Employment Agreement
This Employment Agreement (this “Agreement”), dated as of August 12, 2019, is made by and between SELECTA BIOSCIENCES, INC., a Delaware corporation (together with any successor thereto, the “Company”), and Bradford D. Dahms. (“Executive”) (collectively referred to as the “Parties” or individually referred to as a “Party”), and effective as of September 3, 2019 (the “Effective Date”).
RECITALS
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A.
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It is the desire of the Company to assure itself of the services of Executive on the Effective Date and thereafter by entering into this Agreement.
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B.
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Executive and the Company mutually desire that Executive provide services to the Company on the terms herein provided.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective covenants and agreements set forth below, the Parties hereto agree as follows:
1.Employment.
(a) General. Effective on the Effective Date, the Company shall employ Executive and Executive shall be employed by the Company, for the period and in the positions set forth in this Section 1, and subject to the other terms and conditions herein provided.
(b) At-Will Employment. The Company and Executive acknowledge that Executive’s employment is and shall continue to be at-will, as defined under applicable law, and that Executive’s employment with the Company may be terminated by either Party at any time for any or no reason (subject to the notice requirements of Section 3(b)). This “at-will” nature of Executive’s employment shall remain unchanged during Executive’s tenure as an employee and may not be changed, except in an express writing signed by Executive and a duly authorized officer of the Company. If Executive’s employment terminates for any reason, Executive shall not be entitled to any payments, benefits, damages, award or compensation other than as provided in this Agreement or otherwise agreed to in writing by the Company or as provided by applicable law. The term of this Agreement (the “Term”) shall commence on the Effective Date and end on the date this Agreement is terminated under Section 3.
(c) Positions and Duties. Executive shall serve as the Chief Financial Officer of the Company with such responsibilities, duties and authority normally associated with such positions and as may from time to time be reasonably assigned to Executive by the Chief Executive Officer of the Company. Executive shall devote substantially all of Executive’s working time and efforts to the business and affairs of the Company (which shall include service to its affiliates, if applicable), provided that Executive may engage in outside business activities (including serving on outside boards or committees) following approval by the Board of Directors of the Company or an authorized committee thereof (in either case, the “Board”) to the extent such activities do not materially interfere with the performance of Executive’s duties and responsibilities under this Agreement or violate the terms of the Employee Nondisclosure, Noncompetition and Assignment of Intellectual Property Agreement attached as Exhibit B (the “Restrictive Covenant Agreement”). Executive agrees to observe and comply with the rules and policies of the Company as adopted by the Company from time to time, in each case as amended from time to time, as set forth in writing, and as delivered or made available to Executive (each, a “Policy”).
2. Compensation and Related Matters.
(a) Annual Base Salary. During the Term, Executive shall receive a base salary at a rate of $350,000 per annum, which shall be paid in accordance with the customary payroll practices of the Company and shall be pro-rated for partial years of employment. Upon Executive’s six-month anniversary, the Company will re-evaluate Executive’s base salary according to external market data and performance. Such annual base salary shall be reviewed (and may be increased) from time to time by the Board (such annual base salary, as it may be increased from time to time, the “Annual Base Salary”).
(b) Bonus. During the Term, Executive will be eligible to participate, on the same basis as other actively employed senior executives of the Company, in an annual incentive program established by the Board. Executive’s annual incentive compensation under such incentive program (the “Annual Bonus”) shall be targeted at 40% of Executive’s Annual Base Salary (the “Target Bonus”). The Annual Bonus payable under the incentive program shall be based on the achievement of performance goals to be determined by the Board; provided that, Executive’s Annual Bonus for the Company’s 2019 fiscal year shall be prorated for time employed for 2019. The payment of any Annual Bonus will be made on or before March 15 of the year following the calendar year in which such Annual Bonus is earned, subject to Executive’s continued employment through the last day of such year.
(c) Benefits. During the Term, Executive shall be eligible to participate, on the same basis as other actively employed senior executives of the Company, in employee benefit plans, programs and arrangements of the Company (including medical, dental and 401(k) plans), consistent with the terms thereof and as such plans, programs and arrangements may be amended from time to time. In no event shall Executive be eligible to participate in any severance plan or program of the Company, except as set forth in Section 4 of this Agreement.
(d) Vacation. During the Term, Executive shall be entitled to accrue four weeks of paid vacation per year in accordance with the Company’s policies. Vacation days accrued, but not used by the end of the calendar year may be used in the subsequent calendar year; provided that no more than five accrued vacation days may be carried over from one year to the next. Any vacation shall be taken at the reasonable and mutual convenience of the Company and Executive.
(e) Business Expenses. During the Term, the Company shall reimburse Executive for all reasonable travel and other business expenses incurred by Executive in the performance of Executive’s duties to the Company in accordance with the Company’s expense reimbursement Policy.
(f) Key Person Insurance. At any time during the Term, the Company shall have the right to insure the life of Executive for the Company’s sole benefit. The Company shall have the right to determine the amount of insurance and the type of policy. Executive shall reasonably cooperate with the Company in obtaining such insurance by submitting to physical examinations, by supplying all information reasonably required by any insurance carrier, and by executing all necessary documents reasonably required by any insurance carrier, provided that any information provided to an insurance company or broker shall not be provided to the Company without the prior written authorization of Executive. Executive shall incur no financial obligation by executing any required document, and shall have no interest in any such policy.
(g) Stock Options. No later than the first regularly scheduled meeting of the Board following the Effective Date, and subject to the approval of the Board, Executive will be granted an option to purchase 400,000 shares of common stock of the Company with an exercise price per share equal to the
closing price per share of the Company’s common stock on the date of grant or the last trading day preceding the date of grant if the date of grant is not a trading day (the “Option”). Subject to Executive’s continued employment by the Company, the Option shall vest over a four-year period, with 25% vesting on the first anniversary of the Effective Date and the remaining 75% vesting on each monthly anniversary of the Effective date in 36 equal monthly installments following the first anniversary of the Effective Date. The Option will be subject to the terms of the Selecta Biosciences, Inc. 2018 Employment Inducement Incentive Award Plan (the “2018 EIIAP”) and the applicable award agreement evidencing such award.
(h) Signing Bonus. Executive shall receive a single lump-sum cash payment of $50,000, payable at the same time as Executive’s first regularly scheduled Company paycheck, subject to and conditioned upon Executive’s continued employment through the payment date (the “Signing Bonus”). If Executive’s employment is terminated by the Company for Cause or by Executive other than for Good Reason (as defined below), in either case within 12 months of the Effective Date, