF the parties hereto set their hands and seals as of the day and year first above
written.
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SUBLANDLORD:
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INFINITY PHARMACEUTICALS, INC.
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By:
|
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/s/ Thomas J. Burke
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|
Name:
|
|
Thomas J. Burke
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Title:
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Controller
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SUBTENANT:
|
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HYDRA BIOSCIENCES, INC.
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By:
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/s/ David Neafus
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Name:
|
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David Neafus
|
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Title:
|
|
CFO
|
P&D Revisions
9/14/04
CONSENT TO AMENDMENT TO SUBLEASE
This Consent to Amendment to Sublease (this
“Consent”
) is made as of October 31, 2005, by
ARE-770/784/790 MEMORIAL DRIVE,
LLC
,
a Delaware limited liability company, having an address of 135 North Los Robles Avenue, Suite 250, Pasadena, California 91101 (
“Landlord”
),
INFINITY PHARMACEUTICALS, INC.
, a Delaware corporation, having an
address of 780 Memorial Drive, Cambridge, Massachusetts (
“Tenant”
), and
HYDRA BIOSCIENCES, INC.
, a Delaware corporation, having an address at 790 Memorial Drive, Cambridge, Massachusetts (
“Sublessee”
) with
reference to the following Recitals.
R E C I T A L S
A.
Landlord and Tenant entered into that certain Lease Agreement, dated July 2, 2002, as amended by a
First Amendment to Lease dated March 25, 2003, a Second Amendment to Lease dated April 30, 2003, a Third Amendment to Lease dated October 30, 2003 and a Fourth Amendment to Lease dated December 15, 2003 (as so amended, the
“Lease”
),
wherein Landlord leased to Tenant certain premises (the
“Premises”
) commonly known as and located at 770 and 790 Memorial Drive, Cambridge, Massachusetts, and more particularly described in the Lease.
B.
Tenant and Sublessee entered into that certain Sublease, dated as of August 24, 2004 (the
“Original
Sublease”
), pursuant to which Tenant subleased a portion of the Premises to Sublessee as more particularly described therein. Landlord consented to the Original Sublease pursuant to that certain Consent to Sublease dated as of September 16,
2004 (the
“Original Consent”
).
B.
Tenant and Sublessee desire to amend the Original
Sublease to postpone the delivery of Phase 2 of the Subleased Premises (as defined in the Original Sublease) to Sublessee, as more particularly described in and pursuant to the provisions of that certain First Amendment to Sublease, dated as of
October 17, 2005 (the
“Amendment to Sublease”
and, together with the Original Sublease, the
“Sublease”
), a copy of which is attached hereto as
Exhibit A
.
D.
Tenant desires to obtain Landlord’s consent to the Amendment to Sublease.
NOW, THEREFORE
, in consideration of the foregoing and the agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord hereby consents to the amendment of the Original Sublease, as more particularly described in and pursuant to the provisions of the
Amendment to Sublease, such consent being subject to and upon the following terms and conditions to which Tenant and Sublessee hereby agree:
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1.
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All initially capitalized terms not otherwise defined in this Consent shall have the meanings set forth in the Lease unless the context clearly indicates otherwise.
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2.
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This Consent shall not be effective and the Amendment to Sublease shall not be valid unless and until Landlord shall have received: (a) a fully executed counterpart of the Amendment
to Sublease, and (b) a fully executed counterpart of this Consent. Tenant and Sublessee each represent and warrant to Landlord that the copy of the Amendment to Sublease attached hereto as
Exhibit A
is true, correct and complete in all
material respects.
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3.
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Landlord neither approves nor disapproves the terms, conditions and agreements contained in the Amendment to Sublease, all of which shall be subordinate and at all times subject to:
(a) all of the covenants, agreements, terms, provisions and conditions contained in the Lease, (b) superior ground leases, mortgages, deeds of trust, or any other hypothecation or security now existing or hereafter placed upon the real property of
which the Premises are a part and to any and all advances secured thereby and to all renewals, modifications, consolidations, replacements and extensions thereof, and (c) all matters of record affecting the Premises and all laws, ordinances and
regulations now or hereafter affecting the Premises.
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4.
|
Nothing contained herein or in the Amendment to Sublease shall be construed to:
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a.
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modify, waive, impair, or affect any of the terms, covenants or conditions contained in the Lease (including Tenant’s obligation to obtain any required consents for any other
or future sublettings), or to waive any breach thereof, or any rights or remedies of Landlord under the Lease against any person, firm, association or corporation liable for the performance thereof, or to enlarge or increase Landlord’s
obligations or liabilities under the Lease (including, without limitation, any liability to Sublessee for any portion of the security deposit held by Tenant under the Sublease), and all terms, covenants and conditions of the Lease are hereby
declared by each of Landlord and Tenant to be in full force and effect; or
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b.
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require Landlord to accept any payments from Sublessee on behalf of Tenant, except as expressly provided in Section 8 of the Original Consent.
|
Tenant shall remain liable and responsible for the due keeping, performance and observance of all the terms, covenants and conditions set forth in the
Lease on the part of the Tenant to be kept, performed and observed and for the payment of the annual rent, additional rent and all other sums now and hereafter becoming payable thereunder for all of the Premises, including, without limitation, the
Subleased Premises.
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5.
|
Tenant and Sublessee agree that Landlord shall not be bound by any further amendments or modifications made to the Sublease without the prior written consent of Landlord. If Tenant
and Sublessee request Landlord’s consent to any amendment or modification of the Sublease, such consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Tenant and Sublessee hereby agree that it shall be reasonable
for Landlord to withhold its consent (and Tenant and Sublessee agree that they shall not agree) to any modification or amendment of the Sublease which would change the permitted use of the Subleased Premises or which would affect Landlord’s
status as a real estate investment trust. Any modification or amendment of the Sublease which would change the permitted use of the Subleased Premises or purport to amend the terms of this Consent, or which would affect Landlord’s status as a
real estate investment trust shall be void and of no force or effect. Tenant shall provide a copy of any and all amendments or modifications to the Sublease to Landlord, whether or not Tenant has requested Landlord’s consent to such amendment
or modification.
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6.
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Except as herein amended, the Original Consent shall remain in full force and effect in accordance with its terms.
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2
|
|
[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
|
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7.
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This Consent may not be changed orally, but only by an agreement in writing signed by Landlord and the party against whom enforcement of any change is sought.
|
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8.
|
This Consent may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute but one and the same
instrument.
|
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9.
|
This Consent and the legal relations between the parties hereto shall be governed by and construed and enforced in accordance with the internal laws of the State in which the
Project is located, without regard to its principles of conflicts of law.
|
IN WITNESS WHEREOF
, Landlord, Tenant and
Sublessee have caused their duly authorized representatives to execute this Consent as of the date first above written.
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LANDLORD:
|
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ARE-770/784/790 MEMORIAL DRIVE, LLC,
a Delaware limited liability company
|
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|
|
|
|
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By:
|
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Alexandria Real Estate Equities, L.P.,
a Delaware
limited partnership,
managing member
|
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|
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By:
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ARE-QRS Corp.,
a Maryland
corporation,
general partner
|
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B
Y
:
|
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/
S
/ J
ENNIFER
P
APPAS
|
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Name:
|
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Jennifer Pappas
|
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Title:
|
|
V.P. & Assistant Secretary
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TENANT:
|
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INFINITY PHARMACEUTICALS, INC.,
a Delaware corporation
|
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|
|
|
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|
|
|
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By:
|
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/
S
/ T
HOMAS
J.
B
URKE
|
|
|
|
|
|
|
|
Name:
|
|
Thomas J. Burke
|
|
|
|
|
|
|
|
Title:
|
|
Controller
|
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|
|
|
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|
|
|
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|
SUBLESSEE:
|
|
|
|
HYDRA BIOSCIENCES, INC.,
a Delaware
corporation
|
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|
|
|
|
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|
|
|
|
By:
|
|
/
S
/ D
AVID
N
EAFUS
|
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|
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|
|
|
Name:
|
|
David Neafus
|
|
|
|
|
|
|
|
Title:
|
|
CFO
|
|
|
|
|
|
|
|
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3
|
|
[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
|
EXHIBIT A
COPY OF AMENDMENT TO SUBLEASE
SEE ATTACHED
|
|
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|
|
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4
|
|
[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
|
SECOND AMENDMENT TO SUBLEASE
THIS SECOND AMENDMENT TO SUBLEASE (“
Amendment
”) is made as of the 9th day of January, 2006, by and between
INFINITY PHARMACEUTICALS,
INC.
(“
Sublandlord
”), a Delaware corporation, and
HYDRA BIOSCIENCES, INC.
(“
Subtenant
”), a Delaware corporation.
WITNESSETH:
WHEREAS, Sublandlord and Subtenant are parties to that certain Sublease dated August 24,
2004, as amended by that certain First Amendment to Sublease dated as of October 17, 2005 (as amended, the “
Sublease
”) pursuant to which Subtenant subleased from Sublandlord certain premises containing approximately 16,167
rentable square feet of space (the “
Subleased Premises
”) located on the third (3
rd
) floor of
the building located at 790 Memorial Drive, Cambridge, Massachusetts, all as more particularly described in the Sublease; and
WHEREAS,
Sublandlord and Subtenant have agreed to postpone the delivery of Phase 2 of the Subleased Premises on the terms and conditions set forth herein, subject to the condition precedent of Sublandlord’s obtaining Prime Landlord’s written
consent hereto.
NOW THEREFORE, for good and valuable consideration, and in consideration of the covenants and agreements herein contained,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.
Defined Terms
.
Capitalized terms not defined herein shall have the meanings ascribed to them in the Sublease.
2.
Phase 2
. Section 1 of the
Sublease is hereby amended by deleting “Phase 2 of the Subleased Premises shall be delivered to Subtenant on February 1, 2006, provided, however, that Sublandlord agrees to grant Subtenant early access to Phase 2 of the Subleased Premises
before February 1, 2006 in the event that Phase 2 of the Subleased Premises is vacant before February 1, 2006” and substituting therefor the following:
“Phase 2 of the Subleased Premises shall be delivered to Subtenant on April 1, 2006, provided, however, that Sublandlord agrees to grant Subtenant early access to Phase 2 of the Subleased Premises before
April 1, 2006 in the event that Phase 2 of the Subleased Premises is vacant before April 1, 2006”
3.
Rent
. The
Sublease is hereby amended by deleting the text of Section 5 in its entirety and substituting therefor the following:
“The annual
base rent per year, drawn on a U.S. bank, payable in advance in equal monthly installments, commencing on January 1, 2005 (the “Rent Commencement Date”), and thereafter on the first day of each calendar month in advance, prorated for
any partial month at the beginning or end of the Sublease Term, shall be paid and lease years shall be defined as follows:
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Period
|
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Annual Rent Rate
|
|
Monthly Rent
|
|
Year 1(1/1/05-11/30/05)
|
|
$
|
423,776.00
|
|
$
|
35,314.67
|
|
Year 2A (12/1/05-3/31/06)
|
|
$
|
437,019.00
|
|
$
|
36,418.25
|
|
Year 2B (4/1/06-11/30/06)
|
|
$
|
533,511.00
|
|
$
|
44,459.25
|
|
Year 3 (12/1/06-11/30/07)
|
|
$
|
549,678.00
|
|
$
|
45,806.50
|
|
|
|
|
|
Initial Extension Years
|
|
$
|
565,845.00
|
|
$
|
47,153.75
|
|
Final Extension Years
|
|
|
See Section 2 above
|
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|
|
The foregoing rent calculations reflect the following base rental rates per square foot and square
footage on which Subtenant will occupy and pay base rent:
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|
|
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Period
|
|
Rental Rate
|
|
Square Footage
|
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Year l
|
|
$32.00
|
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13,243 (Phase 1 only)
|
|
Year 2A
|
|
$33.00
|
|
13,243 (Phase 1 only)
|
|
Year 2B
|
|
$33.00
|
|
16,167
|
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Year 3
|
|
$34.00
|
|
16,167
|
|
|
|
|
|
Initial Extension Years
|
|
$35.00
|
|
16,167
|
|
Final Extension Years
|
|
See Section 2 above
|
|
16,167
|
Rent and all other charges due hereunder shall be payable without demand, notice, set-off, or
counterclaim at Sublandlord’s address set forth below or at such other place as may be set forth by notice from Sublandlord to Subtenant. Any installment of rent due or accruing hereunder and any other sum, whether termed rent or otherwise, and
payable hereunder by Subtenant to Sublandlord, not paid within five (5) days from the date when due, shall bear interest from the due date at a rate equal to the prime rate published by the Wall Street Journal from time to time plus four
percent (4%).”
4.
Brokerage Representations
. Sublandlord and Subtenant each represent that said party has not been represented
by, retained or employed any broker in connection with this Amendment. Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any loss, cost or expense (including reasonable attorneys fees) incurred as a
result of its breach of the foregoing representation.
5.
Ratification
. Except as herein amended, the Sublease shall remain in full
force and effect in accordance with its terms.
6.
Counterparts
. This Amendment may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
[End of text
on page]
IN WITNESS WHEREOF the parties hereto set their hands and seals as of the day and year first above
written.
|
|
|
|
|
SUBLANDLORD:
|
|
|
|
INFINITY PHARMACEUTICALS, INC.
|
|
|
|
|
By:
|
|
/s/ Thomas J. Burke
|
|
Name:
|
|
Thomas J. Burke
|
|
Title:
|
|
Controller
|
|
|
|
SUBTENANT:
|
|
|
|
HYDRA BIOSCIENCES, INC.
|
|
|
|
|
By:
|
|
/s/ David Neafus
|
|
Name:
|
|
David Neafus
|
|
Title:
|
|
CFO
|
CONSENT TO AMENDMENT TO SUBLEASE
This Consent to Amendment to Sublease (this
“Consent”
) is made as of January 26, 2006, by
ARE-770/784/790 MEMORIAL DRIVE,
LLC
, a Delaware limited liability company, having an address of 385 East Colorado Boulevard, Suite 299, Pasadena, California 91101 (
“Landlord”
),
INFINITY PHARMACEUTICALS, INC
., a Delaware corporation, having an address of
780 Memorial Drive, Cambridge, Massachusetts (
“Tenant”
), and
HYDRA BIOSCIENCES, INC
., a Delaware corporation, having an address at 790 Memorial Drive, Cambridge, Massachusetts (
“Sublessee”
) with reference to
the following Recitals.
RECITALS
A.
Landlord and Tenant entered into that certain Lease Agreement, dated July 2, 2002, as amended by a First Amendment to Lease dated March 25, 2003, a Second Amendment to Lease dated April 30,
2003, a Third Amendment to Lease dated October 30, 2003 and a Fourth Amendment to Lease dated December 15, 2003 (as so amended, the
“Lease”
), wherein Landlord leased to Tenant certain premises (the
“Premises”
) commonly known as and located at 770 and 790 Memorial Drive, Cambridge, Massachusetts, and more particularly described in the Lease.
B
. Tenant leased to Sublessee approximately 16,167 rentable square feet of the Premises more particularly described in and pursuant to the provisions of that certain Sublease Agreement dated as of
August 24, 2004, as previously amended by that certain First Amendment to Sublease dated October 17, 2005 (as so amended, the
“Original Sublease”
). Landlord consented to the Original Sublease pursuant to that certain
Consent to Sublease dated as of December 1, 2004, and that certain Consent to Sublease dated as of October 31, 2005 (collectively, the
“Original Consent”
).
C.
Tenant and Sublessee desire to amend the Original Sublease to postpone the delivery of Phase 2 of the Subleased Premises (as defined in the
Original Sublease) to Sublessee, as more particularly described in and pursuant to the provisions of that certain Second Amendment to Sublease, dated as of January 9, 2006 (the
“Second Amendment to Sublease”
), a copy of which
is attached hereto as
Exhibit A
. The Original Sublease, as amended by this Second Amendment to Sublease, is hereinafter referred to as the
“Sublease”
.
D
. Tenant desires to obtain Landlord’s consent to the Second Amendment to Sublease.
NOW, THEREFORE
, in consideration of the foregoing and the agreements contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord hereby consents to the amendment of the Original Sublease, as more particularly described in and pursuant to the provisions of the Second Amendment to Sublease, such consent being subject to
and upon the following terms and conditions to which Tenant and Sublessee hereby agree:
|
1.
|
All initially capitalized terms not otherwise defined in this Consent shall have the meanings set forth in the Lease unless the context clearly indicates otherwise.
|
|
2.
|
This Consent shall not be effective and the Second Amendment to Sublease shall not be valid unless and until Landlord shall have received: (a) a fully executed
counterpart of the Second Amendment to Sublease, and (b) a fully executed counterpart of this
|
|
|
Consent. Tenant and Sublessee each represent and warrant to Landlord that the copy of the Second Amendment to Sublease attached hereto as
Exhibit A
is
true, correct and complete in all material respects.
|
|
3.
|
Landlord neither approves nor disapproves the terms, conditions and agreements contained in the Second Amendment to Sublease, all of which shall be subordinate and at all times
subject to: (a) all of the covenants, agreements, terms, provisions and conditions contained in the Lease, (b) superior ground leases, mortgages, deeds of trust, or any other hypothecation or security now existing or hereafter placed upon
the real property of which the Premises are a part and to any and all advances secured thereby and to all renewals, modifications, consolidations, replacements and extensions thereof, and (c) all matters of record affecting the Premises and all
laws, ordinances and regulations now or hereafter affecting the Premises.
|
|
4.
|
Nothing contained herein or in the Second Amendment to Sublease shall be construed to:
|
|
|
a.
|
modify, waive, impair, or affect any of the terms, covenants or conditions contained in the Lease (including Tenant’s obligation to obtain any required consents for any other
or future sublettings), or to waive any breach thereof, or any rights or remedies of Landlord under the Lease against any person, firm, association or corporation liable for the performance thereof, or to enlarge or increase Landlord’s
obligations or liabilities under the Lease (including, without limitation, any liability to Sublessee for any portion of the security deposit held by Tenant under the Sublease), and all terms, covenants and conditions of the Lease are hereby
declared by each of Landlord and Tenant to be in full force and effect; or
|
|
|
b.
|
require Landlord to accept any payments from Sublessee on behalf of Tenant, except as expressly provided in Section 8 of the Original Consent.
|
Tenant shall remain liable and responsible for the due keeping, performance and observance of all the terms, covenants and conditions set forth in the
Lease on the part of the Tenant to be kept, performed and observed and for the payment of the annual rent, additional rent and all other sums now and hereafter becoming payable thereunder for all of the Premises, including, without limitation, the
Subleased Premises.
|
5.
|
Tenant and Sublessee agree that the Sublease will not be further modified or amended in any way without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Tenant and Sublessee hereby agree that it shall be reasonable for Landlord to withhold its consent to any modification or amendment of the Sublease which would change the permitted use of the Subleased Premises or
which would affect Landlord’s status as a real estate investment trust. Any further modification or amendment of the Sublease without Landlord’s prior written consent shall be void and of no force or effect.
|
|
6.
|
Except as herein amended, the Original Consent shall remain in full force and effect in accordance with its terms.
|
|
7.
|
This Consent may not be changed orally, but only by an agreement in writing signed by Landlord and the party against whom enforcement of any change is sought.
|
|
|
|
|
|
|
|
|
|
2
|
|
[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
|
|
8.
|
This Consent may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute but one and the same
instrument.
|
|
9.
|
This Consent and the legal relations between the parties hereto shall be governed by and construed and enforced in accordance with the internal laws of the State in which the
Project is located, without regard to its principles of conflicts of law.
