As filed with the Securities and Exchange Commission on July 3, 2017

Registration No. 333-218924

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

AMENDMENT NO. 1

TO

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

CALYXT, INC.

(Exact name of Registrant as specified in its charter)

 

 

Not Applicable

(Translation of Registrant’s name into English)

 

Delaware   2870   27-1967997

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

600 County Road D West

Suite 8

New Brighton, MN 55112

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

 

 

Calyxt, Inc.

600 County Road D West

Suite 8

New Brighton, MN 55112

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

 

  Copies to:  

Richard D. Truesdell, Jr.

Derek J. Dostal

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

(212) 450-4000

   

Shayne Kennedy

Brian Cuneo

Brett Urig

Latham & Watkins LLP

650 Town Center Drive, 20th Floor

Costa Mesa, California 92626

(714) 540-1235

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.

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, 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.  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer   ☒  (Do not check if a smaller reporting company)    Smaller reporting company  
     Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has not elected to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

 

 

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.

 

 

 


Explanatory Note

The sole purpose of this Amendment No. 1 to the Company’s Registration Statement on Form S-1 is to amend the Exhibit Index and to file Exhibits 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.20, 10.21, 10.22, 10.23, 10.24 and 10.25. Accordingly, this Amendment No. 1 consists only of the facing page, this explanatory note, Part II, including the signature page and the Exhibit Index, and the Exhibits filed herewith. This Amendment No. 1 does not contain a copy of the prospectus that was included in the Company’s Registration Statement on Form S-1 and is not intended to amend or delete any part of the prospectus.


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 13. Other Expenses of Issuance and Distribution

 

     Amount to Be
Paid
 

SEC registration fee

   $ 5,795  

FINRA filing fee

     7,500  

NASDAQ listing fee

     25,000  

Transfer agent’s and registrar’s fees

     *  

Printing and engraving expenses

     *  

Legal fees and expenses

     *  

Accounting fees and expenses

     *  

Blue Sky fees and expenses

     *  

Miscellaneous

     *  
  

 

 

 

Total

   $ *  
  

 

 

 

 

* To be completed by amendment.

Each of the amounts set forth above, other than the registration fee and the FINRA filing fee, is an estimate.

Item 14. Indemnification of Directors and Officers

Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. The registrant’s By-laws provide for indemnification by the registrant of its directors, officers and employees to the fullest extent permitted by the Delaware General Corporation Law. The registrant also expects to enter into indemnification agreements with each of its directors at or prior to completion of the offering contemplated by this registration statement to provide these directors additional contractual assurances regarding the scope of the indemnification set forth in the registrant’s Certificate of Incorporation and amended and restated By-laws and to provide additional procedural protections. There is no pending litigation or proceeding involving a director or executive officer of the registrant for which indemnification is sought.

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. The registrant’s Certificate of Incorporation provides for such limitation of liability.

The registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (b) to the registrant with respect to payments which may be made by the registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.

 

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The proposed form of underwriting agreement filed as Exhibit 1.1 to this registration statement will provide for indemnification of directors and officers of the registrant by the underwriters against certain liabilities.

Item 15. Recent Sales of Unregistered Securities

We have not sold any securities, registered or otherwise, within the past three years, except for the following:

On October 1, 2015, we entered into an amended and restated contribution with Cellectis pursuant to which Cellectis contributed $40 million to us in exchange for 7,000,000 shares of our common stock. The $40 million contribution consisted of $30 million of cash and the conversion to equity of $10 million of loans and outstanding obligations owed by us to Cellectis. The issuance of the shares was made pursuant to the exemption provided by Section 4(a)(2) of the Securities Act of 1933.

In fiscal year 2017, the Registrant granted to its director, employees and consultants options to purchase an aggregate of              shares under its equity compensation plans at exercise prices ranging from $             to $             per share.

In fiscal year 2016, the Registrant granted to its director, employees and consultants options to purchase an aggregate of             shares under its equity compensation plans at exercise prices ranging from $             to $             per share.

In fiscal year 2015, the Registrant granted to its director, employees and consultants options to purchase an aggregate of              shares under its equity compensation plans at exercise prices ranging from $             to $             per share.

In fiscal year 2014, the Registrant granted to its director, employees and consultants options to purchase an aggregate of              shares under its equity compensation plans at exercise prices ranging from $             to $             per share.

Option grants and the issuances of common stock upon exercise of such options were exempt pursuant to Rule 701 and Section 4(a)(2) of the Securities Act.

Item 16. Exhibits and Financial Statement Schedules

Reference is herein made to the attached Exhibit Index, which is incorporated herein by reference.

Item 17. Undertakings

The undersigned registrant hereby undertakes:

(a) The undersigned registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.

(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions referenced in Item 14 of this registration statement, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in

 

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connection with the securities being registered hereunder, the registrant 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 of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

(c) The undersigned registrant hereby undertakes that:

(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 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 of 1933, 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 the 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, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in New Brighton, State of Minnesota, on the 3rd day of July, 2017.

 

CALYXT, INC.
By:  

/s/ Federico A. Tripodi

  Name: Federico A. Tripodi
  Title: Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

/s/ Federico A. Tripodi

 

Chief Executive Officer

(principal executive officer)

  July 3, 2017
Federico A. Tripodi    

/s/ Bryan W. J. Corkal

 

Chief Financial Officer

(principal financial and accounting officer)

  July 3, 2017
Bryan W. J. Corkal    

*

André Choulika

  Chairman   July 3, 2017

 

*By:   /s/ Bryan W. J. Corkal
  Bryan W. J. Corkal, as Attorney-in-Fact

 

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EXHIBIT INDEX

 

Exhibit
Number

  

Description

  1.1**    Form of Underwriting Agreement
  3.1**    Form of Certificate of Incorporation
  3.2**    Form of By-laws
  5.1*    Opinion of Davis Polk & Wardwell LLP
10.1**    Management Services Agreement between Cellectis S.A., Cellectis, Inc. and Calyxt, Inc., dated as of January 1, 2016
10.2**    Form of Management Services Agreement Amendment
10.3**    Form of Separation Agreement between Cellectis S.A. and Calyxt, Inc.
10.4**    Form of Stockholders Agreement
10.5    Form of License Agreement between Cellectis S.A. and Calyxt, Inc.
10.6#    Exclusive Patent License Agreement between Regents of the University of Minnesota and Calyxt Inc. (f.k.a. Cellectis Plant Sciences, Inc.), dated December 15, 2014
10.7#    Commercial License Agreement between Two Blades Foundation and Calyxt, Inc. (f.k.a. Cellectis Plant Sciences, Inc.), dated December 9, 2014
10.8#    First Amendment to the Commercial License Agreement between Two Blades Foundation and Calyxt, Inc. (f.k.a. Cellectis Plant Sciences, Inc.), dated December 1, 2016
10.9#
   Letter Agreement between Two Blades Foundation and Calyxt, Inc. (f.k.a. Cellectis Plant Sciences, Inc.), dated December 31, 2015
10.10#    Exclusive License Agreement between Plant Bioscience Limited and Calyxt, Inc. (f.k.a. Cellectis Plant Sciences, Inc.), dated April 25, 2015
10.11**    Calyxt, Inc. Equity Incentive Plan
10.12**    Form of Stock Option Agreement pursuant to the Calyxt, Inc. Equity Incentive Plan
10.13**    Offer Letter between Calyxt, Inc. and Federico A. Tripodi, dated May 6, 2016
10.14**    Offer Letter between Calyxt, Inc. and Bryan W. J. Corkal, dated November 16, 2016
10.15**    Consulting Agreement between Calyxt, Inc. (f.k.a. Cellectis Plant Sciences, Inc.) and Daniel Voytas, dated January 1, 2010
10.16**
   Amendment 1 to Consulting Agreement between Calyxt, Inc. (f.k.a. Cellectis Plant Sciences, Inc.) and Daniel Voytas, dated December 21, 2012
10.17**    Composite Employment Agreement among Cellectis, S.A., Calyxt, Inc. (f.k.a. Cellectis Plant Sciences, Inc.) and Luc Mathis, dated January 1, 2006, as last amended July 1, 2016
10.18**    Offer Letter between Calyxt, Inc. and Gregory Smith, dated April 24, 2015
10.19**    Severance Agreement between Calyxt, Inc. and Gregory Smith, effective March 22, 2016
10.20    Calyxt, Inc. 2017 Omnibus Incentive Plan
10.21    Calyxt, Inc. 2017 Stock Option Sub-Plan for French Employees and Directors
10.22
   Form of Stock Option Agreement pursuant to the Calyxt, Inc. 2017 Omnibus Incentive Plan

 

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Exhibit
Number

  

Description

10.23    Form of Restrictive Stock Unit Agreement pursuant to the Calyxt, Inc. 2017 Omnibus Incentive Plan
10.24    Form of Resolution with regard to the Grant of Warrants to purchase shares of Cellectis S.A.
10.25    Calyxt, Inc. 2017 Restricted Stock Unit Sub-Plan for French Employees and Directors
23.1**    Consent of Independent Registered Certified Public Accounting Firm
23.2*    Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
24.1**    Power of Attorney

 

* To be filed by amendment
** Previously filed
# Confidential treatment has been requested for portions of this exhibit. These portions have been omitted from the registration statement and submitted separately to the United States Securities and Exchange Commission.

 

II-6

Exhibit 10.5

LICENSE AGREEMENT

This LICENSE AGREEMENT (this “ Agreement ”), dated as of [•], 2017 (the “ Effective Date ”), is entered into by and between Cellectis S.A., a corporation existing and registered under the laws of France, located at 8 rue de la Croix Jarry, 75013 Paris, France (“ Cellectis ”), and Calyxt, Inc., a corporation existing and registered under the laws of Delaware, located at 600 County Road D West, Suite 8, New Brighton, MN 55112, USA (“ Calyxt ”) (each a “ Party ” and collectively, the “ Parties ”).

W I T N E S S E T H:

WHEREAS, Cellectis owns or otherwise controls certain Intellectual Property Rights and desires to grant to Calyxt, and Calyxt desires to receive from Cellectis, a license to use and otherwise exploit such Intellectual Property Rights, in each case upon the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE 1

D EFINITIONS

Section 1.01. Definitions . (a) For purposes of this Agreement, the following terms shall have the following meanings:

Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person, whether now or in the future. For purposes of this definition, (i) “ control ” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “ controlling ” and “ controlled ” have correlative meanings and (ii) neither Cellectis nor any of its Subsidiaries shall be considered to be an Affiliate of Calyxt or any of its Subsidiaries (and vice versa).

Applicable Law ” means, with respect to any Person, any transnational, domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise.

Bare Sublicense ” means any sublicense granted by Calyxt to any third party of rights to some or all of the Licensed Cellectis Patents pursuant to Section 2.03, without any Calyxt Licensed Product developed by or in collaboration with Calyxt.

 

1


Bare Sublicense Revenue ” means any and all consideration, payments and revenue (including the fair market value of any non-cash consideration) received by Calyxt pursuant to any Bare Sublicense.

Business Day ” means a day, other than Saturday, Sunday or other day on which commercial banks in Paris, France are authorized or required by Applicable Law to close.

Calyxt Field ” means the field of researching, developing and commercializing agricultural and food products, including, but not limited to traits, seeds, proteins, oils, carbohydrates, food, and food and animal feed ingredients, excluding any application in connection with animals and animal cells.

“Calyxt Improvement” means any improvements, modifications, refinements to, enhancements, derivatives or combinations of, any Licensed Cellectis IP made by Calyxt or any of its Affiliates after the Effective Date and all Intellectual Property Rights in any of the foregoing.

Calyxt Improvement Patents ” means any Patents owned or controlled by Calyxt or any of its Affiliates Covering any Calyxt Improvements.

Calyxt Licensed Products ” means any and all products (i) the creation, generation, development, making or use of which is, in whole or in part, Covered by a Licensed Cellectis Patent, or (ii) which is created, generated, bred or made by use of a process Covered by a Licensed Cellectis Patent. For sake of clarity, any plant or seed which contains one or more modifications made using a process Covered by any of the Licensed Cellectis Patents, as well as any progeny of such plant or seed, any part of such plant or seed, and any product derived from such plant or seed (such as, for example, meal and oil derived from any soybean), is a Calyxt Licensed Product.

Cellectis Improvement ” means any improvements, modifications or refinements to, or enhancements or derivatives of any Licensed Cellectis IP made by Cellectis or any of its Affiliates after the Effective Date and all Intellectual Property Rights in any of the foregoing.

Confidential Information ” means any and all non-public, proprietary or other confidential information disclosed by a Party (“ disclosing party ”) to the other Party (“ receiving party ”) and includes all information licensed hereunder without the need for any further notice or marking, excluding any information that: (i) the receiving party independently develops without reference to the disclosed information; (ii) the receiving party independently receives on a non-confidential and authorized basis from a source other than the disclosing party; (iii) becomes public knowledge through no fault of the receiving party; or (iv) is in the public domain at the time the receiving party receives the disclosed information.

Cover ” means, with respect to any product, service or process, and any Intellectual Property Right, that the manufacture, use, offer for sale, sale, distribution, importation, development or other commercialization of such product, service or process would, but for any ownership of or license under such Intellectual Property Right, constitute an infringement, misappropriation or other violation of any of such Intellectual Property Right. “ Covered ” and “ Covering ” have correlative meanings.

 

2


Exclusively Licensed Cellectis Patents ” means any and all Licensed Cellectis Patents exclusively related to the Calyxt Field for which Calyxt is granted exclusive rights under the Calyxt License.

Governmental Authority ” means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative authority, department, court, agency or official, including any political subdivision thereof.

Intellectual Property Rights ” means any and all intellectual property rights or similar proprietary rights throughout the world, including all (i) national and multinational statutory invention registrations and similar statutory rights, patents and patent applications, including all provisionals, non-provisionals, divisionals, continuations, continuations-in-part, reissues, renewals, reexaminations, extensions, supplemental protection certificates and the equivalents of any of the foregoing in any jurisdiction, and all inventions disclosed in any of the foregoing (“ Patents ”); (ii) trademarks, service marks, certification marks, logos, trade names, trade dress, domain names and other indications of origin, including all registrations and applications for registration of, and all goodwill associated with, any of the foregoing (“ Trademarks ”); (iii) copyrights and registrations and applications for registration thereof, including all derivative works, moral rights, renewals, extensions, reversions or restorations associated with such copyrights, regardless of the medium of fixation or means of expression; (iv) trade secrets, know-how and other confidential or proprietary information (including processes, techniques and research and development information); and (v) mask works, industrial designs (whether or not registered), database rights, publicity rights and privacy rights.

Licensable ” means, with respect to any Intellectual Property Right, that a Person has the power and authority to grant a license (or sublicense, as the case may be), on the applicable terms and conditions of this Agreement, to such Intellectual Property Right without any of the following: (i) the consent of any third party (unless such consent can be obtained without providing any additional consideration to such third party); (ii) impairing such Person’s existing rights in respect of such Intellectual Property Right (it being understood that the grant of any license hereunder, in and of itself, shall not be construed as an impairment of any of such Person’s rights); (iii) imposing any additional obligations on such Person under any preexisting agreement relating to such Intellectual Property Right; and/or (iv) the payment of royalties or other consideration on or after the Effective Date by such Person to any third party under any preexisting agreement relating to such Intellectual Property Right (other than to the University of Minnesota pursuant to the UMinn License). For the avoidance of doubt, in no event shall any Intellectual Property Right be “ Licensable ” if any of the foregoing conditions in clauses (i)-(iv) apply.

Licensed Cellectis IP ” means the (i) Licensed Cellectis Patents; and (ii) Other Licensed Intellectual Property Rights.

 

3


Licensed Cellectis Patents ” means any and all Patents that are: (i) related to the Calyxt Field; (ii) necessary for Calyxt to operate in the Calyxt Field; and (iii) Licensable by Cellectis and existing as of the Effective Date.

Licensed TALEN Mark ” means the trademark “TALEN” and all registrations and applications for registration thereof, in each case as owned by Cellectis as of the Effective Date, including the registration set forth on Schedule A .

Net Sales ” means, with respect to any Calyxt Licensed Product, the gross amount invoiced by Calyxt or any of its sublicensees for any such Calyxt Licensed Product, in each case less (i) all trade, quantity, and cash discounts actually allowed; (ii) all credits and allowances actually granted due to rejections, returns, billing errors, and retroactive price reductions; (iii) applicable duties; (iv) all credits or allowances given or made for uncollectible amounts and for which a provision is made in Calyxt’s financial statements; (v) the commodity price for seed and grain; and (vi) applicable excise, sale and use taxes. Net Sales shall also include the fair market value of all other consideration received as consideration for the sale or disposition of any Calyxt Licensed Product, whether such consideration is in cash, payment in kind, exchange or another form. Net Sales shall be determined by using generally accepted accounting principles consistently applied.

“Non-Exclusive Field” means the field of researching, developing and commercializing a modified or mutated I-CreI homing endonuclease that is a homodimer, heterodimer or single chain endonuclease, but solely to the extent the foregoing falls within the Calyxt Field.

“Other Licensed Intellectual Property Rights” means any and all know-how and other Intellectual Property Rights (excluding any Patents and Trademarks) that are (i) related to the Calyxt Field; (ii) necessary for Calyxt to operate in the Calyxt Field; and (iii) Licensable by Cellectis and existing as of the Effective Date.

“Patent-Related Expenses” means costs and expenses (including out-of-pocket attorneys’ fees, patent agent fees and governmental filing fees) that Cellectis or any of its Affiliates incurs in prosecuting and maintaining the Licensed Cellectis Patents which are exclusively and solely related to the Calyxt Field.

Person ” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority.

Royalty Term ” means, with respect to any Calyxt Licensed Product in any jurisdiction, the period commencing on the Effective Date and ending upon the expiration of the last-to-expire Valid Claim Covering such Calyxt Licensed Product in such jurisdiction.

Sublicense Revenue Term ” means the period commencing on the Effective Date and ending upon the expiration of the last-to-expire Valid Claim.

 

4


Subsidiary ” means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person.

UMinn License ” means the Exclusive Patent License Agreement between the University of Minnesota and Cellectis dated as of January 10, 2011 (as amended, including by the First Amendment to the Exclusive Patent License Agreement, dated as of May 24, 2012, Second Amendment to the Exclusive Patent License Agreement, dated as of April 1, 2014, and Third Amendment to the Exclusive Patent License Agreement, dated as of December 16, 2015).

University of Minnesota ” means the Regents of the University of Minnesota.

Valid Claim ” means any (i) claim in any unexpired and issued Patent included in the Licensed Cellectis Patents that has not been (A) disclaimed, revoked or held invalid or unenforceable by a decision of a court or other Governmental Authority of competent jurisdiction from which no appeal (other than an appeal to the highest appellate court of such jurisdiction) can be taken, or with respect to which an appeal is not taken within the time allowed for appeal, or (B) irretrievably abandoned, disclaimed or admitted to be invalid or unenforceable by Cellectis through reissue, disclaimer or otherwise, or (ii) pending claim in a pending Patent application included in the Licensed Cellectis Patents that has not been abandoned or finally rejected without the possibility of appeal or refiling.

(b) Each of the following terms is defined in the Section set forth opposite such term:

 

Term

   Section

Agreement

   Preamble

Calyxt

   Preamble

Calyxt License

   2.01

Calyxt TM License

   2.02

Cellectis

   Preamble

Controlling Party

   9.02

Effective Date

   Preamble

Indemnified Party

   8.03

Indemnifying Party

   8.03

Infringement

   9.02

Losses

   8.01

Necessary Third Party License

   5.02

Negotiation Period

   2.06

Non-Controlling Party

   9.02

Option Period

   2.06

Parties

   Preamble

Party

   Preamble

Remainder

   9.02

Third Party Claim

   8.03

UMinn IP

   2.04

 

5


Section 1.02. Other Definitional and Interpretative Provisions . The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections and Schedules are to Articles, Sections and Schedules of this Agreement unless otherwise specified. All Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law”, “laws” or to a particular statute or law shall be deemed also to include any and all Applicable Law.

ARTICLE 2

G RANT O F L ICENSE

Section 2.01. Calyxt License. Subject to the terms and conditions of this Agreement, Cellectis hereby grants to Calyxt an exclusive (except as otherwise provided herein and subject to existing licenses granted by Cellectis to third parties prior to the Effective Date) worldwide, perpetual license, with the right to sublicense (in accordance with Section 2.03) under the Licensed Cellectis IP to use, have used, make, have made, sell, have sold, offer for sale, export, import and otherwise exploit any and all Calyxt Licensed Products within the Calyxt Field (the “ Calyxt License ”). Notwithstanding the foregoing, the Calyxt License shall be non-exclusive solely in the Non-Exclusive Field, such that the rights as set forth above in this Section 2.01 are granted to Calyxt on a non-exclusive basis in the Non-Exclusive Field under the Calyxt License.

Section 2.02 . Trademark License Grant . Subject to the terms and conditions of this Agreement, Cellectis hereby grants to Calyxt a worldwide, non-exclusive, sublicensable (in accordance with Section 2.03), royalty-free and fully paid-up, non-transferable (except as set forth in Section 11.01) license under the Licensed TALEN Mark to use, make, have made, sell, offer for sale, import and otherwise exploit any and all Calyxt Licensed Products within the Calyxt Field (the “ Calyxt TM License ”).

 

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Section 2.03. Sublicense Rights. The Calyxt License and the Calyxt TM License include the right of Calyxt to grant sublicenses to any Person; provided that (a) any such sublicense shall be in writing and automatically terminate upon any termination of this Agreement (it being understood that any such sublicense shall include express terms and conditions to effect such automatic termination); (b) sublicensees of the Calyxt License shall not be permitted to grant further sublicenses thereunder with respect to any UMinn IP (as defined below); (c) Calyxt shall cause each of its sublicensees to abide by all applicable terms and conditions of this Agreement, enforce such terms and conditions and the provisions of any sublicense against each such sublicensee; and (d) Calyxt shall remain responsible and liable to Cellectis for the performance of each such sublicensee’s obligations and for all acts or omissions of such sublicensee as if they were acts of Calyxt under this Agreement.

Section 2.04. UMinn License. The Parties acknowledge and agree that Calyxt has received a copy of the UMinn License and certain Licensed Cellectis IP is owned by the University of Minnesota (“ UMinn IP ”) and the Calyxt License with respect to the UMinn IP is granted as a sublicense under, and subject to the terms and conditions of, the UMinn License. Accordingly, in exercising its rights under the Calyxt License, Calyxt shall comply with any and all terms and conditions of the UMinn License as they would apply to Calyxt as a sublicensee with respect to any UMinn IP. Without limiting the generality of the foregoing, promptly following receipt of written notice thereof, Calyxt shall reimburse Cellectis for any and all payments made by Cellectis to the University of Minnesota pursuant to Sections 11.6.4 (Milestone Payments), 11.11 (Annual Fee), and 11.12 (Commercialization Fee) of the UMinn License, but solely to the extent that any such payments are required as a result of the applicable activities of Calyxt hereunder or thereunder. Calyxt shall not be liable to the University of Minnesota for any other payments other than those as specifically set forth in the previous sentence. Without the prior written consent of Calyxt, Cellectis shall not (A) terminate the UMinn License, or (B) amend or waive any rights under the UMinn License in any manner that would reasonably be expected to have a material adverse effect on any of Calyxt’s rights under this Agreement. In addition, Calyxt shall provide, and shall cause its sublicensees to provide, to Cellectis all reports, information and other assistance in connection with Calyxt’s and its sublicensees’ activities pursuant to this Agreement that are reasonably required to enable Calyxt to comply with its obligations under the UMinn License.

Section 2.05. Calyxt Improvements. (a) As between the Parties, any and all Calyxt Improvements shall be solely and exclusively owned by Calyxt.

(b) Subject to the terms and conditions of this Agreement, Calyxt, on behalf of itself and its Affiliates, hereby grants to Cellectis and its Affiliates an exclusive, perpetual, worldwide, sublicensable, non-transferable (except as set forth in Section 11.01), royalty-free and fully paid-up license to use and otherwise exploit Calyxt Improvements for any purpose outside of the Calyxt Field. On a continuing basis during the term of this Agreement, Calyxt shall promptly make available to Cellectis all Calyxt Improvements then in existence that are necessary or reasonably useful for the commercialization of such Calyxt Improvements by Cellectis outside of the Calyxt Field, and provide Cellectis with all reasonable assistance to enable Cellectis to understand and use such Calyxt Improvement. Calyxt shall use commercially reasonable efforts to identify and disclose all Calyxt Improvements based on facts known to Calyxt, as well as in response to specific requests made by Cellectis.

 

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Section 2.06. Calyxt Option on Cellectis Improvements . Solely during the period in which Cellectis and its Affiliates own, in the aggregate, a number of Calyxt common shares equal to at least fifty percent (50%) of the then outstanding common shares of Calyxt, Cellectis shall promptly disclose to Calyxt all Cellectis Improvements then in existence that are necessary or reasonably useful for the commercialization of such Cellectis Improvements by Calyxt in the Calyxt Field, and provide Calyxt an option to obtain a license within the Calyxt Field. Calyxt may exercise its option by sending a written notice to Cellectis within thirty (30) days after it has the knowledge of such Cellectis Improvements (the “ Option Period ”). If Calyxt has exercised its option within the Option Period to obtain such a license, then for a period of thirty (30) days after Cellectis receives such notice from Calyxt (the “ Negotiation Period ”), the Parties shall, in good faith, negotiate the terms and conditions of a definitive agreement pursuant to which Cellectis would grant Calyxt a royalty-bearing license with respect to such Cellectis Improvement; provided that if Calyxt does not exercise its option within the Option Period, or if the Parties do not agree on the terms and conditions of such a definitive agreement for such license within the Negotiation Period, Cellectis shall be free to grant any third party any license or other rights with respect to such Cellectis Improvement.

Section 2.07. No Other Licenses . Except as expressly provided in this Agreement, no other licenses are granted to either Party under this Agreement. Each Party acknowledges and agrees that (a) any use by Calyxt or any of its sublicensees of the Licensed Cellectis IP outside the scope of the Calyxt License or the Licensed TALEN Mark outside the scope of the Calyxt TM License is expressly prohibited and (b) any use by Cellectis or any of its sublicensees of the Calyxt Improvements outside the scope of the licenses granted to Cellectis or any of its sublicensees pursuant to Section 2.05 is expressly prohibited.

ARTICLE 3

L ICENSED TALEN M ARK ; Q UALITY C ONTROL

Section 3.01. Quality Control . Cellectis reserves the right to practice reasonable quality control with regard to the use of the Licensed TALEN Mark by Calyxt or any of its sublicensees and Calyxt shall, and shall cause its sublicensees to, adhere to such quality, appearance, reputational, distinctiveness and other standards with respect to the use of the Licensed TALEN Mark and with respect to the goods and services sold or rendered under the Licensed TALEN Mark as Cellectis may require from time to time. Calyxt hereby acknowledges the validity of the Licensed TALEN Mark and Cellectis’ exclusive right, title, and interest in and to the Licensed TALEN Mark, subject to the license granted hereunder. Calyxt shall, and shall cause its sublicensees to, (a) not take any action or make any statement which would reasonably be expected to damage the reputation or goodwill associated with Cellectis, any of its Affiliates, or the Licensed TALEN Mark, or to prejudice, infringe or impair the rights of Cellectis with respect to the Licensed TALEN Mark and (b) comply with all Applicable Law governing the use of the Licensed TALEN Mark, including all services performed under the Licensed TALEN Mark and all goods to which the Licensed TALEN Mark is applied. At Calyxt’s sole expense, Calyxt shall supply, and shall cause its sublicensees to supply, Cellectis with specimens of all uses of the Licensed TALEN Mark upon the reasonable request of Cellectis.

 

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Section 3.02. Reservation of Rights; Ownership. (a) Calyxt, on behalf of itself and its sublicensees, acknowledges and agrees that (i) Cellectis is the sole and exclusive owner of all right, title and interest in and to the Licensed TALEN Mark; (ii) Cellectis shall have the sole and exclusive right to prosecute and maintain the Licensed TALEN Mark; and (iii) neither Calyxt nor any of its sublicensees has acquired, and shall not acquire, any right, title or interest in or to the Licensed TALEN Mark other than the rights expressly set forth in this Agreement. Calyxt shall cooperate with Cellectis in taking all appropriate measures for the protection of the Licensed TALEN Mark.

(b) Calyxt shall not, and shall cause its sublicensees not to, (i) challenge the validity, enforceability or ownership of the Licensed TALEN Mark or claim adversely or assist in any claim adverse to Cellectis concerning any right, title or interest in the Licensed TALEN Mark; (ii) do or permit any act which may directly or indirectly impair or prejudice Cellectis’ title to the Licensed TALEN Mark or be detrimental to the reputation and goodwill of Cellectis or any of its Affiliates, including any act which might assist or give rise to any application to remove or de-register any of the Licensed TALEN Mark; or (iii) register or attempt to register any trademarks for any words, names, graphics, or other source identifiers that are identical or confusingly similar to the Licensed TALEN Mark. All use of the Licensed TALEN Mark by Calyxt and any of its sublicensees, and all goodwill associated with such use, shall inure to the benefit of Cellectis.

Section 3.03. Trademark Notice . In connection with the use of the Licensed TALEN Mark, Calyxt and its sublicensees shall mark each use with the registered trademark symbol, “ ® ,” or such other trademark notice symbol as designated by Cellectis.

ARTICLE 4

COMMERCIALIZATION

Section 4.01 Commercialization and Performance Milestones . Calyxt shall use its commercially reasonable efforts, and shall require all sublicensees to use commercially reasonable efforts, in each case consistent with sound and reasonable business practices and judgment, to commercialize the Licensed Cellectis Patents in the Calyxt Field and to manufacture, offer to sell and sell Calyxt Licensed Products as soon as practicable and to maximize sales thereof.

Section 4.02 Covenants Regarding the Manufacture of Licensed Products . Calyxt hereby covenants and agrees, and shall require all sublicensees to covenant and agree, that (a) the manufacture, use, sale, or transfer of Calyxt Licensed Products shall comply with all Applicable Laws, including all federal export laws and regulations; and (b) it will make commercially reasonable efforts such that the Calyxt Licensed Products shall not be defective in design or manufacture. Calyxt hereby further covenants and agrees that, pursuant to 35 United States Code Section 204, it shall, and it shall cause each sublicensee, to substantially manufacture in the United States of America all products embodying or produced through the use of an invention that is subject to the rights of the federal government of the United States of America.

 

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Section 4.03 Export and Regulatory Compliance . Calyxt understands that the Arms Export Control Act (AECA), including its implementing International Traffic In Arms Regulations (ITAR) and the Export Administration Act (EAA), including its Export Administration Regulations (EAR), are some (but not all) of the laws and regulations that comprise the U.S. export laws and regulations. Calyxt further understands that the U.S. export laws and regulations include (but are not limited to): (i) ITAR and EAR product/service/data-specific requirements; (ii) ITAR and EAR ultimate destination-specific requirements; (iii) LIAR and EAR end user-specific requirements; (iv) Foreign Corrupt Practices Act; and (v) antiboycott laws and regulations. Calyxt shall comply with all then-current applicable export laws and regulations of the U.S. Government (and other applicable U.S. laws and regulations) pertaining to the Calyxt Licensed Products (including any associated products, items, articles, computer software, media, services, technical data, and other information). Calyxt certifies that it shall not, directly or indirectly, export (including any deemed export), nor re-export (including any deemed re-export) the Calyxt Licensed Products (including any associated products, items, articles, computer software, media, services, technical data, and other information) in violation of U.S. export laws and regulations or other applicable U.S. laws and regulations. Calyxt shall include an appropriate provision in its agreements with its authorized sublicensees to assure that these parties comply with all then-current applicable U.S. export laws and regulations and other applicable U.S. laws and regulations.

Section 4.04 Commercialization Reports . As requested by Cellectis in writing, no more than once per year, Calyxt shall deliver to Cellectis written reports of Calyxt’s and its sublicensees’ efforts and plans to commercialize the Licensed Cellectis Patents in the Calyxt Field and to manufacture, offer to sell, or sell Calyxt Licensed Products.

Section 4.05 Use of Cellectis and University of Minnesota Names and Trademarks . Except for the Licensed TALEN Mark, no provision of this Agreement grants Calyxt or any of its sublicensees any right or license to use the name, logo, or any marks owned by or associated with Cellectis, the University of Minnesota or the names, or identities of any member of the faculty, staff, or student body of the University of Minnesota. Calyxt shall not use and shall not permit any of its sublicensees to use any such logos, marks, names, or identities without the prior written approval of Cellectis or the University of Minnesota, as applicable.

Section 4.06 Governmental Markings .

(a) Calyxt and its sublicensees may mark all Calyxt Licensed Products in a manner consistent with their current patent marking practices for their own products and Applicable Laws. Where marking is to be performed but the Calyxt Licensed Product cannot be marked, the patent notice shall be placed on associated tags, labels, packaging, or accompanying documentation (either electronic or paper) as appropriate.

 

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(b) Calyxt and its sublicensees are solely responsible for obtaining all necessary approvals from Governmental Authorities for the development, production, distribution, sale, and use of any Calyxt Licensed Product, at Calyxt’s expense, including, without limitation, any safety studies. Calyxt is solely responsible for including with the Calyxt Licensed Product any warning labels, packaging and instructions as to the use and the quality control for such Calyxt Licensed Product.

(c) Calyxt agrees to register this Agreement with any foreign Governmental Authority that requires such registration, and Calyxt shall pay all costs and legal fees in connection with such registration. Calyxt shall comply with all foreign laws affecting this Agreement or the sale of Calyxt Licensed Products.

ARTICLE 5

R OYALTIES AND B ARE S UBLICENSE R EVENUE

Section 5.01. Royalties and Bare Sublicense Revenue. As consideration for the Calyxt License, Calyxt shall pay to Cellectis the following amounts during the following periods:

(a) With respect to each Calyxt Licensed Product in any jurisdiction, three percent (3%) of all Net Sales of such Calyxt Licensed Product in such jurisdiction during the Royalty Term for such Calyxt Licensed Product; and

(b) thirty percent (30%) of all Bare Sublicense Revenue during the Sublicense Revenue Term.

Section 5.02. Royalty Stacking for Third Party Rights . (a) If Calyxt is presently required, or in the future is required, to secure a royalty-bearing or fee-bearing license under any patent to use, make, have made, sell, offer for sale or import any Calyxt Licensed Product in the Calyxt Field in any jurisdiction (a “ Necessary Third Party License ”), then, during the period in which Calyxt is required to make royalty payments to the licensor under such Necessary Third Party License, Calyxt shall have the right to reduce the royalty rate contemplated in Section 5.01(a) with respect to the Net Sales of such Calyxt Licensed Product in such jurisdiction by an amount equal to one quarter (1/4) of the royalty rate payable to such licensor pursuant to such Necessary Third Party License; provided that, in no event shall the royalty rate contemplated in Section 5.01(a) with respect to any Net Sales of any Calyxt Licensed Product be reduced to less than two percent (2%). If such Necessary Third Party License includes a royalty stacking provision of like intent to this Section 5.02, the royalty rate reduction provided for in this Section 5.02 will be calculated as if such provision in such Necessary Third Party License were absent. For the avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, in no event shall any agreement to which Calyxt is a party as of or prior to the Effective Date be deemed a Necessary Third Party License under this Agreement.

 

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(b) Without limiting Section 5.02(a), and by way of example only:

(i) If, after the Effective Date, Calyxt is required to enter into a Necessary Third Party License, pursuant to which Calyxt is required to pay the licensor thereunder a royalty of two percent (2%) of the net sales of a Calyxt Licensed Product in a jurisdiction, then, during the period in which such royalty is required to be paid, the royalty rate contemplated in Section 5.01(a) with respect to the Net Sales of such Calyxt Licensed Product in such jurisdiction would equal two and one half percent (2.5%).

(ii) If, after the Effective Date, Calyxt is required to enter into a Necessary Third Party License, pursuant to which Calyxt is required to pay the licensor thereunder a royalty of eight percent (8%) of the net sales of a Calyxt Licensed Product in a jurisdiction, then, during the period in which such royalty is required to be paid, the royalty rate contemplated in Section 5.01(a) with respect to the Net Sales of such Calyxt Licensed Product in such jurisdiction would equal two percent (2%).

Section 5.03 . Reimbursement of Patent-Related Expenses . Commencing on the Effective Date, Calyxt shall pay all invoices issued by Cellectis or any of its Affiliates for any Patent-Related Expenses under this Agreement within thirty (30) days of its receipt of each such invoice.

Section 5.04. Reporting; Audit Rights. Calyxt shall render to Cellectis, on a calendar quarterly basis, commencing with the first calendar quarter after the Effective Date, a detailed written report of the royalties and Bare Sublicense Revenue due to Cellectis. Such report shall be accompanied by a remittance of such royalties and Bare Sublicense Revenue as shown to be due hereunder. Each report shall be rendered within thirty (30) days following the end of each calendar quarterly period. Calyxt shall keep books and records in sufficient detail to enable the royalty payments and Bare Sublicense Revenue due hereunder to be adequately determined. Once per calendar year, upon reasonable written notice, Cellectis or any third party owner of Patent rights included in the Licensed Cellectis IP shall have the right at its sole cost and expense to cause a nationally recognized independent certified public accountant reasonably acceptable to Calyxt to examine and inspect such books and records during Calyxt’s normal business hours, but only to the extent necessary to verify the computation of royalties and Bare Sublicense Revenue payable hereunder. Such books and records shall be deemed Confidential Information of Calyxt hereunder, and such nationally recognized independent certified public accountant shall disclose to Cellectis or such third party only the royalties and Bare Sublicense Revenue payable and the percentage under/overpayment by Calyxt. In the event that such examination determines that Calyxt has underpaid royalties and Bare Sublicense Revenue by more than three percent (3%), Calyxt shall reimburse Cellectis for its reasonable costs in conducting such examination. At Calyxt’s expense, Calyxt shall also provide Cellectis with all reasonably requested cooperation in connection with complying with any audit regarding the activities of Calyxt hereunder that is conducted by or on behalf of the University of Minnesota pursuant to the UMinn License.

Section 5.05. Method of Payment . Each payment by Calyxt hereunder shall be made by electronic transfer in immediately available funds, at Cellectis’ election, via either a bank wire transfer or any other means of electronic funds transfer to a bank account specified in writing by Cellectis to Calyxt. Cellectis may change such account by written notice at least five (5) Business Days before any payment is due. All royalties and Bare Sublicense Revenue of Calyxt

 

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shall be computed and paid in U.S. dollars. For the purposes of determining the amount of any royalties or Bare Sublicense Revenue due for any relevant calendar quarter, the amount of Net Sales or Bare Sublicense Revenue in any foreign currency shall be converted into U.S. dollars in a manner consistent with Calyxt’s customary practices used to prepare its audited financial reports. No more than once per calendar year, upon written request of Cellectis, Calyxt shall provide Cellectis with a written explanation of such customary practices of Calyxt.

Section 5.06. Withholding Taxes. To the extent either Party is required by Applicable Law to withhold or deduct any amounts from any payments to be made under this Agreement, such Party shall be entitled to withhold or deduct such amounts and such amounts shall be treated for all purposes of this Agreement as having been paid to the Party in respect of which such deduction and withholding were made. Each Party shall (in consultation and cooperation with the other) use commercially reasonable efforts to attempt to lawfully mitigate, reduce or avoid such withholdings or deductions. Promptly after the execution of this Agreement, Cellectis shall provide to Calyxt a valid Form W-8BEN-E establishing Cellectis’ right to a zero percent rate of withholding tax with respect to the amounts payable by Calyxt under this Article 5 under Article 12 of the United States – France income tax treaty.

ARTICLE 6

R EPRESENTATIONS AND W ARRANTIES ;

D ISCLAIMERS ; L IMITATION OF L IABILITY

Section 6.01. Mutual Representations and Warranties . As of the Effective Date, each Party hereby represents and warrants to the other Party that (a) the execution, delivery and performance by such Party of this Agreement are within such Party’s corporate powers and have been duly authorized by all necessary corporate action on the part of such Party and (b) this Agreement constitutes a valid and binding agreement of such Party enforceable against such Party in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).

Section 6.02. Disclaimers and Limitation of Liability . EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES IN SECTION 6.01, ALL LICENSES AND RIGHTS GRANTED HEREIN ARE MADE ON AN “AS IS” BASIS, AND THE PARTIES EACH HEREBY DISCLAIM ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, THOSE REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CALYXT ACKNOWLEDGES AND AGREES THAT ALL RIGHTS GRANTED TO CALYXT UNDER THIS AGREEMENT ARE SUBJECT IN ALL RESPECTS TO ANY AND ALL LICENSES OR OTHER RIGHTS GRANTED BY CELLECTIS OR ANY OF ITS AFFILIATES TO ANY THIRD PARTIES WITH RESPECT TO ANY LICENSED CELLECTIS IP AS OF OR PRIOR TO THE EFFECTIVE DATE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE UNDER

 

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ANY LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR OTHERWISE RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Section 6.03. University of Minnesota Disclaimer; Limitation of Liability; and Release.

(a) Calyxt acknowledges and agrees that the disclaimer, remedy limitation and damages cap provisions applicable to and exclusion of representations and warranties by the University Minnesota, set forth in Sections 10.2, 11.1 and 11.2 of the UMinn License shall apply with respect to Calyxt’s rights and remedies under this Agreement and such Sections are hereby incorporated by reference herein, mutatis mutandis.

(b) Calyxt, on behalf of itself and its Affiliates and its and their respective employees, hereby releases the University of Minnesota, Cellectis and their respective regents, employees and agents forever from any and all suits, actions, claims, liabilities, demands, damages, losses, and expenses (including reasonable attorneys’ and investigative expenses) relating to or arising out of the manufacture, use, lease, sale, or other disposition of any Calyxt Licensed Product.

ARTICLE 7

C ONFIDENTIALITY

Section 7.01. Confidentiality . (a) The receiving party shall keep confidential the disclosing party’s Confidential Information, and shall not use any of the disclosing party’s Confidential Information for any purpose other than the exercise of the receiving party’s rights, or as otherwise permitted, under this Agreement. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information as it would customarily take to preserve the confidentiality of its own similar type of confidential information and shall not disclose the disclosing party’s Confidential Information to any third party without the prior written consent of the disclosing party, except as expressly permitted hereunder. The receiving party may disclose the Confidential Information to (i) any of its employees, agents, independent contractors and sublicensees who need it in connection with this Agreement and are bound in writing by restrictions regarding disclosure and use of the Confidential Information comparable to and no less restrictive than those set forth herein or (ii) the extent it is in response to a valid order of a court or other Governmental Authority or to otherwise comply with Applicable Law; provided that, in the case of clause (ii), the receiving party shall first provide written notice to the disclosing party and reasonably cooperate with the disclosing party to obtain a protective order or other measures preserving the confidential treatment of such Confidential Information and requiring that the information or documents so disclosed be used only for the purposes for which the order was issued or is otherwise required by Applicable Law.

(b) The terms and conditions of this Agreement shall be deemed Confidential Information for the purposes of this Agreement; provided that each Party may disclose the terms and conditions of this Agreement: (i) in confidence, to its accountants, banks and present and prospective financing sources and their advisors; (ii) in connection with the enforcement of this Agreement or rights under

 

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this Agreement; (iii) in confidence, in connection with an actual or proposed merger, acquisition or similar transaction involving such Party; (iv) in confidence, to its Affiliates; (v) in confidence, to its third party independent contractors who have a need to know, solely in connection with their provision of services to such Party; (vi) as required by applicable securities laws or the rules of any stock exchange on which securities of such Party are traded or any other Applicable Law; or (vii) as mutually agreed upon by the Parties in writing.

