As filed with the Securities and Exchange Commission on March 30, 2007
Registration No. 333-140714
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NOVABAY PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in Its Charter)
California | 2834 | 68-0454536 | ||
(State or Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Number) |
(I.R.S. Employer Identification No.) |
5980 Horton Street, Suite 550
Emeryville, CA 94608
(510) 899-8800
(Address, Including Zip Code and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
Ron Najafi, Ph.D.
Chairman of the Board, Chief Executive Officer and President
NovaBay Pharmaceuticals, Inc.
5980 Horton Street, Suite 550 Emeryville, CA 94608
(510) 899-8800
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Chris Barry, Esq. Dorsey & Whitney LLP U.S. Bank Centre 1420 Fifth Avenue, Suite 3400 Seattle, WA 98101-4010 (206) 903-8815 |
Riccardo A. Leofanti, Esq. Skadden, Arps, Slate, Meagher & Flom LLP 222 Bay Street, Suite 1750 Toronto, Ontario M5K 1J5 (416) 777-4700 |
|
Robert Mason, Esq. Fasken Martineau DuMoulin LLP 66 Wellington Street West Suite 4200 Toronto, Ontario M5K 1N6 (416) 366-8381 |
John Kolada, Esq. Blake, Cassels & Graydon LLP Commerce Court West, Suite 2800 Toronto, Ontario M5L 1A9 (416) 863-2400 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered |
Proposed Maximum
Offering Price(1)(2) |
Amount of Registration Fee |
||
Common Stock, $0.01 par value |
$23,000,000 | $2,461(3) |
(1) | Includes the offering price attributable to shares that the Underwriters have the option to purchase solely to cover over-allotments, if any. |
(2) | Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. |
(3) | Previously paid. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable in connection with the sale and distribution of the securities being registered. All amounts are estimated except the SEC registration and the National Association of Securities Dealers, Inc. (NASD) filing fees. All of the expenses below will be paid by us.
Item |
|||
SEC registration fee |
$ | 2,461 | |
NASD filing fee |
2,800 | ||
American Stock Exchange listing fee |
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Toronto Stock Exchange listing fee |
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Blue sky fees and expenses |
|||
Printing and engraving expenses |
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Legal fees and expenses |
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Accounting fees and expenses |
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Transfer agent and registrar fees |
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Miscellaneous |
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Total |
$ | ||
Item 14. Indemnification of Directors and Officers.
Section 317 of the California Corporations Code authorizes a court to award, or a corporations Board of Directors to grant, indemnity to directors and officers who are parties or are threatened to be made parties to any proceeding (with certain exceptions) by reason of the fact that the person is or was an agent of the corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with the proceeding if that person acted in good faith and in a manner the person reasonably believed to be in the best interests of the corporation. Section 204 of the California Corporations Code provides that this limitation on liability has no effect on a directors liability (a) for acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (b) for acts or omissions that a director believes to be contrary to the best interests of the corporation or its shareholders or that involve the absence of good faith on the part of the director, (c) for any transaction from which a director derived an improper personal benefit, (d) for acts or omissions that show a reckless disregard for the directors duty to the corporation or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a directors duties, of a risk of a serious injury to the corporation or its shareholders, (e) for acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the directors duty to the corporation or its shareholders, (f) under Section 310 of the law (concerning contracts or transactions between the corporation and a director), or (g) under Section 316 of the law (directors liability for improper dividends, loans and guarantees). Section 317 does not extend to acts or omissions of a director in his capacity as an officer. Further, Section 317 has no effect on claims arising under federal or state securities laws and does not affect the availability of injunctions and other equitable remedies available to our shareholders for any violation of a directors fiduciary duty to us or our shareholders. Although the validity and scope of the legislation underlying Section 317 have not yet been interpreted to any significant extent by the California courts, Section 317 may relieve directors of monetary liability to us for grossly negligent conduct, including conduct in situations involving attempted takeovers of our company.
In accordance with Section 317, our articles of incorporation eliminate the liability of each of our directors for monetary damages to the fullest extent permissible under California law. Our articles of incorporation further
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authorize us to provide indemnification to our agents (including our officers and directors), subject to the limitations set forth above. The articles of incorporation and our amended and restated bylaws further provide for indemnification of our officers and directors to the maximum extent permitted by California law, and also permit the indemnification of other corporate agents to the maximum extent permitted by California law at the discretion of our Board of Directors. Additionally, we maintain insurance policies which insure our officers and directors against certain liabilities.
The foregoing summaries are necessarily subject to the complete text of the California Corporations Code, our articles of incorporation, our amended and restated bylaws and the agreements referred to above and are qualified in their entirety by reference thereto.
We have entered into agreements to indemnify our directors and certain of our officers in addition to the indemnification provided for in the articles of incorporation and amended and restated bylaws. These agreements will, among other things, indemnify our directors and some of our officers for certain expenses (including attorneys fees), judgments, fines and settlement amounts incurred by such person in any action or proceeding, including any action by or in our right, on account of services by that person as a director or officer of NovaBay or as a director or officer of any of our subsidiaries, or as a director or officer of any other company or enterprise that the person provides services to at our request.
Lastly, the underwriting agreement (Exhibit 1.1 to this registration statement) provides for indemnification by the underwriters of us and our officers and directors, and by us of the underwriters, for certain liabilities arising under the Securities Act of 1933, as amended (the Securities Act) or otherwise in connection with this offering.
Item 15. Recent Sales of Unregistered Securities
The following is a summary of our transactions since December 31, 2003, involving sales of our securities that were not registered under the Securities Act:
Common Stock Issuances
(1) In April 2004, we issued an aggregate of 764,977 shares of our common stock to various individuals as compensation for services rendered to us, which included services in connection with a private placement of Series B Preferred Stock.
(2) From March 2005 to November 2005, we issued an aggregate of 369,372 shares of our common stock to various individuals as compensation for services rendered to us, which included services in connection with a private placement of our Series C Preferred Stock.
(3) From June 2006 to December 2006, we issued an aggregate of 66,754 shares of our common stock to various individuals as compensation for services rendered to us, which included services in connection with a private placement of our Series D Preferred Stock.
(4) In February 2007, we issued an aggregate of 70,000 shares of common stock to one of our consultants as compensation for services rendered to us.
(5) From April 2004 to December 2004, we sold and issued an aggregate of 62,500 shares of common stock at purchase prices ranging from $0.40 per share to $0.60 per share upon the exercise of warrants.
(6) From March 2005 to September 2005, we sold and issued an aggregate of 583,988 shares of common stock at purchase prices ranging from $0.40 per share to $0.60 per share upon the exercise of warrants.
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(7) From January 2006 to June 2006, we sold and issued an aggregate of 2,297,169 shares of common stock at purchase prices ranging from $0.40 per share to $0.60 per share upon the exercise of warrants.
Preferred Stock Issuances
(8) From January 2004 to March 2004, we sold and issued an aggregate of 2,693,766 shares of Series B Preferred Stock at a purchase price of $0.47 per share in connection with a private placement. In January of 2004, we issued an additional 912,850 shares of Series B Preferred Stock at $0.47 per share upon conversion of outstanding convertible promissory notes.
(9) From May 2004 to October 2005, we sold and issued an aggregate of 6,666,659 shares of Series C Preferred Stock at a purchase price of $0.85 per share in connection with a private placement.
(10) From June 2005 to September 2006, we sold and issued an aggregate of 2,481,094 shares of Series D Preferred Stock at a purchase price of $1.50 per share in connection with a private placement.
Warrant Issuances
(11) From January 2004 to March 2004, we issued warrants to purchase up to an aggregate of 1,806,576 shares of our common stock at an exercise price of $0.40 per share to certain holders of our Series B Preferred Stock. In January 2005, we issued a warrant to purchase up to an aggregate of 4,840 shares of our common stock at an exercise price of $0.40 per share to one of our holders of Series B Preferred Stock. As of February 14, 2007, there were no warrants outstanding to purchase any shares of our capital stock.
Stock Option Issuances
(12) From January 2004 to December 2004, we issued options to certain of our employees, directors and consultants to acquire up to an aggregate of 1,270,500 shares of our common stock under our 2002 Stock Option Plan (the 2002 Plan) at prices ranging from $0.15 per share to $0.28 per share. From January 2005 to October 2005, we issued options to certain of our employees, directors and consultants to acquire up to an aggregate of 330,000 shares of our common stock under our 2002 Plan at exercise prices ranging from $0.28 per share to $0.60 per share. As of February 14, 2007, 2,652,716 shares of our common stock were issuable upon exercise of outstanding options granted under the 2002 Plan.
(13) In May 2005, we issued options to certain of our consultants to acquire up to an aggregate of 46,000 shares of our common stock under our 2005 Stock Option Plan (the 2005 Plan) at exercise prices ranging from $0.28 per share to $0.60 per share. From January 2006 to September 2006, we issued options to certain of our employees and consultants to acquire up to an aggregate of 1,644,000 shares of our common stock under our 2005 Plan at exercise prices ranging from $0.60 per share to $1.00 per share. In January 2007, we issued options to certain of our employees and consultants to acquire up to an aggregate of 448,665 shares of our common stock under our 2005 Plan at an exercise price of $1.14 per share.
(14) In March 2005, we issued options to various individuals to acquire up to an aggregate of 554,543 shares of our common stock outside of our 2002 Plan and 2005 Plan at prices ranging from $0.47 per share to $0.94 per share as compensation for services rendered to us in connection with a private placement of our preferred stock. As of February 14, 2007, 304,534 shares of our common stock were issuable upon exercise of outstanding options granted outside of our 2002 Plan and 2005 Plan.
The issuances of securities in the transactions described in paragraphs 1 through 3, 5 through 11, and 14 above were effected without registration under the Securities Act in reliance on Section 4(2) thereof or Rule 506 of Regulation D thereunder based on the status of each investor as an accredited investor as defined under the Securities Act. The issuances of securities in the transactions described in paragraphs 12 and 13 above were effected without registration under the Securities Act in reliance on Section 4(2) thereof or Rule 701 thereunder as transactions pursuant to compensatory benefit plans and contracts relating to compensation. None of the
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foregoing transactions was effected using any form of general advertising or general solicitation as such terms are used in Regulation D under the Securities Act. The recipients of securities in each such transaction either received adequate information about us or had access, through their relationships with us, to such information.
The issuances of securities in the transaction described in paragraph 4 above were effected without registration under the Securities Act in reliance on Rule 903 of Regulation S thereunder as an offer and sale of securities that occurred outside the United States. The sale of securities was made in an offshore transaction, did not involve any directed selling efforts within the United States, and involved only purchasers who were outside the United States and were non-U.S. Persons. In addition, such securities were also exempt from registration under the Securities Act in reliance on Section 4(2) thereof and Rule 506 of Regulation D
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit No. |
Description |
|
1.1* | Form of Underwriting Agreement | |
3.1** | Articles of Incorporation of the Registrant, as amended | |
3.2* | Proposed Amended and Restated Articles of Incorporation of the Registrant to be effective upon completion of this offering | |
3.3** | Bylaws of the Registrant, as amended | |
3.4* | Proposed Amended and Restated Bylaws of the Registrant to be effective upon the completion of this offering | |
4.1* | Specimen common stock certificate | |
5.1* | Opinion of Dorsey & Whitney LLP | |
10.1+ | 2002 Stock Option Plan, and forms of agreements thereto | |
10.2+ | 2005 Stock Option Plan, and forms of agreements thereto | |
10.3+* | 2007 Omnibus Incentive Plan, and forms of agreements thereto | |
10.4+* | Employment Agreement dated 2007 by and between the Registrant and Ramin Najafi | |
10.5+* | Employment Agreement dated 2007 by and between the Registrant and John OReilly | |
10.6+* | Employment Agreement dated 2007 by and between the Registrant Behzad Khosrovi | |
10.7+* | Employment Agreement dated 2007 by and between the Registrant and Colin Scott | |
10.8+ | Stock Option Grant dated May 23, 2002 by and between the Registrant and John OReilly | |
10.9+ | Stock Option Grant dated January 30, 2004 by and between the Registrant and Behzad Khosrovi | |
10.10 | Office Lease dated June 3, 2004 by and between the Registrant and Emery Station Associates II, LLC, as amended | |
10.11 | Collaboration and License Agreement dated August 29, 2006 by and between the Registrant and Alcon Manufacturing, Ltd. | |
10.12 | Financial Advisory and Investor Relations Consulting Agreement dated February 2007 by and between the Registrant and PM Holdings Ltd. | |
23.1** | Consent of Davidson & Company LLP | |
23.2* | Consent of Dorsey & Whitney LLP (included in Exhibit 5.1) | |
24.1** | Power of Attorney (included on signature pages hereto) |
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* | To be filed by amendment. |
** | Previously filed. |
| Confidential treatment is requested for certain confidential portions of this exhibit pursuant to Rule 406 under the Securities Act. In accordance with Rule 406, these confidential portions have been omitted from this exhibit and filed separately with the Commission. |
+ | Indicates management contract or compensatory plan. |
(b) Financial Statement Schedules
Schedules have been omitted because the information required to be set forth therein is not applicable or is
Item 17. Undertakings
The registrant hereby undertakes to provide to the Underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the Underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of NovaBay pursuant to the foregoing provisions, or otherwise, NovaBay has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by NovaBay of expenses incurred or paid by a director, officer or controlling person of NovaBay in the successful defense of any action, suit, or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, NovaBay will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus as filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by NovaBay pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and this offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, NovaBay Pharmaceuticals, Inc. has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Emeryville, State of California, on the 30th day of March 2007.
NovaBay Pharmaceuticals, Inc. | ||
By: |
/ S / R ON N AJAFI |
|
Ron Najafi Chairman of the Board, Chief Executive Officer and President |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to the Registration Statement on Form S-1 has been signed by the following persons in the capacities and on the dates indicated:
*By: | /s/ R ON N AJAFI | |
Ron Najafi Attorney-in-Fact |
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EXHIBIT INDEX
Exhibit No. |
Description |
|
1.1* | Form of Underwriting Agreement | |
3.1** | Articles of Incorporation of the Registrant, as amended | |
3.2* | Proposed Amended and Restated Articles of Incorporation of the Registrant to be effective upon completion of this offering | |
3.3** | Bylaws of the Registrant, as amended | |
3.4* | Proposed Amended and Restated Bylaws of the Registrant to be effective upon the completion of this offering | |
4.1* | Specimen common stock certificate | |
5.1* | Opinion of Dorsey & Whitney LLP | |
10.1+ | 2002 Stock Option Plan, and forms of agreements thereto | |
10.2+ | 2005 Stock Option Plan, and forms of agreements thereto | |
10.3+* | 2007 Omnibus Incentive Plan, and forms of agreements thereto | |
10.4+* | Employment Agreement dated 2007 by and between the Registrant and Ramin Najafi | |
10.5+* | Employment Agreement dated 2007 by and between the Registrant and John OReilly | |
10.6+* | Employment Agreement dated 2007 by and between the Registrant Behzad Khosrovi | |
10.7+* | Employment Agreement dated 2007 by and between the Registrant and Colin Scott | |
10.8+ | Stock Option Grant dated May 23, 2002 by and between the Registrant and John OReilly | |
10.9+ | Stock Option Grant dated January 30, 2004 by and between the Registrant and Behzad Khosrovi | |
10.10 | Office Lease dated June 3, 2004 by and between the Registrant and Emery Station Associates II, LLC, as amended. | |
10.11 | Collaboration and License Agreement dated August 29, 2006 by and between the Registrant and Alcon Manufacturing, Ltd. | |
10.12 | Financial Advisory and Investor Relations Consulting Agreement dated February 2007 by and between the Registrant and PM Holdings Ltd. | |
23.1** | Consent of Davidson & Company LLP | |
23.2* | Consent of Dorsey & Whitney LLP (included in Exhibit 5.1) | |
24.1** | Power of Attorney (included on signature pages hereto) |
* | To be filed by amendment. |
** | Previously filed |
| Confidential treatment is requested for certain confidential portions of this exhibit pursuant to Rule 406 under the Securities Act. In accordance with Rule 406, these confidential portions have been omitted from this exhibit and filed separately with the Commission. |
+ | Indicates management contract or compensatory plan. |
Exhibit 10.1
NOVACAL PHARMACEUTICALS, INC.
2002 STOCK OPTION PLAN
1. PURPOSE . This 2002 Stock Option Plan 1 (Plan) is established as a compensatory plan to attract, retain and provide equity incentives to selected persons to promote the financial success of Novacal Pharmaceuticals, Inc., a California corporation (the Company). Capitalized terms not previously defined herein are defined in Section 17 of this Plan.
2. TYPES OF OPTIONS AND SHARES . Options granted under this Plan (the Options) may be either (a) incentive stock options (ISOs) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the Code), or (b) nonqualified stock options (NQSOs), as designated at the time of grant. The shares of stock that may be purchased upon exercise of Options granted under this Plan (the Shares) are shares of the common stock of the Company.
3. NUMBER OF SHARES . The aggregate number of Shares that may be issued pursuant to Options granted under this Plan is 2,500,000 Common Shares, subject to adjustment as provided in this Plan. If any Option expires or is terminated without being exercised in whole or in part, the unexercised or released Shares from such Option shall be available for future grant and purchase under this Plan. At all times during the term of this Plan, the Company shall reserve and keep available such number of Shares as shall be required to satisfy the requirements of outstanding Options under this Plan.
4. ELIGIBILITY .
(a) General Rules of Eligibility . Options may be granted to employees, officers, directors, consultants, independent contractors and advisors (provided such consultants, contractors and advisors render bona fide services not in connection with the offer and sale of securities in a capital-raising transaction) of the Company or any Parent, Subsidiary or Affiliate of the Company. ISOs may be granted only to employees (including officers and directors who are also employees) of the Company or a Parent or Subsidiary of the Company. The Committee (as defined in Section 14) in its sole discretion shall select the recipients of Options (Optionees). An Optionee may be granted more than one Option under this Plan.
1 |
Approved by the Company Board of Directors on May 23, 2002. |
Approved by the Company shareholders on , 2002.
(b) Company Assumption of Options . The Company may also, from time to time, assume outstanding options granted by another company, whether in connection with an acquisition of such other company or otherwise, by either (i) granting an Option under this Plan in replacement of the option assumed by the Company, or (ii) treating the assumed option as if it had been granted under this Plan if the terms of such assumed option could be applied to an option granted under this Plan. Such assumption shall be permissible if the holder of the assumed option would have been eligible to be granted an option hereunder if the other company had applied the rules of this Plan to such grant.
5. TERMS AND CONDITIONS OF OPTIONS . The Committee shall determine whether each Option is to be an ISO or an NQSO, the number of Shares subject to the Option, the exercise price of the Option, the period during which the Option may be exercised, and all other terms and conditions of the Option, subject to the following:
(a) Form of Option Grant . Each Option granted under this Plan shall be evidenced by a written Stock Option Grant (the Grant) in substantially the form attached hereto as Exhibit A or such other form as shall be approved by the Committee.
(b) Date of Grant . The date of grant of an Option shall be the date on which the Committee makes the determination to grant such Option unless otherwise specified by the Committee and subject to applicable provisions of the Code. The Grant representing the Option will be delivered to the Optionee with a copy of this Plan within a reasonable time after the date of grant; provided, however that if, for any reason, including a unilateral decision by the Company not to execute an agreement evidencing such option, a written Grant is not executed within sixty (60) days after the date of grant, such option shall be deemed null and void. No Option shall be exercisable until such Grant is executed by the Company and the Optionee.
(c) Exercise Price . The exercise price of an NQSO shall be not less than eighty-five percent (85%) of the Fair Market Value of the Shares on the date the Option is granted. The exercise price of an ISO shall be not less than one hundred percent (100%) of the Fair Market Value of the Shares on the date the Option is granted. The exercise price of any Option granted to a person owning more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any Parent or Subsidiary of the Company (Ten Percent Shareholders) shall not be less than one hundred and ten percent (110%) of the Fair Market Value of the Shares on the date the Option is granted.
(d) Exercise Period and Early Exercise . Options shall be exercisable within the times or upon the events determined by the Committee as set forth in the Grant; provided, however that each Option must become exercisable at a rate of at least twenty percent (20%) per year over five (5) years from the date the Option is granted; except, in the case of an option granted to officers, directors, or consultants of Company, or the issuer of the options underlying security or any of its Affiliates, the option may become fully exercisable, subject to reasonable
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conditions such as continued employment, at any time or during any period established by Company, or the issuer of the underlying security or any of its Affiliates; and provided, however, that no Option shall be exercisable after the expiration of ten (10) years from the date the Option is granted, and provided further that no ISO granted to a Ten Percent Shareholder shall be exercisable after the expiration of five (5) years from the date the Option is granted. The grant may, but need not, include a provision whereby the Optionee may elect at any time while an employee, officer, director, consultant, independent contractor or advisor to exercise all or any part of the Option prior to the time and/or events when the Option becomes exercisable. Any Shares received pursuant to any exercise, as provided in Section 7 below, at the discretion of the Committee, may be subject to a repurchase right in favor of Company (and/or any of its Affiliates) or to any other restriction determined, in its discretion, by the Committee.
(e) Limitations .
(i) ISO Limitations . The aggregate Fair Market Value (determined as of the time an Option is granted) of stock with respect to which ISOs are exercisable for the first time by an Optionee during any calendar year (under this Plan or under any other incentive stock option plan of the Company or any Parent or Subsidiary of the Company) shall not exceed one hundred thousand dollars ($100,000). If the Fair Market Value of stock with respect to which ISOs are exercisable for the first time by an Optionee during any calendar year exceeds $100,000, the Options for the amount in excess of $100,000 shall be treated as not being ISOs and shall be NQSOs. The foregoing shall be applied by taking Options into account in the order in which they were granted. In the event that the Code or the regulations promulgated thereunder are amended after the effective date of this Plan to provide for a different limit on the Fair Market Value of Shares permitted to be subject to ISOs, such different limit shall be incorporated herein and shall apply to any Options granted after the effective date of such amendment.
(ii) Limitations on Grants . The foregoing provisions of this Plan notwithstanding, no Optionee shall be granted Options under this Plan in any one fiscal year which in the aggregate shall permit the Optionee to purchase more than 400,000 shares of Common Stock. To the extent the Board of Directors of the Company determines that the limitations such as the provisions of this Section 5(e)(ii) are no longer required to preserve the deductibility for the Company of option-related compensation under Section 162(m) of the Code, the Board of Directors may modify or eliminate the limitations contained in this Section 5(e)(ii).
(f) Options Non-Transferable . Options granted under this Plan, and any interest therein, shall not be transferable or assignable by the Optionee, and may not be made
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subject to execution, attachment or similar process, otherwise than by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionee only by the Optionee or any permitted transferee.
(g) Assumed Options . In the event the Company assumes an option granted by another company in accordance with Section 4(b) above, the terms and conditions of such option shall remain unchanged (except the exercise price and the number and nature of shares issuable upon exercise, which will be adjusted appropriately pursuant to Section 424 of the Code and the Treasury Regulations applicable thereto). In the event the Company elects to grant a new option rather than assuming an existing option (as specified in Section 4), such new option need not be granted at Fair Market Value on the date of grant and may instead be granted with a similarly adjusted exercise price.
(h) Termination of Options . Except as otherwise provided in an Optionees grant, options granted under the Plan shall terminate and may not be exercised if the Optionee ceases to be employed by, or provide services to, the Company or any Parent or Subsidiary of the Company (or, in the case of a NQSO, by or to any Affiliate of the Company). An Optionee shall be considered to be employed by the Company for all purposes under this Section 5(h) if the Optionee is an officer, director or full-time employee of the Company or any Parent, Subsidiary or Affiliate of the Company or if the Committee determines that the Optionee is rendering substantial services as a part-time employee, consultant, contractor or advisor to the Company or any Parent, Subsidiary or Affiliate of the Company. The Committee shall have discretion to determine whether an Optionee has ceased to be employed by the Company or any Parent, Subsidiary or Affiliate of the Company and the effective date on which such employment terminated (the Termination Date).
(i) Termination Generally . If an Optionee ceases to be employed by the Company and all Parents, Subsidiaries or Affiliates of the Company for any reason except death or disability, the Options which are vested (the Vested Options), to the extent (and only to the extent) exercisable by the Optionee on the Termination Date, may be exercised by the Optionee, but only within three months after the Termination Date or such shorter period of time as provided in the Grant, but in no event less than thirty (30) days; provided that the Option may not be exercised in any event after the expiration date for the Option.
(ii) Death or Disability . If an Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of the death of the Optionee or the permanent and total disability of the Optionee within the meaning of Section 22(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by the Optionee on the Termination Date, may be exercised by the Optionee (or the Optionees legal representative), but only within twelve (12) months after the Termination
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Date; and provided further that the Option may not be exercised in any event later than the Expiration Date. If an Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of a disability of the Optionee which is not permanent and total within the meaning of Section 22(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by the Optionee on the Termination Date, may be exercised by the Optionee or the Optionees legal representative, but only within six (6) months after the Termination Date; and provided further that the Option may not be exercised in any event later than the expiration date for the Option.
6. EXERCISE OF OPTIONS .
(a) Notices . Options may be exercised only by delivery to the Company of a written exercise agreement in a form approved by the Committee (which need not be the same for each Optionee), stating the number of Shares being purchased, the restrictions imposed on the Shares, if any, and such representations and agreements regarding the Optionees investment intent and access to information, if any, as may be required by the Company to comply with applicable securities laws, together with payment in full of the exercise price for the number of Shares being purchased.
(b) Payment . Payment for the Shares may be made in cash (by check) or, where approved by the Committee in its sole discretion at the time of grant and where permitted by law: (i) by cancellation of indebtedness of the Company to the Optionee; (ii) by surrender of shares of Common Stock of the Company already owned by the Optionee, having a Fair Market Value equal to the exercise price of the Option; (iii) by waiver of compensation due or accrued to Optionee for services rendered; (iv) through delivery of a promissory note for the full exercise price bearing interest at such rate with the note due at such time, on a secured or unsecured basis, as determined by the Committee; (v) through a guaranty by the Company of a loan to the Optionee by a third party of all or part of the option price (but not more than the option price), and such guaranty may be on an unsecured or secured basis as the Committee shall approve (including, without limitation, by a security interest in the shares of the Company); (vi) provided that a public market for the Companys stock exists, through a same day sale commitment from the Optionee and a broker-dealer that is a member of the National Association of Securities Dealers, Inc. (an NASD Dealer) whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; (vii) provided that a public market for the Companys stock exists, through a margin commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; or (viii) by any combination of the foregoing.
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(c) Withholding Taxes . Prior to issuance of the Shares upon exercise of an Option, at the discretion of the Committee (or, unless otherwise determined by the Committee, at the discretion of the Companys management), the Optionee shall pay or make adequate provision for any federal or state withholding obligations of the Company, if applicable. Where approved by the Committee in its sole discretion, the Optionee may provide for payment of withholding taxes upon exercise of the Option by requesting that the Company retain Shares with a Fair Market Value equal to the minimum amount of taxes required to be withheld. In such case, the Company shall issue the net number of Shares to the Optionee by deducting the Shares retained from the Shares exercised. The Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to be withheld is to be determined in accordance with Section 83 of the Code (the Tax Date). All elections by Optionees to have Shares withheld for this purpose shall be made in writing in a form acceptable to the Committee and shall be subject to the following restrictions:
(i) the election must be made on or prior to the applicable Tax Date;
(ii) once made, the election shall be irrevocable as to the particular Shares as to which the election is made;
(iii) all elections shall be subject to the consent or disapproval of the Committee;
(iv) if the Optionee is an officer or director of the Company or other person (in each case, an Insider) whose transactions in the Companys Common Stock are subject to Section 16(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act) and if the Company is subject to Section 16(b) of the Exchange Act, the election must comply with Rule 16b-3 as promulgated by the Securities and Exchange Commission (Rule 16b-3).
(d) Limitations on Exercise . Notwithstanding anything else to the contrary in the Plan or any Grant, no Option may be exercisable later than the expiration date of the Option.
7. RESTRICTIONS ON SHARES . At the discretion of the Committee, the Company may reserve to itself and/or its assignee(s) in the Grant (a) a right of first refusal to purchase all Shares that an Optionee (or a subsequent transferee) may propose to transfer to a third party and/or (b) a right to repurchase a portion of or all Shares held by an Optionee upon the Optionees termination of employment or service with the Company or its Parent, Subsidiary or Affiliate of the Company for any reason (Termination Date), if (i) the repurchase price is not less than the fair market value of the Shares to be repurchased on the Termination Date, and the right to repurchase must be exercised for cash or cancellation of purchase money indebtedness
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for the Shares within 90 days of the Termination Date, and the right terminates when Companys securities become publicly traded, or (ii) the repurchase price is at the original purchase price, provided the right to repurchase at the original price lapses at the rate of at least 20% of the Shares per year over five years from the date the Option is granted (without respect to the date when the Option was exercised or became exercisable) and the right to repurchase must be exercised for cash or cancellation of purchase money indebtedness for the Shares within 90 days of the Termination Date; provided, however, that in addition to the restrictions set forth in (i) and (ii) immediately above, Shares held by an officer, director or consultant of Company or any affiliate of Company may be subject to additional or greater restrictions.
8. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS . The Committee shall have the power to modify, extend or renew outstanding Options and to authorize the grant of new Options in substitution therefor, provided that any such action may not, without the written consent of the Optionee, impair any rights under any Option previously granted. Any outstanding ISO that is modified, extended, renewed or otherwise altered shall be treated in accordance with Section 424(h) of the Code. The Committee shall have the power to reduce the exercise price of outstanding options; provided, however, that the exercise price per share may not be reduced below the minimum exercise price that would be permitted under Section 5(c) of this Plan for options granted on the date the action is taken to reduce the exercise price. Notwithstanding any other provision of this Plan, the Committee may accelerate the earliest date or dates on which outstanding Options (or any installments thereof) are exercisable.
9. PRIVILEGES OF STOCK OWNERSHIP . No Optionee shall have any of the rights of a shareholder with respect to any Shares subject to an Option until such Option is properly exercised. No adjustment shall be made for dividends or distributions or other rights for which the record date is prior to such date, except as provided in this Plan. The Company shall provide annually to each Optionee a copy of the annual financial statements of the Company.
10. NO OBLIGATION TO EMPLOY; NO RIGHT TO FUTURE GRANTS . Nothing in this Plan or any Option granted under this Plan shall confer on any Optionee any right (a) to continue in the employ of, or other relationship with, the Company or any Parent or Subsidiary of the Company or limit in any way the right of the Company or any Parent, Subsidiary or Affiliate of the Company to terminate the Optionees employment or other relationship at any time, with or without cause or (b) to have any Option(s) granted to such Optionee under this Plan, or any other plan, or to acquire any other securities of the Company, in the future.
11. ADJUSTMENT OF OPTION SHARES . In the event that the number of outstanding shares of Common Stock of the Company is changed by a stock dividend, stock split, reverse stock split, combination, reclassification or similar change in the capital structure of the Company without consideration, or if a substantial portion of the assets of the Company are distributed, without consideration in a spin-off or similar transaction, to the shareholders of the
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Company, the number of Shares available under this Plan and the number of Shares subject to outstanding Options and the exercise price per share of such Options shall be proportionately adjusted, subject to any required action by the Board or shareholders of the Company and compliance with applicable securities laws; provided, however, that a fractional share shall not be issued upon exercise of any Option and any fractions of a Share that would have resulted shall either be cashed out at Fair Market Value or the number of Shares issuable under the Option shall be rounded down to the nearest whole number, as determined by the Committee; and provided further that the exercise price may not be decreased to below the par value, if any, for the Shares.
12. ASSUMPTION OF OPTIONS BY SUCCESSORS .
(a) In the event of (i) a merger or consolidation in which the Company is not the surviving corporation (other than a merger or consolidation with a wholly-owned subsidiary or a Parent or where there is no substantial change in the shareholders of the corporation and the Options granted under this Plan are assumed by the successor corporation), or (ii) the sale of all or substantially all of the assets of the Company, any or all outstanding Options shall be assumed by the successor corporation, which assumption shall be binding on all Optionees, an equivalent option shall be substituted by such successor corporation or the successor corporation shall provide substantially similar consideration to Optionees as was provided to shareholders (after taking into account the existing provisions of the Optionees options such as the exercise price and the vesting schedule), and, in the case of outstanding shares subject to a repurchase option, issue substantially similar shares or other property subject to repurchase restrictions no less favorable to the Optionee.
(b) In the event such successor corporation, if any, refuses to assume or substitute, as provided above, pursuant to an event described in subsection (a) above, or in the event of a dissolution or liquidation of the Company, the Options shall, notwithstanding any contrary terms in the Grant, expire on a date specified in a written notice given by the Committee to the Optionees specifying the terms and conditions of such termination (which date must be at least twenty (20) days after the date the Committee gives the written notice).
13. ADOPTION AND SHAREHOLDER APPROVAL . This Plan shall become effective on the date that it is adopted by the Board of the Company (the Board). This Plan shall be approved by the shareholders of the Company, in any manner permitted by applicable corporate law, within twelve (12) months before or after the date this Plan is adopted by the Board.
14. ADMINISTRATION . This Plan may be administered by the Board or a Committee appointed by the Board (the Committee). If, at any time after the Company registers under the Exchange Act, the Board desires the Plan to be administered by a Committee, the Board shall appoint a Committee consisting of not less than two directors, each of whom is a Nonemployee Director. As used in this Plan, references to the Committee shall mean either
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such Committee or the Board if no committee has been established. The interpretation by the Committee of any of the provisions of this Plan or any Option granted under this Plan shall be final and binding upon the Company and all persons having an interest in any Option or any Shares purchased pursuant to an Option.
15. TERM OF PLAN . Options may be granted pursuant to this Plan from time to time on or prior to May 22, 2012, a date which is less than ten years after the earlier of the date of approval of this Plan by the Board or the shareholders of the Company pursuant to Section 13 of this Plan.
16. AMENDMENT OR TERMINATION OF PLAN . The Board of Directors or Committee may, at any time, amend, alter, suspend or discontinue the Plan, but no amendment, alteration, suspension or discontinuation shall be made which would impair the rights of any Optionee under any Option theretofore granted, without his or her consent, or which, without the approval of the shareholders of the Company would:
(a) except as provided in Section 11 of the Plan, increase the total number of Shares reserved for the purposes of the Plan;
(b) extend the duration of the Plan;
(c) extend the period during and over which Options may be exercised under the Plan.
Without limiting the foregoing, the Committee may at any time or from time to time authorize the Company, with the consent of the respective Optionees, to issue new options in exchange for the surrender and cancellation of any or all outstanding Options.
17. CERTAIN DEFINITIONS . As used in this Plan, the following terms shall have the following meanings:
(a) Affiliate means any corporation that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, another corporation, where control (including the terms controlled by and under common control with) means the possession, direct or indirect, of the power to cause the direction of the management and policies of the corporation, whether through the ownership of voting securities, by contract or otherwise.
(b) Fair Market Value shall mean the fair market value of the Shares as determined by the Committee from time to time in good faith. If a public market exists for the
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Shares, the Fair Market Value shall be the average of the last reported bid and asked prices for Common Stock of the Company on the last trading day prior to the date of determination or, in the event the Common Stock of the Company is listed on a stock exchange or is a Nasdaq National Market security, the Fair Market Value shall be the closing price on such exchange or system on the last trading day prior to the date of determination.
(c) Nonemployee Director shall have the meaning set forth in Rule 16b-3(b)(3) as promulgated by the Securities and Exchange Commission under Section 16(b) of the Exchange Act, as such rule is amended from time to time and as interpreted by the Securities and Exchange Commission.
(d) Parent means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if, at the time of the granting of the Option, each of the corporations other than the Company owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
(e) Subsidiary means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if, at the time of the granting of the Option, each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
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EXHIBIT A
STOCK OPTION GRANT
Optionee:_____________________________________________________________________________________
Address:______________________________________________________________________________________
_____________________________________________________________________________________________
Total Shares Subject to Option:_____________________________________________________________________
Exercise Price Per Share:_________________________________________________________________________
Date of Grant:__________________________________________________________________________________
Expiration Date of Option:_________________________________________________________________________
Type of Stock Option: Incentive: ¨
Nonqualified: ¨
1. Grant of Option . Novacal Pharmaceuticals, Inc., a California corporation (the Company), hereby grants to the optionee named above (Optionee) an option (this Option) to purchase the total number of shares of Common Stock of the Company set forth above (the Shares) at the exercise price per share set forth above (the Exercise Price), subject to all of the terms and conditions of this Grant and the Companys 2002 Stock Option Plan, as amended to the date hereof (the Plan). If designated as an Incentive Stock Option above, this Option is intended to qualify as an incentive stock option (ISO) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the Code). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Plan.
2. Exercise Period of Option . The option rights granted hereunder are exercisable during the time period or periods, and as to the number of shares exercisable during each time period, as follows:
(a) shares, or any part thereof, may be exercised at any time or times, from and including to and including ;
(b) an additional shares, or any part thereof, may be exercised at any time or times, from and including to and including ;
(c) an additional shares, or any part thereof, may be exercised at any time or times, from and including to and including ;
(d) an additional shares, or any part thereof, may be exercised at any time or times, from and including to and including ;
(e) and the remaining shares, or any part thereof, may be exercised at any time or times, from and including to and including .
Notwithstanding the above, (i) the Committee or to the extent a Committee has not been appointed, the Board of Directors (it being understood in such event reference herein to the Committee shall mean the Board of Directors), in its sole discretion, may, upon written notice to the Optionee, accelerate the earliest date or dates on which any of the Option rights granted hereunder are exercisable, and (ii) the minimum number of Shares that may be purchased upon any partial exercise of the Option is ( ) shares, and (iii) this Option shall expire on the Expiration Date set forth above and must be exercised, if at all, on or before the Expiration Date. The portion of Shares as to which an Option is exercisable in accordance with the above schedule as of the applicable dates shall be deemed Vested Options.
3. Early Exercise and Repurchase Rights . Notwithstanding the condition precedent exercise periods and/or events set forth in Section 2 above, after the date of this Grant and prior to said exercise periods and/or events, Optionee, at any time, or from time to time, may exercise (early exercise) any or all of the option rights granted hereunder, after the date of this Grant and prior to said Section 2 exercise periods and/or events, provided, however, if, and to the extent, that the Shares purchased pursuant to such exercise are not Vested Shares (as defined in Section 2 above), Company shall have the right and option to repurchase any or all of said Shares (as are not Vested Shares) at the per share original exercise price set forth herein, equitably and proportionately adjusted or otherwise relevantly changed to reflect any Company Common Stock dividends, stock splits, reverse stock splits, other similar stock combinations or divisions, or stock reclassifications, occurring after the date hereof. Said repurchase right shall be exercisable as of, when, and to such extent, and shall terminate as of such date(s), as set forth in and provided by those certain Repurchase Terms provided in Section 10 in the Stock Option Exercise Agreement, attached as Exhibit 1 hereto. It is understood, however, that, after the Termination Date, as defined in Section 5 below, or after any other termination of the option rights herein, no exercise may be made of any rights to Shares under the exercise provisions
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(early exercise) in this Section 3. As to any Shares purchased upon an exercise hereunder as are not Vested Shares, as a condition of and requirement for said exercise and purchase, (i) the certificate(s), representing said Shares, shall be retained and held by Company in its possession for purposes of its repurchase rights, and (ii) Optionee shall have delivered to Company an Assignment Separate from Certificate (Stock Power), as signed by Optionee, but with the number of shares to be transferred and transferee unspecified (and Optionee hereby irrevocably designates and authorizes Company, and its successors and assigns, as agent for Optionee to date, complete and otherwise use said Stock Power to effectuate and implement Companys repurchase rights herein; said designation and authority being deemed coupled with an interest and being irrevocable). For purposes of protecting and securing Companys repurchase rights to said Shares, Optionee hereby grants to Company a security interest in said Shares and agrees, unless Company otherwise consents in writing, not to sell, transfer or offer to sell or transfer any of said Shares as are and remain subject to Companys repurchase rights. Upon completion of the transfer of the Shares (or appropriate portion thereof) to Company relative to its repurchase rights and/or upon the termination of said rights, as the case may be, all remaining Shares not repurchased by and transferred to Company shall be transferred and/or returned to Optionee. All of the terms herein are fully binding and enforceable upon Optionee and Optionees heirs, representatives, successors and assigns. All certificate(s) representing the Shares of Company to be retained and held by Company shall, until released to Optionee free of Companys repurchase rights, may bear, at Companys discretion, in addition to each of the legend(s) as otherwise herein prescribed, the following legend (with the appropriate date filled in):
THESE SHARES ARE SUBJECT TO A REPURCAHSE OPTION OF THE CORPORATION AND TO VARIOUS TRANSFER AND OTHER RESTRICTIONS AS SET FORTH IN THAT CERTAIN STOCK OPTION GRANT, DATED , 20 , A COPY OF WHICH IS ON FILE WITH THE CORPORATION.
It is understood that Optionee may accompany the exercise of the option rights herein with the filing with the Internal Revenue Service of an election to include income in the year of the exercise pursuant to Section 83(b) of the Internal Revenue Code (and with such state agencies and under such state laws as applicable). OPTIONEE SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THE OPTION OR MAKING SUCH FILING TO VERIFY AND CONFIRM THAT SUCH ACTIONS ARE APPROPRIATE WITH RESPECT TO OPTIONEES TAX CIRCUMSTANCES.
4. Restriction on Exercise . This Option may not be exercised unless such exercise is in compliance with the Securities Act of 1933, as amended, and all applicable state securities laws, as they are in effect on the date of exercise, and the requirements of any stock exchange or over-the-counter market on which the Companys Common Stock may be listed or quoted at the time of exercise. Optionee understands that the Company is under no obligation to register, qualify or list the Shares with the Securities and Exchange Commission, any state securities commission or any stock exchange to effect such compliance.
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5. Termination of Option . Except as provided below in this Section 4, this Option shall terminate and may not be exercised if Optionee ceases to be employed by, or provide services to, the Company or by any Parent or Subsidiary of the Company (or, in the case of a nonqualified stock option, by or to any Affiliate of the Company). Optionee shall be considered to be employed by the Company for all purposes under this Section 4 if Optionee is an officer, director or full-time employee of the Company or any Parent, Subsidiary or Affiliate of the Company or if the Committee determines that Optionee is rendering substantial services as a part-time employee, consultant, contractor or advisor to the Company or any Parent, Subsidiary or Affiliate of the Company. The Committee shall have discretion to determine whether Optionee has ceased to be employed by the Company or any Parent, Subsidiary or Affiliate of the Company and the effective date on which such employment terminated (the Termination Date).
(a) Termination Generally . If Optionee ceases to be employed by the Company and all Parents, Subsidiaries or Affiliates of the Company for any reason except death or disability, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee, but only within three months after the Termination Date; provided that this Option may not be exercised in any event after the Expiration Date.
(b) Death or Disability . If Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of the death of Optionee or the permanent and total disability of Optionee within the meaning of Section 22(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee (or Optionees legal representative), but only within twelve (12) months after the Termination Date; and provided further that this Option may not be exercised in any event later than the Expiration Date. If Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of a disability of Optionee which is not permanent and total within the meaning of Section 221(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee or Optionees legal representative, but only within six (6) months after the Termination Date; and provided further that the Option may not be exercised in any event later than the Expiration Date. Optionee understands that if the Option is an ISO and if it is exercised after three months in the event of a disability which is not permanent and total, the Option will be treated as a nonqualified stock option for tax purposes.
(c) No Right to Employment . Nothing in the Plan or this Grant shall confer on Optionee any right to continue in the employ of, or other relationship with, the Company or any Parent, Subsidiary or Affiliate of the Company or limit in any way the right of the Company or any Parent, Subsidiary or Affiliate of the Company to terminate Optionees employment or other relationship at any time, with or without cause.
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6. Manner of Exercise .
(a) Exercise Agreement . This Option shall be exercisable by delivery to the Company of an executed written Stock Option Exercise Agreement in the form attached hereto as Exhibit 1, or in such other form as may be approved by the Company, which shall set forth Optionees election to exercise some or all of this Option, the number of Shares being purchased, any restrictions imposed on the Shares and such other representations and agreements as may be required by the Company to comply with applicable securities laws.
(b) Exercise Price . The Stock Option Exercise Agreement shall be accompanied by full payment of the Exercise Price for the Shares being purchased. Payment for the Shares may be made in cash (by check), or, where permitted by law, by any of the following methods approved by the Committee at the date of grant of this Option, or any combinations thereof:
¨ | (i) by cancellation of indebtedness of the Company to the Optionee; |
¨ | (ii) by surrender of shares of Common Stock of the Company already owned by the Optionee, or which were obtained by Optionee in the open public market, having a Fair Market Value equal to the exercise price of the Option; |
¨ | (iii) by waiver of compensation due or accrued to Optionee for services rendered; |
¨ | (iv) through delivery of a promissory note for the amount of the exercise price bearing interest at such a rate as determined by the Committee, secured or unsecured as determined by the Committee, and due at such time as determined by the Committee; |
¨ | (v) through a guaranty by the Company of a loan to the Optionee by a third party of all or part of the option price (but not more than the option price), and such guaranty may be on an unsecured or secured basis as the Committee shall approve (including, without limitation, by a security interest in the Shares of the Company); |
¨ | (vi) provided that a public market for the Companys stock exists, through a same day sale commitment from the Optionee and a broker dealer that is a member of the National Association of Securities Dealers, Inc. (an NASD Dealer) whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; or |
¨ |
(vii) provided that a public market for the Companys stock exists, through a margin commitment from the Optionee and an NASD Dealer whereby the |
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Optionee irrevocably elects to exercise this option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company. |
(c) Withholding Taxes . Prior to the issuance of the Shares upon exercise of this Option, if so required by Company, Optionee must pay or make adequate provision for any applicable federal or state withholding obligations of the Company. The Optionee may provide for payment of Optionees minimum statutory withholding taxes upon exercise of the Option by requesting that the Company retain Shares with a Fair Market Value equal to the minimum amount of taxes required to be withheld, all as set forth in Section 6(c) of the Plan. In such case, the Company shall issue the net number of Shares to the Optionee by deducting the Shares retained from the Shares exercised.
(d) Issuance of Shares . Provided that such notice and payment are in form and substance satisfactory to counsel for the Company, the Company shall cause the Shares to be issued in the name of Optionee or Optionees legal representative.
7. Notice of Disqualifying Disposition of ISO Shares . If the Option granted to Optionee herein is an ISO, and if Optionee sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (1) the date two years after the Date of Grant, or (2) the date one year after exercise of the ISO with respect to the Shares to be sold or disposed of, the Optionee shall immediately notify the Company in writing of such disposition. Optionee acknowledges and agrees that Optionee may be subject to income tax withholding by the Company on the compensation income recognized by the Optionee from any such early disposition by payment in cash or out of the current wages or other earnings payable to the Optionee.
8. Nontransferability of Option . This Option may not be transferred in any manner other than by will or by the law of descent and distribution and may be exercised during the lifetime of Optionee only by Optionee or other permitted transferee. The terms of this Option shall be binding upon the executors, administrators, successors and assigns of the Optionee.
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9. Federal Tax Consequences . Set forth below is a brief summary as of the date this form of Option Grant was adopted of some of the federal tax consequences of exercise of this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercise of ISO . If this Option qualifies as an ISO, there will be no regular federal income tax liability upon the exercise of this Option, although the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated as an adjustment to alternative minimum taxable income for federal income tax purposes and may subject the Optionee to an alternative minimum tax liability in the year of exercise.
(b) Exercise of Nonqualified Stock Option . If this Option does not qualify as an ISO, there may be a regular federal income tax liability upon the exercise of the Option. The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. The Company will be required to withhold from Optionees compensation or collect from Optionee and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise.
(c) Disposition of Shares . In the case of a nonqualified stock option, if Shares are held for at least one year before disposition, any gain on disposition of the Shares will be treated as long-term capital gain for federal and California income tax purposes. In the case of an ISO, if Shares are held for at least one year after the date of exercise and at least two years after the Date of Grant, any gain on disposition of the Shares will be treated as long-term capital gain for federal and California income tax purposes. If Shares acquired pursuant to an ISO are disposed of within such one-year or two-year periods (a disqualifying disposition), gain on such disqualifying disposition will be treated as compensation income (taxable at ordinary income rates) to the extent of the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price (the Spread). Any gain in excess of the Spread shall be treated as capital gain.
10. Interpretation . Any dispute regarding the interpretation of this Grant shall be submitted by Optionee or the Company to the Companys Board of Directors or the Committee, which shall review such dispute at its next regular meeting. The resolution of such a dispute by the Board or Committee shall be final and binding on the Company and Optionee.
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11. Entire Agreement . The Plan and the Stock Option Exercise Agreement attached hereto as Exhibit 1 are incorporated herein by this reference. This Grant, the Plan and the Stock Option Exercise Agreement constitute the entire agreement of the parties hereto and supersede all prior undertakings and agreements with respect to the subject matter hereof.
Novacal Pharmaceuticals, Inc. | ||
By: | ||
Name: | ||
Title: |
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ACCEPTANCE
Optionee hereby acknowledges receipt of a copy of the Plan, represents that Optionee has read and understands the terms and provisions thereof, and accepts this Option subject to all the terms and conditions of the Plan and this Stock Option Grant. Optionee acknowledges that there may be adverse tax consequences upon exercise of this Option or disposition of the Shares and that Optionee should consult a tax adviser prior to such exercise or disposition.
OPTIONEE: | ||
Signature: | ||
Print Name: | ||
Date: |
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EXHIBIT 1
TO STOCK OPTION GRANT
STOCK OPTION EXERCISE AGREEMENT
This Agreement is made this day of , 20 between Novacal Pharmaceuticals, Inc., a California corporation (the Company), and the optionee named below (Optionee).
Optionee: _________________________________________________________________________
Social Security Number:______________________________________________________________
Address:__________________________________________________________________________
_________________________________________________________________________________
Number of Shares Purchased:__________________________________________________________
Price Per Share:_____________________________________________________________________
Aggregate Purchase Price:_____________________________________________________________
Date of Option Grant:_________________________________________________________________
Type of Stock Option: Incentive: ___________________
Nonqualified: _________________
Optionee hereby delivers to the Company the Aggregate Purchase Price, to the extent permitted in the Option Grant, as follows [Company to check applicable box(es) and complete ]:
¨ | cash (check) in the amount of $ , receipt of which is acknowledged by the Company; |
¨ | by delivery of fully-paid, nonassessable and vested shares of the Common Stock of the Company owned by Optionee and owned free and clear of all liens, claims, encumbrances or security interests, valued at the current fair market value of $ per share (determined in accordance with the Plan); |
¨ | by the waiver hereby of compensation due or accrued for services rendered in the amount of $ ; |
¨ | by delivery of a promissory note in the amount of $ with such terms as determined by the Committee; |
¨ | by delivery of all of the proceeds of a loan from a third party in the amount of $ , which loan is guaranteed by the Company; |
¨ | by delivery of a same day sale commitment from the Optionee and a broker dealer that is a member of the National Association of Securities Dealers, Inc. (an NASD Dealer) whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price of $ and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company (this payment method may be used only if a public market for the Companys stock exists); or |
¨ | by delivery of a margin commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise this option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price of $ directly to the Company (this payment method may be used only if a public market for the Companys stock exists). |
The Company and Optionee hereby agree as follows:
1. Purchase of Shares . On this date and subject to the terms and conditions of this Agreement, Optionee hereby exercises the Stock Option Grant between the Company and Optionee dated as of the Date of Option Grant set forth above (the Grant), with respect to the Number of Shares Purchased set forth above of the Companys Common Stock (the Shares) at an aggregate purchase price equal to the Aggregate Purchase Price set forth above (the Purchase Price) and the Price per Share set forth above (the Purchase Price Per Share). The term Shares refers to the Shares purchased under this Agreement and includes all securities received (a) in replacement of the Shares, and (b) as a result of stock dividends or stock splits in respect of the Shares. Capitalized terms used herein that are not defined herein have the definitions ascribed to them in the Plan or the Grant.
2. Representations of Purchaser . Optionee represents and warrants to the Company that:
(a) Optionee has received, read and understood the Plan and the Grant and agrees to abide by and be bound by their terms and conditions.
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(b) Optionee is capable of evaluating the merits and risks of this investment, has the ability to protect Optionees own interests in this transaction and is financially capable of bearing a total loss of this investment.
(c) Optionee is fully aware of (i) the highly speculative nature of the investment in the Shares; (ii) the financial hazards involved; and (iii) the lack of liquidity of the Shares.
(d) Optionee is purchasing the Shares for Optionees own account for investment purposes only and not with a view to, or for sale in connection with, a distribution of the Shares within the meaning of the Securities Act of 1933, as amended (the 1933 Act).
(e) Optionee has no present intention of selling or otherwise disposing of all or any portion of the Shares.
(f) Optionee shall agree, to the extent requested by Company and an underwriter of Companys Common Stock, not to sell or otherwise transfer or dispose of any securities of Company, whether or not acquired hereunder, during a reasonable period of time not to exceed 180 days, as agreed to by Company and said underwriter, following the effective date of a registration statement under the Securities Act of 1933 with respect to any public offering of Companys securities.
3. Compliance with Securities Laws . Optionee understands and acknowledges that the Shares have not been registered under the 1933 Act and that, notwithstanding any other provision of the Grant to the contrary, the exercise of any rights to purchase any Shares is expressly conditioned upon compliance with the 1933 Act and all applicable state securities laws. Optionee agrees to cooperate with the Company to ensure compliance with such laws. The Shares are being issued under the 1933 Act pursuant to [the Company will check the applicable box] :
¨ | the exemption provided by Rule 701; |
¨ | the exemption provided by Rule 504; |
¨ | Section 4(2) of the 1933 Act; |
¨ | other: ____________________________________________ |
If privately held:
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4. Federal Restrictions on Transfer . Optionee understands that the Shares must be held indefinitely unless they are registered under the 1933 Act or unless an exemption from such registration is available and that the certificate(s) representing the Shares will bear a legend to that effect. Optionee understands that the Company is under no obligation to register the Shares, and that an exemption may not be available or may not permit Optionee to transfer Shares in the amounts or at the times proposed by Optionee.
(a) Rule 144 . Optionee has been advised that Rule 144 promulgated under the 1933 Act, which permits certain resales of unregistered securities, is not presently available with respect to the Shares and, in any event, requires that a minimum of one (1) year elapses between the date of acquisition of Shares from the Company or an affiliate of the Company and any resale under Rule 144. Prior to an initial public offering of the Companys stock, nonaffiliates (i.e. persons other than officers, directors and major shareholders of the Company) may resell only under Rule 144(k), which requires that a minimum of three (3) years elapse between the date of acquisition of Shares from the Company or an affiliate of the Company and any resale under Rule 144(k). Rule 144(k) is not available to affiliates.
(b) Rule 701 . If the exemption relied upon for exercise of the Shares is Rule 701, the Shares will become freely transferable, subject to limited conditions regarding the method of sale, by nonaffiliates ninety (90) days after the first sale of Common Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission (the SEC), subject to any lengthier market standoff agreement contained in this Agreement or entered into by Optionee. Affiliates must comply with the provisions (other than the holding period requirements) of Rule 144.
5. State Law Restrictions on Transfer . Optionee understands that transfer of the Shares may be restricted by applicable state securities laws, and that the certificate(s) representing the Shares may bear a legend or legends to that effect.
6. Market Standoff Agreement . Optionee agrees in connection with any registration of the Companys securities that, upon the request of the Company or the underwriters managing any public offering of the Companys securities, Optionee will not sell or otherwise dispose of any Shares without the prior written consent of the Company or such underwriters, as the case may be, for a period of time (not to exceed one hundred eighty (180) days) from the effective date of such registration as the Company or the underwriters may specify for employee shareholders generally.
7. Legends . Optionee understands and agrees that the certificate(s) representing the Shares will bear a legend in substantially the following form, in addition to any other legends required by applicable law:
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE SECURITIES ACT), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
8. Stop-Transfer Notices . Optionee understands and agrees that, in order or ensure compliance with the restrictions referred to herein, the Company may issue appropriate stop-transfer instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
9. Tax Consequences . OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEES PURCHASE OR DISPOSITION OF THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
10. Repurchase Options . In addition to such other buy-sell terms, rights of first refusal, repurchase rights and/or similar provisions as are included herewith as determined by Company, the following terms and conditions apply to Companys rights to repurchase Shares under the provisions of Section 3 in the Stock Option Grant:
Repurchase Terms
(a) Early Exercise . Companys repurchase right hereunder applies to any Shares which are not Vested Shares and as purchased by Optionee by an exercise (or early exercise) of the Stock Option grant, as permitted in Section 3 thereof.
(b) Repurchase Right . If Optionee ceases to be employed by, or provide service to, the Company, or any Parent or Subsidiary of the Company, or, in the case of a nonqualified option, by or to any Affiliate of the Company (said date of cessation referred to as Termination Date), Company shall have the right and option to repurchase (at the price and for the payment in (c) immediately below) such number of Shares as is equal to, and to the extent that, the underlying option rights to said Shares, under the terms of Section 2 of the Stock Option Grant, would not have become exercisable on or prior to the Termination Date. Or stated otherwise, absent Optionees purchase of said Shares, said Shares (as repurchasable by Company) would not have become Vested Shares
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under Section 2 of the Stock Option Grant on or prior to the Termination Date. Companys rights to so repurchase said Shares may be exercised by a written notice given to Optionee, together with full payment of the purchase price of said repurchased Shares, within a period of 90 days after the Termination Date.
As an example of the foregoing, assume that an Optionee is granted option rights under an Option Grant, dated June 1, 2002, for a total of 4,800 Shares, exercisable, under Section 2 of the Stock Option Grant, as to 1,200 shares, on June 1, 2002, and, as to 100 Shares, on the first day of each of 36 successive calendar months, beginning July 1, 2002. If Optionee exercised option rights (under an early exercise) and purchased 2,000 shares on May 1, 2002, and Optionees employment (or services) terminated on June 15, 2002, Company would have the right to repurchase 800 Shares (inasmuch as, of the 2,000 Shares purchased, 1,200 Shares would have been exercisable, under Section 2, prior to June 15, 2002, the Termination Date).
(c) Repurchase Price, Exercise and Payment . The foregoing Company option and right to repurchase Shares shall be exercised at a price equal to the original option exercise price per share and shall be paid in cash (or Company check) and/or by cancellation of all or any portion of Optionees purchase money indebtedness, if any, for the Shares.
(d) Assignment and Delegation . Notwithstanding any contrary provision herein, Company reserves and has the right to assign and/or delegate any or all of its repurchase rights and obligations herein to such other party or parties as may be selected by it.
(e) Antidilution Provision . In the event of a stock dividend, stock split, reverse stock split, other stock division or combination, recapitalization or reclassification involving Companys Common Shares, an equitable and proportionate adjustment or other relevant change shall be deemed to have been made to all of the referenced shares and/or prices referenced herein in order fully to effectuate the purposes hereof, and all resulting additional (or reduced number of) shares thereafter shall be subject to the terms herein.
(f) Notice and Payments . All notices and payments to be made hereunder may be given and made by Company or Optionee to one another, either personally or by United States mail, postage prepaid, by Priority Mail, by Federal Express or by any other similar means, if to Company, addressed at its then principal place of business (currently at 37 Commercial Boulevard, Suite 100, Novato California 94949), or, if to Optionee, addressed to Optionee at Optionees last address appearing on Companys records, or at such other address as either Company or Optionee may designate by written notice to each other. In the event of the death or disability of Optionee, and such occurrence is known by Company, then said notice shall be given in the name of Optionee at the address and in the manner as above provided and also shall be given to Optionees known representative(s) or successor(s), at such address(es) as designated in writing to Company by said representative(s) or successor(s), or, absent such designation, to such known
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representative(s) or successor(s) at Optionees above referenced address. Any such notice and payment shall be deemed given as of the time and date when personally delivered or when otherwise sent.
11. Entire Agreement . The Plan and Grant are incorporated herein by reference. This Agreement, the Plan and the Grant constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof, and are governed by California law except for that body of law pertaining to conflict of laws.