|
IN WITNESS WHEREOF
, Landlord, Tenant and
Sublessee have caused their duly authorized representatives to execute this Consent as of the date first above written.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LANDLORD:
|
|
|
|
ARE-770/784/790 MEMORIAL DRIVE, LLC,
a Delaware limited liability company
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Alexandria Real Estate Equities, L.P.,
a Delaware limited partnership,
managing member
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
ARE-QRS Corp.,
a Maryland corporation,
general partner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jennifer Pappas
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Jennifer Pappas
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
V.P. & Assistant Secretary
|
|
|
|
|
|
|
|
|
|
|
|
TENANT:
|
|
|
|
INFINITY PHARMACEUTICALS, INC.,
a Delaware corporation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Thomas J. Burke
|
|
|
|
|
|
|
|
Name:
|
|
Thomas J. Burke
|
|
|
|
|
|
|
|
Title:
|
|
Controller
|
|
|
|
|
|
|
|
|
|
|
|
SUBLESSEE:
|
|
|
|
HYDRA BIOSCIENCES, INC.,
a Delaware corporation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ David Neafus
|
|
|
|
|
|
|
|
Name:
|
|
David Neafus
|
|
|
|
|
|
|
|
Title:
|
|
CFO
|
|
|
|
|
|
|
|
|
|
3
|
|
[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
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EXHIBIT A
COPY OF SECOND AMENDMENT TO SUBLEASE
SEE ATTACHED
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[790 Memorial Drive, Cambridge]
[Infinity/Hydra Biosciences]
©
Alexandria Real Estate Equities, Inc. 1999
CONFIDENTIAL-DO NOT COPY
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Exhibit 99.1
Infinity Pharmaceuticals Announces Completion of Merger with Discovery Partners International
Conference Call Scheduled for 8:30 a.m. EDT (5:30 a.m. PDT) Thursday, September 14, 2006
Conference Call Scheduled for 8:30 a.m. EDT (5:30 a.m. PDT) Thursday, September 14, 2006
CAMBRIDGE, Mass. - September 13, 2006 - Infinity Pharmaceuticals, Inc. (NASDAQ: INFI) announced today the completion of its previously announced merger with Discovery Partners International, Inc., or DPI. The newly-combined company will
operate as Infinity Pharmaceuticals, Inc. under Infinity’s management and will retain no Discovery Partners operations or programs. Infinity begins trading today on the NASDAQ Global Market under the symbol “INFI.” The company will be
hosting an investor conference call providing a business overview of the combined company and a discussion of its lead oncology programs on Thursday, September 14, 2006 at 8:30 a.m. EDT (5:30 a.m. PDT).
“This merger with Discovery Partners gives Infinity the resources necessary to fully explore and expand the potential of our pipeline,” said Steven H.
Holtzman, chief executive officer of Infinity. “Infinity has the opportunity to create significant value for both patients and stockholders in the coming years.”
“Through DPI’s merger with Infinity, former DPI stockholders are benefiting from the value creation potential of a company dedicated to becoming a leader in oncology drug discovery and development,”
added Michael C. Venuti, Ph.D., former acting chief executive officer of DPI who will continue as a director of the combined company. “With the financial resources provided in this transaction, we expect that Infinity will be well positioned to
drive forward its pipeline of anti-cancer agents, creating both meaningful therapies for patients and substantial value for stockholders.”
With the
completion of the merger and Infinity’s recently-announced collaboration with Medlmmune, Inc., Infinity expects to have funds sufficient to support its current operating plan at least through December 31, 2009, in the absence of any new
corporate development opportunities or financings.
Infinity’s products in development include:
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IPI-504 (Hsp90 inhibitor) - Infinity’s lead novel, proprietary anti-cancer product candidate has demonstrated in preclinical studies the ability to potently and selectively
inhibit Heat Shock Protein 90 (Hsp90), thereby killing cancer cells. In preclinical studies, IPI-504 has demonstrated broad potential to treat a variety of cancers as both a single agent as well as in combination with existing anti-cancer drugs.
IPI-504 is currently delivered intravenously in a water-based formulation and is being evaluated in two disease-focused Phase I clinical trials in patients with relapsed, refractory multiple myeloma and relapsed, refractory gastrointestinal stromal
tumors (GIST). An oral formulation of IPI-504 is in preclinical development. On August 28, 2006, Infinity entered into a worldwide alliance with Medlmmune, Inc. to jointly develop and commercialize drugs, including IPI-504, that target Hsp90.
Under the terms of the agreement, Infinity and Medlmmune will share equally the worldwide profits from the successful commercialization of any products. Infinity also has an option to co-promote such products in the U.S.
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Hedgehog cell-signaling pathway inhibitors - The Hedgehog pathway is normally active during embryonic development regulating tissue and organ formation. Aberrant activation of the
Hedgehog pathway in adults has been implicated in many of the most deadly cancers. Infinity’s Hedgehog pathway inhibitors are novel, proprietary systemically-administered agents that have demonstrated in preclinical studies the ability to
potently and selectively inhibit the Hedgehog pathway. Infinity’s Hedgehog pathway program is also being jointly developed and commercialized under the worldwide alliance with Medlmmune, Inc., whereby Infinity and Medlmmune will share equally
the worldwide profits from the successful commercialization of any products. Infinity also has an option to co-promote any such products in the U.S.
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Bcl family inhibitors - The Bcl family of proteins (including Bcl-2 and Bcl-xL) are key regulators of programmed cell death, or apoptosis. Infinity’s Bcl family inhibitors are
currently in preclinical development for use alone or in combination to sensitize a broad range of solid tumors to currently available chemotherapeutics. In March 2006, Infinity entered into an alliance with Novartis to collaboratively discover,
develop, and commercialize drugs targeting Bcl protein family members for the treatment of a broad range of cancer indications.
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Shares Outstanding and Ownership of Infinity
In connection with the merger, DPI effected a 4-to-1 reverse stock split of its common stock. As a result of the merger
and the reverse stock split, the combined company has approximately 19.4 million shares issued and outstanding, of which approximately 66% are held by prior Infinity stockholders and approximately 34% are held by DPI stockholders.
Investor Conference Call Details
Infinity has scheduled an investor
conference call providing a business overview of the combined company and a discussion of its lead oncology programs on Thursday, September 14, 2006 at 8:30 a.m. EDT (5:30 a.m. PDT). A live webcast of the conference call can be accessed on
Infinity’s website at www.ipi.com. The call can be accessed by dialing 1-800-289-0498 (domestic) or 1-913-981-5539 (international) five minutes prior to the start time. An archived version of the webcast will be available on Infinity’s
website for 30 days.
Board of Directors
The combined
company’s board of directors includes nine members from the former Infinity board of directors and three continuing members from the DPI board of directors. The DPI directors who will continue on the board are Harry Hixson, Jr., Michael Venuti,
and Herm Rosenman. The Infinity directors who will serve on the board of the combined company include: Steven Holtzman (Chair), Vicki Sato (lead outside director), Ronald Daniel, Anthony Evnin, Eric Lander, Patrick Lee, Arnold Levine, Frank Moss,
and James Tananbaum.
About Infinity Pharmaceuticals, Inc.
Infinity is an innovative cancer drug discovery and development company that is seeking to leverage its strength in small molecule drug technologies to discover, develop, and deliver to patients first-in-class or best-in-class medicines for
the treatment of cancer and related conditions.
Forward Looking Statements
This release contains forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995 that involve risks and uncertainties that could cause actual results to be materially
different from historical results or from any future results expressed or implied by such forward-looking statements. You are urged to consider statements that include the words “may,” “will,” “would,”
“could,” “should,” “believes,” “estimates,” “projects,” “potential,” “expects,” “plans,” “anticipates,” “intends,” “continues,”
“forecast,” “designed,” “goal,” or the negative of those words or other comparable words to be uncertain and forward-looking. Such forward-looking statements include statements regarding the expected benefits of the
merger of Infinity and DPI for stockholders of the combined company, the expectation that the merger will enable the combined company to be well positioned to drive forward its pipeline of anti-cancer agents and create substantial value for patients
and stockholders, and the expectation that the combined company will have cash to support its current operating plan through at least December 31, 2009. Such statements are subject to numerous factors, risks, and uncertainties that may cause
actual events or results to differ materially from the combined company’s current expectations. For example, there can be no guarantee that any product candidate the combined company is developing will successfully complete necessary
preclinical and clinical development phases, be approved for sale in any market or that, if approved, revenues from sales of such product will reach any specific level. In particular, management’s expectations could be affected by risks and
uncertainties relating to: results of clinical trials and preclinical studies, including subsequent analysis of existing data and new data received from ongoing and future studies; the combined company’s dependence on its collaborations with
Medlmmune and Novartis; the combined company’s ability to obtain additional funding required to conduct its research, development, and commercialization activities; unplanned cash requirements and expenditures; and the company’s ability to
obtain, maintain, and enforce patent and other intellectual property protection for any products it is developing. These and other risks which may impact management’s expectations are described in greater detail under the caption “Risk
Factors” in DPI’s registration statement on Form S-4, as amended, as filed with the Securities and Exchange Commission and DPI’s other SEC reports. Any forward-looking statements contained in this press release speak only as of the
date hereof and Infinity expressly disclaims any obligation to update any forward-looking statements, whether as a result of new information, future events, or otherwise.
Editor’s Note: This release is available in the Press Release section of the Media Room of Infinity’s website at http://www.ipi.com
Contacts: Investors: John Evans
617.453.1254
John.Evans@ipi.com
Media: Monique Allaire
617.453.1105
Monique.Allaire@ipi.com
# # #
Exhibit 99.2
RISK FACTORS
Investing in our common stock involves a high degree of risk. The risks described
below are not the only ones facing us. Additional risks not presently known to us or that we deem immaterial may also impair our business operations. Any of the following risks could materially adversely affect our business, operating results and
financial condition and could result in a complete loss of your investment.
On September 12, 2006, Discovery Partners
International, Inc., or Discovery Partners, completed its business combination with Infinity Pharmaceuticals, Inc, or IPI, in accordance with the terms of the Agreement and Plan of Merger among Discovery Partners, a wholly owned subsidiary of
Discovery Partners and IPI, dated as of April 11, 2006, pursuant to which IPI became a wholly owned subsidiary of Discovery Partners. As a result of the merger, Discovery Partners changed its name to Infinity Pharmaceuticals, Inc., or Infinity,
and the newly-acquired wholly owned subsidiary, which was formerly known as Infinity Pharmaceuticals, Inc., changed its name to Infinity Discovery, Inc., or IDI. Following the closing of the merger, the business conducted by Infinity shall be the
business conducted by IDI immediately prior to the merger. As a result, the risks described below are the most significant risks faced by Infinity after the merger.