A RTICLE 8

I NDEMNIFICATION

Section 8.01. Indemnification by Calyxt . Calyxt shall defend Cellectis and its Affiliates and their respective officers, directors, employees, contractors, customers and agents against any action, suit, proceeding or other claim, and indemnify and hold each of them harmless from any and all damages, liabilities, expenses, and other losses (including reasonable attorneys’ fees and court costs) (“ Losses ”) to the extent arising from any (a) breach of this Agreement by Calyxt; (b) breach of the UMinn License caused by any activities of Calyxt or its sublicensees; (c) use, making, having made, sale, offer for sale, importation or any other exploitation of any Calyxt Licensed Products or any exploitation of the Licensed Cellectis IP by Calyxt or any of its sublicensees; (d) gross negligence or willful misconduct by Calyxt; and/or (e) violation of Applicable Law by Calyxt.

Section 8.02. Indemnification by Cellectis . Cellectis shall defend Calyxt and its Affiliates and their respective officers, directors, employees, and agents against any action, suit, proceeding or other claim, and indemnify and hold each of them harmless from any and all Losses to the extent arising from any (a) breach of this Agreement by Cellectis; (b) gross negligence or willful misconduct by Cellectis; and/or (c) violation of Applicable Law by Cellectis.

Section 8.03. Third Party Claim Procedures . (a) The Party seeking indemnification under Section 8.01 or 8.02 (the “ Indemnified Party ”) shall give prompt notice in writing to the Party against whom indemnity is to be sought (the “ Indemnifying Party ”) of the assertion of any claim or the commencement of any action, suit, proceeding or other claim by any third party (“ Third Party Claim ”) in respect of which indemnity may be sought under such Section. Such notice shall set forth in reasonable detail such Third Party Claim and the basis for indemnification (taking into account the information then available to the Indemnified Party). The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have actually prejudiced the Indemnifying Party.

(b) The Indemnifying Party shall be entitled to participate in the defense of any Third Party Claim and, subject to the limitations set forth in this Section, shall be entitled to control and appoint lead counsel for such defense, in each case at its own expense; provided that prior to assuming control of such defense, the Indemnifying Party must acknowledge that it would have an indemnity obligation for the Losses resulting from such Third Party Claim as provided under this Article 8.

 

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(c) The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third Party Claim and shall pay the fees and expenses of counsel retained by the Indemnified Party if (i) the Indemnifying Party does not deliver the acknowledgment referred to in Section 8.03(b) within thirty (30) days of receipt of notice of the Third Party Claim pursuant to Section 8.03(a); (ii) the Third Party Claim relates to or arises in connection with any criminal action, proceeding or claim; (iii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates; or (iv) the Indemnifying Party has failed or is failing to prosecute or defend vigorously the Third Party Claim.

(d) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 8.03, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of such Third Party Claim.

(e) In circumstances where the Indemnifying Party is controlling the defense of a Third Party Claim in accordance with paragraphs (b) and (c) above, the Indemnified Party shall be entitled to participate in the defense of any Third Party Claim and to employ separate counsel of its choice for such purpose, in which case the fees and expenses of such separate counsel shall be borne by the Indemnified Party; provided that in such event the Indemnifying Party shall pay the fees and expenses of such separate counsel (i) incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of the defense of the Third Party Claim or (ii) if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest.

(f) Each Party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.

Section 8.04. Direct Claim Procedures . In the event that an Indemnified Party has a claim for indemnity under Section 8.01 or 8.02 against an Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party shall give prompt notice in writing of such claim to the Indemnifying Party. Such notice shall set forth in reasonable detail such claim and the basis for indemnification (taking into account the information then available to the Indemnified Party). The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have actually prejudiced the Indemnifying Party.

A RTICLE 9

P ROSECUTION , M AINTENANCE ; L ITIGATION

Section 9.01 . Prosecution and Maintenance . (a) As between the Parties, Cellectis shall have the sole and exclusive right to prosecute and maintain the Licensed Cellectis IP and Licensed TALEN Mark (it being understood that, and Calyxt acknowledges and agrees that, pursuant to the UMinn License, the University of Minnesota has the sole and exclusive right to

 

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prosecute and maintain the UMinn IP). Subject to any rights granted to any third parties prior to the date hereof with respect to any Exclusively Licensed Cellectis Patents, Cellectis shall (i) keep Calyxt reasonably informed of all steps to be taken in connection with the prosecution and maintenance of the Exclusively Licensed Cellectis Patents, and (ii) consider in good faith (or, in the case of any Exclusively Licensed Cellectis Patents being prosecuted by the University of Minnesota, use commercially reasonable efforts to cause the University of Minnesota to consider in good faith) all reasonable comments and suggestions by Calyxt regarding such matters, including in respect of any actions, decisions, applications, amendments, submissions or correspondence related thereto. Notwithstanding the foregoing, subject to any rights granted to any third parties prior to the date hereof with respect to any Exclusively Licensed Cellectis Patents, in the event that Cellectis elects to abandon or otherwise cease prosecuting and maintaining any Exclusively Licensed Cellectis Patent (excluding the Patents licensed to Cellectis under the UMinn License), prior to any such abandonment, Calyxt shall have the option to acquire at no cost any such Exclusively Licensed Cellectis Patent and assume the responsibility for the prosecution and maintenance of such Exclusively Licensed Cellectis Patent (it being understood that, in the event that Calyxt exercises such option to acquire such Exclusively Licensed Cellectis Patent, (A) Cellectis shall execute and deliver any documents and perform any other acts, in each case as may be reasonably necessary to effect the foregoing and (B) effective as of Calyxt acquiring ownership of such Exclusively Licensed Cellectis Patent, such Exclusively Licensed Cellectis Patent shall thereafter be automatically deemed to be licensed to Cellectis under the licenses granted to Cellectis pursuant to Section 2.05).

(b) As between the Parties, Calyxt shall have the sole and exclusive right to prosecute and maintain all Intellectual Property Rights owned or otherwise controlled by Calyxt or any of its Affiliates, including all Intellectual Property Rights in or to any Calyxt Improvements. To the extent that any Calyxt Improvement Patents relate to any subject matter outside of the Calyxt Field, Calyxt shall (i) keep Cellectis reasonably informed of all steps to be taken in connection with the prosecution and maintenance of such Calyxt Improvement Patents, and (ii) consider in good faith all reasonable comments and suggestions by Cellectis regarding such matters, including in respect of any actions, decisions, applications, amendments, submissions or correspondence related thereto. Notwithstanding the foregoing, in the event that Calyxt elects to abandon or otherwise cease prosecuting or maintaining any such Calyxt Improvement Patent related to any subject matter outside of the Calyxt Field, prior to any such abandonment, Cellectis shall have the option to acquire at no cost any such Calyxt Improvement Patent and assume the responsibility for the prosecution and maintenance of such Calyxt Improvement Patent (it being understood that, in the event that Cellectis exercises such option to acquire such Calyxt Improvement Patent, (x) Calyxt shall execute and deliver any documents and perform any other acts, in each case as may be reasonably necessary to effect the foregoing and (y) effective as of Cellectis acquiring ownership of such Calyxt Improvement Patent, such Calyxt Improvement Patent shall thereafter be automatically deemed to be licensed to Calyxt under the Calyxt License).

Section 9.02. Litigation . (a) If either Party becomes aware of any actual or threatened infringement or other violation by any third party of any Licensed Cellectis Patent or Calyxt Improvement Patent, or any challenge to any Licensed Cellectis Patent or Calyxt Improvement Patent by any third party, then such Party shall promptly notify the other Party in writing thereof.

 

17


(b) Cellectis shall have the first right, but not the obligation, at its expense and using counsel of its choice, to enforce any Licensed Cellectis Patent against any Person or defend any challenge with respect to any such Licensed Cellectis Patent. Cellectis shall have sole and exclusive control of any decisions or other aspects of any such enforcement or defense; provided that if Cellectis elects to not (i) enforce any Exclusively Licensed Cellectis Patent against any infringement or other violation of the exclusive rights granted to Calyxt under the Calyxt License or (ii) defend any such Exclusively Licensed Cellectis Patent from any challenge that would be reasonably expected to have a material adverse effect on Calyxt’s exclusive rights under the Calyxt License, then in either case (but only to the extent that prior to the date hereof Cellectis has not granted any third party any right to enforce or defend any such Exclusively Licensed Cellectis Patent), Cellectis shall promptly provide Calyxt with written notice of such election and, following receipt of such notice, Calyxt may, at its sole option and expense, enforce its rights under or defend any challenge to such Exclusively Licensed Cellectis Patent, as applicable.

(c) Calyxt shall have the first right, but not the obligation, at its expense and using counsel of its choice, to enforce any Calyxt Improvement Patent against any Person or defend any challenge with respect to any such Calyxt Improvement Patent. Calyxt shall have sole and exclusive control of any decisions or other aspects of any such enforcement or defense; provided that if Calyxt elects to not (i) enforce any such Calyxt Improvement Patent against any infringement or other violation thereof outside of the Calyxt Field or (ii) defend any such Calyxt Improvement Patent from any challenge that would be reasonably expected to have a material adverse effect on Cellectis’ rights under the licenses granted to Cellectis pursuant to Section 2.05, then in either case, Calyxt shall promptly provide Cellectis with written notice of such election and, following receipt of such notice, Cellectis may, at its sole option and expense, enforce its rights under or defend any challenge to such Calyxt Improvement Patent, as applicable.

(d) The Party controlling any enforcement or defense under Section 9.02(b) or 9.02(c) (the “ Controlling Party ”) shall keep the other Party (the “ Non-Controlling Party ”) reasonably and regularly informed of the status and progress of such enforcement or defense efforts, and shall reasonably consider the Non-Controlling Party’s comments on any such efforts. The Non-Controlling Party shall provide the Controlling Party with all reasonable assistance in the enforcement or defense of any Exclusively Licensed Cellectis Patents or Calyxt Improvement Patents, as applicable, as the Controlling Party may reasonably request, including by signing or executing any necessary documents and consenting to it being named a party to any applicable proceedings. The Non-Controlling Party shall have the right to be represented in any enforcement or defense of any Exclusively Licensed Cellectis Patents or Calyxt Improvement Patents, as applicable, by counsel of its choice and at its own expense. Neither Party shall settle any action, suit, proceeding or other claim involving any Exclusively Licensed Cellectis Patent or Calyxt Improvement Patent in any manner without the prior written consent of the other Party, such consent not to be unreasonably withheld.

 

18


(e) Any recoveries resulting from an action, suit, proceeding or other claim brought by a Party under Section 9.02(b) or 9.02(c) shall be first applied against payment of each Party’s costs and expenses in connection therewith. Any such recoveries in excess of such costs and expenses (the “ Remainder ”) shall be retained by the Controlling Party; provided that if Calyxt is the Controlling Party, the Remainder with respect to any enforcement of the Exclusively Licensed Cellectis Patents shall be included in Net Sales and Bare Sublicense Revenue, as applicable, for purposes of calculating royalties and payments owed to Cellectis hereunder.

(f) For the avoidance of doubt, as between the Parties, (i) Cellectis shall have the sole and exclusive right, but not the obligation, to bring and control any legal action in connection with any actual, alleged, or threatened infringement of any Licensed Cellectis Patents (A) outside of the Calyxt Field and (B) within the Non-Exclusive Field, in each case at Cellectis’ own expense as it reasonably determines appropriate and (ii) Calyxt shall have the sole and exclusive right, but not the obligation, to bring and control any legal action in connection with any actual, alleged, or threatened infringement of any Calyxt Improvement Patents within the Calyxt Field at its own expense as it reasonably determines appropriate.

ARTICLE 10

T ERM AND T ERMINATION

Section 10.01. Term. This Agreement shall remain in full force and effect in perpetuity unless earlier terminated, in whole or in part, pursuant to Section 10.02 or 10.03.

Section 10.02. Mutual Agreement. This Agreement may be terminated in its entirety at any time upon the mutual written agreement of the Parties.

Section 10.03. For Cause. Either Party may, by written notice to the other Party, immediately terminate this Agreement (a) if such other Party is in material breach of any provision of this Agreement (it being understood that if such breach is capable of being cured, such other Party shall have the right to cure such breach within sixty (60) days of receiving written notice thereof) and (b) upon the bankruptcy, dissolution or winding up of such other Party, or the making or seeking to make or arrange an assignment for the benefit of creditors of such other Party, or the initiation of proceedings in voluntary or involuntary bankruptcy, or the appointment of a receiver or trustee of such other Party’s property that is not discharged within ninety (90) days.

Section 10.04. Survival . Notwithstanding anything in this Agreement to the contrary, Sections 2.05(a), 2.07, 3.02, 5.04, 6.02, 6.03, 9.02(f) and 10.04, and Articles 7, 8 and 11 shall survive any expiration or termination of this Agreement.

 

19


ARTICLE 11

M ISCELLANEOUS

Section 11.01. Assignment. Neither this Agreement nor any rights or obligations hereunder may be assigned or otherwise transferred by either Party, in whole or in part, whether voluntarily or by operation of Applicable Law, without the prior written consent of the other Party; provided that either Party may, without the consent of the other Party, assign or otherwise transfer this Agreement to (a) any of its Affiliates or (b) any successor to all or substantially all of the assets or business of such Party to which this Agreement relates. Any attempted assignment or transfer in contravention of this Section 11.01 shall be void ab initio .

Section 11.02 . Notices. All notices, requests and other communications to either Party hereunder shall be in writing (including facsimile transmission and electronic mail transmission, so long as a receipt of such electronic mail is requested and received) and shall be given,

if to Cellectis, to:

Cellectis S.A.

8 rue de la Croix Jarry

75013 Paris, France

Attention: Marie-Bleuenn Terrier

E-mail: marie-bleuenn.terrier@cellectis.com

if to Calyxt, to:

Calyxt, Inc.

600 County Road D West, Suite 8

New Brighton, MN 55112

Attention: Federico A. Tripodi

E-mail: Federico.tripodi@calyxt.com

or such other address or facsimile number as such Party may hereafter specify for the purpose by notice to the other Party. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

Section 11.03. Amendments and Waivers . (a) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each Party, or in the case of a waiver, by the Party against whom the waiver is to be effective.

(b) No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Applicable Law.

 

20


Section 11.04. Expenses . Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense.

Section 11.05. Governing Law . This Agreement shall be governed by and construed in accordance with the laws of France

Section 11.06. Jurisdiction . The Parties agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in a court of competent jurisdiction sitting in Paris, France and each of the Parties hereby irrevocably consents to the exclusive jurisdiction of such court (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each Party agrees that service of process on such Party as provided in Section 11.02 shall be deemed effective service of process on such Party.

Section 11.07. WAIVER OF JURY TRIAL . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 11.08. Counterparts; Effectiveness; Third Party Beneficiaries . This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party shall have received a counterpart hereof signed by the other Parties. Until and unless each Party has received a counterpart hereof signed by the other Party, this Agreement shall have no effect and neither Party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns; provided that the University of Minnesota shall be a third party beneficiary of Section 6.03.

Section 11.09. Entire Agreement . This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, both oral and written, between the Parties with respect to the subject matter hereof and thereof.

 

21


Section 11.10. Relationship of the Parties. Nothing contained in this Agreement is intended or shall be deemed to make either Party the agent, employee, partner or joint venturer of the other Party or be deemed to provide such Party with the power or authority to act on behalf of the other Party or to bind the other Party to any contract, agreement or arrangement with any other individual or entity.

Section 11.11 . Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either Party. Upon such a determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 11.12 . Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any court set forth in Section 11.06, in addition to any other remedy to which they are entitled at law or in equity.

[Remainder of page intentionally left blank]

 

22


IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first written above.

 

CELLECTIS S.A.
By:  

 

  Name:
  Title:

 

CALYXT, INC.
By:  

 

  Name:
  Title:

 

23


Schedule A

Licensed TALEN Mark

 

Mark

  

Serial No.

  

Registration No.

  

Filing Date

  

Registration Date

  

Country

TALEN

   79/107519    4,729,507    October 27, 2011    May 5, 2015    U.S.

 

A-1

Exhibit 10.6

CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

 

Internal University Use Only

OTC Agreement No.: A20150013

OTC Case No.(s): 20130204

Document Revision Date: 2014-12-01

U NIVERSITY OF M INNESOTA

EXCLUSIVE PATENT LICENSE AGREEMENT

THIS EXCLUSIVE PATENT LICENSE AGREEMENT (this “Agreement”) is made by and between Regents of the University of Minnesota, a constitutional corporation under the laws of the state of Minnesota, having a place of business at 200 Oak Street, SE, Suite 280, Minneapolis, Minnesota 55455 (the “University”), and the Licensee identified below. The University and the Licensee agree that:

The Terms and Conditions of Exclusive Patent License attached hereto as Exhibit A (the “Terms and Conditions”) are incorporated herein by reference in their entirety. In the event of a conflict between provisions of this Agreement and the Terms and Conditions, the provisions in this Agreement shall govern. Capitalized terms used in this Agreement without definition shall have the meanings given to them in the Terms and Conditions. The section numbers used in the parentheses below correspond to the section numbers in the Terms and Conditions.

1. Licensee (§1.7): Cellectis Plant Sciences a Corporation under the laws of the Delaware, having a place of business at 600 County Road West, Suite 8 New Brighton, MN 55112, USA and its Affiliates.

2. Field(s) of Use (§1.2): All

3. Territory (§1.15): Any country or territory where issued and unexpired Licensed Patents and/or Licensed Patent Applications exist.

4. Effective Date (§2): Date of the last signature of the Agreement.

5. Licensed Technology:

5.1 Licensed Patent: None

 

FORM OGC-401    Execution Copy
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

 

1


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

5.2 Licensed Patent Applications (§1.4):

[*****]

6. Patent-Related Expenses (§§1.9 & 6.3): [Select one of the following]

 

  The Licensee has no obligation under this Agreement to reimburse the University for Patent-Related Expenses.

 

  The Licensee shall reimburse the University for Patent-Related Expenses incurred before and during the Term as provided in section 6.3 of the attached Terms and Conditions. Patent Related Expenses incurred before the Term are [*****].

 

  The Licensee shall reimburse the University for Patent-Related Expenses incurred during the Term as provided in section 6.3 of the Terms and Conditions. The Licensee shall have no obligation to reimburse the University for Patent-Related Expenses incurred before the Effective Date.

 

  The Licensee shall reimburse the University for Patent-Related Expenses incurred before the Effective Date, payable as follows:                     . The Licensee shall have no obligation to reimburse the University for Patent-Related Expenses during the Term.

7. Sublicense Rights (§3.1.2): [Select one of the following]

 

  Yes

 

  No

8. Federal Government Rights (§3.2): [Select one of the following]

 

  Yes

 

  No

 

FORM OGC-401    Execution Copy
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

 

2


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

9. Performance Milestones (§5.1): The Licensee shall achieve the following milestones:

[*****]

[*****]

10. Payments (§6.1). All amounts are non-refundable, and payable as defined below or as specified in the University’s invoice.

10.1 Upfront Payment : One Hundred Thirty Thousand dollars ($130,000.00), payable within ten (10) business days after the Effective Date.

10.2 Annual License Fee :

[*****]

10.3 Running Royalties and Annual Minimums.

10.3.1 Intentionally left blank.

10.3.2 Intentionally left blank.

10.4   10.4.1 Sublicense Royalties. Intentionally left blank.

10.4.2 Sublicense Revenues. Licensee shall pay the University [*****] of all Sublicense Revenues in accordance with the payment schedule set forth below.

Within sixty (60) days after January 10 and July 10, each year during the Term and Post termination Period, the Licensee shall deliver to the University a written report recounting the Sublicense Revenues (expressed in U.S. dollars). The Licensee shall deliver along with such sales reports its payment owed on all Sublicense Revenues by the Licensee during such period.

10.5 Other Payments: None

 

FORM OGC-401    Execution Copy
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

 

3


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

10.6 Equity: None

10.7 Transfer Payment: [*****], payable as provided in section 12.5 of the Terms and Conditions.

10.8 Administrative Handling Fee: [*****], payable as provided in subsection 8.1.1 of the Terms and Conditions.

10.9 Interest Rate: [*****] per annum.

10.10 Other: None

11. Licensee’s Address for Notice (§12.13). Notices will be sent to the licensee at:

 

  

Cellectis Plant Sciences

8 rue de la Croix Jarry,

75013 Paris

Attn: Chief Executive Officer

Facsimile No.: +33 18169 16 06

Email: Luc.mathis@cellectis.com

With a copy to   

Cellectis, SA

8 rue de la Croix Jarry,

75013 Paris

Attn: General Counsel

Facsimile No.: +33 18169 16 06

Email: marie.bleuenn.terrier@cellectis.com

12. Licensee’s Contact Person for Patent Prosecution Consultation (§4.2.1). The University will, as set forth in this Agreement, communicate with the contact person named below with respect to patent prosecution and maintenance: (Upon ten (10) days prior written notice to the University, the Licensee may change the person designated below.)

 

  

CELLECTIS SA

Attn: Vice President

Intellectual Property

8 rue de la Croix Jarry,

75013 Paris

Attn: Chief Executive Officer

Facsimile No.: +33 (0) 18169 16 06

Email: sylvain.espinasse@cellectis.com

 

FORM OGC-401    Execution Copy
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

 

4


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

IN WITNESS THEREOF, the parties hereto have caused their duly authorized representatives to execute this Agreement.

 

Regents of the University of Minnesota     Cellectis Plant Sciences, Inc .
By:  

/s/ Richard Huebsch

    By:  

/s/ Luc Mathis

  Richard Huebsch     Name:   Luc Mathis
  Associate Director     Title:   CEO
  Office for Technology Commercialization      
Date:   12-2-14     Date:   12-15-14

 

FORM OGC-401    Execution Copy
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

 

5


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

U NIVERSITY OF M INNESOTA

EXHIBIT A

Terms and Conditions

Exclusive Patent License Agreement

These terms and conditions to the Exclusive Patent License Agreement (“Terms and Conditions”) govern the grant of license by Regents of the University of Minnesota (“University”) to the Licensee identified in the Exclusive Patent License Agreement (the “EPLA”). These Terms and Conditions are incorporated by reference into the EPLA. All section references in these Terms and Conditions refer to provisions in these Terms and Conditions unless explicitly stated otherwise.

1. Definitions. For purposes of interpreting this Agreement, the following terms have the following meanings:

1.1 “Affiliate” means an entity that controls the Licensee or the sublicensee, as the case may be, is controlled by the Licensee or sublicensee, or along with the Licensee or sublicensee, is under the common control of a Third Party. An entity shall be deemed to have control of the controlled entity if it (i) owns, directly or indirectly, fifty percent (50%) or more of the outstanding voting securities of the controlled entity, or (ii) has the right, power or authority, directly or indirectly, to direct or cause the direction of the policy decisions of the controlled entity, whether by ownership of securities, by representation on the controlled entity’s governing body, by contract, or otherwise.

1.2 “Commercial Sale” means a bona fide sale, use, lease, transfer or other disposition for value of a Licensed Product by the Licensee or a sublicensee to a Third Party that is not an Affiliate of the Licensee.

1.3 “Field of Use” means the field(s) of use described in section 2 of the EPLA.

1.4 “Licensed Patent” means the patent(s) described in section 5.1 of the EPLA, along with any issued and unexpired patent(s) issued during the Term that arose out of a Licensed Patent Application. “Licensed Patent” also means any reissues or reexaminations of a Licensed Patent that contain one or more claims directed to Licensed Technology.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-1


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

1.5 “Licensed Patent Application” means the pending patent application(s) described in section 5.2 of the EPLA. “Licensed Patent Application” also means any related applications, including, continuations, continuations-in-part, and divisionals of a Licensed Patent Application.

1.6 “Licensed Product” means any product or good in the Field of Use that is made by, made for, sold, transferred, or otherwise disposed of by the Licensee or its sublicensees during the Term and the Post-termination Period and that, but for the granting of the rights set forth in this Agreement, would (i) infringe (including under the doctrine of equivalents) one or more claims in a Licensed Patent; or (ii) is covered by one or more claims in a Licensed Patent Application, or any product or good that is made using a process or method that, but for the granting of rights set forth in this Agreement, would (i) infringe (including under the doctrine of equivalents) one or more claims in a Licensed Patent; or (ii) is covered by one or more claims in a Licensed Patent Application. For purposes of this Agreement, claims in a Licensed Patent Application are to be treated as if they were allowed as proposed. “Licensed Product” also means any service provided by or for the Licensee or its sublicensees, but for the granting of the rights set forth in this Agreement, would (i) infringe (including under the doctrine of equivalents) one or more claims in a Licensed Patent; or (ii) is covered by one or more claims in a Licensed Patent Application.

1.7 “Licensed Technology” means collectively the inventions claimed in each Licensed Patent and each Licensed Patent Application.

1.8 “Licensee” means the entity identified in section 1 of the EPLA.

1.9 “Patent-Related Expenses” means costs and expenses (including out-of-pocket attorneys’ fees, patent agent fees and governmental filing fees) that the University incurs in prosecuting and maintaining the Licensed Technology.

1.10 “Performance Milestone” means an act or event specified in section 5.1 and described in section 9 of the EPLA.

1.11 “Post-termination Period” means the one hundred eighty (180) day period commencing on the date of termination or expiration of the Term.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-2


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

1.12 “Sublicense Revenues” means all revenue, in whatever form but excluding sublicense royalties, earned by the Licensee in consideration of its granting a Third Party a sublicense to make a Licensed Product including, without limitation, receipt of annual milestone attainment, sublicense issuance, maintenance or up-front payments, or technology access fee; and issuance of securities or real, personal or intangible property.

1.13 “Territory” means the geographical area described in section 3 of the EPLA.

1.14 “Third Party” means any party other than the University or Licensee or Affiliates’ Licensee.

1.15 “Transfer Payment” means the payment to be made by the Licensee to the University specified in section 12.5 and described in section 10 of the EPLA.

2. Term . The term of this Agreement commences on the Effective Date as defined in section 4 of the EPLA and, unless terminated earlier as provided in section 8, expires on the date on which both no Licensed Patent is active in the Territory and no Licensed Patent Application is pending in the Territory (the “Term”).

3. Grant of License .

3.1 The Licensee’s Rights.

3.1.1 Subject to the terms and conditions of this Agreement, the University hereby grants to the Licensee, and the Licensee hereby accepts, an exclusive license under the Licensed Technology, the Licensed Patents and the Licensed Patent Applications to make (including to have made on its behalf), use, offer to sell or sell (including to have sold on its behalf), offer to lease or lease (including to have leased on its behalf), import, or otherwise offer to dispose or dispose of Licensed Products in the Field of Use in the Territory. No provision of this Agreement is to be construed to grant the Licensee, by implication, estoppel or otherwise, any rights (other than the rights expressly granted it in this Agreement) to the Licensed Technology, a Licensed Patent or Licensed Patent Application, or to any other University-owned technology, patent applications, or patents.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-3


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

3.1.2 The Licensee shall not sublicense its rights under this Agreement, unless otherwise provided in section 7 of the EPLA. If so provided, the Licensee may sublicense its rights under this Agreement only as follows: the Licensee shall deliver to the University a true, correct, and redacted copy (provided that all rights, obligations, and financial provisions relating to the Licensed Patents and Licensed Patent Applications shall not be redacted) of the sublicense agreement or other agreement under which the Licensee purports or intends to grant such sublicense rights within ten (10) days after the entry into force of such agreement. The Licensee shall not enter into such agreement if the terms of the agreement are inconsistent in any respect with the terms of this Agreement, including without limitation, sections 5.2—5.5, 6.5, 8.3, 9.5, 10.4, and 11.3. Any sublicense made in violation of this subsection is void and constitutes an event of default under subsection 8.1.1.

For the avoidance of doubt, the Licensee may grant to sublicensees the right to grant further sublicenses to use the Licensed Technology but only for the purpose of breeding and/or manufacturing and/or selling Licensed Products.

3.2 The United States Government’s Rights. If the University indicated in section 8 of the EPLA that the United States federal government funded the development, in whole or in part, of the Licensed Technology, then, (i) the federal government may have certain rights in and to the Licensed Technology as those rights are described in Chapter 18, Title 35 of the United States Code and accompanying regulations, including Part 401, Chapter 37 of the Code of Federal Regulations. (ii) the parties’ rights and obligations with respect to the Licensed Technology, including the grant of license set forth in subsection 3.1.1, are subject to the applicable terms of these laws and regulations.

3.3 The University’s Rights. The University retains an irrevocable, world-wide, royalty-free, non-exclusive right to use the licensed Technology for teaching, research and educational purposes. The University shall have the right to sublicense its rights under this section to one or more non-profit academic or research institutions.

4. Applications and Patents.

4.1 Pre-EPLA Patent Filings. The Licensee acknowledges that it has reviewed each Licensed Patent and each Licensed Patent Application and that it will not dispute the inventorship, validity, or enforceability of any of the claims made in a Licensed Patent or a Licensed Patent Application. The Licensee further represents that up to the Effective Date, it has

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-4


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

not and does not manufacture, have manufactured, offer to sell, sell, offer to lease, lease, or import (a) any product or good that infringes (including under the doctrine of equivalents) a claim in any Licensed Patent or Licensed Patent Application, or (b) any product or good that is made using a process or machine that infringes (including under the doctrine of equivalents) a claim in a Licensed Patent or Licensed Patent Application.

4.2 Patent Application Filings during the Term of this Agreement.

4.2.1 The University, in consultation with the Licensee, shall determine in which countries patent application(s) will be filed and prosecuted with respect to the Licensed Technology. The University shall retain counsel of its choice to file and prosecute such patent applications. The University shall inform the Licensee of the status of the prosecution of the patent application, including delivering to the Licensee pertinent notices, written and oral communications with governmental officials, and documents, and shall consult with the Licensee on the prosecution of the patent application. The Licensee shall cooperate with the University in the filing and prosecution of all patent applications with respect to the Licensed Technology. In furtherance of the foregoing, the Licensee shall notify the University, in writing, of the individual whom the Licensee has designated to consult and cooperate as provided in this subsection and is identified in section 12 of the EPLA. The Contact Person shall respond to the University’s request for consultation and cooperation on a pending matter within five business days or sooner as may be required under the circumstances. If the Contact Person fails to respond in such time period, the University, exercising its own judgment and discretion, may respond to the matter as it deems appropriate. Except as provided in subsection 4.2.2, the Licensee shall reimburse the University for all Patent-Related Expenses as provided in section 6.3 and in section 6 of the EPLA. Additionally, Licensee shall reimburse the University for Patent Related Expenses for prioritized patent examination (Track One) if the University, after consultation with Licensee, decides to pursue Track One.

4.2.2 The grant of license in section 3.1 and the definition of Territory in section 1.16 shall not extend to or include any country in which licensee elects, in writing to the University, not to pay or reimburse the payment of the cost, in whole or in part, to seek or maintain intellectual property protection.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-5


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

4.2.3 No provision of this Agreement limits, conditions, or otherwise affects the University’s right to prosecute a patent application with respect to the Licensed Technology in any country. The University retains the sole and exclusive right to file or otherwise prosecute a patent application with respect to the Licensed Technology. In no event shall the Licensee file a patent application with respect to the Licensed Technology. The Licensee shall cooperate with the University in the filing and prosecution of all patent applications with respect to the Licensed Technology.

4.3 Rights in the Licensed Patents and Licensed Patent Applications. No provision of this Agreement grants the Licensee any rights, titles, or interests (except for the grant of license in subsection 3.1.1) in the Licensed Patents or Licensed Patent Applications, notwithstanding the Licensee’s payment of all or any portion of the patent prosecution, maintenance, and related costs.

5. Commercialization .

5.1 Commercialization and Performance Milestones. The Licensee shall use its commercially reasonable efforts, consistent with sound and reasonable business practices and judgment, to commercialize the Licensed Technology and to manufacture and offer to sell and sell Licensed Products as soon as practicable and to maximize sales thereof. The Licensee shall perform, or shall cause to happen or be performed, as the case may be, all the performance milestones described in section 9 of the EPLA.

In case of non-achievement by the Licensee of the Performance Milestone indicated in the section 9 of the EPLA, the Parties will meet at the University of Minnesota or by telephone to discuss this Agreement.

5.2 Covenants Regarding the Manufacture of Licensed Products. The Licensee hereby covenants and agrees that (i) the manufacture, use, sale, or transfer of Licensed Products shall comply with all applicable federal and state laws, including all federal export laws and regulations; and (ii) it will make commercially reasonable efforts such that the Licensed Products shall not be defective in design or manufacture. The Licensee hereby further covenants and agrees that, pursuant to 35 United States Code Section 204, it shall, and it shall cause each sublicensee, to substantially manufacture in the United States of America all products embodying or produced through the use of an invention that is subject to the rights of the federal government of the United States of America, provided that the University will use reasonable efforts (i.e. contact the competent governmental authority, by phone call and e-mail, with Licensee administrative support) to obtain a waiver on behalf of Licensee. If the University anticipates that its efforts will exceed two hours of administrative time, the University will notify Licensee and will provide further efforts at Licensee’s expense to the extent administrative support is available.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-6


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

5.3 Export and Regulatory Compliance. The Licensee understands that the Arms Export Control Act (AECA), including its implementing International Traffic In Arms Regulations (ITAR,) and the Export Administration Act (EAA), including its Export Administration Regulations (EAR), are some (but not all) of the laws and regulations that comprise the U.S. export laws and regulations. Licensee further understands that the U.S. export laws and regulations include (but are not limited to): (i) ITAR and EAR product/service/data-specific requirements; (ii) ITAR and EAR ultimate destination-specific requirements; (iii) ITAR and EAR end user-specific requirements; (iv) Foreign Corrupt Practices Act; and (v) antiboycott laws and regulations. The Licensee shall comply with all then-current applicable export laws and regulations of the U.S. Government (and other applicable U.S. laws and regulations) pertaining to the Licensed Products (including any associated products, items, articles, computer software, media, services, technical data, and other information). The Licensee certifies that it shall not, directly or indirectly, export (including any deemed export), nor re-export (including any deemed re-export) the Licensed Products (including any associated products, items, articles, computer software, media, services, technical data, and other information) in violation of U.S. export laws and regulations or other applicable U.S. laws and regulations. The Licensee shall include an appropriate provision in its agreements with its authorized sublicensees to assure that these parties comply with all then-current applicable U.S. export laws and regulations and other applicable U.S. laws and regulations.

5.4 Commercialization Reports. Throughout the Term and during the Post- termination Period, and within thirty (30) days of the date specified in the schedule set forth in section 10 of the EPLA, the Licensee shall deliver to the University written reports of the Licensee’s and sublicensees’ (or any further sublicensees’) efforts and plans to commercialize the Licensed Technology and to manufacture, offer to sell, or sell Licensed Products.

5.5 Use of the University’s Name and Trademarks or the Names of University Faculty, Staff, or Students. No provision of this Agreement grants the Licensee or sublicensee any right or license to use the name, logo, or any marks owned by or associated with the University or the names, or identities of any member of the faculty, staff, or student body of the University. The Licensee shall not use and shall not permit a sublicensee to use any such logos, marks, names, or identities without the University’s and, as the case may be, such member’s prior written approval.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-7


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

5.6 Governmental Markings.

5.6.1 The Licensee may mark all Licensed Products, where feasible, with patent notice appropriate under Title 35, United States Code.

5.6.2 The Licensee is responsible for obtaining all necessary governmental approvals for the development, production, distribution, sale, and use of any Licensed Product, at the Licensee’s expense, including, without limitation, any safety studies. The Licensee is responsible for including with the Licensed Product any warning labels, packaging and instructions as to the use and the quality control for any Licensed Product.

5.6.3 The Licensee agrees to register this Agreement with any foreign governmental agency that requires such registration, and the Licensee shall pay all costs and legal fees in connection with such registration. The Licensee shall comply with all foreign laws affecting this Agreement or the sale of licensed Products.

6. Payments, Reimbursements, Reports, and Records .

6.1 Payments. The Licensee shall pay all amounts due under this Agreement by check (payable to the “Regents of the University of Minnesota” and sent to the address specified in section 12.13), wire transfer, or any other mutually agreed-upon method of payment, within thirty (30) days following the receipt by the Licensee of the University’s relevant and undisputed invoice.

6.2 Interest. All amounts due under this Agreement shall bear interest as provided in section 10.10 of the EPLA on the entire unpaid balance computed from the due date until the amount is paid.

6.3 Reimbursement of Patent-Related Expenses. The Licensee shall pay invoices for Patent-Related Expenses under this Agreement within thirty (30) days of its receipt of the University’s invoice. With respect to each invoice, the University shall use reasonable efforts to specify the date on which the Patent-Related Expense was incurred and the purpose of the expense (including, as applicable, a summary of patent attorney services giving rise to the expense); provided, however, the University is not required to disclose to the Licensee any information that is protected by the University’s attorney-client privilege. Patent-Related Expenses incurred as of the Effective Date are set forth in section 6 of the EPLA. The University reserves the right to require that Licensee provide and maintain a reasonable advance deposit with the University or some other form of security to ensure payment of Patent-Related Expenses.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-8


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

6.4 Records Retention and Audit Rights.

6.4.1 Throughout the Term and the Post-termination Period and for five (5) years thereafter, the Licensee, at its expense, shall keep and maintain and shall cause each sublicensee and each non-affiliated Third Party that manufactures, sells, leases, or otherwise disposes of Licensed Products on behalf of the Licensee to keep and maintain complete and accurate records of all sales, leases, and other dispositions of Licensed Products during the Term and the Post-termination Period and all other records related to this Agreement.

6.4.2 In connection with an audit, the Licensee, upon written request, shall deliver to the University and its representatives true, correct and complete copies of all documents and materials (including electronic records) reasonably relevant to the Licensee’s and sublicensees’ performance of this Agreement, including, without limitation, all sublicenses granted.

6.4.3 To determine the Licensee’s compliance with the terms of this Agreement, the University, at its expense (except as set forth in this subsection), may inspect and audit the Licensee’s records referred to in subsection 6.5.1 at the Licensee’s address as set forth in this Agreement or such other location(s) as the parties mutually agree during the Licensee’s normal business hours. The Licensee shall cooperate in the audit, including providing at no cost, commodious space in the Licensee’s place of business for the auditor. The Licensee shall reimburse the University for all its out-of-pocket expenses to inspect and audit such records if the University, in accordance with the results of such inspection and audit, determines that the Licensee has underpaid amounts owed to the University by at least [*****], whichever is smaller, in a reporting period. The Licensee shall cause each sublicensee and each non-affiliated Third Party that manufactures, sells, leases, or otherwise disposes of Licensed Products on behalf of the Licensee to grant the University a right to inspect and audit the sublicensee’s or Third Party’s records substantially similar to the rights granted the University in this subsection, if requested by University, but no more frequently than once every two years. In connection with, and

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-9


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

before the commencement of, an audit, if the Licensee requests in writing to the University, then prior to conducting such audit, the Licensee, the University and the auditor must enter into an agreement prohibiting the auditor and the University from disclosing the Licensee’s nonpublic, proprietary information to any Third Party without the Licensee’s prior written consent; provided, however, that consistent with generally accepted auditing standards and the auditor’s professional judgment, the auditor may disclose such information to the University and its agents, counsel, or consultants. The Licensee acknowledges that such an agreement is adequate to protect its legitimate interests, and the parties agree that there shall be no additional nondisclosure agreement demanded as a condition to the commencement of an audit and the University’s exercising its rights under this subsection.

6.5 Currency and Checks. All computations and payments made under this Agreement shall be in United States dollars. To determine the dollar value of transactions conducted in non-United States dollar currencies, the parties shall use the exchange rate for the currency into dollars as reported in the Wall Street Journal as the New York foreign exchange mid-range rate on the last business day of the month in which the transaction occurred.

7. Infringement.

7.1 If a party learns of substantial, credible evidence that a Third Party is making, using, or selling a product in the Field of Use in the Territory that infringes a Licensed Patent, such party shall promptly notify the other party in writing of the possible infringement and in such notice describe in detail the information suggesting infringement of the Licensed Patent. Prior to commencing any action to enforce a Licensed Patent, the parties shall enter into good faith negotiations on the desirability of bringing suit, the parties to the action, the selection of counsel, and such other matters as the parties may agree to discuss. No provision of this Agreement limits, conditions, or otherwise affects a party’s statutory and common-law rights to commence an action to enforce a Licensed Patent. In any such action, the parties agree to cooperate fully with each other and will use reasonable efforts to permit access to relevant personnel, records, papers, information, samples and specimens during regular business hours. Any amounts recovered (less amounts actually paid for reasonable attorney’s fees and legal expenses) by Licensee in any such action or settlement that constitute compensation for lost profits or sales will be considered subject to the royalty rate in subsection 10.3.1 of the EPLA. All other amounts recovered (less amounts actually paid for reasonable attorney’s fees and legal expenses) by Licensee in such action or settlement shall be considered subject to the rate for Sublicense Revenues in subsection 10.4.2 of the EPLA.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-10


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

7.2. If any suit, action or proceeding is brought or commenced against the Licensee alleging the infringement of a patent or other intellectual property right owned by a Third Party by reason of the manufacture, use or sale of Licensed Products, the Licensee shall give the University prompt notice thereof. If the validity of a Licensed Patent is questioned in such suit, action or proceeding, the Licensee shall have no right to make any settlement or compromise which affects the scope, validity, enforceability or otherwise the Licensed Patent without the University’s prior written approval. University shall provide reasonable assistance to Licensee in the defense of the Licensed Patent at Licensee’s expense.

8. Termination.

8.1. By the University.

8.1.1 If the Licensee breaches or fails to perform one or more of its obligations under this Agreement, the University may deliver a written notice of default to the Licensee. Without further action by a party, this Agreement shall terminate if (a) the University has not been paid the full amount of the Administrative Handling Fee set forth in section 10.9 of the EPLA, and (b) the default has not been cured in full within either sixty (60) days after the delivery to the Licensee of the notice of default if the default relates to a payment or reimbursement obligation under this Agreement, or ninety (90) days after the delivery to the Licensee of the notice of default if the default relates to any other matter.

8.1.2 The University may terminate this Agreement by delivering to the Licensee a written notice of termination at least ten (10) days before the date of termination if the Licensee (i) becomes insolvent; (ii) voluntarily files or has filed against it a petition under applicable bankruptcy or insolvency laws that the Licensee fails to have released within thirty (30) days after filing; (iii) proposes any dissolution, composition, or financial reorganization with creditors or if a receiver, trustee, custodian, or similar agent is appointed; or (iv) makes a general assignment for the benefit of creditors.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-11


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

8.1.3 The University may terminate this Agreement immediately by delivering to the Licensee a written notice of termination if the Licensee or its agents or representatives commences or maintains an action in any court of competent jurisdiction or a proceeding before any governmental agency asserting or alleging, in any respect, the invalidity or unenforceability of any of the Licensed Technology. The Licensee shall notify the University, in writing, at least thirty (30) days prior to the commencement of any such action or the institution of any such proceeding.

8.2 By the Licensee.

8.2.1 If the University breaches or fails to perform one or more of its duties under this Agreement, the Licensee may deliver to the University a written notice of default. The Licensee may terminate this Agreement by delivering to the University a written notice of termination if the default has not cured in full within ninety (90) days of the delivery to the University of the notice of default.

