UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 
FORM 8-K/A
(Amendment No. 1)
 

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

Date of Report (Date of earliest event reported):
October 17, 2016

 
IMMUNE DESIGN CORP.
(Exact name of registrant as specified in its charter)
 
Delaware
001-36561
26-2007174
(state or other jurisdiction of incorporation)
(Commission File Number)
(I.R.S. Employer Identification No.)

1616 Eastlake Ave. E., Suite 310
Seattle, Washington
 
98102
(Address of principal executive offices)
 
(Zip Code)

Registrant's telephone number, including area code: (206) 682-0645

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨      Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨      Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨      Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨      Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))




     



Explanatory Note
On October 21, 2016, Immune Design Corp. (the “ Company ”) filed a Current Report on Form 8-K (the “ Original Report ”) to report, among other things, that the Company entered into a Confidential Settlement Agreement (the “ Settlement Agreement ”) and a License Agreement (the “ License Agreement ”) with TheraVectys SA (“ TVS ”). This Current Report on Form 8-K/A amends the Original Report solely to file the Settlement Agreement and License Agreement as exhibits hereto. The other disclosures made in the Original Report remain unchanged.
Item 9.01. Financial Statements and Exhibits.
(d)    Exhibits
Exhibit
Number
 
Description
 
 
10.1†

 
Confidential Settlement Agreement, by and between the Company and TheraVectys SA, a French société anonyme, dated October 17, 2016.
 
 
 
10.2†

 
License Agreement, by and between the Company and TheraVectys SA, a French société anonyme, dated October 17, 2016.
Confidential portions of this exhibit have been redacted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request in accordance with Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


 



SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

IMMUNE DESIGN CORP.


By:     /s/ Carlos Paya, M.D., Ph.D.    
Carlos Paya, M.D., Ph.D.
President and Chief Executive Officer

Dated: March 3, 2017


 



EXHIBIT INDEX
Exhibit
Number
 
Description
 
 
10.1†

 
Confidential Settlement Agreement, by and between the Company and TheraVectys SA, a French société anonyme, dated October 17, 2016.
 
 
 
10.2†

 
License Agreement, by and between the Company and TheraVectys SA, a French société anonyme, dated October 17, 2016.

Confidential portions of this exhibit have been redacted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request in accordance with Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


 
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit 10.1

CONFIDENTIAL SETTLEMENT AGREEMENT

THIS CONFIDENTIAL SETTLEMENT AGREEMENT (this “Agreement” ), which shall be effective as of October 17, 2016 (the “Effective Date” ), is entered into by and between Theravectys, SA, a French societe anonyme (“ TVS ”) and Immune Design Corp., a Delaware corporation (“ IMDZ ”) (with each of TVS and IMDZ being sometimes referred to herein, individually, as a “ Party ” and, collectively, as the “ Parties ”).

WHEREAS, TVS is a biotechnology company headquartered in Paris, France; and

WHEREAS, IMDZ is a biotechnology company headquartered in Seattle, Washington, USA; and

WHEREAS, TVS and IMDZ have been involved in a Dispute (defined below) relating to their separate development of lentiviral vector technology, including multiple actions and proceedings in the United States and Belgium and before the European Patent Office (the “EPO” );

WHEREAS, each Party denies, and continues to deny, the allegations asserted by the other Party in the Dispute; and
 
WHEREAS, nevertheless, to avoid the costs, disruption and distraction of further litigation, and without admitting the validity of any allegation made by either Party in the Dispute or any other allegations that have been asserted or may be asserted by either Party in the Dispute or otherwise, or any liability with respect thereto, the Parties have concluded that it is desirable that all of their claims and potential claims be settled, and that all pending actions and proceedings comprising the Dispute be dismissed with prejudice; and

WHEREAS, the Parties also intend for TVS to grant a worldwide non-exclusive license to IMDZ of certain lentiviral vector technology pursuant to the terms and conditions of the License Agreement attached as Exhibit A hereto (the “License Agreement” ).

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

1. Definitions . As used in this Agreement, the following terms have the meanings set forth below:

a. Applicable Law ” shall have the definition set forth in the License Agreement.

b. Dispute ” means all current and past disputes in which TVS and IMDZ have been or currently are involved, including in Delaware (United States), Charleroi (Belgium) and Mons (Belgium), as well as before the EPO, including the following:

1



i.
The “United States Proceedings” : All claims that were asserted or could have been asserted, based on facts disclosed or not disclosed, in the civil action filed by TVS against IMDZ in the Court of Chancery in the State of Delaware alleging tortious interference, misappropriation of trade secrets, unfair competition and unjust enrichment (Civil Action No. 9950-VCN), and all claims that were asserted or could have been asserted, based on facts disclosed or not disclosed, in the civil action filed by TVS against IMDZ in the United States District Court for the District of Delaware (C.A. No. 1:13-cv-01749-LPS);

ii.
The “EPO Proceedings” : All actions filed by TVS opposing any IMDZ patent, including the Opposition against IMDZ Patent No. EP 2 456 786 filed by TVS in October 2014 in the European Patent Office; and

iii.
The “Belgian Proceedings” : All claims or actions that were asserted or could have been asserted, based on facts disclosed or not disclosed, by TVS in Belgium in the case before the Mons Court of Appeal registered under RG No 14/RG/771 including any kind of appeal against the judgment made by said court on June 29, 2015; all other claims or actions that were asserted or could have been asserted, based on facts disclosed or not disclosed, by IMDZ before any Court in relation to the saisie-contrefaçon performed by TVS at the premises of Henogen in Gosselies by virtue of the order issued on April 11, 2014 and confirmed on July 11, 2014 by the Presiding judge of the Mons Commercial Court (the saisie-contrefaçon ); all claims or actions that were asserted or could have been asserted, based on facts disclosed or not disclosed, in the proceedings commenced by TVS on or about September 9, 2013 before the presiding judge of the Hainaut – Charleroi Division – Commercial Court; including the voluntary intervention by IMDZ in the appeal filed by HNG against the judgment of the Mons Commercial Court dated 11 July 2014 validating the saisie-contrefacon and since then withdrawn by HNG.

c. Financial Consideration ” means the full payment by IMDZ of the financial terms set forth in Section 2 of this Agreement.

d. Field ” shall have the definition set forth in the License Agreement.

e. Governmental Authority ” shall have the definition set forth in the License Agreement.


2
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


f. “HNG” refers collectively to Henogen, SA, its parent, Novasep S.A., and any of their past, present, and future parent or controlling entities, predecessors, successors, affiliates, divisions or subsidiaries.

g. “IMDZ Related Entities” means IMDZ and any of its past, present, and future parent entities, controlling persons, predecessors, successors, affiliates and subsidiaries, and each and all of their respective past or present officers, directors, investors, shareholders, stockholders, partners, principals, representatives, employees, agents, members, managers, joint ventures, attorneys, legal representatives, insurers and assigns, and any other person or entity which could now or hereafter assert a claim on their behalf.

h. IMDZ-HNG Agreement” means the Master Agreement for Development & Manufacturing Services between IMDZ and HNG dated April 27, 2012, its appendices, addenda, amendments and any previous or subsequent agreement in direct or indirect relation, including but not limited to Addendum Nr. 3 to P175 Project between IMDZ and HNG dated January 24, 2014 and the agreements set forth in the two official letters from counsel for IMDZ to counsel for HNG dated February 13, 2014 and confirmed by letter from counsel for HNG to counsel for IMDZ dated March 18, 2014.

i. “Institut Pasteur Consent” shall have the definition set forth in the License Agreement.

j. Institut Pasteur License Agreement ” means the exclusive license entered into between TVS and Institut Pasteur, by virtue of a patent license agreement dated [*], as revised by the successive amendments dated [*], and any other amendments thereto.

k. “Licensed Product” shall have the definition set forth in the License Agreement.

l. “Materials” shall have the meaning set forth in Section 4(b).

m. “Material Adverse Effect” means, individually or in the aggregate, a material adverse effect on the earnings, business, properties, assets, liabilities, operations, condition (financial or otherwise) or prospects of a party and its subsidiaries taken as a whole or any effect which prevents or would prevent the consummation or performance of the transactions contemplated hereby.

n. New Manufacturer ” means any of [*] manufacturers or other parties identified by IMDZ to TVS in the manner set forth in paragraph 7(a) for any production of [*] on IMDZ’s behalf after [*]. For clarity, a New Manufacturer (1) includes any acquirer, successor, or assignee of such New Manufacturer, and (2) is also a Subcontractor. For avoidance of overlap with TVS, [*], including their acquirers, successors, and assignees, shall not be New Manufacturers. If, however, [*] merges with, acquires, is acquired by or otherwise combines with any New Manufacturer, the Parties will meet in good faith to reach an agreement regarding appropriate procedures and mechanisms to ensure that information will not be shared between or among the teams

3
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


and individuals performing work for TVS and those performing work for IMDZ on behalf of the resulting entity.

o. “Other TVS Patents” shall have the definition set forth in the License Agreement.

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

q. Services Agreements ” means those agreements [*] TVS has entered into with HNG to produce [*] and containing amongst others the following Clause 2.6: “[*]”

r. Subcontractor ” shall have the definition set forth in the License Agreement.

s. “TVS Related Entities” means TVS and any of its past, present, and future parent entities, controlling persons, predecessors, successors, affiliates and subsidiaries, and each and all of their respective past or present officers, directors, investors, shareholders, stockholders, partners, principals, representatives, employees, agents, members, managers, joint ventures, attorneys, legal representatives, insurers and assigns, and any other person or entity which could now or hereafter assert a claim on their behalf.

t. TVS Patent Portfolio ” shall have the definition set forth in the License Agreement.

u. Trigger Event ” means one or more of the following events, occurring on or after the Effective Date, alone or together, resulting in the receipt of cumulative net cash proceeds (e.g., exclusive of brokerage or underwriting fees) to IMDZ of at least twenty five million dollars ($25,000,000): (a) any public offering of IMDZ’s debt or equity securities, the primary purpose of which is capital raising; (b) any private placement of IMDZ’s debt or equity securities the primary purpose of which is capital raising; and (c) proceeds from any licensing transaction less any amounts IMDZ is obligated under the license transaction to spend for research and development activities.

2. Financial Consideration . As consideration for both the settlement of all claims and disputes between the Parties and as a non-contingent fee for the license contemplated in the License Agreement, IMDZ shall pay:

a.      Six million dollars ($6,000,000), into an interest-bearing escrow account to be held at a mutually-agreeable third-party institution, within thirty (30) days of the Effective Date of this Agreement (the “Upfront Payment” ). The Upfront Payment will be disbursed from escrow as follows:

i.
If, on or before December 31, 2016, (A) IMDZ has received written evidence that TVS has received the Institut Pasteur Consent as contemplated in Section 3 of this Agreement and Sections 6.2(e)-(g) of the License Agreement, and (B) all pending United States P

4
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


roceedings and Belgian Proceedings have been dismissed or resolved as contemplated in Section 4 of this Agreement, then 50% of the Upfront Payment ($3,000,000), exclusive of any interest earned while held in escrow, shall be paid promptly out of escrow to TVS upon the occurrence of the later of events (A) and (B). The remainder of the Upfront Payment, and all interest earned while held in escrow, shall remain in escrow until the final resolution of the EPO Proceedings (not including the expiration of any time to appeal, which TVS hereby covenants it shall not appeal). Upon such final resolution, if the scope of IMDZ Patent No. EP 2 456 786 remains unchanged, and if events (A) and (B) have occurred, then the remainder of the Upfront Payment, exclusive of any interest earned while held in escrow, shall be paid promptly out of escrow to TVS. If, upon the final resolution of the EPO Proceedings, the scope of IMDZ Patent No. EP 2 456 786 is reduced in any way, then 50% of the Upfront Payment ($3,000,000) shall be paid promptly out of escrow to IMDZ. Additionally, upon final resolution of the EPO Proceedings and the occurrence of events (A) and (B), all interest earned on any portion of the Upfront Payment while held in escrow shall be paid promptly to IMDZ.

ii.
If either of events (A) or (B) has not occurred on or before December 31, 2016, then the Upfront Payment shall remain in escrow, and $250,000 shall be paid out of escrow to IMDZ on the first day of each month, beginning on January 1, 2017, until both events (A) and (B) have occurred. Exclusive of any such amounts paid to IMDZ under this subparagraph, if both events (A) and (B) occur at any time between January 1, 2017 and December 31, 2017, then the remainder of the Upfront Payment will be paid out of escrow in accordance with subparagraph 2(a)(i).

iii.
If either of events (A) or (B) has not occurred on or before December 31, 2017, then the entire remainder of the Upfront Payment, inclusive of all interest earned while held in escrow, shall be paid promptly out of escrow to IMDZ.

For avoidance of doubt, TVS shall not be entitled to any portion of the Upfront Payment unless and until IMDZ has received written evidence that TVS has received the Institut Pasteur Consent as contemplated in Section 3 of this Agreement and Sections 6.2(e)-(g) of the License Agreement, and unless and until all pending United States Proceedings and Belgian Proceedings have been dismissed or resolved as contemplated in Section 4 of this Agreement. The parties will enter into an escrow agreement memorializing these material terms as part of the definitive documentation of this settlement, and will execute joint instructions to the escrow agent regarding the disbursement of funds consistent with this Paragraph; and


5
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


b.      One million two hundred fifty thousand dollars ($1,250,000), within thirty (30) days of the first occurrence of a Trigger Event (the “Contingent Payment” ).

3. License Agreement; Institut Pasteur Consent . Simultaneously with the execution of this Agreement, the Parties will execute the License Agreement attached as Exhibit A. Simultaneously with the execution of this Agreement or as promptly as practicable hereafter, TVS shall deliver to IMDZ the Institut Pasteur Consent as contemplated in Sections 6.2(e)-(g) of the License Agreement. It is understood and agreed by the Parties that the execution of the License Agreement and IMDZ’s receipt of written evidence that TVS has received the Institut Pasteur Consent are material terms of this Agreement.

4. Proceedings .

a.      Within ten (10) days of the Effective Date of this Agreement, TVS will file a Stipulation and Proposed Order of Final Dismissal with Prejudice, substantially in the form attached hereto as Exhibit B, to dismiss with prejudice the action initiated by TVS alleging tortious interference, misappropriation of trade secrets, unfair competition and unjust enrichment (Civil Action No. 9950-VCN in the Court of Chancery of the State of Delaware).

b.      Promptly after the Effective Date of this Agreement, IMDZ and TVS (and HNG, if HNG so agrees) will jointly apply before the Mons Commercial Court, or its Presiding Judge, for a decision ordering that any IMDZ materials, samples, plasmids, documents or other information (the “Materials” ): (1) [*], who performed the saisie-contrefaçon referenced in Section 1.b.iii at HNG (the “Expert” ), (2) placed under seal at the Court clerk offices, or (3) [*]; at IMDZ’s sole and exclusive election either be destroyed or returned to IMDZ’s offices in Seattle, Washington, USA. [*] TVS will use its best efforts to secure such destruction or return of the IMDZ Materials, and will cooperate with IMDZ in third party opposition proceedings against the saisie-contrefaçon , including as follows:

i.
[*];

ii.
IMDZ and TVS [*] will [*];

iii.
Prior to initiating the [*];

iv.
After the Materials are destroyed or returned in accordance with Section 4(b) above, the Parties [*] will request that [*];

v.
In the event that the Presiding judge [*];

vi.
IMDZ will [*] and TVS will use its best efforts to [*]; and

vii.
The Parties agree that there shall be no restrictions or limitations on IMDZ or any IMDZ Related Entity’s use of any Materials returned or delivered to IMDZ in connection with this Section 4.b.