Unless the context otherwise requires, all references herein to “we,” “us,” “our” or “Infinity” refer to Infinity and its wholly owned subsidiaries.
Risks Related to Our Business
Our business is at an early
stage of development and we do not have, and may never have, any products that generate revenues, which would prevent us from achieving profitability.
We are at an early stage of development as a company and have a limited operating history on which to evaluate our business and prospects. Since beginning operations in 2001, we have not generated any revenue from the
sale of drugs. We currently have no drugs for sale and we cannot guarantee that we will ever have any marketable drugs. Before we can successfully sell any drugs, we must demonstrate to the FDA and other regulatory authorities in the United States,
the European Union and elsewhere that our drug candidates satisfy rigorous standards of safety and efficacy for their intended uses. Significant additional research, preclinical testing and clinical testing is required before we can file
applications with the FDA or these other regulatory authorities for marketing approval of our drug candidates. In addition, to compete effectively, any drugs for which we successfully obtain marketing approval must have a combined profile of safety,
efficacy, ease of administration and cost-effectiveness such that they offer advantages over alternative treatment options. We may not achieve this objective. IPI-504, our most advanced drug candidate, is in two Phase I clinical trials and is
currently our only drug candidate in clinical trials. We cannot be certain that the clinical development of this or any other drug candidates in preclinical testing will be successful, that they will receive the regulatory approvals required to
commercialize them, or that any of our other research and drug discovery programs will yield a drug candidate suitable for investigation through clinical trials. Accordingly,
commercial revenues, if any, will be derived from sales of drugs that we do not expect to become marketable for several years, if at all.
We have a limited operating history and have incurred a substantial cumulative loss since inception. If we do not generate significant revenues, we will not be
profitable and our business may fail.
We have incurred significant losses since our inception in February 2001. At March 31,
2006, our accumulated deficit was approximately $138 million. We have experienced net losses of $33.9 million, $34.1 million, $36.4 million and $10.8 million for the fiscal years ending December 31, 2003, 2004 and 2005 and the quarter ended
March 31, 2006, respectively. We have not generated any revenues from the sale of drugs to date and we do not expect to generate revenues from the sale of any of our drugs, or achieve profitability, for several years, if ever. We expect that
our annual operating losses will increase substantially over the next several years as we seek to:
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complete Phase I clinical trials for IPI-504 and, if supported by the Phase I clinical trial results, initiate larger scale Phase II clinical trials, as well as additional clinical
trials for IPI-504, including combination studies;
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advance our preclinical Hedgehog inhibitor program into clinical trials, if supported by positive preclinical data;
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discover and develop additional drug candidates, including Bcl-2 inhibitor compounds;
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obtain regulatory approval for any drug candidates we successfully develop;
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commercialize any product candidates for which regulatory approval is obtained;
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prosecute and maintain our intellectual property rights relating to our product candidates and future products, if any;
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hire additional clinical, scientific and management personnel and upgrade our operational, financial and management information systems and facilities; and
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identify and acquire rights from third parties to additional compounds, drug candidates or drugs.
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To become profitable, we must successfully develop and obtain regulatory approval for our drug candidates and effectively manufacture, market and sell
any drug candidates we develop. Accordingly, we may never generate significant revenues and, even if we do generate significant revenues, we may never achieve profitability.
Our limited operating history may make it difficult for you to accurately evaluate the success of our business to date and assess our future viability.
We commenced operations in February 2001. Our operations to date have been limited to organizing and staffing the company, developing, and securing our
technology and undertaking
preclinical studies and initial clinical trials of our drug candidates. We have not yet demonstrated our ability to obtain regulatory approval for, or to
formulate and manufacture at commercial-scale, any of our product candidates, nor do we have the sales and marketing infrastructure necessary to successfully commercialize any products that may ultimately be approved for sale, if any. Consequently,
any predictions you make about our future success or viability may not be as accurate as they could be if we had a longer operating history.
We will
need substantial additional capital to fund our operations, including planned drug candidate development, manufacturing and commercialization. If we do not have or cannot raise additional capital when needed, we will be unable to develop and
commercialize our drug candidates successfully and we may have to limit or scale back our operations.
We anticipate that our
current cash, cash equivalents and available-for-sale marketable securities, together with the $70 million license payment we expect to receive from MedImmune, Inc. in connection with our strategic alliance, will be sufficient to support our current
operating plan, including planned increases in general and administrative and research and development expenses, through December 31, 2009. Our currently-planned operating and capital requirements primarily include the need for working capital
to, among other things:
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continue clinical development of an intravenous formulation of IPI-504;
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perform preclinical work on an oral formulation of IPI-504;
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perform preclinical work on our Hedgehog pathway inhibitor program; and
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design and produce our diversity-oriented synthesis compounds.
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Our future operating plan may change, however, as a result of many factors, including:
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the progress and results of clinical trials of IPI-504;
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the results of preclinical studies of potential Hedgehog pathway inhibitors, the results of discovery stage research for Bcl-2 inhibitor compounds and other programs, and our
decision to initiate clinical trials if supported by preclinical results;
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our ability to meet current compound delivery obligations to Novartis and Johnson & Johnson;
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our needs for office and laboratory facilities;
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our ability to continue to sublease excess space;
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the timing of, and the costs involved in, obtaining regulatory approvals for our product candidates;
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the cost of acquiring raw materials for, and of manufacturing, our product candidates;
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the costs involved in preparing, filing, prosecuting, maintaining and enforcing patent claims and other patent-related costs, including litigation costs;
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the costs of establishing sales and marketing functions and of establishing commercial manufacturing arrangements if any drug candidates are approved;
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our inability to maintain our existing strategic alliances;
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the costs required to satisfy our obligations under our current and potential future collaborations; and
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the timing, receipt and amount of sales or royalties on future products, if any.
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We will require substantial additional cash to fund expenses that we expect to incur in the long term in connection with planned preclinical and clinical testing, regulatory review, manufacturing and sales and marketing efforts. We may seek
additional capital through a combination of private and public equity offerings, debt financings and strategic alliance and licensing arrangements. Such additional financing may not be available when we need it or may not be available on terms that
are favorable to us. To the extent that we raise additional capital through the sale of equity or convertible debt securities, our stockholders’ ownership interests will be diluted, and the terms may include liquidation or other preferences
that adversely affect their rights as stockholders. Debt financing, if available, may involve agreements that include covenants limiting or restricting our ability to take specific actions such as incurring additional debt, making capital
expenditures or declaring dividends. If we raise additional funds through strategic alliances and licensing arrangements with third parties, we may have to relinquish valuable rights to our technologies or drug candidates, or grant licenses on terms
that are not favorable to us. If we are unable to obtain adequate financing on a timely basis, we could be required to:
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curtail significant discovery stage drug discovery programs that are designed to identify new drug candidates; and/or
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relinquish rights to product candidates or development programs that we may otherwise seek to develop or commercialize ourselves or jointly with our collaborative partner(s).
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If the perceived benefits of the merger with Discovery Partners, including the benefits to our business and prospects, are not
realized, the market price of our common stock may decline
The market price of our common stock may decline as a result of the
merger with Discovery Partners for a number of reasons including if:
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we do not achieve the perceived benefits of the merger as rapidly or to the extent anticipated by financial or industry analysts;
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the effect of the merger on our business and prospects is not consistent with the expectations of financial or industry analysts; or
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investors react negatively to the effect on our business and prospects from the merger.
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The market for cancer therapeutics is intensely competitive. If we are unable to compete effectively, our drug
candidates and any drugs that we may in the future develop may be rendered noncompetitive or obsolete.
We are engaged in seeking to
develop drugs in the cancer therapeutic segment of the pharmaceutical industry, which is highly competitive and rapidly changing. Many large pharmaceutical and biotechnology companies, academic institutions, governmental agencies and other public
and private research organizations are pursuing the development of novel drugs that target various forms of cancer. We currently face, and expect to continue to face, intense and increasing competition as new products enter the market and advanced
technologies become available. Moreover, there are a number of large pharmaceutical companies currently marketing and selling products to treat cancer, including Bristol-Myers Squibb Company, F. Hoffmann-La Roche Ltd., Novartis Pharma AG and
Genentech, Inc. In addition to currently approved drugs, there are a significant number of drugs that are currently under development and may become available in the future for the treatment of various forms of cancer. We are also aware that there
are a number of companies that are currently seeking to develop drug candidates directed to the same biological targets that our own drug candidates are designed to inhibit. Specifically, we believe that Kosan Biosciences, Conforma Therapeutics
Corporation (which recently announced its proposed acquisition by BiogenIdec Inc.), Serenex, Inc., Vernalis plc (in collaboration with Novartis) and Synta Pharmaceuticals have preclinical and early clinical stage development programs seeking to
develop compounds that target Heat Shock Protein 90, or Hsp90, which is the target of our lead compound IPI-504. Curis, Inc. and Genentech Inc. have an early stage clinical development collaboration seeking to develop drugs that target the Hedgehog
signaling pathway, which is also being targeted by compounds we have in preclinical development. Gemin-X Biosciences and Abbott Laboratories are believed to be in early-stage development of compounds to target the Bcl-2 family of proteins, which is
the target of one of our discovery programs as well.
Many of our competitors have:
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significantly greater financial, technical and human resources than us and may be better equipped to discover, develop, manufacture and commercialize drug candidates;
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more extensive experience in preclinical testing and clinical trials, obtaining regulatory approvals and manufacturing and marketing pharmaceutical products;
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drug candidates that have been approved or are in later-stage clinical development than our own candidates; and/or
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collaborative arrangements with leading companies and research institutions in our fields of interest.