Submitted by: | Accepted by: | |||||||
OPTIONEE: |
Novacal Pharmaceuticals, Inc., a California corporation |
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[print name] | ||||||||
By: | ||||||||
[signature] | ||||||||
Dated: | Its: | |||||||
Address: | Dated: | |||||||
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Exhibit 10.2
NOVACAL PHARMACEUTICALS, INC.
2005 STOCK OPTION PLAN
1. PURPOSE . This 2005 Stock Option Plan 1 (Plan) is established as a compensatory plan to attract, retain and provide equity incentives to selected persons to promote the financial success of NOVACAL PHARMACEUTICALS, INC., a California corporation (the Company). Capitalized terms not previously defined herein are defined in Section 17 of this Plan.
2. TYPES OF OPTIONS AND SHARES . Options granted under this Plan (the Options) may be either (a) incentive stock options (ISOs) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the Code), or (b) nonqualified stock options (NQSOs), as designated at the time of grant. The shares of stock that may be purchased upon exercise of Options granted under this Plan (the Shares) are shares of the common stock of the Company.
3. NUMBER OF SHARES . The aggregate number of Shares that may be issued pursuant to Options granted under this Plan is 2,470,000 Common Shares, subject to adjustment as provided in this Plan. If any Option expires or is terminated without being exercised in whole or in part, the unexercised or released Shares from such Option shall be available for future grant and purchase under this Plan. At all times during the term of this Plan, the Company shall reserve and keep available such number of Shares as shall be required to satisfy the requirements of outstanding Options under this Plan.
4. ELIGIBILITY .
(a) General Rules of Eligibility . Options may be granted to employees, officers, directors, consultants, independent contractors and advisors (provided such consultants, contractors and advisors render bona fide services not in connection with the offer and sale of securities in a capital-raising transaction) of the Company or any Parent, Subsidiary or Affiliate of the Company. ISOs may be granted only to employees (including officers and directors who are also employees) of the Company or a Parent or Subsidiary of the Company. The Committee (as defined in Section 14) in its sole discretion shall select the recipients of Options (Optionees). An Optionee may be granted more than one Option under this Plan.
1 |
Approved by the Company Board of Directors on May 12, 2005. |
Approved by the Company shareholders on May 12, 2005.
(b) Company Assumption of Options . The Company may also, from time to time, assume outstanding options granted by another company, whether in connection with an acquisition of such other company or otherwise, by either (i) granting an Option under this Plan in replacement of the option assumed by the Company, or (ii) treating the assumed option as if it had been granted under this Plan if the terms of such assumed option could be applied to an option granted under this Plan. Such assumption shall be permissible if the holder of the assumed option would have been eligible to be granted an option hereunder if the other company had applied the rules of this Plan to such grant.
5. TERMS AND CONDITIONS OF OPTIONS . The Committee shall determine whether each Option is to be an ISO or an NQSO, the number of Shares subject to the Option, the exercise price of the Option, the period during which the Option may be exercised, and all other terms and conditions of the Option, subject to the following:
(a) Form of Option Grant . Each Option granted under this Plan shall be evidenced by a written Stock Option Grant (the Grant) in substantially the form attached hereto as Exhibit A or such other form as shall be approved by the Committee.
(b) Date of Grant . The date of grant of an Option shall be the date on which the Committee makes the determination to grant such Option unless otherwise specified by the Committee and subject to applicable provisions of the Code. The Grant representing the Option will be delivered to the Optionee with a copy of this Plan within a reasonable time after the date of grant; provided, however that if, for any reason, including a unilateral decision by the Company not to execute an agreement evidencing such option, a written Grant is not executed within sixty (60) days after the date of grant, such option shall be deemed null and void. No Option shall be exercisable until such Grant is executed by the Company and the Optionee.
(c) Exercise Price . The exercise price of an NQSO shall be not less than eighty-five percent (85%) of the Fair Market Value of the Shares on the date the Option is granted. The exercise price of an ISO shall be not less than one hundred percent (100%) of the Fair Market Value of the Shares on the date the Option is granted. The exercise price of any Option granted to a person owning more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any Parent or Subsidiary of the Company (Ten Percent Shareholders) shall not be less than one hundred and ten percent (110%) of the Fair Market Value of the Shares on the date the Option is granted.
(d) Exercise Period and Early Exercise . Options shall be exercisable within the times or upon the events determined by the Committee as set forth in the Grant; provided, however that each Option must become exercisable at a rate of at least twenty percent (20%) per year over five (5) years from the date the Option is granted; except, in the case of an option granted to officers, directors, or consultants of Company, the option may become fully exercisable, subject to reasonable conditions such as continued employment, at any time or
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during any period established by Company, or the issuer of the underlying security or any of its Affiliates; and provided, however, that no Option shall be exercisable after the expiration of ten (10) years from the date the Option is granted, and provided further that no ISO granted to a Ten Percent Shareholder shall be exercisable after the expiration of five (5) years from the date the Option is granted. The grant may, but need not, include a provision whereby the Optionee may elect at any time while an employee, officer, director, consultant, independent contractor or advisor to exercise all or any part of the Option prior to the time and/or events when the Option becomes exercisable. Any Shares received pursuant to any exercise, as provided in Section 7 below, at the discretion of the Committee, may be subject to a repurchase right in favor of Company (and/or any of its Affiliates) or to any other restriction determined, in its discretion, by the Committee.
(e) Limitations .
(i) ISO Limitations . The aggregate Fair Market Value (determined as of the time an Option is granted) of stock with respect to which ISOs are exercisable for the first time (including option rights becoming exercisable due to a condition satisfaction or by an acceleration) by an Optionee during any calendar year (under this Plan or under any other incentive stock option plan of the Company or any Parent or Subsidiary of the Company) shall not exceed one hundred thousand dollars ($100,000). If an Option is not canceled, modified, or transferred prior to the year in which, and to the extent that , it would first become exercisable, it is deemed outstanding until the end of the year in which it first becomes so exercisable. If so canceled, modified or transferred, and ceases to be an ISO, prior to said year, it is disregarded, but a disqualifying disposition of purchased ISO stock will have no determination on whether an Option exceeds the $100,000 limitation. The foregoing $100,000 per calendar year limitation shall be applied by taking Options into account in the order in which they were granted, except that any exercised portion of an ISO takes precedence over an ISO (although prior granted), which becomes exercisable later in the same calendar year, for the first time, due to an acceleration. If the Fair Market Value of stock with respect to which an ISO is exercisable for the first time by an Optionee during any calendar year exceeds $100,000, the amount in excess of $100,000 shall be bifurcated and treated as not being an ISO (and shall be a NQSO), unless the Company designates a different proportionate allocation in its transfer records or the Plan records, or unless Company issues a separate certificate for the ISO portion of the shares. In the event that the Code or the regulations promulgated thereunder are amended after the effective date of this Plan to provide for a different limit on the Fair Market Value of Shares permitted to be subject to ISOs, or otherwise differ with the provisions herein, such different limit or provision in the Code or regulations shall be incorporated herein and shall apply to any Options granted after the effective date of such amendment.
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(ii) Limitations on Grants . The foregoing provisions of this Plan notwithstanding, no Optionee shall be granted Options under this Plan in any one fiscal year which in the aggregate shall permit the Optionee to purchase more than 750,000 shares of Common Stock. To the extent the Board of Directors of the Company determines that the limitations such as the provisions of this Section 5(e)(ii) are no longer required to preserve the deductibility for the Company of option-related compensation under Section 162(m) of the Code, the Board of Directors may modify or eliminate the limitations contained in this Section 5(e)(ii).
(f) Options Non-Transferable . Options granted under this Plan, and any interest therein, shall not be transferable or assignable by the Optionee, and may not be made subject to execution, attachment or similar process, otherwise than by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionee only by the Optionee or any permitted transferee.
(g) Assumed Options . In the event the Company assumes an option granted by another company in accordance with Section 4(b) above, the terms and conditions of such option shall remain unchanged (except the exercise price and the number and nature of shares issuable upon exercise, which will be adjusted appropriately pursuant to Section 424 of the Code and the Treasury Regulations applicable thereto). In the event the Company elects to grant a new option rather than assuming an existing option (as specified in Section 4), such new option need not be granted at Fair Market Value on the date of grant and may instead be granted with a similarly adjusted exercise price.
(h) Termination of Options . Except as otherwise provided in an Optionees grant, options granted under the Plan shall terminate and may not be exercised if the Optionee ceases to be employed by, or provide services to, the Company or any Parent or Subsidiary of the Company (or, in the case of a NQSO, by or to any Affiliate of the Company). An Optionee shall be considered to be employed by the Company for all purposes under this Section 5(h) if the Optionee is an officer, director or full-time employee of the Company or any Parent, Subsidiary or Affiliate of the Company or if the Committee determines that the Optionee is rendering substantial services as a part-time employee, consultant, contractor or advisor to the Company or any Parent, Subsidiary or Affiliate of the Company. The Committee shall have discretion to determine whether an Optionee has ceased to be employed by the Company or any Parent, Subsidiary or Affiliate of the Company and the effective date on which such employment terminated (the Termination Date).
(i) Termination Generally . If an Optionee ceases to be employed by the Company and all Parents, Subsidiaries or Affiliates of the Company for any reason except death or disability, the Options which are vested (the Vested Options), to the extent (and only to the extent) exercisable by the Optionee on the Termination Date, may be exercised by the Optionee, but only within three months after the
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Termination Date or such shorter period of time as provided in the Grant, but in no event less than thirty (30) days; provided that the Option may not be exercised in any event after the expiration date for the Option.
(ii) Death or Disability . If an Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of the death of the Optionee or the permanent and total disability of the Optionee within the meaning of Section 22(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by the Optionee on the Termination Date, may be exercised by the Optionee (or the Optionees legal representative), but only within twelve (12) months after the Termination Date; and provided further that the Option may not be exercised in any event later than the Expiration Date. If an Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of a disability of the Optionee which is not permanent and total within the meaning of Section 22(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by the Optionee on the Termination Date, may be exercised by the Optionee or the Optionees legal representative, but only within six (6) months after the Termination Date; and provided further that the Option may not be exercised in any event later than the expiration date for the Option.
6. EXERCISE OF OPTIONS .
(a) Notices . Options may be exercised only by delivery to the Company of a written exercise agreement in a form approved by the Committee (which need not be the same for each Optionee), stating the number of Shares being purchased, the restrictions imposed on the Shares, if any, and such representations and agreements regarding the Optionees investment intent and access to information, if any, as may be required by the Company to comply with applicable securities laws, together with payment in full of the exercise price for the number of Shares being purchased.
(b) Payment . Payment for the Shares may be made in cash (by check) or, where approved by the Committee in its sole discretion at the time of grant and where permitted by law: (i) by cancellation of indebtedness of the Company to the Optionee; (ii) by surrender of shares of Common Stock of the Company already owned by the Optionee, having a Fair Market Value equal to the exercise price of the Option; (iii) by waiver of compensation due or accrued to Optionee for services rendered; (iv) through delivery of a promissory note for the full exercise price bearing interest at such rate with the note due at such time, on a secured or unsecured basis, as determined by the Committee; (v) through delivery of all of the proceeds of a loan from a third party in the amount of the option price (but not more than the option price), which loan is guaranteed by the Company, and such guaranty may be on an unsecured or secured basis as the
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Committee shall approve (including, without limitation, by a security interest in the shares of the Company); (vi) provided that a public market for the Companys stock exists, through a same day sale commitment from the Optionee and a broker-dealer that is a member of the National Association of Securities Dealers, Inc. (an NASD Dealer) whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; (vii) provided that a public market for the Companys stock exists, through a margin commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise the Option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; or (viii) by any combination of the foregoing. Notwithstanding the foregoing, the Committee (and Company) specifically reserves the right, in its discretion, to pay a bonus and/or to make a loan available to Optionee at the time of the Option exercise or to allow Optionee the right to tender previously owned Company shares in exchange for the stock purchasable under the Option.
(c) Withholding Taxes . Prior to issuance of the Shares upon exercise of an Option, at the discretion of the Committee (or, unless otherwise determined by the Committee, at the discretion of the Companys management), the Optionee shall pay or make adequate provision for any federal or state withholding obligations of the Company, if applicable. Where approved by the Committee in its sole discretion, the Optionee may provide for payment of withholding taxes upon exercise of the Option by requesting that the Company retain Shares with a Fair Market Value equal to the minimum amount of taxes required to be withheld. In such case, the Company shall issue the net number of Shares to the Optionee by deducting the Shares retained from the Shares exercised. The Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to be withheld is to be determined in accordance with Section 83 of the Code (the Tax Date). All elections by Optionees to have Shares withheld for this purpose shall be made in writing in a form acceptable to the Committee and shall be subject to the following restrictions:
(i) the election must be made on or prior to the applicable Tax Date;
(ii) once made, the election shall be irrevocable as to the particular Shares as to which the election is made;
(iii) all elections shall be subject to the consent or disapproval of the Committee;
(iv) if the Optionee is an officer or director of the Company or other person (in each case, an Insider) whose transactions in the Companys Common Stock are subject to Section 16(b) of the Securities Exchange Act of 1934, as
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amended (the Exchange Act) and if the Company is subject to Section 16(b) of the Exchange Act, the election must comply with Rule 16b-3 as promulgated by the Securities and Exchange Commission (Rule 16b-3).
(d) Limitations on Exercise . Notwithstanding anything else to the contrary in the Plan or any Grant, no Option may be exercisable later than the expiration date of the Option.
7. RESTRICTIONS ON SHARES . At the discretion of the Committee, the Company may reserve to itself and/or its assignee(s) in the Grant (a) a right of first refusal to purchase all Shares that an Optionee (or a subsequent transferee) may propose to transfer to a third party and/or (b) a right to repurchase a portion of or all Shares held by an Optionee upon the Optinees termination of employment or service with the Company or its Parent, Subsidiary or Affiliate of the Company for any reason (Termination Date), if (i) the repurchase price is not less than the fair market value of the Shares to be repurchased on the Termination Date, and the right to repurchase must be exercised for cash or cancellation of purchase money indebtedness for the Shares within 90 days of the Termination Date, and the right terminates when Companys securities become publicly traded, or (ii) the repurchase price is at the lower of (A) the original purchase price or (B) the fair market value of the Shares on the date of repurchase, provided the right to repurchase at the original price lapses at the rate of at least 20% of the Shares per year over five years from the date the Option is granted (without respect to the date when the Option was exercised or became exercisable) and the right to repurchase must be exercised for cash or cancellation of purchase money indebtedness for the Shares within 90 days of the Termination Date; provided, however, that in addition to the restrictions set forth in (i) and (ii) immediately above, Shares held by an officer, director or consultant of Company or any affiliate of Company may be subject to additional or greater restrictions. Notwithstanding the foregoing, to the extent required by Section 260.140.41 and Section 260.140.42 of the California Code of Regulations at the time a right of repurchase is instituted, any right of repurchase must be at a repurchase price of not less than the original purchase price of the Shares.
8. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS . The Committee shall have the power to modify, extend or renew outstanding Options and to authorize the grant of new Options in substitution therefor, provided that any such action may not, without the written consent of the Optionee, impair any rights under any Option previously granted. Any outstanding ISO that is modified, extended, renewed or otherwise altered shall be treated in accordance with Section 424(h) of the Code. In the event that an Optionee is offered a change in the terms of an Option and such offer remains outstanding without acceptance for a period of 29 days, then upon the termination of said 29 day period, such offer shall be deemed terminated and of no further force or effect. Any inadvertent change in the terms of an Option (or change in the terms of the Plan) that is treated as a modification for purposes of Section 424 of the Code will not be considered a modification to the extent that the change in the terms of the Option is removed by the earlier of the date the Option is exercised or the last day of the calendar year during which such change occurred. The Committee shall have the power to reduce the
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exercise price of outstanding options; provided, however, that the exercise price per share may not be reduced below the minimum exercise price that would be permitted under Section 5(c) of this Plan for options granted on the date the action is taken to reduce the exercise price. Notwithstanding any other provision of this Plan, the Committee may accelerate the earliest date or dates on which outstanding Options (or any installments thereof) are exercisable.
9. PRIVILEGES OF STOCK OWNERSHIP . No Optionee shall have any of the rights of a shareholder with respect to any Shares subject to an Option until such Option is properly exercised. No adjustment shall be made for dividends or distributions or other rights for which the record date is prior to such date, except as provided in this Plan. To the extent required by Section 260.140.46 of Title 10 of the California Code of Regulations, the Company shall provide annually to each Optionee a copy of the annual financial statements of the Company. This Section 9 shall not apply to key Employees whose duties in connection with the Company assure them access to equivalent information.
10. NO OBLIGATION TO EMPLOY; NO RIGHT TO FUTURE GRANTS . Nothing in this Plan or any Option granted under this Plan shall confer on any Optionee any right (a) to continue in the employ of, or other relationship with, the Company or any Parent or Subsidiary of the Company or limit in any way the right of the Company or any Parent, Subsidiary or Affiliate of the Company to terminate the Optionees employment or other relationship at any time, with or without cause or (b) to have any Option(s) granted to such Optionee under this Plan, or any other plan, or to acquire any other securities of the Company, in the future.
11. ADJUSTMENT OF OPTION SHARES . In the event that the number of outstanding shares of Common Stock of the Company is changed by a stock dividend, stock split, reverse stock split, combination, reclassification or similar change in the capital structure of the Company without consideration, or if a substantial portion of the assets of the Company are distributed, without consideration in a spin-off or similar transaction, to the shareholders of the Company, the number of Shares available under this Plan and the number of Shares subject to outstanding Options and the exercise price per share of such Options shall be proportionately adjusted, subject to any required action by the Board or shareholders of the Company and compliance with applicable securities laws; provided, however, that a fractional share shall not be issued upon exercise of any Option and any fractions of a Share that would have resulted shall either be cashed out at Fair Market Value or the number of Shares issuable under the Option shall be rounded down to the nearest whole number, as determined by the Committee; and provided further that the exercise price may not be decreased to below the par value, if any, for the Shares.
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12. ASSUMPTION OF OPTIONS BY SUCCESSORS .
(a) In the event of (i) a merger or consolidation in which the Company is not the surviving corporation (other than a merger or consolidation with a wholly-owned subsidiary or a Parent or where there is no substantial change in the shareholders of the corporation and the Options granted under this Plan are assumed by the successor corporation), or (ii) the sale of all or substantially all of the assets of the Company, any or all outstanding Options shall be assumed by the successor corporation, which assumption shall be binding on all Optionees, an equivalent option shall be substituted by such successor corporation or the successor corporation shall provide substantially similar consideration to Optionees as was provided to shareholders (after taking into account the existing provisions of the Optionees options such as the exercise price and the vesting schedule), and, in the case of outstanding shares subject to a repurchase option, issue substantially similar shares or other property subject to repurchase restrictions no less favorable to the Optionee.
(b) In the event such successor corporation, if any, refuses to assume or substitute, as provided above, pursuant to an event described in subsection (a) above, or in the event of a dissolution or liquidation of the Company, the Options shall, notwithstanding any contrary terms in the Grant, expire on a date specified in a written notice given by the Committee to the Optionees specifying the terms and conditions of such termination (which date must be at least twenty (20) days after the date the Committee gives the written notice).
13. ADOPTION AND SHAREHOLDER APPROVAL . This Plan shall become effective on the date that it is adopted by the Board of the Company (the Board). This Plan shall be approved by the shareholders of the Company, in any manner permitted by applicable corporate law, within twelve (12) months before or after the date this Plan is adopted by the Board.
14. ADMINISTRATION . This Plan may be administered by the Board or a Committee appointed by the Board (the Committee). If, at any time after the Company registers under the Exchange Act, the Board desires the Plan to be administered by a Committee, the Board shall appoint a Committee consisting of not less than two directors, each of whom is a Nonemployee Director. As used in this Plan, references to the Committee shall mean either such Committee or the Board if no committee has been established. The interpretation by the Committee of any of the provisions of this Plan or any Option granted under this Plan shall be final and binding upon the Company and all persons having an interest in any Option or any Shares purchased pursuant to an Option.
15. TERM OF PLAN . Options may be granted pursuant to this Plan from time to time on or prior to May 11, 2015, a date which is less than ten years after the earlier of the date of
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approval of this Plan by the Board or the shareholders of the Company pursuant to Section 13 of this Plan.
16. AMENDMENT OR TERMINATION OF PLAN . The Board of Directors or Committee may, at any time, amend, alter, suspend or discontinue the Plan, but no amendment, alteration, suspension or discontinuation shall be made which would impair the rights of any Optionee under any Option theretofore granted, without his or her consent, or which, without the approval of the shareholders of the Company would:
(a) except as provided in Section 11 of the Plan, increase the total number of Shares reserved for the purposes of the Plan;
(b) change the corporation granting the ISOs;
(c) change the stock available for purchase under the Plan;
(d) change the designation of employees, or class or classes of employees, eligible to receive options under the Plan;
(e) extend the duration of the Plan; or
(f) extend the period during and over which Options may be exercised under the Plan.
Without limiting the foregoing, the Committee may at any time or from time to time authorize the Company, with the consent of the respective Optionees, to issue new options in exchange for the surrender and cancellation of any or all outstanding Options.
17. CERTAIN DEFINITIONS . As used in this Plan, the following terms shall have the following meanings:
(a) Affiliate means any corporation that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, another corporation, where control (including the terms controlled by and under common control with) means the possession, direct or indirect, of the power to cause the direction of the management and policies of the corporation, whether through the ownership of voting securities, by contract or otherwise.
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(b) Fair Market Value shall mean the fair market value of the Shares as determined by the Committee from time to time in good faith. If a public market exists for the Shares, the Fair Market Value shall be the average of the last reported bid and asked prices for Common Stock of the Company on the last trading day prior to the date of determination or, in the event the Common Stock of the Company is listed on a stock exchange or is a Nasdaq National Market security, the Fair Market Value shall be the closing price on such exchange or system on the last trading day prior to the date of determination.
(c) Nonemployee Director shall have the meaning set forth in Rule 16b-3(b)(3) as promulgated by the Securities and Exchange Commission under Section 16(b) of the Exchange Act, as such rule is amended from time to time and as interpreted by the Securities and Exchange Commission.
(d) Parent means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if, at the time of the granting of the Option, each of the corporations other than the Company owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
(e) Subsidiary means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if, at the time of the granting of the Option, each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
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EXHIBIT A
STOCK OPTION GRANT
Optionee:_________________________________________________________________________________
Address:__________________________________________________________________________________
_________________________________________________________________________________________
Total Shares Subject to Option:_________________________________________________________________
Exercise Price Per Share:_______________________________________________________________________
Date of Grant:_______________________________________________________________________________
Expiration Date of Option:______________________________________________________________________
Type of Stock Option: Incentive:___________________
Nonqualified:________________
1. Grant of Option . NOVACAL PHARMACEUTICALS, INC., a California corporation (the Company), hereby grants to the optionee named above (Optionee) an option (this Option) to purchase the total number of shares of Common Stock of the Company set forth above (the Shares) at the exercise price per share set forth above (the Exercise Price), subject to all of the terms and conditions of this Grant and the Companys 2005 Stock Option Plan, as amended to the date hereof (the Plan). If designated as an Incentive Stock Option above, this Option is intended to qualify as an incentive stock option (ISO) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the Code). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Plan.
2. Exercise Period of Option . The option rights granted hereunder are exercisable during the time period or periods, and as to the number of shares exercisable during each time period, as follows:
(a) shares, or any part thereof, may be exercised at any time or times, from and including to and including ;
(b) an additional shares, or any part thereof, may be exercised at any time or times, from and including to and including ;
(c) an additional shares, or any part thereof, may be exercised at any time or times, from and including to and including ;
(d) an additional shares, or any part thereof, may be exercised at any time or times, from and including to and including ;
(e) and the remaining shares, or any part thereof, may be exercised at any time or times, from and including to and including .
Notwithstanding the above, (i) the Committee or to the extent a Committee has not been appointed, the Board of Directors (it being understood in such event reference herein to the Committee shall mean the Board of Directors), in its sole discretion, may, upon written notice to the Optionee, accelerate the earliest date or dates on which any of the Option rights granted hereunder are exercisable, and (ii) the minimum number of Shares that may be purchased upon any partial exercise of the Option is ( ) shares, and (iii) this Option shall expire on the Expiration Date set forth above and must be exercised, if at all, on or before the Expiration Date. The portion of Shares as to which an Option is exercisable in accordance with the above schedule as of the applicable dates shall be deemed Vested Options.
3. Early Exercise and Repurchase Rights of Officers, Directors or Consultants . Notwithstanding the condition precedent exercise periods and/or events set forth in Section 2 above, if, but only if, Optionee is an officer, director or consultant of Company, after the date of this Grant and prior to said exercise periods and/or events, Optionee, at any time, or from time to time, may exercise (early exercise) any or all of the option rights granted hereunder, after the date of this Grant and prior to said Section 2 exercise periods and/or events, provided, however, if, and to the extent, that the Shares purchased pursuant to such exercise are not Vested Shares (as defined in Section 2 above), Company (or its designated purchaser or purchasers) shall have the right and option to repurchase any or all of said Shares (as are not Vested Shares) at the per share original exercise price set forth herein, equitably and proportionately adjusted or otherwise relevantly changed to reflect any Company Common Stock dividends, stock splits, reverse stock splits, other similar stock combinations or divisions, or stock reclassifications, occurring after the date hereof. Said repurchase right shall be exercisable as of, when, and to such extent, and shall terminate as of such date(s), as set forth in and provided by those certain Repurchase Terms provided in Section 10 in the Stock Option Exercise Agreement, attached as Exhibit 1 hereto. It is understood, however, that, after the Termination Date, as defined in Section 5 below, or after
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any other termination of the option rights herein, no exercise may be made of any rights to Shares under the exercise provisions (early exercise) in this Section 3. As to any Shares purchased upon an exercise hereunder as are not Vested Shares, as a condition of and requirement for said exercise and purchase, (i) the certificate(s), representing said Shares, shall be retained and held by Company in its possession for purposes of its repurchase rights, and (ii) Optionee shall have delivered to Company an Assignment Separate from Certificate (Stock Power), as signed by Optionee, but with the number of shares to be transferred and transferee unspecified (and Optionee hereby irrevocably designates and authorizes Company, and its successors and assigns, as agent for Optionee to date, complete and otherwise use said Stock Power to effectuate and implement Companys repurchase rights herein; said designation and authority being deemed coupled with an interest and being irrevocable). For purposes of protecting and securing Companys repurchase rights to said Shares, Optionee hereby grants to Company a security interest in said Shares and agrees, unless Company otherwise consents in writing, not to sell, transfer or offer to sell or transfer any of said Shares as are and remain subject to Companys repurchase rights. Upon completion of the transfer of the Shares (or appropriate portion thereof) to Company relative to its repurchase rights and/or upon the termination of said rights, as the case may be, all remaining Shares not repurchased by and transferred to Company shall be transferred and/or returned to Optionee. All of the terms herein are fully binding and enforceable upon Optionee and Optionees heirs, representatives, successors and assigns. All certificate(s) representing the Shares of Company to be retained and held by Company shall, until released to Optionee free of Companys repurchase rights, may bear, at Companys discretion, in addition to each of the legend(s) as otherwise herein prescribed, the following legend (with the appropriate date filled in):
THESE SHARES ARE SUBJECT TO A REPURCAHSE OPTION OF THE CORPORATION AND TO VARIOUS TRANSFER AND OTHER RESTRICTIONS AS SET FORTH IN THAT CERTAIN STOCK OPTION GRANT, DATED , 20__, A COPY OF WHICH IS ON FILE WITH THE CORPORATION.
It is understood that an Optionee, holding nonqualified option rights, may accompany the exercise of the option rights herein with the filing with the Internal Revenue Service of an election to include income in the year of the exercise pursuant to Section 83(b) of the Internal Revenue Code (and with such state agencies and under such state laws as applicable) and that an Optionee, holding a statutory incentive stock option may file a similar election for alternative minimum tax purposes. OPTIONEE SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THE OPTION OR MAKING SUCH FILING TO VERIFY AND CONFIRM THAT SUCH ACTIONS ARE APPROPRIATE WITH RESPECT TO OPTIONEES TAX CIRCUMSTANCES.
4. Restriction on Exercise . This Option may not be exercised unless such exercise is in compliance with the Securities Act of 1933, as amended, and all applicable state securities laws, as they are in effect on the date of exercise, and the requirements of any stock exchange or over-the-counter market on which the Companys Common Stock may be listed or quoted at the
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time of exercise. Optionee understands that the Company is under no obligation to register, qualify or list the Shares with the Securities and Exchange Commission, any state securities commission or any stock exchange to effect such compliance.
5. Termination of Option . Except as provided below in this Section 4, this Option shall terminate and may not be exercised if Optionee ceases to be employed by, or provide services to, the Company or by any Parent or Subsidiary of the Company (or, in the case of a nonqualified stock option, by or to any Affiliate of the Company). Optionee shall be considered to be employed by the Company for all purposes under this Section 4 if Optionee is an officer, director or full-time employee of the Company or any Parent, Subsidiary or Affiliate of the Company or if the Committee determines that Optionee is rendering substantial services as a part-time employee, consultant, contractor or advisor to the Company or any Parent, Subsidiary or Affiliate of the Company. The Committee shall have discretion to determine whether Optionee has ceased to be employed by the Company or any Parent, Subsidiary or Affiliate of the Company and the effective date on which such employment terminated (the Termination Date).
(a) Termination Generally . If Optionee ceases to be employed by the Company and all Parents, Subsidiaries or Affiliates of the Company for any reason except death or disability, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee, but only within three months after the Termination Date; provided that this Option may not be exercised in any event after the Expiration Date.
(b) Death or Disability . If Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of the death of Optionee or the permanent and total disability of Optionee within the meaning of Section 22(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee (or Optionees legal representative), but only within twelve (12) months after the Termination Date; and provided further that this Option may not be exercised in any event later than the Expiration Date. If Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of a disability of Optionee which is not permanent and total within the meaning of Section 221(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee or Optionees legal representative, but only within six (6) months after the Termination Date; and provided further that the Option may not be exercised in any event later than the Expiration Date. Optionee understands that if the Option is an ISO and if it is exercised after three months in the event of a disability which is not permanent and total, the Option will be treated as a nonqualified stock option for tax purposes.
(c) No Right to Employment . Nothing in the Plan or this Grant shall confer on Optionee any right to continue in the employ of, or other relationship with, the Company or any Parent, Subsidiary or Affiliate of the Company or limit in any way the right of the Company or any Parent, Subsidiary or Affiliate of the Company to terminate Optionees employment or other relationship at any time, with or without cause.
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6. Manner of Exercise .
(a) Exercise Agreement . This Option shall be exercisable by delivery to the Company of an executed written Stock Option Exercise Agreement in the form attached hereto as Exhibit 1, or in such other form as may be approved by the Company, which shall set forth Optionees election to exercise some or all of this Option, the number of Shares being purchased, any restrictions imposed on the Shares and such other representations and agreements as may be required by the Company to comply with applicable securities laws.
(b) Exercise Price . The Stock Option Exercise Agreement shall be accompanied by full payment of the Exercise Price for the Shares being purchased. Payment for the Shares may be made in cash (by check), or, where permitted by law, by any of the following methods approved by the Committee at the date of grant of this Option, or any combinations thereof:
¨ | (i) by cancellation of indebtedness of the Company to the Optionee; |
¨ | (ii) by surrender of shares of Common Stock of the Company already owned by the Optionee, or which were obtained by Optionee in the open public market, having a Fair Market Value equal to the exercise price of the Option; |
¨ | (iii) by waiver of compensation due or accrued to Optionee for services rendered; |
¨ | (iv) through delivery of a promissory note for the amount of the exercise price bearing interest at such a rate as determined by the Committee, secured or unsecured as determined by the Committee, and due at such time as determined by the Committee; |
¨ | (v) through a delivery of all of the proceeds of a loan from a third party in the amount of the option price (but not more than the option price), which loan is guaranteed by the Company, and such guaranty may be on an unsecured or secured basis as the Committee shall approve (including, without limitation, by a security interest in the Shares of the Company); |
¨ | (vi) provided that a public market for the Companys stock exists, through a same day sale commitment from the Optionee and a broker dealer that is a member of the National Association of Securities Dealers, Inc. (an NASD Dealer) whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; or |
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¨ | (vii) provided that a public market for the Companys stock exists, through a margin commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise this option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company. |
Notwithstanding any of the foregoing or any other provision herein, Company specifically reserves the right, in its discretion, to pay a bonus and/or to make a loan available to Optionee at the time of the Option exercise or to allow Optionee the right to tender previously owned Company shares in exchange for the stock purchasable under the Option.
(c) Withholding Taxes . Prior to the issuance of the Shares upon exercise of this Option, if so required by Company, Optionee must pay or make adequate provision for any applicable federal or state withholding obligations of the Company. The Optionee may provide for payment of Optionees minimum statutory withholding taxes upon exercise of the Option by requesting that the Company retain Shares with a Fair Market Value equal to the minimum amount of taxes required to be withheld, all as set forth in Section 6(c) of the Plan. In such case, the Company shall issue the net number of Shares to the Optionee by deducting the Shares retained from the Shares exercised.
(d) Issuance of Shares . Provided that such notice and payment are in form and substance satisfactory to counsel for the Company, the Company shall cause the Shares to be issued in the name of Optionee or Optionees legal representative.
7. Notice of Disqualifying Disposition of ISO Shares . If the Option granted to Optionee herein is an ISO, and if Optionee sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (1) the date two years after the Date of Grant, or (2) the date one year after exercise of the ISO with respect to the Shares to be sold or disposed of, the Optionee shall immediately notify the Company in writing of such disposition. Optionee acknowledges and agrees that Optionee may be subject to income tax withholding by the Company on the compensation income recognized by the Optionee from any such early disposition by payment in cash or out of the current wages or other earnings payable to the Optionee.
8. Nontransferability of Option . This Option may not be transferred in any manner other than by will or by the law of descent and distribution and may be exercised during the lifetime of Optionee only by Optionee or other permitted transferee. The terms of this Option shall be binding upon the executors, administrators, successors and assigns of the Optionee.
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9. Federal Tax Consequences . Set forth below is a brief summary as of the date this form of Option Grant was adopted of some of the federal tax consequences of exercise of this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercise of ISO . If this Option qualifies as an ISO, there will be no regular federal income tax liability upon the exercise of this Option, although the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated as an adjustment to alternative minimum taxable income for federal income tax purposes and may subject the Optionee to an alternative minimum tax liability in the year of exercise.
(b) Exercise of Nonqualified Stock Option . If this Option does not qualify as an ISO, there may be a regular federal income tax liability upon the exercise of the Option. The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. The Company will be required to withhold from Optionees compensation or collect from Optionee and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise.
(c) Disposition of Shares . In the case of a nonqualified stock option, if Shares are held for at least one year before disposition, any gain on disposition of the Shares will be treated as long-term capital gain for federal and California income tax purposes. In the case of an ISO, if Shares are held for at least one year after the date of exercise and at least two years after the Date of Grant, any gain on disposition of the Shares will be treated as long-term capital gain for federal and California income tax purposes. If Shares acquired pursuant to an ISO are disposed of within such one-year or two-year periods (a disqualifying disposition), gain on such disqualifying disposition will be treated as compensation income (taxable at ordinary income rates) to the extent of the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price (the Spread). Any gain in excess of the Spread shall be treated as capital gain.
10. Interpretation . Any dispute regarding the interpretation of this Grant shall be submitted by Optionee or the Company to the Companys Board of Directors or the Committee, which shall review such dispute at its next regular meeting. The resolution of such a dispute by the Board or Committee shall be final and binding on the Company and Optionee.
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11. Entire Agreement . The Plan and the Stock Option Exercise Agreement attached hereto as Exhibit 1 are incorporated herein by this reference. This Grant, the Plan and the Stock Option Exercise Agreement constitute the entire agreement of the parties hereto and supersede all prior undertakings and agreements with respect to the subject matter hereof.
NOVACAL PHARMACEUTICALS, INC. | ||
By: | ||
Name: | ||
Title: | ||
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ACCEPTANCE
Optionee hereby acknowledges receipt of a copy of the Plan, represents that Optionee has read and understands the terms and provisions thereof, and accepts this Option subject to all the terms and conditions of the Plan and this Stock Option Grant. Optionee acknowledges that there may be adverse tax consequences upon exercise of this Option or disposition of the Shares and that Optionee should consult a tax adviser prior to such exercise or disposition.
OPTIONEE: | ||
Signature: | ||
Print Name: | ||
Date: |
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EXHIBIT 1
TO STOCK OPTION GRANT
STOCK OPTION EXERCISE AGREEMENT
This Agreement is made this day of , 20 between NOVACAL PHARMACEUTICLAS, INC., a California corporation (the Company), and the optionee named below (Optionee).
Optionee:_____________________________________________________________________________________________
Social Security Number:_________________________________________________________________________________
Address:______________________________________________________________________________________________
_____________________________________________________________________________________________________
Number of Shares Purchased:_____________________________________________________________________________
Price Per Share:________________________________________________________________________________________
Aggregate Purchase Price:_______________________________________________________________________________
Date of Option Grant:___________________________________________________________________________________
Type of Stock Option: Incentive:____________
Nonqualified:___________
Optionee hereby delivers to the Company the Aggregate Purchase Price, to the extent permitted in the Option Grant, as follows [Company to check applicable box(es) and complete ]:
¨ | cash (check) in the amount of $ , receipt of which is acknowledged by the Company; |
¨ | by delivery of fully-paid, nonassessable and vested shares of the Common Stock of the Company owned by Optionee and owned free and clear of all liens, claims, encumbrances or security interests, valued at the current fair market value of $ per share (determined in accordance with the Plan); |
¨ | by the waiver hereby of compensation due or accrued for services rendered in the amount of $ ; |
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¨ | by delivery of a promissory note in the amount of $ with such terms as determined by the Committee; |
¨ | by delivery of all of the proceeds of a loan from a third party in the amount of $ , which loan is guaranteed by the Company; |
¨ | by delivery of a same day sale commitment from the Optionee and a broker dealer that is a member of the National Association of Securities Dealers, Inc. (an NASD Dealer) whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price of $ and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company (this payment method may be used only if a public market for the Companys stock exists); or |
¨ | by delivery of a margin commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise this option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price of $ directly to the Company (this payment method may be used only if a public market for the Companys stock exists). |
Notwithstanding any of the foregoing or any other provision herein, Company specifically reserves the right, in its discretion, to pay a bonus and/or to make a loan available to Optionee at the time of the Option exercise or to allow Optionee the right to tender previously owned Company shares in exchange for the stock purchasable under the Option.
The Company and Optionee hereby agree as follows:
1. Purchase of Shares . On this date and subject to the terms and conditions of this Agreement, Optionee hereby exercises the Stock Option Grant between the Company and Optionee dated as of the Date of Option Grant set forth above (the Grant), with respect to the Number of Shares Purchased set forth above of the Companys Common Stock (the Shares) at an aggregate purchase price equal to the Aggregate Purchase Price set forth above (the Purchase Price) and the Price per Share set forth above (the Purchase Price Per Share). The term Shares refers to the Shares purchased under this Agreement and includes all securities received (a) in replacement of the Shares, and (b) as a result of stock dividends or stock splits in respect of the Shares. Capitalized terms used herein that are not defined herein have the definitions ascribed to them in the Plan or the Grant.
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2. Representations of Purchaser . Optionee represents and warrants to the Company that:
(a) Optionee has received, read and understood the Plan and the Grant and agrees to abide by and be bound by their terms and conditions.
(b) Optionee is capable of evaluating the merits and risks of this investment, has the ability to protect Optionees own interests in this transaction and is financially capable of bearing a total loss of this investment.
(c) Optionee is fully aware of (i) the highly speculative nature of the investment in the Shares; (ii) the financial hazards involved; and (iii) the lack of liquidity of the Shares.
(d) Optionee is purchasing the Shares for Optionees own account for investment purposes only and not with a view to, or for sale in connection with, a distribution of the Shares within the meaning of the Securities Act of 1933, as amended (the 1933 Act).
(e) Optionee has no present intention of selling or otherwise disposing of all or any portion of the Shares.
(f) Optionee shall agree, to the extent requested by Company and an underwriter of Companys Common Stock, not to sell or otherwise transfer or dispose of any securities of Company, whether or not acquired hereunder, during a reasonable period of time not to exceed 180 days, as agreed to by Company and said underwriter, following the effective date of a registration statement under the Securities Act of 1933 with respect to any public offering of Companys securities.
3. Compliance with Securities Laws . Optionee understands and acknowledges that the Shares have not been registered under the 1933 Act and that, notwithstanding any other provision of the Grant to the contrary, the exercise of any rights to purchase any Shares is expressly conditioned upon compliance with the 1933 Act and all applicable state securities laws. Optionee agrees to cooperate with the Company to ensure compliance with such laws. The Shares are being issued under the 1933 Act pursuant to [the Company will check the applicable box]:
¨ | the exemption provided by Rule 701; |
¨ | the exemption provided by Rule 504; |
¨ | Section 4(2) of the 1933 Act; |
¨ | other: |
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If privately held:
4. Federal Restrictions on Transfer . Optionee understands that the Shares must be held indefinitely unless they are registered under the 1933 Act or unless an exemption from such registration is available and that the certificate(s) representing the Shares will bear a legend to that effect. Optionee understands that the Company is under no obligation to register the Shares, and that an exemption may not be available or may not permit Optionee to transfer Shares in the amounts or at the times proposed by Optionee.
(a) Rule 144 . Optionee has been advised that Rule 144 promulgated under the 1933 Act, which permits certain resales of unregistered securities, is not presently available with respect to the Shares and, in any event, requires that a minimum of one (1) year elapses between the date of acquisition of Shares from the Company or an affiliate of the Company and any resale under Rule 144. Prior to an initial public offering of the Companys stock, nonaffiliates (i.e. persons other than officers, directors and major shareholders of the Company) may resell only under Rule 144(k), which requires that a minimum of three (3) years elapse between the date of acquisition of Shares from the Company or an affiliate of the Company and any resale under Rule 144(k). Rule 144(k) is not available to affiliates.
(b) Rule 701 . If the exemption relied upon for exercise of the Shares is Rule 701, the Shares will become freely transferable, subject to limited conditions regarding the method of sale, by nonaffiliates ninety (90) days after the first sale of Common Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission (the SEC), subject to any lengthier market standoff agreement contained in this Agreement or entered into by Optionee. Affiliates must comply with the provisions (other than the holding period requirements) of Rule 144.
5. State Law Restrictions on Transfer . Optionee understands that transfer of the Shares may be restricted by applicable state securities laws, and that the certificate(s) representing the Shares may bear a legend or legends to that effect.
6. Market Standoff Agreement . Optionee agrees in connection with any registration of the Companys securities that, upon the request of the Company or the underwriters managing any public offering of the Companys securities, Optionee will not sell or otherwise dispose of any Shares without the prior written consent of the Company or such underwriters, as the case may be, for a period of time (not to exceed one hundred eighty (180) days) from the effective date of such registration as the Company or the underwriters may specify for employee shareholders generally.
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7. Legends . Optionee understands and agrees that the certificate(s) representing the Shares will bear a legend in substantially the following form, in addition to any other legends required by applicable law:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE SECURITIES ACT), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
8. Stop-Transfer Notices . Optionee understands and agrees that, in order or ensure compliance with the restrictions referred to herein, the Company may issue appropriate stop-transfer instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
9. Tax Consequences . OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEES PURCHASE OR DISPOSITION OF THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
10. Repurchase Options . In addition to such other buy-sell terms, rights of first refusal, repurchase rights and/or similar provisions as are included herewith as determined by Company, the following terms and conditions apply to Companys rights to repurchase Shares under the provisions of Section 3 in the Stock Option Grant:
Repurchase Terms
(a) Early Exercise . Companys repurchase right hereunder applies to any Shares which are not Vested Shares and as purchased by an Optionee, who is an officer, director or consultant of Company, by an exercise (or early exercise) of the Stock Option grant, as permitted in Section 3 thereof.
(b) Repurchase Right . If said Optionee ceases to be employed by, or provide service to, the Company, or any Parent or Subsidiary of the Company, or, in the case of a nonqualified option, by or to any Affiliate of the Company (said date of cessation referred to as Termination Date), Company shall have the right and option to repurchase (at the price and for the payment in (c) immediately below) such number of Shares as is equal to,
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and to the extent that, the underlying option rights to said Shares, under the terms of Section 2 of the Stock Option Grant, would not have become exercisable on or prior to the Termination Date. Or stated otherwise, absent Optionees purchase of said Shares, said Shares (as repurchasable by Company) would not have become Vested Shares under Section 2 of the Stock Option Grant on or prior to the Termination Date. Companys rights to so repurchase said Shares may be exercised by a written notice given to Optionee, together with full payment of the purchase price of said repurchased Shares, within a period of 90 days after the Termination Date.
As an example of the foregoing, assume that an eligible Optionee is granted option rights under an Option Grant, dated June 1, 2005, for a total of 4,800 Shares, exercisable, under Section 2 of the Stock Option Grant, as to 1,200 shares, on June 1, 2006, and, as to 100 Shares, on the first day of each of 36 successive calendar months, beginning July 1, 2006. If Optionee exercised option rights (under an early exercise) and purchased 2,000 shares on May 1, 2006, and Optionees employment (or services) terminated on June 15, 2006, Company would have the right to repurchase 800 Shares (inasmuch as, of the 2,000 Shares purchased, 1,200 Shares would have been exercisable, under Section 2, prior to June 15, 2006, the Termination Date).
(c) Repurchase Price, Exercise and Payment . The foregoing Company option and right to repurchase Shares shall be exercised at a price equal to the original option exercise price per share and shall be paid in cash (or Company check) and/or by cancellation of all or any portion of Optionees purchase money indebtedness, if any, for the Shares.
(d) Assignment and Delegation . Notwithstanding any contrary provision herein, Company reserves and has the right to assign and/or delegate any or all of its repurchase rights and obligations herein to such other party or parties as may be selected by it.
(e) Antidilution Provision . In the event of a stock dividend, stock split, reverse stock split, other stock division or combination, recapitalization or reclassification involving Companys Common Shares, an equitable and proportionate adjustment or other relevant change shall be deemed to have been made to all of the referenced shares and/or prices referenced herein in order fully to effectuate the purposes hereof, and all resulting additional (or reduced number of) shares thereafter shall be subject to the terms herein.
(f) Notice and Payments . All notices and payments to be made hereunder may be given and made by Company or Optionee to one another, either personally or by United States mail, postage prepaid, by Priority Mail, by Federal Express or by any other similar means, if to Company, addressed at its then principal place of business (currently at 5980 Horton Street, Suite 550, Emeryville, CA 94608, or, if to Optionee, addressed to Optionee at Optionees last address appearing on Companys records, or at such other address as either Company or Optionee may designate by written notice to each other. In the event of the death or disability of Optionee, and such occurrence is known by
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Company, then said notice shall be given in the name of Optionee at the address and in the manner as above provided and also shall be given to Optionees known representative(s) or successor(s), at such address(es) as designated in writing to Company by said representative(s) or successor(s), or, absent such designation, to such known representative(s) or successor(s) at Optionees above referenced address. Any such notice and payment shall be deemed given as of the time and date when personally delivered or when otherwise sent.
11. Entire Agreement . The Plan and Grant are incorporated herein by reference. This Agreement, the Plan and the Grant constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof, and are governed by California law except for that body of law pertaining to conflict of laws.
Submitted by: | Accepted by: | |||||||
OPTIONEE: | NOVACAL PHARMACEUTICALS, INC. | |||||||
By: | ||||||||
[print name] |
||||||||
Its: | ||||||||
[signature] |
||||||||
Dated: | Dated: | |||||||
Address: | ||||||||
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Exhibit10.8
OP-003
STOCK OPTION GRANT
Optionee: Jack OReilly
Address:______________________________________________________________________________________
______________________________________________________________________________________________
Total Shares Subject to Option: 700,000
Exercise Price Per Share: Ten Cents ($0.10)
Date of Grant: May 23, 2002
Expiration Date of Option: February 21, 2012
Type of Stock Option: Incentive: x
Nonqualified: ¨
1. Grant of Option . Novacal Pharmaceuticals, Inc., a California corporation (the Company), hereby grants to the optionee named above (Optionee) an option (this Option) to purchase the total number of shares of Common Stock of the Company set forth above (the Shares) at the exercise price per share set forth above (the Exercise Price), subject to all of the terms and conditions of this Grant and the Companys 2002 Stock Option Plan, as amended to the date hereof (the Plan). If designated as an Incentive Stock Option above, this Option is intended to qualify as an incentive stock option (ISO) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the Code). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Plan.
2. Exercise Period of Option . The option rights granted hereunder are exercisable during the time period or periods, and as to the number of shares exercisable during each time period, as follows:
(a) 100,000 shares, or any part thereof, may be exercised at any time or times, from and including May 23, 2002 to and including February 21, 2012;
(b) an additional 100,000 shares, or any part thereof, may be exercised when first $1,000,000 is raised in this Companys equity financing;
(c) an additional 100,000 shares, or any part thereof, may be exercised upon the filing of an IND by this Company;
(d) an additional 100,000 shares, or any part thereof, may be exercised when next $1,000,000 is raised in this Companys equity financing;
(e) an additional 100,000 shares, or any part thereof, may be exercised when the IND is cleared;
(f) an additional 100,000 shares, or any part thereof, may be exercised when a contract with a significant partner is signed; and
(g) an additional 100,000 shares, or any part thereof, may be exercised when Phase III is initiated.
Notwithstanding the above; (i) the option rights herein shall become fully exercisable in the event that Company is acquired by an independent entity by a merger, sale of assets or similar transaction (or series of related transactions), other than by the issuance and sale of its stock by Company for capital raising purposes, (ii) the Committee or to the extent a Committee has not been appointed, the Board of Directors (it being understood in such event reference herein to the Committee shall mean the Board of Directors), in its sole discretion, may, upon written notice to the Optionee, accelerate the earliest date or dates on which any of the Option rights granted hereunder are exercisable, and (iii) the minimum number of Shares that may be purchased upon any partial exercise of the Option is Ten Thousand (10,000) shares, and (iv) this Option shall expire on the Expiration Date set forth above and must be exercised, if at all, on or before the Expiration Date. The portion of Shares as to which an Option is exercisable in accordance with the above schedule as of the applicable dates shall be deemed Vested Options.
3. Early Exercise and Repurchase Rights . Notwithstanding the condition precedent exercise periods and/or events set forth in Section 2 above, after the date of this Grant and prior to said exercise periods and/or events, Optionee, at any time, or from time to time, may exercise (early exercise) any or all of the option rights granted hereunder, after the date of this Grant and prior to said Section 2 exercise periods and/or events, provided, however, if, and to the extent, that the Shares purchased pursuant to such exercise are not Vested Shares (as defined in Section 2 above), Company shall have the right and option to repurchase any or all of said Shares (as are not Vested Shares) at the per share original exercise price set forth herein, equitably and proportionately adjusted or otherwise relevantly changed to reflect any Company Common Stock dividends, stock splits, reverse stock splits, other similar stock combinations or divisions, or stock reclassifications, occurring after the date hereof. Said repurchase right shall be exercisable as of, when, and to such extent, and shall terminate as of such date(s), as set forth in and provided by those certain Repurchase Terms provided in Section 10 in the Stock Option Exercise Agreement, attached as Exhibit 1 hereto. It is understood, however, that, after the Termination Date, as defined in Section 5 below, or after any other termination of the option
rights herein, no exercise may be made of any rights to Shares under the exercise provisions (early exercise) in this Section 3. As to any Shares purchased upon an exercise hereunder as are not Vested Shares, as a condition of and requirement for said exercise and purchase, (i) the certificate(s), representing said Shares, shall be retained and held by Company in its possession for purposes of its repurchase rights, and (ii) Optionee shall have delivered to Company an Assignment Separate from Certificate (Stock Power), as signed by Optionee, but with the number of shares to be transferred and transferee unspecified (and Optionee hereby irrevocably designates and authorizes Company, and its successors and assigns, as agent for Optionee to date, complete and otherwise use said Stock Power to effectuate and implement Companys repurchase rights herein; said designation and authority being deemed coupled with an interest and being irrevocable). For purposes of protecting and securing Companys repurchase rights to said Shares, Optionee hereby grants to Company a security interest in said Shares and agrees, unless Company otherwise consents in writing, not to sell, transfer or offer to sell or transfer any of said Shares as are and remain subject to Companys repurchase rights. Upon completion of the transfer of the Shares (or appropriate portion thereof) to Company relative to its repurchase rights and/or upon the termination of said rights, as the case may be, all remaining Shares not repurchased by and transferred to Company shall be transferred and/or returned to Optionee. All of the terms herein are fully binding and enforceable upon Optionee and Optionees heirs, representatives, successors and assigns. All certificate(s) representing the Shares of Company to be retained and held by Company shall, until released to Optionee free of Companys repurchase rights, may bear, at Companys discretion, in addition to each of the legend(s) as otherwise herein prescribed, the following legend (with the appropriate date filled in):
THESE SHARES ARE SUBJECT TO A REPURCAHSE OPTION OF THE CORPORATION AND TO VARIOUS TRANSFER AND OTHER RESTRICTIONS AS SET FORTH IN THAT CERTAIN STOCK OPTION GRANT, DATED MAY 23, 2002, A COPY OF WHICH IS ON FILE WITH THE CORPORATION.
It is understood that Optionee may accompany the exercise of the option rights herein with the filing with the Internal Revenue Service of an election to include income in the year of the exercise pursuant to Section 83(b) of the Internal Revenue Code (and with such state agencies and under such state laws as applicable). OPTIONEE SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THE OPTION OR MAKING SUCH FILING TO VERIFY AND CONFIRM THAT SUCH ACTIONS ARE APPROPRIATE WITH RESPECT TO OPTIONEES TAX CIRCUMSTANCES.
4. Restriction on Exercise . This Option may not be exercised unless such exercise is in compliance with the Securities Act of 1933, as amended, and all applicable state securities laws, as they are in effect on the date of exercise, and the requirements of any stock exchange or over-the-counter market on which the Companys Common Stock may be listed or quoted at the time of exercise. Optionee understands that the Company is under no obligation to register, qualify or list the Shares with the Securities and Exchange Commission, any state securities commission or any stock exchange to effect such compliance.
5. Termination of Option . Except as provided below in this Section 4, this Option shall terminate and may not be exercised if Optionee ceases to be employed by, or provide services to, the Company or by any Parent or Subsidiary of the Company (or, in the case of a nonqualified stock option, by or to any Affiliate of the Company). Optionee shall be considered to be employed by the Company for all purposes under this Section 4 if Optionee is an officer, director or full-time employee of the Company or any Parent, Subsidiary or Affiliate of the Company or if the Committee determines that Optionee is rendering substantial services as a part-time employee, consultant, contractor or advisor to the Company or any Parent, Subsidiary or Affiliate of the Company. The Committee shall have discretion to determine whether Optionee has ceased to be employed by the Company or any Parent, Subsidiary or Affiliate of the Company and the effective date on which such employment terminated (the Termination Date).
(a) Termination Generally . If Optionee ceases to be employed by the Company and all Parents, Subsidiaries or Affiliates of the Company for any reason except death or disability, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee, but only within three months after the Termination Date; provided that this Option may not be exercised in any event after the Expiration Date.
(b) Death or Disability . If Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of the death of Optionee or the permanent and total disability of Optionee within the meaning of Section 22(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee (or Optionees legal representative), but only within twelve (12) months after the Termination Date; and provided further that this Option may not be exercised in any event later than the Expiration Date. If Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of a disability of Optionee which is not permanent and total within the meaning of Section 221(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee or Optionees legal representative, but only within six (6) months after the Termination Date; and provided further that the Option may not be exercised in any event later than the Expiration Date. Optionee understands that if the Option is an ISO and if it is exercised after three months in the event of a disability which is not permanent and total, the Option will be treated as a nonqualified stock option for tax purposes.
(c) No Right to Employment . Nothing in the Plan or this Grant shall confer on Optionee any right to continue in the employ of, or other relationship with, the Company or any Parent, Subsidiary or Affiliate of the Company or limit in any way the right of the Company or any Parent, Subsidiary or Affiliate of the Company to terminate Optionees employment or other relationship at any time, with or without cause.
6. Manner of Exercise .
(a) Exercise Agreement . This Option shall be exercisable by delivery to the Company of an executed written Stock Option Exercise Agreement in the form attached hereto as Exhibit 1, or in such other form as may be approved by the Company, which shall set forth Optionees election to exercise some or all of this Option, the number of Shares being purchased, any restrictions imposed on the Shares and such other representations and agreements as may be required by the Company to comply with applicable securities laws.
(b) Exercise Price . The Stock Option Exercise Agreement shall be accompanied by full payment of the Exercise Price for the Shares being purchased. Payment for the Shares may be made in cash (by check), or, where permitted by law, by any of the following methods approved by the Committee at the date of grant of this Option, or any combinations thereof:
x | (i) by cancellation of indebtedness of the Company to the Optionee; |
x | (ii) by surrender of shares of Common Stock of the Company already owned by the Optionee, or which were obtained by Optionee in the open public market, having a Fair Market Value equal to the exercise price of the Option; |
x | (iii) by waiver of compensation due or accrued to Optionee for services rendered; |
¨ | (iv) through delivery of a promissory note for the amount of the exercise price bearing interest at such a rate as determined by the Committee, secured or unsecured as determined by the Committee, and due at such time as determined by the Committee; |
¨ | (v) through a guaranty by the Company of a loan to the Optionee by a third party of all or part of the option price (but not more than the option price), and such guaranty may be on an unsecured or secured basis as the Committee shall approve (including, without limitation, by a security interest in the Shares of the Company); |
x | (vi) provided that a public market for the Companys stock exists, through a same day sale commitment from the Optionee and a broker dealer that is a member of the National Association of Securities Dealers, Inc. (an NASD Dealer) whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; or |
x |
(vii) provided that a public market for the Companys stock exists, through a margin commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise this option and to pledge the Shares so |
purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company. |
(c) Withholding Taxes . Prior to the issuance of the Shares upon exercise of this Option, if so required by Company, Optionee must pay or make adequate provision for any applicable federal or state withholding obligations of the Company. The Optionee may provide for payment of Optionees minimum statutory withholding taxes upon exercise of the Option by requesting that the Company retain Shares with a Fair Market Value equal to the minimum amount of taxes required to be withheld, all as set forth in Section 6(c) of the Plan. In such case, the Company shall issue the net number of Shares to the Optionee by deducting the Shares retained from the Shares exercised.
(d) Issuance of Shares . Provided that such notice and payment are in form and substance satisfactory to counsel for the Company, the Company shall cause the Shares to be issued in the name of Optionee or Optionees legal representative.
7. Notice of Disqualifying Disposition of ISO Shares . If the Option granted to Optionee herein is an ISO, and if Optionee sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (1) the date two years after the Date of Grant, or (2) the date one year after exercise of the ISO with respect to the Shares to be sold or disposed of, the Optionee shall immediately notify the Company in writing of such disposition. Optionee acknowledges and agrees that Optionee may be subject to income tax withholding by the Company on the compensation income recognized by the Optionee from any such early disposition by payment in cash or out of the current wages or other earnings payable to the Optionee.
8. Nontransferability of Option . This Option may not be transferred in any manner other than by will or by the law of descent and distribution and may be exercised during the lifetime of Optionee only by Optionee or other permitted transferee. The terms of this Option shall be binding upon the executors, administrators, successors and assigns of the Optionee.
9. Federal Tax Consequences . Set forth below is a brief summary as of the date this form of Option Grant was adopted of some of the federal tax consequences of exercise of this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercise of ISO . If this Option qualifies as an ISO, there will be no regular federal income tax liability upon the exercise of this Option, although the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated as an adjustment to alternative minimum taxable income for federal income tax purposes and may subject the Optionee to an alternative minimum tax liability in the year of exercise.
(b) Exercise of Nonqualified Stock Option . If this Option does not qualify as an ISO, there may be a regular federal income tax liability upon the exercise of the Option. The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. The Company will be required to withhold from Optionees compensation or collect from Optionee and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise.