6
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



c.      Except as provided in Section 4.b of this Agreement, within ten (10) days of the Effective Date of this Agreement IMDZ will withdraw, or as applicable, not file any action in the Belgian Proceedings in Mons in accordance with Article 821 of the Belgian Judicial Code (“ désistement d’action” ) whereby each party will bear its own legal costs.

d.      IMDZ will not file any appeal against the judgment handed down by the Mons Court of Appeal on June 29, 2015.

e.      Neither TVS nor any TVS Related Entity will enforce or seek to enforce against IMDZ or any IMDZ Related Entity the orders handed down by the Presiding Judge of the Charleroi Court on September 10, 2013 and October 7, 2013.

f.      Within ten (10) days of the Effective Date of this Agreement, TVS will file a letter at the EPO, substantially in the form attached hereto as Exhibit C, to withdraw its Opposition against European Patent No EP 2 456 786, and to confirm it has no objection to maintenance of the patent as granted.  TVS agrees that neither TVS nor any TVS Related Entity will file any additional submissions at the European Patent Office related to European Patent No EP 2 456 786.

g.      Each Party represents that, except as set forth in Section 1.b of this Agreement, it is aware of no other past, present or presently contemplated claims, lawsuits or proceedings between any IMDZ Related Entity and any TVS Related Entity.

5. Mutual Release and Covenant Not to Sue .

a.      In consideration of the mutual obligations set forth in this Agreement, and conditioned upon the execution of the License Agreement attached as Exhibit A, each Party, on behalf of itself and its Related Entities (the “Releasing Parties” ), hereby releases the other Party and its Related Entities (the “Released Parties” ), from any and all past, present or future legal proceedings, claims, demands, actions, interventions, injunctions, monetary or equitable relief, protective, provisional or investigative measures, enforcement proceedings present or future, against the Released Parties:

i.
that were or could have been brought in the United States Proceedings, EPO Proceedings or Belgian Proceedings;

ii.
that are based on claims arising from acts, omission or events occurring on or prior to the Effective Date of this Agreement and relating in any way to: (A) the Dispute; (B) the IMDZ/HNG Agreement; (C) the relationship or dealings by and between any IMDZ Related Entity and HNG; (D) the Services Agreements; (E) the relationship or dealings by and between any TVS Related Entity and HNG; (F) any agreement between any IMDZ Related Entity and any New Manufacturer or Subcontractor to the extent any such agreement does not grant rights

7
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


broader than the scope of rights granted to IMDZ under the License Agreement; (G) the relationship or dealings by and between any IMDZ Related Entity and any New Manufacturer or Subcontractor to the extent not outside of the scope of rights granted to IMDZ under the License Agreement; or (H) [*]; and

iii.
any IMDZ Related Entity’s: (A) use of Materials or information, including any alleged trade secrets or confidential information of TVS, obtained prior to the Effective Date; (B) use of the Materials or information contemplated in Sections 4.b and 7.e of this Agreement, whether obtained prior to or after the Effective Date; or (C) sharing of any Materials or information described in items (A) or (B) with any IMDZ Related Entity, New Manufacturer or Subcontractor, whether prior to or after the Effective Date;

(the “Released Claims” ); provided , however , that : (y) nothing herein shall release a Party from any obligations set forth in or liabilities arising out of this Agreement or the License Agreement; and (z) nothing herein shall release, or be construed to bar any of the Releasing Parties from pursuing any claims or causes of action they have or believe that they may have against non-released parties, including HNG, arising from or related to the Released Claims.

b.      Except for any action to enforce or for breach of this Agreement or the License Agreement, the Releasing Parties further agree and hereby covenant that they will not, directly or indirectly, on their own behalf or acting on behalf of or through any non-Releasing Party, initiate or maintain any lawsuit, arbitration or other proceeding, whether legal or equitable, against any of the Released Parties arising from or related to the Released Claims.

c.      Subject to the terms of this Agreement, each Party agrees that neither it nor its Related Entities will directly or indirectly take part in or voluntarily join any proceedings involving [*] other than with the other Party’s consent or as otherwise required by law, and, in case of action or proceeding initiated by either Party or its Related Entities [*], to implicate or to try to have the other Party or its Related Entities join said action or proceeding, except as provided in Section 4.b of this Agreement.

d.      Each Party agrees that neither it nor its Related Entities will assert, directly or indirectly, as a claim, counterclaim, plea or defense, [*] of the other Party or its Related Entities, or take part in any initiative the direct or indirect purposes of which would be the same, and so in any country, before any courts and/or industrial property offices.

e.      The Parties agree that the release and covenant not to sue set forth in Sections 5.a and 5.b of this Agreement are effective and enforceable under the laws of all countries, including France, Belgium, the United States and any state, territory or political subdivision thereof.

6.
Additional IMDZ Representations and Covenants.

8
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



a.      IMDZ represents that [*].

b.      IMDZ represents that, except as set forth in Section 1.h of this Agreement, [*].

c.      IMDZ represents that [*].

d.      IMDZ agrees not to discuss, enter into any agreements or knowingly collaborate, directly or indirectly, with [*] regarding any future [*]. It is expressly understood by the Parties that any efforts taken by IMDZ to obtain the return of any IMDZ Materials [*].

e.      IMDZ agrees, as of the Effective Date of the License Agreement, to grant the New Manufacturer and any Subcontractor a sublicense for the purposes of production of Licensed Products within the terms of the License for the New Manufacturer or Subcontractor’s activities exclusively related to the production of Licensed Products following the Effective Date of the License Agreement.

f.      Except as provided in Section 4.b of this Agreement, IMDZ agrees not to [*];

g.      IMDZ will abide by the protective order entered in the Court of Chancery of the State of Delaware lawsuit (Civil Action No. 9950-VCN) and will not to use in any way any TVS materials, documents or information obtained by IMDZ in any legal proceeding including the Dispute, except in any proceeding to enforce the terms of this Agreement.

h.      IMDZ represents that the execution and delivery of, and the performance by IMDZ of its obligations under, this Agreement has been duly and validly authorized by all necessary corporate, or similar applicable action on the part of IMDZ, and this Agreement has been duly executed and delivered by IMDZ.

i.      IMDZ is not, nor with the giving of notice or lapse of time or both, will be, in violation of its organizational documents. The execution and delivery of this Agreement and the License Agreement and the consummation of the transactions contemplated herein and therein and the fulfillment of the terms hereof and thereof do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (1) any indenture, mortgage, deed of trust or other agreement or instrument to which IMDZ or its any of its subsidiaries is a party or by which IMDZ or any of its subsidiaries or any of their respective properties is bound, (2) the certificate of incorporation or formation, articles of incorporation or association, charter, by-laws or other organizational documents, as applicable, of IMDZ or (3) any law, order, rule or regulation judgment, order, writ or decree applicable to IMDZ or any of its subsidiaries of any court or of any government, regulatory body or administrative agency or other governmental body having jurisdiction over IMDZ or any such subsidiary, or any of their properties or assets, except, with respect to (1) and (3), for such violations as would not, individually or in the aggregate, result in a Material Adverse Effect.


9
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


7.
Additional TVS Representations and Covenants.

a.      TVS will not knowingly [*] until the longer of (i) [*] from the Effective Date, or (ii) the date on which IMDZ is no longer [*]. For clarity, the restrictions on TVS pursuant to this Section 7.a shall not apply to [*]. The term “[*]” means [*]. IMDZ will identify each currently existing [*] within ten (10) days of the Effective Date of this Agreement by providing notice in accordance with paragraph 12 of this Agreement. IMDZ will identify any [*] by providing notice pursuant to paragraph 12 of this Agreement, and may continue to [*] following the Effective Date. The restrictions on TVS pursuant to this Section 7.a shall not apply to parties with which TVS has [*].

b.      TVS will not commence, participate in or, to the extent permitted by law, cooperate with any lawsuit, action or other proceeding, directly or indirectly, or cause any TVS Related Entity to commence, participate in or cooperate with any lawsuit, action or other proceeding, directly or indirectly, against the New Manufacturer, Subcontractor or other third party with which IMDZ has a relationship, or any of those entities’ past, present or future parent entities, controlling persons, predecessors, successors, affiliates, subsidiaries, officers, directors or assigns relating in any way to the Dispute, the Released Claims or the exercise by any IMDZ Related Entity of IMDZ’s rights under the License Agreement.

c.      TVS will indemnify and hold harmless the IMDZ Related Entities from any and all liability, losses, damages, costs, or expenses (including reasonable attorneys’ fees) incurred in connection with any and all actions, claims, demands or proceedings asserted against any IMDZ Related Entity by [*].

d.      Except as otherwise provided in this Agreement, TVS and the TVS Related Entities will not interfere with, impede or otherwise prevent any lawsuit, action or proceeding by IMDZ against [*].

e.      Neither TVS nor any TVS Related Entity will use anywhere for any purpose any Materials obtained, collected or seized during the course of the saisie-contrefaçon or any of the Belgian Proceedings, and TVS and the TVS Related Entities agree to return and permit the return to IMDZ of any IMDZ Materials in the possession of TVS, its counsel or any TVS Related Entity obtained, collected or seized during the course of the saisie-contrefaçon or any of the Belgian Proceedings. TVS further agrees to permit the return to IMDZ – and, if necessary, cooperate with IMDZ to secure the return to IMDZ of – any IMDZ Materials, in the possession of HNG as of the Effective Date.

f.      TVS represents that the execution and delivery of, and the performance by TVS of its obligations under, this Agreement has been duly and validly authorized by all necessary corporate, or similar applicable action on the part of TVS, and this Agreement has been duly executed and delivered by TVS. TVS represents that it has or will have obtained any and all necessary approvals, consents and waivers from Institut Pasteur and any other person or entity, necessary for TVS to enter into this Agreement and to grant the license contemplated in the License Agreement, and,

10
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


simultaneously with the execution of this Agreement or as promptly as practicable hereafter, TVS will provide written evidence that TVS has received the Institut Pasteur Consent as contemplated in Section 3 of this Agreement and Sections 6.2(e)-(g) of the License Agreement.

g.      TVS is not, nor with the giving of notice or lapse of time or both, will be, in violation of its organizational documents. The execution and delivery of this Agreement and the License Agreement and the consummation of the transactions contemplated herein and therein and the fulfillment of the terms hereof and thereof do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, (1) any indenture, mortgage, deed of trust or other agreement or instrument to which TVS or its any of its subsidiaries is a party or by which TVS or any of its subsidiaries or any of their respective properties is bound, or of (2) the certificate of incorporation or formation, articles of incorporation or association, charter, by-laws or other organizational documents, as applicable, of TVS or (3) any law, order, rule or regulation judgment, order, writ or decree applicable to TVS or any of its subsidiaries of any court or of any government, regulatory body or administrative agency or other governmental body having jurisdiction over TVS or any such subsidiary, or any of their properties or assets, except, with respect to (1) and (3), for such violations as would not, individually or in the aggregate, result in a Material Adverse Effect.

h.      TVS will abide by the protective order entered in the Court of Chancery of the State of Delaware lawsuit (Civil Action No. 9950-VCN) and will not to use in any way any IMDZ materials, documents or information obtained by TVS in any legal proceeding including the Dispute and the saisie-contrefaçon proceedings at the basis thereof, except in any proceeding to enforce the terms of this Agreement.

8. No Admission/Denial of Liability . Nothing in this Agreement, or the Parties' willingness to enter into this Agreement, shall be construed as an admission by any person or entity of any liability or wrongdoing of any Party, or of the truth of any allegations made by TVS against IMDZ in the Dispute. IMDZ expressly denies any liability or wrongdoing in connection with the Dispute. The Agreement shall not be admissible in evidence for any purpose in any proceeding, except for purposes of enforcement of its terms; however, this Agreement may be used by either Party and pleaded as a full and complete defense to any action, suit or other proceeding that has been or may be instituted, prosecuted or attempted with respect to any of the Released Claims, and may be filed, offered, and received into evidence, and otherwise used for such defense.

9. Confidentiality . The existence and terms of this Agreement, the settlement described herein, and the License Agreement, including any negotiations or term sheets exchanged between the Parties relating to the settlement of the Dispute or the License Agreement, are confidential, and can only be disclosed: [*]. Except as set forth in Section 10 of this Agreement, [*]. In the event that disclosure of any matter herein is requested or sought to be compelled by subpoena or by other judicial or investigative process, then, the Party receiving the demand or request for disclosure will not disclose the requested information without providing reasonable notice to the other Party. Specifically, the Party receiving the demand or request shall immediately provide to the other Party written notice of the demand or request and, in any event, no less than seven (7) days prior to the date for its disclosure, to enable the other Party to object to such disclosure. In the event either Party proposes to file with

11
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


the SEC, or the securities regulators of any state or other jurisdiction, any disclosure document which describes or refers to or files as an exhibit this Agreement or the License Agreement under the Securities Act of 1933, as amended, the Securities Exchange Act, of 1934, as amended, or any other federal, state or foreign securities law, that Party shall provide reasonable advance notice to the other Party. No such notice shall be required under this Section if the substance of the description of or reference to this Agreement or the License Agreement contained in the proposed filing has been included in any previous filing made by the either Party hereunder or otherwise approved by the other Party. It is understood and agreed by the Parties that this confidentiality provision is a material term of this Agreement.

10. Current Report on form 8-K . Within four (4) days after Effective Date, IMDZ will file with the SEC the Current Report on Form 8-K in substantially the form attached hereto as Exhibit D.

11. [*] .

12. Notices . Any notices, instructions and other communications required or permitted hereunder or in connection herewith shall be in writing and deemed to have been properly given if delivered in person, sent by a reputable overnight express courier service, prepaid, or mailed by first-class mail, postage prepaid, to the relevant Party at the appropriate address as set forth below:
If to TVS:
Theravectys
1, Mail du Professeur Georges Mathé
94800 Villejuif
France
Alain Clergeot, CEO
with a copy (which shall not constitute notice) to:
David A. Kotler, Esq.
Dechert LLP
1095 Avenue of the Americas
New York, NY 10036
If to IMDZ:

Immune Design
601 Gateway Boulevard, Suite 250
South San Francisco, California 94080
United States of America
Attention: Legal Department
with a copy (which shall not constitute notice) to:


12
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


Hogan Lovells US LLP
100 International Drive, Suite 2000
Baltimore, Maryland 21202
United States of America
Attention: Steven A. Barley
Either Party may change its address by giving notice to the other Party in the manner provided above.

13. Entire Agreement/Written Modifications . This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof, supersedes all written or oral communications, agreements or understanding that may have existed prior to the execution of this Agreement, and may be amended or modified only by a written instrument signed by or on behalf of all Parties or their respective successors-in-interest. The Parties have not executed or authorized the execution of this Agreement in reliance upon any promise, representation or warranty not contained within this Agreement or within the License Agreement.

14. Waiver . Waiver by a Party of a breach hereunder by the other Party shall not be construed as a waiver of any subsequent breach of the same or any other provision. No delay or omission by a Party in exercising or availing itself of any right, power or privilege hereunder shall preclude the later exercise of any such right, power or privilege by such Party. No waiver shall be effective unless made in writing with specific reference to the relevant provision(s) of this Agreement and signed by a duly authorized representative of the Party granting the waiver.

15. Governing Law and Forum . This Agreement, and any dispute arising out of or relating in any way to this Agreement, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the laws of [*], without regard to conflicts of law principles. Any and all disagreements or controversies arising out of or relating to this Agreement shall be brought in the federal or state courts located in the [*] Each of the Parties hereby submits to the exclusive jurisdiction of the [*], with respect to any action, proceeding, claim or controversy arising under or relating to this Agreement.

16. Interpretation . This Agreement shall be deemed to have been mutually prepared by both Parties and will not be construed against either of them by reason of authorship. Section titles have been inserted for convenience only and shall not be used in determining the terms of this Agreement.

17. Severability . If any provision of this Agreement should be held invalid, illegal, or unenforceable under Applicable Laws by a Governmental Authority of competent jurisdiction in any jurisdiction, (a) such provision shall be enforced in such jurisdiction to the maximum extent permitted under Applicable Laws in such jurisdiction, (b) the Parties shall negotiate in good faith and agree on a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the Parties, and (c) all other provisions of this Agreement shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties as nearly

13
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision or this Agreement in any other jurisdiction.

18. Costs . Each Party shall bear its own legal and other costs incurred in connection with the Litigation, including the preparation and performance of this Agreement.

19. Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. This Agreement may be executed by exchange between the Parties of electronically transmitted signatures (via facsimile, PDF format via email or other electronic means) and such signatures shall be deemed to bind each Party hereto as if they were original signatures.

20. Representation of Approval and Authority . Each Party represents that it has obtained all necessary approvals or authority to enter into this Agreement and the License Agreement, including but not limited to any and all necessary approvals from each Party’s officers, directors, owners, investors, shareholders, stockholders, parent entities or controlling persons, and any and all necessary approvals from any third parties. Each Party further represents and warrants that no other person or entity has, or had, any interest in the Dispute or the Released Claims referred to in this Agreement, except as otherwise set forth herein; that it has the sole right and exclusive authority to execute this Agreement and the License Agreement.

21. Warranty of Signatures . Each Party represents and warrants that the person signing on its behalf is duly authorized to execute and deliver this Agreement and to bind the entity by his or her signature.

    
[Signature page to follow.]

14
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




IN WITNESS WHEREOF, TVS and IMDZ have caused this Confidential Settlement Agreement to be executed by their duly authorized representatives as of the date first set forth above.
THERAVECTYS SA
 
IMMUNE DESIGN CORP.
 
 
 
By: /s/ Alain Clergeot            
 
By: /s/ Carlos V. Paya                
Name:    Alain Clergeot
 
Name:    Carlos V. Paya, MD, PhD
Title:     Chief Executive Officer
 
Title:     President and Chief Executive Officer









[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




Exhibit A

LICENSE AGREEMENT

See attached

[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




[Please see Exhibit 10.2 filed with the Company’s Current Report on Form 8-K/A (File No. 001-36561), as filed with the Securities and Exchange Commission on March 3, 2017.]


[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




Exhibit B

STIPULATION AND PROPOSED ORDER OF FINAL DISMISSAL WITH PREJUDICE

See attached



[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
THERAVECTYS SA,

Plaintiff,

v.

IMMUNE DESIGN CORP.,

Defendant.
)
)
)
)
)
)
)
)
)



C.A. No. 9950-VCL
STIPULATION AND [PROPOSED] ORDER OF DISMISSAL
The parties to the above-captioned action, by and through their undersigned attorneys, hereby stipulate and agree, under Court of Chancery Rule 41(a)(1)(ii), and subject to the Court’s approval, to the dismissal of the above-captioned action, with prejudice, and with each party to bear its own attorneys’ fees and costs.
OF COUNSEL:

Steven B. Feirson
Diane Siegel Danoff
David Kotler
DECHERT LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
MORRIS JAMES LLP

/s/
P. Clarkson Collins, Jr. (Bar ID #739)
Jason C. Jowers (Bar ID #4721)
Albert J. Carroll (Bar ID #5316)
500 Delaware Avenue, Suite 1500
Wilmington, DE 19801
Attorneys for Plaintiff Theravectys SA

OF COUNSEL:

Steven F. Barley
Scott R. Haiber
HOGAN LOVELLS US LLP
100 International Drive, Suite 2000
Baltimore, MD 21202

DRINKER BIDDLE & REATH LLP

_________________________
Todd Charles Schiltz (#3253)
222 Delaware Avenue, Suite 1410
Wilmington, DE 19801
Attorney for Defendant    


SO ORDERED this _____ day of _________________, 2016.

_____________________________
The Honorable J. Travis Laster



[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




Exhibit C

LETTER TO THE EPO

See attached


[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


CONSIELS.JPG
 
11 rue Saint-Georges
75009 Paris
Téléphone : 01 43 12 84 60
Fax: 33 (0)1 43 12 84 70
E-mail : nony@nony.fr
OFFICE EUROPEEN DES BREVETS
Direction Générale 2
D-80298 MUNICH
GERMANY


Paris, 17 October 2016

VIA EPOLINE


Our reference:
X20839/KLP/GGJ/gg
Re:
Opposition against the European patent No. 2 456 786 filed on July 22, 2010 under No. 10 737 715.2 -1410 and granted on January 8, 2014 in the name of Immune Design Corp
    

Withdrawal of the Opposition against patent EP 2,456,786

Dear Sirs,
I refer to the Summons to attend oral proceedings pursuant to Rule 115(1) EPC dated January 14, 2016, issued in connection with the above-referenced European patent.
I hereby inform you that the opponent, THERAVECTYS, expressly withdraws the Opposition formed against the European patent EP 2,456,786.
THERAVECTYS has moreover no objection to the maintenance of this patent under its form as granted on January 8, 2014.
Very truly yours,


Claude JUPIN


[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit D

IMDZ FORM 8-K

See attached


[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 
FORM 8-K
 

CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

Date of Report (Date of earliest event reported):
October 17, 2016
 
IMMUNE DESIGN CORP.
(Exact name of registrant as specified in its charter)
 

Delaware
001-36561
26-2007174
(state or other jurisdiction of incorporation)
(Commission File Number)
(I.R.S. Employer Identification No.)

1616 Eastlake Ave. E., Suite 310
Seattle, Washington
 
98102
(Address of principal executive offices)
 
(Zip Code)

Registrant's telephone number, including area code: (206) 682-0645
(Former name or former address, if changed since last report)
 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨      Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨      Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨      Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨      Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))


[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Item 1.01.      Entry into a Material Definitive Agreement.

On October 17, 2016 (the “ Effective Date ”), Immune Design Corp. (the “ Company ”) entered into a Settlement Agreement (the “ Settlement Agreement ”) and a License Agreement (the “ License Agreement ”) with TheraVectys SA (“ TVS ”). The Settlement Agreement and License Agreement resolve the litigation initiated by TVS in July 2014 against the Company, as well as related claims and counterclaims. This litigation is described below, under the heading, “ Litigation .”

The following summary of the Settlement Agreement, the License Agreement and the Litigation does not purport to be complete and is qualified in its entirety by reference to the Settlement Agreement and the License Agreement, which will be filed as exhibits to the Company’s annual report on Form 10-K for the year ending December 31, 2016, and the description of the Litigation that will be included in that annual report.

As a non-contingent fee for a license to certain present and future intellectual property of TVS and in consideration for the settlement of all claims and disputes between the parties, the Company will pay $6,000,000 (the “ Upfront Payment ”) into an escrow account. Under certain circumstances set forth below, the escrowed amount would be repaid to the Company. In addition, as an additional non-contingent fee for a license to certain present and future intellectual property of TVS and for the settlement of all claims and disputes between the parties, the Company will pay TVS $1,250,000 when, following the effective date of the Settlement Agreement, the Company raises $25,000,000, in the aggregate, through equity sales, debt or licensing revenue. For licensed products developed under the License Agreement, the company would be obligated to pay development and commercial milestones and royalties, as set forth below.

Settlement Agreement.

Under the Settlement Agreement, TVS has agreed to dismiss all pending litigation brought by TVS against the Company and to withdraw patent opposition proceedings (the “ EPO Proceeding ”) brought by TVS against the Company’s European Patent No EP 2 456 786 (the “ EU Patent ”). Also under the Settlement Agreement, the Company and TVS have agreed to a broad release of claims against one another based on acts or omissions arising out of the litigation, or the facts and circumstances giving rise to the litigation. Neither the Company nor TVS is making any admission of liability or wrongdoing under the Settlement Agreement.

The Settlement Agreement provides that, within 30 days of its effective date, the Company will pay the Upfront Payment into escrow. The escrowed amount will be disbursed to TVS as follows:

(a) Fifty percent when Institut Pasteur consents to the granting by TVS to the Company of a sublicense to certain patents licensed by TVS (or to be licensed by TVS) from Institut Pasteur, and the litigation in the United States and Belgium has been dismissed; and

(b) Fifty percent upon the final resolution of the EPO Proceeding if the scope of the EU Patent remains unchanged.

If the events listed in item (a) do not occur by certain agreed time periods, or if the scope of the EU Patent is reduced in anyway, then certain portions of the Upfront Payment will be returned to the Company; provided, that the events described in item (a) above are a condition to the release from escrow of any portion of the Upfront Payment to TVS.

The Settlement Agreement includes customary representations and warranties that each party has made to the other party, as well as an agreement that TVS will not use certain manufacturers with lentiviral vector manufacturing expertise for a defined period of time or for so long as the Company is making use of those manufacturers.     


[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



License Agreement.

As part of the settlement of the litigation, the parties have entered into the License Agreement. The License Agreement has an effective date of April 27, 2012, which is the date on which TVS alleges that actionable activity by the Company began, as described below. The License Agreement provides the Company with a field limited, non-exclusive, sublicensable license for oncology uses to certain current and future intellectual property rights owned, controlled and licensed by TVS.

The license granted to the Company is for an unlimited number of the Company’s products, but the scope of the license (i.e., the intellectual property that is the subject of the license) and the payments on account of the license, differ based on the number of the Company’s products that fall within the license grant and when those products are made. The products fall into two main categories.

Generally, the first category consists of four of the Company’s products (including CMB305/LV305, which is regarded as one product). For these products, the license granted by TVS is to certain scheduled patents, other patents controlled by TVS (either now or in the future), and to TVS’s know-how. The economic provisions of the license for each of these four products include the following:

(a) payments by the Company to TVS based on the achievement of certain development and regulatory milestones, in the aggregate amount of $5,750,000, except that with respect to CMB305/LV305, the first two milestone payments do not have to be paid;

(b) royalties paid to TVS based on a low-single digit percentage of each product’s net sales if those sales are made directly by the Company or its affiliates, subject to certain royalty-offset provisions;

(c) a mid-single digit percentage of sublicensing revenues received by the Company for the sublicensing of licensed intellectual property will be paid to TVS; and

(d) a single commercial milestone payment to TVS based on the product achieving a specified net sales amount.

For products beyond those in the first category, the Company may, at its discretion, exercise an option to include those products under a license, as well. If the Company does so, then in addition to an initial license fee, the economic provisions of the license, on a product-by-product basis, are as follows:

(a) payments by the Company to TVS based on the achievement of certain development and regulatory milestones, in the aggregate amount of $5,750,000;

(b) tiered royalties paid to TVS based on low-to-mid-single digit percentages of each product’s net sales, if those sales are made directly by the Company or its affiliates, subject to certain royalty-offset provisions;

(c) a mid-single digit percentage of sublicensing revenues received by the Company for the sublicensing of licensed intellectual property will be paid to TVS; and

(d) a single commercial milestone payment based on the product achieving a specified net sales amount.

The term of the license agreement expires upon the last to expire valid patent claim that is licensed to the Company under the License Agreement. The License Agreement may also be terminated by either party for customary reasons, such as an uncured material breach by the other party, or the other party’s insolvency. The Company may terminate the License Agreement upon 30 days’ prior written notice to TVS.


[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Litigation.

On or about July 24, 2014, TVS filed a complaint against the Company in the Chancery Court of the State of Delaware. TVS alleged that it had entered into a contractual relationship with Henogen SA, or Henogen, in 2010 with respect to the production of lentiviral vector vaccines for TVS. Henogen is a contract manufacturing organization with which the Company contracted for the manufacture of its LV305 product candidate. TVS alleged that its contractual relationship with Henogen contained an exclusivity provision limiting Henogen’s ability to participate in the manufacturing process of a vaccine based on lentiviral DNA Flap vectors for third parties, as well as a provision preventing Henogen from sharing or using certain TVS confidential technology for manufacturing processes developed by TVS with or for the benefit of others. TVS alleged that the Company entered into a contractual relationship with Henogen in April 2012 to manufacture lentiviral vectors for vaccines, which interfered with its contract with Henogen and resulted in the use TVS confidential information and trade secrets. The complaint also alleged that the Company obtained shipments of lentiviral vectors for vaccines from Henogen and is conducting clinical trials with these lentiviral vectors. On or about December 15, 2014, TVS filed a motion for a preliminary injunction seeking, among other things, to enjoin the Company from making any use of lentiviral vectors pending final resolution of the litigation. A hearing was held on TVS’s motion in January 2015. By order dated March 9, 2015, the Chancery Court denied TVS’ motion for a preliminary injunction. The court has not yet made any final determination on the merits of the lawsuit, which absent the described above, would be determined in a trial on the merits.

In addition to the Delaware action, in October 2014, TVS filed the EU Opposition requesting revocation of the EU Patent.


Item 8.01.      Other Events.

The information contained above in Item 1.01 is hereby incorporated by reference into this Item 8.01.



[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

IMMUNE DESIGN CORP.


By:     /s/ Carlos Paya, M.D., Ph.D.    
Carlos Paya, M.D., Ph.D.
President and Chief Executive Officer

Dated: October 21, 2016


[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


Exhibit 10.2
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this “ Agreement ”), dated as of October 17, 2016 (the “ Execution Date ”) and effective as of the Effective Date (as defined below), is entered into by and between Theravectys SA, a French société anonyme (“ TVS ”), and Immune Design Corp., a Delaware corporation (“ IMDZ ”) (with each of TVS and IMDZ being sometimes referred to herein, individually, as a “ Party ” and, collectively, as the “ Parties ”).
WITNESSETH
WHEREAS, TVS owns or controls, directly or indirectly, certain Licensed IP (as defined below) relating to lentiviral vector technology;
WHEREAS, in connection with the execution and delivery of this Agreement, the Parties are entering into a Confidential Settlement Agreement providing for the full and complete settlement of all outstanding disputes between them (the “ Settlement Agreement ”); and
WHEREAS, pursuant to and in accordance with the Parties’ obligations under the Settlement Agreement, TVS desires to grant, and IMDZ desires to obtain, a worldwide non-exclusive license under the Licensed IP on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the following mutual covenants contained herein, and for other good and valuable consideration the adequacy and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
1.1      As used in this Agreement, the following terms have the meanings set forth below:
Actually Been Made ” means that a representative product has been [*], such as the [*], it being understood that the [*] may be modified in any product following the time that is has actually been made, as long as the [*] has the same function as the [*] and is not a [*] proprietary to TVS (it being agreed that [*] that are not the subject of a pending patent application or issued patent owned by or licensed to TVS are not proprietary to TVS). For example, a product designed to express the [*], whenever made, will be deemed to be Existing Additional Products if as of the Execution Date, a product with [*] has been synthesized.
Additional Product ” means (a) any Covered Product that [*], other than [*] or a Derivative Product, that has Actually Been Made by or on behalf of IMDZ [*] (“ Existing Additional Product” ), or (b) any Covered Product [*], other than CMB305/LV305 or a Derivative Product, that has not Actually Been Made by or on behalf of IMDZ [*] (“ Future Additional Product ”). [*].

1


Affiliate ” means, with respect to a Party, any Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with such Party. For purposes of this definition, “control” (including, with correlative meaning, the terms “controlled by” or “under the common control with”) shall mean the ownership, directly or indirectly through one or more intermediaries, of fifty percent (50%) or more of the issued share capital or shares of stock entitled to vote for the election of directors, in the case of a corporation, or of fifty percent (50%) or more of the equity interests in the case of any other Person, or the power (through the ownership of securities, by contract, or otherwise) to direct or cause the direction of the general management and policies, in each case, of the Person in question. The Parties acknowledge that in the case of certain entities organized under the Applicable Laws of certain countries outside of the United States, the maximum percentage ownership permitted by Applicable Law for a foreign investor may be less than fifty percent (50%), and that in such case such lower percentage shall be substituted in the preceding sentence, provided that such foreign investor has the power to cause the direction of the general management and policies of such Person.
Agreement ” has the meaning set forth in the Preamble.
Applicable Law ” means, individually and collectively, any federal, state, local, national and supranational laws, treaties, statutes, ordinances, rules and regulations, including any rules, regulations, guidance, guidelines or requirements promulgated thereunder or having the binding effect of law of national securities exchanges, automated quotation systems or other securities listing organizations or exchanges or any Governmental Authority or legislative body that are, in each case, in effect from time to time and applicable to a Person and a particular activity.
Calendar Quarter ” means a period of three (3) consecutive months ending on the last day of March, June, September or December, respectively, during the Term, except that the first Calendar Quarter shall commence on the Execution Date and shall end on December 31, 2016, and the last Calendar Quarter of the Term shall end on the effective date of any termination or expiration of this Agreement.
Calendar Year ” means a period of twelve (12) consecutive months beginning on January 1 and ending on December 31 during the Term, except that the last Calendar Year of the Term shall end on the effective date of any termination or expiration of this Agreement.
cGMP ” means current good manufacturing practices as defined in Parts 210 and 211 of Title 21 of the United States Code of Federal Regulations for the manufacture and testing of pharmaceutical materials, and foreign equivalents thereof.
Change of Control ” means, with respect to a Party, (a) a merger or consolidation in which (i) such Party is a constituent party, or (ii) a subsidiary of such Party is a constituent party, and such entity in clause (i) or (ii) issues shares of its capital stock pursuant to such merger or consolidation, except in the case of either clause (i) or (ii) any such merger or consolidation involving such Party or a subsidiary of such Party in which the shares of capital stock of such entity outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or are exchanged for shares of capital stock which represent, immediately following such merger or consolidation, more than fifty percent (50%) by voting power of the capital stock of (A) the surviving

2
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


or resulting corporation, or (B) the parent corporation of such surviving or resulting corporation, in the case that the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation; (b) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by such Party or an Affiliate of such Party of all or substantially all of the assets of such Party or such Affiliate taken as a whole or to which this Agreement relates (except where such sale, lease, transfer, exclusive license or other disposition is only to a wholly owned subsidiary of such Party or a subsidiary of such Party); or (c) any unrelated “person” or “group,” as such terms are defined in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, and the rules thereunder in a single transaction or series of related transactions, becomes the beneficial owner as defined thereunder, directly or indirectly, whether by purchase or acquisition or agreement to act in concert or otherwise, of fifty percent (50%) or more by voting power of the then-outstanding capital stock or other equity interests of such Party or a subsidiary of such Party, other than pursuant to a bona fide financing.
CMB305/LV305 ” means the products owned or controlled by IMDZ and/or its Affiliates referred to [*] as CMB305 and/or LV305, [*]. For clarity, CMB305/LV305 is [*].
Combination Product ” means (a) a preparation or product containing or employing a Licensed Product and at least [*] which is [*], but which is used in connection with [*], or (b) in the case of [*], a Licensed Product containing or employing a Covered Product and at least [*] which is not a Covered Product, but which is used in connection with such Covered Product. For the avoidance of doubt, [*].
Confidential Information ” means any information or materials disclosed by one Party or its Affiliates to the other Party or its Affiliates, in any form (written, oral, photographic, electronic, magnetic or otherwise), that is identified as confidential and/or proprietary at the time of disclosure, including, but not limited to, data, research results, technology, software, materials, patents, copyrighted works, Know-How, business or product plans, marketing, sales or other financial information, and Royalty Reports.
Contingent Payment ” means the payment of One Million Two Hundred Fifty Thousand Dollars ($1,250,000) contemplated by Section 2(b) of the Settlement Agreement, payable subject to the terms and conditions thereof.
Control ” means, with respect to any information, Regulatory Approvals or intellectual property right, possession, whether directly or indirectly, by a Party or its Affiliates (including, except as described below, a Future Acquirer) of the ability (whether by sole, joint or other ownership interest, license or otherwise, other than pursuant to the grants set forth in this Agreement) to [*]. Notwithstanding the foregoing, any information or intellectual property right Controlled by a Future Acquirer shall not be treated as “Controlled” by the applicable acquired Party or its Affiliates for purposes of this Agreement to the extent, but only to the extent, that such intellectual property (a) is Controlled by such Future Acquirer immediately prior to the time such Future Acquirer qualifies as such, other than pursuant to a license or other grant of rights (whether directly or indirectly) by the applicable acquired Party or its Affiliates, or (b) is Controlled by such Future Acquirer subsequent to the time that such Future Acquirer qualifies as such but (i) was not Controlled by the applicable

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


acquired Party or any of its Affiliates prior to the time such Future Acquirer qualifies as such, (ii) did not come under the Control of such Future Acquirer due to any license or other grant of rights by the applicable acquired Party or its Affiliates, and (iii) was not discovered, invented or developed, and did not come under the Control of the such Future Acquirer, through or by any reference or access to any Confidential Information of the applicable non-acquired Party or any information or intellectual property right Controlled by the applicable acquired Party or any of its Affiliates.
Covered Product ” means any product or preparation owned or controlled, directly or indirectly, by IMDZ or its Affiliate or Sublicensee in the Field, whose development, manufacture, use or sale would, in the absence of a license from TVS, constitute direct, indirect, contributory or any other type of infringement of one or more Valid Claims.
Derivative Product ” means a Covered Product that would reasonably be determined to be [*].
Disclosing Party ” has the meaning set forth in Section 9.1 .
Effective Date ” has the meaning set forth in Section 1.3 .
Execution Date ” has the meaning set forth in the Preamble.
Existing Additional Product ” has the meaning set forth in the definition of Additional Product.
Existing IND ” means any IND with respect to [*], whether filed [*], as amended from time to time.
FDA ” means the United States Food and Drug Administration and any successor agency(ies) or authority having substantially the same function.
Field means the use of any lentiviral vector based preparation (such as a vaccine) for the treatment, prevention or diagnosis of cancer, except to the extent [*].
First Commercial Sale ” means, with respect to a Licensed Product, the first commercial sale for monetary value by IMDZ or its Affiliate to a Third Party for use or consumption by the general public of such Licensed Product in any country after all required Regulatory Approvals have been granted in such country. Sales for test marketing or clinical trial purposes, early access programs (such as to provide patients with a Licensed Product prior to Regulatory Approvals pursuant to treatment INDs or protocols, named patient programs, or compassionate use programs) or any similar use shall not constitute a First Commercial Sale.
Force Majeure ” has the meaning set forth in Section 10.5 .
Future Acquirer ” means a Third Party acquirer in any Change of Control transaction involving either Party and such Third Party acquirer’s Affiliates other than the applicable acquired Party or any of its Affiliates prior to such Change of Control.

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


Future Additional Product ” has the meaning set forth in the definition of Additional Product.
“[*]” has the meaning set forth in the [*].

Governmental Authority ” shall mean any court, agency, authority, department, regulatory body, or other instrumentality of any government or country or of any national, federal, state, provincial, regional, county, city, or other political subdivision of any such government or any supranational organization of which any such country is a member.

HNG ” refers collectively to Henogen, SA, its parent, Novasep S.A., and any of their past, present, and future parent or controlling entities, predecessors, successors, Affiliates, divisions or subsidiaries.
IMDZ ” has the meaning set forth in the Preamble, and shall include any successor to IMDZ, whether by operation of law or otherwise.
IMDZ-HNG Agreement ” means the Master Agreement for Development & Manufacturing Services between IMDZ and HNG, dated April 27, 2012, as amended.
IMDZ Parties ” has the meaning set forth in Section 8.2 .
IMDZ Product ” means a product owned or controlled, directly or indirectly, by IMDZ or its Affiliate or Sublicensee in the Field that [*] and is covered or claimed by intellectual property rights owned or controlled by IMDZ other than [*].
IND ” means an application submitted to a Governmental Authority to initiate human clinical trials, including (a) an Investigational New Drug application or any successor application or procedure submitted to the FDA pursuant to 21 C.F.R. Part 312, or any foreign equivalent thereof, and (b) all supplements and amendments that may be submitted with respect to the foregoing.
“Initial Licensed IP” means:
(I)    solely with respect to CMB305/LV305 and Existing Additional Products:
(a)    the patent applications listed in Appendix A and any patents issuing therefrom, including all United States, PCT and foreign patent applications claiming priority thereto, corresponding national stage applications or patents, renewals, continuations, continuations-in-part, continued prosecution applications, divisionals, reexaminations, reissues, substitute applications, inventors’ certificates, and any extensions of or supplementary protection certificates referencing any of the foregoing (collectively, the “TVS Patent Portfolio” );
(b)    issued patents and patent applications Controlled by TVS or its Affiliates [*], other than those listed in Appendix A or included under clause (a) above, including all United States, PCT and foreign patent applications claiming priority thereto, corresponding national stage applications or patents, renewals, continuations, continuations-in-part, continued

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


prosecution applications, divisionals, reexaminations, reissues, substitute applications, inventors’ certificates, and any extensions of or supplementary protection certificates referencing any of the foregoing (collectively, the “Other TVS Patents” ); and
(c)    all TVS Know-How; and
(II)    [*] with respect to Future Additional Products, (a) the TVS Patent Portfolio, and (b) the Other TVS Patents [*].
In each case, (I) and (II), such patents and patent applications shall only be included in Initial Licensed IP to the extent that researching, developing, manufacturing, commercializing or otherwise exploiting [*] would infringe one or more Valid Claims of such patents and patent applications. Notwithstanding the foregoing, [*].
Initial Products ” means (a) CMB305/LV305, and (b) up to three (3) Additional Products [*] in accordance with this paragraph. For clarity, Additional Products are classified as [*]. Subject to the foregoing, IMDZ may designate an Additional Product as an Initial Product hereunder, or change such designation, by written notice to TVS at any time prior to [*]. For clarity, IMDZ may change, substitute or replace the Additional Products constituting Initial Products in its sole discretion; provided, that such designation (whether as an Initial Product or not) with respect to an Additional Product may not be changed unless by written notice to TVS at any time prior to [*]. For clarity, if any Neoantigen Product in a Neoantigen Product Class constitutes [*]. To the extent a diagnostic product or test is administered or performed in respect of any Additional Product, such Additional Product and such diagnostic product or test shall be considered [*] for purposes of this definition [*].
Institut Pasteur Consent ” means, collectively, all consents, approvals and authorizations of Institut Pasteur, or any other Third Party(ies), required to be obtained or made under, pursuant to, or in accordance with the Institut Pasteur License Agreement or any other agreement between TVS or its Affiliates, on the one hand, and Institut Pasteur or its Affiliates, on the other hand, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the grant to IMDZ and its Affiliates of the rights and licenses hereunder. The “Institut Pasteur Consent” shall be in writing, shall satisfy all applicable requirements of the Institut Pasteur License Agreement or any other such agreement, and shall include an express acknowledgment and agreement by Institut Pasteur that it shall be bound by Section 10.2 and this Agreement in the event that the Institut Pasteur License Agreement is terminated or Institut Pasteur otherwise succeeds to TVS’s right and interest in or to the Licensed IP.
Institut Pasteur License Agreement ” means the exclusive license entered into between TVS and Institut Pasteur, by virtue of a patent license agreement dated [*], as revised by the successive amendments dated [*], as amended.
Know-How ” means information, inventions, discoveries, formulations, formulas, practices, protocols, procedures, processes, methods, knowledge, know-how, trade secrets, technology, techniques, designs, drawings, correspondence, documents, apparatus, results,

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


strategies, regulatory documentation, information and submissions pertaining to, or made in association with, filings with any Governmental Authority, data (including pharmacological, toxicological, non-clinical data, clinical data, analytical and quality control data, manufacturing data, and descriptions), devices, assays, chemical formulations, specifications, materials, including pharmaceutical, chemical and biological materials and their sequences, physical materials, product samples, other samples, and the like, in written, electronic, oral or other tangible or intangible form, whether or not patentable.
Launch ” means, with respect to a Licensed Product, the First Commercial Sale of such Licensed Product, and shall have a correlative meaning with respect to any Covered Product that is not a Licensed Product.
Licensed IP ” means, subject to Section 2.5, solely with respect to the Initial Products, the Initial Licensed IP and, to the extent IMDZ exercises its Option and solely with respect to the Option Products, the Option Licensed IP. Notwithstanding the foregoing, [*].
Licensed Product means, as of a particular time, the Initial Product(s) and, to the extent IMDZ exercises its Option therefor, each Option Product, in each case, whose development, manufacture, use or sale in the Field would, in the absence of a license from TVS, constitute direct, indirect, contributory or any other type of infringement of one or more Valid Claims; provided, that (a) in no event shall the Licensed Products [*], and (b) a Licensed Product shall cease to be licensed hereunder upon the expiration of the last-to-expire of such Valid Claims.
Losses ” has the meaning set forth in Section 8.1 .
Neoantigen Product ” means, collectively, Covered Products containing, expressing, or derived from nucleic acid sequence(s) that represent patient-specific antigen(s) derived (in whole or in part) by [*] for administration to such patient. For the avoidance of doubt, a patient-specific antigen is not a [*].