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Competitive products and/or new treatment methods for the diseases we are targeting may render our products, if any, obsolete, noncompetitive or
uneconomical before we can recover the expenses of developing and commercializing them. If we successfully develop and obtain approval for our drug candidates, we will face competition based on the safety and effectiveness of our drug candidates,
the timing of their entry into the market in relation to competitive
products in development, the availability and cost of supply, marketing and sales capabilities, reimbursement coverage, price, patent position and other
factors. If we successfully develop drug candidates but those drug candidates do not achieve and maintain market acceptance, our business will not be successful.
If we are not able to attract and retain key management and scientific personnel and advisors, our efforts to develop our drug candidates and achieve our other business objectives could be delayed or substantially impaired.
We are highly dependent on our management team, particularly: Steven Holtzman, our Chief Executive Officer; Julian Adams, our
President and Chief Scientific Officer; Adelene Perkins, our Executive Vice President and Chief Business Officer; and the other members of our leadership team. All of these individuals are employees-at-will, which means that neither Infinity nor
such employee is obligated to a fixed term of service and that the employment relationship may be terminated by either Infinity or the employee at any time, without notice, and whether or not cause or good reason exists for such termination.
Although we do not have any reason to believe that it may lose the services of any of these persons in the foreseeable future, the loss of the services of any of these persons might impede the achievement of our research, development and
commercialization objectives. We do not maintain “key person” insurance on any of our employees.
Recruiting and retaining
qualified scientific and business personnel will also be critical to our success. We may not be able to attract and retain these personnel on acceptable terms given the competition among numerous pharmaceutical and biotechnology companies for
similar personnel. We also experiences competition for the hiring of scientific personnel from universities and research institutions. In addition, we rely on consultants and advisors, including scientific and clinical advisors, to assist us in
formulating our research and development and commercialization strategy. Our consultants and advisors may be employed by other entities, have commitments under consulting or advisory contracts with third parties that limit their availability to us,
or both.
Our business has a substantial risk of product liability claims, which could be costly to defend and could divert management’s
attention. Moreover, if we are unable to obtain and maintain appropriate levels of insurance, an adverse outcome in a product liability claim could be costly and could adversely affect our business.
We are exposed to significant potential product liability risks that are inherent in the development, manufacture, sales and marketing of human medicinal
products. Although we do not currently commercialize any products, claims could be made against it based on the use of our drug candidates in clinical trials. We currently have clinical trial insurance and will seek to obtain product liability
insurance prior to the sales and marketing of any of our drug candidates. Our insurance may not, however, provide adequate coverage against potential liabilities. Furthermore, clinical trial and product liability insurance is becoming increasingly
expensive. As a result, we may be unable to maintain current amounts of insurance coverage or obtain additional or sufficient insurance at a reasonable cost to protect against losses that could have a material adverse effect on us. If a claim is
brought against us, we might be required to pay legal and other expenses to defend the claim, as well as uncovered damage awards resulting from a claim brought successfully against us. Furthermore, whether or not we are ultimately successful
in defending any such claims, we might be required to redirect significant financial and managerial resources to such defense, and adverse publicity is
likely to result.
Risks Related to the Development of Our Drug Candidates
All of our drug candidates are still in the early stages of development and remain subject to clinical testing and regulatory approval. If we or our strategic alliance partners are unable to successfully develop
and test one or more of our drug candidates, or obtain U.S. and/or foreign regulatory approval, we will not be able to successfully commercialize those product candidates and achieve profitability. If this were to occur, our business would likely
fail.
To date, we have not obtained approval from the FDA or any foreign regulatory authority to market or sell any of our drug
candidates. The success of our business depends primarily upon our, and our strategic alliance partners’, ability to develop and commercialize our drug candidates successfully. Our most advanced drug candidate is IPI-504, which is currently in
two Phase I clinical trials and is the subject of a broad product and development agreement with MedImmune, Inc. Our other drug candidates are in various stages of preclinical and discovery stage development.
Our drug candidates are subject to extensive governmental regulations relating to development, clinical trials, manufacturing and commercialization.
Rigorous preclinical testing and clinical trials and an extensive regulatory approval process are required in the United States and in many foreign jurisdictions prior to the commercial sale of medicinal products like our drug candidates.
Satisfaction of these and other regulatory requirements is costly, time consuming, uncertain and subject to unanticipated delays. It is possible that none of the drug candidates we are developing, or may in the future develop, either alone or in
collaboration with our strategic alliance partners, will obtain marketing approval. In connection with the clinical trials of IPI-504 and any other drug candidate we may seek to develop in the future, we face risks that:
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the drug candidate may not prove to be safe and/or effective;
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the results of later trials may not confirm the positive results from earlier preclinical studies or clinical trials; and
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the results may not meet the level of statistical significance required by the FDA or other regulatory agencies.
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We have limited experience in conducting and managing the clinical trials necessary to obtain regulatory approvals, including approval by the FDA and/or
comparable foreign regulatory agencies. The time required to complete clinical trials and for regulatory review by the FDA and other countries’ regulatory agencies is uncertain and typically takes many years. Some of our drug products may be
eligible for the FDA’s programs that are designed to facilitate the development and expedite the review of certain drugs, but there is no assurance that any of our drug candidates will qualify for one or more of these programs. Even if a drug
product qualifies for one or more of these programs, the FDA may later decide that the product no longer meets the conditions for qualification.
Our analysis of data obtained from preclinical and clinical activities is subject to confirmation and
interpretation by regulatory authorities, which could delay, limit or prevent regulatory approval. We may also encounter unanticipated delays or increased costs due to government regulation from future legislation or administrative action or changes
in FDA policy during the period of product development, clinical trials and FDA regulatory review.
Any delay in obtaining or failure to
obtain required approvals could materially adversely affect our ability to generate revenues from the particular drug candidate. Furthermore, the uses for which any regulatory authority may grant approval to market a product may be limited, thus
placing limitations on the manner in which we may market the product and limiting its market potential. We are also subject to numerous foreign regulatory requirements governing the conduct of clinical trials, manufacturing and marketing
authorization, pricing and third-party reimbursement. The foreign regulatory approval process includes all of the risks associated with FDA approval described above as well as risks attributable to the satisfaction of foreign regulations. Approval
by the FDA does not ensure approval by regulatory authorities outside the United States, and vice versa. Foreign jurisdictions may have different approval procedures than those required by the FDA and may impose additional testing requirements for
our drug candidates.
If clinical trials of our drug candidates are prolonged, delayed or suspended, we may be unable to commercialize those drug
candidates on a timely basis, if at all, and may incur substantial additional costs, either of which could adversely affect whether, or when, we may achieve profitability.
We cannot predict whether it will encounter problems with any of our ongoing or planned clinical trials that will cause us, our strategic alliance
partners, or regulatory authorities to delay or suspend clinical trials, or delay the analysis of data from ongoing clinical trials. Any of the following could delay the clinical development of our drug candidates:
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ongoing discussions with the FDA or comparable foreign authorities regarding the scope or design of our clinical trials;
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delays in receiving, or the inability to obtain, required approvals from institutional review boards or other reviewing entities at clinical sites selected for participation in our
clinical trials;
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delays in enrolling volunteers and patients into clinical trials;
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a lower than anticipated retention rate of volunteers and patients in clinical trials;
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the need to repeat clinical trials as a result of inconclusive or negative results or unforeseen complications in testing;
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inadequate supply or deficient quality of drug candidate materials or other materials necessary to conduct our clinical trials;
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unfavorable FDA inspection and review of a clinical trial site or records of any clinical or preclinical investigation;
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serious and unexpected drug-related side effects experienced by participants in our clinical trials;
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a finding that the trial participants are being exposed to unacceptable health risks;
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the placement by the FDA of a clinical hold on a trial; or
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any restrictions on or post-approval commitments with regard to any regulatory approval we ultimately obtain that render the drug candidate not commercially viable.
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Clinical trials require sufficient patient enrollment, which is a function of many factors, including the size of the
patient population, the nature of the trial protocol, the proximity of patients to clinical sites, the availability of effective treatments for the relevant disease, the eligibility criteria for our clinical trials and competing studies or trials.
Delays in patient enrollment can result in increased costs and longer development times. Our failure to enroll patients in our clinical trials could delay the completion of the clinical trial beyond current expectations. In addition, the FDA could
require us to conduct clinical trials with a larger number of subjects than has been projected for any of our drug candidates. As a result of these factors, we may not be able to enroll a sufficient number of patients in a timely or cost-effective
manner.
Furthermore, enrolled patients may drop out of clinical trials, which could impair the validity or statistical significance of the
clinical trials. A number of factors can influence the patient discontinuation rate, including, but not limited to: the inclusion of a placebo arm in a trial; possible inactivity or low activity of the drug candidate being tested at one or more of
the dose levels being tested; adverse side effects experienced, whether or not related to the drug candidate; and the availability of numerous alternative treatment options that may induce patients to discontinue their participation in the trial.
We may suspend, or the FDA or other applicable regulatory authorities may require us to suspend, clinical trials of a drug candidate at
any time if we or they believe the subjects or patients participating in such clinical trials, or in independent third-party clinical trials for drugs based on similar technologies, are being exposed to unacceptable health risks or for other
reasons.
We cannot predict whether any of our drug candidates will encounter problems during clinical trials that will cause us or
regulatory authorities to delay or suspend these trials or delay the analysis of data from these trials. In addition, it is impossible to predict whether legislative changes will be enacted, or whether FDA regulations, guidance or interpretations
will be changed, or what the impact of such changes, if any, may be. If we experience any such problems, we may not have the financial resources to continue development of the drug candidate that is affected or the development of any of our other
drug candidates.
We rely on third parties to conduct our clinical trials, and we intend to rely on such third parties in the future. These third
parties may not perform satisfactorily, including failing to meet established deadlines for the completion of such trials, which could result in unplanned
delays or interruptions of such clinical trials and impede our ability to successfully develop the product candidates which are the subject of such
trials.