(c) Disposition of Shares . In the case of a nonqualified stock option, if Shares are held for at least one year before disposition, any gain on disposition of the Shares will be treated as long-term capital gain for federal and California income tax purposes. In the case of an ISO, if Shares are held for at least one year after the date of exercise and at least two years after the Date of Grant, any gain on disposition of the Shares will be treated as long-term capital gain for federal and California income tax purposes. If Shares acquired pursuant to an ISO are disposed of within such one-year or two-year periods (a disqualifying disposition), gain on such disqualifying disposition will be treated as compensation income (taxable at ordinary income rates) to the extent of the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price (the Spread). Any gain in excess of the Spread shall be treated as capital gain.
10. Interpretation . Any dispute regarding the interpretation of this Grant shall be submitted by Optionee or the Company to the Companys Board of Directors or the Committee, which shall review such dispute at its next regular meeting. The resolution of such a dispute by the Board or Committee shall be final and binding on the Company and Optionee.
11. Entire Agreement . The Plan and the Stock Option Exercise Agreement attached hereto as Exhibit 1 are incorporated herein by this reference. This Grant, the Plan and the Stock Option Exercise Agreement constitute the entire agreement of the parties hereto and supersede all prior undertakings and agreements with respect to the subject matter hereof.
Novacal Pharmaceuticals, Inc. | ||
By: | /s/ Ron Najafi | |
Name: | Ron Najafi | |
Title: | Chairman |
ACCEPTANCE
Optionee hereby acknowledges receipt of a copy of the Plan, represents that Optionee has read and understands the terms and provisions thereof, and accepts this Option subject to all the terms and conditions of the Plan and this Stock Option Grant. Optionee acknowledges that there may be adverse tax consequences upon exercise of this Option or disposition of the Shares and that Optionee should consult a tax adviser prior to such exercise or disposition.
OPTIONEE: | ||
Signature: | /s/ Jack OReilly | |
Print Name: | Jack OReilly | |
Date: |
EXHIBIT 1
TO STOCK OPTION GRANT
STOCK OPTION EXERCISE AGREEMENT
This Agreement is made this day of , 20 between Novacal Pharmaceuticals, Inc., a California corporation (the Company), and the optionee named below (Optionee).
Optionee:________________________________________________________________________________
Social Security Number:____________________________________________________________________
Address:_________________________________________________________________________________
________________________________________________________________________________________
Number of Shares Purchased:_________________________________________________________________
Price Per Share:_____________________________________________________________________________
Aggregate Purchase Price:_____________________________________________________________________
Date of Option Grant:_________________________________________________________________________
Type of Stock Option: Incentive:__________________
Nonqualified:_______________
Optionee hereby delivers to the Company the Aggregate Purchase Price, to the extent permitted in the Option Grant, as follows [Company to check applicable box(es) and complete ]:
¨ | cash (check) in the amount of $ , receipt of which is acknowledged by the Company; |
¨ | by delivery of fully-paid, nonassessable and vested shares of the Common Stock of the Company owned by Optionee and owned free and clear of all liens, claims, encumbrances or security interests, valued at the current fair market value of $ per share (determined in accordance with the Plan); |
¨ | by the waiver hereby of compensation due or accrued for services rendered in the amount of $ ; |
¨ | by delivery of a promissory note in the amount of $ with such terms as determined by the Committee; |
¨ | by delivery of all of the proceeds of a loan from a third party in the amount of $ , which loan is guaranteed by the Company; |
¨ | by delivery of a same day sale commitment from the Optionee and a broker dealer that is a member of the National Association of Securities Dealers, Inc. (an NASD Dealer) whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price of $ and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company (this payment method may be used only if a public market for the Companys stock exists); or |
¨ | by delivery of a margin commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise this option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price of $ directly to the Company (this payment method may be used only if a public market for the Companys stock exists). |
The Company and Optionee hereby agree as follows:
1. Purchase of Shares . On this date and subject to the terms and conditions of this Agreement, Optionee hereby exercises the Stock Option Grant between the Company and Optionee dated as of the Date of Option Grant set forth above (the Grant), with respect to the Number of Shares Purchased set forth above of the Companys Common Stock (the Shares) at an aggregate purchase price equal to the Aggregate Purchase Price set forth above (the Purchase Price) and the Price per Share set forth above (the Purchase Price Per Share). The term Shares refers to the Shares purchased under this Agreement and includes all securities received (a) in replacement of the Shares, and (b) as a result of stock dividends or stock splits in respect of the Shares. Capitalized terms used herein that are not defined herein have the definitions ascribed to them in the Plan or the Grant.
2. Representations of Purchaser . Optionee represents and warrants to the Company that:
(a) Optionee has received, read and understood the Plan and the Grant and agrees to abide by and be bound by their terms and conditions.
(b) Optionee is capable of evaluating the merits and risks of this investment, has the ability to protect Optionees own interests in this transaction and is financially capable of bearing a total loss of this investment.
(c) Optionee is fully aware of (i) the highly speculative nature of the investment in the Shares; (ii) the financial hazards involved; and (iii) the lack of liquidity of the Shares.
(d) Optionee is purchasing the Shares for Optionees own account for investment purposes only and not with a view to, or for sale in connection with, a distribution of the Shares within the meaning of the Securities Act of 1933, as amended (the 1933 Act).
(e) Optionee has no present intention of selling or otherwise disposing of all or any portion of the Shares.
(f) Optionee shall agree, to the extent requested by Company and an underwriter of Companys Common Stock, not to sell or otherwise transfer or dispose of any securities of Company, whether or not acquired hereunder, during a reasonable period of time not to exceed 180 days, as agreed to by Company and said underwriter, following the effective date of a registration statement under the Securities Act of 1933 with respect to any public offering of Companys securities.
3. Compliance with Securities Laws . Optionee understands and acknowledges that the Shares have not been registered under the 1933 Act and that, notwithstanding any other provision of the Grant to the contrary, the exercise of any rights to purchase any Shares is expressly conditioned upon compliance with the 1933 Act and all applicable state securities laws. Optionee agrees to cooperate with the Company to ensure compliance with such laws. The Shares are being issued under the 1933 Act pursuant to [the Company will check the applicable box]:
¨ | the exemption provided by Rule 701; |
¨ | the exemption provided by Rule 504; |
¨ | Section 4(2) of the 1933 Act; |
¨ | other: ______________________________________ |
If privately held:
4. Federal Restrictions on Transfer . Optionee understands that the Shares must be held indefinitely unless they are registered under the 1933 Act or unless an exemption from such registration is available and that the certificate(s) representing the Shares will bear a legend to that effect. Optionee understands that the Company is under no obligation to register the Shares,
and that an exemption may not be available or may not permit Optionee to transfer Shares in the amounts or at the times proposed by Optionee.
(a) Rule 144 . Optionee has been advised that Rule 144 promulgated under the 1933 Act, which permits certain resales of unregistered securities, is not presently available with respect to the Shares and, in any event, requires that a minimum of one (1) year elapses between the date of acquisition of Shares from the Company or an affiliate of the Company and any resale under Rule 144. Prior to an initial public offering of the Companys stock, nonaffiliates (i.e. persons other than officers, directors and major shareholders of the Company) may resell only under Rule 144(k), which requires that a minimum of three (3) years elapse between the date of acquisition of Shares from the Company or an affiliate of the Company and any resale under Rule 144(k). Rule 144(k) is not available to affiliates.
(b) Rule 701 . If the exemption relied upon for exercise of the Shares is Rule 701, the Shares will become freely transferable, subject to limited conditions regarding the method of sale, by nonaffiliates ninety (90) days after the first sale of Common Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission (the SEC), subject to any lengthier market standoff agreement contained in this Agreement or entered into by Optionee. Affiliates must comply with the provisions (other than the holding period requirements) of Rule 144.
5. State Law Restrictions on Transfer . Optionee understands that transfer of the Shares may be restricted by applicable state securities laws, and that the certificate(s) representing the Shares may bear a legend or legends to that effect.
6. Market Standoff Agreement . Optionee agrees in connection with any registration of the Companys securities that, upon the request of the Company or the underwriters managing any public offering of the Companys securities, Optionee will not sell or otherwise dispose of any Shares without the prior written consent of the Company or such underwriters, as the case may be, for a period of time (not to exceed one hundred eighty (180) days) from the effective date of such registration as the Company or the underwriters may specify for employee shareholders generally.
7. Legends . Optionee understands and agrees that the certificate(s) representing the Shares will bear a legend in substantially the following form, in addition to any other legends required by applicable law:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE SECURITIES ACT), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
8. Stop-Transfer Notices . Optionee understands and agrees that, in order or ensure compliance with the restrictions referred to herein, the Company may issue appropriate stop-transfer instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
9. Tax Consequences . OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEES PURCHASE OR DISPOSITION OF THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
10. Repurchase Options . In addition to such other buy-sell terms, rights of first refusal, repurchase rights and/or similar provisions as are included herewith as determined by Company, the following terms and conditions apply to Companys rights to repurchase Shares under the provisions of Section 3 in the Stock Option Grant:
Repurchase Terms
(a) Early Exercise . Companys repurchase right hereunder applies to any Shares which are not Vested Shares and as purchased by Optionee by an exercise (or early exercise) of the Stock Option grant, as permitted in Section 3 thereof.
(b) Repurchase Right . If Optionee ceases to be employed by, or provide service to, the Company, or any Parent or Subsidiary of the Company, or, in the case of a nonqualified option, by or to any Affiliate of the Company (said date of cessation referred to as Termination Date), Company shall have the right and option to repurchase (at the price and for the payment in (c) immediately below) such number of Shares as is equal to, and to the extent that, the underlying option rights to said Shares, under the terms of Section 2 of the Stock Option Grant, would not have become exercisable on or prior to the Termination Date. Or stated otherwise, absent Optionees purchase of said Shares, said Shares (as repurchasable by Company) would not have become Vested Shares under Section 2 of the Stock Option Grant on or prior to the Termination Date. Companys rights to so repurchase said Shares may be exercised by a written notice given to Optionee, together with full payment of the purchase price of said repurchased Shares, within a period of 90 days after the Termination Date.
As an example of the foregoing, assume that an Optionee is granted option rights under an Option Grant, dated June 1, 2002, for a total of 4,800 Shares, exercisable, under Section 2 of the Stock Option Grant, as to 1,200 shares, on June 1, 2002, and, as to 100
Shares, on the first day of each of 36 successive calendar months, beginning July 1, 2002. If Optionee exercised option rights (under an early exercise) and purchased 2,000 shares on May 1, 2002, and Optionees employment (or services) terminated on June 15, 2002, Company would have the right to repurchase 800 Shares (inasmuch as, of the 2,000 Shares purchased, 1,200 Shares would have been exercisable, under Section 2, prior to June 15, 2002, the Termination Date).
(c) Repurchase Price, Exercise and Payment . The foregoing Company option and right to repurchase Shares shall be exercised at a price equal to the original option exercise price per share and shall be paid in cash (or Company check) and/or by cancellation of all or any portion of Optionees purchase money indebtedness, if any, for the Shares.
(d) Assignment and Delegation . Notwithstanding any contrary provision herein, Company reserves and has the right to assign and/or delegate any or all of its repurchase rights and obligations herein to such other party or parties as may be selected by it.
(e) Antidilution Provision . In the event of a stock dividend, stock split, reverse stock split, other stock division or combination, recapitalization or reclassification involving Companys Common Shares, an equitable and proportionate adjustment or other relevant change shall be deemed to have been made to all of the referenced shares and/or prices referenced herein in order fully to effectuate the purposes hereof, and all resulting additional (or reduced number of) shares thereafter shall be subject to the terms herein.
(f) Notice and Payments . All notices and payments to be made hereunder may be given and made by Company or Optionee to one another, either personally or by United States mail, postage prepaid, by Priority Mail, by Federal Express or by any other similar means, if to Company, addressed at its then principal place of business (currently at 37 Commercial Boulevard, Suite 100, Novato California 94949), or, if to Optionee, addressed to Optionee at Optionees last address appearing on Companys records, or at such other address as either Company or Optionee may designate by written notice to each other. In the event of the death or disability of Optionee, and such occurrence is known by Company, then said notice shall be given in the name of Optionee at the address and in the manner as above provided and also shall be given to Optionees known representative(s) or successor(s), at such address(es) as designated in writing to Company by said representative(s) or successor(s), or, absent such designation, to such known representative(s) or successor(s) at Optionees above referenced address. Any such notice and payment shall be deemed given as of the time and date when personally delivered or when otherwise sent.
11. Entire Agreement . The Plan and Grant are incorporated herein by reference. This Agreement, the Plan and the Grant constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof, and are governed by California law except for that body of law pertaining to conflict of laws.
Submitted by: |
Accepted by: |
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OPTIONEE: |
Novacal Pharmaceuticals, Inc., a California corporation |
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[print name] | ||||||||
By: | ||||||||
[signature] |
Its: |
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Dated: | Dated: | |||||||
Address: | ||||||||
Exhibit 10.9
OP-101
STOCK OPTION GRANT
Optionee: BEHZAD KHOSROVI
Address: ___________________________________________________________________________
__________________________________________________________________________________
Total Shares Subject to Option: 400,000
Exercise Price Per Share: $0.15
Date of Grant: January 30, 2004
Expiration Date of Option: January 29, 2014
Type of Stock Option: |
Incentive: ¨ | |
Nonqualified: x |
1. Grant of Option . Novacal Pharmaceuticals, Inc., a California corporation (the Company), hereby grants to the optionee named above (Optionee) an option (this Option) to purchase the total number of shares of Common Stock of the Company set forth above (the Shares) at the exercise price per share set forth above (the Exercise Price), subject to all of the terms and conditions of this Grant and the Companys 2002 Stock Option Plan, as amended to the date hereof (the Plan). If designated as an Incentive Stock Option above, this Option is intended to qualify as an incentive stock option (ISO) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the Code). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Plan.
2. Exercise Period of Option . The option rights granted hereunder (unless sooner terminated as otherwise herein provided by employment termination or otherwise) are exercisable during the time period or periods, and as to the number of shares exercisable during each time period, as follows:
(a) 50,000 shares, or any part thereof, may be exercised at any time or times, from and including January 30, 2004 to and including January 29, 2014;
(b) an additional 100,000 shares, or any part thereof, may be exercised at any time or times, upon the filing of the Companys first IND (as to its NVC101 product), if filed before or on December 1, 2013;
(c) an additional 50,000 shares, or any part thereof, may be exercised at any time or times, upon completion of this Companys Phase I/II clinical trial (as to its NVC101 product), if completed before or on December 1, 2013;
(d) and the remaining 200,000 shares, may be exercised at any time or times, to the extent of 50,000 shares, or any part thereof, as of the end of each calendar quarter (ending with the last day of March, June, September and December) commencing with the end of the calendar quarter following the quarter in which this Companys Phase I/II clinical trail (as to its NVC101 product) is completed, if completed before or one December 1, 2013.
Notwithstanding the above: (i) all of the then Common shares as are not exercisable shall become immediately exercisable upon the consummation of either of (a) an initial public offering of its securities by this Company in a registration statement filed with the Securities and Exchange Commission (pursuant to a financing with a gross sales price of not less than $10,000,000) or (b) a transfer of control of the business of this Company to an independent party pursuant to a merger, reverse merger, sale of assets or stock, or a similar transaction (but excluding any transfer of control due to this corporations sale of stock for financing purposes); (ii) the Committee or to the extent a Committee has not been appointed, the Board of Directors (it being understood in such event reference herein to the Committee shall mean the Board of Directors), in its sole discretion, may, upon written notice to the Optionee, accelerate the earliest date or dates on which any of the Option rights granted hereunder are exercisable, and (iii) the minimum number of Shares that may be purchased upon any partial exercise of the Option is Ten Thousand (10,000) shares, and (iv) this Option shall expire on the Expiration Date set forth above and must be exercised, if at all, on or before the Expiration Date. The portion of Shares as to which an Option is exercisable in accordance with the above schedule as of the applicable dates shall be deemed Vested Options.
3. Early Exercise and Repurchase Rights . Notwithstanding the condition precedent exercise periods and/or events set forth in Section 2 above, after the date of this Grant and prior to said exercise periods and/or events, Optionee, at any time, or from time to time, may exercise (early exercise) any or all of the option rights granted hereunder, after the date of this Grant and prior to said Section 2 exercise periods and/or events, provided, however, if, and to the extent, that the Shares purchased pursuant to such exercise are not Vested Shares (as defined in Section 2 above), Company shall have the right and option to repurchase any or all of said Shares (as are not Vested Shares) at the per share original exercise price set forth herein, equitably and proportionately adjusted or otherwise relevantly changed to reflect any Company Common Stock dividends, stock splits, reverse stock splits, other similar stock combinations or divisions, or stock reclassifications, occurring after the date hereof. Said repurchase right shall be exercisable as of, when, and to such extent, and shall terminate as of such date(s), as set forth in and provided by those certain Repurchase Terms provided in Section 10 in the Stock Option Exercise Agreement, attached as Exhibit 1 hereto. It is understood, however, that, after the Termination Date, as defined in Section 5 below, or after any other termination of the option rights herein, no exercise may be made of any rights to Shares under the exercise provisions (early exercise) in this Section 3. As to any Shares purchased upon an exercise hereunder as are not Vested Shares, as a condition of and requirement for said exercise and purchase, (i) the
certificate(s), representing said Shares, shall be retained and held by Company in its possession for purposes of its repurchase rights, and (ii) Optionee shall have delivered to Company an Assignment Separate from Certificate (Stock Power), as signed by Optionee, but with the number of shares to be transferred and transferee unspecified (and Optionee hereby irrevocably designates and authorizes Company, and its successors and assigns, as agent for Optionee to date, complete and otherwise use said Stock Power to effectuate and implement Companys repurchase rights herein; said designation and authority being deemed coupled with an interest and being irrevocable). For purposes of protecting and securing Companys repurchase rights to said Shares, Optionee hereby grants to Company a security interest in said Shares and agrees, unless Company otherwise consents in writing, not to sell, transfer or offer to sell or transfer any of said Shares as are and remain subject to Companys repurchase rights. Upon completion of the transfer of the Shares (or appropriate portion thereof) to Company relative to its repurchase rights and/or upon the termination of said rights, as the case may be, all remaining Shares not repurchased by and transferred to Company shall be transferred and/or returned to Optionee. All of the terms herein are fully binding and enforceable upon Optionee and Optionees heirs, representatives, successors and assigns. All certificate(s) representing the Shares of Company to be retained and held by Company shall, until released to Optionee free of Companys repurchase rights, may bear, at Companys discretion, in addition to each of the legend(s) as otherwise herein prescribed, the following legend (with the appropriate date filled in):
THESE SHARES ARE SUBJECT TO A REPURCHASE OPTION OF THE CORPORATION AND TO VARIOUS TRANSFER AND OTHER RESTRICTIONS AS SET FORTH IN THAT CERTAIN STOCK OPTION GRANT, DATED JANUARY 30, 2004, A COPY OF WHICH IS ON FILE WITH THE CORPORATION.
It is understood that Optionee may accompany the exercise of the option rights herein with the filing with the Internal Revenue Service of an election to include income in the year of the exercise pursuant to Section 83(b) of the Internal Revenue Code (and with such state agencies and under such state laws as applicable). OPTIONEE SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THE OPTION OR MAKING SUCH FILING TO VERIFY AND CONFIRM THAT SUCH ACTIONS ARE APPROPRIATE WITH RESPECT TO OPTIONEES TAX CIRCUMSTANCES.
4. Restriction on Exercise . This Option may not be exercised unless such exercise is in compliance with the Securities Act of 1933, as amended, and all applicable state securities laws, as they are in effect on the date of exercise, and the requirements of any stock exchange or over-the-counter market on which the Companys Common Stock may be listed or quoted at the time of exercise. Optionee understands that the Company is under no obligation to register, qualify or list the Shares with the Securities and Exchange Commission, any state securities commission or any stock exchange to effect such compliance.
5. Termination of Option . Except as provided below in this Section 4, this Option shall terminate and may not be exercised if Optionee ceases to be employed by, or provide services to, the Company or by any Parent or Subsidiary of the Company (or, in the case of a
nonqualified stock option, by or to any Affiliate of the Company). Optionee shall be considered to be employed by the Company for all purposes under this Section 4 if Optionee is an officer, director or full-time employee of the Company or any Parent, Subsidiary or Affiliate of the Company or if the Committee determines that Optionee is rendering substantial services as a part-time employee, consultant, contractor or advisor to the Company or any Parent, Subsidiary or Affiliate of the Company. The Committee shall have discretion to determine whether Optionee has ceased to be employed by the Company or any Parent, Subsidiary or Affiliate of the Company and the effective date on which such employment terminated (the Termination Date).
(a) Termination Generally . If Optionee ceases to be employed by the Company and all Parents, Subsidiaries or Affiliates of the Company for any reason except death or disability, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee, but only within three months after the Termination Date; provided that this Option may not be exercised in any event after the Expiration Date.
(b) Death or Disability . If Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of the death of Optionee or the permanent and total disability of Optionee within the meaning of Section 22(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee (or Optionees legal representative), but only within twelve (12) months after the Termination Date; and provided further that this Option may not be exercised in any event later than the Expiration Date. If Optionees employment with the Company and all Parents, Subsidiaries and Affiliates of the Company is terminated because of a disability of Optionee which is not permanent and total within the meaning of Section 221(e)(3) of the Code, the Vested Options, to the extent (and only to the extent) exercisable by Optionee on the Termination Date, may be exercised by Optionee or Optionees legal representative, but only within six (6) months after the Termination Date; and provided further that the Option may not be exercised in any event later than the Expiration Date. Optionee understands that if the Option is an ISO and if it is exercised after three months in the event of a disability which is not permanent and total, the Option will be treated as a nonqualified stock option for tax purposes.
(c) No Right to Employment . Nothing in the Plan or this Grant shall confer on Optionee any right to continue in the employ of, or other relationship with, the Company or any Parent, Subsidiary or Affiliate of the Company or limit in any way the right of the Company or any Parent, Subsidiary or Affiliate of the Company to terminate Optionees employment or other relationship at any time, with or without cause.
6. Manner of Exercise .
(a) Exercise Agreement . This Option shall be exercisable by delivery to the Company of an executed written Stock Option Exercise Agreement in the form attached hereto as Exhibit 1, or in such other form as may be approved by the Company, which shall set forth Optionees election to exercise some or all of this Option, the number of Shares being purchased, any restrictions imposed on the Shares and such other representations and agreements as may be required by the Company to comply with applicable securities laws.
(b) Exercise Price . The Stock Option Exercise Agreement shall be accompanied by full payment of the Exercise Price for the Shares being purchased. Payment for the Shares may be made in cash (by check), or, where permitted by law, by any of the following methods approved by the Committee at the date of grant of this Option, or any combinations thereof:
¨ | (i) by cancellation of indebtedness of the Company to the Optionee; |
¨ | (ii) by surrender of shares of Common Stock of the Company already owned by the Optionee, or which were obtained by Optionee in the open public market, having a Fair Market Value equal to the exercise price of the Option; |
¨ | (iii) by waiver of compensation due or accrued to Optionee for services rendered; |
¨ | (iv) through delivery of a promissory note for the amount of the exercise price bearing interest at such a rate as determined by the Committee, secured or unsecured as determined by the Committee, and due at such time as determined by the Committee; |
¨ | (v) through a guaranty by the Company of a loan to the Optionee by a third party of all or part of the option price (but not more than the option price), and such guaranty may be on an unsecured or secured basis as the Committee shall approve (including, without limitation, by a security interest in the Shares of the Company); |
¨ | (vi) provided that a public market for the Companys stock exists, through a same day sale commitment from the Optionee and a broker dealer that is a member of the National Association of Securities Dealers, Inc. (an NASD Dealer) whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company; or |
¨ |
(vii) provided that a public market for the Companys stock exists, through a margin commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise this option and to pledge the Shares so |
purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company. |
(c) Withholding Taxes . Prior to the issuance of the Shares upon exercise of this Option, if so required by Company, Optionee must pay or make adequate provision for any applicable federal or state withholding obligations of the Company. The Optionee may provide for payment of Optionees minimum statutory withholding taxes upon exercise of the Option by requesting that the Company retain Shares with a Fair Market Value equal to the minimum amount of taxes required to be withheld, all as set forth in Section 6(c) of the Plan. In such case, the Company shall issue the net number of Shares to the Optionee by deducting the Shares retained from the Shares exercised.
(d) Issuance of Shares . Provided that such notice and payment are in form and substance satisfactory to counsel for the Company, the Company shall cause the Shares to be issued in the name of Optionee or Optionees legal representative.
7. Notice of Disqualifying Disposition of ISO Shares . If the Option granted to Optionee herein is an ISO, and if Optionee sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (1) the date two years after the Date of Grant, or (2) the date one year after exercise of the ISO with respect to the Shares to be sold or disposed of, the Optionee shall immediately notify the Company in writing of such disposition. Optionee acknowledges and agrees that Optionee may be subject to income tax withholding by the Company on the compensation income recognized by the Optionee from any such early disposition by payment in cash or out of the current wages or other earnings payable to the Optionee.
8. Nontransferability of Option . This Option may not be transferred in any manner other than by will or by the law of descent and distribution and may be exercised during the lifetime of Optionee only by Optionee or other permitted transferee. The terms of this Option shall be binding upon the executors, administrators, successors and assigns of the Optionee.
9. Federal Tax Consequences . Set forth below is a brief summary as of the date this form of Option Grant was adopted of some of the federal tax consequences of exercise of this Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercise of ISO . If this Option qualifies as an ISO, there will be no regular federal income tax liability upon the exercise of this Option, although the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price will be treated as an adjustment to alternative minimum taxable income for federal income tax purposes and may subject the Optionee to an alternative minimum tax liability in the year of exercise.
(b) Exercise of Nonqualified Stock Option . If this Option does not qualify as an ISO, there may be a regular federal income tax liability upon the exercise of the Option. The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price. The Company will be required to withhold from Optionees compensation or collect from Optionee and pay to the applicable taxing authorities an amount equal to a percentage of this compensation income at the time of exercise.
(c) Disposition of Shares . In the case of a nonqualified stock option, if Shares are held for at least one year before disposition, any gain on disposition of the Shares will be treated as long-term capital gain for federal and California income tax purposes. In the case of an ISO, if Shares are held for at least one year after the date of exercise and at least two years after the Date of Grant, any gain on disposition of the Shares will be treated as long-term capital gain for federal and California income tax purposes. If Shares acquired pursuant to an ISO are disposed of within such one-year or two-year periods (a disqualifying disposition), gain on such disqualifying disposition will be treated as compensation income (taxable at ordinary income rates) to the extent of the excess, if any, of the Fair Market Value of the Shares on the date of exercise over the Exercise Price (the Spread). Any gain in excess of the Spread shall be treated as capital gain.
10. Interpretation . Any dispute regarding the interpretation of this Grant shall be submitted by Optionee or the Company to the Companys Board of Directors or the Committee, which shall review such dispute at its next regular meeting. The resolution of such a dispute by the Board or Committee shall be final and binding on the Company and Optionee.
11. Entire Agreement . The Plan and the Stock Option Exercise Agreement attached hereto as Exhibit 1 are incorporated herein by this reference. This Grant, the Plan and the Stock Option Exercise Agreement constitute the entire agreement of the parties hereto and supersede all prior undertakings and agreements with respect to the subject matter hereof.
Novacal Pharmaceuticals, Inc. | ||
By: | /s/ Ron Najafi | |
Name: | Ron Najafi | |
Title: | President and CEO |
ACCEPTANCE
Optionee hereby acknowledges receipt of a copy of the Plan, represents that Optionee has read and understands the terms and provisions thereof, and accepts this Option subject to all the terms and conditions of the Plan and this Stock Option Grant. Optionee acknowledges that there may be adverse tax consequences upon exercise of this Option or disposition of the Shares and that Optionee should consult a tax adviser prior to such exercise or disposition.
OPTIONEE: | ||
Signature: | /s/ Behzad Khosrovi | |
Print Name: | Behzad Khosrovi | |
Date: |
EXHIBIT 1
TO STOCK OPTION GRANT
STOCK OPTION EXERCISE AGREEMENT
This Agreement is made this day of , 20 between Novacal Pharmaceuticals, Inc., a California corporation (the Company), and the optionee named below (Optionee).
Optionee: __________________________________________________________________________________ |
Social Security Number: ______________________________________________________________________ |
Address: ___________________________________________________________________________________ |
___________________________________________________________________________________________ |
Number of Shares Purchased: __________________________________________________________________ |
Price Per Share: _____________________________________________________________________________ |
Aggregate Purchase Price: _____________________________________________________________________ |
Date of Option Grant: _________________________________________________________________________ |
Type of Stock Option: | Incentive: _________________________ | |
Nonqualified: _______________________ |
Optionee hereby delivers to the Company the Aggregate Purchase Price, to the extent permitted in the Option Grant, as follows [Company to check applicable box(es) and complete ]:
¨ |
cash (check) in the amount of $ , receipt of which is acknowledged by the Company; |
¨ |
by delivery of fully-paid, nonassessable and vested shares of the Common Stock of the Company owned by Optionee and owned free and clear of all liens, claims, encumbrances or security interests, valued at the current fair market value of $ per share (determined in accordance with the Plan); |
¨ |
by the waiver hereby of compensation due or accrued for services rendered in the amount of $ ; |
¨ |
by delivery of a promissory note in the amount of $ with such terms as determined by the Committee; |
¨ |
by delivery of all of the proceeds of a loan from a third party in the amount of $ , which loan is guaranteed by the Company; |
¨ |
by delivery of a same day sale commitment from the Optionee and a broker dealer that is a member of the National Association of Securities Dealers, Inc. (an NASD Dealer) whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased to pay for the exercise price of $ and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price directly to the Company (this payment method may be used only if a public market for the Companys stock exists); or |
¨ |
by delivery of a margin commitment from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to exercise this option and to pledge the Shares so purchased to the NASD Dealer in a margin account as security for a loan from the NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to forward the exercise price of $ directly to the Company (this payment method may be used only if a public market for the Companys stock exists). |
The Company and Optionee hereby agree as follows:
1. Purchase of Shares . On this date and subject to the terms and conditions of this Agreement, Optionee hereby exercises the Stock Option Grant between the Company and Optionee dated as of the Date of Option Grant set forth above (the Grant), with respect to the Number of Shares Purchased set forth above of the Companys Common Stock (the Shares) at an aggregate purchase price equal to the Aggregate Purchase Price set forth above (the Purchase Price) and the Price per Share set forth above (the Purchase Price Per Share). The term Shares refers to the Shares purchased under this Agreement and includes all securities received (a) in replacement of the Shares, and (b) as a result of stock dividends or stock splits in respect of the Shares. Capitalized terms used herein that are not defined herein have the definitions ascribed to them in the Plan or the Grant.
2. Representations of Purchaser . Optionee represents and warrants to the Company that:
(a) Optionee has received, read and understood the Plan and the Grant and agrees to abide by and be bound by their terms and conditions.
(b) Optionee is capable of evaluating the merits and risks of this investment, has the ability to protect Optionees own interests in this transaction and is financially capable of bearing a total loss of this investment.
(c) Optionee is fully aware of (i) the highly speculative nature of the investment in the Shares; (ii) the financial hazards involved; and (iii) the lack of liquidity of the Shares.
(d) Optionee is purchasing the Shares for Optionees own account for investment purposes only and not with a view to, or for sale in connection with, a distribution of the Shares within the meaning of the Securities Act of 1933, as amended (the 1933 Act).
(e) Optionee has no present intention of selling or otherwise disposing of all or any portion of the Shares.
(f) Optionee shall agree, to the extent requested by Company and an underwriter of Companys Common Stock, not to sell or otherwise transfer or dispose of any securities of Company, whether or not acquired hereunder, during a reasonable period of time not to exceed 180 days, as agreed to by Company and said underwriter, following the effective date of a registration statement under the Securities Act of 1933 with respect to any public offering of Companys securities.
3. Compliance with Securities Laws . Optionee understands and acknowledges that the Shares have not been registered under the 1933 Act and that, notwithstanding any other provision of the Grant to the contrary, the exercise of any rights to purchase any Shares is expressly conditioned upon compliance with the 1933 Act and all applicable state securities laws. Optionee agrees to cooperate with the Company to ensure compliance with such laws. The Shares are being issued under the 1933 Act pursuant to [the Company will check the applicable box]:
¨ |
the exemption provided by Rule 701; |
¨ |
the exemption provided by Rule 504; |
¨ |
Section 4(2) of the 1933 Act; |
¨ |
other: ______________________________________________________ |
If privately held:
4. Federal Restrictions on Transfer . Optionee understands that the Shares must be held indefinitely unless they are registered under the 1933 Act or unless an exemption from such registration is available and that the certificate(s) representing the Shares will bear a legend to that effect. Optionee understands that the Company is under no obligation to register the Shares, and that an exemption may not be available or may not permit Optionee to transfer Shares in the amounts or at the times proposed by Optionee.
(a) Rule 144 . Optionee has been advised that Rule 144 promulgated under the 1933 Act, which permits certain resales of unregistered securities, is not presently available with respect to the Shares and, in any event, requires that a minimum of one (1) year elapses between the date of acquisition of Shares from the Company or an affiliate of the Company and any resale under Rule 144. Prior to an initial public offering of the Companys stock, nonaffiliates (i.e. persons other than officers, directors and major shareholders of the Company) may resell only under Rule 144(k), which requires that a minimum of three (3) years elapse between the date of acquisition of Shares from the Company or an affiliate of the Company and any resale under Rule 144(k). Rule 144(k) is not available to affiliates.
(b) Rule 701 . If the exemption relied upon for exercise of the Shares is Rule 701, the Shares will become freely transferable, subject to limited conditions regarding the method of sale, by nonaffiliates ninety (90) days after the first sale of Common Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission (the SEC), subject to any lengthier market standoff agreement contained in this Agreement or entered into by Optionee. Affiliates must comply with the provisions (other than the holding period requirements) of Rule 144.
5. State Law Restrictions on Transfer . Optionee understands that transfer of the Shares may be restricted by applicable state securities laws, and that the certificate(s) representing the Shares may bear a legend or legends to that effect.
6. Market Standoff Agreement . Optionee agrees in connection with any registration of the Companys securities that, upon the request of the Company or the underwriters managing any public offering of the Companys securities, Optionee will not sell or otherwise dispose of any Shares without the prior written consent of the Company or such underwriters, as the case may be, for a period of time (not to exceed one hundred eighty (180) days) from the effective date of such registration as the Company or the underwriters may specify for employee shareholders generally.
7. Legends . Optionee understands and agrees that the certificate(s) representing the Shares will bear a legend in substantially the following form, in addition to any other legends required by applicable law:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE SECURITIES ACT), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT OR, IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
8. Stop-Transfer Notices . Optionee understands and agrees that, in order or ensure compliance with the restrictions referred to herein, the Company may issue appropriate stop-transfer instructions to its transfer agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.
9. Tax Consequences . OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEES PURCHASE OR DISPOSITION OF THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
10. Repurchase Options . In addition to such other buy-sell terms, rights of first refusal, repurchase rights and/or similar provisions as are included herewith as determined by Company, the following terms and conditions apply to Companys rights to repurchase Shares under the provisions of Section 3 in the Stock Option Grant:
Repurchase Terms
(a) Early Exercise . Companys repurchase right hereunder applies to any Shares which are not Vested Shares and as purchased by Optionee by an exercise (or early exercise) of the Stock Option grant, as permitted in Section 3 thereof.
(b) Repurchase Right . If Optionee ceases to be employed by, or provide service to, the Company, or any Parent or Subsidiary of the Company, or, in the case of a nonqualified option, by or to any Affiliate of the Company (said date of cessation referred to as Termination Date), Company shall have the right and option to repurchase (at the price and for the payment in (c) immediately below) such number of Shares as is equal to, and to the extent that, the underlying option rights to said Shares, under the terms of Section 2 of the Stock Option Grant, would not have become exercisable on or prior to the Termination Date. Or stated otherwise, absent Optionees purchase of said Shares, said Shares (as repurchasable by Company) would not have become Vested Shares under Section 2 of the Stock Option Grant on or prior to the Termination Date. Companys rights to so repurchase said Shares may be exercised by a written notice given to Optionee, together with full payment of the purchase price of said repurchased Shares, within a period of 90 days after the Termination Date.
As an example of the foregoing, assume that an Optionee is granted option rights under an Option Grant, dated June 1, 2002, for a total of 4,800 Shares, exercisable, under Section 2 of the Stock Option Grant, as to 1,200 shares, on June 1, 2002, and, as to 100 Shares, on the first day of each of 36 successive calendar months, beginning July 1, 2002. If Optionee exercised option rights (under an early exercise) and purchased 2,000 shares on May 1, 2002, and Optionees employment (or services) terminated on June 15, 2002, Company would have the right to repurchase 800 Shares (inasmuch as, of the 2,000
Shares purchased, 1,200 Shares would have been exercisable, under Section 2, prior to June 15, 2002, the Termination Date).
(c) Repurchase Price, Exercise and Payment . The foregoing Company option and right to repurchase Shares shall be exercised at a price equal to the original option exercise price per share and shall be paid in cash (or Company check) and/or by cancellation of all or any portion of Optionees purchase money indebtedness, if any, for the Shares.
(d) Assignment and Delegation . Notwithstanding any contrary provision herein, Company reserves and has the right to assign and/or delegate any or all of its repurchase rights and obligations herein to such other party or parties as may be selected by it.
(e) Antidilution Provision . In the event of a stock dividend, stock split, reverse stock split, other stock division or combination, recapitalization or reclassification involving Companys Common Shares, an equitable and proportionate adjustment or other relevant change shall be deemed to have been made to all of the referenced shares and/or prices referenced herein in order fully to effectuate the purposes hereof, and all resulting additional (or reduced number of) shares thereafter shall be subject to the terms herein.
(f) Notice and Payments . All notices and payments to be made hereunder may be given and made by Company or Optionee to one another, either personally or by United States mail, postage prepaid, by Priority Mail, by Federal Express or by any other similar means, if to Company, addressed at its then principal place of business (currently at 5980 Horton Street, Suite 550, Emeryville, California 94608), or, if to Optionee, addressed to Optionee at Optionees last address appearing on Companys records, or at such other address as either Company or Optionee may designate by written notice to each other. In the event of the death or disability of Optionee, and such occurrence is known by Company, then said notice shall be given in the name of Optionee at the address and in the manner as above provided and also shall be given to Optionees known representative(s) or successor(s), at such address(es) as designated in writing to Company by said representative(s) or successor(s), or, absent such designation, to such known representative(s) or successor(s) at Optionees above referenced address. Any such notice and payment shall be deemed given as of the time and date when personally delivered or when otherwise sent.
11. Entire Agreement . The Plan and Grant are incorporated herein by reference. This Agreement, the Plan and the Grant constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect to the subject matter hereof, and are governed by California law except for that body of law pertaining to conflict of laws.
Submitted by: | Accepted by: | |||||||
OPTIONEE: | Novacal Pharmaceuticals, Inc., a California corporation | |||||||
[print name] | ||||||||
By: | ||||||||
[signature] | ||||||||
Dated: | Its: | |||||||
Address: | Dated: | |||||||
Exhibit 10.10
OFFICE LEASE
BETWEEN
EMERY STATION ASSOCIATES II, LLC (LANDLORD)
AND
NOVACAL PHARMACEUTICALS, INC. (TENANT)
EMERYSTATION NORTH
Emeryville, California
Page | ||||
ARTICLE 1 BASIC LEASE PROVISIONS |
1 | |||
1.1 |
BASIC LEASE PROVISIONS | 1 | ||
1.2 |
ENUMERATION OF EXHIBITS, RIDER(S) AND ADDENDUM | 3 | ||
1.3 |
DEFINITIONS | 3 | ||
ARTICLE 2 PREMISES, TERM, FAILURE TO GIVE POSSESSION, AND PARKING |
8 | |||
2.1 |
LEASE OF PREMISES | 8 | ||
2.2 |
TERM | 8 | ||
2.3 |
FAILURE TO GIVE POSSESSION | 8 | ||
2.4 |
CONDITION OF PREMISES | 9 | ||
2.5 |
PARKING | 9 | ||
ARTICLE 3 RENT |
10 | |||
ARTICLE 4 RENT ADJUSTMENTS AND PAYMENTS |
11 | |||
4.1 |
RENT ADJUSTMENTS | 11 | ||
4.2 |
STATEMENT OF LANDLORD | 11 | ||
4.3 |
BOOKS AND RECORDS | 12 | ||
4.4 |
TENANT OR LEASE SPECIFIC TAXES | 12 | ||
ARTICLE 5 SECURITY DEPOSIT |
13 | |||
ARTICLE 6 SERVICES |
14 | |||
6.1 |
LANDLORDS GENERAL SERVICES | 14 | ||
6.2 |
ELECTRICAL SERVICES | 15 | ||
6.3 |
ADDITIONAL AND AFTER-HOUR SERVICES | 15 | ||
6.4 |
TELEPHONE SERVICES | 14 | ||
6.5 |
DELAYS IN FURNISHING SERVICES | 16 | ||
6.6 |
CHOICE OF SERVICE PROVIDER | 17 | ||
6.7 |
SIGNAGE | 17 | ||
ARTICLE 7 POSSESSION, USE AND CONDITION OF PREMISES |
17 | |||
7.1 |
POSSESSION AND USE OF PREMISES | 17 | ||
7.2 |
LANDLORD ACCESS TO PREMISES; APPROVALS | 19 | ||
7.3 |
QUIET ENJOYMENT | 20 | ||
ARTICLE 8 MAINTENANCE |
20 | |||
8.1 |
LANDLORDS MAINTENANCE | 20 | ||
8.2 |
TENANTS MAINTENANCE | 20 |
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Page | ||||
ARTICLE 9 ALTERATIONS AND IMPROVEMENTS |
21 | |||
9.1 |
TENANT ALTERATIONS | 21 | ||
9.2 |
LIENS | 22 | ||
ARTICLE 10 ASSIGNMENT AND SUBLETTING |
23 | |||
10.1 |
ASSIGNMENT AND SUBLETTING | 23 | ||
10.2 |
RECAPTURE | 24 | ||
10.3 |
EXCESS RENT | 25 | ||
10.4 |
TENANT LIABILITY | 25 | ||
10.5 |
ASSUMPTION AND ATTORNMENT | 25 | ||
ARTICLE 11 DEFAULT AND REMEDIES |
26 | |||
11.1 |
EVENTS OF DEFAULT | 26 | ||
11.2 |
LANDLORDS REMEDIES | 26 | ||
11.3 |
ATTORNEYS FEES | 29 | ||
11.4 |
BANKRUPTCY | 29 | ||
11.5 |
LANDLORDS DEFAULT | 30 | ||
ARTICLE 12 SURRENDER OF PREMISES |
30 | |||
12.1 |
IN GENERAL | 30 | ||
12.2 |
LANDLORDS RIGHTS | 31 | ||
ARTICLE 13 HOLDING OVER |
31 | |||
ARTICLE 14 DAMAGE BY FIRE OR OTHER CASUALTY |
32 | |||
14.1 |
SUBSTANTIAL UNTENANTABILITY | 32 | ||
14.2 |
INSUBSTANTIAL UNTENANTABILITY | 33 | ||
14.3 |
RENT ABATEMENT | 33 | ||
14.4 |
WAIVER OF STATUTORY REMEDIES | 33 | ||
ARTICLE 15 EMINENT DOMAIN |
33 | |||
15.1 |
TAKING OF WHOLE OR SUBSTANTIAL PART | 33 | ||
15.2 |
TAKING OF PART | 34 | ||
15.3 |
COMPENSATION | 34 | ||
ARTICLE 16 INSURANCE |
34 | |||
16.1 |
TENANTS INSURANCE | 34 | ||
16.2 |
FORM OF POLICIES | 35 | ||
16.3 |
LANDLORDS INSURANCE | 35 |
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Page | ||||
16.4 |
WAIVER OF SUBROGATION | 35 | ||
16.5 |
NOTICE OF CASUALTY | 37 | ||
ARTICLE 17 WAIVER OF CLAIMS AND INDEMNITY |
37 | |||
17.1 |
WAIVER OF CLAIMS | 37 | ||
17.2 |
INDEMNITY BY TENANT | 37 | ||
ARTICLE 18 RULES AND REGULATIONS |
38 | |||
18.1 |
RULES | 38 | ||
18.2 |
ENFORCEMENT | 38 | ||
ARTICLE 19 LANDLORDS RESERVED RIGHTS |
38 | |||
ARTICLE 20 ESTOPPEL CERTIFICATE |
39 | |||
20.1 |
IN GENERAL | 39 | ||
20.2 |
ENFORCEMENT | 39 | ||
ARTICLE 21 RELOCATION OF TENANT |
40 | |||
ARTICLE 22 REAL ESTATE BROKERS |
40 | |||
ARTICLE 23 MORTGAGEE PROTECTION |
40 | |||
23.1 |
SUBORDINATION AND ATTORNMENT | 40 | ||
23.2 |
MORTGAGEE PROTECTION | 41 | ||
ARTICLE 24 NOTICES |
41 | |||
ARTICLE 25 MISCELLANEOUS |
42 | |||
25.1 |
LATE CHARGES | 42 | ||
25.2 |
NO JURY TRIAL; VENUE; JURISDICTION | 43 | ||
25.3 |
DISCRIMINATION | |||
25.4 |
OPTION | 43 | ||
25.5 |
TENANT AUTHORITY | 44 | ||
25.6 |
ENTIRE AGREEMENT | 44 | ||
25.7 |
MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE | 44 | ||
25.8 |
EXCULPATION | 44 | ||
25.9 |
ACCORD AND SATISFACTION | 44 | ||
25.10 |
LANDLORDS OBLIGATIONS ON SALE OF BUILDING | 45 | ||
25.11 |
BINDING EFFECT | 45 | ||
25.12 |
CAPTIONS | 45 | ||
25.13 |
TIME; APPLICABLE LAW; CONSTRUCTION | 45 |
iii
Page | ||||
25.14 |
ABANDONMENT | 45 | ||
25.15 |
LANDLORDS RIGHT TO PERFORM TENANTS DUTIES | 46 | ||
25.16 |
SECURITY SYSTEM | 46 | ||
25.17 |
NO LIGHT, AIR OR VIEW EASEMENTS | 46 | ||
25.18 |
RECORDATION | 46 | ||
25.19 |
SURVIVAL | 46 | ||
25.20 |
RIDERS | 46 |
iv
OFFICE LEASE
ARTICLE 1
BASIC LEASE PROVISIONS
1.1 BASIC LEASE PROVISIONS
In the event of any conflict between these Basic Lease Provisions and any other Lease provision, such other Lease provision shall control.
(1) | BUILDING AND ADDRESS: |
EmeryStation North
5980 Horton Street
Emeryville, California 94608
(2) | LANDLORD AND ADDRESS: |
Emery Station Associates II, LLC
1120 Nye Street, Suite 400
San Rafael, California 94901
Notices to Landlord shall be addressed:
Emery Station Associates, LLC
c/o Wareham Development Corporation
1120 Nye Street, Suite 400
San Rafael, California 94901
(3) | TENANT AND CURRENT ADDRESS: |
(a) | Name: Novacal Pharmaceuticals, Inc. |
(b) | State of incorporation: California |
Notices to Tenant shall be addressed:
To the Premises:
Attention: President
(4) | DATE OF LEASE: as of June 3, 2004 |
(5) | LEASE TERM: 5 years |
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(6) PROJECTED COMMENCEMENT DATE: Upon Substantial Completion of the Tenant Improvements which is estimated to be September 1, 2004.
(7) PROJECTED EXPIRATION DATE: The last day of the 60 th month after the Commencement Date
(8) MONTHLY BASE RENT:
MONTHS |
MONTHLY RATE/SF OF
RENTABLE AREA |
MONTHLY BASE RENT | ||
1-6 |
$1.90 | $ 9,642.50 | ||
7-12 13-24 |
$2.49
$2.57 |
$12,636.75
$13,042.75 |
||
25-36 37-48 49-60 |
$2.70
$2.83 $2.96 |
$13,702.50
$14,362.25 $15,022.00 |
The Base Rent for the first month of the Term in the amount of $9,642.50 shall be paid on the Date of Lease.
(9) RENTABLE AREA OF THE PREMISES: 7,103 square feet
(10) SECURITY DEPOSIT: $65,000.00
The Security Deposit shall be paid by Tenant on the Date of Lease.
Provided that an Event of Default has not occurred with respect to Tenant prior to such date, upon provision of evidence reasonably satisfactory to Landlord that Tenant has raised an additional round of financing of not less than $2,000,000.00, Landlord shall refund $32,500.00 to Tenant
(11) SUITE NUMBER OF PREMISES: Suite ___ on the 5 th floor
(12) TENANTS USE OF PREMISES: General office use, administration, laboratory research, development and manufacturing and related purposes permitted by applicable law.
(13) BASE YEAR: Calendar year 2004
Tenant shall pay for (i) janitorial services to the Premises and for utility costs to the Premises commencing on the Commencement Date and (ii) Tenants Share of all utilities involved in shared HVAC and mechanical, electrical and plumbing systems serving their space. Except for the expenses set forth in the preceding sentence which shall be paid by Tenant starting on the Commencement Date, commencing on January 1, 2005, Tenant shall pay Tenants Share
2
of increases in Operating Expenses and Taxes over the Operating Expenses and Taxes during the Base Year.
(14) PARKING: Up to 10 unreserved parking spaces in either the Terraces garage or the Amtrak lot
(15) BROKERS:
Landlords Broker: |
CB Richard Ellis 555 12th Street, Suite 900 Oakland, CA 94607 |
Tenants Broker: |
BT Commercial Real Estate 555 City Center, Suite 1400 Oakland, CA |
1.2 ENUMERATION OF EXHIBITS AND RIDER
The Exhibits and Rider set forth below and attached to this Lease are incorporated in this Lease by this reference:
EXHIBIT A Plan of Premises
EXHIBIT B Workletter Agreement
EXHIBIT C Rules and Regulations
RIDER 1 Commencement Date Agreement
1.3 DEFINITIONS
For purposes hereof, the following terms shall have the following meanings:
AFFILIATE: Any corporation or other business entity that is currently owned or controlled by, owns or controls, or is under common ownership or control with Tenant.
BUILDING: The building located at the address specified in Section 1.1. The Building includes office, lab, retail and other uses.
COMMENCEMENT DATE: The date specified in Section 1.1 as the Projected Commencement Date, unless changed by operation of Article Two.
COMMON AREAS: All areas of the Project made available by Landlord from time to time for the general common use or benefit of the tenants of the Building, and their employees and invitees, or the public, as such areas currently exist and as they may be changed from time to time.
3
DECORATION: Tenant Alterations which do not require a building permit and which do not involve any of the structural elements of the Building, or any of the Buildings systems, including its electrical, mechanical, plumbing, security, heating, ventilating, air-conditioning, communication, and fire and life safety systems.
DEFAULT RATE: Two (2) percentage points above the rate then most recently announced by Bank of America N.T.&S.A. at its San Francisco main office as its base lending reference rate, from time to time announced, but in no event higher than the maximum rate permitted by Law.
ENVIRONMENTAL LAWS: All Laws governing the use, storage, disposal or generation of any Hazardous Material, including, without limitation, the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and the Resource Conservation and Recovery Act of 1976, as amended.
EXPIRATION DATE: The date specified in Section 1.1, as determined under Article Two.
FORCE MAJEURE: Any accident, casualty, act of God, war or civil commotion, strike or labor troubles, or any cause whatsoever beyond the reasonable control of Landlord, including water shortages, energy shortages or governmental preemption in connection with an act of God, a national emergency, or by reason of Law, or by reason of the conditions of supply and demand which have been or are affected by act of God, war or other emergency.
HAZARDOUS MATERIAL: Such substances, material and wastes which are or become regulated under any Environmental Law; or which are classified as hazardous or toxic under any Environmental Law; and explosives and firearms, radioactive material, asbestos, polychlorinated biphenyls, and petroleum products.
INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of the Property, the property manager and the leasing manager for the Property and their respective partners, members, directors, officers, agents and employees.
LAND: The parcel(s) of real estate on which the Building and Project are located.
LANDLORD WORK: The construction or installation of improvements to the Premises, to be furnished by Landlord, as specifically described in the Workletter or exhibits attached hereto.
LAWS OR LAW: All laws, ordinances, rules, regulations, other requirements, orders, rulings or decisions adopted or made by any governmental body, agency, department or judicial authority having jurisdiction over the Property, the Premises or Tenants activities at the Premises and any covenants, conditions or restrictions of record which affect the Property.
LEASE: This instrument and all exhibits and riders attached hereto, as may be amended from time to time.
4
LEASE YEAR: The twelve month period beginning on the Commencement Date and each subsequent twelve month, or shorter, period until the Expiration Date.
MONTHLY BASE RENT: The monthly rent specified in Section 1.1.
MORTGAGEE: Any holder of a mortgage, deed of trust or other security instrument encumbering the Property.
NATIONAL HOLIDAYS: New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day and other holidays recognized by the Landlord and the janitorial and other unions servicing the Building in accordance with their contracts.
OPERATING EXPENSES: All costs, expenses and disbursements of every kind and nature which Landlord shall pay or become obligated to pay in connection with the ownership, management, operation, maintenance, replacement and repair of the Building and the Property (including, without limitation, property management fees [but not in excess of 3.5% of gross revenues from the Project], utilities for the Common Areas and janitorial services for the Common Areas), costs and expenses, and the amortized portion of any capital expenditure or improvement, together with interest thereon, and the costs of changing utility service providers). Operating Expenses shall not include, (i) costs of alterations of the premises of tenants of the Project, (ii) costs of capital improvements to the Project (except for amortized portion of capital improvements installed for the purpose of reducing or controlling Operating Expenses or complying with applicable Laws), (iii) depreciation charges, (iv) interest and principal payments on loans (except for loans for capital improvements which Landlord is allowed to include in Operating Expenses as provided above), (v) ground rental payments, (vi) real estate brokerage and leasing commissions, (vii) advertising and marketing expenses, (viii) costs of Landlord reimbursed by insurance proceeds, (ix) expenses incurred in negotiating leases of tenants in the Project or enforcing lease obligations of tenants in the Project, (x) maintenance of the structure of the Building (structural roof, load bearing walls and foundations) and (xi) Landlords general corporate overhead. If any Operating Expense, though paid in one year, relates to more than one calendar year, at the option of Landlord such expense may be proportionately allocated among such related calendar years. Operating Expenses for the Building that are not, in Landlords reasonable discretion, allocable solely to either the lab, office or retail portion of the Building shall be equitably allocated by Landlord between such uses.
PREMISES: The space located in the Building at the Suite Number listed in Section 1.1 and depicted on Exhibit A attached hereto.
PROJECT or PROPERTY: The Project consists of the office building with ground floor office and/or retail spaces located at the street address specified in Section 1.1 in Emeryville, California, associated surface and garage parking as designated by Landlord from time to time, landscaping and improvements, together with the Land, any associated interests in real property, and the personal property, fixtures, machinery, equipment, systems and apparatus located in or used in conjunction with any of the foregoing. The Project may also be referred to as the Property.
REAL PROPERTY: The Property excluding any personal property.
5
RENT: Collectively, Monthly Base Rent, Rent Adjustments and Rent Adjustment Deposits, and all other charges, payments, late fees or other amounts required to be paid by Tenant under this Lease.
RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating Expenses or Taxes. The Rent Adjustments shall be determined and paid as provided in Article Four.
RENT ADJUSTMENT DEPOSIT: An amount equal to Landlords estimate of the Rent Adjustment attributable to each month of the applicable Lease Year. On or before the beginning of each Lease Year or with Landlords Statement (defined in Article Four), Landlord may estimate and notify Tenant in writing of its estimate of the Operating Expenses and of Taxes for such Lease Year. Prior to the first determination by Landlord of the amount of Operating Expenses and of Taxes for the first Lease Year, Landlord may estimate such amounts in the foregoing calculation. The last estimate by Landlord shall remain in effect as the applicable Rent Adjustment Deposit unless and until Landlord notifies Tenant in writing of a change, which notice may be given by Landlord from time to time during a Lease Year.
RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in Section 1.1.
SECURITY DEPOSIT: The funds specified in Section 1.1, if any, deposited by Tenant with Landlord as security for Tenants performance of its obligations under this Lease.
STANDARD OPERATING HOURS: Monday through Friday from 8:00 A.M. to 6:00 P.M. and Saturdays from 9:00 A.M. to 1:00 P.M., excluding National Holidays.
SUBSTANTIALLY COMPLETE or SUBSTANTIAL COMPLETION: The completion of the Landlord Work or Tenant Work, as the case may be, except for minor insubstantial details of construction, decoration or mechanical adjustments which remain to be done.
TAXES: All federal, state and local governmental taxes, assessments and charges of every kind or nature, whether general, special, ordinary or extraordinary, which Landlord shall pay or become obligated to pay because of or in connection with the ownership, leasing, management, control or operation of the Property or any of its components (including any personal property used in connection therewith), which may also include any rental or similar taxes levied in lieu of or in addition to general real and/or personal property taxes. For purposes hereof, Taxes for any year shall be Taxes which are assessed for any period of such year, whether or not such Taxes are billed and payable in a subsequent calendar year. There shall be included in Taxes for any year the amount of all fees, costs and expenses (including reasonable attorneys fees) paid by Landlord during such year in seeking or obtaining any refund or reduction of Taxes. Taxes for any year shall be reduced by the net amount of any tax refund received by Landlord attributable to such year. If a special assessment payable in installments is levied against any part of the Property, Taxes for any year shall include only the installment of such assessment and any interest payable or paid during such year. Taxes shall not include any federal or state inheritance, general income, gift or estate taxes, except that if a change occurs in the method of taxation resulting in whole or in part in the substitution of any such taxes, or any
6
other assessment, for any Taxes as above defined, such substituted taxes or assessments shall be included in the Taxes.
TENANT ADDITIONS: Collectively, Landlord Work, Tenant Work and Tenant Alterations.
TENANT ALTERATIONS: Any alterations, improvements, additions, installations or construction in or to the Premises or any Building systems serving the Premises (excluding Landlord Work or Tenant Work); and any supplementary air-conditioning systems installed by Landlord or by Tenant at Landlords request pursuant to Section 6.1(b).
TENANT DELAY: Any event or occurrence that delays the completion of the Landlord Work which is caused by or is described as follows:
(i) special work, changes, alterations or additions requested or made by Tenant in the design or finish in any part of the Premises after approval of the plans and specifications (as described in the Workletter);
(ii) Tenants delay in submitting plans, supplying information, approving plans, specifications or estimates, giving authorizations or otherwise;
(iii) failure to approve and pay for such Tenant Work as Landlord undertakes to complete at Tenants expense;
(iv) the performance or completion by Tenant or any person engaged by Tenant of any work in or about the Premises; or
(v) failure to perform or comply with any obligation or condition binding upon Tenant pursuant to the Workletter, including the failure to approve and pay for such Landlord Work or other items if and to the extent the Workletter provides they are to be approved or paid by Tenant.
TENANT WORK: All work installed or furnished to the Premises by Tenant pursuant to the Workletter.
TENANTS SHARE: The percentage that represents the ratio of the Rentable Area of the Premises to the Rentable Area of the Building, as determined by Landlord from time to time.
TERM: The term of this Lease commencing on the Commencement Date and expiring on the Expiration Date.
TERMINATION DATE: The Expiration Date or such earlier date as this Lease terminates or Tenants right to possession of the Premises terminates.
WORKLETTER: The Agreement regarding the manner of completion of Landlord Work and Tenant Work set forth on Exhibit B attached hereto.
7
ARTICLE 2
PREMISES, TERM, FAILURE TO GIVE POSSESSION, AND PARKING
2.1 LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises for the Term and upon the terms, covenants and conditions provided in this Lease. In the event Landlord delivers possession of the Premises to Tenant prior to the Commencement Date, Tenant shall be subject to all of the terms, covenants and conditions of this Lease (except with respect to the payment of Rent) as of the date of such possession.
2.2 TERM
(a) The Commencement Date shall be the date determined as follows:
(1) If the Landlord Work is Substantially Complete on or before the Projected Commencement Date, then on the date which is the earlier to occur of:
(i) the Projected Commencement Date, or
(ii) the date Tenant first occupies all or part of the Premises for the conduct of business; or
(2) If the Landlord Work is not Substantially Complete by the Projected Commencement Date, then on the date on which the Landlord Work is Substantially Complete.