Neoantigen Product Class” means one or more Neoantigen Products used for treatment pursuant to [*]. If FDA requires that a NeoAntigen Product [*], then the Neoantigen Product Class shall [*]; provided, that if FDA [*]. Notwithstanding anything to the contrary contained herein, (i) a Neoantigen Product Class, collectively, shall constitute one Licensed Product, Covered Product, Additional Product, or Option Product, as applicable, and (ii) a Neoantigen Product Class, collectively, may be considered either an Initial Product or an Option Product, but not both. If FDA does not [*]. For purposes of this definition, “[*]” means the [*].
Net Sales means the total invoiced sales price for Licensed Products sold by IMDZ or its Affiliate to a Third Party purchaser in an arm’s-length transaction less the following deductions:
(a)    sales taxes or other taxes (other than income taxes);
(b)    shipping, freight and insurance charges;

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


(c)    actual allowances, rebates, credits, or refunds for returned or defective goods, including for recalls or damaged goods, or billing errors and reserves for returns;
(d)    trade, quantity, and other discounts, retroactive price reductions, or other allowances actually allowed or granted from the billed amount and taken;
(e)    rebates, credits, and chargeback payments (or the equivalent thereof) granted to managed health care organizations, wholesalers, or to federal, state/provincial, local and other Governmental Authorities, including their agencies, purchasers, and/or reimbursers, or to trade customers;
(f)    amounts payable to patients through co-pay assistance cards or similar forms of rebate directly related to the prescribing of the Licensed Product; and
(g)    any import or export duties, tariffs, or similar charges incurred with respect to the import or export of Licensed Products into or out of any country in the Territory.
Sales of a Licensed Product by and between IMDZ and its Affiliates, licensees or Sublicensees are not sales to Third Parties and shall be excluded from Net Sales calculations. Licensed Products will be considered sold when IMDZ or its Affiliate [*] for such Licensed Products. For clarity, neither (i) sales by or on behalf of a Partner (including its Affiliates and sublicensees), nor (ii) amounts received by IMDZ or its Affiliates from a Partner (including its Affiliates and sublicensees) or any Third Party in respect of sales by or on behalf of a Partner (including its Affiliates and sublicensees), shall constitute Net Sales hereunder.
Notwithstanding the foregoing, Net Sales shall not include, and shall be deemed zero with respect to, (i) the distribution of reasonable quantities of promotional samples of Licensed Products, (ii) Licensed Products provided for clinical trials, research purposes, charitable or compassionate use purposes, or early access programs (such as to provide patients with a Licensed Product prior to Regulatory Approvals pursuant to treatment INDs or protocols, or named patient programs) or any similar use, or (iii) Licensed Products sold or transferred to a Sublicensee in a transaction generating Sublicensing Revenue for which IMDZ pays or is required to pay royalties under Section 3.5 or, in the case of Option Products, Section B.5 of Appendix B .
If a Licensed Product is sold by IMDZ or its Affiliates as part of a Combination Product in any country, Net Sales shall be calculated by [*]. If either the Licensed Product or, with respect to CMB305/LV305, the Covered Product portion thereof, as applicable, or such other product or component is(are) not at that time sold separately in such country, then IMDZ shall [*], as applicable, and such other product or component, consistent with the formula provided above, and TVS may [*] in accordance with the relationship management process described in Section 10.3 .
Option ” has the meaning set forth in Section 2.4 .
Option Licensed IP ” means (a) the TVS Patent Portfolio, (b) Other TVS Patents to the extent Controlled by TVS [*], and (c) other patents and patent applications that are (i) licensed to TVS, and (ii) Controlled by TVS [*]. Notwithstanding subsection (c), Option Licensed IP shall not

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


include patents and patent applications that would otherwise be included in subsection (c), but are [*] and, with respect to such patents and patent applications, one or more [*] of the inventions claimed therein, whether with or without [*] (as determined in accordance with applicable patent law). In each case, (a), (b) and (c), such patents and patent applications shall only be included in Option Licensed IP to the extent that researching, developing, manufacturing, commercializing or otherwise exploiting an Option Product would infringe one or more Valid Claims of such patents and patent applications. Notwithstanding the foregoing, [*].
Option Product ” means a Covered Product that [*], other than CMB305/LV305 or a Derivative Product, for which IMDZ has exercised its Option. Except as expressly provided in the preceding sentence, IMDZ may exercise its Option, and Option Products may include, any Covered Product, no matter (i) when it is first discovered, acquired, developed, or in-licensed, or (ii) whether or not it constitutes an Additional Product hereunder. For clarity, [*].
Option Product Consideration ” means the consideration payable, on an Option Product-by-Option Product basis, by IMDZ to TVS pursuant to Section 2.4 for a license for an Option Product under the Option Licensed IP, as set forth on Appendix B .
Other TVS Patents ” has the meaning set forth in the definition of Initial Licensed IP.
Party ” and “ Parties ” have the meaning set forth in the Preamble.
Partner ” means a Third Party other than a Subcontractor with whom IMDZ or its Affiliate enters into a specific agreement for the purpose of [*] of Licensed Products, which includes a sublicense to the Licensed IP.
Patent Cooperation Treaty ” or “ PCT ” means the Patent Cooperation Treaty, opened for signature June 19, 1970, 28 U.S.T. 7645.
Person ” means an individual, sole proprietorship, partnership, limited partnership, limited liability partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or other similar entity or organization, including a government or political subdivision, department or agency of a government.
Phase 1 Trial ” means a clinical trial of a pharmaceutical product that: (a) (i) is a first-in-humans trial on subjects who are patients, (ii) is for the purposes of establishing initial safety, tolerability, pharmacokinetic and pharmacodynamic data for such product, (iii) exposes subjects to such product, and (iv) is designed to provide the sponsor of the clinical trial with sufficient data about such product to initiate a Phase 2 Trial; or (b) meets the definition in 21 C.F.R. §312.21(a) or any of its foreign equivalents.
Phase 2 Trial ” means a clinical trial of a pharmaceutical product: (a) with the endpoint of evaluating its effectiveness for a particular indication or indications, its short term tolerance and safety, as well as its pharmacokinetic and pharmacodynamic data in patients with the indications under study and is not intended to be pivotal to support marketing approval for such product; or (b) that meets the definition in 21 C.F.R. §312.21(b) or any of its foreign equivalents.

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


Phase 3 Trial ” means a clinical trial of a pharmaceutical product: (a) on a sufficient number of patients, which trial (i) is designed to establish that such product is safe and efficacious for its intended use, (ii) is designed to define warnings, precautions and adverse reactions that are associated with such product in the dosage range to be prescribed, and (iii) is intended to support marketing approval for such product; or (b) that meets the definition in 21 C.F.R. §312.21(c) or any of its foreign equivalents.
Receiving Party ” has the meaning set forth in Section 9.1 .
Regulatory Approval means all approvals, licenses, registrations, or authorizations of any country, federal, supranational, state or local regulatory agency, department, bureau or other Governmental Authority that are necessary for the manufacture, use, storage, import, transport, marketing and/or sale of a particular Licensed Product in the applicable jurisdiction, including, where applicable, any pricing or reimbursement approvals.
Royalty Report ” has the meaning set forth in Section 4.2 .
Settlement Agreement ” has the meaning set forth in the Recitals.
Subcontractor ” means a Third Party specifically hired by IMDZ or its Affiliate or Sublicensee, including for the purpose of research, process development, and/or cGMP production of Licensed Products, and to whom IMDZ would grant, [*], a sublicense solely to perform its obligations on behalf of IMDZ, its Affiliates or Sublicensees. For clarity, a Subcontractor is not a Partner.
Sublicensee ” has the meaning set forth in Section 2.3 .
Sublicensing Revenue ” means any consideration actually received by IMDZ or an Affiliate from a Partner (or any of its Affiliates or sublicensees) for the grant of rights under the Licensed IP (net of [*]). Sublicensing Revenue may include [*]. Notwithstanding the foregoing, Sublicensing Revenue shall not include any: (a) consideration included in the calculation of [*]; (b) consideration received for [*]; (c) consideration received for [*]; (d) [*] paid for services provided by IMDZ or its Affiliates or Subcontractors in relation to Licensed Products; (e) consideration received for [*]; or (f) consideration paid in connection with [*].
In the event IMDZ or its Affiliates receive consideration in connection with the grant of a sublicense or other rights under the Licensed IP and any other intellectual property rights of IMDZ or its Affiliates (including intellectual property rights owned by IMDZ or its Affiliates or licensed to IMDZ or its Affiliates from a Third Party), whether granted in the same agreement or in separate agreements, only the portion of such consideration reasonably allocable to the Licensed IP, as reasonably determined by IMDZ in good faith, shall be considered Sublicensing Revenue.
T-cell ” means an immune cell of thymic lineage that can be distinguished by [*] or by the presence of [*].
Term ” has the meaning set forth in Section 7.1 .

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


Territory means all the countries and territories of the world.
Third Party ” means any Person other than TVS, IMDZ, or their respective Affiliates.
Third Party License ” means any license or other agreement between a Third Party and a Party or any Affiliate of a Party, pursuant to which such Party or its Affiliate (as applicable) is granted a license to patent rights or Know-How owned or Controlled by a Third Party, where such license is (a) necessary for the use, practice, or exploitation of the Licensed IP, or (b) in the case of agreements between a Third Party and IMDZ or its Affiliates, necessary for the research, development, manufacture, commercialization or use of a Licensed Product.
Trigger Event ” shall have the definition set forth in the Settlement Agreement.
TVS ” has the meaning set forth in the Preamble, and shall include any successor to TVS or the Licensed IP, whether by operation of law or otherwise.
TVS Know-How ” means Know-How owned or Controlled by TVS or its Affiliates [*] that is (a) described in or necessary to practice inventions claimed in the TVS Patent Portfolio or the Other TVS Patents, or (b) necessary to research, develop, manufacture, use, practice, sell, commercialize, or otherwise exploit a Licensed Product; provided, that the TVS Know-How shall not include any Know-How owned or Controlled by IMDZ or its Affiliates or Sublicensees.
TVS Method of Use IP ” means (a) issued patents and patent applications owned by or licensed to TVS or its Affiliates as of or after the Execution Date, including all United States, PCT and foreign patent applications claiming priority thereto, corresponding national stage applications or patents, renewals, continuations, continuations-in-part, continued prosecution applications, divisionals, reexaminations, reissues, substitute applications, inventors’ certificates, and any extensions of or supplementary protection certificates referencing any of the foregoing, which claim any method of using any product or preparation owned or Controlled by TVS [*], and (b) [*], in the case of (a), to the extent that one or more methods claimed in such issued patents or patent applications do not claim any [*].
TVS Parties ” has the meaning set forth in Section 8.1 .
TVS Patent Portfolio ” has the meaning set forth in the definition of Initial Licensed IP.
TVS Product ” means, as of a particular time during the Term, any product or preparation (taken as a whole) then owned or controlled by TVS that is [*], in each case, to the extent that such product or preparation embodies, in whole or in part, [*], it being understood that products that differ from a TVS Product [*], but not the [*], of the [*] contained in such TVS Product shall also be considered TVS Products. For clarity, no product or preparation owned or controlled by TVS or its Affiliates (or their respective sublicensees) [*] shall be considered a TVS Product. By way of example and not of limitation, if a TVS Product contains a [*], then for clarity, a TVS Product shall mean the [*] taken together. Further, a TVS Product shall not be deemed to be the [*], or the [*], in each case, without the [*], even if such [*] is the subject of a separate regulatory filing, such as a Drug Master File.

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


TVS Product IP ” means (a) those claims of issued patents and patent applications owned by or licensed to TVS or its Affiliates as of or after the Execution Date, including all United States, PCT and foreign patent applications claiming priority thereto, corresponding national stage applications or patents, renewals, continuations, continuations-in-part, continued prosecution applications, divisionals, reexaminations, reissues, substitute applications, inventors’ certificates, and any extensions of or supplementary protection certificates referencing any of the foregoing, only to the extent those claims cover a TVS Product, and (b) [*] owned by or licensed to TVS or its Affiliates as of or after the Execution Date, [*] to a TVS Product. For clarity, with respect to patents and patent applications that include claims that are [*] to a TVS Product and claims that are [*] to a TVS Product, TVS Product IP shall only include those claims of such patents and patent applications to the extent that they are [*] to a TVS Product and not [*] any such TVS Product, unless [*] (in which case, for the avoidance of doubt, such other claims would be licensed to IMDZ hereunder). By way of example and not of limitation, if a claim in a patent or patent application claims a TVS Product comprised of [*], then for clarity, such claim shall be considered TVS Product IP only with respect to such TVS Product, but not with respect to, or to the extent of, its [*].
Upfront Payment ” means in the payment of Six Million Dollars ($6,000,000) contemplated by Section 2(a) of the Settlement Agreement, payable subject to the terms and conditions thereof.
Valid Claim means (a) a claim of an issued and unexpired patent included in the Licensed IP (including the term of any patent term extension, supplemental protection certificate, renewal or other extension) which claim has not been revoked, held unpatentable, invalid or unenforceable in a final decision of a court, patent office, or other Governmental Authority of competent jurisdiction from which no appeal may be or has been taken, and that has not been disclaimed, denied, or admitted to be invalid, unenforceable, or of a scope not covering Licensed Products through reissue, re-examination, disclaimer or otherwise, or (b) a claim of a patent application included in the Licensed IP which claim has been pending less than [*] years from the filing of the earliest patent application from which such pending patent application derives priority in a given jurisdiction.
ZVex Platform ” means the platform that [*] involved in initiating an immune response (for example, but not limited to, an antigen-presenting cell).
1.2      Other Interpretive Provisions .
(a)      The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section, schedule, exhibit and appendix references are to this Agreement unless otherwise specified. The words “will” and “shall” shall have the same meaning. The meaning of defined terms shall be equally applicable to the singular and plural forms of the defined terms. Masculine, feminine and neuter pronouns and expressions shall be interchangeable. The words “include,” “includes” and “including” are not limiting and shall be deemed to be followed by the phrase “without limitation” or “without limiting,” whether or not expressly stated.
(b)      Whenever this Agreement refers to a number of days, unless otherwise specified, such number refers to calendar days. In the computation of periods of time from a specified

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date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding,” and the word “through” means “to and including.”
(c)      References to agreements and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not expressly prohibited by the terms of this Agreement or the Settlement Agreement. References to this Agreement are to this Agreement as in effect as of the relevant time, and mean this Agreement as a whole, including all schedules, exhibits, or appendices hereto, which form part of the operative provisions of this Agreement, in each case, as amended or otherwise modified in accordance with the terms hereof.
(d)      Unless otherwise specified, references to statutes or regulations are to be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation, and references to a particular Applicable Law include all rules and regulations promulgated by Governmental Authorities thereunder, whether or not expressly stated.
(e)      The captions and headings of this Agreement are for convenience of reference only and shall not affect the construction of this Agreement.
(f)      Unless otherwise specified, references to pharmaceutical products, preparations, ingredients, and the like, include biologics, biopharmaceuticals, conjugates, and companion diagnostics, as applicable, and references to products or preparations include products, preparations or therapies involving the relevant product or preparation, including the manufacturing thereof and any manufacturing process or procedure necessary for or conducted in connection with the use or administration thereof.
(g)      For clarity, [*] (i) are directed at one or more of the same target(s), (ii) contain, express, or are derived from substantially the same nucleic acid sequence(s) representing substantially the same tumor antigen(s), (iii) employ or are manufactured using the same vector, and (iv) work through the same pathway or method of action, [*].
(h)      This Agreement has been prepared jointly by the Parties, and the provisions contained herein shall not be construed or interpreted for or against any Party because such Party drafted or caused such Party’s legal representatives to draft any provision contained herein.
1.3      Effective Date . This Agreement shall be effective as of April 27, 2012, the date of execution of the IMDZ-HNG Agreement (the “ Effective Date ”).