We rely on third parties such as medical institutions and principal investigators to enroll qualified patients, conduct our
clinical trials and provide services in connection with such clinical trials. We intend to rely on such third party medical institutions and principal investigators, as well as contract research organizations and other similar entities, in the
future. We currently rely upon five principal investigators at a total of four medical institutions to enroll qualified patients and conduct our clinical trials. We also rely upon five service providers in connection with such clinical trials. Our
reliance on these third parties for clinical development activities reduces our control over these activities. Accordingly, these third-party contractors may not complete activities on schedule, or may not conduct our clinical trials in accordance
with regulatory requirements or the trial design. If these third parties do not successfully carry out their contractual duties or meet expected deadlines, we may be required to replace them. Although we believe that there are a number of
third-party contractors which could be engaged to continue these activities, replacing a third-party contractor may result in a delay of the affected trial. If this were to occur, our efforts to obtain regulatory approvals for and commercialize our
drug candidates may be delayed.
In addition, we are responsible for ensuring that each of our clinical trials is conducted in accordance
with the general investigational plan and protocols for the trial. The FDA requires us to comply with certain standards, referred to as good clinical practices, for conducting, recording and reporting the results of clinical trials to assure that
data and reported results are credible and accurate and that the rights, integrity and confidentiality of trial participants are protected. Our reliance on third parties that we do not control does not relieve us of these responsibilities and
requirements. If any of our trial investigators or third-party contractors do not comply with good clinical practices, we may not be able to use the data and reported results from the trial. If this were to occur, our efforts to obtain regulatory
approvals for and commercialize our drug candidates may be delayed.
Even if we obtain regulatory approvals, our products will be subject to ongoing
regulatory review. If we fail to comply with continuing U.S. and applicable foreign regulations, we could lose those approvals, and our business would be seriously harmed.
Even if we receive regulatory approval of any drug candidates we are developing or may develop, we will be subject to continuing regulatory review. We may
be required, or we may elect, to conduct additional clinical trials of our drug candidates after they have become commercially available approved drugs. As greater numbers of patients use a drug following its approval, side effects and other
problems may be observed after approval that were not seen or anticipated during pre-approval clinical trials. Supplemental trials could also produce findings that are inconsistent with the trial results we previously submitted to the FDA, which
could result in marketing restrictions or force us to stop marketing previously approved drugs. In addition, the manufacturer and the manufacturing facilities we use to make any approved drugs will be subject to periodic review and inspection by the
FDA. The subsequent discovery of previously unknown problems with the drug, manufacturer or facility may result in restrictions on the drug, manufacturer or facility, including withdrawal of the drug from the market. If we fail to comply with
applicable continuing regulatory requirements, we may be subject to fines, suspension or
withdrawal of regulatory approval, product recalls and seizures, operating restrictions and criminal prosecutions.
We work with hazardous materials, which could expose us to liability claims and which will require compliance with environmental laws and regulations, which can be
expensive and restrict how it conducts our business.
Our activities involve the controlled storage, use and disposal of hazardous
materials, including infectious agents, corrosive, explosive and flammable chemicals, various radioactive compounds and compounds known to cause birth defects. We are subject to certain federal, state and local laws and regulations governing the
use, manufacture, storage, handling and disposal of these hazardous materials. Although we believe that our safety procedures for handling and disposing of these materials comply with the standards prescribed by these laws and regulations, we cannot
eliminate the risk of accidental contamination or injury from these materials.
In the event of an accident, state or federal authorities
may curtail our use of these materials, and it could be liable for any civil damages that result. These damages may exceed our financial resources and may seriously harm our business. While we believes that the amount of insurance we carry is
sufficient for typical risks regarding the handling of these materials, it may not be sufficient to cover pollution conditions or other extraordinary or unanticipated events. Additionally, an accident could damage, or force us to shut down, our
operations. In addition, if were to manufacture our products or product candidates ourselves, we may incur substantial costs to comply with environmental regulations and would be subject to the risk of accidental contamination or injury from the use
of hazardous materials in our manufacturing processes.
Risks Related to Our Dependence on Third Parties
We are reliant on our strategic alliance partners. If an alliance partner terminates or fails to perform its obligations under our agreements with
them, the development and commercialization of our drug candidates could be delayed or terminated, and our business would be adversely affected.
As part of our business strategy, we have entered into alliances with major biotechnology or pharmaceutical companies to jointly develop specific drug candidates and to jointly commercialize them if they are approved.
In these alliances, our collaborators have committed to provide substantial funding, as well as significant capabilities in clinical development, regulatory affairs, marketing and sales. For example, we have entered into an alliance with MedImmune
to jointly develop and commercialize novel small molecule cancer drugs targeting Heat Shock Protein 90, or Hsp90, and the Hedgehog cell signaling pathway. We have also entered into an alliance with Novartis Institutes for BioMedical Research, Inc.,
or Novartis, for the development and commercialization of Bcl-2 drug candidates.
If MedImmune, Novartis or any other future alliance
partner does not devote sufficient time and resources to its alliance arrangements, we may not realize the potential commercial benefits of the arrangement, and our results of operations may be adversely affected. In addition, if any
existing or future alliance partner were to breach or terminate its arrangements with us, the development and commercialization of the affected drug
candidate could be delayed, curtailed or terminated because we may not have sufficient financial resources or capabilities to continue development and commercialization of the drug candidate on our own.
Under our agreement with MedImmune, either party may opt out of a project by giving 6 months’ written notice to the other party. If one party gives
such notice, the other party has 20 days to also opt-out of the project in which case the parties will seek to out-license or sell the project assets or seek to otherwise maximize the value of the project. Any opting-out party is no longer obligated
to perform work under the research and development plan and marketing plans for the project, nor pay development costs for the project. Moreover, either party is permitted to terminate the agreement with respect to a product if it believes there are
safety concerns with respect to such product and the parties do not agree on the course of action to be taken, in which case the terminating party gives up all rights in such product. If a party materially breaches the agreement with respect to a
project and does not cure the breach within a specified period of time, such breaching party is deemed to have opted-out of such project. If a party which opted-out of a project materially breaches the agreement, and does not cure the breach within
a specified period of time, such breaching party shall no longer be entitled to royalties or milestones with respect to such product. Under our alliance agreement with Novartis, Novartis may terminate the alliance at any time upon 60 days’
notice to us. If either MedImmune or Novartis were to exercise its right to opt out of a program or to terminate the respective alliance, the development and commercialization of products from our Hsp90, hedgehog pathway and Bcl-2 program could be
adversely affected, our potential for generating revenue from these programs may be adversely affected and attracting new alliance partners would be made more difficult.
Much of the potential revenue from our existing and future alliances will consist of contingent payments, such as payments for achieving development and commercialization milestones, royalties payable on sales of any
successfully developed drugs, and profit-sharing arrangements. The milestone, royalty and other revenue that we may receive under these alliances will depend upon our, and our alliance partner’s, ability to successfully develop, introduce,
market and sell new products. In some cases, we will not be involved in these processes and, accordingly, will depend entirely on our alliance partners. Our alliance partners may fail to develop or effectively commercialize products using our
products or technologies because they:
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decide not to devote the necessary resources because of internal constraints, such as limited personnel with the requisite scientific expertise, limited cash resources or
specialized equipment limitations, or the belief that other drug development programs may have a higher likelihood of obtaining regulatory approval or may potentially generate a greater return on investment;
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do not have sufficient resources necessary to carry the drug candidate through clinical development, regulatory approval and commercialization; or
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cannot obtain the necessary regulatory approvals.
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In addition, an alliance partner may decide to pursue a competitive drug candidate developed outside of
the alliance.
If our alliance partners fail to develop or effectively commercialize our drug candidates or for any of these reasons, we
may not be able to develop and commercialize that drug independently, or replace the alliance partner with another suitable partner in a reasonable period of time and on commercially reasonable terms, if at all.
Risks Related to Planned Commercialization of Our Drug Candidates
We rely on third-party manufacturers to produce the raw materials and drug substance for our drug candidates and anticipate continued reliance on third-party manufacturers if we successfully commercialize any of our drug candidates.
If these third-party manufacturers do not adequately perform, our ability to complete clinical trials in a timely manner and to commercialize any product candidates would be adversely affected and we may be required to incur significant time and
expense to obtain alternative third-party manufacturing arrangements.
Our drug candidates require precise, high quality
manufacturing. The third-party manufacturers on which we rely may not be able to comply with the FDA’s current good manufacturing practices, or cGMPs, and other applicable government regulations and corresponding foreign standards. These
regulations govern manufacturing processes and procedures and the implementation and operation of systems to control and assure the quality of products. The FDA may, at any time, audit or inspect a manufacturing facility to ensure compliance with
cGMPs. Any failure by our contract manufacturers to achieve and maintain high manufacturing and quality control standards could result in patient injury or death; product liability claims; penalties or other monetary sanctions; the failure of
regulatory authorities to grant marketing approval of our product candidates; delays, suspension or withdrawal of approvals; license revocation; seizures or recalls of product candidates or products; operating restrictions and/or criminal
prosecution, any of which could significantly and adversely affect supply of our product candidates and seriously hurt our business. Contract manufacturers may also encounter difficulties involving production yields or delays in performing their
services. We do not have control over third-party manufacturers’ performance and compliance with these applicable regulations and standards.
If, for some reason, our manufacturers cannot perform as agreed, we may be unable to replace such third-party manufacturers in a timely manner and the production of our drug candidates would be interrupted, resulting in delays in clinical
trials and additional costs. Switching manufacturers may be difficult because the number of potential manufacturers is limited and, depending on the type of material manufactured at the contract facility, the change in contract manufacturer must be
submitted to and/or approved by the FDA and comparable regulatory authorities outside of the United States. In addition, a new manufacturer would have to be educated in, or develop substantially equivalent processes for, production of our drug
candidates after receipt of regulatory approval. It may be difficult or impossible for us to find a replacement manufacturer on acceptable terms quickly, or at all.