(b) Within thirty (30) days following the occurrence of the Commencement Date, Landlord and Tenant shall enter into an agreement (the form of which is attached hereto as Rider 1) confirming the Commencement Date and the Expiration Date. If Tenant fails to enter into such agreement, then the Commencement Date and the Expiration Date shall be the dates designated by Landlord in such agreement.
2.3 FAILURE TO GIVE POSSESSION
If Landlord shall be unable to give possession of the Premises on the Projected Commencement Date by reason of the following: (i) the Building has not been sufficiently completed to make the Premises ready for occupancy, (ii) the Landlord Work is not Substantially Complete, (iii) the holding over or retention of possession of any tenant, tenants or occupants, or (iv) for any other reason, then Landlord shall not be subject to any liability for the failure to give possession on said date. Under such circumstances the rent reserved and covenanted to be paid herein shall not commence until the Premises are made available to Tenant by Landlord, and no such failure to give possession on the Projected Commencement Date shall affect the validity of this Lease or the obligations of the Tenant hereunder. At the option of Landlord to be exercised within thirty (30) days of the delayed delivery of possession to Tenant, the Lease shall be amended so that the Term shall be extended by the period of time possession is delayed. The said Premises shall be deemed to be ready for Tenants occupancy in the event Landlords Work is Substantially Complete, or if the delay in the availability of the Premises for occupancy shall
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be due to any Tenant Delay and/or default on the part of Tenant and/or its subtenant or subtenants. In the event of any dispute as to whether the Landlord Work is Substantially Complete, the decision of Landlords architect shall be final and binding on the parties.
2.4 CONDITION OF PREMISES
Tenant shall notify Landlord in writing within ninety (90) days after the later of Substantial Completion of the Landlord Work or when Tenant takes possession of the Premises of any defects in the Premises claimed by Tenant or in the materials or workmanship furnished by Landlord in completing the Landlord Work provided however that Tenant shall have one hundred eighty (180) days to notify Landlord with respect to defects in the HVAC system. Except for defects stated in such notice, Tenant shall be conclusively deemed to have accepted the Premises AS IS in the condition existing on the date Tenant first takes possession, and to have waived all claims relating to the condition of the Premises. Landlord shall proceed diligently to correct the defects stated in such notice unless Landlord disputes the existence of any such defects. In the event of any dispute as to the existence of any such defects, the decision of Landlords architect shall be final and binding on the parties. No agreement of Landlord to alter, remodel, decorate, clean or improve the Premises or the Real Property and no representation regarding the condition of the Premises or the Real Property has been made by or on behalf of Landlord to Tenant, except as may be specifically stated in this Lease or in the Workletter.
2.5 PARKING
During the Term, Tenant may use the number of spaces specified in Section 1.1 for parking. There shall be no charge for such parking during the Term. The locations and type of parking shall be designated by Landlord or Landlords parking operator from time to time. Tenant acknowledges and agrees that the parking spaces serving the Project may include tandem parking and a mixture of spaces for compact vehicles as well as full-size passenger automobiles, and that Tenant shall not use parking spaces for vehicles larger than the striped size of the parking spaces. All vehicles utilizing Tenants parking privileges shall prominently display identification stickers or other markers, and/or have passes or keycards for ingress and egress, as may be required and provided by Landlord or its parking operator from time to time. Tenant shall comply with any and all parking rules and regulations from time to time established by Landlord or Landlords parking operator, including a requirement that Tenant pay to Landlord or Landlords parking operator a charge for loss and replacement of passes, keycards, identification stickers or markers, and for any and all loss or other damage caused by persons or vehicles related to use of Tenants parking privileges. Tenant shall not allow any vehicles using Tenants parking privileges to be parked, loaded or unloaded except in accordance with this Section, including in the areas and in the manner designated by Landlord or its parking operator for such activities. If any vehicle is using the parking or loading areas contrary to any provision of this Section, Landlord or its parking operator shall have the right, in addition to all other rights and remedies of Landlord under this Lease, to remove or tow away the vehicle without prior notice to Tenant, and the cost thereof shall be paid to Landlord within ten (10) days after notice from Landlord to Tenant.
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2.6 RIGHT OF FIRST OFFER.
(a) Landlord shall provide Tenant with a notice in the event that during the Term, Available Premises (as hereinafter defined) become available to lease to third parties (the Right of First Offer).
(b) Available Premises shall mean lab space (not space that has previously used for office purposes) which is located on the 5th floor of the Building which becomes available for leasing to third parties. Space shall not be deemed to be Available Premises if an existing tenant in such space renews or extends its term whether pursuant to the terms of an extension right or otherwise or if Kinemed exercises its prior rights with respect to such space.
For a period of fifteen (15) business days after receipt of Landlords notice with respect to the Available Premises, Landlord and Tenant shall negotiate in good faith concerning the leasing of such space but neither party shall be obligated to enter into a lease of the Available Premises unless the parties mutually agree on the terms and conditions of such lease. Such lease shall be upon market terms, taking into account, among other criteria, the then creditworthiness of Tenant. Tenant acknowledges that the term for the Available Premises may be different from the Term for the Premises and that the rent and tenant improvement package for the Available Premises may be different than the rent and tenant improvement package for the Premises. During the Negotiation Period, Landlord shall not enter into negotiations with any third party concerning the Available Premises. In the event that Tenant fails to exercise its Right of First Offer with respect to a particular Available Premises, Tenants rights in connection with that particular Available Premises shall expire. Notwithstanding the foregoing, Tenants Right of First Offer shall continue to exist during the Term for other Available Premises on the 5 th floor which was not subject to a previous notice.
(c) Notwithstanding anything to the contrary contained, herein, all rights of Tenant pursuant to this Section 2.6 shall automatically terminate without notice and shall be of no further force and effect, whether or not Tenant has timely exercised the Right of First Offer granted herein, if a Default exists at the time of exercise of the Right of First Offer or at the time of commencement of the term, or (ii) this Lease has been assigned except to an Affiliate of Tenant.
ARTICLE 3
RENT
Tenant agrees to pay to Landlord at the first office specified in Section 1.1, or to such other persons, or at such other places designated by Landlord, without any prior demand therefor in immediately available funds and without any deduction or offset whatsoever, Rent, including Monthly Base Rent and Rent Adjustments in accordance with Article Four, during the Term. Monthly Base Rent shall be paid monthly in advance on the first day of each month of the Term, except that the first installment of Monthly Base Rent shall be paid by Tenant to Landlord concurrently with execution of this Lease. Monthly Base Rent shall be prorated for partial months within the Term. Unpaid Rent shall bear interest at the Default Rate from the date due
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until paid. Tenants covenant to pay Rent shall be independent of every other covenant in this Lease.
ARTICLE 4
RENT ADJUSTMENTS AND PAYMENTS
4.1 RENT ADJUSTMENTS
Except as expressly set forth in Section 1.1 (13) with respect to utilities and janitorial services, Tenant shall pay to Landlord Rent Adjustments with respect to each Lease Year after the Base Year as follows:
(i) The Rent Adjustment Deposit representing Tenants Share of increases in Operating Expenses for the applicable Lease Year over the Operating Expenses in the Base Year, monthly during the Term with the payment of Monthly Base Rent; and
(ii) The Rent Adjustment Deposit representing Tenants Share of increases in Taxes for the applicable Lease Year over the Taxes in the Base Year, monthly during the Term with the payment of Monthly Base Rent; and
(iii) Any Rent Adjustments due in excess of the Rent Adjustment Deposits in accordance with Section 4.2. Rent Adjustments due from Tenant to Landlord for any Lease Year after the Base Year shall be Tenants Share of Operating Expenses for such year and Tenants Share of Taxes for such year.
Notwithstanding the foregoing, Tenant shall pay to Landlord the Rent Adjustment Deposit for utilities and janitorial services furnished to the Premises or to the Common Areas commencing from and after the Commencement Date.
4.2 STATEMENT OF LANDLORD
As soon as feasible after the expiration of each calendar year, Landlord will furnish Tenant a statement (Landlords Statement) showing the following:
(i) Operating Expenses and Taxes for the calendar year;
(ii) The amount of Rent Adjustments due Landlord for the last calendar year, less credit for Rent Adjustment Deposits paid, if any; and
(iii) Any change in the Rent Adjustment Deposit due monthly in the current calendar year, including the amount or revised amount due for months preceding any such change pursuant to Landlords Statement.
Tenant shall pay to Landlord within ten (10) days after receipt of such statement any amounts for Rent Adjustments then due in accordance with Landlords Statement. Any amounts due from Landlord to Tenant pursuant to this Section shall be credited to the Rent Adjustment Deposit next coming due, or refunded to Tenant if the Term has already expired provided Tenant
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is not in default hereunder. No interest or penalties shall accrue on any amounts that Landlord is obligated to credit or refund to Tenant by reason of this Section 4.2. Landlords failure to deliver Landlords Statement or to compute the amount of the Rent Adjustments shall not constitute a waiver by Landlord of its right to deliver such items nor constitute a waiver or release of Tenants obligations to pay such amounts. The Rent Adjustment Deposit shall be credited against Rent Adjustments due for the applicable Lease Year. During the last complete Lease Year or during any partial Lease Year in which the Lease terminates, Landlord may include in the Rent Adjustment Deposit its estimate of Rent Adjustments which may not be finally determined until after the termination of this Lease. Tenants obligation to pay Rent Adjustments survives the expiration or termination of the Lease. Notwithstanding the foregoing, in no event shall the sum of Monthly Base Rent and the Rent Adjustments be less than the Monthly Base Rent payable.
4.3 BOOKS AND RECORDS
Landlord shall maintain books and records showing Operating Expenses and Taxes in accordance with sound accounting and management practices, consistently applied. The Tenant or its representative (which representative shall be a certified public accountant licensed to do business in the state in which the Property is located and whose primary business is certified public accounting and who shall not be paid on a contingency basis) shall have the right, for a period of sixty (60) days following the date upon which Landlords Statement is delivered to Tenant, to examine the Landlords books and records with respect to the items in the foregoing statement of Operating Expenses and Taxes during normal business hours, upon written notice, delivered at least three (3) business days in advance. If Tenant does not object in writing to Landlords Statement within ninety (90) days of Tenants receipt thereof, specifying the nature of the item in dispute and the reasons therefor, then Landlords Statement shall be considered final and accepted by Tenant. If Tenant does dispute any Landlords Statement, Tenant shall deliver a copy of any such audit to Landlord at the time of notification of the dispute. If Tenant does not provide such notice of dispute and a copy of such audit to Landlord within such ninety day (90) day period, it shall be deemed to have waived such right to dispute Landlords Statement. If it is determined that Landlords Statement overstated Operating Expenses by five percent (5%) or more, Landlord shall reimburse Tenant the reasonable third party costs incurred by Tenant with respect to such audit. Any amount due to the Landlord as shown on Landlords Statement, whether or not disputed by Tenant as provided herein shall be paid by Tenant when due as provided above, without prejudice to any such written exception. In no event shall Tenant be permitted to examine Landlords records or to dispute any statement of Expenses unless Tenant has paid and continues to pay all Rent when due. Upon resolution of any dispute with respect to Operating Expenses and Taxes, Tenant shall either pay Landlord any shortfall or Landlord shall credit Tenant with respect to any overages paid by Tenant. The records obtained by Tenant shall be treated as confidential and neither Tenant nor any of its representatives or agents shall disclose or discuss the information set forth in the audit to or with any other person or entity (Confidentiality Requirement). Tenant shall indemnify and hold Landlord harmless for any losses or damages arising out of the breach of the Confidentiality Requirement. In no event shall Tenant be permitted to examine Landlords records or to dispute any statement of Expenses unless Tenant has paid and continues to pay all Rent when due.
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4.4 PARTIAL OCCUPANCY
For purposes of determining the Base Year Operating Expenses and Rent Adjustments, if the Building and/or Project is not fully occupied during all or a portion of any year during the Term, Landlord shall make appropriate adjustments to the Operating Expenses for such year that vary with occupancy employing sound accounting and management principles consistently applied, to determine the amount of Operating Expenses that would have been paid or incurred by Landlord had the Building and/or Project been fully occupied, and the amount so determined shall be deemed to have been the amount of Operating Expenses for such year. In the event that the Real Property is not fully assessed for all or a portion of any year during the Term, then Taxes shall be adjusted to an amount which would have been payable in such year if the Real Property had been fully assessed.
4.5 TENANT OR LEASE SPECIFIC TAXES
In addition to Monthly Base Rent, Rent Adjustments, Rent Adjustment Deposits and other charges to be paid by Tenant, Tenant shall pay to Landlord, upon demand, any and all taxes payable by Landlord (other than federal or state inheritance, general income, gift or estate taxes) whether or not now customary or within the contemplation of the parties hereto: (a) upon, allocable to, or measured by the Rent payable hereunder, including any gross receipts tax or excise tax levied by any governmental or taxing body with respect to the receipt of such rent; or (b) upon or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises or any portion thereof; or (c) upon the measured value of Tenants personal property located in the Premises or in any storeroom or any other place in the Premises or the Property, or the areas used in connection with the operation of the Property, it being the intention of Landlord and Tenant that, to the extent possible, such personal property taxes shall be billed to and paid directly by Tenant; (d) resulting from Landlord Work, Tenant Work or Tenant Alterations to the Premises, whether title thereto is in Landlord or Tenant; or (e) upon this transaction. Taxes paid by Tenant pursuant to this Section 4.5 shall not be included in any computation of Taxes payable pursuant to Sections 4.1 and 4.2.
ARTICLE 5
SECURITY DEPOSIT
Tenant concurrently with the execution of this Lease shall pay to Landlord in immediately available funds the Security Deposit. The Security Deposit may be applied by Landlord to cure, in whole or part, any default of Tenant under this Lease, and upon notice by Landlord of such application, Tenant shall replenish the Security Deposit in full by paying to Landlord within ten (10) days of demand the amount so applied. Landlords application of the Security Deposit shall not constitute a waiver of Tenants default to the extent that the Security Deposit does not fully compensate Landlord for all losses, damages, costs and expenses incurred by Landlord in connection with such default and shall not prejudice any other rights or remedies available to Landlord under this Lease or by Law. Landlord shall not pay any interest on the Security Deposit. Landlord shall not be required to keep the Security Deposit separate from its general accounts. The Security Deposit shall not be deemed an advance payment of Rent or a
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measure of damages for any default by Tenant under this Lease, nor shall it be a bar or defense of any action that Landlord may at any time commence against Tenant. In the absence of evidence satisfactory to Landlord of an assignment of the right to receive the Security Deposit or the remaining balance thereof, Landlord may return the Security Deposit to the original Tenant, regardless of one or more assignments of this Lease. Upon the transfer of Landlords interest under this Lease, Landlords obligation to Tenant with respect to the Security Deposit shall terminate upon transfer to the transferee of the Security Deposit, or any balance thereof. If Tenant shall fully and faithfully comply with all the terms, provisions, covenants, and conditions of this Lease, the Security Deposit, or any balance thereof, shall be returned to Tenant within thirty (30) days after Landlord recovers possession of the Premises or such longer time as may be permissible under Law. Tenant hereby waives any and all rights of Tenant under the provisions of Section 1950.7 of the California Civil Code or other Law regarding security deposits.
ARTICLE 6
SERVICES
6.1 LANDLORDS GENERAL SERVICES
(a) So long as the Lease is in full force and effect, Landlord shall furnish the following services the cost of which services shall be included in Operating Expenses or paid directly by Tenant to the utility or service provider:
(1) heat, ventilation and air-conditioning (HVAC) in the Premises during Standard Operating Hours as necessary in Landlords reasonable judgment for the comfortable occupancy of the Premises under normal business office and lab operations, subject to compliance with all applicable voluntary and mandatory regulations and Laws;
(2) tempered and cold water for use in the labs and in lavatories in common with other tenants from the regular supply of the Building;
(3) customary cleaning and janitorial services in the Common Areas five (5) days per week, excluding National Holidays (Tenant shall provide its own janitorial services to the Premises);
(4) washing of the exterior of the windows in the Premises weather permitting at intervals determined by Landlord but in no event more than 2 times per calendar year; and
(5) automatic passenger and swing/freight elevator service in common with other tenants of the Building. Freight elevator service will be subject to reasonable scheduling by Landlord.
(b) If Tenant uses heat generating machines or equipment in the Premises not envisioned in the original equipment matrix provided by Tenant to Landlord, to an extent which adversely affects the temperature otherwise maintained by the air-cooling system or whenever the occupancy or electrical load adversely affects the temperature otherwise maintained by the air-cooling system, Landlord reserves the right to install or to require Tenant to install
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supplementary air-conditioning units in the Premises. Tenant shall bear all costs and expenses related to the installation, maintenance and operation of such units.
6.2 ELECTRICAL SERVICES
(a) So long as the Lease is in full force and effect and Tenant has paid all Rent then due, Landlord shall furnish to the Premises as an Operating Expense or a service which is paid directly by Tenant to the utility provider, electric current for general office use, including normal lighting, normal business office machines and customary janitorial service. Notwithstanding any provision of the Lease to the contrary, without, in each instance, the prior written approval of Landlord, in Landlords prudent business judgment, Tenant shall not make any alterations or additions to the electric equipment or systems. Tenants use of electric current shall at no time exceed the capacity of the wiring, feeders and risers providing electric current to the Premises or the Building. The consent of Landlord to the installation of electric equipment shall not relieve Tenant from the obligation to limit usage of electricity to no more than such capacity.
(b) Landlord shall install one or more meters to measure electric current furnished to the Premises.
(c) So long as the Lease is in full force and effect and Tenant has paid all Rent then due, Landlord shall furnish to the Premises replacement lamps, bulbs, ballasts and starters used in any normal Building lighting installed in the Premises, except that if the replacement or repair of such items is a result of negligence of Tenant, its employees, agents, servants, licensees, subtenants, contractors or invitees, such cost shall be paid by Tenant within ten days after notice from Landlord and shall not be included as part of Operating Expenses.
6.3 ADDITIONAL AND AFTER HOUR SERVICES
Basic hours of electricity for provision of electricity are twenty-four hours a day, seven days a week. At Tenants written request, Landlord shall furnish additional quantities of any of the services or utilities specified in Section 6.1, if Landlord can reasonably do so, on the terms set forth herein. For services or utilities requested by Tenant and furnished by Landlord, Tenant shall pay to Landlord as a charge therefor Landlords prevailing rates charged from time to time for such services and utilities. If Tenant shall fail to make any such payment, Landlord may, upon notice to Tenant and in addition to Landlords other remedies under this Lease, discontinue any or all of such additional services.
6.4 TELEPHONE SERVICES
All telegraph, telephone, and communication connections which Tenant may desire shall be subject to Landlords prior written approval, in Landlords reasonable discretion, and the location of all wires and the work in connection therewith shall be performed by contractors approved by Landlord and shall be subject to the direction of Landlord, except that such approval is not required as to Tenants telephone equipment (including cabling) within the Premises and from the Premises in a route designated by Landlord to any telephone cabinet or panel provided (as existing or as installed as part of Landlords Work, if any) on Tenants floor for Tenants connection to the telephone cable serving the Building so long as Tenants equipment does not require connections different than or additional to those to the telephone cabinet or panel
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provided. Tenant shall label cabling installed by it to avoid interfering with other Tenants. Except to the extent of such cabling within the Premises or from the Premises to such telephone cabinet or panel, Landlord reserves the right to designate and control the entity or entities providing telephone or other communication cable installation, removal, repair and maintenance in the Building and to restrict and control access to telephone cabinets or panels. In the event Landlord designates a particular vendor or vendors to provide such cable installation, removal, repair and maintenance for the Building, Tenant agrees to abide by and participate in such program. Tenant shall be responsible for and shall pay all costs incurred in connection with the installation of telephone cables and communication wiring in the Premises, including any hook-up, access and maintenance fees related to the installation of such wires and cables in the Premises and the commencement of service therein, and the maintenance thereafter of such wire and cables; and there shall be included in Operating Expenses for the Building all installation, removal, hook-up or maintenance costs incurred by Landlord in connection with telephone cables and communication wiring serving the Building which are not allocable to any individual users of such service but are allocable to the Building generally. If Tenant fails to maintain all telephone cables and communication wiring in the Premises and such failure affects or interferes with the operation or maintenance of any other telephone cables or communication wiring serving the Building, Landlord or any vendor hired by Landlord may enter into and upon the Premises forthwith and perform such repairs, restorations or alterations as Landlord deems necessary in order to eliminate any such interference (and Landlord may recover from Tenant all of Landlords costs in connection therewith). If required by Landlord, no later than the Termination Date Tenant shall remove all telephone cables and communication wiring installed by Tenant for and during Tenants occupancy. Tenant agrees that neither Landlord nor any of its agents or employees shall be liable to Tenant, or any of Tenants employees, agents, customers or invitees or anyone claiming through, by or under Tenant, for any damages, injuries, losses, expenses, claims or causes of action because of any interruption, diminution, delay or discontinuance at any time for any reason in the furnishing of any telephone or other communication service to the Premises and the Building.
6.5 DELAYS IN FURNISHING SERVICES
Tenant agrees that Landlord shall not be in breach of this Lease nor be liable to Tenant for damages or otherwise, for any failure to furnish, or a delay in furnishing, or a change in the quantity or character of any service when such failure, delay or change is occasioned, in whole or in part, by repairs, improvements or mechanical breakdowns by the act or default of Tenant or other parties or by an event of Force Majeure. No such failure, delay or change shall be deemed to be an eviction or disturbance of Tenants use and possession of the Premises, or relieve Tenant from paying Rent or from performing any other obligations of Tenant under this Lease, without any deduction or offset. Failure to any extent to make available, or any slowdown, stoppage, or interruption of, the specified utility services resulting from any cause, including changes in service provider or Landlords compliance with any voluntary or similar governmental or business guidelines now or hereafter published or any requirements now or hereafter established by any governmental agency, board, or bureau having jurisdiction over the operation of the Property shall not render Landlord liable in any respect for damages to either persons, property, or business, nor be construed as an eviction of Tenant or work an abatement of Rent, nor relieve Tenant of Tenants obligations for fulfillment of any covenant or agreement hereof. Should any equipment or machinery furnished by Landlord break down or for any cause cease to function
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properly, Landlord shall use reasonable diligence to repair same promptly, but Tenant shall have no claim for abatement of Rent or damages on account of any interruption of service occasioned thereby or resulting therefrom unless such interruption of service is the result of a breach of Landlords obligations under this Lease.
6.6 CHOICE OF SERVICE PROVIDER
Tenant acknowledges that Landlord may, at Landlords sole option, to the extent permitted by applicable law, elect to change, from time to time, the company or companies which provide utility services to the Building, the Premises and/or its occupants. Notwithstanding anything to the contrary set forth in this Lease, Tenant acknowledges that Landlord has not and does not make any representations or warranties concerning the identity or identities of the company or companies which provide services to the Building and the Premises or its occupants and Tenant acknowledges that the choice of service providers and matters concerning the engagement and termination thereof shall be solely that of Landlord. The foregoing provision is not intended to modify, amend, change or otherwise derogate any provision of this Lease concerning the nature or type of service to be provided or any specific information concerning the amount thereof to be provided. Tenant agrees to cooperate with Landlord and each of its service providers in connection with any change in service or provider.
6.7 SIGNAGE
Initial Building standard signage will be installed by Landlord in the directory in the main lobby of the Building, in the listing of tenants in the elevator lobby for the floor on which the Premises is located and at Tenants main entry door to the Premises at Tenants sole cost and expense except to the extent that funds are available out of any Tenant Improvement Allowance, if any, provided pursuant to the Workletter. Any change in such initial signage shall be only with Landlords prior written consent, shall conform to Building standard signage and shall be at Tenants sole cost and expense.
ARTICLE 7
POSSESSION, USE AND CONDITION OF PREMISES
7.1 POSSESSION AND USE OF PREMISES
(a) Tenant shall be entitled to possession of the Premises when the Landlord Work is Substantially Complete. Tenant shall have access to the Premises seven (7) days a week, twenty-four (24) hours a day. Tenant shall occupy and use the Premises only for the uses specified in Section 1.1 to conduct Tenants business. Tenant shall not occupy or use the Premises (or permit the use or occupancy of the Premises) for any purpose or in any manner which: (1) is unlawful or in violation of any Law or Environmental Law; (2) may be dangerous to persons or property or which may increase the cost of, or invalidate, any policy of insurance carried on the Building or covering its operations; (3) is contrary to or prohibited by the terms and conditions of this Lease or the rules of the Building set forth in Article Eighteen; or (4) would tend to create or continue a nuisance.
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(b) Landlord shall provide Tenant with Access Card Keys, the cost of which shall be deducted from the Tenant Improvement Allowance.
(c) Tenant shall comply with all Environmental Laws pertaining to Tenants occupancy and use of the Premises and concerning the proper storage, handling and disposal of any Hazardous Material introduced to the Premises, the Building or the Property by Tenant or other occupants of the Premises, or their employees, servants, agents, contractors, customers or invitees. Landlord shall comply with all Environmental Laws applicable to the Property other than those to be complied with by Tenant pursuant to the preceding sentence. Tenant shall not generate, store, handle or dispose of any Hazardous Material in, on, or about the Property without the prior written consent of Landlord, which may be withheld in Landlords sole discretion, except that such consent shall not be required to the extent of Hazardous Material packaged and contained in office products for consumer use in general business offices in quantities for ordinary day-to-day use provided such use does not give rise to, or pose a risk of, exposure to or release of Hazardous Material. In the event that Tenant is notified of any investigation or violation of any Environmental Law arising from Tenants activities at the Premises, Tenant shall immediately deliver to Landlord a copy of such notice. In such event or in the event Landlord reasonably believes that a violation of Environmental Law exists, Landlord may conduct such tests and studies relating to compliance by Tenant with Environmental Laws or the alleged presence of Hazardous Materials upon the Premises as Landlord deems desirable, all of which shall be completed at Tenants expense. Landlords inspection and testing rights are for Landlords own protection only, and Landlord has not, and shall not be deemed to have assumed any responsibility to Tenant or any other party for compliance with Environmental Laws, as a result of the exercise, or non-exercise of such rights. Tenant hereby indemnifies, and agrees to defend, protect and hold harmless, the Indemnitees from any and all loss, claim, demand, action, expense, liability and cost (including attorneys fees and expenses) arising out of or in any way related to the presence of any Hazardous Material introduced to the Premises during the Term by any party other than Landlord. In case of any action or proceeding brought against the Indemnitees by reason of any such claim, upon notice from Landlord, Tenant covenants to defend such action or proceeding by counsel chosen by Landlord, in Landlords sole discretion. Landlord reserves the right to settle, compromise or dispose of any and all actions, claims and demands related to the foregoing indemnity. If any Hazardous Material is released, discharged or disposed of on or about the Property and such release, discharge or disposal is not caused by Tenant or other occupants of the Premises, or their employees, servants, agents, contractors customers or invitees, such release, discharge or disposal shall be deemed casualty damage under Article Fourteen to the extent that the Premises are affected thereby; in such case, Landlord and Tenant shall have the obligations and rights respecting such casualty damage provided under such Article. Landlord has no actual knowledge that there are any Hazardous Materials in the Building in violation of applicable Environmental Laws. Notwithstanding the foregoing, Tenant shall have no liability for the amelioration or costs incurred by Landlord with respect to any Hazardous Materials that are not the responsibility of Tenant hereunder.
(d) Landlord and Tenant acknowledge that the Americans With Disabilities Act of 1990 (42 U.S.C. §12101 et seq.) and regulations and guidelines promulgated thereunder, as all of the same may be amended and supplemented from time to time (collectively referred to herein as the ADA) establish requirements for business operations, accessibility and barrier removal,
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and that such requirements may or may not apply to the Premises, the Building and the Project depending on, among other things: (1) whether Tenants business is deemed a public accommodation or commercial facility, (2) whether such requirements are readily achievable, and (3) whether a given alteration affects a primary function area or triggers path of travel requirements. The parties hereby agree that: (a) Landlord shall be responsible for ADA Title III compliance in the Common Areas, except as provided below, (b) Tenant shall be responsible for ADA Title III compliance in the Premises, including any leasehold improvements or other work to be performed in the Premises under or in connection with this Lease, (c) Landlord may perform, or require that Tenant perform, and Tenant shall be responsible for the cost of, ADA Title III path of travel requirements triggered by Tenant Additions in the Premises, and (d) Landlord may perform, or require Tenant to perform, and Tenant shall be responsible for the cost of, ADA Title III compliance in the Common Areas necessitated by the Building being deemed to be a public accommodation instead of a commercial facility as a result of Tenants use of the Premises. Tenant shall be solely responsible for requirements under Title I of the ADA relating to Tenants employees.
7.2 LANDLORD ACCESS TO PREMISES; APPROVALS
(a) Tenant shall permit Landlord to erect, use and maintain pipes, ducts, wiring and conduits in and through the Premises, so long as Tenants use, layout or design of the Premises is not materially affected or altered. Landlord or Landlords agents shall have the right to enter upon the Premises in the event of an emergency, or to inspect the Premises, to perform janitorial and other services, to conduct safety and other testing in the Premises and to make such repairs, alterations, improvements or additions to the Premises or the Building or other parts of the Property as Landlord may deem necessary or desirable (including all alterations, improvements and additions in connection with a change in service provider or providers). Janitorial and cleaning services shall be performed after normal business hours. Any entry or work by Landlord may be during normal business hours and Landlord may use reasonable efforts to ensure that any entry or work shall not materially interfere with Tenants occupancy of the Premises.
(b) If Tenant shall not be personally present to permit an entry into the Premises when for any reason an entry therein shall be necessary or permissible, Landlord (or Landlords agents), after attempting to notify Tenant (unless Landlord believes an emergency situation exists), may enter the Premises without rendering Landlord or its agents liable therefor, and without relieving Tenant of any obligations under this Lease.
(c) Landlord may enter the Premises for the purpose of conducting such inspections, tests and studies as Landlord may deem desirable or necessary to confirm Tenants compliance with all Laws and Environmental Laws or for other purposes necessary in Landlords reasonable judgment to ensure the sound condition of the Property and the systems serving the Property. Landlords rights under this Section 7.2(c) are for Landlords own protection only, and Landlord has not, and shall not be deemed to have assumed, any responsibility to Tenant or any other party as a result of the exercise or non-exercise of such rights, for compliance with Laws or Environmental Laws or for the accuracy or sufficiency of any item or the quality or suitability of any item for its intended use.
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(d) Landlord may do any of the foregoing, or undertake any of the inspection or work described in the preceding paragraphs without such action constituting an actual or constructive eviction of Tenant, in whole or in part, or giving rise to an abatement of Rent by reason of loss or interruption of business of the Tenant, or otherwise.
(e) The review, approval or consent of Landlord with respect to any item required or permitted under this Lease is for Landlords own protection only, and Landlord has not, and shall not be deemed to have assumed, any responsibility to Tenant or any other party, as a result of the exercise or non-exercise of such rights, for compliance with Laws or Environmental Laws or for the accuracy or sufficiency of any item or the quality or suitability of any item for its intended use.
7.3 QUIET ENJOYMENT
Landlord covenants, in lieu of any implied covenant of quiet possession or quiet enjoyment, that so long as Tenant is in compliance with the covenants and conditions set forth in this Lease, Tenant shall have the right to quiet enjoyment of the Premises without hindrance or interference from Landlord or those claiming through Landlord, and subject to the covenants and conditions set forth in the Lease and to the rights of any Mortgagee or ground lessor.
ARTICLE 8
MAINTENANCE
8.1 LANDLORDS MAINTENANCE
Subject to the provisions of Articles Four and Fourteen, Landlord shall maintain and make necessary repairs to the structure, foundations, roofs, exterior walls, and the structural elements of the Building, the electrical, plumbing, heating, ventilating, air-conditioning, mechanical, communication, security and the fire and life safety systems of the Building and those corridors, washrooms and lobbies which are Common Areas of the Building and plate glass breakage in the Building, except that: (a) Landlord shall not be responsible for the maintenance or repair of any floor or wall coverings in the Premises or any of such systems which are located within the Premises and are supplemental or special to the Buildings standard systems; and (b) the cost of performing any of said maintenance or repairs whether to the Premises or to the Building caused by the negligence of Tenant, its employees, agents, servants, licensees, subtenants, contractors or invitees, shall be paid by Tenant, subject to the waivers set forth in Section 16.4. Landlord shall not be liable to Tenant for any expense, injury, loss or damage resulting from work done in or upon, or in connection with the use of, any adjacent or nearby building, land, street or alley.
8.2 TENANTS MAINTENANCE
Tenant shall periodically inspect the Premises to identify any conditions that are dangerous or in need of maintenance or repair. Tenant shall promptly provide Landlord with notice of any such conditions. Tenant shall, at its sole cost and expense, perform all maintenance and repairs to the Premises that are not Landlords express responsibility under this Lease, and keep the Premises in good condition and repair, reasonable wear and tear excepted. Tenants repair and
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maintenance obligations include, without limitation, repairs to: (a) floor covering; (b) interior partitions; (c) doors; (d) the interior side of demising walls; (e) electronic, phone and data cabling and related equipment that is installed by or for the exclusive benefit of Tenant (collectively, Cable); (f) supplemental air conditioning units, kitchens, including hot water heaters, plumbing, and similar facilities exclusively serving Tenant; and (g) Alterations. To the extent Landlord is not reimbursed by insurance proceeds, Tenant shall reimburse Landlord for the cost of repairing damage to the Building caused by the acts of Tenant, Tenant Related Parties and their respective contractors and vendors. If Tenant fails to make any repairs to the Premises for more than 15 days after notice from Landlord (although notice shall not be required in an emergency), Landlord may make the repairs, and Tenant shall pay the reasonable cost of the repairs, together with an administrative charge in an amount equal to 10% of the cost of the repairs. Tenant hereby waives all right to make repairs at the expense of Landlord or in lieu thereof to vacate the Premises and its other similar rights as provided in California Civil Code Sections 1932(1), 1941 and 1942 or any other Legal Requirement (whether now or hereafter in effect). In addition to the foregoing, Tenant shall be responsible for repairing all special tenant fixtures and improvements, including garbage disposals, showers, plumbing, and appliances.
ARTICLE 9
ALTERATIONS AND IMPROVEMENTS
9.1 TENANT ALTERATIONS
(a) Except for completion of Tenant Work undertaken by Tenant pursuant to the Workletter, the following provisions shall apply to the completion of any Tenant Alterations:
(1) Tenant shall not, except as provided herein, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, make or cause to be made any Tenant Alterations in or to the Premises or any Property systems serving the Premises. Prior to making any Tenant Alterations, Tenant shall give Landlord ten (10) days prior written notice (or such earlier notice as would be necessary pursuant to applicable Law) to permit Landlord sufficient time to post appropriate notices of non-responsibility. Subject to all other requirements of this Article Nine, Tenant may undertake Decoration work without Landlords prior written consent. Tenant shall furnish Landlord with the names and addresses of all contractors and subcontractors and copies of all contracts. All Tenant Alterations shall be completed at such time and in such manner as Landlord may from time to time designate, and only by contractors or mechanics approved by Landlord, which approval shall not be unreasonably withheld, provided, however, that Landlord may, in its sole discretion, specify the engineers and contractors to perform all work relating to the Buildings systems (including the mechanical, heating, plumbing, security, ventilating, air-conditioning, electrical, communication and the fire and life safety systems in the Building). The contractors, mechanics and engineers who may be used are further limited to those whose work will not cause or threaten to cause disharmony or interference with Landlord or other tenants in the Building and their respective agents and contractors performing work in or about the Building. Landlord may further condition its consent upon Tenant furnishing to Landlord and Landlord approving prior to the commencement of any work or delivery of materials to the Premises related to the Tenant
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Alterations such of the following as specified by Landlord: architectural plans and specifications, opinions from Landlords engineers stating that the Tenant Alterations will not in any way adversely affect the Buildings systems, necessary permits and licenses, certificates of insurance, and such other documents in such form reasonably requested by Landlord. Landlord may, in the exercise of reasonable judgment, request that Tenant provide Landlord with appropriate evidence of Tenants ability to complete and pay for the completion of the Tenant Alterations such as a performance bond or letter of credit. Upon completion of the Tenant Alterations, Tenant shall deliver to Landlord an as-built mylar and digitized (if available) set of plans and specifications for the Tenant Alterations.
(2) Tenant shall pay the cost of all Tenant Alterations and the cost of decorating the Premises and any work to the Property occasioned thereby. Upon completion of Tenant Alterations, Tenant shall furnish Landlord with contractors affidavits and full and final waivers of lien and receipted bills covering all labor and materials expended and used in connection therewith and such other documentation reasonably requested by Landlord or Mortgagee.
(3) Tenant agrees to complete all Tenant Alterations (i) in accordance with all Laws, Environmental Laws, all requirements of applicable insurance companies and in accordance with Landlords standard construction rules and regulations, and (ii) in a good and workmanlike manner with the use of good grades of materials. Tenant shall notify Landlord immediately if Tenant receives any notice of violation of any Law in connection with completion of any Tenant Alterations and shall immediately take such steps as are necessary to remedy such violation. In no event shall such supervision or right to supervise by Landlord nor shall any approvals given by Landlord under this Lease constitute any warranty by Landlord to Tenant of the adequacy of the design, workmanship or quality of such work or materials for Tenants intended use or of compliance with the requirements of Section 9.1(a)(3)(i) and (ii) above or impose any liability upon Landlord in connection with the performance of such work.
(b) All Tenant Additions whether installed by Landlord or Tenant, shall without compensation or credit to Tenant, become part of the Premises and the property of Landlord at the time of their installation and shall remain in the Premises, unless pursuant to Article Twelve, Tenant may remove them or is required to remove them at Landlords request. Landlord shall notify Tenant at the time of approval of Alterations if removal at the end of the Term is necessary.
9.2 LIENS
Tenant shall not permit any lien or claim for lien of any mechanic, laborer or supplier or any other lien to be filed against the Building, the Land, the Premises, or any other part of the Property arising out of work performed, or alleged to have been performed by, or at the direction of, or on behalf of Tenant. If any such lien or claim for lien is filed, Tenant shall within ten (10) days of receiving notice of such lien or claim (a) have such lien or claim for lien released of record or (b) deliver to Landlord a bond in form, content, amount, and issued by surety, satisfactory to Landlord, indemnifying, protecting, defending and holding harmless the Indemnitees against all costs and liabilities resulting from such lien or claim for lien and the foreclosure or attempted foreclosure thereof. If Tenant fails to take any of the above actions,
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Landlord, in addition to its rights and remedies under Article Eleven, without investigating the validity of such lien or claim for lien, may pay or discharge the same and Tenant shall, as payment of additional Rent hereunder, reimburse Landlord upon demand for the amount so paid by Landlord, including Landlords expenses and attorneys fees.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.1 ASSIGNMENT AND SUBLETTING
(a) Without the prior written consent of Landlord, which shall not be unreasonably withheld, Tenant may not sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Lease or the encumbering of Tenants interest therein in whole or in part, by operation of Law or otherwise or permit the use or occupancy of the Premises, or any part thereof, by anyone other than Tenant, provided, however, if Landlord chooses not to recapture the space proposed to be subleased or assigned as provided in Section 10.2, Landlord shall not unreasonably withhold its consent to a subletting or assignment under this Section 10.1. Tenant agrees that the provisions governing sublease and assignment set forth in this Article Ten shall be deemed to be reasonable. If Tenant desires to enter into any sublease of the Premises or assignment of this Lease, Tenant shall deliver written notice thereof to Landlord (Tenants Notice), together with the identity of the proposed subtenant or assignee and the proposed principal terms thereof and financial and other information sufficient for Landlord to make an informed judgment with respect to such proposed subtenant or assignee at least thirty (30) days prior to the commencement date of the term of the proposed sublease or assignment. If Tenant proposes to sublease less than all of the Rentable Area of the Premises, the space proposed to be sublet and the space retained by Tenant must each be a marketable unit as reasonably determined by Landlord and otherwise in compliance with all Laws. Landlord shall notify Tenant in writing of its approval or disapproval of the proposed sublease or assignment or its decision to exercise its rights under Section 10.2 within fifteen (15) days after receipt of Tenants Notice (and all required information). In no event may Tenant sublease any portion of the Premises or assign the Lease to any other tenant of the Project provided Landlord then has other space available in the Project. Tenant shall submit for Landlords approval (which approval shall not be unreasonably withheld) any advertising which Tenant or its agents intend to use with respect to the space proposed to be sublet.
(b) With respect to Landlords consent to an assignment or sublease, Landlord may take into consideration any factors that Landlord may deem relevant, and the reasons for which Landlords denial shall be deemed to be reasonable shall include, without limitation, the following:
(i) the business reputation or creditworthiness of any proposed subtenant or assignee is not acceptable to Landlord; or
(ii) in Landlords reasonable judgment the proposed assignee or sublessee would diminish the value or reputation of the Building or Landlord; or
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(iii) any proposed assignees or sublessees use of the Premises would violate Section 7.1 of the Lease or would violate the provisions of any other leases of tenants in the Project; or
(iv) the proposed sublessee or assignee is a bona fide prospective tenant of Landlord in the Project and Landlord has sufficient space available to accommodate such prospective tenants needs, as demonstrated by a written proposal dated within ninety (90) days prior to the date of Tenants request; or
(v) the proposed sublessee or assignee would materially increase the estimated pedestrian and vehicular traffic to and from the Premises and the Building.
(c) Any sublease or assignment shall be expressly subject to the terms and conditions of this Lease. Any subtenant or assignee shall execute such documents as Landlord may reasonably require to evidence such subtenant or assignees assumption of the obligations and liabilities of Tenant under this Lease. Tenant shall deliver to Landlord a copy of all agreements executed by Tenant and the proposed subtenant and assignee with respect to the Premises. Landlords approval of a sublease, assignment, hypothecation, transfer or third party use or occupancy shall not constitute a waiver of Tenants obligation to obtain Landlords consent to further assignments or subleases, hypothecations, transfers or third party use or occupancy.
(d) So long as Tenant is not entering into a transaction described herein for the purpose of avoiding or otherwise circumventing the remaining terms of this Article, Tenant may, subject to Section 10.5, assign its entire interest under this Lease or Sublease all or a portion of the Premises, without the consent of Landlord, to (i) an Affiliate, or (ii) a successor to Tenant by purchase, merger, consolidation or reorganization, provided that all of the following conditions are satisfied: (1) Tenant is not in Default under this Lease; (2) Tenant shall give Landlord written notice at least thirty (30) days prior to the effective date of the proposed transfer together with the information required hereunder and such entity shall expressly assume Tenants obligations hereunder; (3) with respect to an assignment to an Affiliate, such Affiliate has a net worth equal to or greater than Tenants net worth at the date immediately prior to such transfer; and (4) with respect to a purchase, merger, consolidation or reorganization which results in Tenant ceasing to exist as a separate legal entity, Tenants successor shall have a net worth equal to Tenants net worth at the date immediately prior to such transfer.
10.2 RECAPTURE
Landlord shall have the option to exclude from the Premises covered by this Lease (recapture) the space proposed to be sublet or subject to the assignment, effective as of the proposed commencement date of such sublease or assignment. If Landlord elects to recapture, Tenant shall surrender possession of the space proposed to be subleased or subject to the assignment to Landlord on the effective date of recapture of such space from the Premises, such date being the Termination Date for such space. Effective as of the date of recapture of any portion of the Premises pursuant to this section, the Monthly Base Rent, Rentable Area of the Premises and Tenants Share shall be adjusted accordingly.
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10.3 EXCESS RENT
Tenant shall pay Landlord on the first day of each month during the term of the sublease or assignment, fifty percent (50%) of the amount by which the sum of all rent due from the subtenant or assignee for such month exceeds: (i) that portion of the Monthly Base Rent and Rent Adjustments due under this Lease for said month which is allocable to the space sublet or assigned; and (ii) the following costs and expenses for the subletting or assignment of such space, amortized over the remaining term of the Lease: (1) brokerage commissions and attorneys fees and expenses, (2) the actual costs paid in making any improvements or substitutions in the Premises required by any sublease or assignment; and (3) free rent periods, costs of any inducements or concessions given to subtenant or assignee, moving costs, and other amounts in respect of such subtenants or assignees other leases or occupancy arrangements. All such costs and expenses shall be amortized over the term of the sublease or assignment pursuant to sound accounting principles.
10.4 TENANT LIABILITY
In the event of any sublease or assignment, whether or not with Landlords consent, Tenant shall not be released or discharged from any liability, whether past, present or future, under this Lease, including any liability arising from the exercise of any renewal or expansion option, to the extent such exercise is expressly permitted by Landlord. Tenants liability shall remain primary, and in the event of default by any subtenant, assignee or successor of Tenant in performance or observance of any of the covenants or conditions of this Lease, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against said subtenant, assignee or successor. After any assignment, Landlord may consent to subsequent assignments or subletting of this Lease, or amendments or modifications of this Lease with assignees of Tenant, without notifying Tenant, or any successor of Tenant, and without obtaining its or their consent thereto, and such action shall not relieve Tenant or any successor of Tenant of liability under this Lease; provided that Landlord will not amend a sublease in a manner that will expand Tenants obligations hereunder. If Landlord grants consent to such sublease or assignment, Tenant shall pay all reasonable attorneys fees and expenses incurred by Landlord with respect to such assignment or sublease. In addition, if Tenant has any options to extend the Term or to add other space to the Premises, such options shall not be available to any subtenant or assignee, directly or indirectly without Landlords express written consent, which may be withheld in Landlords sole discretion.
10.5 ASSUMPTION AND ATTORNMENT
If Tenant shall assign this Lease as permitted herein, the assignee shall expressly assume all of the obligations of Tenant hereunder in a written instrument satisfactory to Landlord and furnished to Landlord not later than fifteen (15) days prior to the effective date of the assignment. If Tenant shall sublease the Premises as permitted herein, Tenant shall, at Landlords option, within fifteen (15) days following any request by Landlord, obtain and furnish to Landlord the written agreement of such subtenant to the effect that the subtenant will attorney to Landlord and will pay all subrent directly to Landlord.
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ARTICLE 11
DEFAULT AND REMEDIES
11.1 EVENTS OF DEFAULT
The occurrence or existence of any one or more of the following shall constitute a Default by Tenant under this Lease:
(i) Tenant fails to pay any installment or other payment of Rent including Rent Adjustment Deposits or Rent Adjustments within ten (10) days after the date when due;
(ii) Tenant fails to observe or perform any of the other covenants, conditions or provisions of this Lease or the Workletter and fails to cure such default within thirty (30) days after written notice thereof to Tenant, unless the default involves a hazardous condition, which shall be cured forthwith or unless the failure to perform is a Default for which this Lease specifies there is no cure or grace period;
(iii) the interest of Tenant in this Lease is levied upon under execution or other legal process;
(iv) a petition is filed by or against Tenant to declare Tenant bankrupt or seeking a plan of reorganization or arrangement under any Chapter of the Bankruptcy Act, or any amendment, replacement or substitution therefor, or to delay payment of, reduce or modify Tenants debts, which in the case of an involuntary action is not discharged within thirty (30) days;
(v) Tenant is declared insolvent by Law or any assignment of Tenants property is made for the benefit of creditors;
(vi) a receiver is appointed for Tenant or Tenants property, which appointment is not discharged within thirty (30) days;
(vii) any action taken by or against Tenant to reorganize or modify Tenants capital structure in a materially adverse way which in the case of an involuntary action is not discharged within thirty (30) days;
(viii) upon the dissolution of Tenant; or
(ix) upon the third occurrence within any Lease Year that Tenant fails to pay Rent when due or has breached a particular covenant of this Lease (whether or not such failure or breach is thereafter cured within any stated cure or grace period or statutory period).
11.2 LANDLORDS REMEDIES
(a) A Default shall constitute a breach of the Lease for which Landlord shall have the rights and remedies set forth in this Section 11.2 and all other rights and remedies set forth in this
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Lease or now or hereafter allowed by Law, whether legal or equitable, and all rights and remedies of Landlord shall be cumulative and none shall exclude any other right or remedy.
(b) With respect to a Default, at any time Landlord may terminate Tenants right to possession by written notice to Tenant stating such election. Any written notice required pursuant to Section 11.1 shall constitute notice of unlawful detainer pursuant to California Code of Civil Procedure Section 1161 if, at Landlords sole discretion, it states Landlords election that Tenants right to possession is terminated after expiration of any period required by Law or any longer period required by Section 11.1. Upon the expiration of the period stated in Landlords written notice of termination (and unless such notice provides an option to cure within such period and Tenant cures the Default within such period), Tenants right to possession shall terminate and this Lease shall terminate, and Tenant shall remain liable as hereinafter provided. Upon such termination in writing of Tenants right to possession, Landlord shall have the right, subject to applicable Law, to re-enter the Premises and dispossess Tenant and the legal representatives of Tenant and all other occupants of the Premises by unlawful detainer or other summary proceedings, or otherwise as permitted by Law, regain possession of the Premises and remove their property (including their trade fixtures, personal property and those Tenant Additions which Tenant is required or permitted to remove under Article Twelve), but Landlord shall not be obligated to effect such removal, and such property may, at Landlords option, be stored elsewhere, sold or otherwise dealt with as permitted by Law, at the risk of, expense of and for the account of Tenant, and the proceeds of any sale shall be applied pursuant to Law. Landlord shall in no event be responsible for the value, preservation or safekeeping of any such property. Tenant hereby waives all claims for damages that may be caused by Landlords removing or storing Tenants personal property pursuant to this Section or Section 12.1, and Tenant hereby indemnifies, and agrees to defend, protect and hold harmless, the Indemnitees from any and all loss, claims, demands, actions, expenses, liability and cost (including attorneys fees and expenses) arising out of or in any way related to such removal or storage. Upon such written termination of Tenants right to possession and this Lease, Landlord shall have the right to recover damages for Tenants Default as provided herein or by Law, including the following damages provided by California Civil Code Section 1951.2:
(1) the worth at the time of award of the unpaid Rent which had been earned at the time of termination;
(2) 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 Rent loss that Tenant proves could reasonably have been avoided;
(3) the worth at the time of award of the amount by which the unpaid Rent for the balance of the term of this Lease after the time of award exceeds the amount of such Rent loss that Tenant proves could be reasonably avoided; and
(4) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenants failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including, without limitation, Landlords unamortized costs of tenant improvements, leasing commissions and legal fees incurred in connection with entering into this Lease. The word rent as used in this Section
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11.2 shall have the same meaning as the defined term Rent in this Lease. The worth at the time of award of the amount referred to in clauses (1) and (2) above is computed by allowing interest at the Default Rate. The worth at the time of award of the amount referred to in clause (3) above is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). For the purpose of determining unpaid Rent under clause (3) above, the monthly Rent reserved in this Lease shall be deemed to be the sum of the Monthly Base Rent, monthly storage space rent, if any, and the amounts last payable by Tenant as Rent Adjustments for the calendar year in which Landlord terminated this Lease as provided hereinabove.
(c) Even if Tenant is in Default and/or has abandoned the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenants right to possession by written notice as provided in Section 11.2(b) above, and Landlord may enforce all its rights and remedies under this Lease, including the right to recover Rent as it becomes due under this Lease. In such event, Landlord shall have all of the rights and remedies of a landlord under California Civil Code Section 1951.4 (lessor may continue Lease in effect after Tenants Default and abandonment and recover Rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations), or any successor statute. During such time as Tenant is in Default, if Landlord has not terminated this Lease by written notice and if Tenant requests Landlords consent to an assignment of this Lease or a sublease of the Premises, subject to Landlords option to recapture pursuant to Section 10.2, Landlord shall not unreasonably withhold its consent to such assignment or sublease. Tenant acknowledges and agrees that the provisions of Article Ten shall be deemed to constitute reasonable limitations of Tenants right to assign or sublet. Tenant acknowledges and agrees that in the absence of written notice pursuant to Section 11.2(b) above terminating Tenants right to possession, no other act of Landlord shall constitute a termination of Tenants right to possession or an acceptance of Tenants surrender of the Premises, including acts of maintenance or preservation or efforts to relet the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlords interest under this Lease or the withholding of consent to a subletting or assignment, or terminating a subletting or assignment, if in accordance with other provisions of this Lease.
(d) In the event that Landlord seeks an injunction with respect to a breach or threatened breach by Tenant of any of the covenants, conditions or provisions of this Lease, Tenant agrees to pay the premium for any bond required in connection with such injunction.
(e) Tenant hereby waives any and all rights to relief from forfeiture, redemption or reinstatement granted by Law (including California Civil Code of Procedure Sections 1174 and 1179) in the event of Tenant being evicted or dispossessed for any cause or in the event of Landlord obtaining possession of the Premises by reason of Tenants Default or otherwise;
(f) Notwithstanding any other provision of this Lease, a notice to Tenant given under this Article and Article Twenty-four of this Lease or given pursuant to California Code of Civil Procedure Section 1161, and any notice served by mail shall be deemed served, and the requisite waiting period deemed to begin under said Code of Civil Procedure Section one business day after mailing by overnight courier service, without any additional waiting requirement under Code of Civil Procedure Section 1011 et seq. or by other Law. For purposes of Code of Civil Procedure Section 1162, Tenants place of residence, usual place of business, the property
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and the place where the property is situated shall mean and be the Premises, whether or not Tenant has vacated same at the time of service.
(g) The voluntary or other surrender or termination of this Lease, or a mutual termination or cancellation thereof, shall not work a merger and shall terminate all or any existing assignments, subleases, subtenancies or occupancies permitted by Tenant, except if and as otherwise specified in writing by Landlord.
(h) No delay or omission in the exercise of any right or remedy of a party shall impair any right or remedy or be construed as a waiver. No provision of this Lease shall be deemed waived by a party unless such waiver is in writing signed by the party waiving such provision. The waiver of any breach of any provision of this Lease shall not be deemed a waiver of any subsequent breach of the same or any other provision of this Lease.
11.3 ATTORNEYS FEES
In the event any party brings any suit or other proceeding with respect to the subject matter or enforcement of this Lease, the prevailing party (as determined by the court, agency or other authority before which such suit or proceeding is commenced) shall, in addition to such other relief as may be awarded, be entitled to recover attorneys fees, expenses and costs of investigation as actually incurred, including court costs, expert witness fees, costs and expenses of investigation, and all attorneys fees, costs and expenses in any such suit or proceeding (including in any action or participation in or in connection with any case or proceeding under the Bankruptcy Code, 11 United States Code Sections 101 et seq., or any successor statutes, in establishing or enforcing the right to indemnification, in appellate proceedings, or in connection with the enforcement or collection of any judgment obtained in any such suit or proceeding).
11.4 BANKRUPTCY
The following provisions shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) In connection with any proceeding under Chapter 7 of the Bankruptcy Code where the trustee of Tenant elects to assume this Lease for the purposes of assigning it, such election or assignment, may only be made upon compliance with the provisions of (b) and (c) below, which conditions Landlord and Tenant acknowledge to be commercially reasonable. In the event the trustee elects to reject this Lease then Landlord shall immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee.
(b) Any election to assume this Lease under Chapter 11 or 13 of the Bankruptcy Code by Tenant as debtor-in-possession or by Tenants trustee (the Electing Party) must provide for:
The Electing Party to cure or provide to Landlord adequate assurance that it will cure all monetary defaults under this Lease within fifteen (15) days from the date of assumption and it will cure all nonmonetary defaults under this Lease within thirty (30) days from the date of assumption. Landlord and Tenant acknowledge such condition to be commercially reasonable.
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(c) If the Electing Party has assumed this Lease or elects to assign Tenants interest under this Lease to any other person, such interest may be assigned only if the intended assignee has provided adequate assurance of future performance (as herein defined), of all of the obligations imposed on Tenant under this Lease.
For the purposes hereof, adequate assurance of future performance means that Landlord has ascertained that each of the following conditions has been satisfied:
(i) The assignee has submitted a current financial statement, certified by its chief financial officer, which shows a net worth and working capital in amounts sufficient to assure the future performance by the assignee of Tenants obligations under this Lease; and
(ii) Landlord has obtained consents or waivers from any third parties that may be required under a lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(d) Landlords acceptance of rent or any other payment from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, the requirement of Landlords consent, Landlords right to terminate this Lease for any transfer of Tenants interest under this Lease without such consent, or Landlords claim for any amount of Rent due from Tenant.
11.5 LANDLORDS DEFAULT
Landlord shall be in default hereunder in the event Landlord has not begun and pursued with reasonable diligence the cure of any failure of Landlord to meet its obligations hereunder within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to perform. In no event shall Tenant have the right to terminate or rescind this Lease as a result of Landlords default as to any covenant or agreement contained in this Lease. Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenants remedies for default hereunder and for breach of any promise or inducement shall be limited to a suit for damages and/or injunction. In addition, Tenant hereby covenants that, prior to the exercise of any such remedies, it will give the Mortgagee notice and a reasonable time to cure any default by Landlord.
ARTICLE 12
SURRENDER OF PREMISES
12.1 IN GENERAL
Upon the Termination Date, Tenant shall surrender and vacate the Premises immediately and deliver possession thereof to Landlord in a clean, good and tenantable condition, ordinary wear and tear, casualty damage and damage caused by Landlord excepted. Tenant shall deliver to Landlord all keys to the Premises. All improvements in and to the Premises, including any Alterations (collectively, Leasehold Improvements) shall remain upon the Premises at the end of the Term without compensation to Tenant. Landlord, however, by written notice to Tenant at least 30 days prior to the Termination Date, may require Tenant, at its expense, to remove (a) any
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Cable installed by or for the benefit of Tenant, and (b) any Landlord Work or Alterations that, in Landlords reasonable judgment, are of a nature that would require removal and repair costs that are materially in excess of the removal and repair costs associated with standard office improvements (collectively referred to as Required Removables). Required Removables shall include, without limitation, internal stairways, raised floors, personal baths and showers, vaults, rolling file systems and structural alterations and modifications. The designated Required Removables shall be removed by Tenant before the Termination Date. Tenant shall repair damage caused by the installation or removal of Required Removables. If Tenant fails to perform its obligations in a timely manner, Landlord may perform such work at Tenants expense. Tenant, at the time it requests approval for a proposed Alteration, may request in writing that Landlord advise Tenant whether the Alteration or any portion of the Alteration is a Required Removable. Within 10 days after receipt of Tenants request, Landlord shall advise Tenant in writing as to which portions of the Alteration are Required Removables. If any of the Tenant Additions which were installed by Tenant involved the lowering of ceilings, raising of floors or the installation of specialized wall or floor coverings or lights, then Tenant shall also be obligated to return such surfaces to their condition prior to the commencement of this Lease. Tenant shall also be required to close any staircases or other openings between floors. In the event possession of the Premises is not delivered to Landlord when required hereunder, or if Tenant shall fail to remove those items described above, Landlord may (but shall not be obligated to), at Tenants expense, remove any of such property and store, sell or otherwise deal with such property, and undertake, at Tenants expense, such restoration work as Landlord deems necessary or advisable.
12.2 LANDLORDS RIGHTS
All property which may be removed from the Premises by Landlord shall be conclusively presumed to have been abandoned by Tenant and Landlord may deal with such property as provided in Section 11.2(b), including the waiver and indemnity obligations provided in that Section. Tenant shall also reimburse Landlord for all costs and expenses incurred by Landlord in removing any of Tenant Additions and in restoring the Premises to the condition required by this Lease at the Termination Date.
ARTICLE 13
HOLDING OVER
In the event that Tenant holds over in possession of the Premises after the Termination Date, Tenant shall pay Landlord 125% of the monthly Rent payable for the month immediately preceding the holding over (including increases for Rent Adjustments which Landlord may reasonably estimate. Tenant shall also pay all damages sustained by Landlord by reason of such retention of possession. The provisions of this Article shall not constitute a waiver by Landlord of any re-entry rights of Landlord and Tenants continued occupancy of the Premises shall be as a tenancy in sufferance.
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ARTICLE 14
DAMAGE BY FIRE OR OTHER CASUALTY
14.1 SUBSTANTIAL UNTENANTABILITY
(a) If any fire or other casualty (whether insured or uninsured) renders all or a substantial portion of the Premises or the Building untenantable, Landlord shall, with reasonable promptness after the occurrence of such damage, estimate the length of time that will be required to substantially complete the repair and restoration and shall by notice advise Tenant of such estimate (Landlords Notice). If Landlord estimates that the amount of time required to substantially complete such repair and restoration will exceed one hundred eighty (180) days from the date such damage occurred, then Landlord, or Tenant if all or a substantial portion of the Premises is rendered untenantable, shall have the right to terminate this Lease as of the date of such damage upon giving written notice to the other at any time within twenty (20) days after delivery of Landlords Notice, provided that if Landlord so chooses, Landlords Notice may also constitute such notice of termination.