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ARTICLE 2
GRANT OF LICENSE
2.1      Grant to IMDZ . Subject to the terms and conditions of this Agreement, TVS hereby grants to IMDZ and its Affiliates a non-transferable (except as permitted by Section 10.1 ), non-exclusive license under the Initial Licensed IP to research, develop, manufacture and commercialize, by or on behalf of itself, Initial Products in the Territory, with the right to sublicense as set forth in Section 2.3 . For the avoidance of doubt, the Parties acknowledge that (a) nothing in this Agreement shall enable IMDZ to [*], (b) that no license is granted hereunder with respect to the Initial Products outside of the Field, (c) that no license is granted under [*] with respect to [*] and (d) that the intellectual property rights licensed to TVS from Institut Pasteur under the Institut Pasteur License Agreement that are included in Licensed IP [*]. IMDZ may, in its discretion, [*].
2.2      No Implied Rights . IMDZ shall obtain no implied rights to the Licensed IP. Any rights not expressly granted to IMDZ shall be retained by TVS, including the right to research, develop, manufacture and commercialize [*] and to license any such rights under the Licensed IP to Third Parties and in any manner not inconsistent with this Agreement; provided, however, that TVS shall not grant any right or license that would adversely affect IMDZ’s rights granted under Section 2.1 . [*].
2.3      Sublicenses . IMDZ shall have the right to sublicense, including through multiple tiers, any and all of the rights, in whole or in part, granted to IMDZ under this Agreement, including under Section 2.1 , to Subcontractors and/or Partners (each, a “ Sublicensee ”), without the consent of TVS; provided, that (a) IMDZ shall promptly [*], (b) each sublicense agreement with a Partner shall contain provisions [*], (c) [*], and (d) upon reasonable request by TVS, IMDZ shall promptly provide to TVS [*].
2.4      Option . Upon written election by IMDZ (on its own behalf or on behalf of its Partner) to TVS, in its sole discretion, IMDZ may exercise an option to obtain a license under the Option Licensed IP for one or more Option Products (the “ Option ”); provided that, IMDZ must exercise its Option with respect to an Option Product [*] for such Option Product (e.g., [*]). Upon exercise of the Option with respect to each Option Product, TVS shall and hereby grants to IMDZ a non-transferable (except as permitted by Section 10.1 ), non-exclusive license under the Option Licensed IP to research, develop, manufacture and commercialize, by or on behalf of itself, Option Products in the Territory, with the right to sublicense as set forth in Section 2.3 in consideration for the Option Product Consideration, and otherwise on the terms and conditions set forth in this Agreement. For the avoidance of doubt, the Parties acknowledge that (a) nothing in this Agreement shall enable IMDZ to produce or perform [*], and (b) that no license is granted hereunder with respect to the Option Products that are outside of the Field. IMDZ may, in its discretion, [*]. For the avoidance of doubt, IMDZ may exercise its Option with respect to any Covered Product, other than CMB305/LV305 or a Derivative Product, at any time prior to the [*], including any Additional Product, irrespective of whether any such Additional Product may have at any time been designated an Initial Product. In the event IMDZ exercises its Option with respect to any Covered Product that was at any time designated an Additional Product or an Initial Product, following such exercise such Covered Product shall be an Option Product hereunder, and IMDZ may designate Additional

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


Products and Initial Products in substitution or replacement of such Option Product subject to the applicable terms of this Agreement regarding Additional Products and Initial Products. Notwithstanding anything to the contrary contained herein, the payments due to TVS on account of a license for an Option Product shall only be the Option Product Consideration, and shall not include the consideration and other payments set forth in Article 3 below.
2.5      Third Party Licensed IP . If the Licensed IP would include intellectual property in-licensed by TVS or its Affiliates from a Third Party [*] (“ Third Party IP ”), such Third Party IP shall only be included in the Licensed IP on a Licensed Product-by-Licensed Product basis if and for so long as (i) [*] with respect to such Licensed Product, and such [*], and (ii) IMDZ [*]. With respect to a particular Licensed Product, IMDZ shall be entitled to [*] under this Agreement. Notwithstanding the foregoing, if, with respect to a Licensed Product, the only Licensed IP that covers researching, developing, manufacturing, commercializing or otherwise exploiting such Licensed Product is Third Party IP, then [*] Licensed Product shall not be subject to [*], but shall only be subject to [*]. Upon reasonable request by IMDZ, TVS shall promptly provide to IMDZ a copy of any Third Party IP in-license agreement, which Third Party IP in-license agreement may be redacted to the extent that such redaction does not impair IMDZ’s ability to verify the terms and obligations for which it must comply in accordance with this Section 2.5 .
ARTICLE 3
CONSIDERATION
3.1      Settlement Agreement . In partial consideration for the rights granted to IMDZ under this Agreement, IMDZ shall pay to TVS the Upfront Payment and, within [*] following the Trigger Event, the Contingent Payment, as each such payment is more particularly described in the Settlement Agreement and subject to the terms and conditions thereof.
3.2      Milestones . With respect to each Initial Product, whether developed by IMDZ [*], IMDZ shall pay to TVS each of the following milestone payments on an Initial Product-by-Initial Product basis upon the first achievement of the corresponding milestone event set forth below by or with respect to the applicable Initial Product:
Milestone Event
Milestone Payment Amount
(i) First Patient Dosed in Phase 1 Trial
[*]
(ii) First Patient Dosed in Phase 2 Trial
[*]
(iii) First Patient Dosed in Phase 3 Trial
[*]
(iv) First Market Regulatory Approval (i.e., receipt of all necessary Regulatory Approvals in the first market or country in the Territory)
[*]
(v) Second Market Regulatory Approval (i.e., receipt of all necessary Regulatory Approvals in the second market or country in the Territory)
[*]


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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


Each of the milestone payments due under this Section 3.2 shall be payable only once per Initial Product and shall be due in accordance with Section 4.1 . Notwithstanding anything to the contrary contained herein, with respect to CMB305/LV305, IMDZ’s obligation to pay the milestone payments corresponding to the achievement of milestone events (i) and (ii) shall be deemed satisfied, and IMDZ shall have no obligation to make milestone payments with respect to the achievement of such milestone events by CMB305/LV305. Further, if an Option Product becomes an Additional Product (or vice versa), then the amounts owed under such new classification shall correspond to such classification thereafter.
3.3      Earned Royalty . Beginning on the date of the First Commercial Sale of an Initial Product and continuing for [*], IMDZ shall pay to TVS a royalty equal to [*] on the aggregate Net Sales of all Initial Products for each Calendar Quarter. Such royalties on Initial Products shall be paid to TVS concurrently with the submittal of Royalty Reports as provided in Section 4.2 below.
3.4      Sales Milestones . IMDZ shall pay to TVS, on an Initial Product by Initial Product basis, a one-time payment in the amount of [*] upon the first time the aggregate Net Sales of an Initial Product equals or exceeds [*] during the Term. The milestone payment under this Section 3.4 shall be payable only once for each Initial Product, and shall be due in accordance with Section 4.1 .
3.5      Sublicensing Revenue . IMDZ shall pay to TVS an amount equal to [*] of Sublicensing Revenue for each [*]. Such royalties on Sublicensing Revenue shall be paid to TVS concurrently with the submittal of Royalty Reports as provided in Section 4.2 below.
3.6      Third Party Licenses . TVS or its Affiliates shall pay all amounts due under Third Party Licenses to which TVS or its Affiliates are party. In the event that IMDZ or its Affiliates pay any amounts due under Third Party Licenses with respect to any Initial Product, [*]. IMDZ shall have the right to carry forward for application against amounts payable to TVS in future periods any uncredited amount until such time when such amounts are fully credited.
3.7      Payment . All milestone payments and royalties due to TVS under this Article 3 shall be made in United States Dollars. If any currency conversion shall be required in connection with the payment of royalties hereunder, such conversion shall be made using the exchange rate published in the American East Coast edition of the Wall Street Journal on the last business day of the Calendar Quarter to which such royalty payments relate, or such other commercially reasonable exchange rate and conversion timing as may be adopted by IMDZ in good faith or agreed with a Partner and notified to TVS in writing. All payments under this Agreement shall be made by bank wire transfer in immediately available funds to an account designated in writing by the Party to which such payments are due.
3.8      Late Payment . Without limiting Section 4.4 , in the event any undisputed royalty payments or fees are not received by TVS when due, IMDZ shall pay to TVS default interest on such unpaid amount at a rate equal to the lower of (a) [*], or (b) the maximum rate of interest allowed by Applicable Law on the total royalties or fees overdue.

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


3.9      Tax Matters . Each Party will be responsible for all taxes, fees, duties, levies or similar amounts imposed on its income, assets, capital, employment, personnel, and right or license to do business. Except as otherwise stated, each Party will be responsible for its own sales tax, use tax, excise tax, value-added tax (VAT), consumption tax, and similar taxes based upon its own activities under the Agreement. Each Party shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement such amounts as may be required to be deducted or withheld by Applicable Law. To the extent that amounts are so deducted or withheld, such amounts shall be treated for all purposes as having been paid to the Party to whom such amounts would otherwise have been owed. Each Party agrees to cooperate in good faith to provide the other Party with such documents and certifications within its possession as may be reasonably requested by the other Party and as are reasonably necessary to enable such other Party to minimize any withholding tax obligations or liabilities, including, if so requested, an Internal Revenue Service Form W-8BEN-E or similar Form W-8. The Parties will reasonably cooperate in completing and filing documents required under the provisions of any Applicable Law in connection with the making of any required tax payment or withholding payment, or in connection with any claim to a refund of or credit for any such payment.
ARTICLE 4
REPORTS AND RECORDS
4.1      Milestones . IMDZ shall provide to TVS written notice of the achievement of each milestone identified in Sections 3.2  and 3.4 or, in the case of Option Products, Sections B.2 and B.4 of Appendix B , within [*] after such milestone is achieved; provided, however, that a failure of IMDZ to provide notice shall neither affect the obligation of IMDZ to make any milestone payment hereunder, nor constitute a breach of this Agreement. After receipt of the applicable notice or following such [*] period, TVS shall submit an invoice to IMDZ with respect to the corresponding milestone payment. In each case, IMDZ shall make the corresponding milestone payment within [*] after its receipt of such invoice.
4.2      Royalty Reports . Following the First Commercial Sale of a Licensed Product, within [*] of the end of each Calendar Quarter, IMDZ shall provide TVS with a written report (a “ Royalty Report ”) setting forth for such Calendar Quarter the Net Sales of Licensed Products, the amount of Sublicensing Revenue received by IMDZ and its Affiliates, and the amounts due to TVS under Sections 3.3 and 3.5 or, in the case of Option Products, Sections B.3 and B.5 of Appendix B .
4.3      Books and Records . IMDZ shall keep and maintain or cause to be kept and maintained true and complete books of account and records of sales of Licensed Products and the receipt of Sublicensing Revenue in sufficient detail to allow TVS to confirm, pursuant to Section 4.4 , the accuracy of royalties and milestones paid and/or payable under Sections 3.2 , 3.3 , 3.4 and 3.5 or, in the case of Option Products, Sections B.2 , B.3 , B.4 and B.5 . Such books and records shall be kept for no less than [*] following the Calendar Year to which they pertain.
4.4      Audit . TVS shall have the right to appoint at its expense an independent, nationally recognized and certified United States public accounting firm and/or technical expert reasonably acceptable to IMDZ, which approval shall not be unreasonably withheld, conditioned, or delayed, to inspect the relevant books and records of IMDZ and its Affiliates for the purpose of verifying

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


reports provided by IMDZ under Section 4.2 . The foregoing audit rights shall be subject to the following qualifications: (a) [*]; (b) each audit shall be limited to the pertinent books and records; and (c) [*]. IMDZ shall make such books and records available for audit by its appointed accounting firm or technical expert during regular business hours at such place or places where such records are customarily kept, upon reasonable written notice from TVS. All books and records made available for audit shall be deemed to be the Confidential Information of IMDZ, and the auditor will only be entitled to disclose to TVS whether there has been an overpayment or underpayment of royalties. The results of each audit, if any, shall be binding on both Parties [*]. TVS shall bear the full cost of each audit, except in the event that the results of the audit reveal an underpayment of royalties to TVS under this Agreement of [*] or more over the period being audited, in which case IMDZ shall pay to TVS [*]. In the event the results of the audit reveal an overpayment of royalties to TVS under this Agreement, TVS shall promptly refund such overpayment to IMDZ prior to the delivery of the next Royalty Report or IMDZ may setoff and reduce any future payment(s) to TVS under this Agreement by the amount of such overpayment.
ARTICLE 5
INTELLECTUAL PROPERTY
5.1      Patent Prosecution and Maintenance . As between the Parties, TVS shall have the [*], to prosecute and maintain the patents and patent applications included in the Licensed IP in its sole discretion and without accounting to or consulting with IMDZ.
5.2      Infringement .
(a)      If any Third Party claims [*] against IMDZ or its Affiliates or Sublicensees, as a result of its or their use of the Licensed IP, then IMDZ shall [*]. As between the Parties, [*], to defend and control the defense of any such claim by counsel of its own choice. IMDZ shall be free to enter into a settlement, consent judgment, or other voluntary disposition of any such claim; provided, that any settlement, consent judgment or other voluntary disposition of any such claim that (i) would [*] or (ii) [*] must be approved by TVS, such approval not to be unreasonably withheld, conditioned, or delayed. IMDZ’s request for such approval shall include [*]. TVS shall provide IMDZ notice of its approval or denial within [*] of any request for such approval by IMDZ, provided that (x) [*], such notice shall include a [*] to the proposed settlement, consent judgment, or other voluntary disposition and (y) TVS shall be deemed to have approved such proposed settlement, consent judgment, or other voluntary disposition in the event it fails to provide such notice within [*] period in accordance herewith. Any amounts paid by [*] to any Third Party as damages or otherwise with respect to infringement of [*] shall be subject to the indemnification obligations of TVS under Section 8.2(c) . Upon reasonable request by IMDZ, TVS agrees to [*] in any reasonable manner deemed by IMDZ to be necessary in defending any such action.
(b)      In the event that any Licensed IP is infringed by a Third Party, [*], to institute, prosecute and control any action or proceeding with respect to such infringement, by counsel of its choice, including any declaratory judgment action arising from such infringement. TVS shall be free to enter into a settlement, consent judgment, or other voluntary disposition with respect to any such action without IMDZ’s written approval.