8.2.2 The Licensee may terminate this Agreement at any time by giving sixty (60) days written notice to the University.

8.3 Effect of termination.

8.3.1 Notwithstanding anything contained herein, in case of termination of this Agreement by the University pursuant to the terms herein, any sublicensee (each an “Exclusive Sublicensee” as further defined hereinafter) that has been granted exclusive rights under the Licensed Technology by Licensee, within a certain field (the “Exclusive Field”), shall have the right to substitute itself to licensee under this Agreement with respect to such Exclusive Field; provided Licensee has delivered to University written notice of the existence of the Exclusive Sublicensee prior to receipt of University’s notice of termination under Section 8 of the terms and Conditions, except that no prior written notice is required if such sublicensee became an Exclusive Sublicensee as a result of any change in the control of Licensee’s Affiliates. For any avoidance of doubt, (i) the terms and conditions applicable to Licensee with respect to such an Exclusive Field shall survive any termination and apply to such Exclusive Sublicensee which will be substituted under the Agreement; and (ii) substitution of an Exclusive Sublicensee with respect to rights and obligations of Licensee will not impact Licensee’s liability, rights and obligations accrued to Licensee up to the date of substitution. An “Exclusive Sublicensee” means any sublicensee that has been granted exclusive rights within an Exclusive Field by Licensee under the Licensed Technology prior to Licensee’s receipt of University’s notice of termination under Section 8 of the Terms and Conditions.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-12


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

8.3.2 Further, in addition to the rights conferred upon Exclusive Sublicensees in the previous paragraph, other sublicensees, upon termination of the Agreement by the University or by the Licensee, will have the right to obtain a direct license from the University (comparable in scope, grant and the same financial terms as the sublicense then held by such sublicensee with respect to the Licensed Technology) under the terms and conditions (other than with respect to the scope, grant and financial terms) of this Agreement; provided (i) the University consents to providing such a direct license, which consent shall not be unreasonably withheld, (ii) any such sublicensee is not then in default of its contractual obligations under the relevant sublicense agreement, (iii) any such sublicensee provides the University written notice of its desire to obtain a direct license within thirty (30) days following termination of this Agreement, and (iv) such sublicensee obtained a sublicense from Cellectis or its Affiliates before Licensee received a notice of termination pursuant to Section 8 of the Terms and Conditions.

8.3.3 Post-termination Period. The Licensee shall not use, or permit others to use, the Licensed Technology or manufacture or have manufactured Licensed Products after this Agreement terminates. If the Licensee terminates this Agreement under section 8.2, the Licensee may continue to offer to sell and sell, offer to lease and lease, and otherwise offer to dispose of or dispose of Licensed Products in the Territory that were manufactured before such termination. The Commercial Sales of Licensed Products during the Post-termination Period shall be governed by the terms of this Agreement, including the obligation to pay royalties on such Commercial Sales as provided in this Agreement. If the University terminates this Agreement under section 8.1, after the date of termination, the Licensee shall not offer to sell or sell, offer to lease or lease, or otherwise offer to dispose of or dispose of a Licensed Product in the Territory.

8.3.4 In case of termination, as mentioned in Section 8.2.2 of the Terms and Conditions (i) Licensee will pay to the University the amounts due under Section 10.2 and 10.4.2, within thirty (30) days by of the termination date under Section 8.2.2; and (ii) Licensee will pay the University the Annual License Fee for the succeeding year, within thirty (30) days of the termination date under Section 8.2.2.

9.Release, Indemnification, and Insurance.

9.1 The Licensee’s Release. For itself and its employees, the Licensee hereby releases the University and its regents, employees, and agents forever from any and all suits, actions, claims, liabilities, demands, damages, losses, or expenses (including reasonable attorneys’ and investigative expenses) relating to or arising out of the manufacture, use, lease, sale, or other disposition of a Licensed Product.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-13


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

9.2 The Licensee’s Indemnification. Throughout the Term and thereafter, the Licensee shall indemnify, defend, and hold the University and its regents, employees, and agents harmless from all suits, actions, claims, liabilities, demands, damages, losses, or expenses (including reasonable attorneys’ and investigative expenses), relating to or arising out of the Licensee’s exercises or attempt to exercise any of the rights or Licenses granted it under this Agreement, including without limitation, the manufacture, use, lease, sale, or other disposition of a licensed Product or the licensee’s breach of any term of this Agreement.

9.3 The University’s Indemnification. Subject to the limitations on liability set forth in section 11, throughout the Term and thereafter, the University shall indemnify, defend, and hold the Licensee and its directors, employees, and agents harmless from all suits, actions, claims, liabilities, demands, damages, losses, or expenses (including reasonable attorneys’ and investigative expenses) relating to or arising out of the University’s breach of any term of this Agreement.

9.4 The Licensee’s Insurance.

9.4.1 Throughout the Term, or during such other period as the parties agree in writing, the Licensee shall maintain, and shall cause each sublicensee to maintain, in full force and effect comprehensive general liability (“CGL”) insurance, with single claim limits acceptable to the University. Such insurance policy shall include coverage for claims that may be asserted by the University against the licensee under section 9.2 and for claims by a Third Party against the Licensee or the University arising out of the purchase or use of a Licensed Product. Such insurance policy must (i) name the University as an additional insured if the University so requests in writing and (ii) require the insurer to deliver written notice to the University at the address set forth in section 12.13, at least thirty (30) days before the termination of the policy. Upon receipt of the University’s written request, the Licensee shall deliver to the University a copy of the certificate of insurance for such policy.

9.4.2 The provisions of subsection 9.4.1 do not apply if the University agrees in writing to accept the Licensee’s or a sublicensee’s, as the case may be, self-insurance plan as adequate insurance.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-14


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

9.5 Sublicensees - Release. The Licensee shall cause each sublicensee to grant the University a release from liabilities substantially similar to the release granted in favor of the University in section 9.1.

10. Warranties.

10.1 Authority. Each party represents and warrants to the other party that it has full corporate power and authority to execute, deliver, and perform this Agreement, and that no other corporate proceedings by such party are necessary to authorize the party’s execution or delivery of this Agreement.

10.2 The University represents and warrants that (i) it is the sole owner of the Licensed Patent Application; (ii) the University’s Office for Technology Commercialization has not entered into an agreement granting to a Third Party the right to use the Licensed Technology for commercial purposes.

10.3 Disclaimers.

10.3.1 EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE IN SECTION 10.1, THE UNIVERSITY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS AND IMPLIED, CONCERNING THE LICENSED TECHNOLOGY, EACH LICENSED PATENT, EACH LICENSED PATENT APPLICATION, AND EACH LICENSED PRODUCT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.

10.3.2 The University expressly disclaims any warranties concerning and makes no representations:

 

  (i) that the Licensed Patent Applications will be allowed or granted or that a patent will issue from any Licensed Patent Application;

 

  (ii) concerning the validity, enforceability, interpretation of claims or scope of any Licensed Patent; or

 

  (iii) that the exercise of the rights or licenses granted to the Licensee under this Agreement will not infringe a Third Party’s patent or violate its intellectual property rights.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-15


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

10.4 Sublicensees - Warranties. The Licensee shall cause each sublicensee to give the University warranties and disclaimers and exclusions of warranties substantially similar to the warranty and disclaimers and exclusions of warranties in favor of the University in section 10.1 and subsections 10.3.1 and 10.3.2.

11. Damages.

11.1 Remedy Limitation. EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THE UNIVERSITY SHALL NOT BE LIABLE FOR (A)  PERSONAL INJURY OR PROPERTY DAMAGES (EXCEPT TO THE EXTENT OF THE UNIVERSITY’S WILLFUL, WANTON, OR INTENTIONAL ACTS) OR (B)  LOST PROFITS, LOST BUSINESS OPPORTUNITY, INVENTORY LOSS, WORK STOPPAGE, LOST DATA OR ANY OTHER RELIANCE OR EXPECTANCY, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OF ANY KIND.

11.2 Damage Cap. THE UNIVERSITY’S TOTAL LIABILITY FOR THE BREACH OR NONPERFORMANCE OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF PAYMENTS PAID TO THE UNIVERSITY UNDER SECTION 6.4 IN THE SIX (6)  MONTHS IMMEDIATELY PRECEDING THE COMMENCEMENT OF ANY SUIT OR ACTION. THIS LIMITATION APPLIES TO CONTRACT, TORT, AND ANY OTHER CLAIM OF WHATEVER NATURE.

11.3 Sublicensees - Damages. The Licensee shall cause each sublicensee to agree to limitations of remedies and damages substantially similar to the limitations of remedies and damages set forth in sections 11.1 and 11.2.

12. General Terms

12.1 Access to University Information.

12.1.1 Data Practices Act. The parties acknowledge that the University is subject to the terms and provisions of the Minnesota Government Data Practices Act, Minnesota Statutes §13.01 et seq. (the “Act”), and that the Act requires, with certain exceptions, the University to permit the public to inspect and copy any information that the University collects, creates, receives, maintains, or disseminates.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

12.1.2 Confidentiality. To the extent permitted by law, including as provided in the Act, the University shall hold in confidence and disclose only to University employees, agents and contractors who need to know the reports described in section 6.4 and the records inspected in accordance with section 6.5 of the Terms and Conditions. No provision of this Agreement is to be construed to further prohibit, limit, or condition the University’s right to use and disclose any information in connection with enforcing this Agreement, in court or elsewhere.

12.2 Amendment and Waiver. The Agreement may be amended from time to time only by a written instrument signed by the parties. No term or provision of this Agreement may be waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. No waiver of a breach is to be deemed a waiver of a different or subsequent breach.

12.3 Applicable law and Forum Selection. The internal laws of the state of Minnesota, without giving effect to its conflict of laws principles, govern the validity, construction, and enforceability of this Agreement. A suit, claim, or other action to enforce the terms of this Agreement may be brought only in the state courts of Hennepin County, Minnesota. The Licensee hereby submits to the jurisdiction of that court and waives any objections it may have to that court asserting jurisdiction over the Licensee or its assets and property.

12.4 Assignment and Sublicense. Except as permitted under subsection 3.1.2 and section 12.5 of the Terms and Conditions, the Licensee shall not assign or sublicense its interest or delegate its duties under this Agreement. Any assignment, sublicense, or delegation attempted to be made in violation of this section is void. Absent the consent of all the parties, an assignment or delegation will not release the assigning or delegating party from its obligations. The Agreement inures to the benefit of the licensee and the University and their respective permitted sublicensees and trustees.

12.5 Change of Control. Notwithstanding section 12.4, the Licensee, without the prior approval of the University, may assign all, but no less than all, its rights and delegate all its duties under this Agreement to another if (i) the Licensee delivers to the University written notice of the proposed assignment (along with pertinent information about the terms of the assignment and assignee) at least thirty (30) days before the effective date of the event described in part (iii) of this paragraph, (ii) pay to the University the Transfer Payment prior to the effective date of the event described in part (iii) of this paragraph, and (iii) the assignment is made as a part of and in

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-17


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

connection with (a) the sale by the Licensee of all or substantially all of its assets to a single purchaser, (b) the sale, transfer, or exchange by the shareholders, partners, or equity owners of the licensee of a majority interest in the Licensee to a single purchaser, or (c) the merger of the Licensee into another corporation or other business entity that is not an Affiliate. Any assignment attempted to be made or made in violation of this subsection is void.

12.6 Collection Costs and Attorneys’ Fees. If a party fails to perform an obligation or otherwise breaches one or more of the terms of this Agreement, the other party may recover from the non-performing breaching party all its reasonable costs (including actual attorneys’ and investigative fees) to enforce the terms of this Agreement.

12.7 Consent and Approvals. Except as otherwise expressly provided, in order to be effective, all consents or approvals required under this Agreement must be in writing.

12.8 Construction. The headings preceding and labeling the sections of this Agreement are for the purpose of identification only and are not to be employed or used for the purpose of construction or interpretation of any portion of the EPLA. As used herein and where necessary, the singular includes the plural and vice versa, and masculine, feminine, and neuter expressions are interchangeable.

12.9 Enforceability. If a court of competent jurisdiction adjudges a provision of this Agreement to be unenforceable, invalid, or void, such determination is not to be construed as impairing the enforceability of any of the remaining provisions hereof and such provisions will remain in full force and effect.

12.10 Entire Agreement. The parties intend this Agreement (including all attachments, exhibits, and amendments hereto) to be the final and binding expression of their contract and agreement and the complete and exclusive statement of the terms thereof. The Agreement cancels, supersedes, and revokes all prior negotiations, representations and agreements among the parties, whether oral or written, relating to the subject matter of this Agreement.

12.11 Language and Currency. Unless otherwise expressly provided in this Agreement and in order to be effective, all notices, reports, and other documents and instruments that a party elects or is required to deliver to the other party must be in English, and all notices, reports, and other documents and instruments detailing revenues and earned under this Agreement or expenses chargeable to a party must be United States dollar denominated.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-18


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

12.12 No Third-Party Beneficiaries. No provision of this Agreement, express or implied, is intended to confer upon any person other than the parties to this Agreement and their Affiliates any rights, remedies, obligations, or liabilities hereunder. No sublicensee may enforce or seek damages under this Agreement.

12.13 Notices. In order to be effective, all notices, requests, and other communications that a party is required or elects to deliver must be in writing and must be delivered personally, or by facsimile or electronic mail (provided such delivery is confirmed), or by a recognized overnight courier service or by United States mail, first-class, certified or registered, postage prepaid, return receipt requested, to the other party at its address set forth below or to such other address as such party may designate by notice given under this section:

If to the University:     University of Minnesota

Office of Technology Commercialization

200 Oak Street, SE Suite 280

Minneapolis, MN 55455

Phone: 612.624.0550

For notices sent                    University of Minnesota

under section 8,                     Office of the General Counsel

with a copy to:                      Attn: Transactional Law Services

                                              360 McNamara Alumni Center

                                              200 Oak Street S.E.

                                              Minneapolis, MN 55455-2006

                                              Facsimile No.: 612.626.9624

                                              E-mail: contracts@mail.ogc.umn.edu

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-19


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

If to the Licensee: As indicated in section 11 of the EPL.

12.14 Relationship of Parties. In entering into, and performing their duties under this Agreement, the parties are acting as independent contractors and independent employers. No provision of this Agreement creates or is to be construed as creating a partnership, joint venture, or agency relationship between the parties. No party has the authority to act for or bind the other party in any respect.

12.15 Security Interest. In no event may the Licensee grant, or permit any person to assert or perfect, a security interest in the Licensee’s rights under this Agreement.

12.16 Survival. Immediately upon the termination or expiration of this Agreement, except for certain rights granted for the Post-termination Period, all the Licensee’s rights under this Agreement terminate; provided, however, the Licensee’s obligations that have accrued before the effective date of termination or expiration (e.g., the obligation to report and make payments on sales, leases, or dispositions of Licensed Products and to reimburse the University for costs) and the obligations specified in section 6.1 survive. The obligations and rights set forth in sections 6.4 and 8.3 and sections 9, 10, and 11 also survive the termination or expiration of this Agreement.

 

FORM OGC-401   
Exclusive Patent License Agreement   
Form Date: 12.18.01   
Revision Date: 03/04/2014   

A-20

Exhibit 10.7

CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

COMMERCIAL LICENSE AGREEMENT

THIS COMMERCIAL LICENSE AGREEMENT (this “ Agreement ”) is made and entered into as of December 9, 2014 (the “ Effective Date ”), by and between Cellectis Plant Sciences, Inc. a corporation organized and existing under the laws of the State of Delaware with its principal place of business at 8, rue de la Croix Jarry, 75013 Paris, France (“ CPS ”), and Two Blades Foundation, a not-for-profit corporation organized and existing under the laws of the State of Delaware with its principal place of business at 1630 Chicago Avenue, Suite 1907, Evanston, IL 60201, USA (“ 2 Blades ”; CPS and 2 Blades, each a “ Party ” and collectively, the “ Parties ”).

RECITALS

WHEREAS , 2 Blades is a not-for-profit foundation, established to support (i) the development of technologies enabling durable disease resistance in crop production, (ii) the general deployment of such environmentally beneficial agricultural technologies in a sustainable manner, and (iii) the delivery of such technologies at no charge for crop production by non-commercial subsistence farmers in Developing Countries (defined below);

WHEREAS , 2 Blades is the exclusive licensee of certain patents and/or patent applications related to transcription factors with modular DNA-binding domains and their use, methods to determine DNA-binding specificity, and design and construction of DNA-binding domains with desired specificity for commercial applications in plants (as further defined herein, “ TAL Nucleases ” and “ TAL Nuclease Activities ”);

WHEREAS, CPS possesses knowledge, know-how, technical information, and expertise with respect to the development and commercialization of plant products;

WHEREAS, CPS desires to obtain a non-exclusive commercial sublicense under 2 Blades’ rights related to the patents and/or patent applications described above, and 2 Blades is willing to grant such license upon the terms and conditions hereinafter set forth;

WHEREAS, CPS or its Affiliate, Cellectis SA, is owner or the exclusive licensee of certain other patents and/or patent applications related to TAL Nucleases and TAL Nuclease Activities; and

WHEREAS, 2 Blades desires to obtain a non-exclusive commercial license and sublicense under CPS’ rights related to the patents and/or patent applications described above, and CPS is willing to grant such license upon the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements hereinafter set forth, the Parties hereto agree as follows:

 

Initials Two Blades Foundation:    1    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

ARTICLE 1 DEFINITIONS

As used in this Agreement, the following words shall have the following meanings:

1.1 “ 2 Blades Licensed Patents ” means, to the extent Controlled by 2 Blades : (a) the patents and patent applications listed in Exhibit A hereto; (b) all amendments, divisionals, continuations, continuations in part, substitutions and supplemental disclosures corresponding to the foregoing; (c) all patents that issue with respect to any of the foregoing patent applications or patent applications claiming priority therefrom, including supplementary certificates, patents of addition, regrants, renewals, reissues, re-examinations, extensions and restorations of any of the foregoing; (d) all United States, International Patent Convention Treaty and other foreign counterparts to any of the foregoing; and (e) all patents and patent applications covering any Improvements.

1.2 “ 2 Blades—[*****] ” means the License Agreement dated [*****] among 2 Blades, [*****] the patents and patent applications listed in Exhibit A .

1.3 “ 2 Blades Commercial Licensed Field ” means any use or application of a TAL Nuclease to [*****], in each case in a Plant.

1.4 “ Affiliate ” means any entity controlling, controlled by, or under common control with the referenced entity, where “ control ” for purposes of this definition only means (a) direct or indirect ownership of more than fifty percent (50%) (or such lesser percentage as is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) of the voting interests or other ownership interests in the entity in question, or (b) the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

1.5 “ Confidential Information ” means, with respect to a Party hereto, subject to the limitations set forth in Section 9.1 hereof, any information, including all trade secrets, technical, economic, financial and marketing information, which is disclosed by such Party to the other Party pursuant to this Agreement and all information so disclosed prior to the Effective Date pursuant to that certain Confidentiality Agreement between the Parties dated May 30, 2014.

1.6 “ Control ” or “ Controlled ” means as to intellectual property that is owned by a Party or licensed by a Third Party to a Party, the possession of the ability to grant licenses or sublicenses (including, where applicable, as provided for herein) without violating the terms of any agreement or other arrangement with any Third Party.

 

Initials Two Blades Foundation:    2    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

1.7 “ CPS Licensed Patents ” means, to the extent Controlled by CPS, Cellectis SA or any of their Affiliates: (a) the patents and patent applications listed in Exhibit B hereto; (b) all amendments, divisionals, continuations, continuations in part, substitutions and supplemental disclosures corresponding to the foregoing; (c) all patents that issue with respect to any of the foregoing patent applications or patent applications claiming priority therefrom, including supplementary certificates, patents of addition, regrants, renewals, reissues, re-examinations, extensions and restorations of any of the foregoing; (d) all United States, International Patent Convention Treaty and other foreign counterparts to any of the foregoing; and (e) all patents and patent applications covering any Improvements.

1.8 “ Developing Countries ” means any of those countries indicated on the list of Least Developed Countries issued by the Food and Agriculture Organization of the United Nations (FAO) cited at the website http://www.unohrlls.org/about-ldcs/, as updated from time to time, any other country characterized by a low-level of material well-being or any other country mutually agreed by 2 Blades and CPS in writing.

1.9 “ Exempted Research Collaboration ” means a contractual relationship between CPS and a Third Party who, under a separate license agreement with 2 Blades, is also a sublicensee under the 2 Blades Licensed Patents with respect to applications or uses in or for Plants (a “ Collaboration Partner ”), where such relationship involves the use of TAL Nucleases or TAL Nuclease Activities for Research Purposes and either or both of CPS or such Collaboration Partner are making such TAL Nucleases or performing such TAL Nuclease Activities for each other as part of a bona fide collaboration (other than any relationship that is limited to the provision of TAL Nucleases or TAL Nuclease Activities on a fee-for-service basis).

1.10 “ Improvement ” means any improvement, modification or refinement to, or any new use or application of, any invention disclosed or claimed in the Licensed Patents, in each case that is conceived, reduced to practice, made or developed by either Party or its permitted Sublicensees or Subcontractors (or, in the case of CPS, its Subsidiaries) during the term of this Agreement, and all intellectual property rights related thereto. For clarity, Improvements shall not include any intellectual property rights that claim a particular Trait in a Plant.

1.11 “Licensed Crops” means [*****], as well as the crop Plants added under Section 2.1(c).

1.12 “ Licensed Field ” means any use or application of a TAL Nuclease (a) to create a cleavage event at a DNA target site in a Plant or (b) that is performed for the use or application of a TAL Nuclease to create a cleavage event at a DNA target site in a Plant, in each case including for the purposes of manufacturing or otherwise producing products in such Plants, but excluding Plant-Made Therapeutics.

 

Initials Two Blades Foundation:    3    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

1.13 “ Licensed Patents ” means the 2 Blades Licensed Patents and the CPS Licensed Patents.

1.14 “ Licensed Plant Product ” means any Plant, breeding material, seed product or other Plant material (including progeny thereof), or any material derived therefrom, in each case that has been produced or modified through application or use of a TAL Nuclease or through a TAL Nuclease Activity.

1.15 [*****] means the period beginning on the Effective Date and ending on the date that [*****]. 2 Blades shall provide CPS with written notice specifying such ending date promptly upon becoming aware of the occurrence thereof.

1.16 [*****] means that [*****] has requested in writing that [*****] provide a particular [*****] and [*****] is unable or unwilling to supply such [*****] at [*****] standard pricing [*****] that is functionally equivalent to the requested [*****] at a substantially similar price) within [*****] after [*****] receipt of such request. It shall be deemed a [*****] if a [*****] occurs [*****] with respect to requests for different [*****] and such requested [*****] are each of the same general type as other [*****] offered for sale by [*****] at the time of the requests.

1.17 “ Non-Profit Activity ” means any activity undertaken for charitable, scientific, educational or testing for public safety purposes, no part of the net earnings of which inures to the benefit of any private entity or individual. For clarity, “Non-Profit Activity” specifically includes Subsistence Farming.

1.18 “ Other Activity ” means any activity that is not a Non-Profit Activity.

1.19 “ Pending Claim ” means a claim in a patent application that has not been (a) abandoned and not continued; or (b) finally rejected by an appropriate administrative agency or court of competent jurisdiction from which no appeal can be or is taken.

1.20 “ Plant-Made Therapeutic ” means a human therapeutic pharmaceutical product incorporating as its active ingredient a protein or other compound produced in and purified (directly or indirectly) from a Plant, wherein: (a) such product would require approval or clearance from the United States Food & Drug Administration under Section 501 et seq. of the Federal Food, Drug and Cosmetic Act or Section 351 of the Public Health Service Act (or any successor laws or regulations) (the “ Pharmaceutical Laws ”) as a “drug” or “biological

 

Initials Two Blades Foundation:    4    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

product” if marketed in the United States for use in humans; (b) such product meets applicable standards of purity for therapeutic products under the Pharmaceutical Laws and the regulations promulgated thereunder; (c) such product, at the time of its first sale in the United States, may not be sold to a consumer in the United States without a prescription from a physician; and (d) such product does not contain or comprise a Plant, Plant tissue or Plant cells. However, and for the avoidance of doubt, Plant-Made Therapeutics do not include products resulting from the modification of Plants for improving or promoting health, nutrition, well-being, performance, processing and the like for human and/or animal uses, such as modification of protein, carbohydrate, oil (including but not limited to long chain fatty acids such as omega-3 or omega-6 fatty acids), vitamin, amino acid, secondary metabolite or allergen content of Plants, if such products do not satisfy all of the criteria set forth in the immediately preceding sentence. For further clarity, Plant-Made Therapeutics excludes dietary supplements and nutraceuticals.

1.21 “ Plants ” means eukaryotic organisms belonging to the plant kingdom defined as Viridiplantae, but excluding non-vascular photosynthetic plants such as green algae. For clarification, Plants does not include fungi or blue-green algae.

1.22 “ Research Purposes ” means internal research activities, but specifically excludes: (a) any activity in any agricultural field trial; (b) any activity directed towards the submission of data generating using a product or service to the United States Food and Drug Administration, the United States Department of Agriculture, the United States Environmental Protection Agency, or any equivalent regulatory agency outside of the United States, in support of an application for clearance, approval or deregulation by such agency; (c) any scale-up activities, the primary focus of which is to increase from small-scale to production-scale; and (d) any activity performed or provided for consideration. For clarity, Research Purposes includes activities up to and including IND enabling toxicological studies or equivalents thereof, provided that such activities do not fall within any of the foregoing categories (a) through (d).

1.23 “ Subsistence Farming ” means farming and associated activities which together form a livelihood strategy where a significant portion of the output is consumed directly. A “ Subsistence Farmer ” is one who engages in such a livelihood strategy.

1.24 “ TAL Nucleases ” means a synthetic DNA, RNA, or polypeptide encoding a non-naturally occurring fusion protein comprising a transcription activator-like effector repeat binding domain, and an endonuclease domain (either functional or non-functional) or a portion of such endonuclease domain, wherein (i) the binding domain is engineered for recognition of a nucleotide sequence, (ii) the endonuclease domain or portion thereof is capable of cleaving or nicking DNA either as a monomer (e.g. Tev) or as a dimer (e.g. Fokl), and (iii) the manufacture, use, import and/or sale of the DNA, RNA or polypeptide is covered by one or

 

Initials Two Blades Foundation:    5    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

more: (a) Valid Claims in a patent within Licensed Patents; or (b) Pending Claims in an application within Licensed Patents (interpreted as if such claim had issued). For clarity, “TAL Nucleases” does not include a transcription activator-like effector repeat binding domain joined to or provided in combination with an activator, repressor, or any functional domain other than an endonuclease domain as specified in the preceding sentence. For further clarity, an “endonuclease” is an enzyme that cleaves a phosphodiester bond within a polynucleotide chain.

1.25 “ TAL Nuclease Activity ” means any activity: (a) the performance or sale of which in a particular country is covered by one or more: (i) Claims in a patent within Licensed Patents, or (ii) Pending Claims in an application within Licensed Patents (interpreted as if such claim had issued); and (b) that uses or consumes a TAL Nuclease.

1.26 “ Territory ” means every country of the world.

1.27 “ Third Party ” means any person or entity that is not a Party to this Agreement.

1.28 “ Trait ” means any particular genetic modification of a Plant seed or a Plant that relates to enhanced field performance, production, output, maintenance or protection or quality of a Plant, which modification has been conferred through application or use of a TAL Nuclease or through a TAL Nuclease Activity, in each case in the Licensed Field.

1.29 “ Valid Claim ” means a claim in an issued patent that has not lapsed, or an issued, unexpired patent that has not been held to be invalid by a final judgment of a court of competent jurisdiction from which no appeal can be or is taken or that has not been disclaimed.

ARTICLE 2 GRANT OF LICENSE

2.1 License Grants.

(a) License Grant to CPS. Subject to the terms and conditions of this Agreement, 2 Blades hereby grants to CPS a fee-bearing, non-transferable, non-sublicensable (except as set forth in Section 2.3), non-exclusive sublicense under the 2 Blades Licensed Patents to make, have made, use, have used, sell, have sold, offer to sell, import and have imported Licensed Plant Products of Licensed Crops in the Licensed Field in the Territory. CPS’ rights under the license granted in this Section 2.1 include the non-exclusive rights, subject to the terms and conditions of this Agreement, to make, have made, use, have used, import and have imported TAL Nucleases and to perform and have performed TAL Nuclease Activities in the Licensed Field in the Territory, in each case solely in furtherance of the foregoing license.

 

Initials Two Blades Foundation:    6    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

(b) License Grant to 2 Blades . Subject to the terms and conditions of this Agreement, CPS hereby grants to 2 Blades a royalty-free (subject to Section 3.3), non transferable, non-sublicensable (except as set forth in Section 2.3), non-exclusive license under the CPS Licensed Patents to (i) make, have made, use, have used, sell, have sold, offer to sell, import and have imported Licensed Plant Products in the Licensed Field in the Territory for any Non-Profit Activity, and (ii) make, have made, use, have used, sell, have sold, offer to sell, import and have imported Licensed Plant Products in the 2 Blades Commercial Licensed Field in the Territory for any Other Activity. 2 Blades’ rights under the license granted in this Section 2.1 include the non-exclusive rights, subject to the terms and conditions of this Agreement, to make, have made, use, have used, import and have imported TAL Nucleases and to perform and have performed TAL Nuclease Activities in the Licensed Field and the 2 Blades Commercial Licensed Field in the Territory, in each case solely in furtherance of the foregoing licenses.

(c) Addition of crops into Licensed Crops. Within the [*****] of this Agreement, CPS is granted an option (the “ Option ”) to add [*****] crop Plants of its choice to the “ Licensed Crops ” subject to payments under Section 3.1(c), provided, however, if [*****] are added under the Option, the Licensed Field for purposes of CPS’ license under Section 2.1(a) with respect to [*****], as applicable, will exclude the 2 Blades Commercial Licensed Field. In order to exercise the option, CPS shall provide 2 Blades with written notice of such exercise, together with the payment required under Section 3.1(c).

2.2 Certain Restrictions.

(a) 2 Blades has granted to [*****] rights under the Licensed Patents in the Territory to sell, have sold and offer to sell TAL Nucleases and TAL Nuclease Activities for Research Purposes in or for Plants. The license granted to CPS in Section 2.1 does not include the right to conduct or have conducted, any such activities.

(b) [*****]. During [*****] notwithstanding any other provision of this Agreement to the contrary, [*****] may not [*****] by any persons or entities other than [*****] in each case for [*****] except:

(i) with respect to [*****];

(ii) in the event of a [*****], in which case [*****] will be relieved of such restriction with respect to [*****] that is the subject of such [*****];

(iii) in the event of a [*****];

(iv) as part of an [*****] (solely by the [*****]); or

 

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(v) where such activities do not directly involve the practice of the [*****] ( e.g ., conduct of [*****] that have previously been modified through the practice of the [*****]).

For clarity, this Section 2.2(b) shall not restrict CPS from: (x) making TAL Nucleases, using TAL Nucleases made by CPS or performing TAL Nuclease Activities; (y) using any TAL Nuclease that was acquired by CPS from any person or entity other than [*****] after the expiration of the [*****], provided that such person or entity did not make the TAL Nucleases or perform any TAL Nuclease Activities during [*****]; or (z) obtaining and using products that do not constitute TAL Nucleases and are not made through the performance of TAL Nuclease Activities. Also, nothing in this Section 2.2(b) shall be interpreted to mean that CPS has an affirmative obligation to [*****] to obtain TAL Nucleases or TAL Nuclease Activities.

For further clarity, nothing in this Section 2.2(b) shall expand the license granted to CPS in Section 2.1.

(c) CPS’ license rights under this Agreement do not extend to any Plant or Plant materials that have been produced or modified by a Third Party through application or use of a TAL Nuclease or through a TAL Nuclease Activity unless such Plant or Plant materials have been produced or modified in the Licensed Crops in the Licensed Field by (i) a Subcontractor on behalf of CPS in accordance with this Agreement, (ii) a Third Party who has an active commercial license from 2 Blades that permits such Third Party to sell such Plant or Plant materials to other Third Parties, (iii) a Collaboration Partner as part of an Exempted Research Collaboration, or (iv) an academic research group.

(d) The license granted to CPS in Section 2.1 and the license fee set forth in Section 3.1(a) shall include the right to have CPS’ Subsidiaries practice under the license for so long as they remain Subsidiaries, provided that CPS shall be responsible for the performance of all of the obligations, and for compliance with all of the terms and conditions, of this Agreement by such Subsidiaries (which responsibility shall continue even if such entities cease to be Subsidiaries, but only with respect to obligations accrued in the period where such entities were Subsidiaries); and provided further that CPS first pays to 2 Blades the Sublicense Fee set forth in Section 3.1(b) for each such Subsidiary that is not wholly-owned by CPS. Except Subsidiaries that are wholly owned by CPS, all other Subsidiaries practicing under the license granted to CPS in Section 2.1 shall be considered Sublicensees for purposes of this Agreement. For clarity, at such time as an entity ceases to be CPS’ Subsidiary, such entity shall no longer be entitled to practice under the license granted in Section 2.1, but such entity may still be granted a separate sublicense by CPS pursuant to Section 2.3(a), including with respect to any Licensed Plant Products that were previously generated by or for such entity under the license granted in Section 2.1.

 

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For the purpose of this Section, “ Subsidiary ” means any entity controlled by CPS, where “ control ” for purposes of this definition only means (a) direct or indirect ownership at least fifty percent (50%) (or such lesser percentage as is the maximum allowed to be owned by a foreign corporation in particular jurisdiction) of the voting interests or other ownership interests in the entity in question, or (b) the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

 

  2.3 Sublicenses.

(a) Subject to the terms and conditions of this Agreement (including Section 3.1(b)), CPS may sublicense to a Third Party (each such party holding a sublicense under this Agreement, a “ Sublicensee ”) CPS’ rights under the 2 Blades. Licensed Patents to use and sell Licensed Plant Products of Licensed Crops that have been generated by or on behalf of CPS as breeding material or reproductive seed or other Plant material to further develop such Licensed Plant Products for planting as commercial crops and preparing derivatives therefrom in the Licensed Field in the Territory. Notwithstanding the foregoing or anything to the contrary in this Agreement, CPS shall not (except as set forth in Section 2.2(d)) sublicense CPS’ rights under the 2 Blades Licensed Patents to produce or modify any Plant or Plant materials through application or use of a TAL Nuclease or through a TAL Nuclease Activity.

(b) Subject to the terms and conditions of this Agreement, 2 Blades may sublicense to a Third Party (each such party holding a sublicense under this Agreement, also a “ Sublicensee ”) 2 Blades’ rights under the CPS Licensed Patents to use and sell Licensed Plant Products that have been generated by or on behalf of 2 Blades as breeding material or reproductive seed or other Plant material to further develop such Licensed Plant Products for planting as commercial crops and preparing derivatives therefrom in the Licensed Field for any Non-Profit Activity or in the 2 Blades Commercial Licensed Field for any Other Activity, in each case in the Territory.

(c) Subject to the terms and conditions of this Agreement, 2 Blades may sublicense to a Third Party (each such party holding under this Agreement, also a “ Sublicensee ”) 2 Blades’ rights under the CPS Licensed Patents to produce or modify any Plant or Plant materials through application or use of a TAL Nuclease or through a TAL Nuclease Activity (i) in the Licensed Field for any Non-Profit Activity, and (ii) in the 2 Blades Commercial Licensed Field for any Other Activity, except (in the case of such Other Activities) to [*****]; in each

 

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case solely in connection with 2 Blades’ licenses under 2 Blades Licensed Patents. For clarity but without limitation, the foregoing includes the right to grant sublicenses through multiple tiers to bona-fide, not-for-profit organizations that work for the benefit of Subsistence Farmers for use in Subsistence Farming in Developing Countries. Upon the execution of a sublicense to a not-for profit organization under this Section 2.3(c), 2 Blades and CPS shall issue a press release announcing the execution of such sublicense and CPS’ contribution to such sublicense within thirty (30) days after the execution thereof.

(d) Each Party shall engage each Sublicensee solely pursuant to a written agreement containing provisions consistent with the terms and conditions of this Agreement (a copy of which shall be provided to the other Party within thirty (30) days of execution, with provisions unrelated to this Agreement or the rights granted hereunder redacted), and such Sublicensee shall abide by all obligations of such Party hereunder as if it were a party to this Agreement. Notwithstanding the foregoing, for sublicenses granted by either Party under this Section 2.3, Sublicensees are not required to grant any licenses to, make any payments, notifications or reports to, submit to audits by, or indemnify the other Party. Each Party shall promptly notify the other Party in writing of entering into any such sublicense agreement and ensure that each Sublicensee complies with and fulfills all of such obligations. Each Party shall be entirely responsible and liable for any acts or omissions of its Sublicensees under any sublicenses granted by it hereunder.

 

  2.4 Subcontracting.

(a) Subject to the terms and conditions of this Agreement, either Party may have bona fide Third Party subcontractors (each such party performing activities pursuant to this Section 2.4, a “ Subcontractor ”) perform activities under the licenses granted in Section 2.1 solely on such Party’s behalf; provided that such subcontracting shall not relieve such Party of any of its obligations under this Agreement and that the Party retains full ownership of the resulting Licensed Plant Product.

(b) Each Party shall ensure that such Subcontractor shall not transfer TAL Nucleases or Licensed Plant Products to any person or entity other than such Party. If such subcontract is terminated for any reason, such Party shall notify the other Party of such termination and take any and all necessary measures to destroy or take possession of the TAL Nucleases and Licensed Plant Products in the possession or control of the Subcontractor at the time of termination.

(c) Each Party shall engage each Subcontractor solely pursuant to a written agreement containing provisions consistent with the terms and conditions of this Agreement (including, for clarity, provisions granting Control of Improvements to such Party in order to

 

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enable such Party to grant the licenses to Improvements granted in this Agreement), and such Subcontractor shall abide by all obligations of such Party hereunder as if it were a party to this Agreement. Each Party shall promptly notify the other Party in writing of entering into any such subcontracting agreement and ensure that each Subcontractor complies with and fulfills all of such obligations. Each Party shall be entirely responsible and liable for any acts or omissions of its subcontractors under any subcontracting agreements entered into hereunder.

(d) Neither Party shall have any Third Party perform any activity under the license granted in Section 2.1 except in accordance with this Section 2.4.

2.5 No Further License. No right or license under any patents or other intellectual property is granted or shall be granted by implication. All such rights are or shall be granted only as expressly provided in the terms of this Agreement. Except as set forth in Section 2.7, neither Party shall be obligated to provide: the other Party: (i) any information other than that disclosed in the Licensed Patents, or (ii) any technical assistance, including hands-on technical support by its personnel, relating to the practice of the Licensed Patents or use of TAL Nucleases.

2.6 Upstream License Agreements.

(a) All rights and licenses granted by 2 Blades under this Agreement are subject to the grant of rights in that certain [*****] between [*****] and 2 Blades dated [*****] (the “ [*****] ”). 2 Blades shall not amend the [*****] in a manner that would adversely affect CPS’ rights under this Agreement without the prior written consent of CPS.

(b) All rights and licenses granted by CPS under this Agreement under the patents identified in Exhibit B as owned by [*****] are subject to the grant of rights in that certain [*****] dated [*****] between [*****] and [*****]. CPS [*****] shall not amend the [*****] in a manner that would adversely affect 2 Blades’ rights under this Agreement without the prior written consent of 2 Blades.

2.7 Improvements. Each Party will promptly, but in no event later than thirty (30) days from invention or creation, inform the other Party of all Improvements Controlled by such Party (or, in the case of CPS, its Subsidiaries) that arise under this Agreement. Information provided with respect to such Improvements will be provided using such Party’s standard form of invention disclosure and in reasonable detail but in no circumstance less than would be sufficient to permit an understanding of the nature of the Improvements by a practitioner reasonably skilled in the relevant technical or scientific area.

 

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UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

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2.8 Progress Report. Within sixty (60) days of the end of each calendar year, each Party shall provide to the other Party an annual report summarizing its activities relating to the development and commercialization of Licensed Plant Products, including a list of all Sublicensees (hereinafter called the “ Progress Report ”).

ARTICLE 3 CONSIDERATION

3.1 Fees to 2 Blades.

(a) License Fee. In consideration for the rights and license granted to CPS under this Agreement as of the Effective Date, CPS shall pay to 2 Blades an irrevocable and non-refundable license fee of [*****] (the “ License Fee ”). The License Fee shall be paid by CPS according to the following schedule payment:

- [*****] within forty five (45) days of the Effective Date;

- [*****] within forty five (45) days of the three-month anniversary of the Effective Date.

(b) Fees for CPS Sublicense Grants. In consideration of CPS’ rights under the 2 Blades Licensed Patents to each Sublicensee (on a Sublicensee by Sublicensee basis), CPS shall pay to 2 Blades an irrevocable and non-refundable license fee of [*****] (the “ Sublicense Fee ” for such sublicense). Payment shall be made by CPS in full simultaneously with the execution of such sublicense; provided, however, if such sublicense does not include commercial rights as of the date of execution, CPS shall notify 2 Blades in writing and payment shall be made by CPS within thirty (30) days of the date of the exercise of the commercial option. If CPS has prior to the Effective Date granted any sublicense that, automatically upon execution of this Agreement or otherwise, would include a sublicense of CPS’ rights under the 2 Blades Licensed Patents, such sublicense shall not be deemed effective with respect to CPS’ rights under the 2 Blades Licensed Patents unless and until CPS has (i) notified 2 Blades in writing, (ii) taken such actions (if any) necessary to comply with Section 2.3 with respect to such sublicense, and (iii) paid the Sublicense Fee for such sublicense, as applicable.

(c) Fees for additional crops. In consideration for the addition of any new crop to the Licensed Crops under Section 2.1(c), CPS shall pay to 2 Blades an irrevocable and non-refundable license fee of [*****] for each additional crop. Payment shall be made by CPS in full simultaneously with the addition of such crop.

 

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3.2 Payment of Fees. Each payment under Section 3.1 shall be made in United States Dollars by wire transfer to the following bank account with a written notice of such wire transfer. For the avoidance of doubt, any and all bank commission shall be borne by CPS:

[*****]

3.3 Sublicense Revenue to CPS. In the event that 2 Blades receives cash consideration from a for-profit organization for a sublicense granted pursuant to Section 2.3(b) or 2.3(c)(ii) for Other Activities, in consideration for the rights and license granted to 2 Blades under this Agreement as of the Effective Date, 2 Blades shall pay to CPS [*****] of the net payments or other cash consideration that 2 Blades receives from the applicable Sublicensee in consideration of the grant of such sublicense under the CPS Licensed Patents, [*****] (the “ Net Revenue ”). Payment shall be made together with the Progress Report described in Section 2.8; within sixty (60) days of the end of each calendar year.

3.4 Payment of Sublicense Revenue. Each payment under Section 3.3 shall be made in United States Dollars by wire transfer to the following bank account with a written notice of such wire transfer. For the avoidance of doubt; any and all bank commission shall be borne by 2 Blades:

[*****]

3.5 Tax.

(a) All amounts payable pursuant to this Agreement are understood as amounts exclusive of any withholding taxes. In the case that either Party is obliged by law to withhold taxes on payments due to the other Party under this Agreement, such taxes shall be borne by such Party and paid to the relevant tax authorities by such Party on behalf of the other Party in addition to the amounts due.

(b) Each Party shall cooperate with each other in order to allow the Parties to benefit to the maximum extent from any applicable double tax treaties ( e.g. , CPS may need to submit documents with 2 Blades’ signature to the tax authorities prior to, on or after the date of payment; 2 Blades may need to submit the evidence of the payment of certain withholding tax, if applicable).

3.6 Late Payment. Notwithstanding any other remedy available to a Party under the provisions of this Agreement, if any sum of money owed to a Party hereunder is not paid when due, the unpaid amount shall bear interest compounded quarterly, [*****] until paid.

 

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ARTICLE 4 COVENANTS OF THE PARTIES

4.1 Regulatory Approvals and Product Registration.

(a) CPS or its Sublicensee, as applicable shall be responsible for obtaining any necessary or appropriate regulatory approvals and/or product registration for the Licensed Plant Products made, used, sold or imported by CPS or its Sublicensee. The decision to seek such regulatory approval or product registration for the Licensed Plant Products shall be made solely by CPS or its Sublicensee. The costs of securing such regulatory approvals and/or product registrations shall be borne solely by CPS or its Sublicensee.

(b) 2 Blades or its Sublicensee, as applicable shall be responsible for obtaining any necessary or appropriate regulatory approvals and/or product registration for the Licensed Plant Products made, used, sold or imported by 2 Blades or its Sublicensee. The decision to seek such regulatory approval or product registration for the Licensed Plant Products shall be made solely by 2 Blades or its Sublicensee. The costs of securing such regulatory approvals and/or product registrations shall be borne solely by 2 Blades or its Sublicensee.

4.2 Covenants Regarding the Manufacture of Licensed Plant Products. Each Party hereby covenants and agrees that (i) its manufacture, use, sale, or transfer of Licensed Plant Products shall comply with all applicable federal and state laws, including all federal export laws and regulations; and (ii) it will make commercially reasonable efforts such that such Licensed Plant Products shall not be defective in design or manufacture. Each Party hereby further covenants and agrees that, pursuant to and only to the extent required by 35 United States Code Section 204, it shall, and it shall cause each of its Sublicensees (and in the case of CPS, its Subsidiaries), to substantially manufacture in the United States of America (“ US ”) all products embodying or produced through the use of an invention that is subject to the rights of the federal government of the US.

4.3 Export and Regulatory Compliance. Each Party understands that the Arms Export Control Act (“ AECA ”), including its implementing International Traffic in Arms Regulations (“ ITAR ”), and the Export Administration Act (“ EAA ”), including its Export Administration Regulations (“ EAR ”) are some (but not all) of the laws and regulations that comprise the US export laws and regulations. Each Party further understands that the US export laws and regulations include (but are not limited to): (i) ITAR and EAR product/service/data-specific requirements; (ii) ITAR and EAR ultimate destination-specific requirements; (iii) ITAR and EAR end user-specific requirements; (iv) Foreign Corrupt-Practices Act; and (v) antiboycott laws and regulations. Each Party shall comply with all then-current applicable export laws and regulations of the US Government (and other applicable US laws and regulations) pertaining to the Licensed Plant Products (including any associated products, items, articles, computer software, media, services, technical data, and other information). Each

 

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Party certifies that it shall not, directly or indirectly, export (including any deemed export), nor re-export (including any deemed re-export) Licensed Plant Products (including any associated products, items, articles, computer software, media, services, technical data, and other information) in violation of the US export laws and regulations.

4.4 Reports and Audits.

(a) Together with the Progress Report described in Section 2.8, within sixty (60) days of the end of each calendar year, 2 Blades shall supply to CPS a report reflecting an itemized calculation of net sublicense revenue payable to CPS under Section 3.3. CPS will treat each such report as confidential information of 2 Blades under Article 9 of this Agreement, and will disclose it only to the employees or agents of CPS, who have a need to know such information for purpose of this Agreement, or as necessary under the [*****], provided that such parties are under a duty of confidentiality no less restrictive than CPS’ duties hereunder. If no royalty or fee is due, 2 Blades shall provide CPS with a report certifying this.

(b) Each Party shall keep or cause to be kept complete and accurate records of its sublicensing activities under this Agreement, including net sublicense revenue payable by 2 Blades to CPS under Section 3.3, and records of all agreements with Sublicensees included in any broader transactions, in each case in accordance with generally accepted accounting procedures and in sufficient detail to enable the amounts payable by the Parties under Section 3.1 and Section 3.3 to be determined and proven, as the case may be. Such records shall enable the calculation and verification of the amount of net sublicense revenue and any other sums due to either Party under this Agreement. Such records shall be accessible, upon at least sixty (60) days prior notice of either Party to the other Party, not more than once a year during business hours, during the term of this Agreement and within five (5) years after the end of the periods to which such records relate, to an independent accountant selected by the first Party for the purpose of verifying the amount of net sublicense revenue and any other sums due to either Party under this Agreement. If in dispute, such records shall be kept until the dispute is settled. The independent accountant shall be required to keep confidential all information received during any such inspection and shall disclose only information relating to the accuracy of the records and payment made. The cost of such inspection shall be borne by the inspecting Party. If any error or discrepancy is shown by which the amount due to the inspecting Party is greater than [*****] of the amount shown in the inspected Party’s reports to the inspecting Party, the inspected Party shall bear the cost of such inspection. Any amount underpaid shall be paid within forty five (45) days of the close of the audit. Any amount overpaid shall be refunded within forty five (45) days of the close of the audit. Once examined, the reports and payments shall be closed for that period. The Parties further agree to support any audit conducted by either Party’s licensors, [*****].

 

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4.5 Use of the [*****] and CPS Name and Trademarks or the Names of [*****] and CPS Faculty, Staff, or Students. Except for the limited press release rights set forth in Section 9.5, (a) no provision of this Agreement grants 2 Blades or any Sublicensee any right or license to use the name, logo, or any marks owned by or associated with [*****] and/or CPS or the names, or identities of any member of the faculty, staff, or student body of [*****] and/or CPS, and 2 Blades shall not use and shall not permit a Sublicensee to use any such logos, marks, names, or identities without [*****], CPS’ and, as the case may be, such member’s prior written approval; and (b) no provision of this Agreement grants CPS or any Sublicensee any right or license to use the name, logo, or any marks owned by or associated with 2 Blades or the names, or identities of any member of the staff of 2 Blades, and CPS shall not use and shall not permit a Sublicensee to use any such logos, marks, names, or identities without 2 Blades and, as the case may be, such member’s prior written approval.

4.6 Governmental Markings.

(a) Each Party and its Sublicensees may mark all Licensed Plant Products in a manner consistent with their current patent marking practices for their own products and applicable laws and regulations. Where marking is to be performed but the Licensed Plant Product cannot be marked, the patent notice shall be placed on associated tags, labels, packaging, or accompanying documentation either electronic or paper as appropriate.

(b) Each Party is responsible for including with its Licensed Plant Products any warning labels, packaging and instructions as to the use and the quality control for any such Licensed Plant Products.

(c) Each Party agrees to register this Agreement with any foreign governmental agency that requires such registration, and the registering Party shall pay all costs and legal fees in connection with such registration. Each Party shall comply with all foreign laws affecting this Agreement or the sale of Licensed Plant Products.

ARTICLES 5 PATENT RIGHTS

5.1 Licensed Patent Prosecution Updates. Each Party shall provide the other Party with non-privileged information regarding the prosecution status of the Licensed Patents Controlled by such Party upon the reasonable written request of the other Party.

5.2 Defense and Enforcement.

(a) As between the Parties, 2 Blades shall have the sole right (but not the obligation) in its discretion to defend and enforce the 2 Blades Licensed Patents against third Party infringers. In the event that 2 Blades engages or is engaged in a proceeding involving the 2 Blades Licensed Patents, CPS agrees to fully cooperate with such proceeding upon the reasonable request of 2 Blades.

 

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(b) As between the Parties, CPS shall have the sole right (but not the obligation) in its discretion to defend and enforce the CPS Licensed Patents against Third Party infringers. In the event that CPS engages or is engaged in a proceeding involving the CPS Licensed Patents, 2 Blades agrees to fully cooperate with such proceeding upon the reasonable request of CPS.

ARTICLE 6 REPRESENTATIONS, WARRANTIES AND LIMITATIONS

6.1 Representations and Warranties.

(a) Each Party represents and warrants to the other Party that as of the Effective Date (i) such Party is a company or corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized; (ii) such Party has the legal power and authority to execute, deliver and perform this Agreement; (iii) the execution, delivery and performance by such Party of this Agreement has been duly authorized by all necessary corporate action; (iv) this Agreement constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (v) the execution, delivery and performance of this Agreement will not cause or result in a violation of any law, of such Party’s charter documents, or of any contract by which such Party is bound.

(b) As of the Effective Date, 2 Blades represents and warrants that:

To the best of its knowledge (i) it holds a license under the patents and patent applications set forth in Exhibit A , attached hereto, in the Licensed Field, with the right to sublicense such rights, and (ii) it has the right to grant the rights and license granted to CPS herein relating to the Licensed Field; (ii) it has the full right, power, and authority to grant, has obtained all consents necessary to grant, and is not prohibited by the terms of any agreement to which it is a party from granting, all of the rights granted to CPS under this Agreement on the terms and conditions set forth herein, and it has not previously granted and will not grant any rights to any Third Party that are inconsistent with such rights; (iii)  Exhibit A contains complete and accurate description of all patents and patent applications owned or Controlled by 2 Blades related to the inventions disclosed in the 2 Blades Licensed Patents, and all patent applications included in the 2 Blades Licensed Patents have been duly filed; (iv) there are no actions, claims, demands, suits, judgments, settlements, citations, summons, subpoenas, inquiries or investigations of any nature, civil, criminal, regulatory or otherwise, in law or in equity, or arbitral proceeding or before any governmental authority, pending or, to 2 Blades’ knowledge, threatened, relating to or affecting the 2 Blades Licensed Patents (with the exception of normal prosecution at the United States Patent and Trademark Office and equivalent foreign patent offices).

 

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(c) CPS represents and warrants that as of the Effective Date:

(i) it has the full right, power, and authority to grant, bas obtained all consents necessary to grant, and is not prohibited by the terms of any agreement to which it is a party from granting, all of the rights granted to 2 Blades under this Agreement on the terms and conditions set forth herein, and it has not previously granted and will not grant any rights to any Third Party that are inconsistent with such rights;

(ii) it is the owner or exclusive licensee of all right, title and interest in and to the patents and patent applications set forth in Exhibit B. Exhibit B contains a complete and accurate description of all patents and patent applications owned or Controlled by CPS, Cellectis SA or any of their Affiliates related to the inventions disclosed in the CPS Licensed Patents. All patent applications included in the CPS Licensed Patents have been duly filed;

(iii) there are no actions, claims, demands, suits, judgments, settlements, citations, summons, subpoenas, inquiries or investigations of any nature, civil, criminal, regulatory or otherwise, in law or in equity, or arbitral proceedings or any proceedings by or before any governmental authority, pending or, to CPS’ knowledge, threatened, relating to or affecting the CPS Licensed Patents (with the exception of normal prosecution at the United States Patent and Trademark Office and equivalent foreign patent offices); and

(iv) [*****] is a legal and valid obligation binding upon CPS and [*****], is in full force and effect, is enforceable in accordance with its terms, [*****]. A true, correct and complete copy of [*****], including all amendments thereto (subject to redactions of financial terms), has been provided by CPS to 2 Blades. To CPS’ knowledge, no event has occurred which, after the giving of notice or the lapse of time or both, would constitute a default or breach under [*****] by CPS or [*****]. Neither CPS nor, to the knowledge of CPS, [*****], has waived any rights or defaults or breaches under [*****] that would adversely affect the ability of 2 Blades to exercise any rights granted under this Agreement or that would prohibit the transactions contemplated by this Agreement. CPS has not received any notice orally or in writing that [*****] has been, will be or is threatened to be terminated (in whole or in part), and CPS has no intention of terminating [*****] (in whole or in part). This Agreement is consistent in all respects with [*****].

 

Initials Two Blades Foundation:    18    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

For the purpose of the Section 6.1 the term “as of” shall mean up to and including the Effective Date.

6.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, EACH PARTY AND ITS LICENSORS (INCLUDING WITHOUT LIMITATION [*****]) EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, PATENTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, SUCCESS OF RESEARCH OR DEVELOPMENT EFFORTS, OR ANY WARRANTY THAT ANY PATENT LICENSED HEREUNDER SHALL BE VALID OR ENFORCEABLE. EACH PARTY ACKNOWLEDGES THAT IT IS NOT RELYING ON ANY WARRANTIES OTHER THAN THOSE SET FORTH IN SECTION 6.1. [*****].

6.3 Consequential Damages Disclaimer. EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 7, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR EITHER PARTY’S BREACH OF ARTICLE 9, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES OR LICENSORS (SUBJECT TO SECTION 6.6) BE LIABLE HEREUNDER TO THE OTHER PARTY, ITS AFFILIATES OR ANY OTHER PERSON OR ENTITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF USE DAMAGES) ARISING FROM THE RESEARCH, MANUFACTURE, USE OR SALE OF LICENSED PLANT PRODUCTS OR TAL NUCLEASES OR THE PERFORMANCE OF TAL NUCLEASE ACTIVITIES, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTIES, ITS AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

6.4 2 Blades Liability Cap. EXCEPT FOR ITS PAYMENT OBLIGATIONS UNDER SECTION 3.3, IN NO EVENT SHALL 2 BLADES’ (TOGETHER WITH ITS AFFILIATES’ AND LICENSORS’) LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED [*****].

6.5 CPS Liability Cap. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 7, IN NO EVENT SHALL CPS’ (TOGETHER WITH ITS AFFILIATES’ AND LICENSORS’) LIABILITY BASED ON 2 BLADES’ ACTIVITIES UNDER THE LICENSE GRANTED IN SECTION 2.1(b)(ii) IN CONNECTION WITH THIS AGREEMENT EXCEED [*****].

 

Initials Two Blades Foundation:    19    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

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6.6 [*****] .

ARTICLE 7 INDEMNIFICATION; [*****]

7.1 Indemnification.

(a) CPS hereby agrees to indemnify, defend and hold harmless 2 Blades and its Affiliates and licensors, and its and their respective directors, officers, employees and agents (“ 2 Blades Indemnitees ”), from and against any and all suits, claims, actions, demands, damages, liabilities, expenses and/or loss, including reasonable legal expense and attorneys’ fees, resulting from CPS’ or its Sublicensees, ‘Subsidiaries’ or Subcontractors’ (i) activities under the license granted in Section 2.1(a) constituting manufacture, use, handling, storage, sale or other disposition of Licensed Plant Products or TAL Nucleases, or performance of TAL Nuclease Activities or any other exercise of any right or license granted under this Agreement, or (ii) gross negligence, recklessness, willful misconduct or breach of this Agreement.

(b) 2 Blades hereby agrees to indemnify, defend and hold harmless CPS and its Affiliates and licensors, and its and their respective directors, officers, employees and agents (“ CPS Indemnitees ”), from and against any and all suits, claims, actions, demands, damages, liabilities, expenses and/or loss, including reasonable legal expense and attorneys’ fees, resulting from 2 Blades’ or its Sublicensees’ or Subcontractors’ (i) activities under the license granted in Section 2.1(b)(ii) in the 2 Blades Commercial Licensed Field constituting manufacture, use, handling, storage, sale or other disposition of Licensed Plant Products or TAL Nucleases, or performance of TAL Nuclease Activities, or (ii) gross negligence, recklessness, willful misconduct or breach of this Agreement.

(c) In the event that any 2 Blades Indemnitee or CPS Indemnitee (collectively, “ Indemnitee ”) is seeking indemnification under this Section 7.1, it shall inform the other Party (the “ Indemnifying Party ”) of a claim as soon as reasonably practicable after it receives notice of the claim, shall permit the Indemnifying Party to assume direction and control of the defense of the claim (including the right to settle the claim solely for monetary consideration), and shall cooperate as requested in the defense of the claim; provided, however, that the Indemnitee shall have the right to retain its own counsel and, if such counsel advises the Indemnitee that representation of the Indemnitee by the counsel retained by the Indemnifying Party would be inappropriate because of actual differences in the interests of the Indemnitee and any other party represented by such counsel, then the Indemnifying Party shall reimburse the Indemnitee on a monthly basis for the reasonable attorneys’ fees incurred by the Indemnitee in connection with the claim following receipt of reasonable documentation of such fees (provided that the Indemnitee shall not be required to disclosed any time entries that are subject to the attorney-client privilege). The Indemnifying Party agrees to keep the Indemnitee informed of the

 

Initials Two Blades Foundation:    20    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

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progress in the defense and disposition of such claim and to consult with the Indemnitee with regard to any proposed settlement. The Indemnifying Party shall not settle any such claim with an admission of liability of the Indemnitee without the Indemnitee’s prior written approval, which shall not be unreasonably withheld or delayed.

 

7.2 [*****] .

ARTICLE 8 TERM AND TERMINATION

8.1 Term. This Agreement shall remain in effect until the expiration of the last-to-expire of the Licensed Patents, unless earlier terminated pursuant to the other provisions of this Agreement.

8.2 Termination for Material Breach. Each Party shall have the right to terminate this Agreement or the license granted by it in Section 2.1(a) or Section 2.1(b) upon [*****] prior written notice to the other Party should the other Party commit a material breach of its obligations or be in default under any of the provisions of this Agreement; provided that the breaching Party has failed to cure the material breach or default within the same [*****] notice period. For the avoidance of doubt, and without limiting any other basis on which a Party may claim a material breach of this Agreement, the other Party’s failure to comply with its obligation to make any payment under this Agreement will constitute a material breach of this Agreement.

8.3 Termination for Patent Challenge. Each Party shall have the right to terminate the Agreement and/or any licenses granted by it hereunder with immediate effect upon written notice to the other Party in the event the other Party, its Affiliate, Sublicensee or Subcontractor challenges such Party’s Licensed Patents or assists or otherwise supports a Third Party challenging the validity, enforceability and/or patentability of, or directly, or through assistance granted to a Third Party, commences or participates (except as such participation may be required by applicable law) in any interference, pre- or post-grant opposition or other pre- or post- grant proceeding related to the validity, enforceability and/or patentability of, the other Party’s Licensed Patents during the Term. Notwithstanding anything to the contrary, no act of [*****] or sublicensees or subcontractors in connection with the 2 Blades – [*****] shall give CPS a right to terminate this Agreement or any license granted by CPS hereunder.

8.4 Automatic Termination. In the event of termination of [*****], CPS shall provide 2 Blades with written notice of such termination within five (5) days (and shall cooperate in good faith with 2 Blades as may be required to obtain a direct license from [*****]), and the license in Section 2.1(a) shall terminate simultaneous to the termination of [*****].

 

Initials Two Blades Foundation:    21    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

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8.5 Other Remedies. Notwithstanding either Party’s rights to terminate this Agreement as set forth in this Article 8, neither Party shall be prevented from seeking any other remedy which may be available to it at law or equity.

8.6 Termination for Insolvency. Either Party may terminate this Agreement if, at any time: (i) the other Party makes an assignment for the benefit of creditors; (ii) any decree or order for relief is entered against the other Party under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law; (iii) the other Party petitions or applies to any tribunal for, or consents to, the appointment of, or taking possession by, a trustee, receiver, custodian, liquidator or similar official, of such other Party or any substantial part of its assets, or commences a voluntary case under the bankruptcy law of any jurisdiction; (iv) any such petition or application is filed, or any such proceedings are commenced, against the other Party and such other Party by any act indicates its approval thereof, consent thereto or acquiescence therein, or an order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator or similar official, or approving the petition in any such proceedings, and such order for relief, order, judgment or decree remains unstayed and in effect for more than sixty (60) days; or (v) any order, judgment or decree is entered in any proceedings against the other Party decreeing the dissolution of such other Party and such order, judgment or decree remains unstayed and in effect for more than sixty (60) days.

8.7 Effect of Termination. Expiration or termination of this Agreement shall not relieve the Parties of any obligation accruing prior to or upon such expiration or termination date, including, for clarity, CPS’ obligation to make the second installment of the License Fee, if such payment has not yet been made. Upon any termination of this Agreement or the license grant in Section 2.1(a), CPS shall cease to practice the 2 Blades Licensed Patents and shall promptly incinerate or otherwise destroy, at 2 Blades’ request, all Licensed Plant Products and TAL Nucleases in CPS’ control covered by one or more Valid Claims or Pending Claims within the 2 Blades Licensed Patents. Upon any termination of this Agreement or the license grant in Section 2.1(b), 2 Blades shall cease to practice the CPS Licensed Patents and shall promptly incinerate or otherwise destroy, at CPS’ request, all Licensed Plant Products and TAL Nucleases in 2 Blades’ control covered by one or more Valid Claims or Pending Claims within the CPS Licensed Patents. All rights and obligations of the Parties set forth herein that expressly survive the expiration or termination of this Agreement, as well as the provisions of Articles 1 (to the extent required to enforce other surviving rights and obligations), 3 (to the extent that any applicable payments have not yet been paid by either Party prior to termination of this Agreement), 7, 9, 10 and 11, and Sections 2.5, 4.4, 6.2, 6.3, 6.4, 6.5, 6.6, 8.5 and 8.7, shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement until they are satisfied or by their nature expire and shall bind the Parties and their successors and permitted assigns. For clarity, the licenses granted under Section 2.1 (including any rights granted by either Party to Sublicensees, Subsidiaries and Subcontractors) shall not survive termination of this Agreement under any circumstances.

 

Initials Two Blades Foundation:    22    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

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ARTICLE 9 CONFIDENTIALITY

9.1 Confidential Information. It is anticipated that it may be necessary, in connection with their obligations under this Agreement, for the Parties hereto to disclose to each other Confidential Information. Confidential Information shall include information disclosed in writing or other tangible form, including samples of materials. If disclosed orally, the Confidential Information shall be summarized in written form within thirty (30) days by the disclosing party and a copy provided to the recipient. Notwithstanding the foregoing, the obligations of confidentiality and limited use provided for in this Article 9 shall not apply to any Confidential Information which:

(a) is publicly available by publication or other documented means at the time of receipt from the disclosing party or later becomes publicly available through no act or fault of recipient;

(b) is already known to recipient before receipt from the disclosing party, as demonstrated by recipient’s written records;

(c) is made known to recipient by a Third Party who did not obtain it directly or indirectly from the disclosing party and who is not obligated to hold it in confidence; or

(d) is independently developed by the recipient as evidenced by credible written research records of recipient’s employees who did not have access to the disclosing party’s Confidential Information.

Specified information should not be deemed to be within any of these exclusions merely because it is embraced by more general information falling within these exclusions.

9.2 Confidentiality and Limited Use. All Confidential Information disclosed to the recipient shall remain the property of the disclosing party and shall be maintained in confidence by the recipient and shall not be disclosed to Third Parties by the recipient (other than as reasonably necessary to permitted Sublicensees and Subcontractors, provided that the recipient has previously bound such Sublicensees and Subcontractors by confidentiality and restricted use obligations at least as stringent than those set forth in this Section 9.2) and, further, shall not be used except for purposes contemplated in this Agreement. All confidentiality and limited

 

Initials Two Blades Foundation:    23    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

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use obligations with respect to the Confidential Information shall terminate five (5) years after the termination date of this Agreement. Notwithstanding anything to the contrary in this Agreement, 2 Blades may disclose Confidential Information of CPS (a) to the extent required by [*****], and (b) provided by CPS in its reports to 2 Blades pursuant to Section 2.8, as such information relates directly to TAL Nucleases or any invention disclosed or claimed in the Licensed Patents, in 2 Blades’ reporting and marketing activities in a form approved in writing by CPS (which approval shall not be unreasonably withheld). For clarity, Confidential Information disclosed pursuant to clause (b) of the immediately preceding sentence shall not include any information regarding particular Traits or Third Party. In addition, either Party may disclose Confidential Information of the other Party: (i) in connection with an order of a court or other government body or as otherwise required by or in compliance with law or regulations; provided, however, that the disclosing party provides the other party with reasonable notice and takes reasonable measures to obtain confidential treatment thereof; or (ii) in confidence to recipient’s attorneys, accountants, banks and financial sources and its advisors, so long as, in each case, the entity to which disclosure is made is bound to confidentiality on terms consistent with those set forth herein.

9.3 Disclosures to Employees. The recipient agrees to advise its officers and employees who need to know Confidential Information of these confidentially and limited use obligations and further agrees, prior to any disclosure of Confidential Information to such individuals, to cause them to be bound by the same obligations of confidentially and limited use as those contained in this Agreement. Any breach by such officers or employees of such obligations shall be deemed a breach of this Agreement by the recipient.

9.4 Return of Confidential Information. Upon termination of this Agreement, originals and copies of Confidential Information in written or other tangible form will be returned to the disclosing party by recipient or destroyed by recipient under instruction of the disclosing party. One copy of each document may be retained solely for legal archiving purposes.

9.5 Confidential Status of Agreement. The terms of this Agreement shall be deemed Confidential Information of both Parties and shall be dealt with according to the confidentially requirements of this Article 9. Notwithstanding the foregoing, the Parties will each issue a press release announcing the execution of this Agreement within thirty (30) days after the Effective Date. Neither Party will make public disclosures concerning other specific terms of this Agreement without obtaining the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary in this Agreement, under no circumstances shall CPS disclose the financial terms of this Agreement to any Sublicensee, Subcontractor or any other Third Party.

 

Initials Two Blades Foundation:    24    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

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ARTICLE 10 DISPUTE RESOLUTION

10.1 Meeting. In the event of any dispute relating to this Agreement, including the validity, scope, interpretation or application of this Agreement, each Party agrees to notify the other Party of the nature of the dispute in writing and arrange to meet and confer at the senior management level to try to resolve such dispute by good faith negotiations. If the Parties have not resolved the dispute within ninety (90) days of the date of written notice, the Parties agree to proceed by arbitration under the Rules of Arbitration (“Rules”) of the International Chamber of Commerce (Paris) (“ICC”) by a single arbitrator appointed in accordance with said Rules, if not otherwise stipulated in Section 10.2.

10.2 Arbitration Procedures. There shall be one arbitrator, who shall be selected jointly by the Parties within twenty (20) days of receipt by respondent of a copy of the demand for arbitration. Any arbitrator not timely appointed shall be appointed by the ICC from the ICC’s large, complex case panel, using the listing, ranking and striking procedure in the Rules, with each Party having a limited number of peremptory strikes. Any arbitrator appointed by the ICC shall have significant experience with the arbitration of similar large, complex, commercial disputes. The arbitration proceeding shall be conducted in the English language. The arbitration proceeding shall be held in Chicago, Illinois, USA; provided that the Parties may agree in writing to conduct individual hearings in other locations, in accordance with the Rules of the ICC. The Parties agree that only documents directly relevant to the issues in dispute must be produced in any such arbitration. The arbitration shall be conducted as expeditiously as practicable, and the Parties and the arbitrator shall use their best efforts to hold the hearing on the merits no later than ninety (90) days after the appointment of the arbitrator, and the arbitrator shall use its best efforts to issue a final award within twenty (20) days after the close of the hearing. In addition to damages, the arbitral tribunal may award any remedy provided for under applicable law and the terms of this Agreement, including specific performance or other forms of injunctive relief. The arbitral tribunal is not empowered to award damages in excess of compensatory damages, and each Party hereby irrevocably waives any right to recover punitive, treble or similar damages with respect to any arbitrated dispute. The arbitration award shall be in writing and shall briefly state the findings of fact and conclusions of law on which it is based. The arbitration award shall be final and binding on the Parties. The award may be entered and enforced in any court having competent jurisdiction. The administrative charges, arbitrators’ fees, and related expenses of any arbitration shall be paid equally by the Parties, but each Party shall be responsible for any costs or expenses incurred in presenting such Party’s case to the arbitrators, such as attorney’s fees or expert witness fees; provided, however, that if in the opinion of the arbitrator any claim by a Party hereto or any defense or objection thereto by the other Party was unreasonable, the arbitrator may in its sole discretion assess as part of the award all or any part of the arbitration expenses of the other Party as applicable (including reasonable attorneys’ fees) and the fees and expenses of the

 

Initials Two Blades Foundation:    25    Initials Cellectis Plant Sciences, Inc.:


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UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

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arbitrator and the ICC against the Party raising such unreasonable claim, defense or objection. Notwithstanding the Parties’ agreement to arbitrate, the Parties hereby agree that either Party may apply to any court of law or equity of competent jurisdiction for specific performance or injunctive relief to enforce or prevent any violation of the provisions of Article 9 of this Agreement. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the Parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any Party to respect the arbitral tribunal’s orders to that effect.

10.3 IP Matters. Notwithstanding the Parties’ agreement to arbitrate, unless the Parties agree in writing in any particular case, claims and disputes between the Parties relating to or arising out of, or for which resolution depends on a determination of the interpretation, validity, enforceability or infringement of, patents or trademarks or the misappropriation of trade secrets, shall not be subject to arbitration under this Agreement, and the Parties may pursue whatever rights and remedies may be available to them under law or equity, including litigation in a court of competent jurisdiction, with respect to such claims and disputes.

ARTICLE 11 MISCELLANEOUS

11.1 Relationship of Parties. The relationship of the Parties is that of independent contractors, and nothing herein shall be construed as establishing one Party or any of its employees as the agent, legal representative, joint venture, partner, employee, or servant of the other Party. Except as set forth herein, neither Party shall have any right, power or authority to assume, create or incur any expense, liability or obligation, express or implied, on behalf of the other Party. Neither Party shall hold itself out as being the agent, legal representative, joint venturer, partner, employee, or servant of the other Party or as having authority to represent or act for the other Party in any capacity whatsoever.

11.2. Assignment. This Agreement and the licenses granted herein are not assignable by either Party to any person or entity without the prior written consent of the other Party (which consent shall not unreasonably be withheld), provided, however, that either Party may assign this Agreement, without such consent, upon a transfer or sale of all or substantially all of the business of such Party to which this Agreement relates to a Third Party (the “ Transfer or Sale ”), whether by merger, sale of stock, sale of assets or otherwise, provided in each case that (i) such Party notifies to the other Party within thirty days of a Transfer or Sale and assignment of this Agreement, and (ii) the assignee delivers to the other Party a written instrument unconditionally agreeing to be bound by this Agreement; provided further that in any case the non-assigning Party shall retain all the benefits of the rights and licenses granted to it under this Agreement. The terms and conditions of this Agreement will be binding on and inure to the benefit of the successors and permitted assigns of the Parties. Any attempted assignment in violation of this Section 11.2 shall be null and void.

 

Initials Two Blades Foundation:    26    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

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11.3 Amendment. This Agreement shall not be amended except by an instrument in writing executed by 2 Blades and CPS.

11.4 Entire Agreement. This Agreement, including any exhibits hereto, constitutes the entire, full, and complete agreement between the Parties concerning the subject matter hereof, and supersedes all prior agreements, negotiations, representations, and discussions, written or oral, express or implied, between the Parties in relation thereto, including that certain Confidentiality Agreement between the Parties dated May 30, 2014.

11.5 Governing Law. This Agreement shall be interpreted and enforced in accordance with laws of the state of New York, USA, without regard to its conflicts of laws rules, provided, that those matters pertaining to the validity or enforceability of patent rights shall be interpreted and enforced in accordance with the laws of the territory in which such patent rights exist.

11.6 Notices. All communication concerning this Agreement, including payments, notices, demands or requests required or permitted hereunder shall be given in writing and shall be considered to have been duly delivered: (a) at the time personally delivered; or (b) one (1) day after transmission by facsimile, confirmed by registered or certified mail; or (c) five (5) days after being deposited prepaid in registered or certified mail; or (d) two (2) days after being deposited with a reputable private overnight mail courier service prepaid, requesting delivery in the fastest manner available. The addresses to be used for all payments, notices, demands or requests shall be as follows, unless and until changed by a Party by providing proper notice to all other Parties:

If to CPS: CELLECTIS PLANT SCIENCES

                 8, rue de la Croix Jarry

                 75013 PARIS

                 Attention: Chief Executive Officer

With a Copy (which shall not constitute notice) to:

CELLECTIS SA

8, rue de la Croix Jarry

75013 PARIS

Attention: General Counsel

If to 2 Blades: Two Blades Foundation

                         1630 Chicago Avenue, Suite 1907

                         Evanston, IL 60201 U.S.A.

                         Attention: Diana Horvath

With a Copy (which shall not constitute notice) via mail or telefax to:

Smith, Anderson, Blount

Dorsett, Mitchell & Jernigan, LLP

2300 Wells Fargo Capital Center

Raleigh, NC 27601 U.S.A.

Attention: John P. Thieren, Esq

Fax No. +1 919 821 6800

 

Initials Two Blades Foundation:    27    Initials Cellectis Plant Sciences, Inc.:


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UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

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11.7 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective while this Agreement remains in effect, the legality, validity and enforceability of the remaining provisions will not be affected thereby; provided, however, that, if the absence of such provision causes a material adverse change in either the risks or benefits of this Agreement to any Party, the Parties shall negotiate in good faith a commercially reasonable substitute or replacement for the invalid or unenforceable provision.

11.8 Waiver. The Parties hereto mutually covenant and agree that no waiver by either Party of any breach of the terms of this Agreement shall be deemed a waiver of any subsequent breach thereof. No waiver shall be effective unless made in writing with specific reference to the relevant provision of this Agreement and signed by a duly authorized representative of the Party granting the waiver.

11.9 Interpretation. All terms used herein in any one gender or number shall mean and include any other gender and number as the facts, context, or sense of this Agreement may require. Headings used herein are for descriptive purposes only and shall not control or alter the meaning of this Agreement as set forth in the text. The words “ include, ” “ includes ” and “ including ” shall be deemed to be followed by the phrase “ without limitation.

11.10 Computation of Time. Whenever the last day for the exercise of any privilege or the discharge of any duty hereunder shall fall on a Saturday, Sunday, or any public or legal holiday, whether local or national, the Party having such privilege or duty shall have until 5:00 p.m. in such Party’s time zone on the next succeeding business day to exercise such privilege, or to discharge such duty. All references to days in this Agreement shall mean calendar days, unless otherwise specified.

11.11 Language. All written materials, correspondence, notices and oral assistance supplied by either Party hereto shall be in the English language. The English language version of this Agreement will be controlling on the Parties.

11.12 Further Assurances. Each of the Parties will execute and deliver, or cause to be executed or delivered, such further documents and do or cause to be done such further acts and things as may be required to carry out the intent and purpose of this Agreement.

11.13 Third-Party Beneficiary. This Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns.

11.14 Advice of Counsel. 2 Blades and CPS have each consulted counsel of their choice regarding this Agreement, and each Party acknowledges and agrees that this Agreement shall not be deemed to have been drafted by one Party or the other and shall be construed accordingly.

 

Initials Two Blades Foundation:    28    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

11.15 Consideration. The Parties acknowledge that each of the licenses and rights granted by 2 Blades and CPS in Article 2 and each of the provisions of this Agreement individually and collectively, constitute good, valuable, and sufficient consideration for each and all of the fees and payment called for hereunder and for each and all of the other obligations of CPS and its Sublicensees, Subsidiaries and Subcontractors, and 2 Blades and its Sublicensees and Subcontractors, as applicable; the Parties further acknowledge that the individual and collective rights under and access to the Licensed Patents renders the way in which those fees and payments hereunder are determined, and their duration, appropriate and desirable as a matter of convenience.

[SIGNATURE PAGE FOLLOWS]

 

Initials Two Blades Foundation:    29    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

IN WITNESS WHEREOF , the Parties hereto have executed this Agreement as of the Effective Date.

 

Cellectis Plant Sciences, Inc.
By:  

/s/ Luc Mathis

Name:   Luc Mathis
Title:   CEO

 

Two Blades Foundation
By:  

/s/ Diana M. Horvath

Name:   Diana M. Horvath
Title:   President

 

Initials Two Blades Foundation:    30    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

EXHIBIT A

2 BLADES LICENSED PATENTS

[*****]

 

Initials Two Blades Foundation:    31    Initials Cellectis Plant Sciences, Inc.:


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Confidential

  

Execution Copy

CPS-14033

 

EXHIBIT B

CPS LICENSED PATENTS

[*****]

 

Initials Two Blades Foundation:    32    Initials Cellectis Plant Sciences, Inc.:

Exhibit 10.8

CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

CONFIDENTIAL

AMENDMENT 1 TO THE COMMERCIAL LICENSE AGREEMENT

This AMENDMENT 1 TO THE COMMERCIAL LICENSE AGREEMENT (this “Amendment”) is made effective as of December 1, 2016 (the “Amendment Effective Date”) by and between CALYXT, INC. (previously known as CELLECTIS PLANT SCIENCES, INC., with the change of name occurring on or about May 5, 2015), a company existing and registered under the laws of Delaware, located at 600 County Road D West, Suite 8, New Brighton, MN 55112, USA, under the EIN number 27-1967997, represented by Federico Tripodi acting as Chief Executive Officer (CEO) duly authorized for the purposes hereof (“CALYXT” or “CPS”) and Two Blades Foundation , a not-for-profit corporation organized and existing under the laws of the State of Delaware with its principal place of business at 1630 Chicago Avenue, Suite 1907, Evanston, IL 60201, USA (“2 Blades”; CPS and 2 Blades, each a “Party” and collectively, the “Parties”).

WHEREAS, the Parties executed a Commercial License Agreement made effective on December 9, 2014 (the “Agreement”); and

WHEREAS, certain terms of the Agreement are set to expire on December 8, 2016, including CPS’s option to add Plants to the scope of the Licensed Crops under Section 2.1(c); and

WHEREAS, the Parties now agree to extend the term of such option for an additional one (1) year period.

NOW, THEREFORE, for and in consideration of the premises and other obligations set forth herein, the Parties agree as follows:

1- Extension of the Option to Add Plants under the Agreement

Section 2.1(c) of the Agreement is hereby deleted in its entirety and replaced with the following:

“Addition of crops into Licensed Crops. Within the first [*****] years of this Agreement, CPS is granted an option (the “ Option ”) to add [*****] crop Plants of its choice to the “Licensed Crops” subject to payments under Section 3.1(c), provided, however, if [*****] are added under the Option, the Licensed Field for purposes of CPS’ license under Section 2.1(a) with respect to [*****] , as applicable, will exclude the 2 Blades Commercial Licensed Field. In order to exercise the Option, CPS shall provide 2 Blades with written notice of such exercise, together with the payment required under Section 3.1(c).”

2- Acknowledgment of Prior Partial Exercise of the Option

The parties acknowledge that on December 31, 2015, CALYXT exercised the Option with respect to [*****] crop Plants: [*****] . Accordingly, the parties acknowledge that CALYXT may continue to exercise the Option during the period set forth in Section 2.1(c) of the Agreement for up to an additional [*****] crop Plants of its choice.

3- Consideration

In consideration of this Amendment, CALYXT shall pay 2 Blades a fee of [*****] , payable upon execution of this Amendment in accordance with the fee payment terms of Section 3.2 of the Agreement.

4- Miscellaneous

Terms not defined herein shall have the meaning ascribed to them in the Agreement. Ali provisions of the Agreement not expressly modified by the present Amendment shall remain unchanged and in full force and effect according to their terms.


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

This Amendment shall enter into force as of the Amendment Effective Date and shall constitute an integral part of the Agreement.

[SIGNATURE PAGE FOLLOWS]

 


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

IN WITNESS THEREOF, the Parties have caused this Amendment to be executed in duplicate by their respective duly authorized officers or representatives as of the Amendment Effective Date.

 

TWO BLADES FOUNDATION     CALYXT, INC.
By:  

/s/ Diana M. Horvath

    By:  

/s/ Federico Tripodi

Name:   Diana M. Horvath     Name:   Federico Tripodi
Title:   President     Title:   Chief Executive Officer (CEO)

 

Exhibit 10.9

CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

      LOGO
     
     

Two Blades Foundation

1630 Chicago Avenue,

Suite 1907

Evanston, IL 06201

U.S.A.

     

 

Att: Diana Horvath

New Brighton, December 31st, 2015

Subject: Commercial License Agreement effective on December 9th, 2014—Option exercise for [*****]

Dear Dr. Horvath,

Reference is made to the Commercial License Agreement made effective on December 9, 2014 between Calyxt Inc. (“Calyxt” or “CPS”, initially known as Cellectis Plant Sciences Inc.) and Two Blades Foundation (hereinafter the “Agreement”).

Pursuant to the Section 2.1 (c) of the Agreement, CPS has an option to add crop plants of its choice to the “Licensed Crops” subject to sending written notice thereof and paying amounts set in Section 3.1 (c) of the Agreement to Two Blades Foundation (the “Option”).

We are very pleased to inform you that Calyxt hereby exercises this Option for the [*****] following crop plants: [*****]. Therefore, as per the provisions of Section 3.1 (c) of the Agreement, Calyxt has initiated the payment of the irrevocable and non-refundable license fee of [*****] in compensation for the exercise of the Option for the [*****] additional crops.

Yours sincerely,

/s/ Luc Mathis

Luc Mathis

Chief Executive Officer

Calyxt Inc., 600 County Road D W., Suite 8, New Brighton, MN 55112, USA, Phone +1 (651) 683-2807,Info@calyxt.com, www.calyxt.com

 

1/1

Exhibit 10.10

CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL

TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED

MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

EXCLUSIVE LICENCE AGREEMENT

THIS EXCLUSIVE LICENCE AGREEMENT (the “Agreement”) is made effective as from the 25 th day of April 2015 (the “Effective Date”)

By and between:

PLANT BIOSCIENCE LIMITED , a company registered in England with number 2896390 and whose registered office is at John Innes Centre, Norwich Research Park, Colney Land, Norwich NR4 7UH, UK (hereinafter “PBL”) and

CALYXT, INC. (formerly named CELLECTIS PLANT SCIENCES), a company existing and registered under the laws of Delaware, located at 600 County Road D West, Suite 8, New Brighton, MN 55112, under the EIN number 27-1967997 (hereinafter “CALYXT”).

PBL and CALYXT shall also be referred to singly as “Party”;

and PBL and CALYXT collectively as “Parties”.

WHEREAS , PBL has the right to and is able to license the exclusive rights granted or agreed to be granted under this Agreement relating to the Licensed Technology (as defined hereinafter) developed by [*****];

WHEREAS , CALYXT wishes to receive and PBL is willing to grant the right to develop and commercialise Licensed Products, on a worldwide royalty-bearing basis. PBL is willing to grant CALYXT these rights as more particularly set out herein.

NOW THEREFORE , the Parties agree as follows:

1 DEFINITIONS

 

1.1 Affiliate ” means any company, corporation, firm, partnership or other entity controlling, controlled by or under common control with a Party to this Agreement, “control” meaning in this context the direct or indirect ownership of more than fifty percent (50%) of the voting rights of a company, corporation, firm, partnership or other entity, or the power to nominate more than half of the directors, or the power otherwise to determine the policy of a company or organisation. For the purpose of this Agreement, CALYXT shall be deemed to include CALYXT’s Affiliates and CALYXT shall be responsible for its Affiliates’ compliance with the terms and conditions contained herein.

 

1.2 Bare Sub-License ” means any sub-license granted by CALYXT to any Third Party of rights to some or all of the Licensed Technology, without any Licensed Product developed by or in collaboration with CALYXT and/or CALYXT’s Affiliates, or other technologies or rights developed, controlled or owned by CALYXT. For any avoidance of doubt, Sub-Licenses will not be considered Bare Sub-Licenses.

 

1.3 Commercially Reasonable Efforts ” means [*****].

 

1.4 Confidential Information ” means all information either in connection with the discussions and negotiations pertaining to, or in the course of performing, this Agreement, including without limitation the terms of this Agreement, inventions, discoveries, know-how, data, formulae, information, compositions, biological materials, substances, processes and equipment proprietary to or controlled by a Party and disclosed or made available to the other during the License Term.

 

Page 1 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

1.5 Field Of Use ” shall mean any and all purposes including without limitation development and commercial activities.

 

1.6 Half Year shall mean a period of six (6) months from 1 st January to 30 th June or 1 st July to 31 st December, as applicable.

 

1.7 Improvements shall mean any improvement, alteration, extension, modification or discovery of the Licensed Technology, whether patentable or not, developed by [*****].

 

1.8 Licensed Patent ” shall mean:

 

  (i) Patent application numbers [*****], and any patent(s) granted on these applications; and,

 

  (ii) any patents and applications corresponding to such patents and applications which may be granted to or made by PBL in other countries; and,

 

  (iii) any re-issues or extensions, any division and continuations, continuations-in-part, re-examinations, reissues or supplemental protection certificates etcetera that claim priority from such patents and patent applications;

 

  (iv) any patent applications and any patents granted therefrom in respect of any Improvements; and

 

  (v) any patent applications and any patents granted therefrom in respect of the [*****].

 

1.9 Licensed Product ” shall mean any plant, seed, seedling, explants and other plant material, and products and derivatives from such plants, seeds, seedlings, explants and other plant material, or other product or good, which (i) contains or was produced using the Licensed Technology and (ii) the manufacture, use, sale, offer for sale, export or import of which is covered by a Valid Claim.

 

1.10 Licensed Technology shall mean the Licensed Patent, the [*****] and/or any Improvements.

 

1.11 [*****] shall mean wheat line(s) or related plant material(s) created by [*****] that contains at least one targeted modification of the [*****], as further described in Appendix B, and supplied to CALYXT under this Agreement. For purposes herein, [*****] .

 

1.12 Licence Term shall mean the period from the Effective Date until the later of (a) the tenth anniversary of the date that sales of Licensed Products first occur or (b) the last day of existence of a Valid Claim of a Licensed Patent.

 

1.13 Net Revenues ” shall mean any revenue or amount paid by a Third Party to CALYXT or its Affiliates pursuant to a Bare Sub-License (including upfront and milestones payments, and royalties paid to CALYXT based on seeds sold by such Bare Sub-License beneficiary).

 

1.14 Net Trait Value Premium shall mean, with respect to any Licensed Product developed by CALYXT and/or CALYXT’s Affiliates and either exploited directly by CALYXT (and/or its Affiliate) or by a Sub-Licensee, in a particular region/market, the value attributed to the Trait on Net Sales of Seeds. For Purposes herein, “ Net Sales ” shall be defined as the cash consideration paid by a Third Party for the purchase of Seeds of Licensed Products to CALYXT (and/or its Affiliate or Sub-Licensee), less the following documented deductions [*****].

 

1.15 Seed ” means seeds of Licensed Product for planting in a commercial field by a grower for the production of grains.

 

1.16 Sub-License means any license granted by CALYXT or CALYXT’s Affiliates to a Third Party (a “ Sub-Licensee ”) for the development and/or exploitation of a Licensed Product developed by or in collaboration with CALYXT or CALYXT’s Affiliates.

 

Page 2 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

1.17 [*****].

 

1.18 Territory means any countries and regions worldwide.

 

1.19 Third Party means any company, corporation, firm, partnership or other entity other than PBL, CALYXT or their respective Affiliates.

 

1.20 Trait means the resistance [*****].

 

1.21 Valid Claim means a claim in a granted, unexpired and unabandoned patent, or a claim of a pending patent application that has been pending for not more than ten (10) years after the filing date from which such claim takes priority, which has not been held unpatentable, invalid, or unenforceable by a court or other governmental agency of competent jurisdiction in a final decision from which no appeal can be taken.

2 GRANT OF RIGHTS

 

2.1 Grant of License . PBL hereby grants to CALYXT and its Affiliates, an exclusive (subject to [*****] reservation of rights under Article 2.2), in the Territory, royalty-bearing licence (together with the rights granted under Article 2.3, the “Licence”), under the Licensed Technology, during the Licence Term, (a) to make, use, sell, offer to sell, exploit, export and/or import Licensed Products in the Field of Use, and (b) to provide commercial development, co-development and/or similar technical services to Third Parties in order to develop or create Licensed Products for such Third Parties.

 

2.2 [*****]

 

(i) [*****]

 

(ii) [*****]

 

2.3 CALYXT shall have the exclusive right to grant Bare Sub-Licenses in respect of the Licensed Technology, and Sub-Licenses, to Third Parties in the Territory and during the License Term, under the following conditions:

 

  (i) CALYXT warrants that any Bare Sub-License or Sub-Licence executed under this Agreement shall impose on the sub-licensee obligations compatible with the obligations imposed by this Agreement on CALYXT;

 

  (ii) CALYXT shall keep PBL informed of any breach by a sub-licensee of any material obligations under any such sublicense and shall use all best efforts commensurate with the breach of such obligations to enforce the terms of the sub-licence;

 

  (iii) CALYXT shall keep PBL informed of its Bare Sub-Licensing activities and shall provide PBL with redacted copies of all Bare Sub-Licence agreements, within thirty (30) days of executing such Bare Sub-License;

 

  (iv) Except for humanitarian and/or bona fide not-for profit public-good purposes, CALYXT shall not enter into a Bare Sub-Licence or Sub-License agreement that includes non-monetary consideration in respect of the Licensed Technology, except to secure rights from the sub-licensee to any sub-licensee improvement that would, in the absence of a grant-back of rights to CALYXT, prevent CALYXT from exploiting Licensed Products.

 

2.4 On all Licensed Products, CALYXT and Affiliates and sub-licensees shall display patent notices in a manner consistent with current laws, regulations and practices for patented materials including without limitation on packages containing any Licensed Products.

 

Page 3 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

2.5 No licence, whether expressed or implied, is granted to any intellectual property of PBL other than the rights expressly granted herein. It is also expressly agreed that nothing in this Agreement shall be deemed to create any grant of right to PBL and/or [*****], whether expressed or implied, to any intellectual property owned or controlled by CALYXT.

 

2.6 Upon execution of this Agreement, PBL shall secure the supply of [*****] to CALYXT by [*****].

3 LICENCE and MILESTONE FEES, AND ROYALTIES

 

3.1 As consideration for the rights granted to CALYXT under the present Agreement, CALYXT shall pay to PBL fees and royalties as set out more particularly in this Section 3.

 

3.2 CALYXT shall pay to PBL a licence commencement fee of [*****]. Such commencement fee shall be invoiced by PBL upon execution of this Agreement.

 

3.3 CALYXT shall pay to PBL annual licence maintenance fees of [*****] on each of the first, second and third anniversaries of the Effective Date; and on the fourth anniversary of the Effective Date and each anniversary of the Effective Date thereafter, CALYXT shall pay to PBL annual licence maintenance fees of [*****].

 

3.4 On the occurrence of [*****], CALYXT shall pay to PBL a non-refundable, non-creditable once off Milestone Fee of [*****]. CALYXT shall advise PBL in writing within thirty (30) days of the event causing this Milestone Fee to become due.

 

3.5 All payments detailed in Articles 3.1 to 3.4 inclusive shall be non-refundable and non-creditable against royalties or any other payments or expenses made or incurred by CALYXT.

 

3.6 With regard to any Bare Sub-licences granted by CALYXT, CALYXT shall pay to PBL, for the Licence Term [*****] of any Net Revenues paid to CALYXT by the Bare Sub-Licensee.

 

3.7 With regard to any Licensed Product developed by CALYXT and/or CALYXT’s Affiliates and either exploited directly by CALYXT (and/or its Affiliate) or by a Sub-Licensee, CALYXT shall pay to PBL royalties amounting [*****] of the Net Trait Value Premium. Royalties under the Net Trait Value in the present Section 3.7 shall be subject to a minimum of [*****].

 

3.8 CALYXT’s obligation to make payments under sections 3.4 and 3.7 shall endure for the License Term, and under sections 3.3 and 3.6 shall endure until the last day of existence of a Valid Claim of a Licensed Patent. After such time, the Licence shall be considered fully paid up. Any and all payments due under Articles 3.3, 3.4 and the minimum royalty stated in Article 3.7 shall be adjusted on the 1st of April of each year by the percentage increase, if any, in the British Government Office for National Statistics Retail Price Index (RPI) or its equivalent as compared to the same index for March 2015.

 

3.9 Payments under this Agreement are exclusive of VAT or any other taxes or duty, which, where applicable, shall be invoiced by PBL and paid by CALYXT in full, without deduction of taxes, charges, duties or other sums, by bank transfer to PBL’s bank as detailed on PBL’s invoices.

 

3.10 CALYXT shall pay sums due within forty-five (45) days of the date of receipt of the relevant invoice from PBL.

 

3.11 Within thirty (30) days after the end of each Half Year, CALYXT shall provide to PBL a written report of all Net Revenues and Net Trait Value Premium during such Half Year from which payments to PBL are due. The report shall set out in detail the determination of all payments due to PBL pursuant to this Article 3. Following receipt of the revenue reports herein, PBL shall invoice CALYXT accordingly and CALYXT shall make the royalty payments then due, within forty-five (45) days of the date of receipt of said invoice(s). Payments shall be made by direct transfer into PBL’s bank account the details of which shall be provided on the relevant invoices prepared by PBL.

 

Page 4 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

3.12 CALYXT shall keep books and records of Net Revenues and Net Trait Value Premium and shall cause its sub-licensees to keep books and records of sales of Licensed Products for each and every Half Year in sufficient detail to permit PBL to confirm the accuracy of CALYXT’s royalty calculations, including, without limitation, all Net Sales of Licensed Products by CALYXT (and/or its Affiliate) or by a Sub-Licensee. At PBL’s request, CALYXT shall permit an independent Certified Public Accountant appointed by PBL and reasonably acceptable to CALYXT to examine, not more often than once during any calendar year and under appropriate confidentiality provisions, upon reasonable notice of at least ten (10) working days and at reasonable times and in a manner that does not interfere unreasonably with CALYXT’s business, such records solely to the extent necessary to verify CALYXT’s calculations. Such records shall be kept and examination thereof shall be limited to a period of time no more than three (3) years immediately preceding the request for examination.

The audit of record pursuant the present Article shall be at the cost of PBL, provided that, if a net aggregate underpayment by CALYXT of more than [*****] is found, CALYXT shall be obligated to reimburse PBL for the cost of the audit.

 

3.13 Notwithstanding any other remedy available to PB under the provisions of this Agreement or otherwise, if any sum or money owed to PBL hereunder is not paid when due, PBL shall charge interest on any and all such late payments of [*****], calculated on a daily basis.

4 DILIGENT EXPLOITATION OF RIGHTS GRANTED

 

4.1 While this Agreement remains in force, CALYXT shall use Commercially Reasonable Efforts to [*****].

 

4.2 Without limitation to the generality of Article 4.1, CALYXT shall use Commercially Reasonable Efforts [*****]. PBL acknowledges that factors contributing to a failure to achieve the indicated timelines maybe outside the direct control or influence of CALYXT and that the Development and Commercial Program is non-binding and indicative. CALYXT will keep PBL regularly informed of the progress, difficulties or delays in implementing the Development and Commercial Program. If CALYXT fails to achieve a milestone set out in Appendix A, then CALYXT will promptly advise PBL in writing the reasons for such failure and set out its plans for remedying such delay, and mutually agree any applicable adjustment of the relevant milestones set out in Appendix A. In the event that following such review of the missed milestone(s), CALYXT fails to implement the agreed remedial activities and/or fails to meet a subsequent or adjusted milestone, then PBL may on sixty (60) days’ written notice to CALYXT, convert the Licence to non-exclusive.

 

4.3 CALYXT shall ensure that [*****] supplied under this Agreement are used only in accordance with the provisions of this Agreement. [*****] supplied to CALYXT shall be kept secure and shall only be supplied to Third Parties for the purposes of exploiting the Licence and always under written agreements in accordance with the terms and conditions of this Agreement.

5 MEETINGS & PROGRESS REPORTS

 

5.1 Within one (1) month after the 1 st of January of each year, CALYXT shall provide a written report (“Progress Report”) to PBL to keep PBL informed of CALYXT’s progress on its development, Bare Sub-Licensing, Third-Party collaborations and service activity and its and Sub-licensees’ progress with and towards commercialisation of Licensed Products, and plans for the coming 12-month period. Up to January 1 st 2018 (included), such progress reports shall be provided within thirty (30) days after the end of each Half Year.

 

Page 5 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

5.2 Representatives of the Parties shall meet at locations to be agreed upon by the Parties at least every twelve (12) months, or otherwise as mutually agreed upon by the Parties, to discuss CALYXT’s Progress Reports. Such meetings may, if agreed upon by the Parties, take place via a teleconference.

6 CONFIDENTIALITY PROVISIONS

 

6.1 Confidential Information, as used herein, shall mean any information which is by its nature or substance usually considered to be of confidential nature or is expressly identified by the disclosing Party as confidential; in the case of oral information, the disclosing Party shall within four (4) weeks after the date of disclosure confirm in writing that the information so disclosed was of confidential nature. Confidential Information shall include, but not be limited to, any information both of commercial or technical character relating to material, models, specifications, formulae, data, designs, know-how, inventions, apparatuses, methods, techniques, drawings, recipes, methods of manufacture, prices, contractual information, capacities and/or accounting of materials, and material itself, business information of either Party, reports provided under this Agreement, copies of redacted sub-license agreements executed by CALYXT, and the financial terms of this Agreement.

 

6.2 The Parties undertake

 

    to keep strictly confidential any and all Confidential Information received by it under this Agreement and not to make it available to any Third Party; and

 

    to use the Confidential Information only for the purpose of this Agreement;

with the proviso that CALYXT may disclose Confidential Information to sub-licensees, collaboration partners and/or marketing partners with the aim to fulfil the purpose of this Agreement on a need-to-know basis and under confidentiality terms commensurate in scope with the confidentiality terms defined in this Agreement.

 

6.3 The Parties shall limit the disclosure of the Confidential Information to those of its employees and its Affiliate’s employees who are required to have the Confidential Information for the purpose of this Agreement and who are under commitments of confidentiality commensurate in scope with this Agreement as far as legally permissible, and shall in general maintain the same degree of secrecy with respect to their own operation, and confidential information of similar importance.

 

6.4 The receiving Party may disclose Confidential Information received from the disclosing Party to receiving Party’s consultants on a need-to-know basis, subject to confidentiality terms consistent with this Agreement.

 

6.5 The foregoing obligations shall not apply to any Confidential Information, which can be proved by the receiving Party

 

  a. was of public knowledge at the date of its disclosure by the disclosing Party;

 

  b. has become of public knowledge after the disclosure by the disclosing Party through no default of the receiving Party;

 

  c. was in its possession prior to the disclosure by the receiving Party and the receiving Party had the right to make such disclosure;

 

Page 6 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

  d. to be independently developed by the receiving Party without reference to or use of the disclosing Party’s Confidential Information;

 

  e. has become legally available to the receiving Party from any third party, which was in lawful possession thereof and had the right to make such disclosure; and/or

 

  f. has to be disclosed on the basis of legal requirements.

 

6.6 For the purposes of the foregoing exceptions (a) to (f), Confidential Information transmitted by the disclosing Party to the receiving Party under this Agreement shall not be deemed to be within the exceptions merely because it is embraced by general disclosures, which are known or in the possession of the receiving Party. Further, a combination of measures or elements of Confidential Information transmitted under this Agreement shall not be within the foregoing exceptions (a) to (f) if only individual measures or elements of Confidential Information were known to or in the possession of the receiving Party, unless the combination itself is covered by the above specified exceptions.

 

6.7 Without prejudice to the generality of the confidentiality terms set forth above, the Parties agree to keep confidential the financial terms and conditions set out in this Agreement and not to disclose it to any person except to such of its employees who need to know the same for the purposes of this Agreement or to legal, financial or business consultants, actual or potential investors in the company who will be bound by an obligation of confidentiality.

 

6.8 The confidentiality obligations in this Section 6, as far as not subject to the exceptions specified in Article 6.5 above, shall survive termination of this Agreement and be enforceable for ten (10) years after termination of this Agreement.

 

6.9 SEC Filings and Other Disclosures. Notwithstanding any provision of this Agreement to the contrary, either Party may disclose the terms of this Agreement to the extent required, in the reasonable opinion of such Party’s legal counsel, to comply with applicable Law, including the rules and regulations promulgated by the United States Securities and Exchange Commission or any equivalent governmental agency in any country. Notwithstanding the foregoing, before disclosing this Agreement or any of the terms hereof pursuant to this Section 6.9, the Parties will consult with one another on the terms of this Agreement to be redacted in making any such disclosure. Further, if a Party discloses this Agreement or any of the terms hereof in accordance with this Section 6.9, such Party will, at its own expense, seek such confidential treatment of confidential portions of this Agreement and such other terms, as may be reasonably requested by the other Party.

7 PATENT COSTS & INFRINGEMENT

 

7.1 Subject to Clause 7.2 and as long as the License is exclusive, CALYXT shall pay all out-of-pocket Licensed Patent costs and other reasonable out-of pocket costs incurred by PBL in association with the filing and maintenance of the Licensed Patents, including but not limited to costs arising from translations, filing, prosecution, issuance/grant, maintenance, defence and oppositions of Licensed Patents. Such costs shall be promptly reimbursed by CALYXT by direct transfer into PBL’s bank account the details of which shall be provided on the relevant invoices prepared by PBL.

 

7.2 PBL shall keep CALYXT informed on progress with prosecution, and maintenance of the Licensed Intellectual Property, CALYXT shall have the opportunity to comment on and make suggestions to PBL in the prosecution and maintenance of the Licensed Patents. In particular, PBL shall ask CALYXT, at least 2 months before the deadlines, in which countries the Licensed Patents should be filed and/or issued. In the absence of a response from CALYXT, PBL will file and seek for patent protection in [*****] plus any other countries requested by CALYXT in addition to these. PBL will not abandon any patent or patent application within the Licensed Patents without the approval of CALYXT.

 

Page 7 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

7.3 Each Party shall promptly notify the other Party of any Third Party activity of which it becomes aware which can reasonably be considered to constitute an infringement of Licensed Patents within the scope of the Licence.

CALYXT shall institute and control the conduct of all claims and proceedings in respect of infringement or defence actions relating to any infringement by Third Parties that is within the scope of exclusive rights granted to CALYXT under this Agreement, subject to prior approval from PBL, which shall not be withheld or delayed unreasonably. PBL agrees to perform, and have [*****] perform, all acts within its power which may become necessary to vest in CALYXT the right to conduct any such claims and proceedings, upon reasonable notice, cooperate and to the extent deemed necessary by CALYXT and at CALYXT’s expense, participate in the conduct of such claims and proceedings. CALYXT shall, after it has recouped its attorney’s fees and out of pocket costs incurred, apply any excess recovered damages paying PBL royalties provided in Section 3.7 of such excess fee recovered damages that constitute compensation for lost sales of Licensed Products.

 

7.4 If CALYXT does not institute infringement or defence proceedings according to Article within ninety (90) days of becoming aware of such an infringement then PBL may protect the Licensed Patent from infringement and commence proceedings against alleged infringers when, in its exclusive judgement, such action may be reasonably necessary, proper, justified and feasible, but PBL shall not be obliged to take any action at all.

 

7.5 If CALYXT or an Affiliate of CALYXT should challenge or encourage or facilitate a challenge by a Third Party, of the validity of any of the Licensed Patents, PBL may, in its sole but reasonable discretion, terminate any or all of the rights granted to CALYXT under this Agreement.

8 WARRANTIES & LIMITATION OF LIABILITY

 

8.1 PBL represents, warrants and covenants that

 

  (i) it has the right to grant the Licence as set forth in this Agreement;

 

  (ii) it has full power and authority to enter into this Agreement;

 

  (iii) as of the Effective Date each such Licensed Patent is in full force and effect and PBL or [*****] have timely paid all filing and renewal fees payable with respect to such Licensed Patents;

 

  (iv) to its knowledge: (i) the Licensed Patent existing as of the Effective Date, are, or, upon issuance, will be, valid and enforceable patents and (ii) as of the Effective Date, no Third Party (a) is infringing any Licensed Patent for use in the Field or (b) has challenged or threatened to challenge the extent, validity or enforceability of any Licensed Patents (including, by way of example, through the institution or threat of institution of interference, nullity or similar invalidity proceedings before the United States Patent and Trademark Office or any analogous foreign Governmental Authority);

 

  (v) it and its counsel, and, to its knowledge, [*****], its inventors, and its counsel, with respect to with the Licensed Patents, have complied with all Applicable Laws, including any disclosure requirements, in connection with the filing, prosecution and maintenance of the Licensed Patents;

 

Page 8 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

  (vi) PBL and/or [*****] has/have independently developed the Licensed Technology or otherwise has a valid right to use, and to permit CALYXT, CALYXT’s Affiliates and any sub-licensee to use, the Licensed Technology for all permitted purposes under this Agreement;

 

  (vii) no Licensed Technology is encumbered under any funding agreement with any Governmental Authority;

 

  (viii) neither PBL nor any of its Affiliates and licensors are subject to any agreement or obligation that limits any ownership or license right granted to CALYXT or its Affiliates under this Agreement, including any right granted to CALYXT or its Affiliates to access, practice, grant any licenses or sublicenses under, or provide CALYXT’s sub-licensees with access to any intellectual property right or material, in each case, that would, but for such agreement or obligation, be included in the rights licensed or assigned to CALYXT or its Affiliates pursuant to this Agreement;

 

  (ix) at the Effective Date, no Third Party has any right, title or interest in or to, or any license under, any Licensed Technology for use in the Field;

 

  (x) there is no (a) claim, demand, suit, proceeding, arbitration, inquiry, investigation or other legal action of any nature, civil, criminal, regulatory or otherwise, pending or, to the knowledge of PBL and [*****], threatened against PBL, [*****] or any of their respective Affiliates or (b) judgment or settlement against or owed by PBL, [*****] or any of their respective Affiliates, in each case in connection with the Licensed Technology or relating to the transactions contemplated by this Agreement; and

 

  (xi) the license agreements between PBL and [*****] in respect of the Licensed Technology cannot be terminated while this Agreement remains in force.

 

8.2 Subject to Section 8.1 above, PBL gives no warranty as to the validity, novelty, non-infringement, scope of claims, or safety of any of the Licensed Technology or its suitability for any particular purpose. All implied terms, conditions and warranties, statutory or otherwise, which might otherwise by operation of law be incorporated in this Agreement are hereby expressly excluded insofar as is permitted by law.

 

8.3 Save as is prohibited by law neither Party shall have any liability to the other in respect of liability for any loss of profits, revenue or goodwill or any other type of special, indirect or consequential loss suffered by the other Party, except to the extent that such loss results from the negligence, wilful misconduct or gross negligence of such Party. Each Party’s entire liability to the other Party for loss or damage, including related expenses and legal costs, arising from a breach of this Agreement shall be limited to the total of the payments actually made to PBL by CALYXT under this Agreement in the 12 months previous to the date of the event giving rise to the claim.

 

8.4 Indemnification

Without prejudice to Section 8.3, CALYXT shall indemnify, defend and hold harmless PBL and the [*****] and their respective trustees, officers, employees and Affiliates from and against all claims and expenses, including legal expenses and reasonable attorneys’ fees, arising out of the death or injury to any person or persons or out of any damage to property and against any other claim, proceeding, demand, expense and liability of any kind whatsoever resulting from the improper use by CALYXT or its Affiliates or sub-licensees of Licensed Intellectual Property in the production, sales, or consumption of the Licensed Products, except to the extent arising out of the negligence or wilful misconduct of PBL.

 

8.5 CALYXT shall maintain and/or shall ensure that its Affiliates and Sub-licensees maintain reasonable levels of product liability insurance as soon as CALYXT, its Affiliates or its Sub-licensees (as applicable) begin to sell Licensed Products. PBL shall have the right to require such insurance policies or certificates of insurance to be made available for inspection.

 

Page 9 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

8.6 The Parties represent and warrant that there are no outstanding agreements, assignments, or encumbrances inconsistent with the provisions of this Agreement.

9 TERMINATION

 

9.1 CALYXT may terminate this Agreement at any time and for any reason by giving PBL no less than ninety (90) days’ notice in writing stating the reasons for its decision to terminate. CALYXT shall, on or before the date of actual termination of this Agreement in accordance with this Article 9.1, submit a report to or schedule a final meeting with PBL’s representative(s) for explaining the reasons for its decision to terminate.

 

9.2 PBL may elect to terminate this Agreement if CALYXT is in material breach of any of the terms in this Agreement, including without limitation the late payment of any of the fees SUBJECT THAT, if the breach can be remedied, PBL shall give CALYXT not less than [*****] written notice specifying the breach and requiring it to be remedied. If CALYXT subsequently fails to remedy the specified breach within the [*****]’ period, the Agreement shall terminate on the date specified in the written notice. A breach of any term of this Agreement by an Affiliate of CALYXT shall be considered a breach by CALYXT. CALYXT shall incorporate any such provision in its Sublicense agreements so that CALYXT shall be entitled to terminate any such Sublicense in the conditions herein.

 

9.3 Without prejudice to the generality of Article 9.2 it shall be a material breach of this Agreement by either Party should they disclose confidential information contrary to Section 6.

 

9.4 This Agreement and the rights granted hereunder shall terminate automatically if CALYXT goes into compulsory or voluntary liquidation or if a receiver or administrator is appointed in respect of the whole or any part of its assets or if CALYXT makes an assignment for the benefit of its creditors generally or if CALYXT contests, directly or indirectly, the validity of any or all of the Licensed Patents.

 

9.5 Termination of this Agreement for any reason shall not bring to an end the liability of CALYXT to pay any and all sums due from CALYXT under this Agreement at the date of termination.

 

9.6 Upon termination of this Agreement for any reason CALYXT shall return all [*****] (still existing at the date of termination) provided under this Agreement and/or as instructed by PBL destroy all Licensed Products. This Section shall not apply if this Agreement is terminated by CALYXT for a material breach by PBL.

Notwithstanding termination of this Agreement for any reason, Sections 6 and 8 shall continue in full force and effect.

 

9.7 In case of early termination of this Agreement between CALYXT and PBL, CALYXT shall provide a list of any Bare Sub-License that will be assigned by CALYXT to PBL who will replace CALYXT, and CALYXT’s rights and obligations shall be transferred to PBL at the date of the effective termination of this Agreement only with respect to the Bare Sub-Licensees listed by CALYXT. CALYXT expressly agrees in advance to such assignment to PBL and PBL consents to such potential assignment.

10 SEVERABILITY

 

10.1 If any provision of this Agreement becomes invalid or unenforceable, such invalidity or un-enforceability shall not affect the other portions of this Agreement, which shall remain in full force and effect provided that the basic intent of the Parties is preserved. The Parties shall in good faith negotiate substitute provisions to replace the invalid or unenforceable provisions, which reflect the original intentions of the Parties as closely as possible.

 

Page 10 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

11 ASSIGNABILITY

 

11.1 This Agreement shall be binding on the Parties hereto. Each Party shall be able to assign any and all of its rights and obligations under this Agreement to an Affiliate without the written consent of the other Party. This Agreement shall inure to the benefit of or be binding on the successors of either Party (by way of merger, consolidation or transfer of substantially all of its assets).

12 NOTICES

 

12.1 Notices, invoices, communications, and payments hereunder shall be deemed made if given by registered or certified envelope, postage prepaid and addressed to the Party to receive such notice, invoice or communication at the address given below, or such other address as may hereafter be designated by notice in writing.

 

CALYXT

   PBL

CEO

600 County Road D West,

Suite 8

New Brighton, MN 55112

  

Managing Director

Plant Bioscience Limited

Norwich Research Park

Colney Lane

Norwich NR4 7UH UK

Fax: +44 1603 456552

Email: info@pbtechnology.com

Cc Email: ajsc@pbtechnology.com

13 APPLICABLE LAW AND VENUE

 

13.1 This Agreement shall come within the jurisdiction of the English courts and the proper law of the contract shall be English Law.

 

13.2 The Parties shall in the first instance endeavour to resolve any disputes arising from this Agreement by mutual agreement through good faith discussions.

 

13.3 Failing resolution under Article 13.2 within sixty (60) days of such good faith discussions the Parties agree first to try in good faith to settle the dispute by mediation under the procedures of the Centre for Dispute Resolution, London (www.cedr.com) before resorting to arbitration, litigation, or some other dispute resolution procedure. The costs of any mediation, including administrative and arbitrator(s)’ fees, shall be shared equally by the Parties and each Party shall bear its own costs and attorneys’ and witness’ fees incurred in connection with the mediation. The place of mediation shall be London and the language used in the mediation shall be English. The result of the mediation shall not be binding on the Parties, unless by prior written mutual agreement of the Parties.

14 PUBLICITY

 

14.1 Within one month following the signature of the Agreement, the Parties will use all reasonable efforts to agree on the appropriate time and means of any public announcements of the execution of this Agreement, as well as on the wording before issuing any press release or making any other public announcement with respect to this Agreement (except as required by any applicable laws or regulatory requirement).

 

Page 11 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

15 FINAL PROVISIONS

 

15.1 Neither Party shall be held liable or responsible to the other Party or be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from events beyond the reasonable control of the non-performing Party, including fires floods, earthquakes, embargoes, shortages, epidemics, quarantines, war, acts of war (whether war be declared or not) or terrorism, insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority. The non-performing Party shall notify the other Party of such force majeure within ten (10) days after such occurrence by giving written notice to the other Party stating the nature of the event, its anticipated duration, and any action being taken to avoid or minimize its effect. The suspension of performance shall be of no greater scope and no longer duration than is necessary and the non-performing Party shall use Commercially Reasonable Efforts to remedy its inability to perform.

 

15.2 Each Party shall inform the other Party of its intention to file a voluntary petition in bankruptcy or of another’s intention to file an involuntary petition in bankruptcy to be received by the other Party in writing at least thirty (30) days prior to filing such a petition. A Party’s filing without conforming to this requirement shall be deemed a material, pre-petition incurable breach of the present Agreement.

 

15.3 The failure or delay of either Party to enforce at any time any provision of this Agreement or to require performance by the other Party of any provision hereof shall not be considered to be a waiver of such provision and shall not in any way affect the validity of this Agreement or any part thereof, or the right of such Party to thereafter enforce each and every such provision, nor shall the waiver by either Party of a breach or default of any of the provisions hereof by the other be construed as a waiver of any succeeding breach of the same or any other provision hereof.

 

15.4 This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

15.5 No amendments or modifications of this Agreement or its Appendix shall be effective unless made in writing and signed by authorised representatives of both Parties.

16 SIGNATURES

 

For and on behalf of PLANT BIOSCIENCE LIMITED

/s/ A J Chojecki

Name:   A J Chojecki
Position   Managing Director
Date:   10 th June 2015

 

For and on behalf of CALYXT

 

Page 12 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

/s/ Luc Mathis

Name:   Luc Mathis
Position   Chief Executive Officer
Date:   May 27 th , 2015

 

Page 13 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Appendix A

Development and Commercialisation Program

Objective

The objective of this Appendix is to describe the intended product development activities that CALYXT will conduct for the [*****]. The timelines are indicative and non-binding ta the agreement.

[*****]

 

Page 14 of 16


CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Appendix B

[*****] Materials

[*****]

 

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CONFIDENTIAL TREATMENT REQUESTED UNDER RULE 406

UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

[*****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.

 

Appendix C

Licensed Patents

[*****]

 

Page 16 of 16

Exhibit 10.20

CALYXT, INC.

2017 OMNIBUS INCENTIVE PLAN

1. Purposes of the Plan . The purposes of this Omnibus Incentive Plan are to attract and retain the best available personnel for positions of substantial responsibility, to provide additional incentive to Employees and Consultants, and to promote the success of the Company’s business.

2. Definitions . As used herein, the following definitions shall apply:

(a) “ Administrator ” means the Board or a Committee.

(b) “ Affiliate ” means an entity other than a Subsidiary which, together with the Company, is under common control of a third person or entity.

(c) “ Applicable Laws ” means all applicable laws, rules, regulations and requirements, including, but not limited to, all applicable U.S. federal or state laws, any Stock Exchange rules or regulations, and the applicable laws, rules or regulations of any other country or jurisdiction where Awards are granted under the Plan or Participants reside or provide services, as such laws, rules and regulations shall be in effect from time to time.

(d) “ Award ” means any award of a Nonstatutory Stock Option, Incentive Stock Option, SAR, Restricted Stock, RSU, Performance Award, Deferred Award, Other Cash-Based Award or Other Share-Based Award under the Plan.

(e) “ Award Agreement ” means a written document, the form(s) of which shall be approved from time to time by the Administrator, reflecting the terms of an Award granted under the Plan and includes any documents attached to or incorporated into such Award Agreement, including, but not limited to, a notice of award grant and a form of exercise notice.

(f) “ Board ” means the Board of Directors of the Company.

(g) “ Cashless Exercise ” means a program approved by the Administrator in which payment of the Option exercise price or tax withholding obligations may be satisfied, in whole or in part, with Shares subject to the Option, including by delivery of an irrevocable direction to a securities broker (on a form prescribed by the Administrator) to sell Shares and to deliver all or part of the sale proceeds to the Company in payment of the aggregate exercise price and, if applicable, the amount necessary to satisfy the Company’s withholding obligations.

(h) “ Cause ” for termination of a Participant’s Continuous Service Status will exist (unless another definition is provided in an applicable Award Agreement, employment agreement or other applicable written agreement) if the Participant’s Continuous Service Status is terminated for any of the following reasons: (i) the Participant’s willful failure to perform his or her duties and responsibilities to

 

1


the Company or the Participant’s violation of any written Company policy; (ii) the Participant’s commission of any act of fraud, embezzlement, dishonesty or any other willful misconduct that has caused or is reasonably expected to result in injury to the Company; (iii) the Participant’s unauthorized use or disclosure of any proprietary information or trade secrets of the Company or any other party to whom the Participant owes an obligation of nondisclosure as a result of his or her relationship with the Company; or (iv) the Participant’s material breach of any of his or her obligations under any written agreement or covenant with the Company. The determination as to whether a Participant’s Continuous Service Status has been terminated for Cause shall be made in good faith by the Company and shall be final and binding on the Participant. The foregoing definition does not in any way limit the Company’s ability to terminate a Participant’s employment or consulting relationship at any time, and the term “Company” shall be interpreted to include any Subsidiary, Parent, Affiliate, or any successor thereto, if appropriate.

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

(j) “ Committee ” means one or more committees or subcommittees of the Board consisting of two (2) or more Directors (or such lesser or greater number of Directors as shall constitute the minimum number permitted by Applicable Laws to establish a committee or subcommittee of the Board) appointed by the Board to administer the Plan in accordance with Section 4 below.

(k) “ Common Stock ” means the Company’s common stock, par value $0.001 per share, as adjusted in accordance with Section 17 below.

(l) “ Company ” means Calyxt, Inc., a Delaware corporation.

(m) “ Consultant ” means any person, including an advisor but not an Employee, who is engaged by the Company, or any Parent, Subsidiary or Affiliate, to provide services (other than capital-raising services), and is compensated for such services, including any Director and any member of the supervisory board or director of any Affiliate or Parent, whether compensated for such services or not.

(n) “ Continuous Service Status ” means the absence of any interruption or termination of service as an Employee, Director or Consultant, or as a director of a Parent. Continuous Service Status as an Employee, Director or Consultant, or a director of a Parent shall not be considered interrupted or terminated in the case of: (i) Company-approved sick leave; (ii) military leave; or (iii) any other bona fide leave of absence approved by the Administrator; provided that such leave is for a period of not more than ninety (90) days, unless reemployment upon the expiration of such leave is guaranteed by contract or statute, or unless provided otherwise pursuant to a written Company policy. Continuous Service Status as an Employee, Director or Consultant, or as a director of a Parent, shall not be considered interrupted or terminated in the case of a transfer of employment or location between the Company, and any of its Parents, Subsidiaries or Affiliates, or their respective successors, or a change in status from an Employee to a Consultant or from a Consultant to an Employee. Notwithstanding the

 

2


foregoing, the “Continuous Service Status” of an individual who is nominated to become a Director and is not an Employee or Consultant or a director of a Parent shall be considered to begin on the date such individual begins providing services as a Director; provided that if such individual does not begin providing services within twelve (12) months of the date of grant of an Award, such individual shall not be considered to have begun Continuous Service Status.

(o) “ Covered Employee ” means an individual who is, for a given fiscal year of the Company, (i) a “covered employee” within the meaning of Section 162(m) of the Code or (ii) designated by the Administrator by not later than ninety (90) days following the start of such year (or such other time as may be required or permitted by Section 162(m) of the Code) as an individual whose compensation for such fiscal year may be subject to the limit on deductible compensation imposed by Section 162(m) of the Code.

(p) “ Current Parent ” means a person that is a Parent as of June 14, 2017, or any other Person in which a Current Parent owns, directly or indirectly, equity securities possessing than fifty percent (50%) or more of the total combined voting power of all classes of stock.

(q) “ Deferred Award ” shall mean an Award granted pursuant to Section 12.

(r) “ Director ” means a member of the Board.

(s) “ Disability ” means “disability” within the meaning of Section 22(e)(3) of the Code.

(t) “ Employee ” means any person employed by the Company, or any Parent, Subsidiary or Affiliate, under the terms and conditions of an employment contract or with the status of employment determined pursuant to such factors as are deemed appropriate by the Administrator in its sole discretion, subject to any requirements of the Applicable Laws, including the Code. The payment by the Company of a director’s fee shall not be sufficient to constitute “employment” of such director by the Company or any Parent, Subsidiary or Affiliate.

(u) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

(v) “ Fair Market Value ” means (i) with respect to Shares, the per share closing price for the Shares on the applicable date (or, if there is no reported sale on such date, on the last preceding date on which any reported sale occurred) as reported in the Wall Street Journal on the principal stock market or exchange on which the Shares are quoted or trade, or if Shares are not so quoted or traded, fair market value of a Share, as determined by the Administrator in good faith on such basis as it deems appropriate and applied consistently with respect to Participants, and (ii) with respect to property other than Shares, the fair market value of such properly determined by such methods or procedures as shall be established from time to time by the Administrator.

 

3


(w) “ Family Member ” means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law (including adoptive relationships) of the Participant, any person sharing the Participant’s household (other than a tenant or employee), a trust in which these persons (or the Participant) have more than fifty percent (50%) of the beneficial interest, a foundation in which these persons (or the Participant) control the management of assets, and any other entity in which these persons (or the Participant) own more than fifty percent (50%) of the voting interests.

(x) “ Incentive Stock Option ” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code, as designated in the applicable Award Agreement.

(y) “ Listed Security ” means any security of the Company that is listed or approved for listing on a national securities exchange.

(z) “ Nonstatutory Stock Option ” means an Option not intended to qualify as an Incentive Stock Option, as designated in the applicable Award Agreement.

(aa) “ Option ” means an option representing the right to purchase Shares from the Company, granted pursuant to Section 8 of the Plan.

(bb) “ Parent ” means, subject to Section 20(a) of the Plan, any corporation (other than the Company) in an unbroken chain of corporations above the Company and ending with the Company if, at the time of grant of the Award, 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. A corporation that attains the status of a Parent on a date after the adoption of the Plan shall be considered a Parent commencing as of such date.

(cc) “ Participant ” means any holder of one or more Awards or Shares issued pursuant to an Award.

(dd) “ Performance Award ” means an Award granted pursuant to Section 11.

(ee) “ Performance Period ” means the period established by the Administrator at the time any Performance Award is granted or at any time thereafter during which any performance goals specified by the Administrator with respect to such Award are measured.

(ff) “ Plan ” means this Calyxt, Inc. 2017 Omnibus Incentive Plan.

(gg) “ Restricted Stock ” means any Share granted pursuant to Section 10.

 

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(hh) “ Restricted Stock Unit ” or “ RSU ” means a contractual right granted pursuant to Section 10 that is denominated in Shares. Each RSU represents a right to receive the value of one Share (or a percentage of such value) in cash, Shares or a combination thereof. Awards of RSUs may include the right to receive dividend equivalents.

(ii) “ Section 162(m) Compensation ” means “qualified performance-based compensation,” within the meaning of Section 162(m) of the Code.

(jj) “ Share Appreciation Right ” or “ SAR ” means any right granted pursuant to Section 9 to receive upon exercise by the Participant or settlement, in cash, Shares or a combination thereof, the excess of (i) the Fair Market Value of one Share on the date of exercise or settlement over (ii) the exercise or hurdle price of the right on the date of grant, or if granted in connection with an Option, on the date of grant of the Option.

(kk) “ Share ” means a share of Common Stock, as adjusted in accordance with Section 17 below.

(ll) “ Successor Corporation ” means a successor corporation or a parent or subsidiary of such successor corporation.

(mm) “ Stock Exchange ” means any stock exchange or consolidated stock price reporting system on which prices for the Common Stock are quoted at any given time.

(nn) “ Subsidiary ” means, subject to Section 20(a) of the Plan, any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if, at the time of grant of the Award, 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. A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date.

(oo) “ Substitute Award ” means an Award granted in assumption of, or in substitution for, an outstanding award previously granted by a company or other business acquired by the Company or with which the Company combines.

(pp) “ Ten Percent Holder ” means a person who owns stock representing more than ten percent (10%) of the voting power of the outstanding shares of all classes of stock of the Company or any Parent or Subsidiary, measured as of an Award’s date of grant.

 

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(qq) “ Triggering Event ” means

(i) a sale, transfer or disposition of all or substantially all of the Company’s assets other than to (A) a corporation or other entity of which at least a majority of its combined voting power is owned directly or indirectly by the Company, (B) a corporation or other entity owned directly or indirectly by the holders of capital stock of the Company in substantially the same proportions as their ownership of Common Stock, or (C) an Excluded Entity (as defined in subsection (ii) below); or

(ii) any merger, consolidation or other business combination transaction of the Company with or into another corporation, entity or person, other than a transaction with or into another corporation, entity or person in which the holders of at least a majority of the shares of voting capital stock of the Company outstanding immediately prior to such transaction continue to hold (either by such shares remaining outstanding in the continuing entity or by their being converted into shares of voting capital stock of the surviving entity) a majority of the total voting power represented by the shares of voting capital stock of the Company (or the surviving entity) outstanding immediately after such transaction (an “ Excluded Entity ”); or

(iii) any direct or indirect purchase or other acquisition by any Person or “group” (as defined in or under Section 13(d) of the Exchange Act), other than a Current Parent or another Person that is controlled by a Current Parent, of more than fifty percent (50%) of the total outstanding equity interests in or voting securities of the Company, excluding any transaction that is determined by the Board in its reasonable discretion to be a bona fide capital raising transaction.

Notwithstanding anything stated herein, a transaction shall not constitute a Triggering Event if its sole purpose is to change the state of the Company’s incorporation, or to create a holding company that will be owned in substantially the same proportions by the persons who hold the Company’s securities immediately before such transaction.

3. Eligibility .

(a) Recipients of Grants . Any Employee, Consultant, non-employee Director, individuals nominated to be Directors, a director of a Parent, or any other individual who provides services to the Company or any Affiliate shall be eligible to be selected to receive an Award under the Plan, to the extent an offer of an Award or a receipt of such Award is permitted by Applicable Laws or accounting or tax rules and regulations. Incentive Stock Options may be granted only to Employees; provided that Employees of Affiliates shall not be eligible to receive Incentive Stock Options.

(b) Type of Award . Each Award shall be designated in the Award Agreement as a Nonstatutory Stock Option, Incentive Stock Option, SAR, Restricted Stock, RSU, Performance Award, Deferred Award, Other Cash Based Award or Other Share Based Award under the Plan.

 

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(c) Substitute Awards . Holders of Options and other types of Awards granted by a company acquired by the Company or with which the Company combines are eligible for grants of Substitute Awards under the Plan to the extent permitted under applicable regulations of any stock exchange on which the Company is listed.

(d) No Employment Rights . Neither the Plan nor any Award shall confer upon any Participant any right with respect to Continuous Service Status with the Company (any Parent or Subsidiary), nor shall it interfere in any way with such Employee’s or Consultant’s right or the Company’s (Parent’s or Subsidiary’s) right to terminate his or her employment or consulting relationship at any time, with or without cause, as applicable.

4. Administration of the Plan .

(a) General . The Plan shall be administered by the Board or a Committee, or a combination thereof, as determined by the Board. The Plan may be administered by different administrative bodies with respect to different classes of Participants and, if permitted by Applicable Laws, the Board may authorize one or more officers of the Company to make Awards under the Plan to Employees and Consultants (who are not subject to Section 16 of the Exchange Act) within parameters specified by the Board. The Administrator may issue rules and regulations for administration of the Plan.