To date, our drug candidates have been manufactured in quantities for preclinical testing and clinical
trials by third-party manufacturers. Currently, our drug candidates are being manufactured in quantities for preclinical testing and clinical trials by a total of nine third-party manufacturers. If the FDA or other regulatory agencies approve any of
our drug candidates for commercial sale, we expect that it would continue to rely, at least initially, on third-party manufacturers to produce commercial quantities of our approved drug candidates. These manufacturers may not be able to successfully
increase the manufacturing capacity for any approved drug candidates in a timely or economical manner, or at all. Significant scale-up of manufacturing might entail changes in the manufacturing process that have to be submitted to and/or approved by
the FDA or other regulatory agencies. If contract manufacturers engaged by us are unable to successfully increase the manufacturing capacity for a drug candidate, or we are unable to establish our own manufacturing capabilities, the commercial
launch of any approved products may be delayed or there may be a shortage in supply.
If we are unable to establish sales and marketing capabilities
or enter into agreements with third parties to market and sell our drug candidates, if approved, we may not generate product revenues and achieve profitability.
We have no commercial products, and we do not currently have any sales and marketing capabilities. In order to successfully commercialize any drugs that may be approved in the future by the FDA or comparable foreign
regulatory authorities, we must build our sales and marketing capabilities or make arrangements with third parties to perform these services. If we are unable to establish adequate sales, marketing and distribution capabilities, whether
independently or with third parties, we may not be able to generate product revenues and may not become profitable.
If physicians and patients do
not accept our future drugs, we may be unable to generate significant revenues from product sales, if any, to fund our operations and achieve profitability.
Even if our current product candidates, or product candidates we may develop or acquire in the future, obtain regulatory approval, they may not gain market acceptance among physicians, patients and the medical
community for a variety of reasons including:
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timing of market introduction of competitive drugs;
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lower demonstrated clinical safety and efficacy compared to other drugs;
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lack of cost-effectiveness;
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lack of availability of reimbursement from managed care plans and other third-party payors;
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inconvenient and/or difficult administration;
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prevalence and severity of adverse side effects;
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potential advantages of alternative treatment methods;
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safety concerns with similar drugs marketed by others;
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the reluctance of the target population to try new therapies and of physicians to prescribe these therapies; and
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ineffective marketing and distribution support.
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If our
approved drugs fail to achieve market acceptance, we would not be able to generate significant revenue from those drugs or achieve profitability.
If
third-party payors do not adequately reimburse patients for any of our drug candidates that are approved for marketing, such product candidates might not be purchased or used, and our financial position would be adversely affected.
Our revenues and profits will depend significantly upon the availability of adequate reimbursement from governmental and other
third-party payors, both in the United States and in foreign markets, of any of our approved drug candidates. Reimbursement by a third party may depend upon a number of factors, including the third-party payor’s determination that use of a
product is:
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a covered benefit under its health plan;
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safe, effective and medically necessary;
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appropriate for the specific patient;
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neither experimental nor investigational.
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Obtaining
reimbursement approval for a product from each third-party and government payor is a time-consuming and costly process that could require us to provide supporting scientific, clinical and cost-effectiveness data for the use of any approved drugs to
each payor. We may not be able to provide data sufficient to gain acceptance with respect to reimbursement. There also exists substantial uncertainty concerning third-party reimbursement for the use of any drug candidate incorporating new
technology, and even if determined eligible, coverage may be more limited than the purposes for which the drug is approved by the FDA. Moreover, eligibility for coverage does not imply that any drug will be reimbursed in all cases or at a rate that
allows us to make a profit or even cover our costs. Interim payments for new products, if applicable, may also not be sufficient to cover our costs and may not be made permanent. Reimbursement rates may vary according to the use of the drug and the
clinical setting in which it is used, may be based on payments allowed for lower-cost products that are already reimbursed and/or whether the drug is on a state’s Medicaid preferred drug list, may be incorporated into existing payments for
other products or services and may reflect budgetary constraints and/or imperfections in Medicare or Medicaid data used to calculate these rates. Net prices for products may be reduced by mandatory discounts or rebates required by government health
care programs
or by any future relaxation of laws that restrict imports of certain medical products from countries where they may be sold at lower prices than in the
United States.
There have been, and we expect that there will continue to be, federal and state proposals to constrain expenditures for
medical products and services, which may affect payments for any of our approved products. The Centers for Medicare and Medicaid Services frequently change product descriptors, coverage policies, product and service codes, payment methodologies and
reimbursement values. Third-party payors often follow Medicare coverage policy and payment limitations in setting their own reimbursement rates and may have sufficient market power to demand significant price reductions. As a result of actions by
these third-party payors, the health care industry is experiencing a trend toward containing or reducing costs through various means, including lowering reimbursement rates, limiting therapeutic class coverage and negotiating reduced payment
schedules with service providers for drug products.
Our inability to promptly obtain coverage and profitable reimbursement rates from
government-funded and private payors for any approved products could have a material adverse effect on our operating results and our overall financial condition.
Risks Related to Patents and Licenses
If we are unable to adequately maintain patent protection for our drug candidates, or if any
patents that may issue on our drug candidates are subsequently found to be invalid, our ability to successfully develop and commercialize our drug candidates will be harmed.
As of May 18, 2006, our patent portfolio includes a total of 15 patent applications worldwide. We own or hold exclusive licenses to a total of 10
U.S. patent applications, as well as 5 international applications. Our success depends in part on our ability to obtain patent protection both in the United States and in other countries for our drug candidates, their methods of manufacture and
their methods of use. Our ability to protect our drug candidates from unauthorized or infringing use by third parties depends in substantial part on our ability to obtain and maintain valid and enforceable patents.
Due to evolving legal standards relating to the patentability, validity and enforceability of patents covering pharmaceutical inventions and the scope of
claims made under these patents, our ability to maintain, obtain and enforce patents that may issue from any pending or future patent application is uncertain and involves complex legal, scientific and factual questions. The standards which the
United States Patent and Trademark Office, or PTO, and its foreign counterparts use to grant patents are not always applied predictably or uniformly and are ultimately subject to change. To date, no consistent policy has emerged regarding the
breadth of claims allowed in biotechnology patents. Accordingly, rights under any issued patents may not provide us with sufficient protection for our drug candidates or provide sufficient protection to afford us a commercial advantage against
competitive products or processes. In addition, we cannot guarantee that any patents will issue from any pending or future patent applications owned by or licensed to us. Even if patents do issue, we cannot guarantee that the claims of these patents
will be held valid or enforceable by a court of law or will provide us with any significant protection against competitive products or otherwise be commercially valuable.
Patent applications in the United States are maintained in confidence for up to 18 months after their
filing. In some cases, however, patent applications remain confidential in the PTO for the entire time prior to issuance as a U.S. patent. Similarly, publication of discoveries in the scientific or patent literature often lags behind actual
discoveries. Consequently, we cannot be certain that we were the first to invent, or the first to file patent applications on, our drug candidates or their use as anti-cancer drugs or for other indications. In the event that a third party has also
filed a U.S. patent application relating to our drug candidates or a similar invention, we may have to participate in interference proceedings declared by the PTO to determine priority of invention in the United States. Furthermore, the laws of some
foreign jurisdictions do not protect intellectual property rights to the same extent as in the United States and many companies have encountered significant difficulties in protecting and defending such rights in foreign jurisdictions.
If we encounter difficulties in protecting, or are otherwise precluded from effectively protecting, our intellectual property rights in foreign
jurisdictions, our business prospects could be substantially harmed.
If any pending patent applications or patents that we own or license are
subject to an adverse decision in an interference proceeding, we could lose significant rights under a patent or patent application and, accordingly, the success of our business could be harmed.
Patents and patent applications owned or licensed by us may become the subject of interference proceedings in the PTO to determine priority of invention.
For example, we are aware of third parties who are actively researching ansamycin analogs that are similar to our lead candidate, IPI-504. These third parties have pending applications related to these analogs, but we have the first published
application covering IPI-504. It is possible that an interference proceeding could be declared between our application covering IPI-504 and one or more of these third-party applications. An adverse decision in an interference proceeding may result
in the loss of rights under a patent or patent application. In addition, the cost of interference proceedings to uphold the validity of patents can be substantial.
A third party may allege that we are infringing its intellectual property, causing us to spend substantial resources on litigation, the outcome of which would be uncertain and could have a material adverse effect on the success of our
business.
Our commercial success will depend on whether there may be third-party patents, patent applications and other
intellectual property relevant to our potential products that may block or compete with our product candidates or processes. Although we are not currently aware of any litigation or other proceedings or third-party claims of intellectual property
infringement related to our drug candidates, the pharmaceutical industry is characterized by extensive litigation regarding patents and other intellectual property rights. Other parties may obtain patents and claim that the use of our technologies
infringes these patents or that we are employing their proprietary technology without authorization. We could incur substantial costs and diversion of management and technical personnel in defending against any claims that the use of our
technologies infringes upon any patents, defending against any claim that we are employing any proprietary technology without authorization, or enforcing our patents against others. The outcome of patent litigation is subject to uncertainties that
cannot be adequately quantified in advance, including the demeanor and credibility of witnesses and the identity of the adverse
party, especially in biotechnology related patent cases that may turn on the testimony of experts as to technical facts upon which experts may reasonably
disagree. In the event of a successful claim of infringement against us, we may be required to:
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pay substantial damages;
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stop developing, commercializing and selling the infringing drug candidates or approved products;
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develop non-infringing products, technologies and methods; and
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obtain one or more licenses from other parties, which could result in our paying substantial royalties or the granting of cross licenses to our technologies.
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Furthermore, we may not have identified all U.S. and foreign patents or published applications that may affect our business
either by blocking our ability to commercialize our drugs or by covering similar technologies that affect the applicable market. In addition, we may undertake research and development with respect to potential products even when it is aware of
third-party patents that may be relevant to such potential products, on the basis that we may challenge or license such patents. If a patent interference or other proceeding is resolved adversely to us, we may be enjoined from researching,
developing, manufacturing or commercializing our product candidates without a license. In such a circumstance, we may not be able to obtain such licenses on commercially acceptable terms, if at all. If this were to occur, we may be unable to
commercialize the affected products or elect to cease certain of our business operations, which could severely harm our business.
We may undertake
infringement or other legal proceedings against a third party, causing us to spend substantial resources on litigation. The outcome of any such litigation would be uncertain and could have a material adverse effect on the success of our business.