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



ARTICLE 6
REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1      Mutual Representations, Warranties and Covenants . Each Party represents, warrants and covenants to the other Party as of the Execution Date that:
(a)    it has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof;
(b)    it has full legal power to extend the rights and licenses granted to the other under this Agreement;
(c)    it has taken all necessary action on its part required to authorize the execution and delivery of this Agreement;
(d)    it will conduct its activities under this Agreement in compliance with Applicable Law; and
(e)    neither it nor its Affiliates (i) has been debarred or is subject to debarment proceedings; or (ii) will use in any capacity, in connection with the services to be performed under this Agreement, any Person who has been debarred pursuant to Applicable Law, or who is the subject of a conviction thereof. Each Party agrees to inform the other Party in writing immediately if it or any Person who is performing services hereunder is debarred under Applicable Law or is the subject of a conviction thereof, or if any action, suit, claim, investigation or legal or administrative proceeding is pending or, to the best of such Party’s or its Affiliates’ knowledge, is threatened, relating to the debarment or conviction of such Party or any Person performing services hereunder.
6.2      Representations, Warranties and Covenants of TVS . TVS represents, warrants and covenants to IMDZ as of the Execution Date that:
(a)    it owns or has a license to the Licensed IP, free and clear of all liens, claims and encumbrances;
(b)    neither TVS nor its Affiliates have granted and they will not grant any rights or licenses inconsistent with the rights and licenses granted to IMDZ and its Affiliates hereunder;
(c)    TVS’s execution and performance of this Agreement will not result in a breach of any other agreement to which it is, or will become, a party;
(d)    except as provided in Sections 6.2(e)-(g) below with respect to the Institut Pasteur Consent, TVS has obtained all consents, approvals and authorizations of Third Parties required to be obtained or made in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


(e)    TVS has obtained, as of the Execution Date, or will endeavor in good faith and use its best efforts to obtain as promptly as practicable hereafter, the Institut Pasteur Consent;
(f)    on or before the Execution Date, or as promptly as practicable following TVS’s receipt of the Institut Pasteur Consent, TVS has or shall deliver to IMDZ a true, correct and complete copy of the Institut Pasteur Consent;
(g)    in the event TVS delivers to IMDZ a copy of the Institut Pasteur Consent, and the Institut Pasteur Consent [*], then IMDZ shall promptly notify TVS, and such notice shall include an explanation of any deficiencies; TVS shall consider IMDZ’s comments in good faith and TVS’s obligations under Section 6.2(e) shall remain in effect;
(h)    neither TVS nor its Affiliates have amended or terminated and they will not amend or terminate the Institut Pasteur License Agreement or any other agreement between TVS and/or its Affiliates and any Third Party in a manner that is adverse to IMDZ or its Affiliates or the rights and licenses granted to IMDZ and its Affiliates hereunder;
(i)    neither TVS nor its Affiliates have received any written notice, nor have they received any written threat or allegation indicating that the Licensed IP or any patent included therein is invalid or that the exercise by IMDZ or its Affiliates of the rights granted hereunder will infringe on any patent or other proprietary right of any Third Party; and
(j)     Appendix A sets forth a complete and accurate list of all patents and patent applications included in the TVS Patent Portfolio in existence as of the Execution Date, indicating the owner or co-owners thereof, as applicable.
6.3      DISCLAIMER OF WARRANTY . EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 6 , NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO ANY LICENSED PRODUCT, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES, EXPRESSED OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.4      LIMITATION OF LIABILITY . EXCEPT WITH RESPECT TO [*], NEITHER PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT.
ARTICLE 7
TERM AND TERMINATION
7.1      Term; Expiration of Term . The term of this Agreement shall commence on the Effective Date and, unless terminated sooner pursuant to Section 7.2 , shall expire upon the expiration of the last-to-expire Valid Claim (the “ Term ”). Upon the expiration of the Term, IMDZ shall have a fully paid-up, non-exclusive, perpetual, irrevocable license to use the applicable Licensed IP to research, develop, manufacture and commercialize Licensed Products in the Territory.

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


7.2      Termination .
(a)      Either Party may, without prejudice to any other remedies available to it at law or in equity, terminate this Agreement in the event the other Party shall have materially breached in the performance of any of its material obligations under this Agreement and such breach shall have continued for thirty (30) days after written notice thereof was provided to the breaching Party by the non-breaching Party, such notice describing with particularity and in detail the alleged material breach. Any such termination of this Agreement under this Section 7.2 shall become effective at the end of such thirty (30) day period, unless the breaching Party has cured such breach prior to the end of such thirty (30) day period. A “material breach” means a [*]. For clarity, any [*] shall constitute a material breach of this Agreement.
(b)      IMDZ may terminate this Agreement for any reason upon thirty (30) days advance written notice to TVS.
(c)      In addition to all other legal and equitable rights and remedies available hereunder, either Party shall have the option to terminate this Agreement in its entirety effective immediately upon written notice to the other Party, if, at any time, (i) the other Party shall file in any court or agency pursuant to any Applicable Laws a petition in bankruptcy or insolvency or for reorganization or for an arrangement or for the appointment of a receiver or trustee of the Party or of its assets, (ii) the other Party proposes a written agreement of composition or extension of its debts, (iii) the other Party shall be served with an involuntary petition against it, filed in any insolvency proceeding, and such petition shall not be dismissed within sixty (60) days after the filing thereof, (iv) the other Party shall propose or become a party to any dissolution or liquidation, or (v) if the other Party shall make an assignment for the benefit of creditors. Upon the occurrence of any of the foregoing with respect to TVS or its Affiliates, TVS agrees that IMDZ, as licensee of rights under this Agreement, shall retain and may fully exercise all of its rights and elections under Applicable Laws. All rights and licenses granted under or pursuant to this Agreement by a Party to the other Party are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code and any similar Applicable Laws in any other country in the Territory, licenses of rights to “intellectual property” as defined under Section 101 (35A) of the U.S. Bankruptcy Code. The Parties agree that all intellectual property rights licensed under or pursuant to this Agreement, including any patents or patent applications in any country, are part of the “intellectual property” as defined under Section 101 (35A) of the U.S. Bankruptcy Code subject to the protections afforded the non-rejecting Party under Section 365(n) of the U.S. Bankruptcy Code, and any similar Applicable Law in any other country. The Parties agree that this Agreement shall not be deemed terminated by virtue of any rejection by a Party or its receiver or trustee under Applicable Laws unless the non-rejecting Party fails to exercise its rights under Section 365(n)(1)(B) of the U.S. Bankruptcy Code (or its foreign equivalents). The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against either Party under the U.S. Bankruptcy Code or any Applicable Laws in any other country or jurisdiction, if this Agreement is not terminated or deemed terminated, the Party hereto that is not the subject of such proceeding shall be entitled to a complete duplicate of (or complete access to, as appropriate) all such intellectual property and all embodiments of such intellectual property, which, if not already in such Party’s possession, shall be promptly delivered to it upon such Party’s written request, unless the Party subject to such

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


proceeding elects to continue to perform all of its obligations under this Agreement. The Parties acknowledge that all references to the U.S. Bankruptcy Code are not relevant with respect to any actions described in (i) – (v) above that occur under laws outside of the United States.
7.3      Effect of Termination . Except as provided in Section 7.2(c) , upon termination of this Agreement pursuant to Section 7.2 :
(a)      Except as provided in this Section 7.3 , from and after the effective date of termination, (i) all rights and licenses granted by TVS to IMDZ and its Affiliates will terminate, (ii) IMDZ and its Affiliates and Sublicensees will cease all use of the Licensed IP, and (iii) any sublicense granted by IMDZ or its Affiliates pursuant to Section 2.3 shall terminate as of the effective date of termination.
(b)      Except with respect to termination by TVS for IMDZ’s uncured material breach pursuant to Section 7.2(a) , IMDZ and its Affiliates and Sublicensees shall have the right, subject to the economic obligations of Article 3 , to [*].
(c)      IMDZ shall also have the right to [*]; provided, however that IMDZ’s right to [*] shall not exceed [*] required by Applicable Law. All Licensed Products in the possession or under the control of IMDZ or its Affiliates or Sublicensees (including any in the process of manufacture) which are [*] in compliance with Applicable Law at [*] or its Affiliates or Sublicensees and subject to [*].
(d)      Any termination of this Agreement shall not relieve IMDZ of its obligation to pay any royalty or other fees due to TVS at the time of such termination.
ARTICLE 8
INDEMNIFICATION
8.1      Indemnification by IMDZ . IMDZ agrees to indemnify, hold harmless and defend TVS, its officers, employees, and agents (collectively, the “ TVS Parties ”) from and against any and all liability, losses, damages, costs, or expenses (including reasonable attorneys’ fees) (collectively, “ Losses ”) incurred by a TVS Party in connection with any and all suits, investigations, claims or demands of Third Parties resulting from or arising out of (a) IMDZ’s breach of any obligation, covenant, representation or warranty under this Agreement, (b) IMDZ’s failure to comply with any Applicable Law in the course of its activities under this Agreement or (c) [*], in each case except to the extent that such Losses result from or arise out of any TVS Party’s negligence, recklessness, intentional misconduct, breach of this Agreement, failure to comply with any Applicable Law, or are indemnifiable by TVS under Section 8.2 .
8.2      Indemnification by TVS . TVS agrees to indemnify, hold harmless and defend IMDZ, its officers, employees, and agents (collectively, the “ IMDZ Parties ”) from and against any and all Losses incurred by an IMDZ Party in connection with any and all suits, investigations, claims or demands of Third Parties resulting from or arising out of (a) TVS’s breach of any obligation, covenant, representation or warranty under this Agreement, (b) TVS’s failure to comply with any Applicable Law in the course of its activities under this Agreement, in each case, except to the

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


extent that such Losses result from or arise out of any IMDZ Party’s negligence, recklessness, intentional misconduct, uncured breach of this Agreement, failure to comply with any Applicable Law, or are indemnifiable by IMDZ under Section 8.1 .
8.3      [*] . Any exercise by a Party of its rights under this Section 8.3 will be without prejudice to any other legal or equitable rights or remedies available under this Agreement.
8.4      Insurance . During the Term, each Party shall maintain in force, with reputable insurance companies, general liability insurance and products liability insurance coverage in an amount reasonably sufficient to cover its obligations and liabilities under this Agreement.
ARTICLE 9
CONFIDENTIALITY
9.1      Confidentiality; Exceptions . Except to the extent expressly authorized by this Agreement or otherwise agreed in writing, the Parties agree that a Party receiving or accessing Confidential Information of the other Party or its Affiliates (the “ Receiving Party ”) shall keep confidential and shall not publish or otherwise disclose or use for any purpose other than as provided for in this Agreement, from the Execution Date until [*], any Confidential Information which is disclosed to it by the other Party or its Affiliates (the “ Disclosing Party ”) or otherwise received or accessed by a Receiving Party in the course of performing its obligations or exercising its rights under this Agreement, except to the extent that it can be established by the Receiving Party that such Confidential Information:
(a)      was in the lawful knowledge and possession of the Receiving Party prior to the time it was disclosed to, or learned by, the Receiving Party, or was otherwise developed independently by the Receiving Party, as evidenced by written records kept in the ordinary course of business, or other documentary proof of actual knowledge by the Receiving Party;
(b)      was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party;
(c)      became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; or
(d)      was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a Third Party who had no obligation to the Disclosing Party not to disclose such information to others.
9.2      Authorized Disclosure . Except as otherwise provided in this Agreement, a Receiving Party may use and disclose Confidential Information of the Disclosing Party as follows: (a) Confidential Information may be shared with a Party’s and its Affiliates’ employees and agents (including, without limitation, consultants, attorneys, accountants and financial advisors) under appropriate confidentiality provisions not less restrictive than those contained in this Agreement, in connection with the performance of its obligations or exercise of rights granted or reserved in