(b) Powers of the Administrator . Subject to the provisions of the Plan and, in the case of a Committee or officer, the specific duties delegated by the Board to such Committee or by the Board or such Committee to an officer, the Administrator shall have the authority, in its sole discretion:

(i) to determine the Fair Market Value of the Common Stock in accordance with Section (u) above; provided that such determination shall be applied consistently with respect to Participants under the Plan;

(ii) to select the Employees and Consultants to whom Awards may from time to time be granted;

(iii) to determine the type or types of Awards (including Substitute Awards) to be granted to each Participant under the Plan;

(iv) to determine the number of Shares to be covered by each Award;

(v) to approve the form(s) of agreement(s) and other related documents used under the Plan;

(vi) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder, which terms and conditions include but are not limited to the exercise or purchase price, the time or times when Awards may be exercised (which may be based on performance criteria), the circumstances (if any) when vesting shall be accelerated or forfeiture restrictions shall be waived, and any restriction or limitation regarding any Award;

 

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(vii) to amend any outstanding Award or agreement related to any Award, including any amendment adjusting vesting (e.g., in connection with a change in the terms or conditions under which such person is providing services to the Company); provided that no amendment shall be made that would materially and adversely affect the rights of any Participant without his or her consent, as determined in the sole discretion of the Board;

(viii) to determine whether and under what circumstances an Award may be settled and exercised in cash, Shares, other Awards, other property, net settlement or any combination thereof, or cancelled, forfeited or suspended, and the method or methods by which Awards may be settled, exercised, cancelled, forfeited or suspended;

(ix) to determine whether, to what extent and under what circumstances cash, Shares, other Awards, other property and other amounts payable with respect to an Award under the Plan shall be deferred either automatically or at the election of the holder thereof or of the Administrator;

(x) to grant Awards to, or to modify the terms of any outstanding Award Agreement or any agreement related to any Award held by, Participants who are foreign nationals or employed outside of the United States with such terms and conditions as the Administrator deems necessary or appropriate to accommodate differences in local law, tax policy or custom which deviate from the terms and conditions set forth in this Plan to the extent necessary or appropriate to accommodate such differences;

(xi) to correct any defect, supply any omission and reconcile any inconsistency in the Plan or any Award, in the manner and to the extent it shall deem desirable to carry the Plan into effect;

(xii) to establish, amend, suspend or waive such rules and regulations and appoint such agents, trustees, brokers, depositories and advisors and determine such terms of their engagement as it shall deem appropriate for the proper administration of the Plan and due compliance with Applicable Laws or accounting or tax rules and regulations;

(xiii) to make any other determination and take any other action that the Administrator deems necessary or desirable for the administration of the Plan and due compliance with Applicable Laws or accounting or tax rules and regulations; and

(xiv) to construe and interpret the terms of the Plan, any Award Agreement, and any agreement related to any Award, which constructions, interpretations and decisions shall be final and binding on all Participants.

 

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(c) Indemnification . To the maximum extent permitted by Applicable Laws, each member of the Committee (including officers of the Company, if applicable), or of the Board, as applicable, shall be indemnified and held harmless by the Company against and from (i) any loss, cost, liability or expense that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, action, suit or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action taken or failure to act under the Plan or pursuant to the terms and conditions of any Award except for actions taken in bad faith or failures to act in bad faith, and (ii) any and all amounts paid by him or her in settlement thereof, with the Company’s approval, or paid by him or her in satisfaction of any judgment in any such claim, action, suit or proceeding against him or her; provided that such member shall give the Company an opportunity, at its own expense, to handle and defend any such claim, action, suit or proceeding before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company’s Articles of Incorporation, Certificate of Incorporation or Bylaws, by contract, as a matter of law or otherwise, or under any other power that the Company may have to indemnify or hold harmless each such person.

5. Stock Subject to the Plan . Subject to the provisions of Section 17 below and except for Substitute Awards, the maximum aggregate number of Shares that may be issued under the Plan is 2,000,000 Shares. The total number of Shares available for issuance under the Plan will be increased on the first day of each Company fiscal year following the effective date of the Company’s initial public offering in an amount equal to the least of (i) 2,000,000 Shares, (ii) 5% of outstanding Shares on the last day of the immediately preceding fiscal year or (iii) such number of Shares as determined by the Board in its discretion.

6. Limitation on Grants to Participants .

(a) Subject to adjustment as provided in Section 17 below, the maximum aggregate number of Shares that may be subject to Awards granted to any one person under this Plan for any fiscal year of the Company shall be (i) Options and SARs that relate to no more than 200,000 Shares; (ii) Restricted Stock and RSUs that relate to no more than 200,000 Shares; (iii) Performance Awards and Other Share-Based Awards that relate to no more than 200,000 Shares; (iv) Share-Based Deferred Awards that relate to no more than 200,000 Shares; (v) Cash-based Deferred Awards that relate to no more than $5,000,000; and (vi) Other Cash-Based Awards that relate to no more than $5,000,000; provided that such limitation shall be 200,000 Shares during the fiscal year of any person’s initial year of service with the Company.

(b) No Participant who is a non-employee Director may receive Awards under the Plan for any calendar year, subject to adjustment as provided in Section 17, that relate to more than $5,000,000 in the aggregate.

 

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(c) The Shares issued under the Plan may be authorized, but unissued or reacquired Shares. If an Award should be forfeited, expire, terminate, lapse or become unexercisable for any reason without having been exercised in full or be settled in cash, in whole or in part, the unpurchased Shares that were subject thereto shall, unless the Plan shall have been terminated, become available for future grants under the Plan. Any Shares which are retained by the Company upon exercise of an Award in order to satisfy (i) the exercise or purchase price for such Award or (ii) any withholding taxes due with respect to such Award and Shares issued under the Plan and later repurchased by the Company pursuant to any repurchase right that the Company may have shall not be available for future grants under the Plan.

7. Term of Plan . The Plan was adopted by the Board of Directors (on June 14, 2017) and approved by the shareholders of the Company on (June 14, 2017). It shall be effective as of (June 14, 2017) (the “ Effective Date ”) and continue in effect for a term of ten (10) years unless sooner terminated under Section 20 below. No Award shall be granted under the Plan after the earliest to occur of (i) the 10-year anniversary of the Effective Date; provided that to the extent permitted by the listing rules of any stock exchange on which the Company is listed, such 10-year term may be extended indefinitely so long as the maximum number of Shares available for issuance under the Plan have not been issued; (ii) the maximum number of Shares available for issuance under the Plan have been issued; or (iii) the Board terminates the Plan in accordance with Section 20. However, unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award theretofore granted may extend beyond such date, and the authority of the Administrator to amend, alter, adjust, suspend, discontinue or terminate any such Award, or to waive any conditions or rights under any such Award, and the authority of the Board to amend the Plan, shall extend beyond such date.

8. Options .

(a) Term of Option . The term of each Option shall be the term stated in the Award Agreement; provided that the term shall be no more than ten (10) years from the date of grant thereof or such shorter term as may be provided in the Award Agreement; provided further that, in the case of an Incentive Stock Option granted to a person who at the time of such grant is a Ten Percent Holder, the term of the Option shall be five (5) years from the date of grant thereof or such shorter term as may be provided in the Award Agreement; and, provided further , that the Administrator may (but shall not be required to) provide in an Award Agreement for an extension of such term in the event the exercise of the Option would be prohibited by law on the expiration date.

(b) Option Exercise Price . The per Share exercise price for the Shares to be issued pursuant to the exercise of an Option shall be such price as is determined by the Administrator and set forth in the Award Agreement, but shall be subject to the following:

(i) In the case of an Incentive Stock Option

(A) granted to an Employee who at the time of grant is a Ten Percent Holder, the per Share exercise price shall be no less than hundred and ten percent (110%) of the Fair Market Value on the date of grant; and

 

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(B) granted to any other Employee, the per Share exercise price shall be no less than hundred percent (100%) of the Fair Market Value on the date of grant, except in the case of Substitute Awards;.

(ii) Except as provided in subsection (iii) below, in the case of a Nonstatutory Stock Option, the per Share exercise price shall be such price as is determined by the Administrator; provided that, if the per Share exercise price is less than 100% of the Fair Market Value on the date of grant, it shall otherwise comply with all Applicable Laws, including Section 409A of the Code;

(iii) In the case of a Nonstatutory Stock Option that is intended to qualify as performance-based compensation under Section 162(m) of the Code and is granted on or after the date, if ever, on which the Common Stock becomes a Listed Security, the per Share exercise price shall be no less than hundred (100%) of the Fair Market Value on the date of grant; and

(iv) Notwithstanding the foregoing, Options may be granted with a per Share exercise price other than as required above pursuant to a merger or other corporate transaction.

(c) Vesting and Exercisability . The Administrator shall determine the time or times at which an Option becomes vested and exercisable in whole or in part.

(d) Incentive Stock Option $100,000 Limitation . Notwithstanding any designation under Section 8(b) above, to the extent that the aggregate Fair Market Value of Shares with respect to which Options designated as Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company or any Parent or Subsidiary) exceeds $100,000, such excess Options shall be treated as Nonstatutory Stock Options. For purposes of this Section 8(d), Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of the Shares subject to an Incentive Stock Option shall be determined as of the date of the grant of such Option.

(e) Disqualifying Dispositions . Any Participant who shall make a “disposition” (as defined in Section 424 of the Code) of all or any portion of an Incentive Stock Option within two years from the date of grant of such Incentive Stock Option or within one year after the issuance of the Shares acquired upon exercise of such Incentive Stock Option shall be required to immediately advise the Company in writing as to the occurrence of the sale and the price realized upon the sale of such Shares.

(f) Permissible Consideration . The consideration to be paid for the Shares to be issued upon exercise of an Option, including the method of payment, shall be determined by the Administrator (and, in the case of an Incentive Stock Option and to the extent required by Applicable Laws, shall be determined at the time of grant) and may consist entirely of (1) cash; (2) check; (3) wireless transfer; (4) other previously owned Shares that have a Fair Market Value on the date of surrender equal to the aggregate

 

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exercise price of the Shares as to which the Option is exercised; (5) a Cashless Exercise; (6) other property; (7) net settlement; (8) such other consideration and method of payment permitted under Applicable Laws; or (9) any combination of the foregoing methods of payment. In making its determination as to the type of consideration to accept, the Administrator shall consider if acceptance of such consideration may be reasonably expected to benefit the Company and the Administrator may, in its sole discretion, refuse to accept a particular form of consideration at the time of any Option exercise.

9. SARs .

(a) Term of SARs . The term of each SAR shall be the term stated in the Award Agreement; provided that the term shall be no more than ten (10) years from the date of grant thereof or such shorter term as may be provided in the Award Agreement.

(b) Grant of SARs . SARs may be granted under the Plan to Participants either alone (“freestanding”) or in addition to other Awards granted under the Plan (“tandem”) and may, but need not, relate to a specific Option granted under Section 8.

(c) SAR Exercise Price . The exercise or hurdle price per Share to be issued pursuant to the exercise of a SAR shall be such price as is determined by the Administrator and set forth in the Award Agreement; provided , however , that, except in the case of Substitute Awards, such exercise or hurdle price shall not be less than the Fair Market Value of a Share on the date of grant of such SAR.

(d) Vesting and Exercisability . The Administrator shall determine the time or times at which a SAR may be exercised or settled in whole or in part.

(e) Settlement . Upon the exercise of an SAR, the Company shall pay to the Participant an amount equal to the number of Shares subject to the SAR multiplied by the excess, if any, of the Fair Market Value of one Share on the exercise date over the exercise or hurdle price of such SAR. The Company shall pay such excess in cash, in Shares valued at Fair Market Value, or any combination thereof, as determined by the Administrator.

10. Restricted Stock and RSUs . The Administrator is authorized to grant Awards of Restricted Stock and RSUs to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Administrator shall determine:

(a) The Award Agreement shall specify the vesting schedule and, with respect to RSUs, the delivery schedule (which may include deferred delivery later than the vesting date) and whether the Award of Restricted Stock or RSUs is entitled to dividends or dividend equivalents, voting rights or any other rights; provided that if the Award relates to Shares on which dividends are declared during the period that the Award is outstanding, the Award shall not provide for the payment of such dividend (or a dividend equivalent) to the Participant prior to the time at which such Award, or applicable portion thereof, becomes nonforfeitable.

 

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(b) Shares of Restricted Stock and RSUs shall be subject to such restrictions as the Administrator may impose (including any limitation on the right to vote a Share of Restricted Stock or the right to receive any dividend, dividend equivalent or other right), which restrictions may lapse separately or in combination at such time or times, in such installments or otherwise, as the Administrator may deem appropriate.

(c) Any Share of Restricted Stock granted under the Plan may be evidenced in such manner as the Administrator may deem appropriate, including book-entry registration or issuance of a stock certificate or certificates. In the event any stock certificate is issued in respect of shares of Restricted Stock granted under the Plan, such certificate shall be registered in the name of the Participant and shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Restricted Stock.

(d) If, and to the extent the Administrator intends that an Award granted under this Section 10 shall constitute or give rise to Section 162(m) Compensation, such Award shall be structured in accordance with the requirements of Section 11, including the performance criteria set forth therein and the Award limitation set forth in Section 6(a), and any such Award shall be considered a Performance Award for purposes of the Plan.

(e) The Administrator may provide in an Award Agreement that an Award of Restricted Stock is conditioned upon the Participant making or refraining from making an election with respect to the Award under Section 83(b) of the Code. If a Participant makes an election pursuant to Section 83(b) of the Code with respect to an Award of Restricted Stock, the Participant shall be required to file promptly a copy of such election with the Company and the applicable Internal Revenue Service office.

(f) The Administrator may determine the form or forms (including cash, Shares, other Awards, other property or any combination thereof) in which payment of the amount owing upon settlement of any RSU Award may be made.

11. Performance Awards . The Administrator is authorized to grant Performance Awards to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Administrator shall determine:

(a) Performance Awards may be denominated as a cash amount, number of Shares or a combination thereof and are Awards which may be earned upon achievement or satisfaction of performance conditions specified by the Administrator. In addition, the Administrator may specify that any other Award shall constitute a Performance Award by conditioning the right of a Participant to exercise the Award or have it settled, and the timing thereof, upon achievement or satisfaction of such performance conditions as may be specified by the Administrator. The Administrator

 

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may use such business criteria and other measures of performance as it may deem appropriate in establishing any performance conditions. Subject to the terms of the Plan, the performance goals to be achieved during any Performance Period, the length of any Performance Period, the amount of any Performance Award granted and the amount of any payment or transfer to be made pursuant to any Performance Award shall be determined by the Administrator.

(b) If the Administrator intends that a Performance Award should constitute Section 162(m) Compensation, such Performance Award shall include a pre-established formula, such that payment, retention or vesting of the Award is subject to the achievement during a Performance Period or Performance Periods, as determined by the Administrator, of a level or levels of, or increases in, in each case as determined by the Administrator, one or more of the following performance measures or any other performance measure reasonably determined by the Administrator, with respect to the Company:

(i) return measures (including, but not limited to, total shareholder return; return on equity; return on assets or net assets; return on risk-weighted assets; and return on capital (including return on total capital or return on invested capital));

(ii) revenues (including, but not limited to, total revenue; gross revenue; net revenue; and net sales);

(iii) income/earnings measures (including, but not limited to, earnings per share; earnings or loss (including earnings before or after interest, taxes, depreciation and amortization); gross income; net income; operating income (before or after taxes); pre-or after-tax income or loss (before or after allocation of corporate overhead and bonus); pre- or after-tax operating income; net earnings; net income or loss (before or after taxes); operating margin; gross margin; and adjusted net income);

(iv) expense measures (including, but not limited to, expenses; operating efficiencies; and improvement in or attainment of expense levels or working capital levels (including cash and accounts receivable));

(v) cash flow measures (including, but not limited to, cash flow or cash flow per share (before or after dividends); and cash flow return on investment);

(vi) share price measures (including, but not limited to, share price; appreciation in and/or maintenance of share price; and market capitalization);

(vii) strategic objectives (including, but not limited to, market share; debt reduction; customer growth; employee satisfaction; research and development achievements; mergers and acquisitions; management retention; dynamic market response; expense reduction initiatives; reductions in costs; risk management; regulatory compliance and achievements; recruiting and maintaining personnel; and business quality); and

 

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(viii) other measures (including, but not limited to, economic value-added models or equivalent metrics; economic profit added; gross profits; economic profit; comparisons with various stock market indices; financial ratios (including those measuring liquidity, activity, profitability or leverage); cost of capital or assets under management; and financing and other capital raising transactions (including sales of the Company’s equity or debt securities; factoring transactions; sales or licenses of the Company’s assets, including its intellectual property, whether in a particular jurisdiction or territory or globally; or through partnering transactions)).

(c) Performance criteria may be measured on an absolute (e.g., plan or budget) or relative basis, may be established on a corporate-wide basis or with respect to one or more business units, divisions, subsidiaries or business segments, may be based on a ratio or separate calculation of any performance criteria and may be made relative to an index or one or more of the performance goals themselves. Relative performance may be measured against a group of peer companies, a financial market index or other acceptable objective and quantifiable indices. Except in the case of an Award intended to qualify as Section 162(m) Compensation, if the Administrator determines that a change in the business, operations, corporate structure or capital structure of the Company, or the manner in which the Company conducts its business, or other events or circumstances render the performance objectives unsuitable, the Administrator may modify the performance objectives or the related minimum acceptable level of achievement, in whole or in part, as the Administrator deems appropriate and equitable. Performance measures may vary from Performance Award to Performance Award and from Participant to Participant, and may be established on a stand-alone basis, in tandem or in the alternative. The Administrator shall have the power to impose such other restrictions on Awards subject to this Section 11(c) as it may deem necessary or appropriate to ensure that such Awards satisfy all requirements for Section 162(m) Compensation or requirements of any Applicable Laws or accounting or tax rules and regulations. Notwithstanding any provision of the Plan to the contrary, with respect to any Award intended to be Section 162(m) Compensation, the Administrator shall not be authorized to increase the amount payable under any Award to which this Section 11(c) applies upon attainment of such pre-established formula. In order to ensure that any Performance Award that is intended to qualify as Section 162(m) Compensation so qualifies, no Participant may be granted in any calendar year Performance Awards denominated in cash that, taken collectively in the aggregate, could result in a future payout at maximum performance in excess of $10,000,000. For the avoidance of doubt, with respect to an Award intended to qualify as Section 162(m) Compensation, the Administrator shall be a committee meeting the requirements of Section 162(m) of the Code to the extent required thereby.

(d) Settlement of Performance Awards shall be in cash, Shares, other Awards, other property, net settlement or any combination thereof, as determined in the discretion of the Administrator. The Administrator shall specify the circumstances in which, and the extent to which, Performance Awards shall be paid or forfeited in the event of a Participant’s termination of Continuous Service Status.

 

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(e) Performance Awards shall be settled only after the end of the relevant Performance Period. The Administrator may, in its discretion, increase or reduce the amount of a settlement otherwise to be made in connection with a Performance Award but, to the extent required by Section 162(m) of the Code, may not exercise discretion to increase any amount payable to a Covered Employee in respect of a Performance Award intended to qualify as Section 162(m) Compensation. Any settlement that changes the form of payment from that originally specified shall be implemented in a manner such that the Performance Award and other related Awards do not, solely for that reason, fail to qualify as Section 162(m) Compensation.

12. Deferred Awards . The Administrator is authorized, subject to limitations under Applicable Laws, to grant to Participants Deferred Awards, which may be a right to receive Shares or cash under the Plan (either independently or as an element of or supplement to any other Award under the Plan), including, as may be required by any Applicable Laws or determined by the Administrator, in lieu of any annual bonus that may be payable to a Participant under any applicable bonus plan or arrangement. The Administrator shall determine the terms and conditions of such Deferred Awards, including, without limitation, the method of converting the amount of annual bonus into a Deferred Award, if applicable, and the form, vesting, settlement, forfeiture and cancellation provisions or any other criteria, if any, applicable to such Deferred Awards. Shares underlying a Share-denominated Deferred Award, which is subject to a vesting schedule or other conditions or criteria, including forfeiture or cancellation provisions, set by the Administrator shall not be issued until on or following the date that those conditions and criteria have been satisfied. Deferred Awards shall be subject to such restrictions as the Administrator may impose (including any limitation on the right to vote a Share underlying a Deferred Award or the right to receive any dividend, dividend equivalent or other right), which restrictions may lapse separately or in combination at such time or times, in such installments or otherwise, as the Administrator may deem appropriate. The Administrator may determine the form or forms (including cash, Shares, other Awards, other property or any combination thereof) in which payment of the amount owing upon settlement of any Deferred Award may be made.

13. Other Cash-Based Awards and Other Share-Based Awards . The Administrator is authorized, subject to limitations under Applicable Laws, to grant to Participants Other Cash-Based Awards (either independently or as an element of or supplement to any other Award under the Plan) and Other Share-Based Awards. The Administrator shall determine the terms and conditions of such Awards. Shares delivered pursuant to an Award in the nature of a purchase right granted under this Section 13 shall be purchased for such consideration, paid for at such times, by such methods and in such forms, including cash, Shares, other Awards, other property, net settlement, broker-assisted Cashless Exercise or any combination thereof, as the Administrator shall determine; provided that the purchase price therefore shall not be less than the Fair Market Value of such Shares on the date of grant of such right.

 

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14. Exercise of Awards .

(a) General .

(i) Exercisability . Any Award granted hereunder shall be exercisable at such times and under such conditions as determined by the Administrator, consistent with the terms of the Plan and reflected in the Award Agreement, including vesting requirements and/or performance criteria with respect to the Company, and Parent or Subsidiary, and/or the Participant.

(b) The Administrator shall determine the time or times at which a SAR may be exercised or settled in whole or in part.

(i) Leave of Absence . The Administrator shall have the discretion to determine whether and to what extent the vesting of Awards shall be tolled during any unpaid leave of absence; provided, however , that in the absence of such determination, vesting of Awards shall be tolled during any such unpaid leave (unless otherwise required by the Applicable Laws). Notwithstanding the foregoing, in the event of military leave, vesting shall toll during any unpaid portion of such leave; provided that, upon a Participant’s returning from military leave (under conditions that would entitle him or her to protection upon such return under the Uniform Services Employment and Reemployment Rights Act), he or she shall be given vesting credit with respect to Awards to the same extent as would have applied had the Participant continued to provide services to the Company (or any Parent or Subsidiary, if applicable) throughout the leave on the same terms as he or she was providing services immediately prior to such leave.

(ii) Minimum Exercise Requirements . An Award may not be exercised for a fraction of a Share. The Administrator may require that an Award be exercised as to a minimum number of Shares; provided that such requirement shall not prevent a Participant from exercising the full number of Shares as to which the Award is then exercisable.

(iii) Procedures for and Results of Exercise . An Award shall be deemed exercised when written notice of such exercise has been received by the Company in accordance with the terms of the Award Agreement by the person entitled to exercise the Award and the Company has received full payment for the Shares with respect to which the Award is exercised and has paid, or made arrangements to satisfy, any applicable withholding requirements in accordance with Section 17 below. The exercise of an Award shall result in a decrease in the number of Shares that thereafter may be available, both for purposes of the Plan and for sale under the Award, by the number of Shares as to which the Option is exercised.

(iv) Rights as Holder of Capital Stock . Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a holder of capital stock shall exist with respect to the Shares, notwithstanding the exercise of the Award. No adjustment shall be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided in Section 17 below.

 

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(c) Termination of Service . The Administrator shall establish and set forth in the applicable Award Agreement the terms and conditions upon which an Award shall remain exercisable, if at all, following termination of a Participant’s Continuous Service Status, which provisions may be waived or modified by the Administrator at any time. To the extent that an Award Agreement does not specify the terms and conditions upon which an Award shall terminate upon termination of a Participant’s Continuous Service Status, the following provisions shall apply:

(i) General Provisions . If the Participant (or other person entitled to exercise the Award) does not exercise the Award to the extent so entitled within the time specified below, the Award shall terminate and the Shares underlying the unexercised portion of the Award shall revert to the Plan. In no event may any Award be exercised after the expiration of the Award term as set forth in the Award Agreement (and subject to Sections 8(a) and 9(a) above).

(ii) Termination other than Upon Disability, Death or for Cause . In the event of termination of a Participant’s Continuous Service Status other than under the circumstances set forth in subsections (iii) through (v) below, such Participant may exercise any outstanding Award at any time within three (3) months following such termination to the extent the Participant was vested in the Shares underlying the Award as of the date of such termination.

(iii) Disability of Participant . In the event of termination of a Participant’s Continuous Service Status as a result of his or her Disability, such Participant may exercise any outstanding Award at any time within six (6) months following such termination to the extent the Participant was vested in the Shares underlying the Award as of the date of such termination.

(iv) Death of Participant . In the event of the death of a Participant during the period of Continuous Service Status since the date of grant of any outstanding Award, or within three (3) months following termination of the Participant’s Continuous Service Status, the Award may be exercised by the Participant’s estate, or by a person who acquired the right to exercise the Award by bequest or inheritance, at any time within nine (9) months following the date of death or, if earlier, the date the Award’s Continuous Service Status terminated, but only to the extent the Participant was vested in the Shares underlying the Award as of the date of death.

(v) Termination for Cause . In the event of termination of a Participant’s Continuous Service Status for Cause, any outstanding Award (including any vested portion thereof) held by such Participant shall immediately terminate in its entirety upon first notification to the Participant of termination of the Participant’s Continuous Service Status for Cause. If an Participant’s Continuous

 

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Service Status is suspended pending an investigation of whether the Participant’s Continuous Service Status will be terminated for Cause, all the Participant’s rights under any Award, including the right to exercise the Award, shall be suspended during the investigation period. Nothing in this Section 14(c)(v) shall in any way limit the Company’s right to purchase unvested Shares issued upon exercise of an Award as set forth in the applicable Award Agreement.

15. Taxes .

(a) As a condition of the grant, vesting and exercise of an Award, the Participant (or in the case of the Participant’s death or a permitted transferee, the person holding or exercising the Award) shall make such arrangements as the Administrator may require for the satisfaction of any applicable U.S. federal, state or local tax withholding obligations or foreign tax withholding obligations that may arise in connection with such Award. The Company shall not be required to issue any Shares under the Plan until such obligations are satisfied.

(b) The Administrator may permit a Participant (or in the case of the Participant’s death or a permitted transferee, the person holding or exercising the Award) to satisfy all or part of his or her tax withholding obligations by Cashless Exercise or by surrendering Shares (either directly or by stock attestation) that he or she previously acquired; provided that, unless the Cashless Exercise is an approved broker-assisted Cashless Exercise, the Shares tendered for payment have been previously held for a minimum duration ( e.g., to avoid financial accounting charges to the Company’s earnings), or as otherwise permitted to avoid financial accounting charges under applicable accounting guidance. Any Shares withheld pursuant to this Section 15(b) shall not exceed the amount necessary to satisfy the Company’s tax withholding obligations at the maximum statutory withholding rates, including, but not limited to, U.S. federal and state income taxes, payroll taxes, and foreign taxes, if applicable. Any payment of taxes by surrendering Shares to the Company may be subject to restrictions, including, but not limited to, any restrictions required by rules of the Securities and Exchange Commission.

16. Non-Transferability of Awards .

(a) General . Except as set forth in this Section 16, Awards may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or by the laws of descent or distribution. The designation of a beneficiary by a Participant shall not constitute a transfer. An Award may be exercised, during the lifetime of the holder of the Award, only by such holder or a transferee permitted by this Section 16.

(b) Limited Transferability Rights . Notwithstanding anything else in this Section 16, the Administrator may in its sole discretion grant Awards that may be transferred by instrument to an inter vivos or testamentary trust in which the Awards are to be passed to beneficiaries upon the death of the trustor (settlor) or by gift to Family Members.

 

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17. Adjustments Upon Changes in Capitalization, Merger or Certain Other Transactions .

(a) Changes in Capitalization . Subject to any action required under Applicable Laws by the holders of capital stock of the Company, the Administrator shall, subject to compliance with Section 409A or Section 424, as applicable, of the Code, equitably adjust (i) the number, type and class of Shares or other stock or securities: (x) available for future Awards under Section 5 above, (y) set forth in Section 5 above and (z) covered by each outstanding Award, (ii) the grant, purchase, exercise or hurdle price covered by each such outstanding Award, and (iii) any repurchase price per Share applicable to Shares issued pursuant to any Award, or, if deemed appropriate, shall make a provision for a cash payment to the holder of an outstanding Award in the event of a stock split, reverse stock split, stock dividend, combination, consolidation, recapitalization (including a recapitalization through a large nonrecurring cash dividend) or reclassification of the Shares, repurchase, exchange or subdivision of the Shares or other securities of the Company, a rights offering, a reorganization, merger, spin-off, split-up, change in corporate structure or other similar occurrence, in each case excluding a Triggering Event; provided , however , that the number of Shares subject to any Award denominated in Shares shall always be a whole number. Any adjustment by the Administrator pursuant to this Section 17(a) shall be made in the Administrator’s sole and absolute discretion and shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of Shares subject to an Award. If, by reason of a transaction described in this Section 17(a) or an adjustment pursuant to this Section 17(a), a Participant’s Award Agreement or agreement related to any Shares underlying an Award covers additional or different shares of stock or securities, then such additional or different shares, and the Award Agreement or agreement related to the Shares underlying an Award in respect thereof, shall be subject to all of the terms, conditions and restrictions which were applicable to the Award and the Shares underlying the Award prior to such adjustment.

(b) Dissolution or Liquidation . In the event of the dissolution or liquidation of the Company, each Award shall terminate immediately prior to the consummation of such action, unless otherwise determined by the Administrator.

(c) Corporate Transactions . Unless a Participant’s applicable Award Agreement, employment agreement or other applicable written agreement provides otherwise, in the event of:

(i) a dissolution or liquidation of the Company or

(ii) a Triggering Event, then:

 

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each outstanding Award shall either be (A) assumed or an equivalent award shall be substituted by such Successor Corporation, or (B) terminated in exchange for a payment of cash, securities and/or other property equal to the excess of the Fair Market Value of the portion of the Award Stock that is vested and exercisable immediately prior to the consummation of the corporate transaction over the per Share exercise price thereof, or (C) any combination of (A) and (B) that is approved by the Administrator; provided that, in the case of an Option or SAR Award, such Award may be cancelled without consideration if the Fair Market Value on the date of the event is greater than the exercise or hurdle price of such Award. Notwithstanding the foregoing, in the event such Successor Corporation does not agree to such assumption, substitution or exchange, each such Award shall terminate upon the consummation of the corporate transaction.

Unless a Participant’s applicable Award Agreement, employment agreement or other applicable written agreement provides otherwise, if a Triggering Event, dissolution or liquidation occurs and any outstanding Award held by the Participant is to be terminated (in whole or in part) pursuant to the preceding paragraph, the Administrator may accelerate the vesting and exercisability of each such Award in his sole discretion such that the Award shall become vested and exercisable in full prior to the consummation of the corporate transaction at such time and on such conditions as the Administrator shall determine. The Administrator shall notify the Participant that the Award shall terminate at least five (5) days prior to the date upon which the Award terminates.

18. Time of Granting Options . The date of grant of an Award shall, for all purposes, be the date on which the Administrator makes the determination granting such Award, or such later date as is determined by the Administrator; provided that in the case of any Incentive Stock Option, the grant date shall be the later of the date on which the Administrator makes the determination granting such Incentive Stock Option or the date of commencement of the Participant’s employment relationship with the Company.

19. General Provisions Applicable to Awards .

(a) Awards shall be granted for such cash or other consideration, if any, as the Administrator determines; provided that in no event shall Awards be issued for less than such minimal consideration as may be required by Applicable Laws.

(b) Awards may, in the discretion of the Administrator, be granted either alone or in addition to or in tandem with any other Award or any award granted under any other plan of the Company. Awards granted in addition to or in tandem with other Awards, or in addition to or in tandem with awards granted under any other plan of the Company, may be granted either at the same time as or at a different time from the grant of such other Awards or awards.

(c) Subject to the terms of the Plan, payments or transfers to be made by the Company upon the grant, exercise or settlement of an Award may be made in the form of cash, Shares, other Awards, other property, net settlement or any combination thereof, as determined by the Administrator in its discretion at the time of grant, and may be made in a single payment or transfer, in installments or on a deferred basis, in each case in accordance with rules and procedures established by the Administrator. Such rules and procedures may include provisions for the payment or crediting of reasonable interest on installment or deferred payments or the grant or crediting of dividend equivalents in respect of installment or deferred payments.

 

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(d) Except as may be permitted by the Administrator (except with respect to Incentive Stock Options) or as specifically provided in an Award Agreement, (i) no Award and no right under any Award shall be assignable, alienable, saleable or transferable by a Participant otherwise than by will or pursuant to the laws of descent and distribution and (ii) during a Participant’s lifetime, each Award, and each right under any Award, shall be exercisable only by such Participant or, if permissible under Applicable Laws, by such Participant’s guardian or legal representative. The provisions of this Section 19(d) shall not apply to any Award that has been fully exercised or settled, as the case may be, and shall not preclude forfeiture of an Award in accordance with the terms thereof.

(e) All certificates for Shares and/or other securities delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Administrator may deem advisable under the Plan or the rules, regulations and other requirements of the Securities Exchange Commission, any stock market or exchange upon which such Shares or other securities are then quoted, traded or listed, and any applicable securities laws, and the Administrator may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.

(f) The Administrator may impose restrictions on any Award with respect to non-competition, confidentiality and other restrictive covenants as it deems necessary or appropriate in its sole discretion.

(g) Any Award granted to an individual who is nominated to become a Director and is not an Employee or Consultant or a director of a Parent at the time of grant shall be forfeited in its entirety if such individual does not commence providing services to the Company within 12 months after the date of grant of such Award.

20. Amendment and Terminations .

(a) The Board may at any time amend, alter, suspend, discontinue or terminate the Plan or any portion thereof at any time, but no amendment or termination (other than an adjustment pursuant to Section 17 above or as necessary to comply with Applicable Laws or accounting or tax rules and regulations) shall be made that would materially and adversely affect the rights of any Participant under any outstanding Award, without his or her consent, as determined in the sole discretion of the Board except (x) to the extent any such amendment, alteration, suspension, discontinuance or termination is made to cause the Plan to comply with Applicable Laws or accounting or tax rules and regulations or (y) to impose any “clawback” or recoupment provisions on any Awards in accordance with Section 24. In addition, to the extent necessary and desirable to comply with the Applicable Laws, the Company shall obtain the approval of holders of capital stock with respect to any Plan amendment in such a manner and to such a degree as required by Applicable Laws. Notwithstanding anything to the contrary in the Plan, the Administrator may amend the Plan, or create sub-plans, in such manner as may be necessary to enable the Plan to achieve its stated purposes in any jurisdiction in a tax-efficient manner and in compliance with local rules and regulations.

 

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(b) Dissolution or Liquidation . In the event of the dissolution or liquidation of the Company, each Award shall terminate immediately prior to the consummation of such action, unless otherwise determined by the Administrator.

(c) Terms of Awards . The Administrator may waive any conditions or rights under, amend any terms of, or amend, alter, suspend, discontinue or terminate any Award theretofore granted, prospectively or retroactively, without the consent of any relevant Participant or holder of an Award; provided, however , that, subject to Section 17, no such action shall materially adversely affect the rights of any affected Participant or holder under any Award theretofore granted under the Plan, except (x) to the extent any such action is made to cause the Plan to comply with Applicable Laws or accounting or tax rules and regulations or (y) to impose any “clawback” or recoupment provisions on any Awards in accordance with Section 24; provided further , that the Administrator’s authority under this Section 20(c) is limited in the case of Awards subject to Section 11(b), as provided in Section 11(b). Except as provided in Section 11, the Administrator shall be authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of events (including the events described in Section 17) affecting the Company, or the financial statements of the Company, or of changes in Applicable Laws or accounting principles, whenever the Administrator determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan.

(d) No Repricing . Notwithstanding the foregoing, except as provided in Section 17, no action shall directly or indirectly, through cancellation and regrant or any other method, reduce, or have the effect of reducing, the exercise or hurdle price of any Award established at the time of grant thereof without approval of the Company’s shareholders.

21. Conditions Upon Issuance of Shares . Notwithstanding any other provision of the Plan or any agreement entered into by the Company pursuant to the Plan, the Company shall not be obligated, and shall have no liability for failure, to issue or deliver any Shares under the Plan unless such issuance or delivery would comply with the Applicable Laws, with such compliance determined by the Company in consultation with its legal counsel. As a condition to the exercise of any Award, the Company may require the person exercising the Award to represent and warrant at the time of any such exercise or purchase that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required by Applicable Laws. Shares issued upon exercise of Awards prior to the date, if ever, on which the Common Stock becomes a Listed Security shall be subject to a right of first refusal in favor of the Company pursuant to which the Participant shall be required to offer Shares to the Company before selling or transferring them to any third party on such terms and subject to such conditions as is reflected in the applicable Award Agreement.

 

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22. Beneficiaries . Unless stated otherwise in an Award Agreement, a Participant may designate one or more beneficiaries with respect to an Award by timely filing the prescribed form with the Company. A beneficiary designation may be changed by filing the prescribed form with the Company at any time before the Participant’s death. If no beneficiary was designated or if no designated beneficiary survives the Participant, then after a Participant’s death any vested Award(s) shall be transferred or distributed to the Participant’s estate.

23. Addenda . The Administrator may approve such addenda to the Plan as it may consider necessary or appropriate for the purpose of granting Awards to Employees or Consultants, which Awards may contain such terms and conditions as the Administrator deems necessary or appropriate to accommodate differences in local law, tax policy or custom, which, if so required under Applicable Laws, may deviate from the terms and conditions set forth in this Plan. The terms of any such addenda shall supersede the terms of the Plan to the extent necessary to accommodate such differences but shall not otherwise affect the terms of the Plan as in effect for any other purpose.

24. Cancellation or “Clawback” of Awards . The Administrator shall have full authority to implement any policies and procedures necessary to comply with Section 10D of the Exchange Act and any rules promulgated thereunder and any other regulatory regimes. Notwithstanding anything to the contrary contained herein, the Administrator may, to the extent permitted by Applicable Laws or by any applicable Company policy or arrangement, and shall, to the extent required, cancel or require reimbursement of any Awards granted to the Participant or any Shares issued or cash received upon vesting, exercise or settlement of any such Awards or sale of Shares underlying such Awards.

25. Restrictive Covenants . The Administrator may impose restrictions on any Award with respect to non-competition, confidentiality and other restrictive covenants as it deems necessary or appropriate in its sole discretion.

26. Compliance with Section 409A and Section 457A of the Code . To the extent applicable, it is intended that this Plan and any grants made hereunder comply with the provisions of Section 409A and Section 457A of the Code. This Plan and any grants made hereunder shall be administered in a manner consistent with this intent, and any provision that would cause this Plan or any grant made hereunder to fail to satisfy Section 409A and Section 457A of the Code shall have no force and effect until amended to comply with Section 409A and Section 457A of the Code (which amendment may be retroactive to the extent permitted by Section 409A and Section 457A of the Code and may be made by the Company without the consent of Participants). Any reference in this Plan to Section 409A and Section 457A of the Code shall also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such section by the U.S. Department of the Treasury or the Internal Revenue Service.

27. Successors and Assigns . The terms of the Plan shall be binding upon and inure to the benefit of the Company and any successor entity, including any successor entity contemplated by Section 17.

 

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28. Data Privacy . By participating in the Plan, the Participant consents to the holding and processing of personal information provided by the Participant to the Company or any subsidiary, trustee or third-party service provider, for all purposes relating to the operation of the Plan. These include, but are not limited to:

(a) administering and maintaining Participant records, a dissolution or liquidation of the Company;

(b) providing information to the Company, Subsidiaries, trustees of any employee benefit trust, registrars, brokers or third-party administrators of the Plan;

(c) providing information to future purchasers or merger partners of the Company or any subsidiary, or the business in which the Participant works; and

(d) transferring information about the Participant to any country or territory that may not provide the same protection for the information as the Participant’s home country.

29. Governing Law . The Plan and each Award Agreement shall be governed by the laws of the State of Delaware, without application of the conflicts of law principles thereof.

30. Waiver of Jury Trial . EACH PARTICIPANT WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THE PLAN.

31. Dispute Resolution . Any dispute or claim arising out of, under or in connection with the Plan or any Award Agreement shall be submitted to arbitration in Delaware and shall be conducted in accordance with the rules of, but not necessarily under the auspices of, the American Arbitration Association rules in force when the notice of arbitration is submitted. The arbitration shall be conducted before an arbitration tribunal comprised of three individuals, one selected by the Company, one selected by the Participant, and the third selected by the first two. The Participant and the Company agree that such arbitration will be confidential and no details, descriptions, settlements or other facts concerning such arbitration shall be disclosed or released to any third party without the specific written consent of the other party, unless required by law or court order or in connection with enforcement of any decision in such arbitration. Any damages awarded in such arbitration shall be limited to the contract measure of damages, and shall not include punitive damages.

 

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Exhibit 10.21

CALYXT, INC.

2017 STOCK OPTION SUB-PLAN

FOR FRENCH EMPLOYEES AND DIRECTORS

1. Introduction . The Board of Calyxt, Inc. has established a 2017 Omnibus Incentive Plan (the “ Plan ”) for the benefit of certain employees and directors of the Company and its subsidiary, parent and affiliate companies, including Cellectis S.A., which held directly or indirectly at least 10% of the share capital of the Company. Section 20 of the Plan specifically authorizes the Administrator to adopt procedures and forms relating to the Plan as it deems advisable with respect to foreign participants. The Board, therefore, intends to establish a sub-plan for France of the Plan for the purpose of granting Options which may qualify for the favourable tax and social security treatment in France applicable to Options granted under Sections L. 225-177 to L. 225-186-1 of the French Commercial Code as amended to qualifying employees and directors under the Plan who are resident in France for French tax purposes.

The terms of the Plan, as subsequently amended and as set out in Appendix 1 hereto, shall, subject to the modifications in the following rules, constitute the rules of the 2017 Omnibus Incentive Plan for French Participants.

For the avoidance of doubt, this Sub-Plan shall become effective provided that the Common Stocks of Calyxt, Inc. are listed on a regulated market of the European Union or on the National Association of Securities Dealers Inc. Automated Quotation (“Nasdaq”) System or on the New York Stock Exchange in the United States of America.

2. Definitions . The following definitions of the Plan are amended as follows:

(a) “ Affiliate ” means any corporation (other than the Company) of which at least fifty percent (50%) of the share capital or voting rights is held directly or indirectly by a company which owns directly or indirectly at least fifty percent (50%) of the share capital or voting rights of the Company.

(b) “ Award ” means any award of an Option under this Sub-Plan.

(c) “ Directors ” means, as of any date and provided that the Common Stock is listed on a regulated market of the European Union or on the Nasdaq System or on the New York Stock Exchange in the United States of America, any French resident who is a member of the board of director of any Affiliate or Parent;

it being specified that, no Option Awards may be made under this Sub-Plan to a member of the board of directors the Company or any Subsidiary.

For French Affiliate and Parent, the members of the board of directors eligible to be granted with an Option under this Sub-Plan, subject to this definition of Director, are limited to the chairman of the board of directors (président du conseil d’administration), the general manager (directeur général) and the deputy general managers (directeurs généraux délégués).


(d) “ Disability ” means total and permanent disability, as defined under Applicable Laws, i.e., a disability as determined in categories 2 and 3 under Section L. 341-4 of the French Social Security Code, as amended.

(e) “ Employee ” means, as of any date and provided that the Common Stock is listed on a regulated market of the European Union or on the Nasdaq System or on the New York Stock Exchange in the United States of America, any French resident who is employed by the Company or by any Subsidiary, Affiliate or Parent under the terms and conditions of an employment contract.

(f) “ Fair Market Value ” means, as of any date and provided that the Common Stock is listed on a regulated market of the European Union or on the Nasdaq System or on the New York Stock Exchange in the United States of America, the per share fair market value determined by reference to a closing sales price of one share on such stock exchange market for the day prior to the day of the decision of the Administrator to grant the Option as quoted on such exchange or system and reported in The Wall Street Journal or such other source as the Administrator deems reliable; provided, however, that the Fair Market Value shall in no case be less than ninety-five percent (95%) of the average of the closing sales price for a share as quoted on said stock exchange market during the twenty (20) market trading days prior to the day of the Administrator’s decision to grant the Option (or the average closing bid for such twenty (20) day period, if no sales were reported);

it being specified that, when an Option entitles the holder to purchase shares previously repurchased by the Company, the exercise price, notwithstanding the above provisions and in accordance with applicable law, may not be less than 80% of the average purchase price paid by the Company for all shares so previously repurchased.