Competitors may infringe our patents or successfully avoid them through design innovation. To prevent infringement or unauthorized
use, we may need to file infringement claims, which are expensive and time-consuming. In an infringement proceeding, a court may decide that one or more of our patents is not valid. Even if the validity of our patents is upheld, a court may refuse
to stop the other party from using the technology at issue on the ground that our activities are not covered by our patents. In this case, third parties may be able to use our patented technology without paying licensing fees or royalties. Policing
unauthorized use of our intellectual property is difficult, and we may not be able to prevent misappropriation of our proprietary rights, particularly in countries where the laws may not protect such rights as fully as in the United States.
Furthermore, it is unclear how much protection, if any, will be given to our patents if we attempt to enforce them and they are challenged in court or in other proceedings. A competitor may successfully challenge our patents or a challenge could
result in limitations of the patents’ coverage.
We also rely on unpatented technology, trade secrets, know-how and confidential
information. Third parties may independently develop substantially equivalent information and techniques or otherwise gain access to or disclose our technology. Although third parties may challenge our rights to, or the scope or validity of, our
patent rights, we have not received any
communications from third parties challenging our patent applications covering our drug candidates.
We may be subject to claims that we or our employees have wrongfully used or disclosed alleged trade secrets of their former employers, which could result in
substantial costs to defend such claims and may divert management’s attention from the operation of our business.
As is
commonplace in our industry, we employ individuals who were previously employed at other biotechnology or pharmaceutical companies, including our competitors or potential competitors. Although no claims against us are currently pending, we may be
subject to claims that we or these employees have inadvertently or otherwise used or disclosed trade secrets or other proprietary information of their former employers. Litigation may be necessary to defend against these claims. Even if we are
successful in defending against these claims, litigation could result in substantial costs and be a distraction to management.
Confidentiality and
intellectual property assignment agreements with employees and others may not adequately prevent unauthorized disclosure of trade secrets and other proprietary information and may not adequately protect our intellectual property. We could incur
significant costs in seeking to enforce these agreements in the event of a breach and any failure to adequately protect our trade secrets and other confidential and proprietary information could harm our business.
We rely on trade secrets to protect our technology, especially where we do not believe patent protection is appropriate or obtainable. Trade secrets are,
however, difficult to protect. In order to protect our proprietary technology and processes, we also rely in part on confidentiality and intellectual property assignment agreements with our corporate partners, employees, consultants, outside
scientific collaborators and sponsored researchers and other advisors. We require each of these individuals and entities to execute a confidentiality agreement at the commencement of a relationship with it. These agreements may not effectively
prevent disclosure of confidential information nor result in the effective assignment to us of intellectual property, and may not provide an adequate remedy in the event of unauthorized disclosure of confidential information or other breaches of the
agreements. In addition, others may independently discover our trade secrets and proprietary information, and in such case we could not assert any trade secret rights against such party. Enforcing a claim that a party illegally obtained and is using
our trade secrets is difficult, expensive and time consuming, and the outcome is unpredictable. In addition, courts outside the United States may be less willing to protect trade secrets. Costly and time-consuming litigation could be necessary to
seek to enforce and determine the scope of our proprietary rights and could result in a diversion of management’s attention, and failure to obtain or maintain trade secret protection could adversely affect our competitive business position.
We have entered into, and may in the future enter into, license agreements with third parties that give us rights to intellectual property that are
necessary or useful for the conduct of our business. If the owners of such intellectual property do not properly maintain or enforce the patents underlying such licenses, our competitive position and business prospects will be harmed.
We have entered into license agreements that give us rights to third-party intellectual property, and we
may enter into similar agreements in the future. For example, we have obtained a non-exclusive, worldwide license from Nexus Biosystems relating to radio frequency tagging to enable us to use such technology to synthesize and characterize our
diversity oriented synthesis small molecule libraries efficiently. Our success will depend in part on the ability of any key licensors to obtain, maintain and enforce patent protection for their intellectual property, in particular those patents to
which we have secured exclusive rights. Our licensors may not successfully prosecute the patent applications to which we are licensed. Even if patents issue in respect of these patent applications, our licensors may fail to maintain these patents,
may determine not to pursue litigation against other companies that are infringing these patents, or may pursue such litigation less aggressively than we would. Without protection for the intellectual property we license, other companies might be
able to offer substantially identical products for sale, which could adversely affect our competitive business position and harm our business prospects.
If we fail to obtain necessary or useful licenses to intellectual property, we could encounter substantial delays in the research, development and commercialization of our product candidates, which could affect our ability to achieve
profitability.
In the event we determine to in-license technology that we deem necessary or useful for our business, we may not be
able to obtain such licenses from other parties at a reasonable cost, or at all. If do not obtain necessary licenses, we could encounter substantial delays in developing and commercializing our product candidates while we attempt to develop
alternative technologies, methods and product candidates, which it may not be able to accomplish. Furthermore, if we fail to comply with our obligations under our third-party license agreements, we could lose license rights that are important to our
business.
Risks Associated with Infinity Common Stock
Our stock price is likely to be volatile, and the market price of our common stock may decline in value following the merger.
The market price of our common stock could be subject to significant fluctuations. Market prices for securities of early-stage pharmaceutical, biotechnology and other life sciences companies have historically been particularly volatile.
Some of the factors that may cause the market price of our common stock to fluctuate include:
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the results of our current and any future clinical trials of IPI-504 and our other drug candidates;
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the results of preclinical studies and planned clinical trials of our discovery stage and preclinical programs;
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the entry into, or termination of, key agreements, including key strategic alliance agreements;
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the results and timing of regulatory reviews relating to the approval of our drug candidates;
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the initiation of, material developments in, or conclusion of litigation to enforce or defend any of our intellectual property rights;
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failure of any of our drug candidates, if approved, to achieve commercial success;
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general and industry-specific economic conditions that may affect our research and development expenditures;
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the results of clinical trials conducted by others on drugs that would compete with our drug candidates;
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issues in manufacturing our drug candidates or any approved products;
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the loss of key employees;
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the introduction of technological innovations or new commercial products by our competitors;
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changes in estimates or recommendations by securities analysts, if any, who cover our common stock;
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future sales of our common stock;
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changes in the structure of health care payment systems; and
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period-to-period fluctuations in Infinity’s financial results.
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Moreover, the stock markets in general have experienced substantial volatility that has often been unrelated to the operating performance of individual companies. These broad market fluctuations may also adversely
affect the trading price of our common stock.
In the past, following periods of volatility in the market price of a company’s
securities, stockholders have often instituted class action securities litigation against those companies. Such litigation, if instituted, could result in substantial costs and diversion of management attention and resources, which could
significantly harm our profitability and reputation.
Our management is required to devote substantial time and incur additional expense to comply
with public company regulations. Our failure to comply with such regulations could subject us to public investigations, fines, enforcement actions and other sanctions by regulatory agencies and authorities and, as a result, our stock price could
decline in value.
The Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act, as well as rules subsequently implemented by the SEC
and the NASDAQ Global Market, impose various requirements on public companies, including with respect to corporate governance practices. We have incurred, and expect to continue incurring, significant legal, accounting and other expenses to comply
with
these requirements. In addition, our management and other personnel will need to devote a substantial amount of time to these requirements.
In addition, the Sarbanes-Oxley Act requires, among other things, that we maintain effective internal controls for financial reporting and disclosure
controls and procedures. In particular, we must perform system and process evaluation and testing of our internal controls over financial reporting to allow management and our independent registered public accounting firm to report on the
effectiveness of our internal controls over financial reporting, as required by Section 404 of the Sarbanes-Oxley Act. Our compliance with Section 404 requires us to incur substantial accounting and related expense and expend significant
management efforts. We will need to hire additional accounting and financial staff to satisfy the ongoing requirements of Section 404. Moreover, if we are not able to comply with the requirements of Section 404, or if we or our independent
registered public accounting firm identify deficiencies in our internal controls over financial reporting that are deemed to be material weaknesses, the market price of our stock could decline and we could be subject to sanctions or investigations
by the NASDAQ Global Market, SEC or other regulatory authorities.
We do not anticipate paying cash dividends, and accordingly, stockholders must
rely on stock appreciation for any return on their investment in Infinity.
We anticipate retaining our earnings, if any, for future
growth. Therefore, we do not anticipate paying cash dividends in the future. As a result, only appreciation of the price of our common stock will provide a return to stockholders. Investors seeking cash dividends should not invest in our common
stock.
Anti-takeover provisions in our stockholder rights plan and in our charter and bylaws may prevent or frustrate attempts by stockholders to
change the board of directors or current management and could make a third-party acquisition of us difficult.
We are a party to a
stockholder rights plan, also referred to as a poison pill, which is intended to deter a hostile takeover by making any proposed acquisition of us more expensive and less desirable to the potential acquirer. The stockholder rights plan and our
certificate of incorporation and bylaws, as amended, contain provisions that may discourage, delay or prevent a merger, acquisition or other change in control that stockholders may consider favorable, including transactions in which stockholders
might otherwise receive a premium for their shares. These provisions could limit the price that investors might be willing to pay in the future for shares of our common stock.
A significant portion of our total outstanding shares may be sold into the market in the near future. This could cause the market price of our common stock to drop significantly, even if our business is doing
well.
Sales of a substantial number of shares of our common stock in the public market could occur at any time. These sales, or the
perception in the market that the holders of a large number of shareholders intend to sell their shares, could reduce the market price of our common stock. Approximately 19.4 million shares of our common stock were outstanding as of
September 13, 2006, substantially all of which shares are freely transferable at any time, provided that certain
shares of our common stock issued to IDI stockholders in the merger with Discovery Partners are subject to lock-up restrictions that lapse in equal weekly
installments over the 26 week period immediately following the closing of the merger with Discovery Partners. A decline in the price of shares of our common stock resulting from these sales, or the perception that these sales may occur, might impede
our ability to raise capital through the issuance of additional shares of our common stock or other equity securities, and may cause our stockholders to lose part or all of their investments in our shares of common stock.