(b) Unless this Lease is terminated as provided in the preceding subparagraph, Landlord shall proceed with reasonable promptness to repair and restore the Premises to its condition as existed prior to such casualty, subject to reasonable delays for insurance adjustments and Force Majeure delays, and also subject to zoning Laws and building codes then in effect. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease if such repairs and restoration are not in fact completed within the time period estimated by Landlord so long as Landlord shall proceed with reasonable diligence to complete such repairs and restoration.
(c) Tenant acknowledges that Landlord shall be entitled to the full proceeds of any insurance coverage, whether carried by Landlord or Tenant, for damages to the Premises, except for those proceeds of Tenants insurance of its own personal property and equipment which would be removable by Tenant at the Termination Date. All such insurance proceeds shall be payable to Landlord whether or not the Premises are to be repaired and restored, provided, however, if this Lease is not terminated and the parties proceed to repair and restore Tenant Additions at Tenants cost, to the extent Landlord received proceeds of Tenants insurance covering Tenant Additions, such proceeds shall be applied to reimburse Tenant for its cost of repairing and restoring Tenant Additions.
(d) Notwithstanding anything to the contrary herein set forth: (i) Landlord shall have no duty pursuant to this Section to repair or restore any portion of any Tenant Additions or to expend for any repair or restoration of the Premises or Building amounts in excess of insurance proceeds paid to Landlord and available for repair or restoration; and (ii) Tenant shall not have the right to terminate this Lease pursuant to this Section if any damage or destruction was caused by the act or neglect of Tenant, its agent or employees. Whether or not the Lease is terminated pursuant to this Article Fourteen, in no event shall Tenant be entitled to any compensation or damages for loss of the use of the whole or any part of the Premises or for any inconvenience or annoyance occasioned by any such damage, destruction, rebuilding or restoration of the Premises or the Building or access thereto.
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(e) Any repair or restoration of the Premises performed by Tenant shall be in accordance with the provisions of Article Nine hereof.
14.2 INSUBSTANTIAL UNTENANTABILITY
If the Premises or the Building is damaged by a casualty but neither is rendered substantially untenantable and Landlord estimates that the time to substantially complete the repair or restoration will not exceed one hundred eighty (180) days from the date such damage occurred, then Landlord shall proceed to repair and restore the Building or the Premises other than Tenant Additions, with reasonable promptness, unless such damage is to the Premises and occurs during the last six (6) months of the Term, in which event either Tenant or Landlord shall have the right to terminate this Lease as of the date of such casualty by giving written notice thereof to the other within twenty (20) days after the date of such casualty. Notwithstanding the aforesaid, Landlords obligation to repair shall be limited in accordance with the provisions of Section 14.1 above.
14.3 RENT ABATEMENT
Except for the negligence or willful act of Tenant or its agents, employees, contractors or invitees, if all or any part of the Premises are rendered untenantable by fire or other casualty and this Lease is not terminated, Monthly Base Rent and Rent Adjustments shall abate for that part of the Premises which is untenantable on a per diem basis based upon both percentage of space and type of use of such uninhabitable space from the date of the casualty until Landlord has Substantially Completed the repair and restoration work in the Premises which it is required to perform, provided, that as a result of such casualty, Tenant does not occupy the portion of the Premises which is untenantable during such period.
14.4 WAIVER OF STATUTORY REMEDIES
The provisions of this Lease, including this Article Fourteen, constitute an express agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, the Premises or the Property or any part of either, and any Law, including Sections 1932(2), 1933(4), 1941 and 1942 of the California Civil Code, with respect to any rights or obligations concerning damage or destruction shall have no application to this Lease or to any damage to or destruction of all or any part of the Premises or the Property or any part of either, and are hereby waived.
ARTICLE 15
EMINENT DOMAIN
15.1 TAKING OF WHOLE OR SUBSTANTIAL PART
In the event the whole or any substantial part of the Building or of the Premises is taken or condemned by any competent authority for any public use or purpose (including a deed given in lieu of condemnation) and is thereby rendered untenantable, this Lease shall terminate as of the date title vests in such authority, and Monthly Base Rent and Rent Adjustments shall be apportioned as of the Termination Date. Notwithstanding anything to the contrary herein set
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forth, in the event the taking is temporary (for less than the remaining Term of the Lease), Landlord may elect either (i) to terminate this Lease or (ii) permit Tenant to receive the entire award attributable to the Premises in which case Tenant shall continue to pay Rent and this Lease shall not terminate.
15.2 TAKING OF PART
In the event a part of the Building or the Premises is taken or condemned by any competent authority (or a deed is delivered in lieu of condemnation) and this Lease is not terminated, the Lease shall be amended to reduce or increase, as the case may be, the Monthly Base Rent and Tenants Share to reflect the Rentable Area of the Premises or Building, as the case may be, remaining after any such taking or condemnation. Landlord, upon receipt and to the extent of the award in condemnation (or proceeds of sale) shall make necessary repairs and restorations to the Premises (exclusive of Tenant Additions) and to the Building to the extent necessary to constitute the portion of the Building not so taken or condemned as a complete architectural and economically efficient unit. Notwithstanding the foregoing, if as a result of any taking, or a governmental order that the grade of any street or alley adjacent to the Building is to be changed and such taking or change of grade makes it necessary or desirable to substantially remodel or restore the Building or prevents the economical operation of the Building, Landlord shall have the right to terminate this Lease upon ninety (90) days prior written notice to Tenant.
15.3 COMPENSATION
Landlord shall be entitled to receive the entire award (or sale proceeds) from any such taking, condemnation or sale without any payment to Tenant, and Tenant hereby assigns to Landlord Tenants interest, if any, in such award; provided, however, Tenant shall have the right separately to pursue against the condemning authority a separate award in respect of the loss, if any, to Tenant Additions paid for by Tenant without any credit or allowance from Landlord so long as there is no diminution of Landlords award as a result.
ARTICLE 16
INSURANCE
16.1 TENANTS INSURANCE
Tenant, at Tenants expense, agrees to maintain in force, with a company or companies acceptable to Landlord, during the Term: (a) Commercial General Liability Insurance on a primary basis and without any right of contribution from any insurance carried by Landlord covering the Premises on an occurrence basis against all claims for personal injury, bodily injury, death and property damage, including contractual liability covering the indemnification provisions in this Lease, and such insurance shall be for such limits that are reasonably required by Landlord from time to time but not less than a combined single limit of Three Million and No/100 Dollars ($3,000,000.00); (b) Workers Compensation and Employers Liability Insurance to the extent required by and in accordance with the Laws of the State of California; (c) All Risks property insurance in an amount adequate to cover the full replacement cost of all Tenant Additions, equipment, installations, fixtures and contents of the Premises in the event of
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loss; (d) in the event a motor vehicle is to be used by Tenant in connection with its business operation from the Premises, Comprehensive Automobile Liability Insurance coverage with limits of not less than One Million and No/100 Dollars ($1,000,000.00) combined single limit coverage against bodily injury liability and property damage liability arising out of the use by or on behalf of Tenant, its agents and employees in connection with this Lease, of any owned, non-owned or hired motor vehicles; and (e) such other insurance or coverages as Landlord reasonably requires.
16.2 FORM OF POLICIES
Each policy referred to in 16.1 shall satisfy the following requirements. Each policy shall (i) name Landlord and the Indemnitees as additional insureds (except Workers Compensation and Employers Liability Insurance), (ii) be issued by one or more responsible insurance companies licensed to do business in the State of California reasonably satisfactory to Landlord, (iii) where applicable, provide for deductible amounts satisfactory to Landlord and not permit co-insurance, (iv) shall provide that such insurance may not be canceled or amended without thirty (30) days prior written notice to the Landlord, and (v) each policy of All-Risks property insurance shall provide that the policy shall not be invalidated should the insured waive in writing prior to a loss, any or all rights of recovery against any other party for losses covered by such policies. Tenant shall deliver to Landlord, certificates of insurance and at Landlords request, copies of all policies and renewals thereof to be maintained by Tenant hereunder, not less than ten (10) days prior to the Commencement Date and not less than ten (10) days prior to the expiration date of each policy.
16.3 LANDLORDS INSURANCE
Landlord agrees to purchase and keep in full force and effect during the Term hereof, including any extensions or renewals thereof, insurance under policies issued by insurers of recognized responsibility, qualified to do business in the State of California on the Building in amounts not less than the then full replacement cost (without depreciation) of the Building (above foundations and excluding Tenant Additions) or an amount sufficient to prevent Landlord from becoming a co-insurer under the terms of the applicable policies, against fire and such other risks as may be included in standard forms of all risk coverage insurance reasonably available from time to time. Landlord agrees to maintain in force during the Term, Commercial General Liability Insurance covering the Building on an occurrence basis against all claims for personal injury, bodily injury, death, and property damage. Such insurance shall be for a combined single limit of not less than Three Million and No/100 Dollars ($3,000,000.00). Neither Landlords obligation to carry such insurance nor the carrying of such insurance shall be deemed to be an indemnity by Landlord with respect to any claim, liability, loss, cost or expense due, in whole or in part, to Tenants negligent acts or omissions or willful misconduct. Without obligation to do so, Landlord may, in its sole discretion from time to time, carry insurance in amounts greater and/or for coverage additional to the coverage and amounts set forth above.
16.4 WAIVER OF SUBROGATION
(a) Landlord agrees that, if obtainable at no, or minimal, additional cost, and so long as the same is permitted under the laws of the State of California, it will include in its All
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Risks policies appropriate clauses pursuant to which the insurance companies (i) waive all right of subrogation against Tenant with respect to losses payable under such policies and/or (ii) agree that such policies shall not be invalidated should the insured waive in writing prior to a loss any or all right of recovery against any party for losses covered by such policies.
(b) Tenant agrees to include, if obtainable at no, or minimal, additional cost, and so long as the same is permitted under the laws of the State of California, in its All Risks insurance policy or policies on Tenant Additions, whether or not removable, and on Tenants furniture, furnishings, fixtures and other property removable by Tenant under the provisions of this Lease appropriate clauses pursuant to which the insurance company or companies (i) waive the right of subrogation against Landlord and/or any tenant of space in the Building with respect to losses payable under such policy or policies and/or (ii) agree that such policy or policies shall not be invalidated should the insured waive in writing prior to a loss any or all right of recovery against any party for losses covered by such policy or policies. If Tenant is unable to obtain in such policy or policies either of the clauses described in the preceding sentence, Tenant shall, if legally possible and without necessitating a change in insurance carriers, have Landlord named in such policy or policies as an additional insured. If Landlord shall be named as an additional insured in accordance with the foregoing, Landlord agrees to endorse promptly to the order of Tenant, without recourse, any check, draft, or order for the payment of money representing the proceeds of any such policy or representing any other payment growing out of or connected with said policies, and Landlord does hereby irrevocably waive any and all rights in and to such proceeds and payments.
(c) Provided that Landlords right of full recovery under its policy or policies aforesaid is not adversely affected or prejudiced thereby, Landlord hereby waives any and all right of recovery which it might otherwise have against Tenant, its servants, agents and employees, for loss or damage occurring to the Real Property and the fixtures, appurtenances and equipment therein, to the extent the same is covered by Landlords insurance, notwithstanding that such loss or damage may result from the negligence or fault of Tenant, its servants, agents or employees. Provided that Tenants right of full recovery under its aforesaid policy or policies is not adversely affected or prejudiced thereby, Tenant hereby waives any and all right of recovery which it might otherwise have against Landlord, its servants, and employees and against every other tenant of the Real Property who shall have executed a similar waiver as set forth in this Section 16.4 (c) for loss or damage to Tenant Additions, whether or not removable, and to Tenants furniture, furnishings, fixtures and other property removable by Tenant under the provisions hereof to the extent the same is coverable by Tenants insurance required under this Lease, notwithstanding that such loss or damage may result from the negligence or fault of Landlord, its servants, agents or employees, or such other tenant and the servants, agents or employees thereof.
(d) Landlord and Tenant hereby agree to advise the other promptly if the clauses to be included in their respective insurance policies pursuant to subparagraphs (a) and (b) above cannot be obtained on the terms hereinbefore provided and thereafter to furnish the other with a certificate of insurance or copy of such policies showing the naming of the other as an additional insured, as aforesaid. Landlord and Tenant hereby also agree to notify the other promptly of any cancellation or change of the terms of any such policy that would affect such clauses or naming. All such policies which name both Landlord and Tenant as additional insureds shall, to the extent
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obtainable, contain agreements by the insurers to the effect that no act or omission of any additional insured will invalidate the policy as to the other additional insureds.
16.5 NOTICE OF CASUALTY
Tenant shall give Landlord notice in case of a fire or accident in the Premises promptly after Tenant is aware of such event.
ARTICLE 17
WAIVER OF CLAIMS AND INDEMNITY
17.1 WAIVER OF CLAIMS
To the extent permitted by Law, Tenant releases the Indemnitees from, and waives all claims for, damage to person or property sustained by the Tenant or any occupant of the Premises or the Property resulting directly or indirectly from any existing or future condition, defect, matter or thing in and about the Premises or the Property or any part of either or any equipment or appurtenance therein, or resulting from any accident in or about the Premises or the Property, or resulting directly or indirectly from any act or neglect of any tenant or occupant of the Property or of any other person, including Landlords agents and servants, except to the extent caused by the gross negligence or willful and wrongful act of any of the Indemnitees. To the extent permitted by Law, Tenant hereby waives any consequential damages, compensation or claims for inconvenience or loss of business, rents, or profits as a result of such injury or damage, whether or not caused by the gross negligence or willful and wrongful act of any of the Indemnitees. If any such damage, whether to the Premises or the Property or any part of either, or whether to Landlord or to other tenants in the Property, results from any act or neglect of Tenant, its employees, servants, agents, contractors, invitees or customers, Tenant shall be liable therefor and Landlord may, at Landlords option, repair such damage and Tenant shall, upon demand by Landlord, as payment of additional Rent hereunder, reimburse Landlord within ten (10) days of demand for the total cost of such repairs, in excess of amounts, if any, paid to Landlord under insurance covering such damages. Tenant shall not be liable for any such damage caused by its acts or neglect if Landlord or a tenant has recovered the full amount of the damage from proceeds of insurance policies and the insurance company has waived its right of subrogation against Tenant.
17.2 INDEMNITY BY TENANT
To the extent permitted by Law, Tenant hereby indemnifies, and agrees to protect, defend and hold the Indemnitees harmless, against any and all actions, claims, demands, liability, costs and expenses, including attorneys fees and expenses for the defense thereof, arising from Tenants occupancy of the Premises, from the undertaking of any Tenant Additions or repairs to the Premises, from the conduct of Tenants business on the Premises, or from any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant to be performed pursuant to the terms of this Lease, or from any willful act or negligence of Tenant, its agents, contractors, servants, employees, customers or invitees, in or about the Premises or the Property or any part of either. In case of any action or proceeding brought
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against the Indemnitees by reason of any such claim, upon notice from Landlord, Tenant covenants to defend such action or proceeding by counsel chosen by Landlord, in Landlords sole discretion. Landlord reserves the right to settle, compromise or dispose of any and all actions, claims and demands related to the foregoing indemnity. The foregoing indemnity shall not operate to relieve Indemnitees of liability to the extent such liability is caused by the willful and wrongful act of Indemnitees. Further, the foregoing indemnity is subject to and shall not diminish any waivers in effect in accordance with Section 16.4 by Landlord or its insurers to the extent of amounts, if any, paid to Landlord under its All-Risks property insurance. Notwithstanding the foregoing, Landlord hereby indemnifies, and agrees to protect, defend and hold Tenant harmless, against any and all damages and losses, including attorneys fees and expenses for the defense thereof, arising out of Landlords gross negligence or willful misconduct.
ARTICLE 18
RULES AND REGULATIONS
18.1 RULES
Tenant agrees for itself and for its subtenants, employees, agents, and invitees to comply with the rules and regulations listed on Exhibit C attached hereto and with all reasonable modifications and additions thereto which Landlord may make from time to time.
18.2 ENFORCEMENT
Nothing in this Lease shall be construed to impose upon the Landlord any duty or obligation to enforce the rules and regulations as set forth on Exhibit C or as hereafter adopted, or the terms, covenants or conditions of any other lease as against any other tenant, and the Landlord shall not be liable to the Tenant for violation of the same by any other tenant, its servants, employees, agents, visitors or licensees. Landlord shall use reasonable efforts to enforce the rules and regulations of the Project in a uniform and non-discriminatory manner.
ARTICLE 19
LANDLORDS RESERVED RIGHTS
Landlord shall have the following rights exercisable without notice to Tenant and without liability to Tenant for damage or injury to persons, property or business and without being deemed an eviction or disturbance of Tenants use or possession of the Premises or giving rise to any claim for offset or abatement of Rent: (1) to change the Buildings name or street address upon thirty (30) days prior written notice to Tenant; (2) to install, affix and maintain all signs on the exterior and/or interior of the Building; (3) to designate and/or approve prior to installation, all types of signs, window shades, blinds, drapes, awnings or other similar items, and all internal lighting that may be visible at ground level; (4) upon 24 hours prior notice to Tenant, to display the Premises to prospective purchasers and lenders at reasonable hours at any time during the Term and to prospective tenants at reasonable hours during the last six (6) months of the Term; (5) to grant to any party the exclusive right to conduct any business or render any service in or to
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the Building, provided such exclusive right shall not operate to prohibit Tenant from using the Premises for the purpose permitted hereunder; (6) to change the arrangement and/or location of entrances or passageways, doors and doorways, corridors, elevators, stairs, washrooms or public portions of the Building, and to close entrances, doors, corridors, elevators or other facilities, provided that such action shall not materially and adversely interfere with Tenants access to the Premises or the Building; (7) to have access for Landlord and other tenants of the Building to any mail chutes and boxes located in or on the Premises as required by any applicable rules of the United States Post Office; and (8) to close the Building after Standard Operating Hours, except that Tenant and its employees and invitees shall be entitled to admission at all times, under such regulations as Landlord prescribes for security purposes.
ARTICLE 20
ESTOPPEL CERTIFICATE
20.1 IN GENERAL
Within fifteen (15) days after request therefor by Landlord, Mortgagee or any prospective mortgagee or owner, Tenant agrees as directed in such request to execute an Estoppel Certificate in recordable form, binding upon Tenant, certifying (i) that this Lease is unmodified and in full force and effect (or if there have been modifications, a description of such modifications and that this Lease as modified is in full force and effect); (ii) the dates to which Rent has been paid; (iii) that Tenant is in the possession of the Premises if that is the case; (iv) that Landlord is not in default under this Lease, or, if Tenant believes Landlord is in default, the nature thereof in detail; (v) that Tenant has no offsets or defenses to the performance of its obligations under this Lease (or if Tenant believes there are any offsets or defenses, a full and complete explanation thereof); (vi) that the Premises have been completed in accordance with the terms and provisions hereof or the Workletter, that Tenant has accepted the Premises and the condition thereof and of all improvements thereto and has no claims against Landlord or any other party with respect thereto; (vii) that if an assignment of rents or leases has been served upon the Tenant by a Mortgagee, Tenant will acknowledge receipt thereof and agree to be bound by the provisions thereof; (viii) that Tenant will give to the Mortgagee copies of all notices required or permitted to be given by Tenant to Landlord; and (ix) to any other information reasonably requested.
20.2 ENFORCEMENT
In the event that Tenant fails to deliver an Estoppel Certificate, then such failure shall be a Default for which there shall be no cure or grace period. In addition to any other remedy available to Landlord, Landlord may impose a charge equal to $500.00 for each day that Tenant fails to deliver an Estoppel Certificate and Tenant shall be deemed to have irrevocably appointed Landlord as Tenants attorney-in-fact to execute and deliver such Estoppel Certificate.
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ARTICLE 21
RELOCATION OF TENANT
At any time after the date of this Lease, Landlord may substitute for the Premises, other premises in the Project, EmeryStation I, or Heritage Square (the New Premises), in which event the New Premises shall be deemed to be the Premises for all purposes under this Lease, provided that (i) the New Premises shall be substantially similar to the Premises in area and configuration and in no event shall the Base Rent or Tenants Share be increased; (ii) if Tenant is then occupying the Premises, Landlord shall pay the actual and reasonable expenses of physically moving Tenant, its property and equipment to the New Premises; (iii) Landlord shall give Tenant not less than sixty (60) days prior written notice of such substitution; and (iv) Landlord, at its expense, shall improve the New Premises with improvements substantially similar to those in the Premises at the time of such substitution, if the Premises including without limitation the lab portion of the Premises. Landlord shall provide Tenant with 2 weeks abatement of Base Rent commencing on the effective date of such relocation.
ARTICLE 22
REAL ESTATE BROKERS
Tenant represents that, except for the broker(s) listed in Section 1.1, Tenant has not dealt with any real estate broker, sales person, or finder in connection with this Lease, and no such person initiated or participated in the negotiation of this Lease, or showed the Premises to Tenant. Tenant hereby agrees to indemnify, protect, defend and hold Landlord and the Indemnitees, harmless from and against any and all liabilities and claims for commissions and fees arising out of a breach of the foregoing representation. Landlord agrees to pay any commission to which the brokers listed in Section 1.1 are entitled in connection with this Lease pursuant to Landlords written agreement with such broker.
ARTICLE 23
MORTGAGEE PROTECTION
23.1 SUBORDINATION AND ATTORNMENT
This Lease is and shall be expressly subject and subordinate at all times to (i) any ground or underlying lease of the Real Property, now or hereafter existing, and all amendments, extensions, renewals and modifications to any such lease, and (ii) the lien of any mortgage or trust deed now or hereafter encumbering fee title to the Real Property and/or the leasehold estate under any such lease, and all amendments, extensions, renewals, replacements and modifications of such mortgage or trust deed and/or the obligation secured thereby, unless such ground lease or ground lessor, or mortgage, trust deed or Mortgagee, expressly provides or elects that the Lease shall be superior to such lease or mortgage or trust deed. If any such mortgage or trust deed is foreclosed (including any sale of the Real Property pursuant to a power of sale), or if any such lease is terminated, upon request of the Mortgagee or ground lessor, as the case may be, Tenant shall attorney to the purchaser at the foreclosure sale or to the ground lessor under such lease, as
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the case may be, provided, however, that such purchaser or ground lessor shall not be (i) bound by any payment of Rent for more than one month in advance except payments in the nature of security for the performance by Tenant of its obligations under this Lease; (ii) subject to any offset, defense or damages arising out of a default of any obligations of any preceding Landlord; or (iii) bound by any amendment or modification of this Lease made without the written consent of the Mortgagee or ground lessor; or (iv) liable for any security deposits not actually received in cash by such purchaser or ground lessor. Tenant shall execute and deliver reasonable instruments confirming the attornment provided for herein. Notwithstanding the self-operative subordination, non-disturbance and attornment provided in this Lease, within ten (10) days after Landlords written request therefor, Tenant shall execute any and all documents required by Landlord, or any Mortgagee evidencing this Lease to be subordinate to the lien of any such lease, mortgage or deed of trust, as the case may be provided that such document grants Tenant non-disturbance under such entitys then customary form and recognizes Tenants rights hereunder. Tenant appoints Landlord as Tenants attorney-in-fact to execute such documents on behalf of Tenant if Tenant does not do so.
23.2 MORTGAGEE PROTECTION
Tenant agrees to give any Mortgagee or ground lessor, by registered or certified mail, a copy of any notice of default served upon the Landlord by Tenant, provided that prior to such notice Tenant has received notice (by way of service on Tenant of a copy of an assignment of rents and leases, or otherwise) of the address of such Mortgagee or ground lessor. Tenant further agrees that if Landlord shall have failed to cure such default within the time provided for in this Lease, then the Mortgagee or ground lessor shall have an additional thirty (30) days after receipt of notice thereof within which to cure such default or if such default cannot be cured within that time, then such additional notice time as may be necessary, if, within such thirty (30) days, any Mortgagee or ground lessor has commenced and is diligently pursuing the remedies necessary to cure such default (including commencement of foreclosure proceedings or other proceedings to acquire possession of the Real Property, if necessary to effect such cure). Such period of time shall be extended by any period within which such Mortgagee or ground lessor is prevented from commencing or pursuing such foreclosure proceedings or other proceedings to acquire possession of the Real Property by reason of Landlords bankruptcy. Until the time allowed as aforesaid for Mortgagee or ground lessor to cure such defaults has expired without cure, Tenant shall have no right to, and shall not, terminate this Lease on account of default. This Lease may not be modified or amended so as to reduce the Rent or shorten the Term, or so as to adversely affect in any other respect to any material extent the rights of the Landlord, nor shall this Lease be canceled or surrendered, without the prior written consent, in each instance, of the ground lessor or the Mortgagee.
ARTICLE 24
NOTICES
(a) All notices, demands or requests provided for or permitted to be given pursuant to this Lease must be in writing and shall be personally delivered, sent by Federal Express or other
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reputable overnight courier service, or mailed by first class, registered or certified United States mail, return receipt requested, postage prepaid.
(b) All notices, demands or requests to be sent pursuant to this Lease shall be deemed to have been properly given or served by delivering or sending the same in accordance with this Section, addressed to the parties hereto at their respective addresses listed in Sections 1.1.
(c) The time period in which a response to any such notice, demand or request must be given shall commence to run from (i) in the case of delivery by mail, the date of receipt on the return receipt of the notice, demand or request by the addressee thereof, or (ii) in the case of delivery by Federal Express or other overnight courier service, the date of acceptance of delivery by an employee, officer, director or partner of Landlord or Tenant. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given, as indicated by advice from Federal Express or other overnight courier service or by mail return receipt, shall be deemed to be receipt of notice, demand or request sent. Notices may also be served by personal service upon any officer, director or partner of Landlord or Tenant, and shall be effective upon such service.
(d) By giving to the other party at least thirty (30) days written notice thereof, either party shall have the right from time to time during the term of this Lease to change their respective addresses for notices, statements, demands and requests, provided such new address shall be within the United States of America.
ARTICLE 25
MISCELLANEOUS
25.1 LATE CHARGES
(a) All payments required hereunder (other than the Monthly Base Rent, Rent Adjustments, and Rent Adjustment Deposits, which shall be due as hereinbefore provided) to Landlord shall be paid within ten (10) days after Landlords demand therefor. All such amounts (including Monthly Base Rent, Rent Adjustments, and Rent Adjustment Deposits) not paid when due shall bear interest from the date due until the date paid at the Default Rate in effect on the date such payment was due.
(b) In the event Tenant is more than ten (10) days late in paying any installment of Rent due under this Lease, Tenant shall pay Landlord a late charge equal to five percent (5%) of the delinquent installment of Rent. The parties agree that (i) such delinquency will cause Landlord to incur costs and expenses not contemplated herein, the exact amount of which will be difficult to calculate, including the cost and expense that will be incurred by Landlord in processing each delinquent payment of rent by Tenant, (b) the amount of such late charge represents a reasonable estimate of such costs and expenses and that such late charge shall be paid to Landlord for each delinquent payment in addition to all Rent otherwise due hereunder. The parties further agree that the payment of late charges and the payment of interest provided for in subparagraph (a) above are distinct and separate from one another in that the payment of interest is to compensate Landlord for its inability to use the money improperly withheld by
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Tenant, while the payment of late charges is to compensate Landlord for its additional administrative expenses in handling and processing delinquent payments.
(c) Payment of interest at the Default Rate and/or of late charges shall not excuse or cure any default by Tenant under this Lease, nor shall the foregoing provisions of this Article or any such payments prevent Landlord from exercising any right or remedy available to Landlord upon Tenants failure to pay Rent when due, including the right to terminate this Lease.
25.2 NO JURY TRIAL; VENUE; JURISDICTION
Each party hereto (which includes any assignee, successor, heir or personal representative of a party) shall not seek a jury trial, hereby waives trial by jury, and hereby further waives any objection to venue in the County in which the Project is located, and agrees and consents to personal jurisdiction of the courts of the State of California, in any action or proceeding or counterclaim brought by any party hereto against the other on any matter whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, Tenants use or occupancy of the Premises, or any claim of injury or damage, or the enforcement of any remedy under any statute, emergency or otherwise, whether any of the foregoing is based on this Lease or on tort law. No party will seek to consolidate any such action in which a jury has been waived with any other action in which a jury trial cannot or has not been waived. It is the intention of the parties that these provisions shall be subject to no exceptions. By execution of this Lease the parties agree that this provision may be filed by any party hereto with the clerk or judge before whom any action is instituted, which filing shall constitute the written consent to a waiver of jury trial pursuant to and in accordance with Section 631 of the California Code of Civil Procedure. No party has in any way agreed with or represented to any other party that the provisions of this Section will not be fully enforced in all instances. The provisions of this Section shall survive the expiration or earlier termination of this Lease.
25.3 DISCRIMINATION
Tenant agrees for Tenant and Tenants heirs, executors, administrators, successors and assigns and all persons claiming under or through Tenant, and this Lease is made and accepted upon and subject to the following conditions: that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry (whether in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Premises or otherwise) nor shall Tenant or any person claiming under or through Tenant establish or permit any such practice or practices of discrimination or segregation with reference to the use or occupancy of the Premises by Tenant or any person claiming through or under Tenant.
25.4 OPTION
This Lease shall not become effective as a lease or otherwise until executed and delivered by both Landlord and Tenant. The submission of the Lease to Tenant does not constitute a reservation of or option for the Premises, but when executed by Tenant and delivered to Landlord, the Lease shall constitute an irrevocable offer by Tenant in effect for five (5) days to lease the Premises on the terms and conditions herein contained.
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25.5 TENANT AUTHORITY
Tenant represents and warrants to Landlord that it has full authority and power to enter into and perform its obligations under this Lease, that the person executing this Lease is fully empowered to do so, and that no consent or authorization is necessary from any third party. Landlord may request that Tenant provide Landlord evidence of Tenants authority.
25.6 ENTIRE AGREEMENT
This Lease, the Exhibits attached hereto and the Workletter contain the entire agreement between Landlord and Tenant concerning the Premises and there are no other agreements, either oral or written, and no other representations or statements, either oral or written, on which Tenant has relied. This Lease shall not be modified except by a writing executed by Landlord and Tenant.
25.7 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE
If Mortgagee of Landlord requires a modification of this Lease which shall not result in any increased cost or expense to Tenant or in any other substantial and adverse change in the rights and obligations of Tenant hereunder, then Tenant agrees that the Lease may be so modified.
25.8 EXCULPATION
Tenant agrees, on its behalf and on behalf of its successors and assigns, that any liability or obligation under this Lease shall only be enforced against Landlords equity interest in the Property up to a maximum of Five Million Dollars ($5,000,000.00) and in no event against any other assets of the Landlord, or Landlords officers or directors or partners, and that any liability of Landlord with respect to this Lease shall be so limited and Tenant shall not be entitled to any judgment in excess of such amount.
25.9 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any installment or payment of Rent due shall be deemed to be other than on account of the amount due, and no endorsement or statement on any check or any letter accompanying any check or payment of Rent shall be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlords right to recover the balance of such installment or payment of Rent or pursue any other remedies available to Landlord. No receipt of money by Landlord from Tenant after the termination of this Lease or Tenants right of possession of the Premises shall reinstate, continue or extend the Term. Receipt or acceptance of payment from anyone other than Tenant, including an assignee of Tenant, is not a waiver of any breach of Article Ten, and Landlord may accept such payment on account of the amount due without prejudice to Landlords right to pursue any remedies available to Landlord.
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25.10 LANDLORDS OBLIGATIONS ON SALE OF BUILDING
In the event of any sale or other transfer of the Building, Landlord shall be entirely freed and relieved of all agreements and obligations of Landlord hereunder accruing or to be performed after the date of such sale or transfer, and any remaining liability of Landlord with respect to this Lease shall be limited to the dollar amount specified in Section 25.08 and Tenant shall not be entitled to any judgment in excess of such amount. Landlord shall have the right to assign this Lease to an entity comprised of the principals of Landlord or affiliates of such entities. Upon such assignment and assumption of the obligations of Landlord hereunder, Landlord shall be entirely freed and relieved of all obligations hereunder.
25.11 BINDING EFFECT
Subject to the provisions of Article Ten, this Lease shall be binding upon and inure to the benefit of Landlord and Tenant and their respective heirs, legal representatives, successors and permitted assigns.
25.12 CAPTIONS
The Article and Section captions in this Lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of such Articles and Sections.
25.13 TIME; APPLICABLE LAW; CONSTRUCTION
Time is of the essence of this Lease and each and all of its provisions. This Lease shall be construed in accordance with the Laws of the State of California. If more than one person signs this Lease as Tenant, the obligations hereunder imposed shall be joint and several. If any term, covenant or condition of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each item, covenant or condition of this Lease shall be valid and be enforced to the fullest extent permitted by Law. Wherever the term including or includes is used in this Lease, it shall have the same meaning as if followed by the phrase but not limited to. The language in all parts of this Lease shall be construed according to its normal and usual meaning and not strictly for or against either Landlord or Tenant.
25.14 ABANDONMENT
In the event Tenant vacates or abandons the Premises but is otherwise in compliance with all the terms, covenants and conditions of this Lease, Landlord shall (i) have the right to enter into the Premises in order to show the space to prospective tenants, (ii) have the right to reduce the services provided to Tenant pursuant to the terms of this Lease to such levels as Landlord reasonably determines to be adequate services for an unoccupied premises and (iii) during the last six (6) months of the Term, have the right to prepare the Premises for occupancy by another tenant upon the end of the Term. Tenant expressly acknowledges that in the absence of written notice pursuant to Section 11.2(b) or pursuant to California Civil Code Section 1951.3
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terminating Tenants right to possession, none of the foregoing acts of Landlord or any other act of Landlord shall constitute a termination of Tenants right to possession or an acceptance of Tenants surrender of the Premises, and the Lease shall continue in effect.
25.15 LANDLORDS RIGHT TO PERFORM TENANTS DUTIES
If Tenant fails timely to perform any of its duties under this Lease or the Workletter, Landlord shall have the right (but not the obligation), to perform such duty on behalf and at the expense of Tenant without prior notice to Tenant, and all sums expended or expenses incurred by Landlord in performing such duty shall be deemed to be additional Rent under this Lease and shall be due and payable upon demand by Landlord.
25.16 SECURITY SYSTEM
Landlord shall not be obligated to provide or maintain any security patrol or security system. Landlord shall not be responsible for the quality of any such patrol or system which may be provided hereunder or for damage or injury to Tenant, its employees, invitees or others due to the failure, action or inaction of such patrol or system.
25.17 NO LIGHT, AIR OR VIEW EASEMENTS
Any diminution or shutting off of light, air or view by any structure which may be erected on lands of or adjacent to the Project shall in no way affect this Lease or impose any liability on Landlord.
25.18 RECORDATION
Neither this Lease, nor any notice nor memorandum regarding the terms hereof, shall be recorded by Tenant. Any such unauthorized recording shall be a Default for which there shall be no cure or grace period. Tenant agrees to execute and acknowledge, at the request of Landlord, a memorandum of this Lease, in recordable form.
25.19 SURVIVAL
The waivers of the right of jury trial, the other waivers of claims or rights, the releases and the obligations of Tenant under this Lease to indemnify, protect, defend and hold harmless Landlord and/or Indemnitees shall survive the expiration or termination of this Lease, and so shall all other obligations or agreements which by their terms survive expiration or termination of the Lease.
25.20 RIDERS
All Riders attached hereto and executed both by Landlord and Tenant shall be deemed to be a part hereof and hereby incorporated herein.
[Signatures on Following Page]
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IN WITNESS WHEREOF, this Lease has been executed as of the date set forth in Section 1.1 hereof.
TENANT: | LANDLORD: | |
NOVACAL PHARMACEUTICALS, INC., a California corporation |
EMERY STATION ASSOCIATES II, LLC, a California limited liability company |
|
By: /s/ J OHN J. OR EILLY
Print Name: John J. OReilly
Its: CEO
By:
Print Name:
Its:
Date: June 2, 2004 |
By: /s/ R ICHARD K. R OBBINS Richard K. Robbins Managing Member
Date: 6 4 04 |
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EXHIBIT A
PLAN OF PREMISES
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EXHIBIT B
WORKLETTER AGREEMENT
(Turn-Key)
1. Defined Terms . Capitalized terms used in this Workletter shall have the same meanings set forth in the Lease except as otherwise specified herein and except for terms capitalized in the ordinary course of punctuation. For purposes of this Workletter the following capitalized terms have the following meanings:
1.1. "Design Documents" means the mutually agreed upon space plan which shall be based on the Tenants space program as approved on April 5, 2004 by Landlord and Tenant;
1.2 "Construction Drawings" means the final architectural plans and specifications, and engineering plans and specifications, for the real property improvements to be constructed by Landlord in the Premises in sufficient detail to be submitted for governmental approvals and building permits and to serve as the detailed construction drawings and specifications for the contractor, and shall be based upon and consistent with the Design Documents;
1.3 "Tenant Improvements" means all real property improvements to be constructed by Landlord as shown on the Construction Drawings, as they may be modified as provided herein; and
1.4 "Landlord Work" means the construction and installation of the Tenant Improvements.
2. Design Matters .
2.1. Landlord, through its architects and/or space planners ("Landlords Architect"), shall prepare the Design Documents.
2.2 Landlord through its Architect shall prepare the Construction Drawings which shall be the logical extension of, and consistent with, the Design Documents.
2.2. Tenant shall be responsible for the suitability for the Tenants needs and business of the design and function of all Tenant Improvements. Tenant, at its own expense, shall devote such time and provide such instructions as may be necessary to enable Landlord to complete the matters described below, and Tenant shall approve such matters, within the times described below:
(a) Tenants written approval of the Construction Drawings within five (5) days after submittal. Tenant cannot withhold its approval of the Construction Drawings so long as they are in material conformance with the Design Documents.
3. Turn-Key Construction; Tenant Improvement Costs .
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3.1. Turn-key Construction . Landlord, through its contractor, shall complete the construction of the Tenant Improvements in accordance with the Construction Drawings in a good and workmanlike manner at its sole cost and expense (Turn-key Construction Costs).
3.2. Turn-Key Construction Costs . The Turn-key Construction Costs shall include:
(a) The costs of Landlords Architect and any other consultants retained by Landlord in connection with the preparation of Design Documents and Constructions Drawings, and engineering costs associated with completion of the State of California energy utilization calculations under Title 24 legislation;
(b) All costs of obtaining from the City of Emeryville and any other governmental authority, approvals, building permits and occupancy permits, if any;
(c) All costs of interior design and finish schedule plans and specifications including as-built drawings; and
(d) All direct and indirect costs of procuring, installing and constructing the Tenant Improvements, including: (i) the construction fee for overhead and profit and the cost of all on-site supervisory and administrative staff, office, equipment and temporary services rendered or provided by Landlords contractor in connection with construction of the Tenant Improvements; and (ii) the cost of any services or utilities made available by Landlord;
3.3 Exclusions from Turn-key Construction Costs. The Turn-key Construction Costs shall not include:
(a) any fees payable to Landlords Architect if it is required by Tenant to redesign any portion of the Tenant Improvements following Tenants approval of the Construction Drawings;
(b) all costs in connection with any approved Change Order in accordance with the provisions of this Workletter;
(c) any costs of procuring or installing in the Premises any trade fixtures, equipment, furniture, furnishings, telephone equipment, cabling for any of the foregoing, or other personal property ("Personal Property") to be used in the Premises by Tenant, the cost of which shall be paid by Tenant; or,
(d) any costs or expenses of any consultants retained by Tenant with respect to design, procurement, installation or construction of improvements or installations, whether real or personal property, for the Premises.
3.4. Limitations of Landlords Obligations . Upon Substantial Completion of the Tenant Improvements, Landlord shall have no further obligation to construct improvements or construct modifications to or changes in the Tenant Improvements, except to complete the punchlist of Landlord Work remaining to be completed or correct any part thereof not in
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compliance with the Construction Drawings and any approved modifications thereof, as provided in the Lease.
4. Changes . If Tenant shall request any change, addition or alteration in the approved Construction Drawings, Landlord shall promptly give Tenant a written estimate of (a) the cost of engineering and design services and the construction contractor services to prepare a change order (the "Change Order") in accordance with such request, (b) the cost of work to be performed pursuant to such Change Order, and (c) the time delay expected because of such requested Change Order. Within three (3) business days following Tenants receipt of the foregoing written estimate, Tenant shall notify Landlord in writing whether it approves such written estimate. If Tenant approves such written estimate and if such cost is in excess of Landlords estimate of the Turn-key Construction Costs, Tenant shall accompany such approval with a good check made payable to the order of Landlord in the amount of the estimated cost of preparing the Change Order and performing the work thereto, and the foregoing shall constitute Landlords authorization to proceed. If such written authorization, and check if required, are not received by Landlord within such three (3) business day period, Landlord shall not be obligated to prepare the Change Order or perform any work in connection therewith.
5. Tenant Delay . If the Substantial Completion of the Tenant Improvements in the Premises is delayed due to Tenant Delay (defined in the Lease), then Tenant shall be responsible for all costs and any expenses occasioned by such delay, including any costs and expenses attributable to increases in labor or materials, and the provisions of Article Two of the Lease shall apply.
6. Entry by Tenant . Tenant may, with Landlords written consent, which will not unreasonably be withheld, enter the Premises during construction and prior to the Commencement Date for the Premises solely for the purpose of installing Tenants Personal Property (defined in Section 3.2 above) as long as such entry will not interfere with the timely and orderly construction and completion of the Premises. Tenant shall notify Landlord of its desired time(s) of entry and shall submit for Landlords approval the scope of the work to be performed and the name(s) of the contractor(s) who will perform such work. Such work and such contractors shall be subject to Landlords approval in the same manner as for work subject to Section 9.01(a) of the Lease. Such entry shall be without payment of Base Monthly Rent or Rent Adjustments, but such entry and all acts and omissions in connection with it are subject to and governed by all other provisions of the Lease, including Tenants indemnification obligations, insurance obligations, obligations under Article Seven and the provisions of Section 9.02.
7. Force and Effect . The terms and conditions of this Workletter supplement the Lease and shall be construed to be a part of the Lease and are incorporated in the Lease. Without limiting the generality of the foregoing, any default by any party hereunder shall have the same force and effect as a default under the Lease. Should any inconsistency arise between this Workletter and the Lease as to the specific matters that are the subject of this Workletter, the terms and conditions of this Workletter shall control.
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EXHIBIT C
RULES AND REGULATIONS
1. No sidewalks, entrance, passages, courts, elevators, vestibules, stairways, corridors or halls shall be obstructed or encumbered by Tenant or used for any purpose other than ingress and egress to and from the Premises and if the Premises are situated on the ground floor of the Project, Tenant shall further, at Tenants own expense, keep the sidewalks and curb directly in front of the Premises clean and free from rubbish.
2. No awning or other projection shall be attached to the outside walls or windows of the Project without the prior written consent of Landlord. No curtains, blinds, shades, drapes or screens shall be attached to or hung in, or used in connection with any window or door of the Premises, without the prior written consent of Landlord. Such awnings, projections, curtains, blinds, shades, drapes, screens and other fixtures must be of a quality, type, design, color, material and general appearance approved by Landlord, and shall be attached in the manner approved by Landlord. All lighting fixtures hung in offices or spaces along the perimeter of the Premises must be of a quality, type, design, bulb color, size and general appearance approved by Landlord.
3. No sign, advertisement, notice, lettering, decoration or other thing shall be exhibited, inscribed, painted or affixed by Tenant on any part of the outside or inside of the Premises or of the Project, without the prior written consent of Landlord. In the event of the violation of the foregoing by Tenant, Landlord may remove same without any liability, and may charge the expense incurred by such removal to Tenant.
4. The sashes, sash doors, skylights, windows and doors that reflect or admit light or air into the halls, passageways or other public places in the Project shall not be covered or obstructed by Tenant, nor shall any bottles, parcels or other articles be placed on the window sills or in the public portions of the Project.
5. No showcases or other articles shall be put in front of or affixed to any part of the exterior of the Project, nor placed in public portions thereof without the prior written consent of Landlord.
6. The water and wash closets and other plumbing fixtures shall not be used for any purposes other than those for which they were constructed, and no sweepings, rubbish, rags or other substances shall be thrown therein. All damages resulting from any misuse of the fixtures shall be borne by Tenant to the extent that Tenant or Tenants agents, servants, employees, contractors, visitors or licensees shall have caused the same.
7. Tenant shall not mark, paint, drill into or in any way deface any part of the Premises or the Project. No boring, cutting or stringing of wires shall be permitted, except with the prior written consent of Landlord, and as Landlord may direct.
8. No animal or bird of any kind shall be brought into or kept in or about the Premises or the Project, except seeing-eye dogs or other seeing-eye animals.
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9. Prior to leaving the Premises for the day, Tenant shall draw or lower window coverings and extinguish all lights.
10. Tenant shall not make, or permit to be made, any unseemly or disturbing noises or disturb or interfere with occupants of the Project, or neighboring buildings or premises, or those having business with them. Tenant shall not throw anything out of the doors, windows or skylights or down the passageways.
11. Neither Tenant nor any of Tenants agents, servants, employees, contractors, visitors or licensees shall at any time bring or keep upon the Premises any flammable, combustible or explosive fluid, chemical or substance.
12. No additional locks, bolts or mail slots of any kind shall be placed upon any of the doors or windows by Tenant, nor shall any change be made in existing locks or the mechanism thereof. Tenant must, upon the termination of the tenancy, restore to Landlord all keys of stores, offices and toilet rooms, either furnished to, or otherwise procured by Tenant, and in the event of the loss of any keys so furnished, Tenant shall pay to Landlord the cost thereof.
13. All removals, or the carrying in or out of any safes, freight, furniture, construction material, bulky matter or heavy equipment of any description must take place during the hours which Landlord or its agent may determine from time to time. Landlord reserves the right to prescribe the weight and position of all safes, which must be placed upon two-inch thick plank strips to distribute the weight. The moving of safes, freight, furniture, fixtures, bulky matter or heavy equipment of any kind must be made upon previous notice to the Building Manager and in a manner and at times prescribed by him, and the persons employed by Tenant for such work are subject to Landlords prior approval. Landlord reserves the right to inspect all safes, freight or other bulky articles to be brought into the Project and to exclude from the Project all safes, freight or other bulky articles which violate any of these Rules and Regulations or the Lease of which these Rules and Regulations are a part.
14. Tenant shall not purchase spring water, towels, janitorial or maintenance or other like service from any company or persons not approved by Landlord. Landlord shall approve a sufficient number of sources of such services to provide Tenant with a reasonable selection, but only in such instances and to such extent as Landlord in its judgment shall consider consistent with security and proper operation of the Project.
15. Landlord shall have the right to prohibit any advertising or business conducted by Tenant referring to the Project which, in Landlords opinion, tends to impair the reputation of the Project or its desirability as a first class building for offices and/or commercial services and upon notice from Landlord, Tenant shall refrain from or discontinue such advertising.
16. Landlord reserves the right to exclude from the Project between the hours of 6:00 p.m. and 8:00 a.m. Monday through Friday, after 1:00 p.m. on Saturdays and at all hours Sundays and legal holidays, all persons who do not present a pass to the Project issued by Landlord. Landlord may furnish passes to Tenant so that Tenant may validate and issue same. Tenant shall safeguard said passes and shall be responsible for all acts of persons in or about the Project who possess a pass issued to Tenant.
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17. Tenants contractors shall, while in the Premises or elsewhere in the Project, be subject to and under the control and direction of the Building Manager (but not as agent or servant of said Building Manager or of Landlord).
18. If the Premises is or becomes infested with vermin as a result of the use or any misuse or neglect of the Premises by Tenant, its agents, servants, employees, contractors, visitors or licensees, Tenant shall forthwith at Tenants expense cause the same to be exterminated from time to time to the satisfaction of Landlord and shall employ such licensed exterminators as shall be approved in writing in advance by Landlord.
19. The requirements of Tenant will be attended to only upon application at the office of the Project. Project personnel shall not perform any work or do anything outside of their regular duties unless under special instructions from the office of the Landlord.
20. | Canvassing, soliciting and peddling in the Project are prohibited and Tenant shall cooperate to prevent the same. |
21. No water cooler, air conditioning unit or system or other apparatus shall be installed or used by Tenant without the written consent of Landlord.
22. There shall not be used in any premises, or in the public halls, plaza areas, lobbies, or elsewhere in the Project, either by Tenant or by jobbers or others, in the delivery or receipt of merchandise, any hand trucks or dollies, except those equipped with rubber tires and sideguards.
23. Tenant, Tenants agents, servants, employees, contractors, licensees, or visitors shall not park any vehicles in any driveways, service entrances, or areas posted No Parking and shall comply with any other parking restrictions imposed by Landlord from time to time.
24. Tenant shall install and maintain, at Tenants sole cost and expense, an adequate visibly marked (at all times properly operational) fire extinguisher next to any duplicating or photocopying machine or similar heat producing equipment, which may or may not contain combustible material, in the Premises.
25. Tenant shall keep its window coverings closed during any period of the day when the sun is shining directly on the windows of the Premises.
26. Tenant shall not use the name of the Project for any purpose other than as the address of the business to be conducted by Tenant in the Premises, nor shall Tenant use any picture of the Project in its advertising, stationery or in any other manner without the prior written permission of Landlord. Landlord expressly reserves the right at any time to change said name without in any manner being liable to Tenant therefor.
27. Tenant shall not prepare any food nor do any cooking, operate or conduct any restaurant, luncheonette or cafeteria for the sale or service of food or beverages to its employees or to others, except that food and beverage preparation by Tenants employees using microwave ovens or coffee makers shall be permitted provided no odors of cooking or other processes emanate from the Premises. Tenant shall not install or permit the installation or use of any
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vending machine or permit the delivery of any food or beverage to the Premises except by such persons and in such manner as are approved in advance in writing by Landlord.
28. The Premises shall not be used as an employment agency, a public stenographer or typist, a labor union office, a physicians or dentists office, a dance or music studio, a school, a beauty salon, or barber shop, the business of photographic, multilith or multigraph reproductions or offset printing (not precluding using any part of the Premises for photographic, multilith or multigraph reproductions solely in connection with Tenants own business and/or activities), a restaurant or bar, an establishment for the sale of confectionery, soda, beverages, sandwiches, ice cream or baked goods, an establishment for preparing, dispensing or consumption of food or beverages of any kind in any manner whatsoever, or news or cigar stand, or a radio, television or recording studio, theatre or exhibition hall, or manufacturing, or the storage or sale of merchandise, goods, services or property of any kind at wholesale, retail or auction, or for lodging, sleeping or for any immoral purposes.
29. Business machines and mechanical equipment shall be placed and maintained by Tenant at Tenants expense in settings sufficient in Landlords judgment to absorb and prevent vibration, noise and annoyance. Tenant shall not install any machine or equipment which causes noise, heat, cold or vibration to be transmitted to the structure of the building in which the Premises are located without Landlords prior written consent, which consent may be conditioned on such terms as Landlord may require. Tenant shall not place a load upon any floor of the Premises exceeding the floor load per square foot that such floor was designed to carry and which is allowed by Law.
30. Tenant shall not bring any Hazardous Materials onto the Premises except for those that are in general commercial use and are incidental to Tenants business office operations and only in quantities suitable for immediate use.
31. Tenant shall not store any vehicle within the parking area. Tenants parking rights are limited to the use of parking spaces for short-term parking, of up to twenty-four (24) hours, of vehicles utilized in the normal and regular daily travel to and from the Project. Tenants who wish to park a vehicle for longer than a 24-hour period shall notify the Building Manager for the Project and consent to such long-term parking may be granted for periods up to two (2) weeks. Any motor vehicles parked without the prior written consent of the Building Manager for the Project for longer than a 24-hour period shall be deemed stored in violation of this rule and regulation and shall be towed away and stored at the owners expense or disposed of as provided by Law.
32. Smoking is prohibited in the Premises, the Building and all enclosed Common Areas of the Project, including all lobbies, all hallways, all elevators and all lavatories.
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RIDER 1
COMMENCEMENT DATE AGREEMENT
EMERY STATION ASSOCIATES II, a California limited liability company (Landlord), and , a (Tenant), have entered into a certain Office Lease dated as of , 2004 (the Lease).
WHEREAS, Landlord and Tenant wish to confirm and memorialize the Commencement Date and Expiration Date of the Lease as provided for in Section 2.2(b) of the Lease;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein and in the Lease, Landlord and Tenant agree as follows:
1. Unless otherwise defined herein, all capitalized terms shall have the same meaning ascribed to them in the Lease.
2. The Commencement Date (as defined in the Lease) of the Lease is ___________.
3. The Expiration Date (as defined in the Lease) of the Lease is ________________.
4. Tenant hereby confirms the following:
(a) That it has accepted possession of the premises pursuant to the terms of the Lease;
(b) That the Landlord Work is Substantially Complete; and
(c) That the Lease is in full force and effect.
5. Except as expressly modified hereby, all terms and provisions of the Lease are hereby ratified and confirmed and shall remain in full force and effect and binding on the parties hereto.
6. The Lease and this Commencement Date Agreement contain all of the terms, covenants, conditions and agreements between the Landlord and the Tenant relating to the subject matter herein. No prior other agreements or understandings pertaining to such matters are valid or of any force and effect.
TENANT: | LANDLORD: | |
, a |
EMERY STATION ASSOCIATES II, LLC, a California limited liability company |
|
By:
Print Name:
Its: |
By: Richard K. Robbins Managing Member |
|
By:
Print Name:
Its: |
RIDER-1
FIRST AMENDMENT
to
LEASE BETWEEN
EMERY STATION ASSOCIATES II, LLC (LANDLORD)
And
NOVACAL PHARMACEUTICALS, INC. (TENANT)
EMERYSTATION NORTH PROJECT
Emeryville, California
That certain Lease dated June 3, 2004 by and between Emery Station Associates II, LLC, as Landlord, and NovaCal Pharmaceuticals, Inc., as Tenant, is hereby amended as follows:
I. | Tenant has requested, and Landlord has agreed, to an expansion of the proposed Premises such that the southernmost wall will be moved south approximately five (5) feet as indicated on the attached drawing. |
II. | Effective upon the date of mutual execution of this First Lease Amendment, the base lease will be changed as follows: |
a) Section 1.1(8) shall be deleted and replaced with the following:
Months Monthly Rate / SF Monthly Base Rent
Of Rentable Area
1 6 $1.90 $13,862.40
7 12 $2.49 $18,167.04
13 24 $2.57 $18,750.72
25 36 $2.70 $19,699.20
37 48 $2.83 $20,647.68
49 60 $2.96 $21,596.16
The Base Rent for the first month of the Term in the amount of $13,862.40 shall be paid upon execution of this First Lease Amendment.
b) Section 1.1(9) RENTABLE AREA OF THE PREMISES: shall be changed to 7,296 square feet.
c) Section 1.1(11) SUITE NUMBER OF THE PREMISES: shall be changed to Suite 550 on the 5 th floor.
d) The drawing in Exhibit A of the Lease shall be modified merely to move the wall south as referenced above.
III. | Except for those terms outlined above, all other terms and conditions of the base Lease and WorkLetter and Exhibits shall apply. |
In witness hereof, the parties have executed this First Amendment as of the date noted below.
TENANT: | LANDLORD: | |
NovaCal Pharmaceuticals, Inc., a California Corporation |
Emery Station Associates II, LLC, a California Limited Liability Company |
|
By: / S / J ACK OR EILLY
Print Name: Jack OReilly
Its:
Dated: 6/18/04 |
By: /s/ R ICHARD K. R OBBINS
Print Name:
Its:
Dated: 6/22/04 |
SECOND AMENDMENT
to
LEASE BETWEEN
EMERY STATION ASSOCIATES II, LLC (LANDLORD)
And
NOVACAL PHARMACEUTICALS, INC. (TENANT)
EMERYSTATION NORTH PROJECT
Emeryville, California
Reference is made to that certain Lease dated June 3, 2004 by and between Emery Station Associates II, LLC, as Landlord, and NovaCal Pharmaceuticals, Inc., as Tenant, as such Lease was amended via First Amendment executed by Landlord June 22, 2004 (together, the Lease). The Lease is further amended by this Second Amendment dated July 22, 2004, as follows:
I. |
Tenant has requested to occupy space temporarily on the 5 th floor of EmeryStation North in advance of substantial completion of the Landlords Work for Tenants permanent Premises described in the Lease. |
II. | Commencing July 30, 2004, Tenant shall be able to occupy the space delineated on the attached Exhibit A hereto (the Temporary Space) and shall be able to use such space for office space, storage and for limited lab purposes. Tenants use and occupancy of the Temporary Space will be subject to all the same terms and conditions of Tenants base Lease except for the rent paid for the Temporary Space, which is specified herein. Tenant agrees to accept the Temporary Space on an as-is basis. |
III. | Tenants occupancy of the Temporary Space shall be deemed a month-to-month tenancy, cancelable at any time by either party with written notice, except that Landlord agrees that, so long as Tenant is not in default under its Lease (as amended by the First and Second Amendments), it will extend the month-to-month tenancy until such time as the substantial completion of the Landlords Work for Tenants permanent Premises, (or at the point Landlords Work would have been completed absent any Tenant Delay and/or Tenant default). |
IV. | Tenant agrees to vacate the Temporary Space upon substantial completion of Landlord Work in the permanent Premises (or at the point Landlords Work would have been completed absent any Tenant Delay and/or Tenant default). Immediately upon its vacation Tenant agrees to restore the Temporary Space to the same condition when it assumed initial occupancy, including any decontamination of the lab area(s) to such reasonable standards that Landlord may require. If tenant fails to do so, landlord can do so on Tenants behalf and bill tenant for the cost thereof. Tenants obligation to pay rent for the temporary Space shall continue until the aforementioned restoration and decontamination of the Temporary Space are complete. |
V. | Tenant shall pay rent for the Temporary Space in the amount of $7,500 per month, payable in advance. Rent for the first month shall be paid upon execution of this Second Lease Amendment. This rental rate assumes a reasonable amount of electrical consumption based on the understanding that Tenants lab operations in the Temporary Space (if any) will not be extensive. If this does not prove to be the case, Landlord reserves the right to adjust the monthly rent a reasonable amount to reflect the excessive power utilization by Tenant. In addition, Tenant may rent a reasonable number of parking spaces at Landlords quoted rates during its temporary occupancy period. |
VI. | Tenant acknowledges that the Temporary Space is part of a larger suite, that the Temporary Space will not be formally demised from the balance of that suite, that Landlord may allow other tenant(s) to occupy the balance of that suite and/or Landlord can show both the Temporary Space and the balance of the suite to prospective tenants during Tenants occupancy of the Temporary Space. |
III. | Except for those terms outlined above, all other terms and conditions of the base Lease and WorkLetter and Exhibits (as amended by the First Amendment) shall apply. |
In witness hereof, the parties have executed this Second Amendment as of the date noted below.
TENANT: | LANDLORD: | |
NovaCal Pharmaceuticals, Inc., a California Corporation |
Emery Station Associates II, LLC, a California Limited Liability Company |
|
By: / S / J ACK OR EILLY
Print Name: Jack OReilly
Its: CEO
Dated: July 23, 2004 |
By: /s/ R ICHARD K. R OBBINS
Print Name:
Its:
Dated: 7-30-04 |
COMMENCEMENT DATE AGREEMENT
EMERY STATION ASSOCIATES II, a California limited liability company (Landlord), and NovaCal Pharmaceuticals, Inc., a California corporation (Tenant), have entered into a certain Office Lease dated as of June 3, 2004 and as amended on the First Amendment dated June 22, 2004, and as amended on the Second Amended dated July 30, 2004 (the Lease).