The price settled for the subscription or purchase of Shares shall not be modified during the period in which the Option may be exercised (other than an adjustment pursuant to Section 13 below or as necessary to comply with applicable laws or regulations).

(g) “ Option ” means an option representing the right to purchase Shares from the Company, granted pursuant to the Sub-Plan which is intended to qualify for preferred tax treatment under applicable French tax laws.

(h) “ Parent ” means a corporation which owns directly or indirectly at least ten percent (10%) of the share capital or voting rights of the Company.

(i) “ Subsidiary ” means a corporation of which at least ten percent (10%) of the share capital or voting rights is held directly or indirectly by the Company.

Section 1 of the Plan is also completed as follows:

(a) “ French Participant ” means a Participant whose Award is issued in reliance on Sections L. 225-177 through L. 225-186-1 of the French Commercial Code.

(b) “ Sub-Plan ” means this Calyxt, Inc. 2017 Stock Option Sub-Plan for French Employees and Directors.

 

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3. Eligibility .

(a) Recipients of Grants . Section 3(a) of the Plan is amended as follows:

Any Employee or Director shall be eligible to be selected to receive an Award under the Plan, to the extent an offer of an Award or a receipt of such Award is permitted by Applicable Laws or accounting or tax rules and regulations.

(b) Type of Award . Section 3(b) of the Plan is amended as follows:

Each Award shall be designated in the Award Agreement as an Option granted under the Sub-Plan.

(c) Substitute Awards . Section 3(c) of the Plan is not applicable for Awards made further to the present Sub-Plan.

(d) No Employment Rights . The present Sub-Plan does not amend Section 3(d) of the Plan.

4. Administration of the Plan .

The present Sub-Plan does not amend Section 4 of the Plan.

5. Stock Subject to the Sub-Plan .

The present Sub-Plan does not amend Section 5 of the Plan.

6. Limitations on Grants to Participants .

Section 6 is amended as follows:

(a) Subject to adjustment as provided in Section 17 below, the maximum aggregate number of Shares that may be subject to Awards granted to any one person under the Plan for any fiscal year of the Company shall be Options that relate to no more than 200,000 Shares.

Notwithstanding any provision in the Plan, Option Awards may not be granted to a French Participant owning more than ten percent (10%) of the Company’s share capital except as permitted under Section L225-185 of the French commercial code.

The total number of Options granted to a French Participants but not yet exercised may not give a right to subscribe a number of Shares exceeding one third of the stock capital of the Company.

 

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(b) The Shares issued under the Plan may be authorized, but unissued or reacquired Shares. If an Award should be forfeited, expire, terminate, lapse or become unexercisable for any reason without having been exercised in full or be settled in cash, in whole or in part, the unpurchased Shares that were subject thereto shall, unless the Plan shall have been terminated, become available for future grants under the Plan. Any Shares which are retained by the Company upon exercise of an Award in order to satisfy (i) the exercise or purchase price for such Award or (ii) any withholding taxes due with respect to such Award and Shares issued under the Plan and later repurchased by the Company pursuant to any repurchase right that the Company may have shall not be available for future grants under the Plan.

7. Term of the Sub-Plan .

Section 7 of the Plan is completed as follows:

The Sub-Plan shall become effective as of the date of its adoption by the Board. It shall continue in effect until the termination of the Plan unless terminated earlier under Section 20 of the Sub-Plan.

8. Options .

(a) Term of Option . Section 8(a) of the Plan is amended as follows:

The term of each Option shall be as stated in the Option Agreement; provided, however, that subject to Section 10(d) hereof, the maximum term of an Option shall not exceed 10 years from the date of grant thereof or such shorter term as may be provided in the Option Agreement; provided further, that the Administrator may (but shall not be required to) provide in an Award Agreement for an extension of such term in the event the exercise of the Option would be prohibited by law on the expiration date.

(b) Option Exercise Price . Section 8(b) is amended as follows:

The Option Price for the shares to be issued or acquired upon exercise of an Option shall be determined by the Administrator upon the date of grant of the Option and stated in the Option Agreement, but in no event shall be lower than 100% of the Fair Market Value on the date the Option is granted. This Option Price cannot be modified while the Option is outstanding, except as expressly provided for under Applicable Laws.

(c) Option Exercise Price . The present Sub-Plan does not amend Section 8(c) of the Plan.

(d) Incentive Stock Option $100,000 Limitation . Section 8(d) of the Plan is not applicable for Awards made further to the present Sub-Plan.

(e) Disqualifying Dispositions . Section 8(e) of the Plan is not applicable for Awards made further to the present Sub-Plan.

 

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(f) Permissible Consideration . Section 8(f) is amended as follows:

The Administrator shall determine the acceptable form of consideration for exercising an Option, including the method of payment. Such consideration may consist of:

(i) cash or check (denominated in U.S. Dollars);

(ii) wire transfer (denominated in U.S. Dollars); or

(iii) a combination of the foregoing methods of payment.

9. SARs .

Section 9 of the Plan is not applicable for Awards made further to the present Sub-Plan.

10. Restricted Stocks and RSUs .

Section 10 of the Plan is not applicable for Awards made further to the present Sub-Plan.

11. Performance Awards .

Section 11 of the Plan is not applicable for Awards made further to the present Sub-Plan.

12. Deferred Awards .

Section 12 of the Plan is not applicable for Awards made further to the present Sub-Plan.

13. Other Cash-Based Awards and Other Share-Based Awards .

Section 13 of the Plan is not applicable for Awards made further to the present Sub-Plan.

14. Exercise of Award .

(a) General . The present Sub-Plan does not amend Section 14(a) of the Plan.

(b) Termination of Employment or Director Relationship . Section 14(b) of the Plan is amended as follows:

The Administrator shall establish and set forth in the applicable Award Agreement the terms and conditions upon which an Award shall remain exercisable, if at all, following termination of a Participant’s Continuous Service Status, which provisions may be waived or modified by the Administrator at any time. To the extent that an Award Agreement does not specify the terms and conditions upon which an Award shall terminate upon termination of a Participant’s Continuous Service Status, the following provisions shall apply:

(i) General Provisions . If the Participant (or other person entitled to exercise the Award) does not exercise the Award to the extent so entitled within the time specified below, the Award shall terminate and the Shares underlying the unexercised portion of the Award shall revert to the Plan. In no event may any Award be exercised after the expiration of the Award term as set forth in the Award Agreement (and subject to Section 8(a) above), except in the event of death of a French Participant as described below.

 

5


(ii) Termination other than Upon Disability or Death . In the event of termination of a Participant’s Continuous Service Status other than under the circumstances set forth in subsections (iii) and (iv) below, such Participant may exercise any outstanding Award at any time within three (3) months following such termination to the extent the Participant was vested in the Shares underlying the Award as of the date of such termination. If, at the date of termination, the Participant is not entitled to exercise his or her entire Award, the shares covered by the unexercisable portion of the Award shall revert to the Sub-Plan. If, after termination, the Participant does not exercise his or her Award within the time specified herein, the Award shall terminate, and the shares covered by such Award shall revert to the Sub-Plan.

(iii) Disability of Participant . In the event that a Participant’s status as an Employee or Director terminates as a result of the Participant’s Disability, the Participant may exercise his or her Award at any time within six (6) months from the date of such termination, but only to the extent that the Participant was entitled to exercise it at the date of such termination (but in no event later than the expiration of the term of such Award as set forth in the Award Agreement). If, at the date of termination, the Participant is not entitled to exercise his or her entire Award, the shares covered by the unexercisable portion of the Award shall revert to the Sub-Plan. If, after termination, the Participant does not exercise his or her Award within the time specified herein, the Award shall terminate, and the shares covered by such Award shall revert to the Sub-Plan.

(iv) Death of Participant . In the event of the death of a Participant while an Employee or Director, the Award may be exercised at any time within six (6) months following the date of death by the Participant’s estate or by a person who acquired the right to exercise the Award by bequest or inheritance, but only to the extent that the Participant was entitled to exercise the Award at the date of death. If, at the time of death, the Participant was not entitled to exercise his or her entire Award, the Shares covered by the unexercisable portion of the Award shall revert to the Sub-Plan. If, after death, the Participant’s estate or a person who acquired the right to exercise the Award by bequest or inheritance does not exercise the Award within the time specified herein, the Award shall terminate, and the Shares covered by such Award shall immediately revert to the Sub-Plan.

15. Taxes . Section 15 of the Plan is amended as follows:

As a condition of the grant, vesting and exercise of an Award, the Participant (or in the case of the Participant’s death or a permitted transferee, the person holding or exercising the Award) shall make such arrangements as the Administrator may require for the satisfaction of any French and U.S. federal, state or local withholding obligations or foreign tax withholding obligations that may arise in connection with such Award. The Company shall not be required to issue any Shares under the Plan until such obligations are satisfied.

 

6


16. Non-Transferability of Awards . Section 16 of the Plan is amended as follows:

An Option may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant.

17. Adjustments Upon Changes in Capitalization or Merger .

(a) Changes in Capitalization . Section 17(a) of the Plan is amended as follows:

In the event of the carrying out by the Company of any of the financial operations pursuant to article L. 225-181 of the French commercial code as follows:

 

    amortization or reduction of the share capital,

 

    amendment of the allocation of profits,

 

    distribution of free shares,

 

    capitalization of reserves, profits and issuance premiums,

 

    the issuance of shares or securities giving right to shares to be subscribed for in cash or by set-off of existing indebtedness offered exclusively to the shareholders;

the Company shall take the required measures to protect the interest of the Participants in the conditions set forth in Article L. 228-99 of the French commercial code.

(b) Dissolution or Liquidation . The present Sub-Plan does not amend Section 17(b) of the Plan.

(c) Corporate Transactions . Section 17(c) of the Plan is completed as follows:

If the modification or adjustment is contrary to the conditions set forth in Article L. 225-177 through L. 225-186-1 of the French commercial code, the Options may no longer qualify as French-qualified options. If the Options no longer qualify as French-qualified options, the Administrator may, provided it is authorized to do so under the Plan, determine to lift, shorten or terminate certain restrictions applicable to the vesting of the Options, the exercisability of the Options, or the sale of the shares which may have been imposed under this Sub-Plan or in the Option Agreement delivered to the Participant.

 

7


18. Time of Granting Options .

The present Sub-Plan does not amend Section 18 of the Plan.

19. General Provisions Applicable to Awards .

The present Sub-Plan does not amend Sections 19(a), 19(b), 19(d), 19(e), 19(f) and 19(g) of the Plan.

Section 19(c) of the Plan is not applicable for Awards made further to the present Sub-Plan.

20. Amendment and Termination .

The present Sub-Plan does not amend Section 20 of the Plan.

21. Conditions Upon Issuance of Shares

The present Sub-Plan does not amend Section 21 of the Plan.

22. Beneficiaries .

Section 22 of the Plan is not applicable for Awards made further to the present Sub-Plan.

23. Addenda .

The present Sub-Plan does not amend Section 23 of the Plan.

24. Cancellation or “Clawback” of Awards .

The present Sub-Plan does not amend Section 24 of the Plan.

25. Restrictive Covenants .

The present Sub-Plan does not amend Section 25 of the Plan.

26. Compliance with Section 409A and 457A of the Code .

Section 26 of the Plan is not applicable for Awards made further to the present Sub-Plan.

27. Successors and Assigns .

The present Sub-Plan does not amend Section 27 of the Plan.

28. Data Privacy .

The present Sub-Plan does not amend Section 28 of the Plan.

 

8


29. Governing Law .

The present Sub-Plan does not amend Section 29 of the Plan.

30. Waiver of Jury Trial .

The present Sub-Plan does not amend Section 30 of the Plan.

31. Dispute Resolution .

The present Sub-Plan does not amend Section 31 of the Plan.

Approved by the Board on June 23, 2017.

 

9

Exhibit 10.22

CALYXT, INC.

2017 OMNIBUS INCENTIVE PLAN

NOTICE OF STOCK OPTION GRANT

Recipient

Subject to the terms and conditions set forth in this notice of grant (the “ Notice ”) and Stock Option Agreement (the Notice and Stock Option Agreement constituting this “ Award Agreement ”), Calyxt, Inc., a Delaware corporation (the “ Company ”), has granted you an Option (the “ Option ”). The Option is granted under and is subject to the Calyxt, Inc. 2017 Omnibus Incentive Plan (the “ Plan ”). Unless otherwise defined in this Agreement, the terms used in this Agreement shall have the meanings defined in the Plan. The provisions of the Plan shall control in the event of a conflict among the provisions of the Plan, this Agreement and any descriptive materials provided to you.

 

Date of Grant:

   [•]

Exercise Price Per Share:

   [•]

Total Number of Shares:

   [•]

Total Exercise Price:

   [•]

Type of Option:

   Nonstatutory Stock Option

Expiration Date:

   [•]

Vesting Commencement Date:

   [•]

First Vest Date:

   [•]

Vesting/Exercise Schedule:

   Subject to Sections 2(n) and 19(g) of the Plan and Section 8 of the Award Agreement, so long as your Continuous Service Status does not terminate, the Shares underlying this Option shall vest in accordance with the provisions of the Award Agreement. This Option shall only become exercisable in accordance with the provisions of the Award Agreement.

Transferability:

   You may not transfer this Option.

By your signature and the signature of the Company’s representative below, you and the Company agree that this Option is granted under and governed by the terms and conditions of the Plan and the Agreement.

You are advised to consult with your own tax advisors in respect of any tax consequences arising in connection with this Option. In addition, you agree and acknowledge that your rights to any Shares underlying this Option will be earned only as you provide services to the Company over time, that the grant of this Option is not as consideration for services you rendered to the Company prior to the Date of Grant, and that nothing in this Notice or the attached documents


confers upon you any right to continue your employment or consulting relationship with the Company for any period of time, nor does it interfere in any way with your right or the Company’s right to terminate that relationship at any time, for any reason, with or without cause. Also, to the extent applicable, the Exercise Price Per Share has been set in good faith compliance with the applicable guidance issued by the Internal Revenue Service under Section 409A of the Code. However, there is no guarantee that the Internal Revenue Service will agree with the valuation, and by signing below, you agree and acknowledge that the Company and the Administrator shall not be held liable for any applicable costs, taxes, or penalties associated with this Option if, in fact, the Internal Revenue Service were to determine that this Option constitutes deferred compensation under Section 409A of the Code.

 

THE COMPANY:
CALYXT, INC.
By:  

 

  Name:
  Title:
PARTICIPANT:

 

[Name]

 

2


CALYXT, INC.

2017 OMNIBUS INCENTIVE PLAN

STOCK OPTION AGREEMENT

1. Grant of Option . Calyxt, Inc., a Delaware corporation (the “ Company ”), hereby grants to [•] (“ Participant ”), an option (the “ Option ”) to purchase the total number of shares of Common Stock (the “ Shares ”) set forth in the Notice of Stock Option Grant (the “ Notice ”), at the exercise price per Share set forth in the Notice (the “ Exercise Price ”) subject to the terms, definitions and provisions of the Calyxt, Inc. 2017 Omnibus Incentive Plan (the “ Plan ”) adopted by the Company, which is incorporated in this agreement (this “ Agreement ”) by reference. Unless otherwise defined in this Agreement, the terms used in this Agreement shall have the meanings defined in the Plan.

2. Designation of Option . This Option is intended to be a Nonstatutory Stock Option.

3. Vesting of Option . Provided that the Participant’s Continuous Service Status does not terminate, this Option shall become vested as to:

 

    [•]% of the total number of Shares underlying the Option on [•]; and

 

    [•]% of the total number of Shares underlying the Option on [•]; and

 

    [•]% of the total number of Shares underlying the Option on [•];

provided that:

[the vested portion of this Option shall only become exercisable in the event that an Initial Public Offering of the Company occurs prior to the Expiration Date of the Option; and

provided further that;] 1

[in the event that a Triggering Event occurs prior to the Expiration Date of the Option, the Option shall become vested as to an additional 25% of the total number of Shares underlying the Option; and provided further that the Option shall become vested as to 100% of the Shares underlying the Option in the event of (a) the termination of Participant’s employment without Cause within 12 months following a Triggering Event or (b) the resignation of Participant for Good Reason within 12 months following a Triggering Event. In all cases, in no event will the Option become vested as to more than 100% of the total number of Shares subject to the Option]. 2

 

1   To be included in the pre-IPO award agreements.
2   To be included in award agreeements for Participants who are employees of the Company.

 

3


[in the event that a Triggering Event occurs or in the event of a change in control of a Parent, in each case prior to the Expiration Date of the Option, the Option will become vested as to 100% of the total number of the Shares underlying the Option, to the extent not already vested.] 3

As used in this Stock Option Agreement and for all purposes relating to the Option, including cessation of Continuous Service Status, “Good Reason” shall mean: (i) a material reduction in the Participant’s base salary, other than a general reduction in base salaries that affects all similarly-situated Employees or Consultants, as applicable, in substantially the same proportion or (ii) an involuntary relocation of the Participant’s principal place of employment by more than 100 miles, provided that (x) the Participant has provided written notice to the Company of the existence of the circumstances constituting Good Reason within 30 days of the initial existence of such circumstances, (y) the Company fails to cure such circumstances within 30 days of the receipt of such written notice, and (z) Participant’s resignation is effective not later than 90 days after the first occurrence of the applicable grounds constituting Good Cause. If Participant does not resign for Good Reason in accordance with, and within the time period set forth in, the preceding sentence, then Participant will be deemed to have waived Participant’s right to terminate for Good Reason with respect to such circumstances and such circumstances shall be deemed not to constitute Good Reason.

4. Exercise of Option .

(a) Right to Exercise.

(i) This Option may not be exercised for a fraction of a share.

(ii) In the event of Participant’s death, Disability or other termination of Continuous Service Status, the exercisability of this Option shall be governed by Section 8 below, subject to the limitations contained in this Section 4.

(iii) In no event may this Option be exercised after the Expiration Date set forth in the Notice.

(b) Method of Exercise.

(i) This Option shall be exercisable by the Participant’s execution and delivery of the following:

(A) the Exercise Agreement attached hereto as Exhibit A or of any other form of written notice approved for such purpose by the Company, which shall state Participant’s election to exercise this Option, the number of Shares in respect of which this Option is being exercised, and such other representations and agreements as to the holder’s investment intent with respect to such Shares as may be required by the Company pursuant to the provisions of the Plan. Such written notice shall be signed by Participant and shall be delivered to the Company by such means as are determined by the Plan Administrator in its discretion to constitute adequate delivery. The written notice shall be accompanied by payment of the aggregate Exercise Price for the purchased Shares.

 

3  

To be included in award agreements for Participants who are Consultants, non-employee directors of the Company, or directors or employees of a Parent.

 

4


        [and

(B) the Adoption Agreement to the Company Stockholders Agreement attached hereto as Exhibit B (the “ Adoption Agreement ”).] 4

(c) As a condition to the exercise of this Option and as further set forth in Section 15 of the Plan, Participant agrees to make adequate provision for federal, state or other tax withholding obligations, if any, which arise upon the grant, vesting or exercise of this Option, or disposition of Shares, whether by withholding, direct payment to the Company, or otherwise. Regardless of any action the Company takes with respect to any or all income tax, social security, payroll tax, or other tax-related items related to Participant’s participation in the Plan and legally applicable to Participant (“ Tax-Related Items ”), Participant acknowledges that the ultimate liability for all Tax-Related Items is and remains Participant’s responsibility and may exceed the amount actually withheld. Participant further acknowledges that the Company (A) makes no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Option, including, but not limited to, the grant, vesting, exercise/settlement of the Option, the issuance of Shares upon settlement of the Option and the subsequent sale of Shares acquired pursuant to such issuance and (B) does not commit to and is under no obligation to structure the terms of the grant or any aspect of the Option to reduce or eliminate Participant’s liability for Tax-Related Items or achieve any particular tax result.

In the event that Participant fails to make adequate provision for applicable tax withholding obligations (or where the amount of money provided is insufficient to satisfy the applicable obligations), Participant authorizes the Company, in its discretion, to satisfy the obligations with regard to all Tax-Related Items by (x) withholding from Participant’s wages or other cash compensation paid to Participant, (y) withholding through a Cashless Exercise or (z) a combination of the foregoing.

If Participant’s obligation is satisfied through a Cashless Exercise as described in the foregoing paragraph, the Company shall endeavor to sell only the number of Shares required to satisfy Participant’s obligations for Tax-Related Items; however, Participant agrees that the Company may sell more Shares than necessary to cover the Tax-Related Item, and that in such event, the Company shall reimburse Participant for the excess amount withheld, in cash and without interest.

(i) The Company is not obligated, and shall have no liability for failure, to issue or deliver any Shares upon exercise of this Option unless such issuance or delivery would comply with the Applicable Laws, with such compliance determined by the Company in consultation with its legal counsel. This Option may not be exercised until such time as the Plan has been approved by the holders of capital stock of the Company, or if the issuance of such Shares upon such exercise or the method of payment of consideration for such Shares would constitute a violation of any Applicable Laws, including any applicable federal or state

 

 

4  

To be included in the pre-IPO award agreements.

 

5


securities laws or any other law or regulation. As a condition to the exercise of this Option, the Company may require Participant to make any representation and warranty to the Company as may be required by the Applicable Laws. Assuming such compliance, for income tax purposes the Shares shall be considered transferred to Participant on the date on which this Option is exercised with respect to such Shares.

(ii) Subject to compliance with Applicable Laws, this Option shall be deemed to be exercised upon receipt by the Company of the appropriate written notice of exercise accompanied by the Exercise Price[, the executed Adoption Agreement,] 5 and the satisfaction of any applicable withholding obligations.

5. Method of Payment . Payment of the Exercise Price shall be by any of the following, or a combination of the following, at the election of Participant:

(a) Cash, check or wireless transfer;

(b) at the discretion of the Plan Administrator on a case by case basis, by surrender of other shares of Common Stock of the Company (either directly or by stock attestation) that Participant previously acquired and that have an aggregate Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Shares as to which this Option is being exercised; or

(c) at the discretion of the Plan Administrator on a case by case basis, by Cashless Exercise.

6. No Right to Continued Service . The grant of an Option shall not be construed as conferring upon the Participant any right to continue his or her employment or consulting relationship with the Company for any period of time, nor does it interfere in any way with the Participant’s right or the Company’s right to terminate that relationship at any time, for any reason, with or without cause.

7. No Right to Future Options . Any Option granted under the Plan shall be a one-time Option that does not constitute a promise of future grants. The Company, in its sole discretion, maintains the right to make available future grants under the Plan.

8. Termination of Relationship . [Following the date of termination of Participant’s Continuous Service Status for any reason (the “ Termination Date ”), other than a termination for Cause, Participant may continue to hold, and potentially exercise this Option to the extent a Triggering Event or an Initial Public Offering occurs, only as set forth in the Notice and this Section 8.] 6 Notwithstanding the foregoing, any Award granted to an individual who is nominated to become a Director and is not an Employee or Consultant or a director of a Parent at the time of grant shall be forfeited in its entirety if such individual does not commence providing services to the Company within 12 months after the date of grant of such Award. In no event may this Option be exercised after the Expiration Date of this Option as set forth in the Notice.

 

5   To be included in the pre-IPO award agreements.
6   To be included in the pre-IPO award agreements.

 

6


(a) Termination . In the event of termination of Participant’s Continuous Service Status for any reason including the Participant’s death or Disability, and other than as a result of a for Cause termination, Participant (or Participant’s estate or by a person who acquired the right to exercise this Option by bequest or inheritance, as applicable) may, to the extent Participant is vested in the Option at the Termination Date, continue to hold the vested portion of the Option. The unvested portion of the Option on the Termination Date shall expire on such date.

(b) Termination for Cause . In the event of termination of Participant’s Continuous Service Status for Cause, this Option (including any vested portion thereof) shall terminate immediately upon such termination for Cause. If Participant’s Continuous Service Status is suspended pending an investigation of whether Participant’s Continuous Service Status will be terminated for Cause, all Participant’s rights under this Option, including the right to exercise this Option, shall be suspended during the investigation period.

9. Non-Transferability of Option . This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of Participant only by him or her. The terms of this Option shall be binding upon the executors, administrators, heirs, successors and assigns of Participant.

10. [ Restrictions on Shares Purchased upon Exercise of Option . To the extent that Shares which are not registered under the Securities Act of 1933, pursuant to an effective registration statement, are issued to the Participant pursuant to the exercise of an Option, the stock certificates evidencing such Shares may bear such restrictive legend as the Company deems to be required or advisable under applicable law.] 7

11. Not Salary, Pensionable Earnings or Base Pay . The Participant acknowledges that the Option shall not be included in or deemed to be a part of (a) salary, normal salary or other ordinary compensation, (b) any definition of pensionable or other earnings (however defined) for the purpose of calculating any benefits payable to or on behalf of the Participant under any pension, retirement, termination or dismissal indemnity, severance benefit, retirement indemnity or other benefit arrangement of the Company or any Subsidiary or (c) any calculation of base pay or regular pay for any purpose.

12. Forfeiture Upon Breach of Certain Other Agreements . The Participant’s breach of any non-competition, non-solicitation, confidentiality, non-disparagement, assignment of inventions or other intellectual property agreement that the Participant may be a party to with the Company or any Affiliate, in addition to whatever other equitable relief or monetary damages that the Company or any Affiliate may be entitled to, shall result in automatic rescission, forfeiture, cancellation or return of any Shares (whether or not vested) held by the Participant.

13. Recoupment/Clawback . This Option may be subject to recoupment or “clawback” as may be required by applicable law, stock exchange rules or by any applicable Company policy or arrangement, as it may be established or amended from time to time.

 

7   To be included in the pre-IPO award agreements.

 

7


14. [Lock-Up Agreement . In connection with any initial public offering of the Company’s securities and upon request of the Company or the underwriters managing any underwritten offering of the Company’s securities, Participant hereby agrees not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any securities of the Company however and whenever acquired (other than those included in the registration) without the prior written consent of the Company or such underwriters, as the case may be, during the period commencing as of 18 days prior to and ending 180 days, or such lesser period of time as the relevant underwriters may permit, after the effective date of a registration statement covering any public offering of the Company’s securities or, if required by such underwriter, such longer period of time as is necessary to enable such underwriter to issue a research report or make a public appearance that relates to an earnings release or announcement by the Company within 18 days before or after the date that is 180 days after the effective date of the registration statement relating to such initial public offering, but in any event not to exceed 198 days following the effective date of the registration statement relating to such initial public offering and to execute an agreement reflecting the foregoing as may be requested by the underwriters at the time of the public offering. The Company is hereby authorized to impose stock transfer instructions to its transfer agent (which may the Company itself) in order to enforce the above restrictions.] 8

15. [Corporate Transaction . Notwithstanding the above, if a corporate transaction constitutes a Triggering Event and the Participant retains his or her Continuous Service Status, the Option shall become vested under the formula in Section 3 and the Administrator shall provide the Participant with at least five (5) days prior to the consummation of the corporate transaction to exercise the vested portion of the Option.] 9

16. Effect of Agreement . Participant acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof (and has had an opportunity to consult counsel regarding the Option terms), and hereby accepts this Option and agrees to be bound by its contractual terms as set forth herein and in the Plan. Participant hereby agrees to accept as binding, conclusive and final all decisions and interpretations of the Plan Administrator regarding any questions relating to this Option. In the event of a conflict between the terms and provisions of the Plan and the terms and provisions of the Notice and this Agreement, the Plan terms and provisions shall prevail.

 

8   To be included in the pre-IPO award agreements.
9   To be included in the pre-IPO award agreements.

 

8


17. Miscellaneous .

(a) Governing Law; Waiver of Jury Trial This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law. BY RECEIPT OF THIS OPTION, THE PARTICIPANT WAIVES ANY RIGHT THAT THE PARTICIPANT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE PLAN.

(b) Participant Undertaking; Acceptance . The Participant agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or give effect to any of the obligations or restrictions imposed on either the Participant or the Option pursuant to this Agreement. The Participant acknowledges receipt of a copy of the Plan and this Agreement and understands that material definitions and provisions concerning the Option and the Participant’s rights and obligations with respect thereto are set forth in the Plan. The Participant has read carefully, and understands, the provisions of this Agreement and the Plan.

(c) Dispute Resolution . Any dispute or claim arising out of, under or in connection with the Plan or any Award Agreement shall be submitted to arbitration in Delaware and shall be conducted in accordance with the rules of, but not necessarily under the auspices of, the American Arbitration Association rules in force when the notice of arbitration is submitted. The arbitration shall be conducted before an arbitration tribunal, one selected by the Company, one selected by the Participant, and the third selected by the first two. The Participant and the Company agree that such arbitration will be confidential and no details, descriptions, settlements or other facts concerning such arbitration shall be disclosed or released to any third party without the specific written consent of the other party, unless required by law or court order or in connection with enforcement of any decision in such arbitration. Any damages awarded in such arbitration shall be limited to the contract measure of damages, and shall not include punitive damages.

(d) Entire Agreement; Enforcement of Rights . This Agreement, together with the Notice to which this Agreement is attached and the Plan, sets forth the entire agreement and understanding of the parties relating to the subject matter herein and therein and merges and supersedes all prior and contemporaneous discussions, arrangements, agreements and understandings, both oral and written, whether in term sheets, presentations or otherwise, between the parties with respect to the subject matter hereof.

(e) Amendment; Waiver . Except as contemplated under the Plan, no modification of or amendment to this Agreement that has a material adverse effect on the Participant, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement; provided that the Company may amend or modify this Agreement without the Participant’s consent in accordance with the provisions of the Plan or as otherwise set forth in this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party, provided that no waiver of any breach or condition of this Agreement shall be deemed to be a

 

9


waiver of any other or subsequent breach or condition, whether of like or different nature. Any amendment or modification of or to any provision of this Agreement, or any waiver of any provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which made or given.

(f) Severability . If one or more provisions of this Agreement are held to be unenforceable under Applicable Laws, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement and a substantially similar provision shall be inserted that as closely as possible reflects the intent of the parties shall be substituted in place of such unenforceable provision, (ii) the balance of this Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of this Agreement shall be enforceable in accordance with its terms.

(g) Notices . Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent by telegram or fax or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party’s address as set forth below or as subsequently modified by written notice:

If to the Company:

Calyxt, Inc.

600 County Rd D West #8

New Brighton, MN 55112

Attention:

Email:

If to the Participant:

At the Participant’s most recent address in the Company’s records.

(h) Counterparts . This Option may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

(i) Successors and Assigns; No Third-Party Beneficiaries . The rights and benefits of this Agreement shall inure to the benefit of, and be enforceable by the Company’s successors and assigns. The rights and obligations of Participant under this Agreement may not be assigned without the prior written consent of the Company. Nothing in this Agreement, express or implied, is intended to confer on any Person other than the Company and the Participant, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

 

10


18. Data Privacy Notice and Consent . By participating in the Plan, the Participant consents to the holding and processing of personal information provided by the Participant to the Company or any subsidiary, trustee or third-party service provider, for all purposes relating to the operation of the Plan. These include, but are not limited to:

(a) administering and maintaining Participant records, a dissolution or liquidation of the Company;

(b) providing information to the Company, Subsidiaries, trustees of any employee benefit trust, registrars, brokers or third-party administrators of the Plan;

(c) providing information to future purchasers or merger partners of the Company or any subsidiary, or the business in which the Participant works; and

(d) transferring information about the Participant to any country or territory that may not provide the same protection for the information as the Participant’s home country.

[Signature Page Follows]

 

11


IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be executed by their officers thereunto duly authorized, effective as of the Date of Grant set forth in the accompanying Notice.

 

THE COMPANY:
CALYXT, INC.
        By:  

 

  Name:
  Title:
PARTICIPANT:

 

[Name]

 

12


EXHIBIT A

CALYXT, INC.

2017 OMNIBUS INCENTIVE PLAN

EXERCISE AGREEMENT

This Exercise Agreement (this “ Agreement ”) is made as of                     , by and between Calyxt, Inc., a Delaware corporation (the “ Company ”), and [•] (“ Purchaser ”). To the extent any capitalized terms used in this Agreement are not defined, they shall have the meaning ascribed to them in the Company’s Equity Incentive Plan (the “ Plan ”).

1. Exercise of Option . Subject to the terms and conditions hereof, Purchaser hereby elects to exercise his or her option to purchase          shares of the Common Stock (the “ Shares ”) of the Company under and pursuant to the Plan and the Stock Option Agreement granted [•] (the “ Option Agreement ”). The purchase price for the Shares shall be $[•] per Share for a total purchase price of $         . The term “ Shares ” refers to the purchased Shares and all securities received as stock dividends or splits, all securities received in replacement of the Shares in a recapitalization, merger, reorganization, exchange or the like, and all new, substituted or additional securities or other property to which Purchaser is entitled by reason of Purchaser’s ownership of the Shares.

2. Time and Place of Exercise . The purchase and sale of the Shares under this Agreement shall occur at the principal office of the Company simultaneously with the execution and delivery of this Agreement [and the Adoption Agreement to the Company Stockholders Agreement attached to the Option Agreement as Exhibit B (the “ Adoption Agreement ”)], the payment of the aggregate exercise price by any method listed in Section 5 of the Option Agreement, and the satisfaction of any applicable tax withholding obligations, all in accordance with the provisions of Section 4(b) of the Option Agreement. The Company shall issue the Shares to Purchaser by entering such Shares in Purchaser’s name as of such date in the books and records of the Company or, if applicable, a duly authorized transfer agent of the Company, against payment of the exercise price therefor by Purchaser. If applicable, the Company shall deliver to Purchaser a certificate representing the Shares as soon as practicable following such date.

3. Limitations on Transfer . In addition to any other limitation on transfer created by applicable securities laws, Purchaser shall not assign, encumber or dispose of any interest in the Shares except in compliance with the provisions set forth below and applicable securities laws.

(a) [Right of First Refusal . Before any Shares held by Purchaser or any transferee of Purchaser (either being sometimes referred to herein as the “ Holder ”) may be sold or otherwise transferred (including transfer by gift or operation of law), the Company or its assignee(s) shall have a right of first refusal to purchase the Shares on the terms and conditions set forth in this Section 3(a) (the “ Right of First Refusal ”).

 

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(i) Notice of Proposed Transfer . The Holder of the Shares shall deliver to the Company a written notice (the “ Notice ”) stating: (i) the Holder’s bona fide intention to sell or otherwise transfer such Shares; (ii) the name of each proposed purchaser or other transferee (“ Proposed Transferee ”); (iii) the number of Shares to be transferred to each Proposed Transferee; and (iv) the terms and conditions of each proposed sale or transfer. The Holder shall offer the Shares at the same price (the “ Purchase Price ”) and upon the same terms (or terms as similar as reasonably possible) to the Company or its assignee(s).

(ii) Exercise of Right of First Refusal . At any time within thirty (30) days after receipt of the Notice, the Company and/or its assignee(s) may, by giving written notice to the Holder, elect to purchase all, but not less than all, of the Shares proposed to be transferred to any one or more of the Proposed Transferees, at the Purchase Price. If the Purchase Price includes consideration other than cash, the cash equivalent value of the non-cash consideration shall be determined by the Board in good faith and shall be payable therefor.

(iii) Payment . Payment of the Purchase Price shall be made, at the election of the Company or its assignee(s), in cash (by check), by cancellation of all or a portion of any outstanding indebtedness, or by any combination thereof within ninety (90) days after receipt of the Notice or in the manner and at the times set forth in the Notice.

(iv) Holder’s Right to Transfer . If all of the Shares proposed in the Notice to be transferred to a given Proposed Transferee are not purchased by the Company and/or its assignee(s) as provided in this Section 3(a), then the Holder may sell or otherwise transfer such Shares to that Proposed Transferee on terms, including price, that are no more favorable to the Proposed Transferee than that set forth in the Notice, provided that such sale or other transfer is consummated within one hundred twenty (120) days after the date of the Notice and; provided further that any such sale or other transfer is effected in accordance with any applicable securities laws and the Proposed Transferee agrees in writing that the provisions of this Section 3 shall continue to apply to the Shares in the hands of such Proposed Transferee. If the Shares described in the Notice are not transferred to the Proposed Transferee within such period, or if the Holder proposes to change the price or other terms to make them more favorable to the Proposed Transferee, a new Notice shall be given to the Company, and the Company and/or its assignees shall again be offered the Right of First Refusal before any Shares held by the Holder may be sold or otherwise transferred.

(v) Exception for Certain Family Transfers . Anything to the contrary contained in this Section 3(a)(v) notwithstanding, and provided that such transfer complies with applicable securities laws, the transfer of any or all of the Shares during Purchaser’s lifetime or on Purchaser’s death by will or intestacy to Purchaser’s Immediate Family or a trust for the benefit of Purchaser’s Immediate Family shall be exempt from the provisions of this Section 3(a)(v). “ Immediate Family ” as used herein shall mean spouse, lineal descendant or antecedent, father, mother, brother or sister. In such case, the transferee or other recipient shall receive and hold the Shares so transferred subject to the provisions of this Section 3(a)(v), and there shall be no further transfer of such Shares except in accordance with the terms of this Section 3(a)(v).

 

14


(b) Company’s Right to Purchase upon Involuntary Transfer . In the event of any transfer by operation of law or other involuntary transfer (including death or divorce, but excluding a transfer to Immediate Family as set forth in Section 3(a)(v) above) of all or a portion of the Shares by the record holder thereof, the Company shall have an option to purchase all of the Shares transferred at the greater of the purchase price paid by the Purchaser pursuant to this Agreement or the Fair Market Value of the Shares on the date of transfer (as determined by the Board). Upon such a transfer, the person acquiring the Shares shall promptly notify the Secretary of the Company of such transfer. The right to purchase such Shares shall be provided to the Company for a period of sixty (60) days following receipt by the Company of written notice by the person acquiring the Shares.

(c) Assignment . The right of the Company to purchase any part of the Shares may be assigned in whole or in part to any holder or holders of capital stock of the Company or other persons or organizations.

(d) Restrictions Binding on Transferees . All transferees of Shares or any interest therein will receive and hold such Shares or interest subject to the provisions of this Agreement. Any sale or transfer of the Company’s Shares shall be void unless the provisions of this Agreement are satisfied and agreed to by such transferee.

(e) Termination of Rights . The right of first refusal granted to the Company by Section 3(a) above and the option to repurchase the Shares in the event of an involuntary transfer granted the Company by Section 3(b) above shall terminate upon 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 under the Securities Act of 1933, as amended (the “ Securities Act ”). Upon termination of the right of first refusal described in Section 3(a) above the Company shall remove any stop-transfer notices referred to in Section 5(b) below and related to the restrictions in this Section 3 and, if certificates are issued, a new certificate or certificates representing the Shares not repurchased shall be issued, on request, without the legend referred to in Section 5(a)(ii) below and delivered to
Purchaser.] 10

4. [Investment and Taxation Representations . In connection with the purchase of the Shares, Purchaser represents to the Company the following:

(a) Purchaser is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Shares. Purchaser is purchasing these securities for investment for his or her own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act or under any applicable provision of state law. Purchaser does not have any present intention to transfer the Shares to any person or entity.

 

 

10   To be included in the pre-IPO award agreements.

 

15


(b) Purchaser understands that the Shares have not been registered under the Securities Act by reason of a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of Purchaser’s investment intent as expressed herein.

(c) Purchaser further acknowledges and understands that the securities must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. Purchaser further acknowledges and understands that the Company is under no obligation to register the securities. Purchaser understands that the certificate(s) evidencing the securities will be imprinted with a legend which prohibits the transfer of the securities unless they are registered or such registration is not required in the opinion of counsel for the Company.

(d) Purchaser is familiar with the provisions of Rules 144 and 701, each promulgated under the Securities Act, which, in substance, permit limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer of the securities (or from an affiliate of such issuer), in a non-public offering subject to the satisfaction of certain conditions. Purchaser understands that the Company provides no assurances as to whether he or she will be able to resell any or all of the Shares pursuant to Rule 144 or Rule 701, which rules require, among other things, that the Company be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, that resales of securities take place only after the holder of the Shares has held the Shares for certain specified time periods, and under certain circumstances, that resales of securities be limited in volume and take place only pursuant to brokered transactions. Notwithstanding this paragraph (d), Purchaser acknowledges and agrees to the restrictions set forth in paragraph (e) below.

(e) Purchaser further understands that in the event all of the applicable requirements of Rule 144 or 701 are not satisfied, registration under the Securities Act, compliance with Regulation A, or some other registration exemption shall be required; and that, notwithstanding the fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and Exchange Commission has expressed its opinion that persons proposing to sell private placement securities other than in a registered offering and otherwise than pursuant to Rule 144 or 701 will have a substantial burden of proof in establishing that an exemption from registration is available for such offers or sales, and that such persons and their respective brokers who participate in such transactions do so at their own risk.

(f) Purchaser understands that Purchaser may suffer adverse tax consequences as a result of Purchaser’s purchase or disposition of the Shares. Purchaser represents that Purchaser has consulted any tax consultants Purchaser deems advisable in connection with the purchase or disposition of the Shares and that Purchaser is not relying on the Company for any tax advice.] 11

 

 

11   To be included in the pre-IPO award agreements.

 

16


5. Restrictive Legends and Stop-Transfer Orders .

(a) [Legends . The certificate or certificates representing the Shares shall bear the following legends (as well as any legends required by applicable state and federal corporate and securities laws):

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

(ii) THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE HOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.] 12

(b) Stop-Transfer Notices . Purchaser agrees that, in order to 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.

(c) Refusal to Transfer . The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Agreement or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.

6. No Right to Continued Service . Nothing in this Agreement or the attached documents confers upon the Participant any right to continue his or her employment or consulting relationship with the Company for any period of time, nor does it interfere in any way with the Participant’s right or the Company’s right to terminate that relationship at any time, for any reason, with or without cause.

7. [Lock-Up Agreement . In connection with any initial public offering of the Company’s securities and upon request of the Company or the underwriters managing any underwritten offering of the Company’s securities, Participant hereby agrees not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any securities of the Company however and whenever acquired (other than those included in the registration) without the prior written consent of the Company or such underwriters, as the case may be, during the period commencing as of 18 days prior to and ending 180 days, or such

 

12  

To be included in the pre-IPO award agreements.

 

17


lesser period of time as the relevant underwriters may permit, after the effective date of a registration statement covering any public offering of the Company’s securities or, if required by such underwriter, such longer period of time as is necessary to enable such underwriter to issue a research report or make a public appearance that relates to an earnings release or announcement by the Company within 18 days before or after the date that is 180 days after the effective date of the registration statement relating to such initial public offering, but in any event not to exceed 198 days following the effective date of the registration statement relating to such initial public offering and to execute an agreement reflecting the foregoing as may be requested by the underwriters at the time of the public offering. The Company is hereby authorized to impose stock transfer instructions to its transfer agent (which may be the Company itself) in order to enforce the above restrictions.] 13

 

 

13   To be included in the pre-IPO award agreements.

 

18


8. Miscellaneous .

(a) Governing Law; Waiver of Jury Trial . This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law. BY RECEIPT OF THIS OPTION, THE PARTICIPANT WAIVES ANY RIGHT THAT THE PARTICIPANT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE PLAN.

(b) Participant Undertaking; Acceptance . The Participant agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or give effect to any of the obligations or restrictions imposed on either the Participant or the Option pursuant to this Agreement. The Participant acknowledges receipt of a copy of the Plan and this Agreement and understands that material definitions and provisions concerning the Option and the Participant’s rights and obligations with respect thereto are set forth in the Plan. The Participant has read carefully, and understands, the provisions of this Agreement and the Plan.