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


this Agreement; (b) to the extent such disclosure is reasonably necessary in [*], complying with applicable governmental regulations, obtaining Regulatory Approval, complying with government subpoenas, marketing Licensed Products or otherwise required by Applicable Law; provided, however, that if a Receiving Party is required by subpoena or Applicable Law to make any such disclosure of a Disclosing Party’s Confidential Information it shall give reasonable advance notice to the Disclosing Party of such disclosure requirement and, except to the extent inappropriate in the case of [*], shall use its reasonable efforts to the extent practicable to secure confidential treatment of such Confidential Information required to be disclosed; (c) to existing or prospective advisors or investors, in each case under appropriate confidentiality provisions not less restrictive than those contained in this Agreement; (d) as reasonably required under the circumstances, to a Third Party in connection with: (i) a merger, consolidation or similar transaction by such Party, or (ii) the sale of all or substantially all of the assets of such Party or to which this Agreement relates, in each case under appropriate confidentiality provisions not less restrictive than those contained in this Agreement; (e) to the extent necessary, Confidential Information may be shared with [*] under appropriate confidentiality provisions not less restrictive than those contained in this Agreement; or (f) to the extent mutually agreed in writing by the Parties. In each of the above authorized disclosures, except to the extent such disclosure is required by Applicable Law, the Receiving Party shall remain responsible for any failure by any Person who receives the Confidential Information pursuant to this Section 9.2 to treat such Confidential Information as required under this Article 9 .
ARTICLE 10
MISCELLANEOUS
10.1      Assignment . Neither TVS nor IMDZ may assign, directly or indirectly, this Agreement to any Third Party this Agreement and its rights and obligations hereunder without the prior written consent of the other Party; provided, however, that IMDZ may assign this Agreement and its rights and obligations hereunder without TVS’s prior written consent (a) to any Affiliate, (b) to any Person that acquires all of the assets of IMDZ or its Affiliates or the assets or business of IMDZ or its Affiliates related to the subject matter of this Agreement, or (c) to a successor-in-interest to IMDZ or its Affiliates by way of merger, consolidation or other similar transaction, and TVS may assign this Agreement and its rights and obligations hereunder without IMDZ’s prior written consent (a) to any Affiliate, (b) to any Person that acquires all of the assets of TVS or its Affiliates or the assets or business of TVS or its Affiliates related to the subject matter of this Agreement, or (c) to a successor-in-interest to TVS or its Affiliates by way of merger, consolidation or other similar transaction, so long as the Settlement Agreement is concurrently assigned to such assignee. Any attempted assignment in violation hereof shall be void. For clarity, for the purposes of this Section 10.1, no Person or successor-in-interest shall have as its primary business the conduct of illegal activities.
10.2      Successors-In-Interest . As used in this Agreement, references to a Party include its permitted assignees and respective successors in title or interest to its undertaking. In the event that the [*], except for Sections 6.1 and 6.2, (a) this Agreement and the rights, licenses and privileges granted by TVS to IMDZ hereunder shall [*], and (b) IMDZ, its Affiliates and any Sublicensees shall receive automatically, without the need for any action on their behalf, such rights, licenses and privileges [*] (including any such rights, licenses, or privileges granted by their licensors), (a)

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


and (b) being limited to [*]. IMDZ [*] may enter into a written agreement or written amendment or other modification to this Agreement reflecting the foregoing, but such rights, licenses and privileges shall be effective as of such termination or succession on the terms and conditions contemplated hereby. Subject to Section 10.1 and the foregoing, this Agreement shall inure to the benefit of each Party, its successors and permitted assigns.
10.3      Relationship Management . As soon as practicable, but no later than thirty (30) days following the Execution Date, IMDZ and TVS will each appoint a representative to act on their own behalf (each a “ Relationship Manager ”). Each Relationship Manager will have the authority, respectively, to act on behalf of IMDZ and TVS, as applicable, with regard to this Agreement and the matters encompassed by this Agreement. Each Party may change its Relationship Manager at any time by providing notice of such change to the other Party. In the event of any dispute, claim, question or disagreement between the Parties arising from or relating to this Agreement or the breach thereof, the Parties shall use their commercially reasonable efforts to settle the dispute, claim, question or disagreement. To this effect, the Relationship Managers from each Party shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. If they do not reach such solution within a period of thirty (30) days of the applicable representative’s first notification of the dispute, then either Party may, upon written notice to the other, escalate the dispute to officers of each Party designated by such Party for such purpose.
10.4      Change of Control . Upon a Change of Control of IMDZ, the right to exercise the Option with respect to any additional Option Products pursuant to Section 2.4 shall [*]; provided that, such right to exercise the Option shall [*] pursuant to this Section 10.4 if and for so long as (i) at least [*] of the surviving or resulting corporation (or its ultimate parent entity) immediately following such Change of Control had been [*] immediately prior to such Change of Control, (ii) at least [*] of the surviving or resulting corporation (or its ultimate parent entity) immediately following such Change of Control had been [*] immediately prior to such Change of Control, and (iii) a substantial portion of the [*] of the surviving or resulting corporation [*] of IMDZ immediately prior to the Change of Control.
10.5      Force Majeure . Neither Party shall be liable for failure of or delay in performing obligations set forth in this Agreement, and neither shall be deemed in breach of its obligations, if such failure or delay is due to any occurrence beyond the reasonable control of a Party that (a) prevents or substantially interferes with the performance by such Party of any of its obligations hereunder and (b) occurs by reason of any act of God, flood, fire, explosion, earthquake, strike, lockout, labor dispute, casualty or accident, or war, revolution, civil commotion, act of terrorism, blockage or embargo, or any injunction, law, order, proclamation, regulation, ordinance, demand or requirement of any government or of any subdivision, authority or representative of any such government (each, a “ Force Majeure ”). In event of such Force Majeure, the Party affected shall use reasonable efforts to cure or overcome the same and resume performance of its obligations hereunder.
10.6      Waiver . Waiver by a Party of a breach hereunder by the other Party shall not be construed as a waiver of any subsequent breach of the same or any other provision. No delay or

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


omission by a Party in exercising or availing itself of any right, power or privilege hereunder shall preclude the later exercise of any such right, power or privilege by such Party. No waiver shall be effective unless made in writing with specific reference to the relevant provision(s) of this Agreement and signed by a duly authorized representative of the Party granting the waiver.
10.7      Use of Name . Except for the limited circumstances delineated in Section 9.2, Neither Party shall, without the prior written consent of the other Party, use the name or any trademark or trade name owned by the other Party in any publication, publicity, advertising, or otherwise.
10.8      Independent Contractors . Nothing herein shall be construed to create any relationship of employer and employee, agent and principal, partnership or joint venture between the Parties. Each Party is an independent contractor. Except for indemnification pursuant to Article 8 , neither Party shall assume, either directly or indirectly, any liability of or for the other Party. The Parties shall not have the authority to bind or obligate the other Party and neither Party shall represent that it has such authority.
10.9      Notices . Any notices, instructions and other communications required or permitted hereunder or in connection herewith shall be in writing and deemed to have been properly given if delivered in person, sent by a reputable overnight express courier service, prepaid, or mailed by first-class mail, postage prepaid, to the relevant Party at the appropriate address as set forth below:
If to TVS:
Theravectys
1, Mail du Professeur Georges Mathé
94800 Villejuif
France
Alain Clergeot, CEO
with a copy (which shall not constitute notice) to:
Ropes & Gray LLP
Prudential Tower
800 Boylston Street
Boston, MA 02199-3600
United States of America
Attention: Marc A. Rubenstein


If to IMDZ:
Immune Design
601 Gateway Boulevard, Suite 250
South San Francisco, California 94080
United States of America
Attention: Legal Department

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



with a copy (which shall not constitute notice) to:
Hogan Lovells US LLP
100 International Drive, Suite 2000
Baltimore, Maryland 21202
United States of America
Attention: Asher M. Rubin

Either Party may change its address by giving notice to the other Party in the manner provided above.
10.10      Governing Law; Submission to Jurisdiction . This Agreement, and any dispute arising out of or relating in any way to this Agreement, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the laws of the [*], without regard to conflicts of law principles. Any and all disagreements or controversies arising out of or relating to this Agreement shall be brought in the federal or state courts located in the [*]. Each of the Parties hereby submits to the exclusive jurisdiction of the [*], with respect to any action, proceeding, claim or controversy arising out of or relating to this Agreement. [*], in the event that the [*] pursuant to Section 10.2, then: (a) this Agreement, and any dispute arising out of or relating in any way to this Agreement, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the laws of [*], without regard to conflicts of law principles, and (b) any and all disagreements or controversies arising out of or relating to this Agreement shall be submitted to the [*] for resolution by arbitration under the [*] in effect as of the Execution Date of this Agreement.  [*] shall have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding instituted to resolve a disputed matter. The place of arbitration shall be [*].  The language of arbitration shall be [*], and the number of arbitrators appointed shall be either one or three.  Notwithstanding the foregoing, for the avoidance of doubt, any dispute relating to [*] shall be excluded from arbitration.
10.11      Severability . If any provision of this Agreement should be held invalid, illegal, or unenforceable under Applicable Laws by a Governmental Authority of competent jurisdiction in any jurisdiction, (a) such provision shall be enforced in such jurisdiction to the maximum extent permitted under Applicable Laws in such jurisdiction, (b) the Parties shall negotiate in good faith and agree on a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the Parties, and (c) all other provisions of this Agreement shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the Parties as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision or this Agreement in any other jurisdiction.
10.12      Compliance with Applicable Law . Each Party shall comply, and shall require their Affiliates and permitted sublicensees to comply, with all Applicable Law relative to their obligations hereunder.
10.13      Further Assurances . Upon the terms and subject to the conditions hereof, TVS will use all reasonable efforts to (a) take, or cause to be taken, all actions necessary, proper or advisable

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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


under Applicable Law or otherwise to consummate and make effective the transactions contemplated by this Agreement, (b) obtain from the requisite Governmental Authorities and Third Parties any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained or made in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, and (c) make all necessary filings, and thereafter make any other advisable submissions, with respect to this Agreement and the transactions contemplated by this Agreement required to be made under Applicable Law. The Parties will cooperate with each other in connection with such actions and the making of all such filings. Each Party will furnish all information in its possession and control (or in its control and accessible by it consistent with its regular business practices) required for any action or filing to be made pursuant to the rules and regulations of any Applicable Law in connection with the transactions contemplated by this Agreement.
10.14      Entire Agreement; Written Modifications . This Agreement, together with the attachments hereto, contains the entire agreement between the Parties with respect to the subject matter hereof, supersedes all prior written or oral communications, agreements or understanding that may have existed prior to the execution of this Agreement, and may be amended or modified only by a written instrument signed by or on behalf of all Parties or their respective successors-in-interest. In the event of any conflict or inconsistency between this Agreement and the Settlement Agreement, the terms and conditions of this Agreement shall govern and control.
10.15      Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. This Agreement may be executed by exchange between the Parties of electronically transmitted signatures (via facsimile, PDF format via email or other electronic means) and such signatures shall be deemed to bind each Party hereto as if they were original signatures.
[signature page follows]


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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


IN WITNESS WHEREOF, TVS and IMDZ have caused this License Agreement to be executed by their duly authorized representatives as of the date first set forth above.
THERAVECTYS SA
 
IMMUNE DESIGN CORP.
 
 
 
By: /s/ Alain Clergeot            
 
By: /s/ Carlos V. Paya                
Name:    Alain Clergeot
 
Name:    Carlos V. Paya, MD, PhD
Title:     Chief Executive Officer
 
Title:     President and Chief Executive Officer


[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




APPENDIX A
TVS PATENT PORTFOLIO

[*]


[*] = Three (3) pages of certain confidential information contained in this Appendix A, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




APPENDIX B
OPTION PRODUCT CONSIDERATION

B.1     Upfront Payment . Within [*] of the written election of IMDZ to exercise its Option with respect to an Option Product, IMDZ shall pay to TVS an upfront license fee of [*].
B.2     Milestones . With respect to each Option Product, whether developed by IMDZ directly [*], IMDZ shall pay to TVS each of the following milestone payments on an Option Product-by-Option Product basis upon the first achievement of the corresponding milestone event set forth below by or with respect to the applicable Option Product:
Milestone Event
Milestone Payment Amount
(i) First Patient Dosed in Phase 1 Trial
[*]
(ii) First Patient Dosed in Phase 2 Trial
[*]
(iii) First Patient Dosed in Phase 3 Trial
[*]
(iv) First Market Regulatory Approval (i.e., receipt of all necessary Regulatory Approvals in the first market or country in the Territory)
[*]
(v) Second Market Regulatory Approval (i.e., receipt of all necessary Regulatory Approvals in the second market or country in the Territory)
[*]

Each of the milestone payments due under this Section B.2 shall be payable only once per Option Product and shall be due in accordance with Section 4.1 .
B.3     Earned Royalty . Beginning on the date of the First Commercial Sale of an Option Product and continuing for the remainder of the Term, IMDZ shall pay to TVS a royalty on that portion of the annual Net Sales of each Option Product set forth in the chart below. Such royalties on Option Products shall be paid to TVS concurrently with the submittal of Royalty Reports as provided in Section 4.2 .
That portion of annual Net Sales of an Option Product [*]
[*]
That portion of annual Net Sales of an Option Product [*]
[*]
That portion of annual Net Sales of an Option Product [*]
[*]

B.4     Sales Milestones . IMDZ shall pay to TVS, on an Option Product-by-Option Product basis, a one-time payment in the amount of [*] upon the first time the aggregate Net Sales of an Option Product equals or exceeds [*] during the Term. The milestone payment under this Section

[*] = Certain confidential information contained in this Appendix B, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




B.4 shall be payable only once for each Option Product, and shall be due in accordance with Section 4.1 .
B.5     Sublicensing Revenue . IMDZ shall pay to TVS an amount equal to [*] of Sublicensing Revenue for each Option Product for each [*]. Such royalties on Sublicensing Revenue shall be paid to TVS concurrently with the submittal of Royalty Reports as provided in Section 4.2 .
B.6     Third Party Licenses . In the event that IMDZ or its Affiliates pay any amounts due under Third Party Licenses with respect to any Option Product, [*]. IMDZ shall have the right to carry forward for application against amounts payable to TVS in future periods any uncredited amount until such time when such amounts are fully credited.
B.7     Payment . All milestone payments and royalties due to TVS under this Appendix B shall be made in United States Dollars. If any currency conversion shall be required in connection with the payment of royalties hereunder, such conversion shall be made using the exchange rate published in the American East Coast edition of the Wall Street Journal on the last business day of the Calendar Quarter to which such royalty payments relate, or such other commercially reasonable exchange rate and conversion timing as may be adopted by IMDZ in good faith or agreed with a Partner and notified to TVS in writing. All payments under this Agreement shall be made by bank wire transfer in immediately available funds to an account designated in writing by the Party to which such payments are due.
B.8     Late Payment . Without limiting Section 4.4 , in the event any undisputed royalty payments or fees are not received by TVS when due, IMDZ shall pay to TVS default interest on such unpaid amount at a rate equal to the lower of (a) [*] or (b) the maximum rate of interest allowed by Applicable Law on the total royalties or fees overdue.
B.9     Tax Matters . Each Party will be responsible for all taxes, fees, duties, levies or similar amounts imposed on its income, assets, capital, employment, personnel, and right or license to do business. Except as otherwise stated, each Party will be responsible for its own sales tax, use tax, excise tax, value-added tax (VAT), consumption tax, and similar taxes based upon its own activities under the Agreement. Each Party shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement such amounts as may be required to be deducted or withheld by Applicable Law. To the extent that amounts are so deducted or withheld, such amounts shall be treated for all purposes as having been paid to the Party to whom such amounts would otherwise have been owed. Each Party agrees to cooperate in good faith to provide the other Party with such documents and certifications within its possession as may be reasonably requested by the other Party and as are reasonably necessary to enable such other Party to minimize any withholding tax obligations or liabilities, including, if so requested, an Internal Revenue Service Form W-8BEN-E or similar Form W-8. The Parties will reasonably cooperate in completing and filing documents required under the provisions of any Applicable Law in connection with the making of any required tax payment or withholding payment, or in connection with any claim to a refund of or credit for any such payment.


[*] = Certain confidential information contained in this Appendix B, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.