WHEREAS, Landlord and Tenant wish to confirm and memorialize the Commencement Date and Expiration Date of the Lease as provided for in Section 2.2(b) of the Lease;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein and in the Lease, Landlord and Tenant agree as follows:
1. Unless otherwise defined herein, all capitalized terms shall have the same meaning ascribed to them in the Lease.
2. The Commencement Date (as defined in the Lease) of the Lease is November 1, 2004 .
3. The Expiration Date (as defined in the Lease) of the Lease is October 31, 2009 .
4. Tenant hereby confirms the following:
a. That it has accepted possession of the premises pursuant to the terms of the Lease;
b. That the Lease is in full force and effect.
5. Except as expressly modified hereby, all terms and provisions of the Lease are hereby ratified and confirmed and shall remain in full force and effect and binding on the parties hereto.
6. The Lease and this Commencement Date Agreement contain all of the terms, covenants, conditions and agreements between the Landlord and the Tenant relating to the subject matter herein. No prior other agreements or understandings pertaining to such matters are valid or of any force and effect.
TENANT: | LANDLORD: | |
NOVACAL PHARMACEUTICALS, INC., |
EMERY STATION ASSOCIATES II, LLC, a California limited liability company |
|
By: / S / J ACK OR EILLY
Print Name: Jack OReilly
Its: CFO |
By: /s/ R ICHARD K. R OBBINS Richard K. Robbins Managing Member |
|
By: / S / R ON N AJAFI
Print Name: Ron Najafi
Its: Founder / CEO |
THIRD AMENDMENT
to
LEASE BETWEEN
EMERY STATION OFFICE II, LLC (LANDLORD)
And
NOVACAL PHARMACEUTICALS, INC. (TENANT)
EMERYSTATION NORTH PROJECT
Emeryville, California
That certain Lease dated June 3, 2004 by and between Emery Station Office II, LLC (successor-in-interest to Emery Station Associates II, LLC), as Landlord, and NovaCal Pharmaceuticals, Inc., as Tenant, as such was amended by First Amendment dated June 22, 2004 and by Second Amendment dated July 22, 2004 (together, the Lease), is hereby further amended as outlined below. The effective date of this Third Amendment is March 25, 2005.
I. | Tenant wishes to add to its Premises that additional area adjacent and south of the existing Premises as more specifically outlined on Exhibit A hereof (the Expansion Space). The Expansion Space measures 1,182 rentable square feet. |
II. | Landlord agrees to perform the following work in the existing Premises and the Expansion Space as outlined below and on Exhibit B hereto: |
|
demise the Expansion space as and where indicated |
|
add a wall and door at the south end of the existing Premises as shown |
|
remove the existing wall where indicated so as to join the spaces |
III. | Upon Substantial Completion (as defined in the Lease and Workletter) by Landlord of the Improvements outlined in Section II above, the Lease will be modified as follows: |
a. | The Monthly Base Rent column in the rent schedule in Section 1.1(8) from the First Amendment will be increased pro-rata to reflect the new, larger Rentable Area of 8,478 square feet. For example, in Months 25 36, the agreed Monthly Rate / SF of Rentable Area of $2.70 will be applied to the new Rentable Area of 8,478 square feet to come up with a Monthly Base rent of $22,890.60. |
a. | Section 1.1(9) RENTABLE AREA OF THE PREMISES: shall be changed to 8,478 square feet to reflect the addition of the Expansion Space to the Premises. |
b. | The Premises will now consist of the Premises defined in the First Amendment plus the Expansion Space defined herein. Tenants Share will be adjusted accordingly. |
XI. | Landlord and Tenant represent and warrant to one another that each has represented itself in this transaction and that no brokerage fee will be payable to a third party as a result. |
XII. | Except for those terms outlined above, all other terms and conditions of the Lease and WorkLetter shall apply. |
In witness hereof, the parties have executed this First Amendment as of the date noted below.
TENANT: | LANDLORD: | |
NovaCal Pharmaceuticals, Inc., a California Corporation |
Emery Station Associates II, LLC, a California Limited Liability Company |
|
By: / S / R ON N AJAFI
Print Name: Ron Najafi
Its: Chairman
Dated: 3-28-2005 |
By: /s/ R ICHARD K. R OBBINS
Print Name:
Its:
Dated: |
FOURTH AMENDMENT
to
LEASE BETWEEN
EMERY STATION OFFICE II, LLC (LANDLORD)
And
NOVACAL PHARMACEUTICALS, INC. (TENANT)
EMERYSTATION NORTH PROJECT
Emeryville, California
That certain lease dated June 3, 2004, by and between Emery Station Office II, LLC, a California Limited Liability Company, as Landlord ( Landlord ), and Novacal Pharmaceuticals, Inc., a California Corporation, as Tenant ( Tenant ), a such lease was amended by First Amendment dated June 22, 2004, by Second Amendment dated July 22, 2004 and by Third Amendment dated March 25, 2005 (collectively, the Lease ), is hereby further amended as outlined below. The effective date of this Fourth Amendment shall be September 30, 2006 (the Fourth Amendment Effective Date ). From and after the Fourth Amendment Effective Date the Lease and this Fourth Amendment thereto shall be referred to as the Lease for all purposes.
I. | PREMISES: |
Tenant has requested to lease from Landlord and Landlord has agreed to lease to Tenant (under the terms enumerated herein) the following additional spaces in the EmeryStation North building:
Suite 395, which is presently leased to Wareham Property Group, an affiliate of Landlord. This suite measures 325 rentable square feet, and can be used as storage space.
Suite 575, which is presently leased to H2Volt. This suite measures 2,248 rentable square feet and can be used as office and lab space.
Suite 580, which is presently leased to Eureka Pharmaceuticals. This suite measures 957 rentable square feet and can be used as office and lab space.
All of the above spaces are more specifically described on Exhibit A attached hereto.
II. | COMMENCEMENT: |
Tenant acknowledges and understands that all three suites are presently leased to others. The lease term and rent applicable to each suite will commence upon the delivery of each specific suite by Landlord to Tenant, as more fully described below:
Suite 395: Landlord will cause the existing tenant of Suite 395 to vacate as quickly as is commercially reasonable, and will deliver the space to Tenant. That date shall be referred to as the Suite 395 Commencement Date .
Suite 575: Suite 575 is occupied by H2Volt under a lease that is terminable by Landlord with 30-days notice, such notice requiring delivery at the beginning of a calendar month. Landlord agrees to give H2Volt such 30-day notice on the first day of the month immediately following the Fourth Amendment Effective Date. As detailed in Section 2.3 of the Lease, Landlord shall not be liable for any delay in being able to deliver the space for any reason including but not limited to H2Volts unauthorized holdover in the space. Landlord agrees to use commercially-reasonable efforts to cause H2Volt to vacate the space per the terms of its
lease. Upon termination of H2Volts lease and their vacation of the space, Landlord will deliver Suite 575 to Tenant, such date being referred to as the Suite 575 Commencement Date .
Suite 580: Tenant agrees to lease Suite 580 as soon as the existing lease with Eureka Pharmaceuticals ( Eureka ) terminates and Eureka vacates the space. Suite 580 is presently under lease to Eureka through May 31, 2007, but Tenant understands that Landlord is negotiating to try to relocate Eureka to alternate premises earlier than that date so that the space can be made available to Tenant earlier than otherwise. Landlord will use commercially-reasonable efforts to secure such an early termination but makes no representations nor warranties about its ability to do so on commercially-acceptable terms. Landlord will give Tenant prompt notice if and when it secures a fully-executed legal agreement with the Eureka to vacate Suite 580 prior to May 31, 2007, along with an estimate of the date on which Suite 580 will be available for Tenants occupancy. The date on which Landlord delivers Suite 580 to Tenant shall be referred to as the Suite 580 Commencement Date . As detailed in Section 2.3 of the Lease, Landlord shall not be liable for any delay in being able to deliver the space for any reason including but not limited to Eurekas unauthorized holdover in the space.
Failure of Landlord to be able to deliver any of the three subject suites shall not impact Tenants obligation to the lease the others pursuant to the terms hereof nor shall it impact Landlords agreed efforts to secure the spaces for Tenant.
III. | LEASE TERM: |
Tenant shall lease Suites 395, 575 and 580 from their respective Commencement Dates through December 31, 2011 (the Suite 395, 575 and 580 Expiry Date ).
IV. | RENT AND EXPENSES: |
Beginning on the respective Commencements Dates for each suite, Tenant shall pay Base Monthly Rent as follows:
Suite 395: $700.00 per month, increasing on January 1, 2007 and annually thereafter by three percent (3%).
Suite 575: $6,811.44 per month, increasing on January 1, 2007 and annually thereafter by three percent (3%). Suite 575 Base Rent shall be reduced by fifteen percent (15%) during the period between the Suite 575 Commencement Date and the Suite 580 Commencement Date, regardless of when that latter date occurs, if ever. Upon the Suite 580 Commencement Date the discount of Base Rent for Suite 575 shall cease and it shall be restored to its full, stated amount.
Suite 580: $2,899.71 per month, increasing on January 1, 2007 and annually thereafter at three percent (3%).
In the event any of the respective Commencement Dates occurs on other than the first day of a calendar month, the Base Monthly Rents shall be pro-rated accordingly.
The Base Monthly Rent for Suite 395 is meant to be fully inclusive of all Operating Expenses and Taxes, such that no additional payments in respect of those costs shall be due from Tenant.
The Base Monthly Rent amounts shown above for Suites 575 and 580 are intended to be fully triple-net of all Operating Expenses and Taxes. As such, there is no Base Year applicable to
2
either Suite 575 nor to 580 as there is with Tenants premises existing in advance of this Fourth Amendment. In addition to Base Monthly Rent for Suite 575 and 580, Tenant is also obligated to pay Rent Adjustments and Rent Adjustment Deposits beginning on the respective suites Commencement Dates per the terms of the Lease, with the exception that all references to the Base Year that appear in the definitions of Rent Adjustment Deposits, Operating Expenses, Taxes and in Lease Sections 1.1(13) and 4.1 do not apply.
V. | PREMISES CONDITION / TENANT IMPROVEMENTS: |
Tenant agrees to accept the suites (395, 575 and 580) upon their respective Commencement Dates in their then as-is condition. Regarding Suite 575, Landlord will supply Tenant with an $11,240.00 Tenant Improvement Allowance to reimburse Tenant for the demonstrable, third-party costs incurred by Tenant for any fixed improvements Tenant makes to Suite 575 and/or 580. In addition, regarding Suite 575, Landlord will install at its own cost a used fume hood substantially similar to the one existing in the H2Volt suite and will connect it to utilities and services commensurate with the existing fume hood. This fume hood as well as any other fixed improvements made shall remain property of Landlord at the end of the Lease.
VI. | PARKING: |
Upon the Suite 575 Commencement Date, Tenant shall be entitled to use up to seven (7) additional unreserved parking stalls in the Terraces Garage at Landlords quoted rates (presently $75/month). Upon the Suite 580 Commencement Date, Tenant shall be entitled to use up to three (3) additional unreserved parking spaces in the Terraces Garage at Landlords quoted rates.
VII. | SECURITY DEPOSIT: |
Upon the Suite 575 Commencement Date, the Security Deposit will be increased by $6,811.44. Upon the Suite 580 Commencement Date, the Security Deposit will be increased by $2,899.71.
VIII. | TERMINATION UPON RELOCATION TO EMERYSTATION EAST: |
In the event Landlord (or its affiliate) and Tenant negotiate and execute a mutually-acceptable lease that allows Tenant to relocate wholly to an equal or larger space in EmeryStation East ( ESE ), Tenants Lease at Emerystation North shall be terminable without penalty upon formal commencement of Tenants lease and its obligation to pay rent at ESE, it being understood that neither Tenant nor Landlord are under any obligation to enter in to any lease at ESE.
IX. | Tenant represents and warrants that it has represented itself in this transaction and that no brokerage commission will be due and payable by Landlord as a result hereof. |
X. | Except as modified hereby, the Lease is ratified and confirmed in its entirety. |
XI. | Except for those terms outlined above, all other terms and conditions of the Lease shall apply. |
3
In witness hereof, the parties have executed this Fourth Amendment as of the date noted below.
TENANT: | LANDLORD: | |
NovaCal Pharmaceuticals, Inc., A California Corporation |
Emery Station Associates II, LLC, A California Limited Liability Company |
|
By: / S / R ON N AJAFI
Print Name: Ron Najafi
Its: CEO
Dated: Sept 29,2006 |
By: /s/ R ICHARD K. R OBBINS
Print Name:
Its:
Dated: 9/29/06 |
4
EXHIBIT A
PLAN OF SUITES 395, 575 AND 580
A-1
Exhibit 10.11
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS AND ENCLOSED BY BRACKETS. THE CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL
COLLABORATION AND LICENSE AGREEMENT
This COLLABORATION AND LICENSE AGREEMENT (this Agreement ) is entered into as of the 29 th day of August, 2006 (the Effective Date ) by and between NovaCal Pharmaceuticals, Inc., a California corporation, having its principal place of business at 5980 Horton Street, Suite 550, Emeryville, California 94608 ( NovaCal ) and Alcon Manufacturing, Ltd., a Texas partnership, having its principal place of business at 6201 S. Freeway, Fort Worth, Texas 76134-2099 ( Alcon ). NovaCal and Alcon are each referred to herein by name or, individually, as a Party or, collectively, as Parties .
BACKGROUND
A. NovaCal has developed certain proprietary technologies related to Aganocide Compounds, including those certain drug candidates referred to as [***] and [***].
B. Alcon is a leader in the discovery, development, and commercialization of pharmaceutical products.
C. NovaCal and Alcon wish to collaborate to develop and obtain regulatory approval for, and commercialize, on a global basis pharmaceutical products incorporating [***] and/or other Licensed Compounds (as defined below) resulting from the collaboration for applications in the Field, with Alcon having primary responsibility for marketing and selling such products throughout the world, all on the terms and conditions set forth herein below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements provided herein below and other consideration to the receipt and sufficiency of which is hereby acknowledged, NovaCal and Alcon hereby agree as follows:
ARTICLE 1
DEFINITIONS
The following capitalized terms shall have the meanings given in this Article 1 when used in this Agreement:
1.1 Adverse Drug Reaction shall have the meaning as defined in the then-current guidelines and regulations promulgated by the ICH (International Conference on Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use) and shall include any Adverse Drug Experience as defined in the then-current 21 CFR Sections 312.32 and 314.80.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
1.2 Affiliate shall mean, with respect to a subject entity, another entity that controls, is controlled by or is under common control with such subject entity, for so long as such control exists. For purposes of this definition only, control shall mean beneficial ownership (direct or indirect) of at least fifty percent (50%) of the shares of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, in the election of the corresponding managing authority).
1.3 Aganocide Compound shall mean [***].
1.4 Agreement Wind-Down Period shall have the meaning assigned in Section 12.5.1(b).
1.5 Alcon Indemnities shall have the meaning assigned in Section 11.4.1.
1.6 Asia shall have the meaning assigned in Section 5.4.1(a).
1.7 Collaboration shall mean all activities performed by or on behalf of each Party under this Agreement, including all activities of each Party under any Plan. For clarity, during the Exclusivity Period all activities performed by or on behalf of either Party directed toward the Field shall be deemed in respect of the Collaboration.
1.8 Co-Marketing Partner shall have the meaning assigned in Section 5.4.1(a).
1.9 Commercialization shall mean, with respect to a particular Licensed Product in the Field, any and all processes and activities conducted to establish and maintain sales for such Licensed Product (including with respect to reimbursement and patient access), including offering for sale, selling (including launch), marketing (including education and advertising activities), promoting, storing, transporting, distributing, and importing such Licensed Product. For clarity, Commercialization shall exclude all Discovery, Development and Manufacturing processes and activities. Commercialize and Commercializing shall have their correlative meanings.
1.10 Commercialization Plan shall have the meaning assigned in Section 5.2.
1.11 Commercially Reasonable Efforts shall mean, with respect to a Party, a commitment by or on behalf of such Party of sustained, continued and active efforts and level of resources and urgency applied by such Party to a certain activity or activities that is consistent with such Partys practices for its other pharmaceutical products of a similar stage of product life, safety, efficacy and commercial potential, but in no event less than the high professional standards and level of efforts, resources and urgency applied by other pharmaceutical companies of similar size to their high-priority development candidates and pharmaceutical products of a similar stage of product life, safety, efficacy and commercial potential. Without limiting the foregoing, Commercially Reasonable
[***] |
Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
-2-
Efforts shall require the applicable Party to: (i) promptly assign responsibilities for activities for which it responsible to specific employee(s) that are held accountable for the progress, monitoring and completion of such activities, (ii) set and consistently seek to achieve meaningful objectives for carrying out such activities, and (iii) consistently make and implement decisions and allocate the full complement of resources necessary or appropriate to advance progress with respect to and complete such objectives in an expeditious manner.
1.12 Common Compound shall mean a Development Compound that NovaCal (itself or through one or more Third Parties) is developing (including preclinical development) or commercializing for applications outside of the Field. As used in this Section 1.12, the term developing shall have the meaning indicated for the term Development in Section 1.22.
1.13 Competing Product shall have the meaning assigned in Section 8.4.7.
1.14 Competing Program shall have the meaning assigned in Section 7.4.3.
1.15 Compound Improvement shall have the meaning assigned in Section 9.1.2.
1.16 Confidential Information shall have the meaning assigned in Section 10.1.
1.17 Control shall mean, with respect to particular Know-How or a particular Patent, possession by the Party granting the applicable right, license or sublicense to the other Party as provided herein of the power and authority, whether arising by ownership, license, or other authorization, to disclose and deliver the particular Know-How to the other Party, and to grant and authorize under such Know-How or Patent the right, license or sublicense, as applicable, of the scope granted to such other Party in this Agreement without giving rise to a violation of the terms of any written agreement with any Third Party.
1.18 Cooperating Party shall have the meaning assigned in Section 10.4.2.
1.19 Coordination Committee shall have the meaning assigned in Section 2.1.1.
1.20 Cover, Covered or Covering shall have the meaning assigned in Section 8.4.4(b).
1.21 Data shall mean any and all research and development data, such as preclinical data, pharmacology data, chemistry data (including analytical, product characterization, manufacturing, and stability data), toxicology data, clinical data (including investigator reports (both preliminary and final), statistical analyses, expert opinions and reports, safety and other electronic databases), together with supporting data, in each case specifically directed to, or used in the Development of, a Licensed Product and Controlled by a Party during the Term.
1.22 Development shall mean, with respect to any Licensed Product in the Field, any and all processes and activities conducted to file for, obtain and maintain Marketing Approvals for such Licensed Product after the designation of the Development Compound incorporated therein in accordance with Section 3.4, which may involve preclinical testing, ADME (absorption, distribution,
-3-
metabolism and excretion) and toxicology studies, clinical trials (including trials for additional indications in the Field for a Licensed Product for which a Marketing Approval has been obtained), quality of life assessments, pharmacoeconomics, post-marketing studies, label expansion studies, regulatory affairs, and further activities related to development of such Licensed Product. For clarity, Development shall exclude all Discovery, Manufacturing and Commercialization processes and activities. Develop and Developing shall have their correlative meanings.
1.23 Development Compound shall mean any Licensed Compound that is designated as a Development Compound by the Coordination Committee in accordance with Section 3.4.
1.24 Development Plan shall have the meaning assigned in Section 4.2.1.
1.25 Development Program shall have the meaning assigned in Section 4.1.2.
1.26 Discovery shall mean, with respect to an Aganocide Compound, any and all processes and activities conducted to discover, generate, identify, and optimize such Aganocide Compound to meet criteria established therefor by the Coordination Committee from time to time or otherwise taken with respect to such Aganocide Compound prior to its designation as a Development Compound pursuant to Section 3.4. For clarity, Discovery shall exclude all Development, Manufacturing and Commercialization processes and activities. Discover and Discovering shall have their correlative meanings.
1.27 Discovery Research Plan shall have the meaning assigned in Section 3.2.
1.28 Discovery Research Program shall have the meaning assigned in Section 3.1.
1.29 Enabling Party shall have the meaning assigned in Section 6.2.3.
1.30 Enforcement Action shall have the meaning assigned in Section 9.4.
1.31 Exclusivity Period shall mean the period commencing on the Effective Date and expiring on the [***] anniversary following the end of the Funding Term.
1.32 FDA shall mean the United States Food and Drug Administration or any successor entity.
1.33 Field shall mean, collectively, the Ophthalmic Sub-Field, Otic Sub-Field and Sinus Sub-Field, in each case subject to Sections 7.2 and 12.5.2. The Ophthalmic Sub-Field, Otic Sub-Field and Sinus Sub-Field may each be referred to herein, individually, as a Sub-Field .
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
-4-
1.33.1 Ophthalmic Sub-Field shall mean any pharmaceutical product or medical device incorporating a Licensed Compound for applications in or on the eye in humans, including without limitation contact lens solutions and ophthalmic solutions containing a Licensed Compound as a preservative.
1.33.2 Otic Sub-Field shall mean any pharmaceutical product or medical device incorporating a Licensed Compound for the prevention or treatment of infections in the ear in humans and solutions containing a Licensed Compound as a preservative for the ear in humans. For clarity, such pharmaceutical products or medical devices indicated for the treatment of otitis externa, including acute otitis externa (AOE), are considered products for the prevention or treatment of infections in the ear and thus a part of the Otic Sub-Field. (For purposes of this Agreement: infections shall include any infection, whether bacterial, viral, fungal or any combination thereof; and treatment of an infection shall include the reduction or elimination of biofilm associated with such infection.)
1.33.3 Sinus Sub-Field shall mean any pharmaceutical product or medical device incorporating a Licensed Compound for the prevention or treatment of infections in the paranasal sinuses in humans and solutions containing a Licensed Compound as a preservative for the paranasal sinuses in humans, but excluding products for the treatment or prevention of infections of the nares.
1.34 Filing Party shall have the meaning assigned in Section 6.2.3.
1.35 FTE shall mean a full time equivalent person year (consisting of a total of 1,880 hours per year) of scientific work on or related to the Discovery Research Program or Development Program. Scientific work on or related to the Discovery Research Program or Development Program shall include those tasks and activities described in the Discovery Research Plan or the Development Plans, as applicable, together with related managerial and preparation activities.
1.36 FTE Rate shall mean [***] per year per FTE, subject to adjustment as set forth in Section 8.2.
1.37 Funding Term shall mean the period commencing on the Effective Date and expiring on the later of: (i) the [***]anniversary of the Effective Date, or (ii) if Alcon elects to extend the Funding Term beyond the [***] anniversary of the Effective Date under Section 8.2.3, the end of the last Funding Term Extension so elected; provided that the Funding Term shall in all events terminate upon an earlier termination of this Agreement in accordance with Article 12.
1.38 Funding Term Extension shall have the meaning assigned in Section 8.2.3.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
-5-
1.39 GAAP shall mean then-current generally accepted accounting principles in the United States as established by the Financial Accounting Standards Board or any successor entity or other entity generally recognized as having the right to establish such principles, in each case consistently applied.
1.40 GLP shall mean the then-current good laboratory practice (or similar standards) for the performance of laboratory activities for pharmaceutical products as are required by any Regulatory Authority in the applicable jurisdiction.
1.41 GMP shall mean the then-current good manufacturing practice (or similar standards) for the manufacture of pharmaceutical products applicable to a Licensed Product as are required by the Regulatory Filings and approvals for such Product in the applicable jurisdiction, including any IND, MAA or Marketing Approval.
1.42 IND shall mean an investigational new drug application filed with the FDA as more fully defined in 21 C.F.R. §312.3 or similar application (i.e., a filing that must be made prior to commencing clinical testing in humans) filed with a Regulatory Authority in another jurisdiction.
1.43 IND Enabling Studies shall mean, with respect to Licensed Product for one or more particular indications in the Field, those studies that are reasonably necessary to file an IND for such Licensed Product with the applicable Regulatory Authority to initiate human clinical trials with such Licensed Product for such indications. Such studies shall include those designed to provide information on microbiology, pharmacology, safety (toxicology) and CMC (chemistry, manufacturing and controls). Additional information on in-vivo models of efficacy, PK (pharmacokinetics) and ADME (adsorption, distribution, metabolism and secretion) may also be included.
1.44 Indemnify shall have the meaning assigned in Section 11.4.1.
1.45 Infringing Product shall have the meaning assigned in Section 9.4.
1.46 Initiation shall have the meaning assigned in Section 8.3.1(b)(ii).
1.47 Know-How shall mean information and tangible materials comprising (i) ideas, discoveries, inventions, improvements or trade secrets, (ii) techniques, methods, formulas, processes and Data, and (iii) compositions of matter, including Licensed Compounds and Development Compounds, in each case that are reasonably necessary for the Development, Manufacture and Commercialization of a Licensed Product. Know-How shall not include any Patent rights with respect thereto.
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1.48 Licensed Compound shall mean any Aganocide Compound that: (i) is Controlled by NovaCal as of the Effective Date, including [***]; (ii) is Discovered by NovaCal during the Exclusivity Period; or (iii) is Controlled by NovaCal during the Exclusivity Period.
1.49 Licensed Product shall mean any (i) pharmaceutical product that incorporates a Development Compound as one of its ingredients, or (ii) medical device that that incorporates a Development Compound as one of its ingredients. For avoidance of doubt, references to Licensed Product shall include any formulation, delivery device, dispensing device or packaging required for effective use of the Licensed Product.
1.50 Losses shall have the meaning assigned in Section 11.4.1.
1.51 Major Market shall mean any of the following: Canada, France, Germany, Italy, Spain, United Kingdom or the United States.
1.52 Manufacturing shall mean, with respect to Licensed Product in the Field, any and all processes and activities conducted for the GLP or GMP manufacture of such Licensed Product in final dosage form (but not the Development Compound (i.e., the active pharmaceutical ingredient) therein) for Development or Commercialization thereof, including formulating a Development Compound into the final dosage form of the Licensed Product incorporating such Development Compound, packaging, labeling and other finishing activities, quality control and assurance testing, formulation development and other activities performed in support of the CMC (chemistry, manufacturing and controls, or equivalent) section of an IND, in each case with respect to such Licensed Product. For clarity, Manufacturing shall exclude all Discovery, Development and Commercialization processes and activities, as well as process and activities directed to the manufacture of Development Compounds alone (i.e., not as part of a Licensed Product). Manufacture shall have the correlative meaning.
1.53 M anufacturing Cost shall have the meaning assigned in Exhibit 6.1.4.
1.54 Marketing Approval shall mean, with respect to Licensed Product for a particular indication in a particular jurisdiction, approval by the applicable Regulatory Authority of an MAA for such Licensed Product for such indication, together with pricing approval in jurisdictions where pricing is established by the Regulatory Authority or other governmental agency. Notwithstanding the foregoing, if approval of such MAA is not required to market the Licensed Product in such jurisdiction, Marketing Approval shall be deemed to have occurred for a particular indication for a Licensed Product in such jurisdiction upon the first commercial sale of such Licensed Product in such jurisdiction with labeling for such indication.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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1.55 Marketing Approval Application or MAA shall mean a New Drug Application (as defined in 21 C.F.R. § 314.50 et. seq.) or similar filing, or a comparable filing for authorization to initiate marketing activities in a jurisdiction other than the United States, in each case with respect to a Licensed Product in the Territory.
1.56 Marketing Partner shall mean a Third Party to whom a Party has granted rights to: (i) market and sell a Licensed Product on such Third Partys own behalf; or (ii) promote, co-promote or otherwise offer to sell a Licensed Product on such Third Partys own behalf. For clarity, a Marketing Partner shall not include: (A) any Third Party marketing or selling a Licensed Product on behalf of a Party (i.e. where such Party books sales and bears the risk of loss associated with non-payment); (B) any Third Party Manufacturing a Licensed Product for sale by a Party; or (C) any other subcontractor.
1.57 Milestone Event shall have the meaning assigned in Section 8.3.
1.58 Milestone Payment shall have the meaning assigned in Section 8.3.
1.59 MTA shall have the meaning assigned in Section 13.6.
1.60 Net Sales shall mean the gross invoiced price for Licensed Products sold by Alcon, its Affiliates or a Marketing Partner (the Selling Party ) to independent, unaffiliated Third Parties and recognized in the accounting records of the Selling Party as sales, less the following deductions from such gross amounts: (i) normal and customary trade, cash and other quantity discounts and allowances actually allowed and taken; (ii) credits or allowances actually granted to the customer for damaged goods, returns, recalls, rebates or rejections of Licensed Products; (iii) sales, use, excise or ad valorem taxes (to the extent borne by Selling Party and separately stated on the invoice and included in the computation of gross sales); (iv) Third Party cash rebates and chargebacks related to sales of the Licensed Product, to the extent allowed and taken by such Third Party; (v) freight, insurance and other transportation and handling fees to the extent included in the invoice price; (vi) retroactive price reductions that are actually allowed or granted to and taken by Third Parties; (vii) compulsory payments and rebates directly related to the sale of Licensed Products, accrued, paid, or deducted pursuant to agreements (including, but not limited to, managed care agreements) or government regulations; and (viii) any other specifically identifiable costs or charges included in the gross invoiced sales price of such Licensed Product substantially equivalent to those listed in clauses (i) (vii) above. Only items that are deducted from Selling Partys gross sales of Licensed Product(s), as included in Selling Partys published financial statements and which are in accordance with GAAP, shall be deducted from such gross sales for purposes of the calculation of Net Sales. In the event that Alcon or its Affiliates or Marketing Partner make any adjustment to such deductions after the associated Net Sales have been reported pursuant to this Agreement, the adjustments and payment of any royalties due shall be reported with the next quarterly report.
1.60.1 Sales between or among Alcon, its Affiliates and Marketing Partners shall be excluded from the computation of Net Sales if such sales are not intended for end use, but Net Sales shall include the subsequent final sales to Third Parties by Alcon or any such Affiliates or Marketing
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Partners. A Licensed Product shall not be deemed sold if the Licensed Product is provided free of charge to a Third Party as a sample consistent with Selling Partys normal promotional and sample practices in direct support of the Commercialization of the Licensed Product. In the event that a Licensed Product is sold in combination with one or more other stand-alone products that are not Licensed Products, then the Net Sales of such combined products shall be apportioned as reasonably agreed by the Parties based on prices normally charged to Third Parties for the Licensed Product and such other products.
1.60.2 If a sale, transfer or other disposition with respect to Licensed Products involves consideration other than cash or is not at arms length, then the Net Sales from such sale, transfer or other disposition shall be calculated on the fair market value of the consideration received as agreed by the Parties.
1.61 Non-rejection shall have the meaning assigned in Section 8.3.1(b)(i).
1.62 Notifying Party shall have the meaning assigned in Section 7.4.3.
1.63 NovaCal Indemnities shall have the meaning assigned in Section 11.4.2.
1.64 NovaCal Marks shall have the meaning assigned in Section 5.6.
1.65 NovaCal Technology shall mean the NovaCal Patents and NovaCal Know-How, including without limitation any Know-How and Patents covering (i) inventions made by NovaCal in the course of performing activities under the Discovery Research Program and any Development Program, and (ii) formulations of Aganocide Compounds developed by NovaCal for use outside the Field.
1.65.1 NovaCal Know-How shall mean any and all Know-How Controlled by NovaCal during the Term that is necessary for the Development, Manufacture or Commercialization of a Licensed Product within the Field in the Territory.
1.65.2 NovaCal Patents shall mean any and all Patents Controlled by NovaCal during the Term claiming the composition or use of a Development Compound or that are otherwise necessary for the Development, Manufacture or Commercialization of Licensed Products incorporating such Development Compound, in each case within the Field in the Territory.
1.66 [***] shall mean [***].
1.67 [***] shall mean [***].
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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1.68 Other Party shall have the meaning assigned in Section 7.4.3.
1.69 Patent shall mean any of the following, whether existing now or in the future anywhere in the world: (i) any issued patent, including without limitation inventors certificates, substitutions, extensions, confirmations, reissues, re-examination, renewal or any like governmental grant for protection of inventions; and (ii) any pending application for any of the foregoing, including without limitation any continuation, divisional, substitution, continuations-in-part, provisional and converted provisional applications.
1.70 Phase II shall mean any human clinical trial where the principal purpose is to determine preliminary evidence of efficacy and safety or to establish a dose or dose range for Phase III clinical trials of a Licensed Product in a patient population that has the disease or condition being studied (for example as described in 21 C.F.R. §312.21(b) or, with respect to a jurisdiction other than the United States, a similar clinical study).
1.71 Phase III shall mean any human clinical trial that is intended to be a pivotal trial for seeking or obtaining a Marketing Approval or to otherwise establish safety and efficacy in patients with the indication being studied for purposes of filing an MAA (for example, as described in 21 C.F.R. §312.21(c), or, with respect to a jurisdiction other than the United States, a similar clinical study).
1.72 Plan shall have the meaning assigned in Section 2.4.
1.73 Post-Execution Affiliate shall have the meaning assigned in Section 7.4.3.
1.74 Prior and Subsequent shall have the meaning assigned in Section 8.3.1(d).
1.75 Prosecution and Maintenance shall have the meaning assigned in Section 9.2.1.
1.76 Regulatory Authority shall mean any federal, national, multinational, state, provincial or local regulatory agency, department, bureau or other governmental entity with authority over the Discovery, Development, Manufacture, Commercialization or other use (including the granting of Marketing Approvals) of any Licensed Product in any jurisdiction, including the FDA, European Medicines Evaluation Agency, and the Ministry of Health, Labor and Welfare in Japan.
1.77 Regulatory Filing shall mean any filing or application with any Regulatory Authority, including INDs and MAAs and authorizations, approvals or clearances arising from the foregoing, including Marketing Approvals, and all correspondence with the FDA or other relevant Regulatory Authority, as well as minutes of any material meetings, telephone conferences or discussions with the FDA or other relevant Regulatory Authority, in each case with respect to a Licensed Product.
1.78 Requesting Party shall have the meaning assigned in Section 10.4.2.
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1.79 Sub-Field Wind-Down Period shall have the meaning assigned in Section 12.5.2(b).
1.80 Subject Transaction shall have the meaning assigned in Section 7.4.3.
1.81 Supply Agreement shall have the meaning assigned in Section 6.1.5.
1.82 Term shall have the meaning assigned in Section 12.1.
1.83 Territory shall mean all countries and territories of the world.
1.84 Third Party shall mean any person or entity other than a Party or an Affiliate of a Party.
1.85 Third Party Claim shall have the meaning assigned in Section 11.4.1.
1.86 Third Party Technology shall have the meaning assigned in Section 9.5.1.
1.87 Valid Claim shall mean a claim of an issued and unexpired patent or a claim of a pending patent application within the NovaCal Patents which has not been held invalid or unenforceable by a court or other government agency of competent jurisdiction; provided, however, that if the holding of such court or agency is later reversed by a court or agency with overriding authority, the claim shall be reinstated as a Valid Claim with respect to Net Sales made after the date of such reversal.
ARTICLE 2
GOVERNANCE; COORDINATION
2.1 Coordination Committee .
2.1.1 Establishment . Promptly after the Effective Date, Alcon and NovaCal shall establish a joint, co-chaired coordination committee (the Coordination Committee ) to review and coordinate the activities of the Parties under the Agreement, including the performance of the Discovery Research Program, Development Program and the Development, Manufacture and Commercialization of Licensed Products in the Field in the Territory.
2.1.2 Responsibilities . The Coordination Committee shall be responsible for: (i) providing strategic direction to the Parties activities under the Collaboration; (ii) reviewing and monitoring such activities and the progress thereof; (iii) managing the integration and coordination of the Discovery Research Program, Development Program (including the manufacture of Development Compounds and Licensed Products) and Commercialization of the Licensed Products; (iv) facilitating access to and the exchange of information between the Parties related to the Collaboration, the Development Compounds and Licensed Products; (v) establishing subcommittees as it deems appropriate to manage specific activities under the Collaboration and resolving disputes, disagreements and deadlocks of such subcommittees; and (vi) undertaking and/or approving such other matters as are specifically provided for the Coordination under the Agreement.
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2.1.3 Membership . The Coordination Committee shall be comprised of an equal number of representatives from each of NovaCal and Alcon. Either Party may replace its respective Coordination Committee representatives at any time with prior notice to the other Party, provided that such replacement is of comparable authority and scope of functional responsibility within that Partys organization as the person he or she is replacing. Unless otherwise agreed by the Parties, the Coordination Committee shall have at least one representative with relevant decision-making authority from each Party such that the Coordination Committee is able to effectuate all of its decisions within the scope of its responsibilities. Without limiting the foregoing, each Party shall appoint one of its members to the Coordination Committee to co-chair the meetings for the Coordination Committee (each, a Co-Chair ). The Co-Chairs for the Coordination Committee shall (i) coordinate and prepare the agenda and ensure the orderly conduct of the Coordination Committees meetings, (ii) attend (subject to below) each meeting of the Coordination Committee, and (iii) prepare and issue minutes of each meeting within ten (10) business days thereafter accurately reflecting the discussions and decisions of the Coordination Committee. Such minutes from each Coordination Committee meeting shall not be finalized until the applicable Co-Chair from each Party has reviewed and confirmed the accuracy of such minutes in writing. The Co-Chairs shall solicit agenda items from the other Coordination Committee members and provide an agenda along with appropriate information for such agenda reasonably in advance (to the extent possible) of any meeting. It is understood that such agenda will include all items requested by either Co-Chair for inclusion therein. In the event the Co-Chair or another member of the Coordination Committee from either Party is unable to attend or participate in any meeting of the Coordination Committee, the Party who designated such Co-Chair or member may designate a substitute Co-Chair or other representative for the meeting.
2.2 Meetings . Unless otherwise agreed by the Parties, the Coordination Committee will meet at least quarterly during the Funding Term, and thereafter, the Coordination Committee will meet at least semiannually, in each case with at least one such meeting annually being face-to-face. Each Party shall be responsible for its own expenses relating to such meetings. As appropriate, other employee representatives of the Parties may attend Coordination Committee meetings as nonvoting observers, but no Third Party personnel may attend unless otherwise agreed by the Parties. Each Party may also call for special meetings to resolve particular matters requested by such Party.
2.3 Decision Making .
2.3.1 Alcon shall have the final say as to all decisions of the Coordination Committee relating to the designation of Development Compounds, the Development Plan, and the Commercialization Plan, as provided in Sections 3.4, 4.2 and 5.2 hereof, respectively. All other decisions of the Coordination Committee shall be made by consensus of the members present in person or by other means (e.g., teleconference) at any meeting, with at least one representative from each Party participating in such vote. In the event that the Coordination Committee is unable to reach consensus with respect to a particular matter, then either Party may, by written notice to the other,
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refer the matter to the respective Chief Executive Officers of the Parties or their designees for resolution by good faith discussions for a period of at least twenty (20) days. Unless the matter concerns pre-clinical or clinical development or manufacture of a Common Compound, Alcons Chief Executive Officer or his/her designee will have the right to make the final decision with respect thereto; provided that such deciding vote shall not extend to imposition of obligations on NovaCal under the Discovery Research Plan, the Development Plans or otherwise without NovaCals prior consent. If the matter concerns pre-clinical or clinical development or manufacture of a Common Compound and the Parties remain unable to resolve such dispute despite such good faith discussions, such matter shall be finally determined by binding arbitration in accordance with Section 2.3.2. Notwithstanding anything herein to the contrary, the Coordination Committee shall not have any authority to amend, modify or waive compliance with any term or condition of this Agreement.
2.3.2 Any arbitration under this Section 2.3 or as otherwise provided in this Agreement shall be conducted by Judicial Arbitration and Mediation Services ( JAMS ) in Denver, Colorado in accordance with the applicable JAMS rules by a single arbitrator selected by mutual agreement of the Parties. If the Parties are unable to agree on an arbitrator, the arbitrator shall be selected by the chief executive of the Denver office of JAMS. For purposes of this Section 2.3.2, the arbitration shall be deemed to have been initiated as of the date the arbitrator has been selected. Each Party to the arbitration shall prepare a written proposal setting forth its position with respect to the substance of the dispute. Such written proposals shall be submitted to the arbitrator and exchanged by the Parties within ten (10) days subsequent to the initiation date, or sooner if so directed by the arbitrator. Without delaying the arbitration procedures, for a period not to exceed ten (10) days, commencing as of the date the written proposals have been submitted to the arbitrator and exchanged by the Parties, the Parties shall discuss the Parties respective written proposals in good faith in an effort to resolve the matter. The arbitrator shall select one of the requested positions as her/his decision, and shall not have authority to render any substantive decision other than to so select the position of one of the Parties. If one Party does not submit to the arbitrator a written proposal setting forth its position within the time period specified above, the arbitrator shall select the other Partys position. The costs of such arbitration shall be shared equally by the Parties, and each Party shall bear its own expenses in connection with the arbitration. The Parties shall use good faith efforts to complete arbitration under this Section 2.3.2 within thirty (30) days following the initiation of such arbitration. The arbitrator shall establish reasonable additional procedures to facilitate and complete such arbitration within such thirty (30) day period. Nothing in this Agreement shall limit the right of either Party to seek to obtain in any court of competent jurisdiction any equitable or interim relief or provisional remedy, including injunctive relief.
2.4 Day-to-Day Responsibilities . Each Party shall: (i) be responsible for day-to-day implementation and operations of the Discovery, Development, Manufacturing and Commercialization activities with respect to Development Compounds and Licensed Products in the Field in the Territory for which it has or is otherwise assigned responsibility under the applicable Plan or this Agreement, provided that such decisions are not inconsistent with such Plan, other decisions of the Coordination Committee within the scope of their authority specified herein, or the express terms and conditions of this Agreement; and (ii) keep the other Party informed as to the progress of such activities, as reasonably requested by the other Party and as otherwise determined
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by the Coordination Committee. For purposes of this Agreement, Plan shall mean any of the Discovery Research Plan, Development Plan or the Commercialization Plan, in each case then-currently in effect.
2.5 Information Sharing . The Coordination Committee will act as the primary conduit for transfer and sharing between the Parties of information arising out of the Collaboration. Without limiting the foregoing, each Party will keep the other informed on a timely basis as to the plans for and results of the activities of the Collaboration. In addition, NovaCal will keep Alcon informed on a timely basis with respect to plans for and results of activities for Common Compounds outside of the Field.
2.6 Coordination .
2.6.1 General . Subject to the exclusivity of efforts obligations set forth in Section 7.4, it is understood that NovaCal (itself or through its designees) shall have the right to perform Discovery activities with respect to Aganocide Compounds, and development, manufacture and commercialization activities with respect to Aganocide Compounds and products including any Aganocide Compound, including Licensed Compounds, for applications outside of the Field at NovaCals expense. Accordingly, the Parties, through the Coordination Committee, shall use good faith efforts to coordinate the Discovery of Aganocide Compounds under the Discovery Research Program and the Development of Licensed Products hereunder (including under the Development Program) with such activities of NovaCal (and its designees) outside the Field, so as to minimize the duplication of efforts and maximize quality and effectiveness of such activities, and avoid conflicts with Development Programs. Without limiting the foregoing and in order to facilitate coordination of the development of Common Compounds both inside and outside the Field, NovaCal shall keep Alcon informed on a timely basis with respect to development plans for Common Compounds to be conducted by or under authority of NovaCal, including proposed clinical plans and protocols, and give Alcon a reasonable opportunity to review and comment upon such proposed plans and protocols. Without limiting the Parties obligations under Sections 6.2 and 6.3, NovaCal agrees to keep Alcon, through the Coordination Committee, reasonably informed of its planned discovery activities and development activities outside of the Field with respect to products incorporating Development Compounds to allow for such coordination.
2.6.2 Supplemental Activities . In view of the foregoing, each Party will consider, in good faith, a request from the other Party to supplement planned development activities for Development Compounds inside or outside of the Field, as applicable, in order to generate Data that may be of benefit inside or outside of the Field, as applicable; provided that (i) such supplemental activities are not likely to have any material adverse effect or negative impact on the Discovery Research Program or Development Program hereunder, and (ii) the Party requesting such supplemental activities agrees to reimburse the other Party for any additional costs incurred by the other Party with respect to activities outside the scope of this Agreement.
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2.6.3 Minimization of Substitutability . In order to reduce the chances that quantities of Licensed Products sold by Alcon or its Affiliates, Marketing Partners or distributors for use inside the Field will be used for any application outside the Field, and similarly that products incorporating Development Compounds sold for applications outside of the Field will be used for applications in the Field, the Parties shall work together in good faith, through the Coordination Committee to develop unique packaging, trademarks and names for Licensed Products in the Field and products containing Development Compounds outside of the Field, with the goal of reducing the risk of substitutability of Licensed Products in the Field with such products outside the Field. For clarity, nothing in this Section 2.6.3 is intended to limit or preclude any particular packaging, trademarks or names used for a Licensed Product in the Field or used for a product containing a Development Compound outside of the Field, but the Parties will use good faith in coordinating the same so as to reduce the risk of substitutability.
ARTICLE 3
DISCOVERY RESEARCH PROGRAM
3.1 Discovery Research Program . During the Funding Term, NovaCal and Alcon shall conduct a program to Discover Aganocide Compounds for Development as Licensed Products for applications in the Field on a collaborative basis and in accordance with the Discovery Research Plan (the Discovery Research Program ). The Discovery Research Program shall be coordinated by the Parties through the Coordination Committee. The Parties shall each conduct their responsibilities under the Discovery Research Program, as assigned to them under the Discovery Research Plan, throughout the Funding Term and shall use Commercially Reasonable Efforts to achieve the objectives and timelines within such Discovery Research Plan. The term of the Discovery Research Program shall commence on the Effective Date and expire on the expiration of the Funding Term; provided that the Discovery Research Program shall in all events terminate upon an earlier termination of this Agreement in accordance with Article 12.
3.2 Discovery Research Plan . The Discovery Research Program shall be carried out in accordance with a plan and budget covering the activities to be conducted by the Parties ( Discovery Research Plan ). The initial Discovery Research Plan shall be finalized by the Parties within sixty (60) days of the Effective Date, based upon the guidelines set forth in Exhibit 3.2 , and shall reference this Article 3 and this Agreement. The Discovery Research Plan shall govern the performance of the Discovery Research Program during the Funding Term, unless otherwise agreed by the Parties. The Coordination Committee shall review and update the Discovery Research Plan on an ongoing basis, but at least annually, during the Funding Term. Notwithstanding anything herein to the contrary, unless otherwise agreed by the Parties, the Discovery Research Plan shall provide for at least a number of NovaCal FTEs consistent with Alcons funding obligations under Section 8.2.
3.3 Resource Commitments . In conducting its activities under the Discovery Research Program, each Party agrees to use scientific, technical and other personnel who are sufficiently qualified and have the requisite skills to perform the research activities assigned to them. The Parties agree that NovaCal shall be primarily responsible for the activities under the Discovery Research Program.
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3.4 Designation of Development Compounds . From time to time, either Party may recommend to the Coordination Committee a particular Licensed Compound for consideration as a Development Compound for Development as a Licensed Product hereunder, based on the profile of such Licensed Compound. Upon such designation by the Coordination Committee, each such Licensed Compound so designated shall be deemed a Development Compound . Upon such recommendation to the Coordination Committee, each Party shall make available such information pertaining to the applicable Licensed Compound as the other Party may reasonably request from time to time to assist, as reasonably necessary to evaluate such Licensed Compound as a Development Compound hereunder. A Licensed Compound shall not be deemed a Development Compound unless so designated by the Coordination Committee; provided, however, if the Coordination Committee is unable to reach unanimous decision with respect to whether a particular Licensed Compound should be designated as Development Compound, then Alcons Coordination Committee Co-Chair shall have the right to designate such Licensed Compound as a Development Compound. Upon the designation of a Licensed Compound as a Development Compound, Alcon shall use Commercially Reasonable Efforts to promptly initiate activities under the Development Program therefor including proceeding to IND Enabling Studies for such Development Compound.
ARTICLE 4
DEVELOPMENT PROGRAM
4.1 Development .
4.1.1 General . For each Development Compound and subject to coordination through the Coordination Committee, Alcon shall fund, take the lead and be responsible for conducting such Development activities, including clinical trials, as may be reasonably necessary to expeditiously obtain Marketing Approvals for Licensed Products incorporating such Development Compound, for applications in the Field throughout the Territory, all in accordance with the Development Plan for such Development Compound.
4.1.2 Development Program . Without limiting the foregoing, NovaCal and Alcon shall conduct a program to Develop Licensed Products for applications in the Field on a collaborative basis and in accordance with the Development Plans (the Development Program ); provided, unless otherwise mutually agreed by the Parties, NovaCals participation in the Development Program shall be limited to the Funding Term. The Development Program shall be coordinated by the Parties through the Coordination Committee. Alcon shall fund the Development Program, including NovaCals performance of activities thereunder as provided in Section 8.2. The Parties shall each conduct their responsibilities under the Development Program, as assigned to them under the Development Plans, in accordance with good scientific and clinical practice, and in compliance in all material respects with all applicable legal requirements and regulatory standards, and shall use Commercially Reasonable Efforts to achieve the objectives and timelines within the Development Plans.
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4.2 Development Plan .
4.2.1 Establishment . The Coordination Committee shall have the responsibility for establishing a comprehensive, multi - year plan and budget for the Development of each Licensed Product in the Field in the Territory (each, a Development Plan ). The initial Development Plan for each Licensed Product shall be finalized by the Parties within three (3) months of the date the Development Compound incorporated therein is designated a Development Compound in accordance with Section 3.4, and shall reference this Article 4 and this Agreement.
4.2.2 Contents . Each Development Plan shall fully describe the proposed activities related to preclinical studies, formulation development, clinical studies, regulatory plans (including Filing of INDs and MAAs) and other Development activities and timelines directed to obtaining Marketing Approval in each country encompassed by the Development Plan. In addition, Alcon shall provide NovaCal with such information as NovaCal may reasonably request from time to time, including, for example, copies of proposed trial protocols, clinical trial analyses and reports, and material correspondence with Regulatory Authorities with respect to each Licensed Product. In any event, and without limiting the foregoing, Alcon shall provide the Coordination Committee with a copy of the clinical plan and protocols for each proposed clinical trial for a Licensed Product reasonably in advance of the initiation of such activities, for review and comment by the Coordination Committee; however, Alcon will have the final say in the design and conduct of such clinical plan and clinical trials. Notwithstanding anything herein to the contrary, unless otherwise agreed by the Parties the Development Plans shall provide for at least a number of NovaCal FTEs consistent with Alcons funding obligations under Section 8.2.
4.2.3 Annual Review . After establishment of the initial Development Plan for a Development Compound, the Coordination Committee shall review and update such Development Plan at least annually and prior to any material modification or addition thereto, and in so doing shall consider the reasonable suggestions and comments of NovaCal with respect thereto.
ARTICLE 5
COMMERCIALIZATION OF LICENSED PRODUCTS
5.1 Commercialization . Subject to the terms and conditions of this Agreement, as between the Parties, Alcon shall have the exclusive (except as provided in Section 5.4 below) right to Commercialize Licensed Products in the Field in the Territory. Alcon shall Commercialize the Licensed Products in the Field in coordination with NovaCal through the Coordination Committee and in accordance with the Commercialization Plans. Without limiting the foregoing, Alcon agrees to use Commercially Reasonable Efforts (i) to launch Licensed Products in the Field as soon as practicable in the United States and other Major Markets, and thereafter (ii) to market, promote and sell such Licensed Products in the Field in the Territory to maximize Net Sales with respect thereto. It is understood and agreed that, except as otherwise expressly provided herein, all Commercialization efforts for the Licensed Products in the Field in the Territory shall be at the sole expense of Alcon.
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5.2 Commercialization Plan . At least eighteen (18) months in advance of the launch of each Licensed Product, Alcon shall propose an initial plan for the Commercialization of such Licensed Product in the Field in the Territory (each, a Commercialization Plan ), which Commercialization Plan shall be updated at least annually. Alcon shall provide each such Commercialization Plan and any material modification or addition thereto to the Coordination Committee for its review and comment. The Parties acknowledge that the comments of the Coordination Committee with respect to any Commercialization Plan are solely advisory in nature and that Alcon shall have the final say relative to the Commercialization Plan; nonetheless, Alcon shall consider in good faith the comments of NovaCal with respect thereto.
5.3 Alcon Marketing Partners .
5.3.1 General . Subject to the terms and conditions of this Agreement, including Section 5.3.2 below, Alcon shall have the right, at any time with respect to territories outside of the Major Markets, and with respect to the Major Markets, beginning [***] after the first commercial sale of such Licensed Product within such Major Market, to grant sublicenses under its license set forth in Section 7.1.1(a) to one or more Marketing Partners. Alcon may grant such sublicenses to Marketing Partners earlier than [***] after such first commercial sale if Alcon obtains NovaCals prior written consent, which consent shall not be unreasonably withheld.
5.3.2 Conditions . Alcon shall only have the right to grant such sublicenses pursuant to Section 5.3.1 if all of the following conditions are satisfied:
(a) Any such sublicense shall be pursuant to a written agreement that is consistent with the terms hereof and Alcon shall be responsible for the compliance of such Third Party with the applicable terms of such agreement and of this Agreement;
(b) NovaCal and Alcon mutually agree (which agreement not to be unreasonably withheld or delayed by either Party) upon the terms and conditions of such arrangement with such Third Party, including the economics and other material terms (including the use of diligent efforts) thereof; and
(c) Such Third Party is reasonably acceptable to NovaCal, which acceptance may not be unreasonably withheld or delayed.
5.4 NovaCal Co-Marketing Partners .
5.4.1 Asia .
(a) General . Subject to the terms and conditions of this Agreement, including Section 5.4.1(b) below, NovaCal will have the right to appoint one Third Party (each, a
[***] |
Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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Co-Marketing Partner ) to market each Licensed Product for applications in the Otic Sub-Field or Sinus Sub-Field in each of the Peoples Republic of China, Republic of China, South Korea, India and Japan, and such other Asian countries as NovaCal shall request and Alcon shall not unreasonably refuse (collectively, Asia ).
(b) Conditions . NovaCal shall, unless otherwise agreed by the Parties, only have the right to grant such appointments pursuant to this Section 5.4.1 if all of the following conditions are satisfied:
(i) Any such appointment of a Co-Marketing Partner shall be pursuant to a written agreement that is consistent with the terms hereof, and NovaCal shall be responsible for the compliance of such Co-Marketing Partner with the applicable terms of such agreement and of this Agreement;
(ii) Each Co-Marketing Partner will have the right to Commercialize Licensed Products under its own and NovaCals trademarks and logos but not Alcons trademarks and logos;
(iii) Each such Co-Marketing Partner shall (A) perform any Development of Licensed Products in the applicable territory in Asia in coordination with and subject to the oversight of the Coordination Committee and approval of Alcon (which approval shall not be unreasonably withheld, delayed or conditioned) and (B) agree to be responsible for [***]of all costs of the Development of such Licensed Products specific to such territory (before and after the execution of the agreement with such Co-Marketing Partner), including reimbursement of Alcon of appropriate amounts therefor;
(iv) Each such Co-Marketing Partner shall have the right to (A) use or cross-reference Alcons Regulatory Filings for such Licensed Products in such territory and (B) launch such Licensed Products simultaneously with or after Alcons launch of such Licensed Products in such territory;
(v) Each such Co-Marketing Partner (or NovaCal on its behalf) shall pay Alcon a royalty for so long as royalties are due to NovaCal for such Licensed Product under Section 8.4.5 and on terms and conditions substantially identical to those in Sections 8.4.6 8.10 ( mutatis mutandis ), and such royalty rate shall be [***] of such Co-Marketing Partners Net Sales of Licensed Product;
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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(vi) Alcon shall supply to NovaCal each such Co-Marketing Partners requirements of formulated and packaged (labeled or unlabeled, at Alcons discretion) Licensed Product in accordance with Section 6.1.3;
(vii) NovaCals co-marketing agreement with each such Co-Marketing Partner will ensure consistency and coordination of the Co-Marketing Partners marketing efforts and messages with respect to Licensed Products with that of Alcon (or its allowed designee);
(viii) The Co-Marketing Partner shall be subject to approval by Alcon, with such approval not to be unreasonably conditioned or delayed and may only be withheld if Alcon reasonably believes that NovaCals appointment of such Third Party is likely to put Alcon at a material commercial disadvantage with respect to other potential Co-Promotion Partners and provides NovaCal with reasonable written explanation of the basis for such belief within thirty (30) days of NovaCal notifying Alcon that it is contemplating such Third Party as a Co-Promotion Partner under this Section 5.4.1; and
(ix) NovaCal shall promptly provide Alcon with aggregate quarterly sales data that NovaCal receives from each Co-Marketing Partner for such Co-Marketing Partners sales of Licensed Product.
5.4.2 Underserved Markets.
(a) General . Subject to the terms and conditions of this Agreement, including Section 5.4.2(b) below, NovaCal will have the right to appoint one Co-Marketing Partner to market each Licensed Product in each Underserved Market in the Otic Sub-Field or Sinus Sub-Field. As used herein, Underserved Market shall mean, with respect to a particular Licensed Product in the Otic Sub-Field or Sinus Sub-Field, any territory in the world (other than Asia) where Alcon (itself or through its Affiliates or allowed Marketing Partners) is not committing sales and marketing resources reasonably sufficient for the promotion, marketing and sales of such Licensed Product in such Sub-Field. For such purposes, Alcons commitment of such resources and personal shall be deemed not to be reasonably sufficient if at such time Alcon has not committed at least the number and level of promotional effort of sales representatives devoted to promoting and selling such Licensed Product as other pharmaceutical companies of similar size commit to their pharmaceutical products with similar market potential, financial value, and number of potential prescribing physicians in such territory.
(b) Conditions . NovaCal shall, unless otherwise agreed by the Parties, only have the right to grant such appointments pursuant to this Section 5.4.2 if all of the following conditions are satisfied:
(i) Any such appointment of a Co-Marketing Partner shall be pursuant to a written agreement that is consistent with the terms hereof, and NovaCal shall be responsible for the compliance of such Co-Marketing Partner with the applicable terms of such agreement and of this Agreement;
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(ii) Each Co-Marketing Partner will have the right to Commercialize Licensed Products under its own and NovaCals trademarks and logos but not Alcons trademarks and logos;
(iii) Each such Co-Marketing Partner shall have the right to (A) use or cross-reference Alcons Regulatory Filings for such Licensed Products in such territory and (B) launch such Licensed Products simultaneously with or after Alcons launch of such Licensed Products in such territory;
(iv) Alcon shall supply such Co-Marketing Partners requirements of formulated and packaged (but not labeled) Licensed Product in accordance with Section 6.1.3;
(v) Each such Co-Marketing Partner (or NovaCal on its behalf) shall reimburse Alcon for Alcons development expenses applicable to such Underserved Market and pay Alcon a royalty for so long as royalties are due to NovaCal for such Licensed Product under Section 8.4.5 and on terms and conditions substantially identical to those in Sections 8.4.6 8.10 ( mutatis mutandis ), and such royalty rate shall be [***] of such Co-Marketing Partners Net Sales of Licensed Product.
(vi) NovaCals co-marketing agreement with such Co-Marketing Partner will (A) not allow such Co-Marketing Partner to perform Development with respect to any Licensed Product, except as overseen by the Coordination Committee and approved by Alcon (which approval shall not be unreasonably withheld, conditioned or delayed); and (B) ensure consistency and coordination of its marketing efforts and messages with respect to Licensed Products with that of Alcon (or its allowed designee) in the applicable territory;
(vii) The Co-Promotion Partner shall be subject to approval by Alcon, with such approval not to be unreasonably conditioned or delayed and may only be withheld if Alcon reasonably believes that NovaCals appointment of such Third Party is likely to put Alcon at a material commercial disadvantage with respect to other potential Co-Promotion Partners and provides NovaCal with reasonable written explanation of the basis for such belief within thirty (30) days of NovaCal notifying Alcon that it is contemplating such Third Party as a Co-Promotion Partner under this Section 5.4.2; and
(viii) NovaCal shall notify Alcon in advance of NovaCals intent to appoint any such Co-Marketing Partner and afford Alcon [***] to agree in writing to commit sufficient sales and marketing resources within the applicable territory so that it would no longer qualify as an Underserved Market.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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5.5 Cooperation and Consultation . Each Party agrees to cooperate and consult with the other Party in good faith, at such other Partys request, with respect to the activities contemplated in Sections 5.3 or 5.4, as applicable.