(c) Dispute Resolution . Any dispute or claim arising out of, under or in connection with the Plan or any Award Agreement shall be submitted to arbitration in Delaware and shall be conducted in accordance with the rules of, but not necessarily under the auspices of, the American Arbitration Association rules in force when the notice of arbitration is submitted. The arbitration shall be conducted before an arbitration tribunal comprised of three individuals, one selected by the Company, one selected by the Participant, and the third selected by the first two. The Participant and the Company agree that such arbitration will be confidential and no details, descriptions, settlements or other facts concerning such arbitration shall be disclosed or released to any third party without the specific written consent of the other party, unless required by law or court order or in connection with enforcement of any decision in such arbitration. Any damages awarded in such arbitration shall be limited to the contract measure of damages, and shall not include punitive damages.

(d) Entire Agreement; Enforcement of Rights . This Agreement, together with the Notice to which this Agreement is attached and the Plan, sets forth the entire agreement and understanding of the parties relating to the subject matter herein and therein and merges and supersedes all prior and contemporaneous discussions, arrangements, agreements and understandings, both oral and written, whether in term sheets, presentations or otherwise, between the parties with respect to the subject matter hereof.

(e) Amendment; Waiver . Except as contemplated under the Plan, no modification of or amendment to this Agreement that has a material adverse effect on the Participant, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement; provided that the Company may amend or modify this Agreement without the Participant’s consent in accordance with the provisions of the Plan or as otherwise set forth in this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party, provided that no waiver of any breach or condition of this Agreement shall be deemed to be a

 

19


waiver of any other or subsequent breach or condition, whether of like or different nature. Any amendment or modification of or to any provision of this Agreement, or any waiver of any provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which made or given.

(f) Severability . If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement and a substantially similar provision shall be inserted that as closely as possible reflects the intent of the parties shall be substituted in place of such unenforceable provision, (ii) the balance of this Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of this Agreement shall be enforceable in accordance with its terms.

(g) Notices . Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent by telegram or fax or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party’s address as set forth below or as subsequently modified by written notice:

If to the Company:

Calyxt, Inc.

600 County Rd D West #8

New Brighton, MN 55112

Attention:

Email:

If to the Participant:

At the Participant’s most recent address in the Company’s records.

(h) Counterparts . This Option may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

(i) Successors and Assigns; No Third-Party Beneficiaries . The rights and benefits of this Agreement shall inure to the benefit of, and be enforceable by the Company’s successors and assigns. The rights and obligations of Participant under this Agreement may not be assigned without the prior written consent of the Company. Nothing in this Agreement, express or implied, is intended to confer on any Person other than the Company and the Participant, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

(j) [California Corporate Securities Law . THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR THE PAYMENT OR

 

20


RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON THE QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.] 14

[Signature Page Follows]

 

 

14   To be included in the pre-IPO award agreements.

 

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The parties have executed this Exercise Agreement as of the date first set forth above.

 

THE COMPANY:
CALYXT, INC.

 

By:  

 

(Signature)
Name:  

 

 

PURCHASER:

 

 

22


I,         , spouse of [•], have read and hereby approve the foregoing terms set forth in this Agreement [and the Adoption Agreement]. 15 In consideration of the Company’s granting my spouse the right to purchase the Shares as set forth in this Agreement, I hereby agree to be irrevocably bound by this Agreement [and the Adoption Agreement] 16 and further agree that any community property or other such interest shall hereby by similarly bound by this Agreement [and the Adoption Agreement] 17 . I hereby appoint my spouse as my attorney-in-fact with respect to any amendment or exercise of any rights under this Agreement [and the Adoption Agreement] 18 .

 

Spouse of [•] ( if applicable)
 

 

 

 

15   To be included in the pre-IPO award agreements.
16   To be included in the pre-IPO award agreements.
17   To be included in the pre-IPO award agreements.
18   To be included in the pre-IPO award agreements.

 

23


EXHIBIT B 19

CALYXT, INC.

2017 OMNIBUS INCENTIVE PLAN

ADOPTION AGREEMENT TO THE COMPANY STOCKHOLDERS AGREEMENT

This Adoption Agreement (“ Adoption Agreement ”) is executed on                     20    , by the undersigned (the Holder ) pursuant to the terms of that certain Stockholders Agreement dated as of December 3, 2014 (the Agreement ), by and among the Company and certain of its Stockholders, as such Agreement may be amended or amended and restated hereafter. Capitalized terms used but not defined in this Adoption Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Adoption Agreement, the Holder agrees as follows.

1.1 Acknowledgement . Holder acknowledges that Holder is acquiring certain shares of The capital stock of the Company (the Stock ), for one of the following reasons (Check the correct box):

❑ As a transferee of Shares from a party in such party’s capacity as an “Stockholder” bound by the Agreement, and after such transfer, Holder shall be considered a “Stockholder” for all purposes of the Agreement.

❑ As a new Stockholder in accordance with Subsection 4.1(a) of the Agreement, in which case Holder will be a “Stockholder” for all purposes of the Agreement.

1.2 Agreement . Holder hereby (a) agrees that the Stock, and any other shares of capital stock or securities required by the Agreement to be bound thereby, shall be bound by and subject to the terms of the Agreement and (b) adopts the Agreement with the same force and effect as if Holder were originally a party thereto.

1.3 Notice . Any notice required or permitted by the Agreement shall be given to Holder at the address or facsimile number listed below Holder’s signature hereto.

 

      ACCEPTED AND AGREED:
HOLDER:     CALYXT, INC.

 

    By:  

 

Name:  

 

    Title:  

 

 

19   To be included in the pre-IPO award agreements.

 

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Exhibit 10.23

CALYXT, INC.

2017 OMNIBUS INCENTIVE PLAN

NOTICE OF RESTRICTED STOCK UNIT AWARD

Recipient

Subject to the terms and conditions set forth in this notice of grant (the “ Notice ”) and the Restricted Stock Agreement (the Notice and Restricted Stock Agreement constituting this “ Award Agreement ”), Calyxt, Inc., a Delaware corporation (the “ Company ”) has granted you an award of RSUs (the “ Award ”). The Award is granted under and is subject to the Calyxt, Inc. 2017 Omnibus Incentive Plan (the “ Plan ”). Unless otherwise defined in this Agreement, the terms used in this Agreement shall have the meanings defined in the Plan. The provisions of the Plan shall control in the event of a conflict among the provisions of the Plan, this Agreement and any descriptive materials provided to you.

 

Date of Grant:

   [•]

Total Number of Units:

   [•]

Vesting Commencement Date:

   [•]

First Vest Date:

   [•]

Vesting/Exercise Schedule:

   Subject to Sections 2(n) and 19(g) of the Plan and Section 8 of the Award Agreement, so long as your Continuous Service Status does not terminate, the RSUs shall vest and be settled in accordance with the provisions of the Award Agreement.

Transferability:

   You may not transfer this Award.

By your signature and the signature of the Company’s representative below, you and the Company agree that this Award is granted under and governed by the terms and conditions of the Plan and the Agreement.

You are advised to consult with your own tax advisors in respect of any tax consequences arising in connection with this Award. In addition, you agree and acknowledge that your rights to any Shares underlying this Award will be earned only as you provide services to the Company over time, that the grant of this Award is not as consideration for services you rendered to the Company prior to the Date of Grant, and that nothing in this Notice or the attached documents confers upon you any right to continue your employment or consulting relationship with the Company for any period of time, nor does it interfere in any way with your right or the Company’s right to terminate that relationship at any time, for any reason, with or without cause. However, there is no guarantee that the Internal Revenue Service will agree with the valuation, and by signing below, you agree and acknowledge that the Company and the Administrator shall not be held liable for any applicable costs, taxes, or penalties associated with this Award if, in fact, the Internal Revenue Service were to determine that this Award constitutes deferred compensation under Section 409A of the Code.

[Signature Page Follows]


THE COMPANY:
CALYXT, INC.
By:  

 

  Name:
  Title:
PARTICIPANT:

 

[Name]

 

2


CALYXT, INC.

2017 OMNIBUS INCENTIVE PLAN

RESTRICTED STOCK UNIT AGREEMENT

1. Grant of RSU Award . Calyxt, Inc., a Delaware corporation (the “ Company ”), hereby grants to [•] (“ Participant ”), the number of restricted stock units (“ RSUs ” or “ Award ”) set forth in the Notice of Restricted Stock Unit Award Grant (the “ Notice ”), subject to the terms, definitions and provisions of the Calyxt, Inc. 2017 Omnibus Incentive Plan (the “ Plan ”) adopted by the Company, which is incorporated in this agreement (this “ Agreement ”) by reference. Unless otherwise defined in this Agreement, the terms used in this Agreement shall have the meanings defined in the Plan.

2. Issuance of RSUs . Each RSU shall represent the right to receive one Share upon the vesting of such RSU, as determined in accordance with and subject to the terms of this Agreement and the Plan.

3. Vesting of RSUs . Provided that the Participant’s Continuous Service Status does not terminate, this Award shall vest as follows:

 

    [•] of the total number of RSUs on the Date of Grant (as defined in the Notice);

 

    [•]% of the total number of RSUs on [•]; and

 

    [•]% of the total number of RSUs on [•];

(each date above a “ Vesting Date ”)[, provided that in the event that a Triggering Event occurs during the vesting period, an additional 25% of the total number of RSUs shall immediately vest; and provided further that 100% of the total number of RSUs shall vest in the event of (a) the termination of Participant’s employment without Cause within 12 months following a Triggering Event or (b) the resignation of Participant for Good Reason within 12 months following a Triggering Event. In all cases, in no event will more than 100% of the RSUs vest] 1 .

[in the event that a Triggering Event or change in control of a Parent occurs, 100% of the total number of Shares shall immediately vest to the extent not already vested] 2

As used in this Agreement and for all purposes relating to the RSUs, including Continuous Service Status, “Good Reason” shall mean: (i) a material reduction in the Participant’s base salary, other than a general reduction in base salaries that affects all similarly-situated Employees or Consultants, as applicable, in substantially the same proportion or (ii) an involuntary relocation of the Participant’s principal place of employment by more than 100 miles, provided that (x) the Participant has provided written notice to the

 

1   To be included in the award agreements for Participants who are employees of the Company.
2  

To be included in the award agreements for Participants who are Consultants, non-employee directors of the Company, or directors or employees of a Parent.

 

3


Company of the existence of the circumstances constituting Good Reason within 30 days of the initial existence of such circumstances, (y) the Company fails to cure such circumstances within 30 days of the receipt of such written notice and (z) Participant’s resignation is effective not later than 90 days after the first occurrence of the applicable grounds constituting Good Cause. If Participant does not resign for Good Reason in accordance with, and within the time period set forth in, the preceding sentence, then Participant will be deemed to have waived Participant’s right to terminate for Good Reason with respect to such circumstances and such circumstances shall be deemed not to constitute Good Reason.

The vested RSUs shall be delivered subject to the Participant’s execution and delivery of the Adoption Agreement to the Company Stockholders Agreement attached hereto as Exhibit A (the “ Adoption Agreement ”).] 3

4. Tax Liability; Withholding Requirements . As a condition to the settlement of RSUs and as further set forth in Section 15 of the Plan, Participant agrees to make adequate provision for federal, state or other tax withholding obligations, if any, which arise upon the grant, vesting or disposition of shares of the RSUs, dividend distribution thereon, whether by withholding, direct payment to the Company, or otherwise. Regardless of any action the Company takes with respect to any or all income tax, social security, payroll tax, or other tax-related items related to Participant’s participation in the Plan and legally applicable to Participant (“ Tax-Related Items ”), Participant acknowledges that the ultimate liability for all Tax-Related Items is and remains Participant’s responsibility and may exceed the amount actually withheld. Participant further acknowledges that the Company (a) makes no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including, but not limited to, the grant, vesting, settlement of the Award, the issuance of Shares upon settlement of the Award and the subsequent sale of Shares acquired pursuant to such issuance and (b) does not commit to and is under no obligation to structure the terms of the grant or any aspect of the Award to reduce or eliminate Participant’s liability for Tax-Related Items or achieve any particular tax result.

In the event Participant fails to make adequate provision for applicable tax withholding obligations (or where the amount of money provided is insufficient to satisfy the applicable obligations), Participant authorizes the Company, in its discretion, to satisfy the obligations with regard to all Tax-Related Items by (i) withholding from Participant’s wages or other cash compensation paid to Participant, (ii) withholding through a net settlement or (iii) a combination of the foregoing.

If Participant’s obligation is satisfied through a net settlement as described in the foregoing paragraph, the Company shall endeavor to sell only the number of Shares required to satisfy Participant’s obligations for Tax-Related Items; however, Participant agrees that the Company may sell more Shares than necessary to cover the Tax-Related Item, and that in such event, the Company shall reimburse Participant for the excess amount withheld, in cash and without interest.

(a) to issue or deliver any Shares upon the vesting of the RSUs unless such issuance or delivery would comply with the Applicable Laws, including any applicable federal or state securities laws or any other law or regulation, with such compliance determined by the Company in consultation with its legal counsel. As a condition to the settlement of this Award, the Company may require Participant to make any representation and warranty to the Company as may be required by the Applicable Laws.

 

3  

To be included in the pre-IPO award agreements.

 

4


(b) Subject to compliance with Applicable Laws, this Award shall be deemed to be settled upon [receipt by the Company of the satisfaction of the executed Adoption Agreement, and] 4 the satisfaction of any applicable withholding obligations.

5. Terms and Conditions . It is understood and agreed that the Award evidenced hereby is subject to the following terms and conditions:

(a) Voting Rights . The Participant shall have no voting rights or any other rights as a shareholder of the Company with respect to the RSUs unless and until the Participant becomes the record owner of the Shares underlying such RSUs.

(b) [Dividends . If a dividend is paid on Shares during the period commencing on the Grant Date and ending on the date on which the Shares underlying the RSUs are distributed to the Participant pursuant to Section 3, the Participant shall be eligible to receive an amount equal to the dividend that the Participant would have received had the Shares underlying the RSUs been distributed to the Participant as of the time at which such dividend is paid; provided, however , that no such amount shall be payable with respect to any RSUs that are forfeited. Such amount shall be paid to the Participant on the date on which the Shares underlying the RSUs are distributed to the Participant in the same form (cash, Shares or other property) in which such dividend is paid to holders of Shares generally. Any Shares that the Participant is eligible to receive pursuant to this Section 4(b) are referred to herein as “ Dividend Shares .”] 5

(c) Distribution on Vesting . Subject to the provisions of this Agreement, upon the vesting of any of the RSUs, the Company shall deliver to the Participant, as soon as reasonably practicable after the applicable Vesting Date (or the Termination Date (as defined below), as applicable), one Share for each such RSU and the number of Dividend Shares (as determined in accordance with Section 3(b)); provided that such delivery of Shares shall be made no later than March 15 of the calendar year immediately following the year in which the applicable Vesting Date (or the Termination Date, as applicable) occurs. Upon such delivery, such Shares (including Dividend Shares) shall be fully assignable, alienable, saleable and transferrable by the Participant; provided that any such assignment, alienation, sale, transfer or other alienation with respect to such Shares shall be in accordance with applicable securities laws and any applicable Company policy.

6. No Right to Continued Service . The grant of an Award shall not be construed as conferring upon the Participant any right to continue his or her employment or consulting relationship with the Company for any period of time, nor does it interfere in any way with the Participant’s right or the Company’s right to terminate that relationship at any time, for any reason, with or without cause.

7. No Right to Future Awards . Any Award granted under the Plan shall be a one-time Award that does not constitute a promise of future grants. The Company, in its sole discretion, maintains the right to make available future grants under the Plan.

 

4   To be included in the pre-IPO award agreements.
5   To be deleted in the award agreements for awards made pursuant to the Calyxt, Inc. 2017 Restricted Stock Unit Sub-Plan for French Employees and Directors.

 

5


8. Termination of Relationship . Following the date of termination of Participant’s Continuous Service Status for any reason, including the Participant’s death or Disability (the “ Termination Date ”), other than a termination for Cause, Participant may continue to hold the vested portion of the Award, only as set forth in the Notice and this Section 8. The unvested portion of the Award on the Termination Date shall be forfeited on such date. 6 Notwithstanding the foregoing, any Award granted to an individual who is nominated to become a Director and is not an Employee or Consultant or a director of a Parent at the time of grant shall be forfeited in its entirety if such individual does not commence providing services to the Company within 12 months after the date of grant of such Award.

9. Non-Transferability of RSUs . This Award may not be transferred in any manner otherwise than by will or by the laws of descent or distribution. The terms of this Award shall be binding upon the executors, administrators, heirs, successors and assigns of Participant.

10. Not Salary, Pensionable Earnings or Base Pay . The Participant acknowledges that the Award shall not be included in or deemed to be a part of (a) salary, normal salary or other ordinary compensation, (b) any definition of pensionable or other earnings (however defined) for the purpose of calculating any benefits payable to or on behalf of the Participant under any pension, retirement, termination or dismissal indemnity, severance benefit, retirement indemnity or other benefit arrangement of the Company or any Subsidiary or (c) any calculation of base pay or regular pay for any purpose.

11. Forfeiture Upon Breach of Certain Other Agreements . The Participant’s breach of any non-competition, non-solicitation, confidentiality, non-disparagement, assignment of inventions or other intellectual property agreement that the Participant may be a party to with the Company or any Affiliate, in addition to whatever other equitable relief or monetary damages that the Company or any Affiliate may be entitled to, shall result in automatic rescission, forfeiture, cancellation or return of any Shares (whether or not vested) held by the Participant.

12. Recoupment/Clawback . This Award may be subject to recoupment or “clawback” as may be required by Applicable Laws or by any applicable Company policy or arrangement, as it may be established or amended from time to time.

13. [Lock-Up Agreement . In connection with any initial public offering of the Company’s securities and upon request of the Company or the underwriters managing any underwritten offering of the Company’s securities, Participant hereby agrees not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any securities of the Company however and whenever acquired (other than those included in the registration) without the prior written consent of the Company or such underwriters, as the case may be, during the period commencing as of 18 days prior to and ending 180 days, or such lesser period of time as the relevant underwriters may permit, after the effective date of a registration statement covering any public offering of the Company’s securities or, if required by such underwriter, such longer period of time as is necessary to enable such underwriter to issue a research report or make a public appearance that relates to an earnings release or announcement by the Company within 18 days before or after the

 

6  

To be deleted in award agreements for awards made pursuant to the Calyxt, Inc. 2017 Restricted Stock Unit Sub-Plan for French Employees and Directors.

 

6


date that is 180 days after the effective date of the registration statement relating to such initial public offering, but in any event not to exceed 198 days following the effective date of the registration statement relating to such initial public offering and to execute an agreement reflecting the foregoing as may be requested by the underwriters at the time of the public offering. The Company is hereby authorized to impose stock transfer instructions to its transfer agent (which may the Company itself) in order to enforce the above restrictions.] 7

14. [Corporate Transaction . Notwithstanding the above, if a corporate transaction constitutes a Triggering Event and the Participant retains his or her Continuous Service Status, the Award shall become vested under the formula in Section 3.] 8

15. Effect of Agreement . Participant acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof (and has had an opportunity to consult counsel regarding the Award terms), and hereby accepts this Award and agrees to be bound by its contractual terms as set forth herein and in the Plan. Participant hereby agrees to accept as binding, conclusive and final all decisions and interpretations of the Plan Administrator regarding any questions relating to this Award. In the event of a conflict between the terms and provisions of the Plan and the terms and provisions of the Notice and this Agreement, the Plan terms and provisions shall prevail.

16. Miscellaneous .

(a) Governing Law; Waiver of Jury Trial . This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law. BY RECEIPT OF THIS AWARD, THE PARTICIPANT WAIVES ANY RIGHT THAT THE PARTICIPANT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE PLAN.

(b) Participant Undertaking; Acceptance . The Participant agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or give effect to any of the obligations or restrictions imposed on either the Participant or the Award pursuant to this Agreement. The Participant acknowledges receipt of a copy of the Plan and this Agreement and understands that material definitions and provisions concerning the Award and the Participant’s rights and obligations with respect thereto are set forth in the Plan. The Participant has read carefully, and understands, the provisions of this Agreement and the Plan.

(c) Dispute Resolution . Any dispute or claim arising out of, under or in connection with the Plan or any Award Agreement shall be submitted to arbitration in Delaware and shall be conducted in accordance with the rules of, but not necessarily under the auspices of, the American Arbitration Association rules in force when the notice of arbitration is submitted. The arbitration shall be conducted before an arbitration tribunal, one selected by the Company, one selected by the Participant, and the third selected by the first two. The Participant and the Company agree that such arbitration will be confidential and no details, descriptions, settlements or other facts concerning such arbitration shall be disclosed

 

7   To be included in the pre-IPO award agreements.
8  

To be included in the pre-IPO award agreements.

 

7


or released to any third party without the specific written consent of the other party, unless required by law or court order or in connection with enforcement of any decision in such arbitration. Any damages awarded in such arbitration shall be limited to the contract measure of damages, and shall not include punitive damages.

(d) Entire Agreement; Enforcement of Rights . This Agreement, together with the Notice to which this Agreement is attached and the Plan, sets forth the entire agreement and understanding of the parties relating to the subject matter herein and therein and merges and supersedes all prior and contemporaneous discussions, arrangements, agreements and understandings, both oral and written, whether in term sheets, presentations or otherwise, between the parties with respect to the subject matter hereof.

(e) Amendment; Waiver . Except as contemplated under the Plan, no modification of or amendment to this Agreement that has a material adverse effect on the Participant, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement; provided that the Company may amend or modify this Agreement without the Participant’s consent in accordance with the provisions of the Plan or as otherwise set forth in this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party; provided that no waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other or subsequent breach or condition, whether of like or different nature. Any amendment or modification of or to any provision of this Agreement, or any waiver of any provision of this Agreement, shall be effective only in the specific instance and for the specific purpose for which made or given.

(f) Severability . If one or more provisions of this Agreement are held to be unenforceable under Applicable Laws, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement and a substantially similar provision shall be inserted that as closely as possible reflects the intent of the parties shall be substituted in place of such unenforceable provision, (ii) the balance of this Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of this Agreement shall be enforceable in accordance with its terms.

(g) Notices . Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient when delivered personally or sent by telegram or fax or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party’s address as set forth below or as subsequently modified by written notice:

If to the Company:

Calyxt, Inc.

600 County Rd D West #8

New Brighton, MN 55112

Attention:

Email:

 

8


If to the Participant:

At the Participant’s most recent address in the Company’s records.

(h) Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

(i) Successors and Assigns; No Third-Party Beneficiaries . The rights and benefits of this Agreement shall inure to the benefit of, and be enforceable by the Company’s successors and assigns. The rights and obligations of Participant under this Agreement may not be assigned without the prior written consent of the Company. Nothing in this Agreement, express or implied, is intended to confer on any Person other than the Company and the Participant, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

17. Data Privacy Notice and Consent . By participating in the Plan, the Participant consents to the holding and processing of personal information provided by the Participant to the Company or any subsidiary, trustee or third-party service provider, for all purposes relating to the operation of the Plan. These include, but are not limited to:

(a) administering and maintaining Participant records;

(b) providing information to the Company, Subsidiaries, trustees of any employee benefit trust, registrars, brokers or third-party administrators of the Plan;

(c) providing information to future purchasers or merger partners of the Company or any subsidiary, or the business in which the Participant works; and

(d) transferring information about the Participant to any country or territory that may not provide the same protection for the information as the Participant’s home country.

[Signature Page Follows]

 

9


IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be executed by their officers thereunto duly authorized, effective as of the Date of Grant set forth in the accompanying Notice.

 

THE COMPANY:
CALYXT, INC.
By:  

 

  Name:
  Title:
PARTICIPANT:

 

[Name]

 

10


I,         , spouse of [•], have read and hereby approve the foregoing terms set forth in this Agreement [and the Adoption Agreement] 9 . In consideration of the Company’s granting my spouse the right to receive Shares as set forth in this Agreement, I hereby agree to be irrevocably bound by this Agreement [and the Adoption Agreement] 10 and further agree that any community property or other such interest shall hereby by similarly bound by this Agreement [and the Adoption Agreement] 11 . I hereby appoint my spouse as my attorney-in-fact with respect to any amendment or exercise of any rights under this Agreement [and the Adoption Agreement] 12 .

 

Spouse of [•] (if applicable)

 

 

9   To be included in the pre-IPO award agreements.
10   To be included in the pre-IPO award agreements.
11   To be included in the pre-IPO award agreements.
12   To be included in the pre-IPO award agreements.

 

11


EXHIBIT A 13

CALYXT, INC.

2017 OMNIBUS INCENTIVE PLAN

ADOPTION AGREEMENT TO THE COMPANY STOCKHOLDERS AGREEMENT

This Adoption Agreement (“ Adoption Agreement ”) is executed on                     20    , by the undersigned (the Holder ) pursuant to the terms of that certain Stockholders Agreement dated as of December 3, 2014 (the “Agreement” ), by and among the Company and certain of its Stockholders, as such Agreement may be amended or amended and restated hereafter. Capitalized terms used but not defined in this Adoption Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Adoption Agreement, the Holder agrees as follows.

1.1 Acknowledgement . Holder acknowledges that Holder is acquiring certain shares of The capital stock of the Company (the Stock ), for one of the following reasons (Check the correct box):

❑ As a transferee of Shares from a party in such party’s capacity as an “Stockholder” bound by the Agreement, and after such transfer, Holder shall be considered a “Stockholder” for all purposes of the Agreement.

❑ As a new Stockholder in accordance with Subsection 4.1(a) of the Agreement, in which case Holder will be a “Stockholder” for all purposes of the Agreement.

1.2 Agreement . Holder hereby (a) agrees that the Stock, and any other shares of capital stock or securities required by the Agreement to be bound thereby, shall be bound by and subject to the terms of the Agreement and (b) adopts the Agreement with the same force and effect as if Holder were originally a party thereto.

1.3 Notice . Any notice required or permitted by the Agreement shall be given to Holder at the address or facsimile number listed below Holder’s signature hereto.

 

     ACCEPTED AND AGREED:
HOLDER:      CALYXT, INC.

 

     By:  

 

Name:   

 

     Title:  

 

 

13   To be included in the pre-IPO award agreements.

 

12

Exhibit 10.24

TERMS AND CONDITIONS OF THE WARRANTS (THE« WARRANTS »)

ABSTRACT OF THE MINUTES OF THE BOARD MEETING HELD ON [•]

TRANSLATION FOR INFORMATION PURPOSES ONLY

Issuance of warrants to the benefit of directors and consultants

After deliberation, the board, unanimously:

using the delegation granted to it pursuant to the [•] resolution of the combined ordinary and extraordinary general meeting held on [•],

decided the issuance of a total number of [•] Warrants, the terms of which are defined below, each giving the right to subscribe an ordinary share of a nominal value of EUR [•] for an exercise price of EUR [•],

decided that the subscription of the Warrants is reserved to the non-employee directors of the Company and consultants listed in the Annex [•], and in the proportions set in said Annex [•],

decided that the Warrants are each issued at a price of EUR [•],

decided that the Warrants, shall be fully paid up, at the time of their subscription, in cash or by way of offset against receivables held on the Company,

decided that the subscription will be received as from the end of this board meeting and until [•] included and that the subscription period will be closed by anticipation as soon as all Warrants will have been subscribed by the above mentioned subscribers,

specified that each issue of Warrants is independent, so that the possible non-subscription of the Warrants by one of the aforementioned beneficiaries will not jeopardize the issue carried out to the benefit of another beneficiary,

decided that the exercisable Warrants are freely transferrable, they are issued in the nominative form and will be registered in the Company’s accounts,

reminded that the shares subscribed pursuant to the exercise of the Warrants, will have to be fully paid up, at the time of this subscription, in cash or by way of offset against receivables held on the Company,

reminded that the new shares issued to the benefit of the beneficiary pursuant to the exercise of the Warrants will be submitted to all provisions of the by-laws and will have the same rights as from the first day of the fiscal year during which they have been issued,

 


decided that the Warrants so allocated, subject that they have been duly subscribed by the concerned beneficiary, could be exercised up to one third of the Warrants at the expiration of each year following their issuance, subject to

(i) regarding the directors, the continued presence of the beneficiary within the Company’s board of directors during the considered year and, at the latest, within ten (10) year as from their issuance, i.e. at the latest on [•], it being specified that (i) the Warrants that would not be exercisable at the date on which the considered director would cease its function, as well as the Warrants exercisable but which have not been already exercised at the expiration of the above period of 10 years would lapse automatically, and (ii) the number of Warrants that can be exercised pursuant to the above vesting will also be rounded to the lowest full number.

(ii) regarding the consultants, that the consultancy agreement concluded with a company of the Cellectis group have been in force during the considered year, and at the latest within ten (10) year as from their issuance, i.e. at the latest on [•], it being specified that (i) the Warrants that will not be exercisable at the date on which the concerned beneficiary would cease to hold any function of consultant for the Cellectis Group, and the Warrants which will not be exercised at the expiration of the above period of 10 years, would lapse automatically, and (ii) the number of Warrants that can be exercised pursuant to the above vesting will also be rounded to the lowest full number.

 

2

Exhibit 10.25

CALYXT, INC.

2017 RESTRICTED STOCK UNIT SUB-PLAN

FOR FRENCH EMPLOYEES AND DIRECTORS

1. Introduction . The Board of Calyxt, Inc. has established a 2017 Omnibus Incentive Plan (the “ Plan ”) for the benefit of certain employees and directors of the Company and its subsidiary, parent and affiliate companies, including Cellectis S.A., which held directly or indirectly at least 10% of the share capital of the Company. Section 20 of the Plan specifically authorizes the Administrator to adopt procedures and forms relating to the Plan as it deems advisable with respect to foreign participants. The Board, therefore, intends to establish a sub-plan for France of the Plan for the purpose of granting restricted stock units which may qualify for the favourable tax and social security treatment in France applicable to shares granted under Sections L. 225-197-1 to L. 225-197-6 of the French Commercial Code as amended to qualifying employees and directors under the Plan who are resident in France for French tax purposes.

The terms of the Plan, as subsequently amended and as set out in Appendix 1 hereto, shall, subject to the modifications in the following rules, constitute the rules of the 2017 Omnibus Incentive Plan for French Participants.

Under this Sub-Plan, the qualifying employees and directors will be granted only restricted stock units. The provisions of Sections 8 to 13 of the 2017 Omnibus Incentive Plan permitting the grant of Nonstatutory Stock Options, Incentive Stock Options, SARs, restricted stocks, Performance Awards, Deferred Awards, Other Cash-Based Awards or Other Share-Based Awards are not applicable to grants made under this Sub-Plan. The grant of restricted stock units is authorized under the Section 10 of the 2017 Omnibus Incentive Plan.

For the avoidance of doubt, this Sub-Plan shall become effective provided that the Common Stocks of Calyxt, Inc. are listed on a regulated market of the European Union or on the National Association of Securities Dealers Inc. Automated Quotation (“Nasdaq”) System or on the New York Stock Exchange in the United States of America.

2. Definitions . The following definitions of the Plan are amended as follows:

(a) “ Affiliate ” means any corporation (other than the Company) of which at least fifty percent (50%) of the share capital or voting rights is held directly or indirectly by a company which owns directly or indirectly at least fifty percent (50%) of the share capital or voting rights of the Company.

(b) “ Award ” means any award of an RSU under this Sub-Plan.

(c) “ Director ” means, as of any date and provided that the Common Stock is listed on a regulated market of the European Union or on the Nasdaq System or on the New York Stock Exchange in the United States of America, any French resident who is a member of the board of director of any Affiliate or Parent;


it being specified that no Awards of RSUs may be made to a member of the board of directors of the Company or any Subsidiary in such capacity.

For French Affiliate and Parent, the members of the board of director eligible to be granted an Award under this Sub-Plan, subject to this definition of Director, are limited to the chairman of the board of directors (président du conseil d’administration), the general manager (directeur général) and the deputy general managers (directeurs généraux délégués).

(d) “ Disability ” means total and permanent disability, as defined under Applicable Laws, i.e., a disability as determined in categories 2 and 3 under Section L. 341-4 of the French Social Security Code, as amended.

(e) “ Employee ” means, as of any date and provided that the Common Stock is listed on a regulated market of the European Union or on the Nasdaq System or on the New York Stock Exchange in the United States of America, any French resident who is employed by the Company or by any Subsidiary, Affiliate or Parent under the terms and conditions of an employment contract.

(f) “ Parent ” means a corporation which owns directly or indirectly at least ten percent (10%) of the share capital or voting rights of the Company.

(g) “ Restricted Stock Unit ” or “ RSU ” means a contractual right granted pursuant to Section 10 of the Plan that is denominated in Shares. Each RSU represents a right to receive one Share at no cost in accordance with conditions set forth in Articles L. 225-197-1 through L. 225-197-6 of the French Commercial Code. Notwithstanding any provisions of the Plan, a French Participant holding RSUs granted under the Sub-Plan shall not be entitled to shareholders’ rights prior to the Vesting Date (including dividend and voting rights); nor shall a French Participant be entitled to receive on vesting an amount in cash in lieu of Shares.

(h) “ Subsidiary ” means a corporation of which at least ten percent (10%) of the share capital or voting rights is held directly or indirectly by the Company.

Section 1 of the Plan is also completed as follows:

(a) “ French Participant ” means a Participant whose Award is issued in reliance on Sections L. 225-197-1 through L. 225-197-16 of the French Commercial Code.

(b) “ Sub-Plan ” means this Calyxt, Inc. 2017 Restricted Stock Unit Sub-Plan for French Employees and Directors.

(c) “ Grant Date ” means the date on which the Administrator both (i) designates the French Participants and (ii) specifies the terms and conditions of the RSUs, including the number of Shares to be issued at a future date, the conditions for the vesting of the RSUs, and the conditions of the transferability of the Shares once issued.

 

2


(d) “ Vesting Date ” means the date on which the RSUs become vested, as specified by the Administrator. In principle, the Shares underlying the RSUs are issued upon vesting. To qualify for the French favourable tax and social security regime, such Vesting Date shall not occur prior to the first anniversary of the Grant Date, as required under Section L. 225-197-1 of the French Commercial Code, as amended, or in the French Tax Code or in the French Social Security Code, as amended.

3. Eligibility .

(a) Recipients of Grants . Section 3(a) of the Plan is amended as follows:

Any Employee or Director shall be eligible to be selected to receive an Award under the Plan, to the extent an offer of an Award or a receipt of such Award is permitted by Applicable Laws or accounting or tax rules and regulations.

(b) Type of Award . Section 3(b) of the Plan is amended as follows:

Each Award shall be designated in the Award Agreement as a RSU granted under the Sub-Plan.

(c) Substitute Awards . Section 3(c) of the Plan is not applicable for Awards made further to the present Sub-Plan.

(d) No Employment Rights . The present Sub-Plan does not amend Section 3(d) of the Plan.

4. Administration of the Plan .

The present Sub-Plan does not amend Section 4 of the Plan.

5. Stock Subject to the Sub-Plan .

The present Sub-Plan does not amend Section 5 of the Plan.

6. Limitations on Grants to Participants .

Section 6 is amended as follows:

(a) Subject to adjustment as provided in Section 17 below, the maximum aggregate number of Shares that may be subject to Awards granted to any one person under the Plan for any fiscal year of the Company shall be RSUs that relate to no more than 200,000 Shares.

(b) Notwithstanding any provision in the Plan to the contrary, a grant of RSUs may not result in a the total number of Shares resulting from RSUs granted to French Participants in accordance with conditions set forth in Articles L. 225-197-1 through L. 225-197-6 of the French Commercial Code exceeding ten percent (10%) of the Company’s share capital.

 

3


(c) Notwithstanding any provision in the Plan to the contrary, RSUs may not be granted to French Participant owning more than ten percent (10%) of the Company’s share capital.

(d) Notwithstanding any provisions in the Plan to the contrary, a grant of RSUs may not result in a French Participant holding more than ten percent (10%) of the Company’s Shares.

(e) The Shares issued under the Plan may be authorized, but unissued or reacquired Shares. If an Award should be forfeited, expire, terminate, lapse or become unexercisable for any reason without having been exercised in full or be settled in cash, in whole or in part, the unpurchased Shares that were subject thereto shall, unless the Plan shall have been terminated, become available for future grants under the Plan. Any Shares which are retained by the Company upon exercise of an Award in order to satisfy (i) the exercise or purchase price for such Award or (ii) any withholding taxes due with respect to such Award and Shares issued under the Plan and later repurchased by the Company pursuant to any repurchase right that the Company may have shall not be available for future grants under the Plan.

7. Term of the Sub-Plan .

Section 7 of the Plan is completed as follows:

The Sub-Plan shall become effective as of the date of its adoption by the Board. It shall continue in effect until the termination of the Plan unless terminated earlier under Section 20 of the Sub-Plan.

8. Options .

Section 8 of the Plan is not applicable for Awards made further to the present Sub-Plan.

9. SARs .

Section 9 of the Plan is not applicable for Awards made further to the present Sub-Plan.

10. Restricted Stocks and RSUs .

Section 10 of the Plan is amended as follows:

The Administrator is authorized to grant Awards of RSUs to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Administrator shall determine:

(a) Vesting of RSUs . RSUs will not vest prior to the relevant anniversary of the Grant Date specified by the Administrator and in any case will not vest prior to the first anniversary of the Grant Date. However, notwithstanding the above, in the event of the death of a French Participant, all of his or her outstanding RSUs shall vest and Shares shall be issued as set forth in Section 14 of this Sub-Plan.

 

4


(b) Holding of Shares . The French Participants must hold the Shares issued pursuant to the RSUs until the relevant anniversary of the Vesting Date specified by the Administrator, if any, and in any case until the second anniversary of the Grant Date, or such other period as is required to comply with the minimum mandatory holding period applicable to shares underlying French-qualified RSUs under Section L. 225-197-1 of the French Commercial Code, as amended or under the French Tax Code or French Social Security Code as amended. This holding period will continue to apply even after the French Participant is no longer an Employee or Director.

However, notwithstanding the above, in the event of the death or Disability of a French Participant, his or her heirs or the French Participant may freely sell the Shares issued pursuant to the RSUs.

(c) French Participant’s Account . The Shares issued to a French Participant shall be recorded in an account in the name of the French Participant with the Company or a broker or in such other manner as the Company may otherwise determine to ensure compliance with applicable restrictions provided by law.

(d) Cash Dividends . French Participants shall not be granted any cash dividends with respect to a RSU, applicable to the period commencing on the Grant Date and terminating on the Vesting Date.

11. Performance Awards .

Section 11 of the Plan is not applicable for Awards made further to the present Sub-Plan.

12. Deferred Awards .

Section 12 of the Plan is not applicable for Awards made further to the present Sub-Plan.

13. Other Cash-Based Awards and Other Share-Based Awards .

Section 13 of the Plan is not applicable for Awards made further to the present Sub-Plan.

14. Exercise of Awards .

(a) General . The present Sub-Plan does not amend Section 14(a) of the Plan.

 

5


(b) Termination of Employment or Director Relationship . Section 14(b) of the Plan is amended as follows:

The Administrator shall establish and set forth in the applicable Award Agreement the terms and conditions upon which an Award shall remain exercisable, if at all, following termination of a Participant’s Continuous Service Status, which provisions may be waived or modified by the Administrator at any time. To the extent that an Award Agreement does not specify the terms and conditions upon which an Award shall terminate upon termination of a Participant’s Continuous Service Status, the following provisions shall apply:

(i) General Provisions . If the Participant (or other person entitled to receive the underlying Shares) does not satisfy the conditions for the vesting of the RSUs as specified by the Administrator upon the Grant Date, the Award shall revert to the Sub-Plan. In no event may any Award be vested after the expiration of the Award term as set forth in the Award Agreement (and subject to Section 8(a) above), except in the event of death of a French Participant as described below.

(ii) Termination other than Upon Disability or Death . In the event of termination of a Participant’s Continuous Service Status other than under the circumstances set forth in subsection (iii) below, unvested RSUs by the French Participants at the time of the Employee or Director’s termination will be forfeited as of the date of such termination.

(iii) Death of Participant . In the event of the death of a French Participant, the unvested RSUs held by the French Participants at the time of death are transferable to the French Participant’s heirs. The Company shall issue the underlying Shares to the French Participant’s heirs, at their request, if such request occurs within six months following the death of the French Participant, as provided for in the Award Agreement. If the French Participant’s heirs do not request the issuance of the Shares underlying the RSUs within six months following the French Participant’s death, the RSUs will be forfeited.

15. Taxes . Section 15 of the Plan is amended as follows:

As a condition of the grant and vesting of an Award, the Participant (or in the case of the Participant’s death or a permitted transferee, the person holding the Award) shall make such arrangements as the Administrator may require for the satisfaction of any French and U.S. federal, state or local withholding obligations or foreign tax withholding obligations that may arise in connection with such Award. The Company shall not be required to issue any Shares under the Plan until such obligations are satisfied.

16. Non-Transferability of Awards . Section 16 of the Plan is amended as follows:

An Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution during the lifetime of the Participant.

 

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17. Adjustments Upon Changes in Capitalization or Merger .

Section 17 of the Plan is completed as follows:

If the modification or adjustment is contrary to the conditions set forth in Article L. 225-197-1 through L. 225-197-6 of the French Commercial Code, the Awards may no longer qualify as French-qualified RSUs. If the Awards no longer qualify as French-qualified RSUs, the Administrator may, provided it is authorized to do so under the Plan, determine to lift, shorten or terminate certain restrictions applicable to the vesting of the Awards of RSUs or the sale of the shares which may have been imposed under this Sub-Plan or in the Award Agreement delivered to the Participant.

18. Time of Granting Options .

Section 18 of the Plan is not applicable for Awards made further to the present Sub-Plan.

19. General Provisions Applicable to Awards .

Section 19 of the Plan is amended as follows:

(a) Awards shall be granted for no consideration.

(b) Awards may, in the discretion of the Administrator, be granted either alone or in addition to or in tandem with any other Award or any award granted under any other plan of the Company. Awards granted in addition to or in tandem with other Awards, or in addition to or in tandem with awards granted under any other plan of the Company, may be granted either at the same time as or at a different time from the grant of such other Awards or awards.

(c) No Award, no right under any Award and no Shares underlying an Award shall be assignable, alienable, saleable or transferable by a French Participant until the end of the holding period as defined under Section 10(b) of this Sub-Plan otherwise than by will or pursuant to the laws of descent and distribution.

(d) All certificates for Shares and/or other securities delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Administrator may deem advisable under the Plan or the rules, regulations and other requirements of the Securities Exchange Commission, any stock market or exchange upon which such Shares or other securities are then quoted, traded or listed, and any applicable securities laws, and the Administrator may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.

(e) The Administrator may impose restrictions on any Award with respect to non-competition, confidentiality and other restrictive covenants as it deems necessary or appropriate in its sole discretion.

20. Amendment and Termination .

The present Sub-Plan does not amend Section 20 of the Plan.

 

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21. Conditions Upon Issuance of Shares .

The present Sub-Plan does not amend Section 21 of the Plan.

22. Beneficiaries .

Section 22 of the Plan is not applicable for Awards made further to the present Sub-Plan.

23. Addenda .

The present Sub-Plan does not amend Section 23 of the Plan.

24. Cancellation or “Clawback” of Awards .

The present Sub-Plan does not amend Section 24 of the Plan.

25. Restrictive Covenants .

The present Sub-Plan does not amend Section 25 of the Plan.

26. Compliance with Section 409A and 457A of the Code .

Section 26 of the Plan is not applicable for Awards made further to the present Sub-Plan.

27. Successors and Assigns .

The present Sub-Plan does not amend Section 27 of the Plan.

28. Data Privacy .

The present Sub-Plan does not amend Section 28 of the Plan.

29. Governing Law .

The present Sub-Plan does not amend Section 29 of the Plan.

30. Waiver of Jury Trial .

The present Sub-Plan does not amend Section 30 of the Plan.

31. Dispute Resolution .

The present Sub-Plan does not amend Section 31 of the Plan.

Approved by the Board on June 23, 2017.

 

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