5.6 NovaCal Logo . Alcon hereby agrees to the extent allowable under applicable law to include on all labels of and package inserts and marketing materials for Licensed Product(s) sold by or under authority of Alcon to include NovaCals trade name and logo (collectively, the NovaCal Marks ). It is understood that such inclusion (including the size and placement) of the NovaCal Marks shall be consistent with Alcons past practices for similarly situated Third Party logos. Accordingly, NovaCal hereby grants to Alcon a non-exclusive, royalty-free license to use the NovaCal Marks solely in connection with the marketing, promotion and sale of the Licensed Product(s) in the Field hereunder. Alcon shall ensure that use of the NovaCal Marks is consistent with high levels of business professionalism and product quality and reasonable written guidelines provided from time to time by NovaCal. All ownership and goodwill arising out of the use of the NovaCal Marks shall vest in and inure solely to the benefit of NovaCal. Notwithstanding anything herein to the contrary, upon NovaCals written request, Alcon, its Affiliates and Marketing Partners agree to cease the use of the NovaCal Marks; provided (i) that Alcon, its Affiliates and Marketing Partners may continue to use any labels, package inserts and marketing materials in existence as of the receipt of such notice and (ii) in such case Alcons obligation to include the NovaCal Marks on labels, package inserts and marketing materials for Licensed Product(s) shall terminate.
ARTICLE 6
MANUFACTURING AND SUPPLY, REGULATORY & OTHER MATTERS
6.1 Manufacturing and Supply .
6.1.1 Development Compounds . Unless otherwise agreed by the Parties, NovaCal shall have the right and responsibility (itself or through one or more Third Parties) for manufacturing and supplying Development Compounds to Alcon for use in all Development activities up through the initiation of the first Phase II clinical trial for a Licensed Product in the Field incorporating such Development Compound.
(a) Subject to the foregoing provisions of this Section 6.1.1, if such Development Compound is a Common Compound, then NovaCal shall have the right and responsibility (itself or through one or more Third Parties) to manufacture and supply such Development Compound to Alcon for use in all other Development activities as well as all Commercialization activities hereunder; provided that Alcon shall reimburse NovaCal for [***] of
[***] |
Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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the costs associated with process development, scale-up, quality assurance and quality control testing and monitoring, stability studies, qualification, validation and other similar activities with respect to the manufacture of such Development Compound, such costs to be verified by audit at Alcons election and expense. In the event such NovaCal costs are audited and the audit reveals that such costs were overstated by more than ten percent (10%), then the audit expenses shall be paid by NovaCal.
(b) Subject to the foregoing provisions of this Section 6.1.1, if such Development Compound is not a Common Compound, Alcon shall have the right and responsibility (itself or through one or more Third Parties) to manufacture and supply such Development Compound for use in all other Development activities as well as all Commercialization activities hereunder.
(c) For clarity, NovaCal shall not have any obligation to supply or have supplied any GMP material for a Licensed Compound unless and until such time as such Licensed Compound has been designated a Development Compound in accordance with Section 3.4 above.
6.1.2 Licensed Products . In all events, Alcon shall have a right and the responsibility to Manufacture (itself or through one or more Third Parties) any Licensed Product (i.e., formulate or compound the Development Compound and otherwise produce the final dosage forms thereof) in the Field, for use in its Development and Commercialization activities in the Field under this Agreement.
6.1.3 Supply by Alcon .
(a) If Alcon is manufacturing or having manufactured any Licensed Product, then, upon request by NovaCal, Alcon will manufacture or have manufactured, to the extent Alcon has unallocated capacity therefor or right to order (or NovaCal agrees to reimburse Alcon to establish such additional capacity), and supply such Licensed Product for use by NovaCal (or NovaCals Co-Marketing Partners) in accordance with this Agreement.
(b) If Alcon is manufacturing or having manufactured any Development Compound, then, upon request by NovaCal, Alcon will manufacture or have manufactured, to the extent Alcon has unallocated capacity therefor or right to order (or NovaCal agrees to reimburse Alcon to establish such additional capacity), and supply such Development Compound for use by NovaCal (or NovaCals Co-Marketing Partners) in accordance with this Agreement and for use outside of the Field.
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(c) For the avoidance of doubt, Alcons obligation to supply Development Compound or Licensed Product under this Section 6.1.3 does not apply to NovaCals (or its Third Party partners) pursuit of an Identified Opportunity pursuant to Sections 7.2.1(b) or 7.2.1 (c), and Alcons obligation to supply Licensed Products under subparagraph (a) above is only applicable to the Field.
6.1.4 Transfer Price .
(a) The transfer price of Development Compounds supplied by either Party pursuant to this Section 6.1 will be equal to (i) the supplying Partys Manufacturing Cost therefor with respect to supplies to be used for development and other non-commercialization activities and (ii) the supplying Partys Manufacturing Costs therefor plus [***] with respect to supplies to be used for commercialization activities.
(b) The transfer price of Licensed Products supplied by either Party pursuant to this Section 6.1 will be equal to (i) the supplying Partys Manufacturing Cost therefor with respect to supplies to be used for development and other non-commercialization activities and (ii) the supplying Partys Manufacturing Costs therefor [***] with respect to supplies to be used for commercialization activities.
For purposes of this Agreement, Manufacturing Cost has the meaning as set forth in Exhibit 6.1.4 .
6.1.5 Supply Agreement . Upon request by either Party, the Parties shall use good faith efforts to promptly negotiate and execute a definitive supply agreement setting forth the specific terms and conditions of any supply arrangement between the Parties pursuant to this Section 6.1 (each, a Supply Agreement ). Each Supply Agreement shall (i) contain reasonable and customary supply terms (e.g., specifications, forecasts, lead times, purchase obligations and the like), (ii) be consistent with the terms hereof, and (iii) include the other terms and conditions set forth in Exhibit 6.1.5 .
6.1.6 Coordination . Each Party agrees to reasonably cooperate with the other with regard to the manufacture and supply of Development Compounds hereunder so as to minimize costs associated therewith, including when approaching Third Parties regarding potentially acting as a contract manufacturer for one or more Development Compounds. Upon either Partys reasonable request, the Parties shall discuss and cooperate in good faith to provide for alternate or additional Third Party contract manufacturers to support the fulfillment of its supply obligations hereunder.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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6.2 Regulatory Matters .
6.2.1 Filings .
(a) As between the Parties, Alcon shall take the lead and be responsible for, at its expense, filing, obtaining and maintaining approvals for Development, Manufacturing and Commercialization of Licensed Products in the Field in the Territory, including any IND, MAA or Marketing Approval therefor; provided that NovaCal shall be responsible for filing, obtaining and maintaining permits and approvals with respect to its supply of Development Compounds pursuant to Section 6.1, and Alcon shall be responsible for filing, obtaining and maintaining permits and approvals with respect to its manufacture and supply of Development Compounds and Licensed Products pursuant to Section 6.1. Notwithstanding the foregoing, Alcon shall afford representatives of NovaCal a reasonable opportunity to comment on Regulatory Filings for such Licensed Product, and shall reasonably consider such comments.
(b) To the extent not prohibited by applicable laws, rules or regulations, Alcon shall own all Regulatory Filings filed by or on behalf of it for Licensed Products in the Field in the Territory. Each Party shall promptly provide the other Party with reasonable advance notice (to the extent practicable) of meetings with the FDA or other relevant Regulatory Authority that pertain to Licensed Products in the Field.
6.2.2 Clinical Safety Reporting; Pharmacovigilance . With respect to any Adverse Drug Reaction, IND safety report or similar obligation to report to any Regulatory Authority relating to any safety issue with respect to Licensed Products in the Field, Alcon shall be responsible for and shall establish operating procedures to report to the appropriate Regulatory Authority(ies) all such matters in accordance with applicable laws, rules and regulations. Such operating procedures shall include any measures necessary for each Party to fully comply with such laws, rules and regulations. Such operating procedures and any material revisions to them shall be provided to the Coordination Committee for review and comment. The Parties agree to implement prior to the initiation of the first clinical trial for a Licensed Product in the Field, a separate agreement setting forth the responsibilities and procedures for clinical safety information exchange and reporting. In addition, the Parties agree to implement prior to the first launch of a Licensed Product in the Field, a separate agreement setting forth the pharmacovigilance responsibilities and procedures for safety information exchange and reporting. Such agreements shall include provisions requiring each Party promptly communicate to the other Party any correspondence related to the safety of Licensed Products in the Field to or from any Regulatory Authority. Such agreements shall also include coordination of reporting and correspondence related to safety matters with respect to products incorporating Development Compounds for applications outside of the Field. Without limiting the foregoing, the strategy and content of all responses to any questions from any such Regulatory Authority related to such matters received by either Party shall be subject to review and comment by the Coordination Committee (to the extent practical given the time-frames involved).
6.2.3 Cooperation . Each Party agrees to make its personnel reasonably available, upon reasonable notice to the other Party, at their respective places of employment to consult with the other Party on issues arising related to the activities conducted in accordance with this Section 6.2 or otherwise relating to regulatory matters involving the Licensed Products in the Field including any request from any Regulatory Authority, including regulatory, scientific, technical and clinical testing issues, or otherwise, throughout the Term. Without limiting the foregoing or Section 6.3 below, each
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Party (the Enabling Party ) agrees to cooperate with the other (the Filing Party ), at its request, to comply with specific requests of any Regulatory Authority (such as requests to inspect clinical trial sites), with respect to Data supplied or to be supplied by the Enabling Party to the Filing Party for filing with such Regulatory Authority, or with respect to Development Compounds supplied by the Enabling Party. The Enabling Party shall ensure that its contractors likewise comply with this Section 6.2.3. In this regard, the Enabling Party agrees to provide to applicable Regulatory Authorities, or provide reference rights to the Filing Party, Manufacturing data (including such information as is required for the CMC section of an IND or NDA, or a drug master file) specifically requested by the Filing Party, which is reasonably necessary for the Filing Party to obtain, proceed towards and/or maintain Regulatory Approval for the Licensed Products worldwide.
6.3 Transfer of Data and Regulatory Filings . From time to time, or upon reasonable request, each Party shall transfer to the other Party all previously undisclosed Data and Regulatory Filings relating to the Licensed Products that are Controlled by it, provided that NovaCal and Alcon shall have the right to redact any proprietary information that is not NovaCal Technology or Alcons proprietary technology, respectively, therefrom. Without limiting the foregoing, each Party shall have the right to (and authorize permitted Third Parties to) access, use and reference the other Partys Data and reference the other Partys Regulatory Filings for Development Compounds or Licensed Products for purposes of performing activities under the Collaboration, and with respect to NovaCal, for purposes of NovaCal (or subject to Sections 7.1.3 and 7.2 NovaCals designees) performing activities outside the Field, including the right to file such items with Regulatory Authorities. Each Party shall provide the other with such assistance as the other Party reasonably requests from time to time, to enable such other Party to fully understand and implement the Data and Regulatory Filings transferred under this Section 6.3. Notwithstanding anything herein to the contrary, in all agreements with Third Parties or Affiliates involving Data, NovaCal and Alcon, respectively, shall require that such Third Parties and Affiliates provide the other Party access to all such Data, to the extent reasonably necessary to fulfill its obligations or exercise the rights granted to it hereunder.
ARTICLE 7
LICENSES AND EXCLUSIVITY
7.1 License Grants .
7.1.1 To Alcon .
(a) Subject to the terms and conditions of this Agreement, including Section 6.1, NovaCal hereby grants to Alcon, an exclusive (except as otherwise provided in and subject to Section 5.4) license under the NovaCal Technology to Develop, Manufacture and Commercialize Licensed Products, in each case solely for applications in the Field in the Territory. The license granted under this Section 7.1.1(a) shall not include the right to sublicense (except to a Marketing Partner as provided in Section 5.3 or to an Affiliate); provided, however, that the use by Alcon of subcontractors shall not be construed as a sublicense. Alcon shall have the right to exercise such license through its Affiliates solely for as long as such entity remains an Affiliate of Alcon, and Alcon shall remain responsible for the compliance of such Affiliate with the applicable terms of this Agreement.
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(b) Additionally subject to the terms and conditions of this Agreement, NovaCal hereby grants to Alcon a non-exclusive license to make, use and otherwise exploit subject matter within the NovaCal Technology to the extent necessary to conduct the activities assigned to Alcon under the Discovery Research Plan or otherwise cooperate with NovaCal hereunder. The license granted under this Section 7.1.1(b) shall not include the right to sublicense; provided, however, that the use by Alcon of subcontractors or delegation of responsibilities to an Affiliate shall not be construed as a sublicense.
7.1.2 To NovaCal .
(a) Subject to the terms and conditions of this Agreement, Alcon hereby grants to NovaCal a non-exclusive license to make, use and otherwise exploit subject matter within the Know-How and Patents Controlled by Alcon to the extent necessary to conduct the activities assigned to NovaCal under the Discovery Research Plan and Development Plan or otherwise cooperate with Alcon hereunder. The license granted under this Section 7.1.2(a) shall not include the right to sublicense; provided, however, that the use by NovaCal of subcontractors or delegation of responsibilities to an Affiliate shall not be construed as a sublicense.
(b) Additionally, subject to the terms and conditions of this Agreement, Alcon hereby grants to NovaCal a non-exclusive, worldwide, license, to make, use, sell, offer for sale, import and otherwise exploit products incorporating Licensed Compounds for applications outside the Field (as may be modified as a result of Section 12.2) under Know-How and Patents Controlled by Alcon related to such Licensed Compounds (including formulations and methods of manufacture thereof). Prior to the exercise of such license with respect to particular Know-How or Patents Controlled by Alcon, NovaCal shall provide written notice to Alcon. Upon such notice, the Parties shall negotiate in good faith the consideration to be paid by NovaCal for each such license; provided that the consideration payable to Alcon for each such license pursuant to this Section 7.1.2(b) shall not exceed [***] of net sales of products covered by the subject Patents or incorporating the subject Know-How outside the Field and shall not exceed [***] for all such licenses. Notwithstanding the foregoing, NovaCal shall not have the right to exercise the licenses granted pursuant to this Section 7.1.2(b) with respect to Know-How or Patents in a manner that can reasonably be expected to (i) create a risk of substitutability of the type contemplated in Section 2.6.3 hereof, or (ii) otherwise compete with Alcon products in the ophthalmic, otic and nasal fields.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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7.1.3 Non-human Indications . Alcon acknowledges that the Field does not include applications for non-human species; however, nothing in this Agreement will prevent (a) Licensed Product indicated for human use to be sold and used in other species, and (b) NovaCal from granting rights for use of the Aganocide Compounds to a Third Party in any and all non-human indications. For clarity, except as otherwise required by applicable law, rule or regulation, or by any Regulatory Authority, NovaCal will not have the right to use any Data or Regulatory Filings developed or provided by Alcon hereunder in connection with the development of any products incorporating Aganocide Compounds for use in non-human indications where such products would be in the Field if such indications were human indications or otherwise to support the filing or maintenance of Regulatory Filings with respect thereto.
7.1.4 No Other Active Ingredients . For clarity, it is understood that (i) the licenses granted to Alcon under Section 7.1.1 shall only apply to Licensed Products incorporating Development Compound(s) alone or in combination with one or more active ingredients (which are not Development Compounds), provided that such license shall not include any license to such active ingredients themselves; and (ii) the licenses granted to NovaCal under Sections 7.1.2(b), 12.5.1(d), and 12.5.2(d) shall only apply to products that contain any Licensed Compound(s) alone or in combination with one or more other active ingredients (which are not Licensed Compounds), provided that such license shall not include any license to such active ingredients themselves.
7.2 Identified Opportunities .
7.2.1 Alcon or NovaCal may identify to the Coordination Committee specific proposed applications of a Licensed Compound within the Field (other than the use of a Licensed Product for the prevention or treatment of infections) (each, an Identified Opportunity ). The Coordination Committee shall evaluate each such Identified Opportunity and determine in writing within sixty (60) days of the date such Identified Opportunity is first identified to it, whether it agrees that the subject Identified Opportunity justifies an investigation on the part of Alcon. If Alcon agrees that subject Identified Opportunity justifies an investigation on the part of Alcon, then NovaCal will provide reasonably sufficient quantities (as determined by the Coordination Committee) of the applicable Licensed Compound(s) to enable Alcon to evaluate the Identified Opportunity, and Alcon will have a reasonable period of time (as determined by the Coordination Committee, but in no event more than [***] following the first receipt of such Licensed Compound(s) from NovaCal or such other period as may be mutually agreed between the Parties through the Coordination Committee) (the Evaluation Period ) to use Commercially Reasonable efforts to evaluate such Identified Opportunity.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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(a) If Alcon (i) through the Coordination Committee does not agree that the subject Identified Opportunity justifies an investigation, (ii) notifies NovaCal within the Evaluation Period that Alcon is not interested in pursuing Development and Commercialization of the subject Identified Opportunity hereunder, or (iii) fails to provide any notification to NovaCal as to Alcons interest prior to the end of the Evaluation Period, then, upon written notification from NovaCal to the Coordination Committee, such Identified Opportunity shall be excluded from the Field for all purposes of the Agreement, and NovaCal shall be free to develop and commercialize, alone or with a Third Party partner, Licensed Products for that particular Identified Opportunity; provided that NovaCal or its Third Party partner shall not have the right to use any Patents or Know-How Controlled by Alcon (unless jointly owned by NovaCal as provided in Section 9.1.1) or, except as otherwise required by applicable law, rule or regulation, or by any Regulatory Authority, have the right to use any Data or Regulatory Filings developed or provided by Alcon hereunder in connection with the development of any pharmaceutical product incorporating an Aganocide Compound for such Identified Opportunity or otherwise to support the filing or maintenance of Regulatory Filings with respect thereto.
(b) If Alcon notifies NovaCal that it is interested in pursuing the Development and Commercialization of the applicable Identified Opportunity prior to the expiration of the Evaluation Period, then Alcon shall have up to [***] following such notice to determine its commercial interest and to agree upon commercial terms and diligence requirements with NovaCal for the further Development and Commercialization of Licensed Products for such Identified Opportunity, subject to the provisions of subparagraph (c) below, and the following shall apply:
(i) The Parties shall negotiate in good faith one or more milestone payments and a royalty that shall be appropriate for the particular Identified Opportunity, which milestone payment(s):(A) shall not exceed, in total, [***] of the total of the amounts described in Section 8.3 for the applicable Sub-Field and (B) shall be [***] relative to said Sub-Field. For clarity, the total, aggregate amounts payable to NovaCal as milestone payments for all applications in a particular Sub-Field shall not exceed [***], regardless of the number of applications pursued by Alcon in that Sub-Field (i.e., if the particular Identified Opportunity is developed by Alcon before the first anti-infective Licensed Product in the applicable Sub-Field, any negotiated milestone payments for that Identified Opportunity paid by Alcon to NovaCal shall be [***]).
(ii) In the case of a Licensed Product for an Identified Opportunity consisting solely of a contact lens solution (i.e., a non-pharmaceutical indication): (A) the milestone shall be the earlier of submission to the FDA of an application to market a Licensed Product for such Identified Opportunity or the first commercial launch of such Licensed Product in the United States for such Identified Opportunity, and the [***] with respect thereto shall be [***]; provided that, if
[***] |
Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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any event substantially equivalent to such milestone is achieved in any jurisdiction outside of the United States prior to achievement of such milestone in the United States, Alcon shall pay to NovaCal [***] of such milestone payment at such time, with the remaining [***] payable to NovaCal upon the achievement of such milestone in the United States; and (B) the royalty rate for a Licensed Product for such Identified Opportunity shall be equal to [***] of Net Sales of such Licensed Product.
(iii) In the case of a Licensed Product for an Identified Opportunity incorporating a Licensed Compound solely as a preservative, the royalty rate shall be negotiated in good faith by the Parties as specified in subsection (i) above, but in no event exceed [***] of Net Sales of such Licensed Product.
(iv) In the case of Licensed Products for an Identified Opportunity other than those described in subsections (ii) and (iii) above, the royalty rate shall be negotiated in good faith by the Parties, but in no event exceed [***] of Net Sales of such Licensed Product.
(v) If after such [***] period, the Parties cannot agree upon the commercial terms and diligence requirements for the further Development and Commercialization of a particular Identified Opportunity hereunder, NovaCal shall have the right to give written notice to Alcon and such Identified Opportunity shall be excluded from the Field for all purposes of the Agreement, and NovaCal shall be free to develop and commercialize, alone or with a Third Party partner, Licensed Products for that particular Identified Opportunity; provided that NovaCal or its Third Party partner shall not, except as otherwise required by applicable law, rule or regulation, or by any Regulatory Authority, have the right to use any Patents or Know-How Controlled by Alcon (unless jointly owned by NovaCal as provided in Section 9.1.1), or any Data or Regulatory Filings developed or provided by Alcon hereunder in connection with the development of any pharmaceutical product incorporating an Aganocide Compound for such Identified Opportunity or otherwise to support the filing or maintenance of Regulatory Filings with respect thereto.
(c) Notwithstanding the foregoing, Alcon shall not be obligated to pursue Development of more than [***] Identified Opportunities in each Sub-Field at the same time. In the event Alcon is already engaged in the Development of [***] Identified Opportunities in a Sub-Field as of the expiration of the [***] period specified in subparagraph (b) above, said [***] period shall be tolled until such time as Alcons existing Development efforts with respect to [***] such Identified Opportunity in the applicable Sub-Field have either been completed or abandoned.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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7.3 No Other Rights . Each Party acknowledges that the rights and licenses granted under this Article 7 and elsewhere in this Agreement are limited to the scope expressly granted. Accordingly, except for the rights expressly granted under this Agreement, no right, title, or interest of any nature whatsoever is granted whether by implication, estoppel, reliance, or otherwise, by either Party to the other Party. All rights with respect to Know-How, Patent or other intellectual property rights that are not specifically granted herein are reserved to the owner thereof.
7.4 Exclusivity of Efforts .
7.4.1 Alcon . During the Exclusivity Period, Alcon shall not conduct, participate in or sponsor, directly or through any Affiliate of Alcon, either alone or with any Third Party, any activities directed toward the discovery, development or commercialization of any Aganocide Compound, except in each case pursuant to the Discovery Research Program, Development Program or as a Licensed Product in accordance with the terms of this Agreement.
7.4.2 NovaCal . During the Exclusivity Period, NovaCal shall not conduct, participate in or sponsor, directly or through any Affiliate of NovaCal, either alone or with any Third Party, any activities directed toward the discovery, development or commercialization of any Aganocide Compound for any application in the Field, except in each case pursuant to the Discovery Research Program, Development Program or as a Licensed Product in accordance with the terms of this Agreement.
7.4.3 Post Effective Date Affiliates . In the event a Party enters into any transaction (a Subject Transaction ) whereby a Third Party that is engaged in activities that are prohibited under Section 7.4 above (such activities, a Competing Program ) becomes an Affiliate of such Party after the Effective Date (such Affiliate, a Post-Execution Affiliate ), then such Party (the Notifying Party ) shall provide notice to the other Party (for purposes of this Section 7.4.3, the Other Party ), within five (5) business days of the closing of the Subject Transaction, specifying the identity of the Post-Execution Affiliate and describing in reasonable detail, to the extent permitted by law and without disclosing any proprietary information, the Competing Program and its focus. Such notice shall also state whether the Notifying Party elects to: (i) include all or part of the Competing Program within the activities under this Agreement on the terms and conditions herein, (ii) Divest all or any portion of the Competing Program not so included within the activities under the Agreement; or (iii) keep separate all or any portion of the Competing Program not so included within the activities under the Agreement (if the Notifying Party does not include all of the Competing Program within the activities under this Agreement, the portion of such Competing Program not so included shall be Divested under subsection (ii) or kept separate under subsection (iii)); provided that:
(a) the Notifying Party shall not have the right to make the election under clause (iii) above if twenty percent (20%) or more of the Post-Execution Affiliates business consists of the Competing Program (as measured by percentage of research and development spend or revenue with respect to the Competing Program when compared to the other assets of the Post-Execution Affiliates business), or
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(b) in the event of the Notifying Party elects the option described in clause (iii), then (I) the Notifying Party shall not have the right to exercise any of its rights or fulfill any of its obligations hereunder through such Post-Execution Affiliate, (II) such Post-Execution Affiliate shall not receive any license or other right under the NovaCal Technology or Data for any application in the Field, (III) the Other Party shall not have any license under any Patents or Know-How controlled by the Post-Execution Affiliate that was not licensed to the Other Party prior to the Subject Transaction, (IV) the Notifying Party shall maintain capacity and resources at least equivalent to those that were applied by the Notifying Party to activities under the Agreement or that are reasonably necessary for the Notifying Party to fulfill its obligations hereunder, to the extent the Notifying Party was required to maintain such capacity and resources had the Subject Transaction not occurred, and (V) the Notifying Party shall use its best efforts to put procedures in place to separate its activities under this Agreement and the Competing Program including preventing any disclosure of the Confidential Information of the Other Party to the Post-Execution Affiliate and to prevent receipt or use for activities under the Agreement of any technology or proprietary information of the Post-Execution Affiliate.
(c) For purposes of this Section 7.4.3, Divest shall mean, with respect to a Competing Program, (x) the sale, license (exclusive in the Field) or other transfer of all of the right, title and interest in and to such Competing Program in the Field, including all technology, intellectual property and other assets relating solely thereto, to an independent Third Party (other than the Post-Execution Affiliate), without the retention or reservation of any rights, license or interest (other than solely an economic interest) within the Field by the Notifying Party or Post-Execution Affiliate in such Competing Program and (y) the complete shut down of the Competing Program such that no technology, intellectual property or other asset relating thereto is used by the Notifying Party or its Affiliates and delivery of written confirmation from the Notifying Party to the Other Party that the Notifying Party and its Affiliates covenant not to use any technology, intellectual property and assets solely relating to such Competing Program during the Exclusive Period.
7.5 Use of NovaCal Technology . Notwithstanding Section 7.1 above, Alcon agrees not to use any NovaCal Technology to research (including Discover), develop or commercialize Aganocide Compounds, other than as a Licensed Product under this Agreement; nor shall Alcon use any NovaCal Technology for any other purpose.
7.6 Conflicts of Interest . In carrying out its responsibilities under the Collaboration, each Party agrees to act in the best interests of the Licensed Products. Without limiting the foregoing, if Alcon or its Affiliate or Marketing Partner sells a Licensed Product to a Third Party to whom it also provides other products or services, Alcon or such Affiliate or Marketing Partner (as applicable) shall not price, discount or otherwise offer (including bundling) the Licensed Product in any way that benefits such other products or services at the expense of such Licensed Product or otherwise disadvantage the Licensed Products. Similarly, if a NovaCal Co-Marketing Partner sells a Licensed Product to a Third Party to whom it also provides other products or services, such Co-Marketing Partner shall not price, discount or otherwise offer (including bundling) the Licensed Product in any way that benefits such other products or services at the expense of such Licensed Product or otherwise disadvantage the Licensed Products. In all events, Alcon and its Affiliates and Marketing Partners and NovaCals Co-Marketing Partners shall price and offer Licensed Products sold by it hereunder in a manner consistent with standard practices in the pharmaceutical industry.
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ARTICLE 8
PAYMENTS
8.1 Technology Access Fee . Within ten (10) business days after the Effective Date, Alcon shall pay to NovaCal a technology access fee of [***], of which: [***] is attributable for the rights granted to Alcon hereunder in the Ophthalmic Sub-Field, [***] is attributable for the rights granted to Alcon hereunder in the Otic Sub-Field, and [***] is attributable for the rights granted to Alcon hereunder in the Sinus Sub-Field. Such technology access fee shall be non-refundable, and shall not be creditable (except as otherwise provided in Section 12.5.2) against any other amount due hereunder.
8.2 Alcon Funding .
8.2.1 FTE Funding .
(a) Alcon agrees to fund during each year of the Funding Term, the number of NovaCal FTEs specified in the Discovery Research Plan and Development Plans, but no less than the number of NovaCal FTEs set forth in Exhibit 8.2 during the applicable calendar year under the Discovery Research Program and the Development Programs collectively. Effective beginning with the calendar year 2007, the FTE Rate shall increase no more than once annually on January 1 of each year by the percentage increase, if any, in (A) salaries as reported for the current fiscal year by Radford Surveys Quarterly Salary Increase Trend Survey (QSIT)Biotechnology Edition Base Salary Increase Analysis for Exempt Employees (Current Fiscal Year Actual (Undiluted) Overall Increases Combined), or (B) the Consumer Price Index, for All Urban Consumers for the San Francisco Bay Area, as published by the U.S. Department of Labor, Bureau of Labor Statistics, in each case whichever increase is higher since the last such increase under this Section 8.2.1(a) (or in the case of the first such increase, the Effective Date) and such increase shall be effective on a going-forward basis for the then-current and all subsequent Discovery Research Plans and Development Plans hereunder until further modified under this Section 8.2.1(a). Notwithstanding anything herein to the contrary, NovaCal shall not have any obligation to perform any activities under the Discovery Research Plan or any Development Plan or incur any expenses with respect thereto if such activities are not funded by Alcon under this Section 8.2 or are to be performed after the expiration of the Funding Term.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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(b) During January and July of each calendar year during the Funding Term, Alcon shall pay to NovaCal an amount equal to one-half of the product of the FTE Rate times the number of NovaCal FTEs specified in the then-current Discovery Research Plan and Development Plans. Unless otherwise specified in the Discovery Research Plan or a Development Plan, FTE numbers budgeted for the full year will be deemed budgeted in equal amounts for each calendar quarter during such year. Notwithstanding the foregoing, Alcon shall pay within ten (10) days of the Effective Date a prorated amount for the period from the Effective Date until December 31, 2006. In addition, the last calendar quarter during the Funding Term shall be appropriately prorated.
8.2.2 Non-FTE Costs . If the Discovery Research Plan or Development Plan includes, and NovaCal agrees, that NovaCal conduct and fund any activity using Third Party resources or acquire any capital equipment, Alcon shall reimburse NovaCal for the actual amounts paid by NovaCal for such Third Party activities or capital equipment subject to production of receipts or other evidence of payment, all as pre-approved by Alcon.
8.2.3 Funding Term Extension . Alcon may extend the Funding Term for up to [***] beyond the [***] of the Effective Date (each, a Funding Term Extension ) by providing written notice to NovaCal at least six (6) months prior to the end of the then-current Funding Term. In the event that Alcon so elects to extend the Funding Term, Alcons obligation to provide FTE and other funding pursuant to this Section 8.2 shall apply to each such Funding Term Extension, unless otherwise agreed by the Parties.
8.3 Development Milestone Payments . Subject to Sections 8.3.1 and 8.3.2 below, Alcon shall pay to NovaCal the amounts set forth in the following table (each, a Milestone Payment ) upon the first achievement of the corresponding milestone event for a Licensed Product intended for the prevention or treatment of any infection (each, a Milestone Event ):
Milestone Event |
Ophthalmic
Sub-Field Milestone Payment |
Otic
Sub-Field Milestone Payment |
Sinus Sub-Field Milestone Payment |
|||
1. Non-rejection of an IND for an indication in the applicable Sub-Field |
[***] | [***] | [***] | |||
2. First initiation of a Phase III clinical trial for an indication in the applicable Sub-Field |
[***] | [***] | [***] | |||
3. First filing of an MAA in the United States for an indication in the applicable Sub-Field |
[***] | [***] | [***] | |||
4. First receipt of a Marketing Approval in the United States for an indication in the applicable Sub-Field |
[***] | [***] | [***] |
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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8.3.1 Certain Terms .
(a) If a Licensed Product intended for the treatment or prevention of any infection first achieves a milestone substantially equivalent to a Milestone Event with respect to a particular Sub-Field in a jurisdiction other than the United States prior to meeting such Milestone Event in the United States, then Alcon shall pay to NovaCal an amount equal to [***] of the applicable Milestone Payment for such Sub-Field. This Section 8.3.1(a) shall not limit in any way Alcons obligation to pay the Milestone Payment for such Milestone Event upon the achievement thereof in the United States; provided that, in such event, the amounts received by NovaCal under this Section 8.3.1(a) with respect to such Milestone Event outside of the United States will be creditable against the full Milestone Payment amount due upon the first achievement of such Milestone Event in the United States.
(b) For purposes of this Section 8.3:
(i) Non-rejection with respect to an IND shall be deemed to occur upon expiration of the period when the applicable Regulatory Authority may reject the IND or acceptance by the applicable Regulatory Authority thereof.
(ii) The initiation of a clinical trial shall be deemed to occur upon the first dosing of the first subject in such trial.
(c) It is understood that the Milestone Payments reflected under any column in the table above shall be payable whether or not Milestone Events have been paid for such Licensed Product with respect to other columns in such table.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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(d) If a subsequent Milestone Event is achieved before a prior Milestone Event ( prior and subsequent referring to a lower or higher, respectively, number corresponding to such milestone in the tables above, for e.g., Milestone Event 2 is prior to Milestone Event 3), then all such prior Milestone Events shall be deemed achieved upon achievement of the subsequent Milestone Event and become payable (if not previously paid) in accordance with this Section 8.3.
(e) Upon payment of the Milestone Payment for achievement of Milestone Event 4 with respect to a particular Sub-Field, Alcon shall have the right to credit [***] of such Milestone Payment against the royalties payable to NovaCal on Net Sales of Licensed Products in such Sub-Field recognized on or after twelve (12) months from the commercial launch of such Licensed Product in such Sub-Field in the United States, provided that no single royalty payment with respect to Licensed Products in such Sub-Field due to NovaCal hereunder may be reduced by more than [***].
(f) With respect to each Sub-Field, in the event that Milestone Event 1 is not achieved by a Licensed Product for an indication in such Sub-Field prior to the [***] of the Effective Date, unless such failure to achieve Milestone Event 1 is attributable to NovaCal, Alcon shall pay to NovaCal [***] of the Milestone Payment for Milestone Event 1 for such Sub-Field, with the remaining [***] of such payment to be payable upon the achievement of Milestone Event 1 by a Licensed Product for an indication in such Sub-Field.
(g) With respect to each Sub-Field, in the event that Milestone Event 2 is not achieved by a Licensed Product for an indication in such Sub-Field prior to the [***] of the date on which Milestone Event 1 was first achieved with respect to such Sub-Field, Alcon shall pay to NovaCal [***] of the Milestone Payment for Milestone Event 2 for such Sub-Field, with the remaining [***] of such payment to be payable upon the achievement of Milestone Event 2 by a Licensed Product for an indication in such Sub-Field; provided, however if (i) the FDA requires long-term chronic preclinical or clinical studies for such Sub-Field, (ii) the FDA requires carcinogenicity studies prior to the initiation of a Phase III clinical trial for such Sub-Field, or (iii) Development Compound raw material from a validated manufacturing process is not available to support a Phase III clinical trial for such Sub-Field for reasons outside of Alcons reasonable control, then [***] of such Milestone Payment shall be payable until the achievement of Milestone Event 2 by a Licensed Product for an indication in the Sub-Field.
8.3.2 Milestone Payment Timing . The payments set forth in this Section 8.3 shall each be due and payable to NovaCal within thirty (30) days of the achievement (or deemed achievement) of the corresponding Milestone Event set forth above. Alcon agrees to promptly notify NovaCal of its achievement of each Milestone Event.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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8.4 Royalty Payments . Alcon shall pay to NovaCal a royalty on Net Sales for each Licensed Product on a Sub-Field-by-Sub-Field basis, as follows:
8.4.1 Ophthalmic Sub-Field . With respect to Net Sales of Licensed Products labeled for applications in the Ophthalmic Sub-Field, Alcon shall pay to NovaCal a royalty equal to: [***].
8.4.2 Otic Sub-Field . With respect to Net Sales of Licensed Products labeled for applications in the Otic Sub-Field, Alcon shall pay to NovaCal a royalty equal to: [***].
8.4.3 Sinus Sub-Field . With respect to Net Sales of Licensed Products labeled for applications in the Sinus Sub-Field, Alcon shall pay to NovaCal a royalty equal to: [***].
8.4.4 Certain Terms .
(a) Notwithstanding the foregoing, if a Licensed Product is labeled for applications in multiple Sub-Fields or otherwise subject to multiple royalty rates hereunder only one royalty shall be due at the applicable highest royalty rate.
(b) Cover shall mean, with respect to any subject matter, the manufacture, use, sale, offering for sale, importation, exportation or other exploitation of such subject matter would infringe a claim of a NovaCal Patent at the time thereof. For clarity with respect to a claim within a patent application, Cover includes infringing a claim in such patent application if it were to issue as prosecuted in good faith. Covered or Covering have their correlative meanings.
8.4.5 Term of Royalties . NovaCals right to receive royalties under this Section 8.4 above shall expire on a Licensed Product-by-Licensed Product, Sub-Field-by-Sub-Field and country-by-country basis as follows:
(a) With respect to each of the United States, Japan, and any country within the European Union, upon the later to occur of (i) [***] from the first commercial sale of such Licensed Product for applications in such Sub-Field in such country, and (ii) expiration of the last to expire Patent within the NovaCal Patents Covering such Licensed Product in such country.
(b) With respect to each of all other countries in the Territory, upon the later to occur of (i) [***] from the first commercial sale of such Licensed Product for applications in such Sub-Field in the United States, and (ii) expiration of the last to expire Patent within the NovaCal Patents Covering such Licensed Product in such country.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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8.4.6 Payment/Reports . All payments under this Section 8.4 shall be due and payable within seventy-five (75) days of the last day of the calendar quarter during which the corresponding Net Sales are recognized. Together with any such payment, Alcon shall deliver a report specifying on a Licensed Product-by-Licensed Product, Sub-Field-by-Sub-Field basis: (i) total invoiced amount from sales of Licensed Products by Alcon and its Affiliates and Marketing Partners; (ii) Net Sales and (iii) total royalties payable. Notwithstanding the foregoing, if NovaCal is required by laws, rules or regulations applicable to NovaCal to report revenue or other information prior to or within fifteen (15) days of the date the reports to be provided by Alcon pursuant to this Section 8.4.6 are due, then Alcon shall cooperate in good faith with NovaCal to provide such information to permit NovaCal to comply with such laws, rules or regulations on a timely basis.
8.4.7 Competition . With respect to a given Licensed Product sold by Alcon or its Affiliates or Marketing Partners in any Sub-Field in any country, in the event that Alcon or its Affiliates or Marketing Partners experiences competition from a Third Party selling a product containing an Aganocide Compound (a Competing Product ) and if either of the conditions below exists, then Alcon and NovaCal shall negotiate in good faith a new royalty rate, if any, for the involved country:
(a) Both NovaCal and Alcon conclude that enforcement of relevant NovaCal Patents against the Competing Product is precluded by reason of invalidity or costs; or
(b) There are no NovaCal Patents Covering the Competing Product in the applicable country.
8.5 Payment Method . All payments due under this Agreement to NovaCal shall be made by bank wire transfer in immediately available funds to an account designated by NovaCal. All payments hereunder shall be made in the legal currency of the United States of America, and all references to $ or Dollars shall refer to United States dollars (i.e., the legal currency of the United States). Except as otherwise provided herein, all payments due to a Party hereunder shall be due and payable within thirty (30) days of an invoice from the other Party.
8.6 Taxes . Subject to Section 13.2, it is understood that each Party hereto is a United States entity and that all payments from one Party to the other required under this Agreement shall be made from and to a United States entity to the name or account at its designated United States address and accordingly no withholding taxes shall apply thereto.
8.7 Records . Alcon shall keep, and shall cause its Affiliates and Marketing Partners to keep, proper books of records and accounts in which full, true and correct entries (in conformity with GAAP), which shall be made for the purpose of determining the amounts payable or owed to NovaCal under this Agreement, and compliance with the other terms and conditions of this Agreement. Such books and records shall be maintained for a period of three (3) years following the end of the calendar year to which they pertain and kept reasonably accessible, and shall be made available for inspection, upon thirty (30) days written notice and not more than once in each calendar year, throughout such three (3) year period by an independent Third Party auditor selected by or
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under authority of NovaCal for such purposes, in accordance with Section 8.8 below. Once an inspection of a given calendar year is complete and any related issues resolved between the Parties, such calendar year will be closed for audit and shall not be subject to further inspection pursuant to this Section 8.7.
8.8 Inspection of Records . Alcon shall, and shall cause each of its respective Affiliates or Marketing Partners to permit, independent certified auditors to visit and inspect, during regular business hours and under the guidance of officers of the entity being inspected, and to examine the books or records and accounts of Alcon or such Affiliate or Marketing Partner to the extent relating to this Agreement and discuss the affairs, finances and accounts of Alcon or such Affiliate or Marketing Partner to the extent relating to this Agreement. Alcon or such Affiliate or Marketing Partner shall permit the independent certified public accountant (subject to obligations of confidentiality to Alcon or such Affiliate or Marketing Partner), appointed by NovaCal and reasonably acceptable to Alcon or such Affiliate or Marketing Partner, to inspect the books and records described in Section 8.7; provided that such inspection shall not occur more often than once per calendar year, unless a material error is discovered in such inspection, in which case NovaCal shall have the right to conduct an additional audit for such period. Any inspection conducted under this Section 8.8 shall be at the expense of NovaCal, unless such inspection reveals any underpayment of any amount due to NovaCal hereunder by at least ten percent (10%) for any period, in which case the full costs of such inspection shall be borne by Alcon. Any underpayment shall be paid by Alcon to NovaCal within fifteen (15) business days with interest on the underpayment at the rate specified in Section 8.9 from the date such payment was originally due.
8.9 Late Payment . Any payments or portions thereof due hereunder which are not paid when due shall bear interest, to the extent permitted by applicable law, from the date due until paid at a rate equal to the (thirty) 30 day London Inter-Bank Offering Rate (LIBOR) U.S. Dollars, as quoted in The Wall Street Journal (Eastern Edition) effective for the date on which the payment was due, plus an additional two percent (2%). This Section 8.9 shall in no way limit any other remedies available to either Party.
8.10 Currency Conversion . All amounts under this Agreement shall be payable in United States Dollars. In those cases where the amount due in United States Dollars is calculated based upon one or more currencies other than United States Dollars, such amounts shall be converted to United States Dollars using methods that are in compliance with GAAP and consistent with the financial statements of the Party making the payment.
ARTICLE 9
INTELLECTUAL PROPERTY
9.1 Ownership of Inventions .
9.1.1 General . As between the Parties, title to all inventions and other intellectual property made (i) solely by Alcon personnel in connection with this Agreement shall be owned by Alcon, (ii) solely by NovaCal personnel in connection with this Agreement shall be owned by
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NovaCal and (iii) made jointly by personnel of Alcon and NovaCal (such joint inventorship to be determined based upon U.S. patent law) in connection with this Agreement shall be jointly owned by Alcon and NovaCal. Except as expressly provided in this Agreement, it is understood that neither Party shall have any obligation to account to the other for profits, or to obtain any approval of the other Party to license, assign or otherwise exploit such jointly owned inventions or intellectual property, by reason of joint ownership thereof, and each Party hereby waives any right it may have under the laws of any jurisdiction to require any such approval or accounting .
9.1.2 Compound Improvements . Each Party agrees to promptly disclose to the other all Compound Improvements made by or under authority of such Party during the Exclusivity Period. Notwithstanding Section 9.1.1, as between the Parties, title to all Compound Improvements made by or under authority of a Party, whether alone or jointly with others, in connection with the activities conducted pursuant to this Agreement during the Exclusivity Period, shall be owned by, and are hereby assigned to, NovaCal. Otherwise, all other Compound Improvements shall be owned by Parties in accordance with Section 9.1.1. As used herein, Compound Improvement shall mean any invention or other subject matter comprising the composition of any Aganocide Compound (together with any and all intellectual property rights therein, including Patents).
9.2 Patent Prosecution .
9.2.1 NovaCal Patents . As between the Parties, NovaCal shall have the right, at its expense, to control the Prosecution and Maintenance of the NovaCal Patents using counsel of its choice. NovaCal agrees to: (i) keep Alcon reasonably informed with respect to such activities; and (ii) consult in good faith with Alcon regarding such matters, including the abandonment of any claims thereof covering the Licensed Products. If NovaCal determines to abandon any claims of a NovaCal Patent covering the Licensed Products in the Field anywhere in the Territory, then NovaCal shall provide Alcon with notice at least sixty (60) days or prior to the date such abandonment would become effective. In such event, Alcon shall have the right, at its option, to control the Prosecution and Maintenance of such claims at its own expense in NovaCals name. In the event Alcon elects to control the Prosecution and Maintenance of such claims, such claims shall not be considered Valid Claims for purposes of determining the applicable royalty rate under Section 8.4 above. For purposes of this Article 9, Prosecution and Maintenance shall mean, with respect to a Patent, the preparing, filing, prosecuting and maintenance of such Patent, as well as re-examinations, reissues, requests for Patent term extensions and the like with respect to such Patent, together with the conduct of interferences, the defense of oppositions and other similar proceedings with respect to the particular Patent; and Prosecute and Maintain shall have the correlative meaning.
9.2.2 Joint Patents . With respect to Patents claiming subject matter jointly owned by the Parties, the Parties shall Prosecute and Maintain such Patents solely as mutually agreed, on a case-by-case basis.
9.3 Defense of Third Party Infringement Claims . If any Licensed Product Manufactured, used or sold by Alcon or its Affiliates or Marketing Partners becomes the subject of a Third Partys claim or assertion of infringement of a Patent relating to the manufacture, use, sale, offer for sale or
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importation of Licensed Product in the Field, the Party first having notice of the claim or assertion shall promptly notify the other Party, and the Parties shall promptly confer to consider the claim or assertion and the appropriate course of action. Unless the Parties otherwise agree in writing, each Party shall have the right to defend itself against a suit that names it as a defendant. Neither Party shall enter into any settlement of any claim described in this Section 9.3 that adversely affects the other Partys rights or interests without such other Partys written consent, which consent shall not be unreasonably conditioned, withheld or delayed. In any event, the Parties shall reasonably assist one another and cooperate in any such litigation at the other Partys request and expense.
9.4 Enforcement . Subject to the provisions of this Section 9.4, in the event that Alcon reasonably believes that any NovaCal Patent is being infringed by a Third Party or is subject to a declaratory judgment action arising from such infringement, in each case with respect to the manufacture, use, sale, offer for sale or importation in the Territory of a product incorporating any Licensed Compound for any application within the Field (an Infringing Product ), Alcon shall promptly notify NovaCal. In such event, NovaCal shall have the initial right (but not the obligation) to enforce such NovaCal Patents with respect to such infringement, or to defend any declaratory judgment action with respect thereto (for purposes of this Section 9.4, an Enforcement Action ).
9.4.1 Initiating Enforcement Actions . In the event that NovaCal fails to initiate an Enforcement Action to enforce such NovaCal Patent against a commercially significant infringement by a Third Party in a country in the Territory, which infringement consists of the manufacture, use, sale, offer for sale or importation of an Infringing Product in the Field in such country, within ninety (90) days of a request by Alcon to initiate such Enforcement Action, Alcon may initiate an Enforcement Action against such infringement at its own expense. In such case, NovaCal shall cooperate with Alcon in such Enforcement Action at Alcons expense. The Party initiating or defending any such Enforcement Action shall keep the other Party reasonably informed of the progress of any such Enforcement Action, and such other Party shall have the right to participate with counsel of its own choice.
9.4.2 Recoveries . With respect to Enforcement Actions initiated by NovaCal in a country in the Territory, provided that Alcon agrees with such action (which agreement shall not be unreasonably withheld, delayed or conditioned), Alcon shall pay one half (1/2) of the costs and expenses (including attorneys and professional fees) incurred by NovaCal in such Enforcement Action. Any recovery received as a result of any Enforcement Action to enforce Patent Rights pursuant to this Section 9.4 shall be used first to reimburse the Parties for the costs and expenses (including attorneys and professional fees) incurred in connection with such Enforcement Action, and the remainder of the recovery shall be shared (to the extent the same represents damages from sales of Infringing Products within the Field in the Territory) equally between the Parties; provided, however, that if NovaCal initiates the Enforcement Action and Alcon does not pay one half (1/2) of the costs and expenses incurred by NovaCal therein, Alcon shall be entitled to only twenty-five percent (25%) of the net amount recovered in such Enforcement Action to the extent the same represents damages from sales of Infringing Products within the Field in the Territory; and if Alcon initiates the Enforcement Action at its own expense in accordance with this Section 9.4, any recovery received shall be used first to reimburse Alcon for the costs and expenses (including attorneys and
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professional fees) incurred in connection with such Enforcement Action, and the remainder of the recovery shall be shared as follows: Alcon shall be entitled to receive seventy-five percent (75%) of such damages and NovaCal shall retain twenty-five percent (25%) of such damages. It is understood that any recovery from an Enforcement Action, whether brought by NovaCal or Alcon, which do not represent damages from sales of Infringing Products within the Field in the Territory, shall inure solely and be paid over to NovaCal.
9.5 Third Party Technologies .
9.5.1 If after the Effective Date, NovaCal acquires or licenses from a Third Party subject matter within the NovaCal Technology ( Third Party Technology ) that is subject to payment obligations to the Third Party, then NovaCal shall so notify Alcon and the following shall apply, provided that the Third Party Technology represents additional technology that supplements the NovaCal Technology and is not intended primarily as a freedom-to-operate license or acquisition with respect to Commercialization of Licensed Compounds in the Field: the rights granted to Alcon hereunder with respect to such Third Party Technology shall be subject to Alcon promptly reimbursing NovaCal for the amounts that become owing to such Third Party by reason of the grant to or exercise by or under authority of Alcon of such rights to such Third Party Technology and Alcon shall reimburse NovaCal for a reasonable portion of any upfront fee or other similar amounts paid to acquire such Third Party Technology that is allocable to the rights granted to Alcon to such Third Party Technology hereunder. Upon request by Alcon, NovaCal shall disclose to Alcon a written description of such payment obligations. Alcon may exclude Third Party Technology from the rights granted to it hereunder by providing notice to NovaCal thereof, provided that such notice is provided prior to the exercise of any rights to such Third Party Technology by or under authority of Alcon; in such event, such Third Party Technology shall be deemed excluded from the NovaCal Patents, NovaCal Know-How and NovaCal Technology.
9.5.2 If after the Effective Date, Alcon or its Affiliates acquires or licenses from a Third Party any Know-How or Patents, required (i.e., for which there is no commercially practicable alternative) for the Development, Manufacture or Commercialization of Licensed Products ( Alcon Technology ), then Alcon shall use reasonable efforts to notify NovaCal thereof from time to time. If requested by NovaCal (whether as a result of such notice or otherwise), Alcon agrees, to the extent Alcon Controls rights outside the Field to such Alcon Technology to grant NovaCal a non-exclusive license, with the right to sublicense NovaCals Marketing Partners, to make, have made, use, sell, offer for sale and otherwise exploit such Alcon Technology in connection with activities with Licensed Compounds outside the Field, and the following shall apply: the rights granted to NovaCal hereunder with respect to such Alcon Technology shall be subject to NovaCal promptly reimbursing Alcon for the amounts that become owing to such Third Party by reason of the grant to or exercise by or under authority of NovaCal of such rights to such Alcon Technology and NovaCal shall reimburse Alcon for a reasonable portion of any upfront fee or other similar amounts paid to acquire such Third Party Technology that is allocable to the rights granted to NovaCal to such Alcon Technology hereunder, and all other terms under which Alcon acquired or licensed such Alcon Technology from such Third Party shall be passed through to NovaCal. Upon request by NovaCal, Alcon shall disclose to NovaCal a written description of such payment obligations. The Parties shall enter into a separate
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license agreement documenting such license grant and the associated terms and conditions; provided that NovaCal shall not have the right to exercise the licenses granted pursuant to this Section 9.5.2 with respect to Know-How or Patents in a manner that can reasonably be expected to (i) create a risk of substitutability of the type contemplated in Section 2.6.3 hereof, or (ii) otherwise compete with Alcon products in the ophthalmic, otic and nasal fields.
9.5.3 The obligations of NovaCal and the rights of Alcon under this Agreement shall be subject to, and limited by, any agreements pursuant to which NovaCal acquired or licensed any NovaCal Technology and if any such agreement requires that a particular provision be incorporated in a sublicense granted thereunder, such provision shall be deemed incorporated by reference herein only the extent so required and with respect to the subject matter of such agreement. Notwithstanding anything herein to the contrary, with respect to the Prosecution and Maintenance, and enforcement, of NovaCal Patents licensed by NovaCal from a Third Party, to the extent NovaCal has the right to do so, NovaCal shall cooperate with Alcon to Prosecute and Maintain and enforce such NovaCal Patents in the same manner as set forth in Sections 9.2 and 9.4 above. As between NovaCal and Alcon, any recoveries from enforcement of such NovaCal Patents licensed from a Third Party (including any amounts that NovaCal receives from the Third Party licensor as a result of such enforcement) shall be shared in accordance with Section 9.4.2, after deducting from such recoveries any amounts owed to the Third Party licensor for such enforcement; provided that any Enforcement Actions initiated by the Third Party licensor shall be deemed initiated by NovaCal for purposes of Section 9.4.2 above, and the costs and expenses incurred by NovaCal in such Enforcement Action shall include the costs and expenses reimbursed or required to be reimbursed by NovaCal to the Third Party licensor in such Enforcement Action.
9.6 Patent Marking . Alcon shall mark (or caused to be marked) all Licensed Products marketed and sold hereunder with appropriate NovaCal Patent numbers or indicia at NovaCals request to the extent permitted by law, in those countries in which such notices impact recoveries of damages or remedies available with respect to infringements of Patents.
ARTICLE 10
CONFIDENTIALITY
10.1 Confidentiality; Exceptions . Except to the extent expressly authorized by this Agreement or otherwise agreed by the Parties in writing, the Parties agree that the receiving Party shall keep confidential and shall not publish or otherwise disclose or use for any purpose other than as provided for in this Agreement any confidential or proprietary information or materials furnished to it by the other Party pursuant to this Agreement (collectively, Confidential Information ). Notwithstanding the foregoing, Confidential Information shall not be deemed to include information or materials to the extent that it can be established by written documentation by the receiving Party that such information or material:
10.1.1 was already known to or possessed by the receiving Party, other than under an obligation of confidentiality (except to the extent such obligation has expired or an exception is applicable under the relevant agreement pursuant to which such obligation was established), at the time of disclosure;
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10.1.2 was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party;
10.1.3 became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement;
10.1.4 was independently developed by the receiving Party as demonstrated by documented evidence prepared contemporaneously with such independent development; or
10.1.5 was disclosed to the receiving Party, other than under an obligation of confidentiality, by a Third Party who had no obligation to the disclosing Party not to disclose such information to others.
10.2 Authorized Use and Disclosure . Each Party may use and disclose Confidential Information of the other Party as follows: (i) under appropriate confidentiality provisions substantially equivalent to those in this Agreement, in connection with the performance of its obligations or exercise of rights granted to such Party in this Agreement; (ii) to the extent such disclosure is reasonably necessary in filing for, prosecuting or maintenance of Patents, copyrights and trademarks (including applications therefor) in accordance with this Agreement, complying with the terms of agreements with Third Parties, prosecuting or defending litigation, complying with applicable governmental regulations, filing for, conducting preclinical or clinical trials, obtaining and maintaining regulatory approvals (including Marketing Approvals), marketing Licensed Products, or otherwise required by applicable law or regulation, provided, however, that if a Party is required by law or regulation to make any such disclosure of the other Partys Confidential Information it will, except where impracticable for necessary disclosures (for example, in the event of medical emergency), give reasonable advance notice to the other Party of such disclosure requirement and, except to the extent inappropriate in the case of patent applications, will use its reasonable efforts to secure confidential treatment of such Confidential Information required to be disclosed; (iii) in communication with existing and potential investors, consultants, advisors (including financial advisors, lawyers and accountants) and others on a need to know basis, in each case under appropriate confidentiality provisions substantially equivalent to those of this Agreement; or (iv) to the extent mutually agreed to by the Parties.
10.3 Publications . Each Party shall submit to the other Party any proposed publication or public disclosure containing clinical or scientific results for the Licensed Products in the Field at least thirty (30) days in advance of the proposed date of submission for publication, so as to allow that Party to review such proposed publication or disclosure. The reviewing Party will promptly review such proposed publication or disclosure and make any objections or comments that it may have thereto, and the Parties shall discuss the advantages and disadvantages of publishing or disclosing such results. If the Parties are unable to agree on whether to publish or disclose the same, subject to Section 10.4 below, the matter shall be referred to the Coordination Committee for resolution. This Section 10.3 shall not be deemed to limit the Parties obligations under Section 10.1 above.
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10.4 Publicity .
10.4.1 Confidential Terms . Each of the Parties agrees not to disclose to any Third Party the terms and conditions of this Agreement without the prior approval of the other Party, except to advisors (including financial advisors, attorneys and accountants), potential and existing investors, and others (including in the case of NovaCal, potential and actual licensees under the NovaCal Technology) on a need to know basis, in each case under circumstances that reasonably protect the confidentiality thereof, or to the extent necessary to comply with the terms of agreements with Third Parties, or to the extent required by applicable law or regulation, including securities laws. Notwithstanding the foregoing, the Parties agree upon a joint press release to announce the execution of this Agreement, which is attached hereto as Exhibit 10.4.1 ; thereafter, NovaCal and Alcon may each disclose to Third Parties the information contained in such press release without the need for further approval by the other.
10.4.2 Publicity Review . The Parties acknowledge the importance of supporting each others efforts to publicly disclose results and significant developments regarding Licensed Products in the Field and other activities in connection with this Agreement, beyond what may be strictly required by applicable law or regulation, and each Party may make such disclosures from time to time with the approval of the other Party, which approval shall not be unreasonably withheld, conditioned or delayed. Such disclosures may include achievement of significant events in the Development (including regulatory process and occurrence of Milestone Events) or Commercialization of Licensed Products in the Field hereunder or receipt of payments. When a Party (the Requesting Party ) elects to make any such public disclosure under this Section 10.4.2, it will give the other Party (the Cooperating Party ) reasonable notice to review and comment on such statement, it being understood that if the Cooperating Party does not notify the Requesting Party in writing within five (5) business day period or such shorter period if required by applicable law of any reasonable objections, as contemplated in this Section 10.4.2, such disclosure shall be deemed approved, and in any event the Cooperating Party shall work diligently and reasonably to agree on the text of any proposed disclosure in an expeditious manner. The principles to be observed in such disclosures shall be accuracy, compliance with applicable laws, rules, regulations and regulatory guidance documents, reasonable sensitivity to potential negative reactions of applicable Regulatory Authorities (including the FDA), the potential loss of competitive advantage by publishing confidential information regarding the status of development efforts and/or commercialization plans prematurely, and the need to keep investors and others informed regarding the Requesting Partys business. Accordingly, the Cooperating Party shall not withhold, condition or delay its approval of a proposed disclosure that complies with such principles.
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ARTICLE 11
REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION
11.1 General Representations and Warranties . Each Party represents and warrants to the other that:
11.1.1 it is duly organized and validly existing under the laws of its state of incorporation or registration, and has full corporate or partnership power and authority to enter into this Agreement and to carry out the provisions hereof;
11.1.2 it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the person or persons executing this Agreement on its behalf has been duly authorized to do so by all requisite corporate or partnership action;
11.1.3 this Agreement is legally binding upon it and enforceable in accordance with its terms. The execution, delivery and performance of this Agreement by it does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any material law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it;
11.1.4 it has not granted, and shall not grant during the Term, any right to any Third Party which would conflict with the rights granted to the other Party hereunder; and
11.1.5 it is not aware of any action, suit or inquiry or investigation instituted by any person or governmental agency which questions or threatens the validity of this Agreement.
11.2 NovaCals Warranties . NovaCal represents and warrants that as of the Effective Date:
11.2.1 NovaCal owns all right, title and interest in and to all NovaCal Patents in existence as of the Effective Date;
11.2.2 NovaCal has not granted, and will not grant during the Term, rights to any Third Party under the NovaCal Technology that conflict with the rights granted to Alcon hereunder;
11.2.3 NovaCal has not received any written notice of any threatened claims or litigation seeking to invalidate or otherwise challenge the NovaCal Patents or NovaCals rights therein;
11.2.4 to its knowledge, the manufacture, use or sale of the Licensed Compounds within its Control as of the Effective Date do not infringe any Third Party Patent;
11.2.5 to its knowledge, none of the NovaCal Patents are subject to any pending re-examination, opposition, interference or litigation proceedings; and
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11.2.6 NovaCal has not entered into any agreements of the type identified in Section 9.5.3.
11.3 Disclaimer of Warranties . EXCEPT AS SET FORTH IN THIS ARTICLE 11, NOVACAL AND ALCON EXPRESSLY DISCLAIM ANY WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE NOVALCAL TECHNOLOGY), INCLUDING ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
11.4 Indemnification .
11.4.1 Indemnification by NovaCal . NovaCal hereby agrees to defend, hold harmless and indemnify (collectively Indemnify ) Alcon and its Affiliates, and its and their agents, directors, officers and employees (the Alcon Indemnitees ) from and against any liability or expense (including without limitation reasonable legal expenses and attorneys fees) (collectively Losses ) resulting from suits, claims, actions and demands, in each case brought by a Third Party (each, a Third-Party Claim ) arising out of a breach of any of NovaCals representations and warranties under Sections 11.1 or 11.2. NovaCals obligation to Indemnify the Alcon Indemnitees pursuant to this Section 11.4 shall not apply to the extent that any such Losses (A) arise from the gross negligence or intentional misconduct of any Alcon Indemnitee; (B) arise from any breach by Alcon of this Agreement; or (C) are Losses for which Alcon is obligated to Indemnify the NovaCal Indemnitees pursuant to Section 11.4.2.
11.4.2 Indemnification by Alcon . Alcon hereby agrees to Indemnify NovaCal and its Affiliates, and its and their agents, directors, officers and employees (the NovaCal Indemnitees ) from and against any and all Losses resulting from Third-Party Claims arising out of: (i) a breach of any of Alcons representations and warranties under Section 11.1; or (ii) the Development, Manufacture, Commercialization, storage, handling, use, sale, offer for sale or importation of Development Compounds and/or Licensed Products or other exercise of the licenses granted hereunder by or under authority of Alcon. Alcons obligation to Indemnify the NovaCal Indemnitees pursuant to the foregoing sentence shall not apply to the extent that any such Losses (A) arise from the gross negligence or intentional misconduct of any NovaCal Indemnitee; (B) arise from any breach by NovaCal of this Agreement; (C) are Losses for which NovaCal is obligated to Indemnify the Alcon Indemnitees pursuant to Section 11.4.1; or (D) result from a finding that the manufacture or sale of a Development Compound or the use thereof in the Field infringes the patent rights of a Third Party.
11.4.3 Procedure . To be eligible to be Indemnified hereunder, the indemnified Party shall provide the indemnifying Party with prompt notice of the Third-Party Claim giving rise to the indemnification obligation pursuant to this Section 11.4 and the exclusive ability to defend (with the reasonable cooperation of the indemnified Party) or settle any such claim; provided, however, that the indemnifying Party shall not enter into any settlement that admits fault, wrongdoing or damages
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without the indemnified Partys written consent, such consent not to be unreasonably withheld or delayed. The indemnified Party shall have the right to participate, at its own expense and with counsel of its choice, in the defense of any claim or suit that has been assumed by the indemnifying Party.
11.5 Insurance . Alcon shall obtain and maintain, during the term of this Agreement and for six (6) years thereafter, $5 million combined single limit for comprehensive general liability insurance, including products liability insurance and coverage for clinical trials, with reputable and financially secure insurance carriers or captive insurer in a form and at levels consistent with industry standards based upon Alcons activities hereunder and indemnification obligations hereunder, with NovaCal named as an additional insured. NovaCal shall obtain and maintain, during the term of this Agreement and for a period of six (6) years thereafter, $5 million combined single limit for comprehensive general liability insurance, including coverage for clinical trials, with reputable and financially secure insurance carriers in a form and at levels consistent with industry standards based upon NovaCals activities hereunder and indemnification obligations hereunder, with Alcon named as an additional insured. Such liability insurance or self-insurance through a captive insurer shall be maintained on an occurrence basis to provide such protection after expiration or termination of the policy itself or this Agreement or claims made basis with purchased tail coverage for six (6) years. Each Party shall furnish to the other Party on request a certificate of insurance issued by the insurance company or captive insurer setting forth the amount of the liability insurance and a provision that the other Party hereto shall receive thirty (30) days written notice prior to termination or material reduction to the level of coverage.
ARTICLE 12
TERM AND TERMINATION
12.1 Term . This Agreement shall become effective as of the Effective Date and, unless earlier terminated pursuant to the other provisions of this Article 12, shall continue in full force and effect on a country-by-country and Licensed Product-by-Licensed Product basis until Alcon has no remaining royalty payment obligations in such country with respect to such Licensed Product (the Term ).
12.2 Termination by Alcon .
12.2.1 Alcon shall have the right to terminate this Agreement in its entirety upon nine (9) months prior notice to NovaCal referencing this Section 12.2.1.
12.2.2 If the Coordination Committee determines that it is unlikely that any Licensed Product will (i) obtain Marketing Approval for an application in a particular Sub-Field in any Major Market, or (ii) be a commercial success in any Major Market in particular Sub-Field, then Alcon shall have the right to terminate this Agreement with respect to such Sub-Field upon one hundred thirty five (135) days prior notice to NovaCal referencing this Section 12.2.2. If the Coordination Committee determines that it is unlikely that any Licensed Product will (i) obtain Marketing Approval for an application in any particular Sub-Field in any Major Market, or (ii) be a commercial
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success in any Major Market in any Sub-Field, then Alcon shall have the right to terminate this Agreement in its entirety upon one hundred thirty five (135) days prior notice to NovaCal referencing this Section 12.2.2.
12.3 Termination for Breach . Either Party may terminate this Agreement in the event the other Party materially breaches this Agreement, and such breach shall have continued for sixty (60) days after notice thereof was provided to the breaching Party by the non-breaching Party. Any such termination shall become effective at the end of such sixty (60) day period unless the breaching Party has cured any such breach prior to the expiration of the sixty (60) day period.
12.4 General Effects of Expiration or Termination .
12.4.1 Accrued Obligations . Expiration or termination of this Agreement for any reason shall not release either Party from any obligation or liability which, at the time of such expiration or termination, has already accrued to the other Party or which is attributable to a period prior to such expiration or termination.
12.4.2 Non-Exclusive Remedy . Notwithstanding anything herein to the contrary, termination of this Agreement by a Party shall be without prejudice to other remedies such Party may have at law or equity.
12.4.3 General Survival . Articles 1, 10 and 13 and Sections 7.1.2(b), 7.1.4 (to the extent applicable to Section 7.1.2(b)), 8.4.6 (with respect to activities prior to the effective date of such termination or expiration or otherwise conducted pursuant to this Article 12), 8.5, 8.6, 8.7 (for the period described therein), 8.8 (for the period described in Section 8.7), 8.9, 8.10, 9.1, 9.2.2, 9.4 (with respect to Enforcement Actions initiated prior to the effective date of such termination or expiration), 11.3, 11.4, 11.5 (for the period described therein), 12.4 and 12.5 shall survive expiration or termination of this Agreement for any reason. Except as otherwise provided in this Article 12, all rights and obligations of the Parties under this Agreement shall terminate upon expiration or termination of this Agreement for any reason.
12.5 Effects of Certain Terminations .
12.5.1 Termination of this Agreement Pursuant to Section 12.2 or 12.3 . If Alcon electively terminates this Agreement in its entirety pursuant to Section 12.2 or either Party terminates this Agreement pursuant to Section 12.3, then:
(a) Ongoing Trials . Provided that the termination of this Agreement is not a termination by Alcon pursuant to Section 12.3, if there are any ongoing clinical trials with respect to Licensed Products being conducted by or on behalf of Alcon (or its Affiliate or Marketing Partner) at the time of notice of termination, Alcon agrees, at NovaCals request, to (i) promptly transition to NovaCal or its designee some or all of such clinical trials and the activities related to or supporting such trials at Alcons expense, (ii) continue to conduct such clinical trials for a period requested by NovaCal up to a maximum of six (6) months after the effective date of such
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termination, for which NovaCal would reimburse Alcon for its out-of-pocket expenses incurred with respect thereto, or (iii) terminate such clinical trials; in each case as requested by NovaCal, but in no event shall Alcon be required to continue clinical trials if it reasonably believes such continuation might adversely affect the health of patients participating in the clinical study.
(b) Commercialization . Provided that the termination of this Agreement is not a termination by Alcon pursuant to Section 12.3, if requested by NovaCal, Alcon and its Affiliates and Marketing Partners shall continue to distribute and sell Licensed Products in each country of the Territory for which Marketing Approval therefor has been obtained, in accordance with the terms and conditions of this Agreement, for a period requested by NovaCal not to exceed two (2) years from the effective date of such expiration or termination (for purposes of this Section 12.5.1, the Agreement Wind-Down Period ); provided that NovaCal may terminate the Agreement Wind-Down Period upon sixty (60) days notice to Alcon. Notwithstanding any other provision of this Agreement, during the Agreement Wind-Down Period, Alcons, its Affiliates and its Marketing Partners rights with respect to Licensed Products (including the licenses granted under Section 7.1) shall be non-exclusive, NovaCals obligations under Section 7.4 shall terminate, and NovaCal shall have the right to engage one or more other Alcon(s) or distributor(s) of Licensed Products in all or part of the Territory. Any Licensed Products sold or disposed by Alcon or its Affiliates or Marketing Partners during the Agreement Wind-Down Period shall be subject to royalties under Section 8.4 above. After the Agreement Wind-Down Period, Alcon and its Affiliates and Marketing Partners shall not make any representation regarding their status as a Licensee of or distributor for NovaCal for any Licensed Product.
(c) Regulatory Filings . Provided that the termination of this Agreement is not a termination by Alcon pursuant to Section 12.3, Alcon shall promptly assign and transfer to NovaCal all Regulatory Filings for Licensed Products that are held or controlled by or under authority of Alcon or its Affiliates or Marketing Partners, and shall take such actions and execute such other instruments, assignments and documents as may be necessary to effect the transfer of rights under the Regulatory Filings to NovaCal. Alcon shall cause each of its Marketing Partners to transfer any such Regulatory Filings to NovaCal if this Agreement terminates. If applicable law prevents or delays the transfer of ownership of a Regulatory Filing to NovaCal, Alcon shall grant to NovaCal a permanent, exclusive and irrevocable right of access and reference to such Regulatory Filing for Licensed Products, and shall cooperate fully to make the benefits of such Regulatory Filings available to NovaCal and/or its designee(s). Within sixty (60) days after notice of such termination, Alcon shall provide to NovaCal copies of all such Regulatory Filings, and of all preclinical and clinical data (including investigator reports, both preliminary and final, statistical analyses, expert opinions and reports, safety and other electronic databases) . NovaCal shall be free to use and disclose such Regulatory Filings and other items in connection with the license under Section 12.5.1(d) below.
(d) Technology Licenses . Alcon hereby grants NovaCal, effective upon the notice of termination under Section 12.2 or the effective date of such termination by NovaCal under Section 12.3, a non-exclusive, worldwide, irrevocable, license, under (i) any Patent Controlled by Alcon or its Affiliates covering Licensed Products for which any human clinical trial or other
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human testing had been initiated or that were being Commercialized by or under authority of Alcon; provided, however if any such Patent Controlled by Alcon is subject to payment obligations to a Third Party, Alcon shall promptly disclose such obligations to NovaCal in writing and such Patents shall be deemed to be Controlled by Alcon only if NovaCal agrees in writing to reimburse all amounts owed to such Third Party as a result of NovaCals exercise of such license, and (ii) any Know-How disclosed to NovaCal under this Agreement or developed or utilized by Alcon in connection with such Licensed Products; in each case to the extent necessary to make, have made, use, sell, offer for sale and import Licensed Compounds and such Licensed Products. For such license, NovaCal shall pay Alcon a royalty that shall not exceed [***] of net sales of such Licensed Compounds or Licensed Products covered by such Patents or incorporating such Know-How. Accordingly, within thirty (30) days of notice of termination under Section 12.2 or the effective date of such termination by NovaCal under Section 12.3, the Parties shall initiate good faith negotiations to define an appropriate license agreement.
(e) Trademarks . Provided that the termination of this Agreement is not a termination by Alcon pursuant to Section 12.3, Alcon shall consider assigning or causing to be assigned to NovaCal all worldwide rights in and to any trademarks specific to one or more Licensed Products that Alcon used with Licensed Product(s), such assignment to be conditioned on Alcons approval, such approval not be unreasonably withheld. Factors Alcon will take into account in determining whether to grant such approval shall include but not be limited to the similarity of the involved trademarks and trade dress rights to other trademarks and trade dress rights owned or used by Alcon. It is understood that such assignment shall not include the Alcon name or trademark for the Alcon company itself.
(f) Marketing Partners . Provided that the termination of this Agreement is not a termination by Alcon pursuant to Section 12.3, Alcons Marketing Partners of Licensed Products shall, at the request of NovaCal, be assigned to NovaCal to the furthest extent possible. In the event NovaCal does not request assignment of such Marketing Partners, then the rights of such Marketing Partners with respect to Licensed Products shall terminate upon termination of Alcons rights with respect to Licensed Products.
(g) Governance . Any activities undertaken by NovaCal or a Third Party designee with respect to the Licensed Products during the Agreement Wind-Down Period shall be subject to the authority of the Coordination Committee or any of the provisions of Article 2, 3, 4, 5 or 6 above.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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(h) Transition Assistance . Provided that the termination of this Agreement is not a termination by Alcon pursuant to Section 12.3, Alcon agrees to fully cooperate with NovaCal and its designee(s) to facilitate a smooth, orderly and prompt transition of the Development and Commercialization of Licensed Products to NovaCal and/or its designee(s) during the Agreement Wind-Down Period. Without limiting the foregoing, Alcon shall promptly provide NovaCal copies of customer lists and other customer information relating to Licensed Products reasonably necessary in Alcons reasonable opinion for NovaCal to continue to market such Licensed Products, which NovaCal shall have the right to use and disclose for any purpose during the Agreement Wind-Down Period and thereafter. Upon request by NovaCal, Alcon shall transfer to NovaCal some or all quantities of Licensed Products in its or its Affiliates possession (as requested by NovaCal), within thirty (30) days after the end of the Agreement Wind-Down Period; provided, however, that NovaCal shall reimburse Alcon for the out-of-pocket costs that Alcon actually incurred to Manufacture or otherwise acquire the quantities so provided to NovaCal. If any Licensed Product was Manufactured by any Third Party for Alcon, or Alcon had contracts with vendors which contracts are necessary or useful for NovaCal to take over responsibility for the Licensed Products in the Territory, then Alcon shall to the extent possible and requested in writing by NovaCal, assign all of the relevant Third-Party contracts to NovaCal, and in any case, Alcon agrees to cooperate with NovaCal to ensure uninterrupted supply of Licensed Products. If Alcon or its Affiliate Manufactured any Licensed Product at the time of termination, then Alcon (or its Affiliate) shall continue to provide for Manufacturing of such Licensed Product for NovaCal, at the rate set forth in Section 6.1.4, from the date of notice of such termination until such time as NovaCal is able, using Commercially Reasonable Efforts to do so, to secure an acceptable alternative commercial manufacturing source from which sufficient quantities of Licensed Product may be procured and legally sold in the Territory, but in no event later than the expiration of the Agreement Wind-Down Period.
(i) Return of Materials . Except to the extent it has the right to use such Confidential Information in accordance with the express terms hereof, within forty-five (45) days after the end of the Agreement Wind-Down Period, each Party shall destroy all tangible items comprising, bearing or containing any Confidential Information of the other Party that are in its or its Affiliates possession or control, and provide written certification of such destruction, or prepare such tangible items of Confidential Information for shipment to such other Party, as such other Party may direct, at such other Partys expense; provided that each Party may retain one (1) copy of such Confidential Information for its legal archives.
12.5.2 Termination with respect to a Sub-Field Pursuant to Section 12.2 . If Alcon electively terminates this Agreement with respect to a particular Sub-Field pursuant to Section 12.2, then:
(a) Ongoing Trials . If there are any ongoing clinical trials with respect to Licensed Products in such Sub-Field being conducted by or on behalf of Alcon (or its Affiliate or Marketing Partner) at the time of notice of termination, Alcon agrees, at NovaCals request, to (i) promptly transition to NovaCal or its designee some or all of such clinical trials and the activities related to or supporting such trials at Alcons expense, (ii) continue to conduct such clinical trials for a period requested by NovaCal up to a maximum of six (6) months after the effective date of such termination, for which NovaCal would reimburse Alcon for its out-of-pocket expenses incurred with
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respect thereto, or (iii) terminate such clinical trials; in each case as requested by NovaCal, but in no event shall Alcon be required to continue clinical trials if it reasonably believes such continuation might adversely affect the health of the patients participating in the study.
(b) Commercialization . If requested by NovaCal, Alcon and its Affiliates and Marketing Partners shall continue to distribute and sell Licensed Products in such Sub-Field in each country of the Territory for which Marketing Approval therefor has been obtained, in accordance with the terms and conditions of this Agreement, for a period requested by NovaCal not to exceed two (2) years from the effective date of such expiration or termination (for purposes of this Section 12.5.2, the Sub-Field Wind-Down Period ); provided that NovaCal may terminate the Sub-Field Wind-Down Period upon sixty (60) days notice to Alcon. Notwithstanding any other provision of this Agreement, during the Sub-Field Wind-Down Period, Alcons, its Affiliates and its Marketing Partners rights with respect to Licensed Products in such Sub-Field (including the licenses granted under Section 7.1) shall be non-exclusive, NovaCals obligations under Section 7.4 shall terminate with respect to such Sub-Field , and NovaCal shall have the right to engage one or more other Alcon(s) or distributor(s) of Licensed Products in such Sub-Field in all or part of the Territory. Any Licensed Products in such Sub-Field sold or disposed by Alcon or its Affiliates or Marketing Partners during the Sub-Field Wind-Down Period shall be subject to royalties under Section 8.4 above. After the Sub-Field Wind-Down Period, Alcon and its Affiliates and Marketing Partners shall not make any representation regarding their status as a Licensee of or distributor for NovaCal for any Licensed Product in such Sub-Field .
(c) Regulatory Filings . Alcon shall promptly assign and transfer to NovaCal all Regulatory Filings for Licensed Products in such Sub-Field that are held or controlled by or under authority of Alcon or its Affiliates or Marketing Partners, and shall take such actions and execute such other instruments, assignments and documents as may be necessary to effect the transfer of rights under the Regulatory Filings to NovaCal. Alcon shall cause each of its Marketing Partners to transfer any such Regulatory Filings to NovaCal if this Agreement terminates. If applicable law prevents or delays the transfer of ownership of a Regulatory Filing to NovaCal, Alcon shall grant to NovaCal a permanent, exclusive and irrevocable right of access and reference to such Regulatory Filing for Licensed Products in such Sub-Field, and shall cooperate fully to make the benefits of such Regulatory Filings available to NovaCal and/or its designee(s). Within sixty (60) days after notice of such termination, Alcon shall provide to NovaCal copies of all such Regulatory Filings, and of all preclinical and clinical data (including investigator reports, both preliminary and final, statistical analyses, expert opinions and reports, safety and other electronic databases) and other Know-How information pertaining to any Licensed Compounds, Development Compound or Licensed Product, or the manufacture thereof, in each case with respect to such Sub-Field. NovaCal shall be free to use and disclose such Regulatory Filings and other items in connection with the license under Section 12.5.2(d) below.
(d) Technology Licenses . Alcon hereby grants NovaCal, effective upon the notice of such termination, a non-exclusive, worldwide, license, under (i) any Patent Controlled by Alcon or its Affiliates covering Licensed Products for which any human clinical trial or other human testing had been initiated or that were being Commercialized by or under authority of Alcon
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at the time of such termination and (ii) any Know-How disclosed to NovaCal under this Agreement or developed or utilized by Alcon in connection with such Licensed Products; in each case to make, have made, use, sell, offer for sale and import such Licensed Products in such Sub-Field. For such license, NovaCal shall pay Alcon a royalty that shall not exceed [***] of net sales of such Licensed Compounds or Licensed Products covered by such Patents or incorporating such Know-How. Accordingly, within thirty (30) days of notice of termination under Section 12.2, the Parties shall initiate good faith negotiations to define an appropriate license agreement. Notwithstanding the foregoing, NovaCal shall not have the right to exercise the licenses granted pursuant to this Section 12.5.2(d) with respect to Know-How and Patents in a manner that can reasonably be expected to (i) create a risk of substitutability of the type contemplated in Section 2.6.3 hereof, or (ii) otherwise compete with Alcon products in the ophthalmic, otic and nasal fields, other than in the terminated Sub-Field.
(e) Trademarks . Alcon hereby assigns and shall cause to be assigned to NovaCal all worldwide rights in and to any trademarks or trade dress specific to one or more Licensed Products in such Sub-Field that Alcon used with such Licensed Product(s) if such trademarks or trade dress are not used by Alcon or its Affiliates or Marketing Partners with Licensed Products in other Sub-Fields or, in Alcons reasonable opinion, are not too similar to trademarks or trade dress used by Alcon for other products in any Sub-Field. It is understood that such assignment shall not include the Alcon name or trademark for the Alcon company itself.
(f) Marketing Partners . Alcons Marketing Partners of Licensed Products in such Sub-Field shall, at the request of NovaCal, be assigned to NovaCal to the furthest extent possible. In the event NovaCal does not request assignment of such Marketing Partners, then the rights of such Marketing Partners with respect to Licensed Products in such Sub-Field shall terminate upon termination of Alcons rights with respect to such Licensed Products.
(g) Governance . Any activities undertaken by NovaCal or a Third Party designee with respect to the Licensed Products in such Sub-Field during the Sub-Field Wind-Down Period shall be subject to the authority of the Coordination Committee or any of the provisions of Article 2, 3, 4, 5 or 6 above.
(h) Transition Assistance . Alcon agrees to fully cooperate with NovaCal and its designee(s) to facilitate a smooth, orderly and prompt transition of the Development and Commercialization of Licensed Products in such Sub-Field to NovaCal and/or its designee(s) during the Sub-Field Wind-Down Period. Without limiting the foregoing, Alcon shall promptly provide NovaCal copies of customer lists and other customer information relating to such Licensed Products reasonably necessary in Alcons reasonable opinion for NovaCal to continue to market such
[***] |
Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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Licensed Products in such Sub-Field, which NovaCal shall have the right to use and disclose for any purpose related to such Sub-Field during the Sub-Field Wind-Down Period and thereafter. Upon request by NovaCal, Alcon shall transfer to NovaCal some or all quantities of Licensed Products in such Sub-Field in its or its Affiliates possession (as requested by NovaCal), within thirty (30) days after the end of the Sub-Field Wind-Down Period; provided, however, that NovaCal shall reimburse Alcon for the out-of-pocket costs that Alcon actually incurred to Manufacture or otherwise acquire the quantities so provided to NovaCal. If any Licensed Product in such Sub-Field was Manufactured by any Third Party for Alcon, or Alcon had contracts with vendors which contracts are necessary or useful for NovaCal to take over responsibility for such Licensed Products in the Territory, then Alcon shall to the extent possible and requested in writing by NovaCal, assign all of the relevant Third-Party contracts to NovaCal, and in any case, Alcon agrees to cooperate with NovaCal to ensure uninterrupted supply of such Licensed Products. If Alcon or its Affiliate Manufactured any Licensed Product in such Sub-Field at the time of termination, then Alcon (or its Affiliate) shall continue to provide for Manufacturing of such Licensed Product for NovaCal, at the rate set forth in Section 6.1.4, from the date of notice of such termination until such time as NovaCal is able, using Commercially Reasonable Efforts to do so, to secure an acceptable alternative commercial manufacturing source from which sufficient quantities of such Licensed Product may be procured and legally sold in the Territory.
(i) Return of Materials . Except to the extent it has the right to use such Confidential Information in accordance with the express terms hereof, within forty-five (45) days after the end of the Sub-Field Wind-Down Period, each Party shall destroy all tangible items comprising, bearing or containing any Confidential Information of the other Party relating to such Sub-Field that are in its or its Affiliates possession or control, and provide written certification of such destruction, or prepare such tangible items of Confidential Information for shipment to such other Party, as such other Party may direct, at such other Partys expense; provided that each Party may retain one (1) copy of such Confidential Information for its legal archives.
(j) Credit to Alcon . In the event Alcon terminates this Agreement with respect to a particular Sub-Field pursuant to Section 12.2 , Alcon shall have the right to credit [***] of the technology access fee paid to NovaCal under Section 8.1 attributable to such Sub-Field (e.g., if Alcon terminates its rights with respect to the Otic Sub-Field, then [***] would be creditable under this provision) against (i) Milestone Payments payable to NovaCal under Section 8.3 upon achievement of Milestone Events 3 and 4, and (ii) royalty payments payable to NovaCal under Section 8.4 on Net Sales of Licensed Products occurring after the effective date of such termination; provided, however, in no event will any payment due to NovaCal be so reduced by more than [***] and no amount of any portion of the technology access fee be refundable.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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12.6 Termination Press Releases . In the event of termination of this Agreement for any reason, the Parties shall cooperate in good faith to coordinate public disclosure of such termination and the reasons therefor, and shall not, except to the extent required by applicable law, disclose such information without the prior approval of the other Party, such approval not to be unreasonably withheld, conditioned or delayed. To the extent possible under the situation, the terminating Party shall provide the non-terminating Party with a draft of any such public disclosure it intends to issue five (5) business days in advance and with the opportunity to review and comment on such statement, it being understood that if the non-terminating Party does not notify the terminating Party in writing within such five (5) business day period (or such shorter period if required by applicable law and as notified to the non-terminating Party in writing) of any reasonable objections, such disclosure shall be deemed approved, and in any event the Parties shall work diligently and reasonably to agree on the text of any such proposed disclosure in an expeditious manner. The principles to be observed in such disclosures shall be accuracy, compliance with applicable law and regulatory guidance documents, reasonable sensitivity to potential negative reactions to such news and the need to keep investors and others informed regarding the Parties business and other activities. Accordingly in such situation, the non-terminating Party shall not withhold, condition or delay its approval of a proposed disclosure that complies with such principles.
ARTICLE 13
MISCELLANEOUS
13.1 Governing Law . This Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without reference to conflicts of laws principles.
13.2 Assignment . This Agreement shall not be assignable by either Party to any Third Party without the written consent of the other Party and any such attempted assignment shall be void. Notwithstanding the foregoing, either Party may assign this Agreement, without the written consent of the other Party, to an entity that acquires all or substantially all of the business or assets of such Party to which this Agreement pertains (whether by merger, reorganization, acquisition, sale or otherwise), and agrees in writing to be bound by the terms and conditions of this Agreement. If any permitted assignment would result in withholding or other similar taxes becoming due on payments to the other Party under this Agreement, such payments shall be subject to such withholding tax laws, rules and regulations as may be applicable and, if such laws, rules or regulations require a withholding to be made from such payments, the payments net of withholding taxes shall constitute full compliance with this Agreement. No assignment or transfer of this Agreement to any Third Party shall be valid and effective unless and until the assignee/transferee agrees in writing to be bound by the provisions of this Agreement. The terms and conditions of this Agreement shall be binding on and inure to the benefit of the permitted successors and assigns of the Parties. Except as expressly provided in this Section 13.2, any attempted assignment or transfer of this Agreement to any Third Party shall be null and void.
13.3 Notices . Any notice, request, delivery, approval or consent required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently
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given if delivered in person, transmitted by facsimile (receipt verified) or by express courier service (signature required) or five (5) days after it was sent by registered letter, return receipt requested (or its equivalent), provided that no postal strike or other disruption is then in effect or comes into effect within two (2) days after such mailing, to the Party to which it is directed at its address or facsimile number shown below or such other address or facsimile number as such Party will have last given by notice to the other Party.
If to NovaCal, addressed to: | NovaCal Pharmaceuticals, Inc. | |
5980 Horton Street, Suite 550 | ||
Emeryville, California 94608 | ||
Attention:President | ||
Telephone: (510) 595-1100 | ||
Facsimile: (415) 329-2034 | ||
With a copy to: | Wilson Sonsini Goodrich & Rosati | |
Professional Corporation | ||
650 Page Mill Road | ||
Palo Alto, CA 94304-1050 | ||
Attention: Ian B. Edvalson, Esq. | ||
Telephone: (650) 493-9300 | ||
Facsimile: (650) 493-6811 | ||
If to Alcon, addressed to: | Alcon Manufacturing, Ltd. | |
6201 S. Freeway | ||
Fort Worth, TX 76134-2099 | ||
Attention: Tom Capetan, | ||
Sr. Director, Licensing/Business Development |
||
Telephone: (817) 551-8361 | ||
Facsimile: (817) 568-7638 | ||
With a copy to: | Alcon Research, Ltd. | |
6201 S. Freeway, TB4-8 | ||
Fort Worth, TX 76134-2099 | ||
Attention: Gregg Brown, | ||
Vice President, IP Legal |
||
Telephone: (817) 551-8663 | ||
Facsimile: (817) 551-4610 |
13.4 Waiver . Neither Party may waive or release any of its rights or interests in this Agreement except in writing. The failure of either Party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition. No waiver by either Party of any condition or term in any one or more instances shall be construed as a continuing waiver of such condition or term or of another condition or term.
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13.5 Severability . If any provision hereof should be held invalid, illegal or unenforceable in any jurisdiction, the Parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the Parties and all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction. If a Party seeks to avoid a provision of this Agreement by asserting that such provision is invalid, illegal or otherwise unenforceable, the other Party shall have the right to terminate this Agreement upon sixty (60) days prior written notice to the asserting Party, unless such assertion is eliminated and cured within such sixty (60) day period. If such termination is by NovaCal, it shall be deemed a termination under Section 12.2, and if such termination is by Alcon, it shall be deemed a termination under Section 12.3 by reason of a breach by NovaCal.
13.6 Entire Agreement/Modification . This Agreement, including its Exhibits, sets forth all the covenants, promises, agreements, warranties, representations, conditions and understandings between the Parties and supersedes and terminates all prior agreements and understandings between the Parties, except for that certain Material Transfer Agreement between NovaCal and Alcon Research, Ltd. effective as of July 1, 2005 (the MTA ). Accordingly, it is understood and acknowledged that the MTA shall continue in full force in accordance with its terms. In the event of any conflict between the MTA and this Agreement, the provisions of this Agreement shall control. No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the Parties unless reduced to writing and signed by the respective authorized officers of the Parties.
13.7 Relationship of the Parties . The Parties agree that the relationship of NovaCal and Alcon established by this Agreement is that of independent contractors. Furthermore, the Parties agree that this Agreement does not, is not intended to, and shall not be construed to, establish an employment, agency or any other relationship. Except as may be specifically provided herein, neither Party shall have any right, power or authority, nor shall they represent themselves as having any authority to assume, create or incur any expense, liability or obligation, express or implied, on behalf of the other Party, or otherwise act as an agent for the other Party for any purpose.
13.8 Force Majeure . Except with respect to payment of money, neither Party shall be liable to the other for failure or delay in the performance of any of its obligations under this Agreement for the time and to the extent such failure or delay is caused by earthquake, riot, civil commotion, war, terrorist acts, strike, flood, or governmental acts or restriction, or other cause that is beyond the reasonable control of the respective Party. The Party affected by such force majeure will provide the other Party with full particulars thereof as soon as it becomes aware of the same (including its best estimate of the likely extent and duration of the interference with its activities), and will use commercially reasonable efforts to overcome the difficulties created thereby and to resume performance of its obligations as soon as practicable. If the performance of any such obligation under this Agreement is delayed owing to such a force majeure for any continuous period of more than one hundred eighty (180) days, the Parties will consult with respect to an equitable solution, including the possibility of the mutual termination of this Agreement.
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13.9 Compliance with Laws . Notwithstanding anything to the contrary contained herein, all rights and obligations of NovaCal and Alcon are subject to prior compliance with, and each Party shall comply with, all United States and foreign export and import laws, regulations, and orders, and such other United States and foreign laws, regulations, and orders as may be applicable, including obtaining all necessary approvals required by the applicable agencies of the governments of the United States and foreign jurisdictions.
13.10 Interpretation . The captions and headings to this Agreement are for convenience only, and are to be of no force or effect in construing or interpreting any of the provisions of this Agreement. Unless specified to the contrary, references to Articles, Sections or Exhibits mean the particular Articles, Sections or Exhibits to this Agreement and references to this Agreement include all Exhibits hereto. Unless context otherwise clearly requires, whenever used in this Agreement: (i) the words include or including shall be construed as incorporating, also, but not limited to or without limitation; (ii) the word day or year means a calendar day or year unless otherwise specified; (iii) the word notice shall mean notice in writing (whether or not specifically stated) and shall include notices, consents, approvals and other written communications contemplated under this Agreement; (iv) the words hereof, herein, hereby and derivative or similar words refer to this Agreement (including any Exhibits); (v) the word or shall be construed as the inclusive meaning identified with the phrase and/or;(vi) provisions that require that a Party, the Parties or a committee hereunder agree, consent or approve or the like shall require that such agreement, consent or approval be specific and in writing, whether by written agreement, letter, approved minutes or otherwise; (vii) words of any gender include the other gender; (viii) words using the singular or plural number also include the plural or singular number, respectively; and (ix) references to any specific law, rule or regulation, or article, section or other division thereof, shall be deemed to include the then-current amendments thereto or any replacement law, rule or regulation thereof.
13.11 Counterparts . This Agreement may be executed in two counterparts, each of which shall be deemed an original, and all of which together, shall constitute one and the same instrument.
[The remainder of this page intentionally left blank; the signature page follows.]
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IN WITNESS WHEREOF , the Parties have executed this Agreement in duplicate originals by their duly authorized representatives as of the date and year first above written.
NOVACAL PHARMACEUTICALS, INC. | ALCON MANUFACTURING, LTD. | |||||||
By: | /s/ R ON N AJAFI | By: | /s/ C ARY R. R AYMENT | |||||
Name: | Ron Najafi, PhD | Name: | Cary R. Rayment | |||||
Title: | Chairman and CEO | Title: | Chairman, Chief Executive Officer |
List of Exhibits:
Exhibit 1.3: | Aganocide Compound | |
Exhibit 3.2: | Discovery Research Plan Guidelines | |
Exhibit 6.1.4: | Manufacturing Cost | |
Exhibit 6.1.5: | Supply Agreement Terms and Conditions | |
Exhibit 8.2: | Minimum Number of NovaCal FTEs | |
Exhibit 10.4.1: | Press Release |
EXHIBIT 1.3
AGANOCIDE COMPOUND
For purposes of this Agreement and for purposes of providing specific examples but without limiting the definition in Section 1.3, Aganocide Compounds shall include [***].
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
EXHIBIT 3.2
DISCOVERY RESEARCH PLAN GUIDELINES
This exhibit is the initial Discovery Research Plan Guidelines under which Alcon and NovaCal will work together in the discovery and characterization of currently identified and newly identified Aganocides. The Plan will be finalized within 60 days of the Effective Date of the Contract per Article 3, section 3.1 and 3.2.
Compounds identified through this Discovery Research Plan which are deemed suitable candidates for development will be recommended to the Coordination Committee for review per Article 3, section 3.4.
NovaCal shall be primarily responsible for the activities under the Discovery Research Program per Article 3, section 3.3. The Discovery Research Plan will be mutually agreed upon by the Coordination Committee. Alcon will conduct agreed upon activities to facilitate discovery and characterization of novel Aganocides. NovaCal will conduct Research activities to specifications accepted by Alcon and agreed to by the Coordination Committee.
The Coordination Committee will agree on the activities under the Discovery Research Program and will periodically review the progress and recommend future directions of the Discovery Research Plan per Articles 2 and 3.
I. | Discovery Objectives |
[***]
II. | [***] |
a. | NovaCal activities |
[***]
b. | Alcon activities for pre-IND and Proof of Concept Studies |
[***]
III. | Novel additional compounds |
a. | NovaCal Discovery |
[***]
b. | Alcon Discovery and pre-IND/IDE activities |
[***]
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
EXHIBIT 6.1.4
MANUFACTURING COST
Manufacturing Cost means, with respect to a Development Compound supplied by NovaCal or a Licensed Product supplied by Alcon hereunder, amounts incurred or accounted for by NovaCal for the sum of (i) Actual Materials Cost, (ii) Actual Labor Cost, and (iii) Allocable Overhead, in each case calculated in accordance with GAAP; provided, however with respect to Development Compound (or component thereof) acquired or licensed by NovaCal from a Third Party or a Licensed Product (or component thereof) acquired or licensed by Alcon from a Third Party, the Manufacturing Costs for such Development Compound or Licensed Product, as applicable, (or component thereof) shall be deemed to be the amount paid therefor to such Third Party, plus Actual Materials Cost, Actual Labor Cost, Allocable Overhead incurred or accounted for by NovaCal or Alcon, and licensing fees (if any) paid to Third Parties, as applicable for the quality control, storage, handling, processing, preparation and transfer of such purchased Development Compound or Licensed Product.
(A) Actual Materials Cost means the actual unit cost of all raw materials multiplied by the actual number of units of such raw materials consumed in the manufacture of Development Compound or the Manufacture of Licensed Product, as applicable, including any yield variances and any write-offs caused by obsolescence, accident and book-to-physical differences, in each case occurring in the normal course of the manufacturing process.
(B) Actual Labor Cost means actual employee costs allocable to the manufacture Development Compound or Manufacture of Licensed Product, as applicable, which are as follows: salaries, payroll taxes, employee benefits, holiday, sickness, overtime pay and bonuses with respect to such employees. For clarity, Actual Labor Costs shall exclude any employee costs associated with equity incentive plans.
(C) Allocable Overhead means: (i) depreciation of or rent/lease expenses for property, plant or equipment, (ii) plant management (e.g., supervisors, human resources and purchasing), (iii) plant services (e.g., engineering, and production planning), (iv) plant utilities, (v) plant maintenance, (vi) freight and storage costs (at any stage in manufacturing), (vii) cost accounting, data processing and information systems services, (viii) non-reimbursable taxes and duties (excluding income tax), (ix) expenses related to environmental protection, (x) costs of security and surveillance, and (xi) costs of plant fire insurance protection, in each case allocable to or used in the manufacture of Development Compound or Manufacture of Licensed Product, as applicable. For clarity, Allocable Overhead excludes (a) all costs and charges related to or occasioned by or for idle or excess manufacturing capacity, (b) the manufacture of other products (other than Development Compound or Licensed Product), (c) depreciation of or rent/lease expenses for property, plant or equipment not related to manufacturing of Development Compound or Manufacturing of Licensed Product, as applicable, and (d) allocation of general corporate overhead (e.g., executive management, investor relations, business development, legal affairs, finance and cost of capital, whether or not such capital is attributable to the manufacture of any Development Compound or Manufacture of any Licensed Product).
EXHIBIT 6.1.5
SUPPLY AGREEMENT TERMS AND CONDITIONS
The Supply Agreements shall include and be consistent with the following terms and conditions:
Product Supply : NovaCal will have the right and obligation to supply (or have supplied), to the extent provided in Section 6.1 of the Agreement, Development Compounds meeting the applicable Specification that are forecasted and ordered by Alcon, its Affiliates and Marketing Partners. Similarly, Alcon will have the right and obligation to supply (or have supplied), to the extent provided in Section 6.1 of the Agreement, Development Compounds and Licensed Products meeting the applicable Specifications that are forecasted and ordered by NovaCal, its Affiliates and Co-Marketing Partners. Each such particular Development Compound or Licensed Product, hereinafter referred to as a Product . Specification will be defined in more detail in the Quality Agreement (as described below) to mean the mutually agreed upon analytical and quality specifications (including GMP) for the Development Compound or Product, as applicable, necessary to meet the requirement of the applicable Marketing Approvals or otherwise mutually agreed by the Parties, including, as applicable, packaging specifications.
Forecast : The Party so ordering the Product (the Ordering Party ) will provide the other Party (the Supplying Party) with a twelve (12) month rolling forecast, the first three (3) months of which shall be binding for the requirements for Product. The requirements and responsibilities of both Parties shall be finalized in the Supply Agreement.
Orders : Orders will be made pursuant to a mutually agreed form of purchase order. Any additional or inconsistent terms or conditions of any purchase order, acknowledgment or similar standardized form given or received shall have no effect and such terms and conditions will be excluded.
Invoicing : The Supplying Party will invoice the Ordering Party for Product at the time of shipment. All payments will be made net 30 days from date of invoice.
Shipping : Delivery of Product shall be FOB (U.C.C) place of manufacture. Supplying Party shall load all Product onto Ordering Partys designated carrier at Supplying Partys facilities, and title and risk of loss shall thereof pass to Ordering Party when the Product is loaded.
Quality : The process for release of each Product, and the responsibilities for GMP compliance and regulatory activities will be detailed in a Quality Agreement . The Quality Agreement will be negotiated between Supplying Party and Ordering Party in good faith and include standard and customary terms and conditions and be incorporated into the Supply Agreement by reference and executed prior to manufacture of process validation lots. In the event that Supplying Party and Ordering Party are unable to agree on whether certain lot of Product is defective, retained samples of the lot in question shall be submitted to a mutually agreed independent reference lab to be described
in more detail in the Quality Agreement. The results of the independent lab testing shall be binding. The cost of testing shall be borne by Supplying Party if such lab determines that the Product is found to be defective or by Ordering Party if such lab determines that the Product is in conformance with the Specifications. In the event of a determination that the Product is not defective, Ordering Party shall promptly pay Supplying Party for all such Product, including any allegedly defective Product shipped to Ordering Party. In the event of a determination that the Product is defective, the order for such Product will be canceled and Ordering Party will make a separate order therefor after discussions with Supplying Party.
Supply Failure : If Supplying Party materially fails to supply, or have supplied, quantities of Product that it is required to supply, except as a result of a default by Ordering Party or force majeure event, Supplying Party will, at Ordering Partys written request, provide Ordering Party (including any Third Party contract manufacturer designated by ARL) with access to and the right to use, without charge (other than the administrative costs of transfer), all Supplying Party manufacturing intellectual property (including without limitation, Patents, Know-How, and related information and materials) necessary or reasonably useful to manufacture such Product, except that Ordering Party shall not exercise such rights (a) through a competitor of Supplying Party or (b) in any country that does not adhere to and respect internationally recognized intellectual property and trade regulations. The Supply Agreement will include mechanisms for the transfer of such intellectual property to Ordering Party in the event of such failure to supply. If Ordering Party elects to exercise such rights to manufacture or have manufactured Product, then, at such time as Supplying Party or its contract manufacturer can reasonably demonstrate its ability to again supply Product in accordance with the Supply Agreement, such manufacturing rights of Ordering Party shall cease and Supplying Party shall have the right to supply Product.
Term : The term of the Supply Agreement will be coextensive with the Agreement and will be subject to termination on the same terms as the Agreement.
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EXHIBIT 8.2
MINIMUM NUMBER OF NOVACAL FTES
Calendar Year |
Number of NovaCal FTE s to be funded
under Discovery or Development Plans |
|
[***] | [***] | |
[***] | [***] |
*The number of NovaCal FTEs to be funded by Alcon hereunder for calendar years [***] shall be agreed to by the Coordination Committee on an annual basis during the third quarter of the immediately preceding year. However, the number of NovaCal FTEs so funded during any such calendar year shall not be less than [***] of the average number of funded NovaCal FTEs in the prior calendar year.
Funding for the FTEs in calendar year 2006 would commence upon the Coordination Committees agreement on the scope of the Discovery Research Program. Alcons FTE funding commitment will be paid semi-annually in advance (i.e., January and July of each year) as described in Section 8.2.1. During any calendar year, Alcon may reduce the number of NovaCal FTEs to be funded hereunder by providing three (3) months notice to NovaCal specifying the reduction in NovaCal FTEs proposed, but in no event shall Alcon reduce the number of applicable FTEs for such calendar year by more than [***] of the number established pursuant to the above paragraph, in which case the Coordination Committee shall promptly meet and adjust the Discovery Plan or Development Plans, as applicable, to accommodate such reduction. Notwithstanding anything herein to the contrary, in no event shall any FTE payment made by Alcon be refundable or creditable.
[***] | Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. |
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EXHIBIT 10.4.1
PRESS RELEASE
NovaCal Licenses Novel Anti-Infective Compounds for Eye, Ear and Sinus Infections to Alcon
EMERYVILLE, CA. September __, 2006 NovaCal Pharmaceuticals Inc. (NovaCal) announced today that it has signed a collaboration and license agreement with an affiliate of Alcon, Inc. (NYSE:ACL), the worlds leading eye care company, to research, develop and commercialize NovaCals novel Aganocide compounds to treat infections of the eye, ear and sinus, including those associated with persistent bacterial biofilms.
Under the terms of the agreement, Alcon Manufacturing Limited will make an up front payment to NovaCal, as well as ongoing payments associated with the achievement of development milestones and approval of products incorporating Aganocide compounds. Alcon will also provide research funding to NovaCal for four years as part of a collaborative research program, which is extendable by Alcon for additional periods. Alcon will be responsible for all clinical development costs and NovaCal will receive royalties on the sales of products containing any Aganocide compound.
NovaCal retains all rights to the Aganocide compounds, including new compounds resulting from the collaboration, for other therapeutic indications and uses. NovaCal also retains the right to co-market products resulting from the agreement for ear and sinus infections in major markets in Asia.
We are delighted by this important deal with Alcon, who already has been conducting preliminary testing of NovaCals Aganocide compounds over the past year. Alcon is the worldwide leader in the eye, with outstanding research, clinical development and marketing capabilities in the ophthalmic field, said Dr. Ron Najafi, Ph.D., Chairman and Chief Executive Officer of NovaCal. We believe our partnership with Alcon is a major step forward in fully developing this new class of non-antibiotic anti-infective compounds.
NovaCals Aganocide compounds are of great interest to us because of their broad application to bacterial and viral infections as well as their potential in multiple therapeutic areas, said Scott Krueger, PhD, Alcons vice president R&D for pharmaceutical development. These are novel compounds that are currently unexampled in topical treatment of infections in the eye, ear and nose.
About NovaCal Pharmaceuticals
Novacal is a private clinical stage biopharmaceutical company committed to developing its proprietary class of new, non-antibiotic anti-infective compounds, known as Aganocide compounds, and products based thereon. The Aganocide compounds destroy bacteria by attacking multiple sites and are also effective against bacteria that are protected by biofilm. NovaCals drug development programs are aimed at treating or preventing infections that have a major impact on patients including those caused by multi-drug resistant bacteria. NovaCals internal programs largely focus on hospital acquired infections that cause increased morbidity and mortality and that are difficult to treat with existing antibiotics. NovaCals first compound, NVC-101, is in exploratory clinical trials in the United States for the treatment of infected venous ulcers. NovaCals second compound, NVC-422, is expected to enter clinical trials in the first quarter of 2007. For more information on NovaCal please visit www.novacal.com
About Alcon
Alcon, Inc. is the worlds leading eye care company, with global sales of $4.4 billion in 2005. Alcon, which has been dedicated to the ophthalmic industry for more than 50 years, develops, manufactures and markets pharmaceuticals, surgical equipment and devices, contact lens solutions and other vision care products that treat diseases, disorders and other conditions of the eye. In addition to its eye products, Alcon markets Ciprodex ® otic suspension, the leading topical ear infection drug in the U.S. It also has developed an investigational nasal allergy drug, Patanase ® nasal spray, for the treatment of seasonal rhinitis, for which a New Drug Application has been filed with the U.S. Food and Drug Administration. Ciprodex ® is licensed from Bayer, AG.
Caution Concerning Forward-Looking Statements
Note Regarding Forward-Looking Statements: This press release contains forward-looking statements for purposes of the Private Securities Litigation Reform Act of 1995 (the Act). NovaCal Pharmaceuticals, Inc. (the Company) disclaims any intent or obligation to update these forward-looking statements, and claims the protection of the Safe Harbor for forward-looking statements contained in the Act. Examples of such statements include, but are not limited to, any statements relating to the timing, scope or expected outcome of the Companys or its partners clinical development of its drug candidates, the potential benefits of the Companys drug candidates and the size of the potential market for the Companys products. Such statements are based on managements current expectations, but actual results may differ materially due to various factors. Such statements involve risks and uncertainties, including, but not limited to, those risks and uncertainties relating to difficulties or delays in discovery, development, testing, regulatory approval, production and marketing of the Companys drug candidates, unexpected adverse side effects or inadequate therapeutic efficacy of the Companys drug candidates that could slow or prevent product approval or market acceptance (including the risk that current and past results of clinical trials are not necessarily indicative of future results of clinical trials), the uncertainty of patent protection for the Companys intellectual property or
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trade secrets, the Companys ability to obtain additional financing if necessary and unanticipated research and development and other costs. For further information regarding these and other risks related to the Companys business, investors should consult the Companys information at www.novacal.com.
Press Contacts:
NovaCal:
Ron Najafi, 510-595-1100 x150 or Jack OReilly, 510-595-1100 x151
www.novacal.com
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Exhibit 10.12
CONFIDENTIAL
FINANCIAL ADVISORY AND INVESTOR RELATIONS CONSULTING
AGREEMENT
This Financial Advisory and Investor Relations Consulting Agreement (this Agreement ) is entered into as of this 13th day of February, 2007 by and between NovaBay Pharmaceuticals, Inc a California corporation ( NovaBay ), and PM Holdings Ltd., a Turks and Caicos company ( PM ).
WHEREAS NovaBay is pursuing an Initial Public Offering ( IPO ) on the Toronto Stock Exchange and the American Stock Exchange, and
WHEREAS NovaBay has no experience of being a publicly held company and, in particular, has no experience of the Canadian and non-U.S. markets; and
WHEREAS PM has experience in creating and implementing financing and investor relations strategies outside the United States;
NOW THEREFORE NovaBay and PM hereby agree as follows:
1. Advisory Relationship . During the Term (as defined below), PM shall be a provider to NovaBay of the advisory services (the Services ) described on Exhibit A attached hereto. PM shall use commercially reasonable efforts to perform the Services in a manner satisfactory to the NovaBay.
2. Fees and Expenses. As consideration for the Services to be provided by PM and other obligations set forth in this Agreement, NovaBay shall pay to PM the amounts specified in Exhibit B attached hereto at the times specified therein.
3. Term and Termination . Unless this Agreement is earlier terminated as provided herein, PM shall provide the Services to NovaBay for a period commencing on the date hereof and ending on the date that is thirty-six (36) months from the date hereof, unless further extended in writing by NovaBay. PM or NovaBay may terminate this Agreement at any time upon sixty days written notice to the other party; provided, however, that any termination by NovaBay pursuant hereto may not be effected prior to February 12, 2008. The period during which this Agreement is in force is hereafter described as the Term.
4. Independent Contractor . PMs relationship with NovaBay shall be that of an independent contractor and not that of an employee. PM shall not be eligible for any employee benefits, nor shall NovaBay make deductions from amounts payable to PM for taxes, all of which will be PMs responsibility. PM agrees to indemnify and hold NovaBay harmless from liability for, or assessment of, any such taxes imposed on NovaBay by relevant taxing authorities as a result of this Section 4. PM shall have no authority to enter into contracts that bind NovaBay or create obligations on the part of NovaBay without the prior written authorization of the NovaBays Chief Executive Officer.
5. Supervision of PMs Services . All services to be performed by PM, including but not limited to the Services, will be as agreed between PM and NovaBays Chief Financial Officer. PM will report to NovaBays Chief Financial Officer concerning the Services performed under this Agreement. The nature and frequency of such reports shall be at the reasonable discretion of the NovaBays Financial Officer.
6. Use of Information; Confidentiality . The NovaBay agrees to furnish (or use reasonable efforts to cause other parties to furnish) PM with such information as it reasonably requests in connection with PMs performance of the Services (the Information ). The NovaBay agrees to inform PM upon becoming aware that any of the Information is materially inaccurate, incomplete or misleading during the Term and NovaBay agrees that PM bears no responsibility for the accuracy and completeness of the Information and that PM will be using and relying on the Information without performing independent verification or evaluation of any part of the Information.
PM will treat all non-public Information confidentially and will not disclose such Information except (i) as necessary to perform the Services to PMs officers, employees, agents and representatives, who shall be bound by like confidentiality requirements (ii) with NovaBays prior consent, (iii) if such Information is made publicly available other than by PM in violation of this Agreement, or (iv) as is otherwise required by law or judicial or regulatory process.
7 Indemnification. NovaBay and PM agree to the provisions with respect to their mutual indemnification as set forth in Annex A, which is incorporated by reference into this Agreement.
8. Miscellaneous .
(a) Amendments and Waivers . The Term and any subsequent term of this Agreement may be amended or waived only with the written consent of the parties.
(b) Entire Agreement . This Agreement, including the exhibits and annex attached hereto and thereto, constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersede all oral negotiations and prior writings with respect to the subject matter hereof and thereof, as applicable.
(c) Notices . Any notice required or permitted by this Agreement shall be in writing and shall be deemed effective: (i) upon personal delivery; (ii) upon confirmed transmission by telecopy or telex; or (iii) three (3) business days after deposit with the United States Post Office, by registered first class mail, postage prepaid.
(d) Choice of Law . The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, without giving effect to the principles of conflict of laws.
(e) Severability . If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties hereto agree to renegotiate such provision(s) in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision(s), then: (i) such provision(s) shall be excluded from this Agreement; (ii) the balance of this Agreement shall be interpreted as if such provision(s) were so excluded; and (iii) the balance of this Agreement shall be enforceable in accordance with its terms.
(f) Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g) Governance; Arbitration . Any dispute or claim arising out of or in connection with any provision of this Agreement shall be finally settled by binding arbitration in San Francisco, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association, by one arbitrator appointed in accordance with such rules. The arbitrator shall apply the laws of the State of California to the resolution of any dispute without giving effect to the principles of conflict of laws or rules of statutory arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this Section 8(g), without breach of this Section.
(i) Advice of Counsel . EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
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The parties have executed this Agreement on the respective dates set forth below.
NOVABAY PHARMACEUTICALS, INC., a California corporation |
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By: | /s/ J ACK OR EILLY | |
Its: | Chief Financial Officer | |
Address: |
5980 Horton Street, Suite 550 Emeryville, California |
Fax Number: | 510-740-0752 | |||
Date: | Feb. 14, 2007 |
PM | ||
By: | /s/ P ATRICK C HURCHILL | |
Its: | Director | |
Address: | 3 Place du Folies, Monaco |
Fax Number: 377 97 77 70 68 | ||
Date: | Feb. 14/07 |
CONFIDENTIAL
EXHIBIT A
DESCRIPTION OF FINANCIAL ADVISORY AND INVESTOR RELATIONS
SERVICES
Subject to the terms and conditions set out herein, PM agrees to perform one or more of the following activities as they may be requested by the NovaBay:
a) | Assist NovaBay in the preparation of investor presentations; |
b) | Advise NovaBay with its strategy in proceeding with an Initial Public Offering on the Toronto Exchange. |
c) | Advise NovaBays senior management on obtaining aftermarket support for its publicly listed securities after IPO is completed; |
d) | Advise NovaBays senior management on on-going financing strategy; |
e) | Advise NovaBay on potential relationships with non-U.S. financing parties that could provide financing for joint-ventures in specific therapeutic or geographic areas; |
f) | Advise NovaBays senior management on obtaining research coverage outside the United States for its publicly listed securities after the IPO is completed; |
g) | Assist NovaBays senior management in identifying appropriate means of communicating with non- U.S. investors and assist NovaBay in obtaining access to appropriate investor conferences; |
h) | Attend, in person or by teleconference, such meetings of the Board of Directors or committee thereof as senior management may reasonably request; and |
i) | Perform such other services as agreed upon between PM and NovaBay. |
Notwithstanding the foregoing or any other provision of this Agreement, PM is not an agent of NovaBay and has no authority to, and shall not: (a) enter into any commitments, transactions or agreements on behalf of NovaBay; (b) hold any funds or offer to sell or sell any securities on behalf of NovaBay in connection with the IPO or otherwise; (c) contact any potential investors or other third parties in connection with the IPO or any other financing transaction for purposes of identifying potential investors or raising funds for NovaBay; (d) attend any meetings with potential investors in connection with the IPO or any other financing transaction or (e) perform any act under or in connection with the Agreement or relating to the IPO or other financing transaction that would require PM to become licensed as a securities or personal property broker or dealer under applicable law.
CONFIDENTIAL
EXHIBIT B
COMPENSATION
For Financial Advisory and Investor Relations Services, PM will be entitled to receive the following fees:
A monthly fee of $28,000.00 to be paid by NovaBay within ten days of the beginning of each month beginning with the month of March 2007.
In the event that PM meets specific performance goals, that will be agreed between NovaBay and PM over the initial month of this agreement, by September 30 2007, then NovaBays management will recommend to its Board of Directors the grant of such number of stock options (NQOs- non-qualified options) as the Board may determine. Whether any options are granted pursuant to this Agreement shall be determined by NovaBay in the absolute sole discretion of its Board of Directors. If so granted, the options shall vest in equal quarterly installments during the term of this Agreement, and as of the date of termination of this Agreement any unvested options shall be terminated. The life of the options shall be determined by the Board of Directors.
All expenses incurred by PM in performing its consulting services in accordance with this agreement shall be for the account of PM, unless agreed in writing prior to the incurrence of such expenses.
NovaBay shall have the right to prepay the monthly fees for the remainder of the Contemplated Term of the Agreement and shall receive a discount as follows on the remaining fees due:
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25% if such prepayment is made on or before September 30, 2007 |
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20% if such prepayment is made on or before December 31, 2007 |
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15% if such prepayment is made on or before March 31, 2008 |
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10% if such prepayment is made on or before June 30, 2008 |
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5% if such prepayment is made on or before December 31, 2008 |
In the event that PM terminates this agreement in accordance with paragraph 3 of this agreement, then PM will immediately repay to NovaBay the pro-rated amount of such prepayment equal to the amount prepaid times the number of months remaining in the term prior to cancellation divided by the number of months prepaid.
PM represents, warrants and agrees that:
(i) PM is not in the United States or a U.S. Person as defined in Regulation S under the U.S. Securities Act of 1933, as amended (the 1933 Act);
(ii) PM will not acquire any options or exercise options on behalf of, or for the account or benefit of, any person in the United States or a U.S. Person;
(iii) any options granted to PM and securities issuable upon exercise or conversion thereof will not be registered under the 1933 Act, and any such options will not be exercisable or convertible in the United States or by or on behalf of a U.S. Person unless an exemption from registration under the 1933 Act is available and NovaBay has received an opinion of counsel in form and substance satisfactory to NovaBay that registration under the 1933 Act is not required;
(iv) securities issuable upon exercise or conversion of any options issued to PM will be restricted securities as defined in Rule 144 under the 1933 Act and may not be offered, sold or transferred by PM unless an exemption from registration is available and NovaBay has received an opinion of counsel in form and substance satisfactory to NovaBay that registration under the 1933 Act is not required; and
(v) option agreements, certificates or other documents representing the options or shares issued upon exercise or conversion of the options shall contain legends with the restrictions set forth above and such other restrictive legends as may be required by applicable law or agreement with PM.
ANNEX A: INDEMNIFICATION
Indemnification . The NovaBay and PM each shall indemnify and defend the other and the others affiliates, directors, officers, employees, agents, consultants, attorneys, accountants and other representatives (each an Indemnified Person in this subsection (a)) and shall hold each Indemnified Person harmless, to the fullest extent permitted by law, from and against any and all claims, liabilities, losses, damages and expenses (including reasonable attorneys fees and costs), as they are incurred, in connection with this Agreement or the Services, resulting from the indemnifying partys negligence, bad faith or willful misconduct in connection with this Agreement or the Services, any violation by the indemnifying party (not caused by an Indemnified Person) of Federal or state securities laws in connection with the Offering, or any breach by the indemnifying party of this Agreement. In case any litigation or proceeding shall be brought against any Indemnified Person under this section, the indemnifying party shall be entitled to assume the defense of such litigation or proceeding with counsel of the indemnifying partys choice at its expense (in which case the indemnifying party shall not be responsible for the fees and expenses of any separate counsel retained by such Indemnified Person, except in the limited circumstances described below in this section); provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Person. Notwithstanding the indemnifying partys election to assume the defense of such litigation or proceeding (a) such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and (b) the indemnifying party shall bear the reasonable fees, costs and expenses of separate counsel if (but only if) the use of counsel selected by the indemnifying party to represent such Indemnified Person would present such counsel with a conflict of interest under applicable laws or rules of professional conduct.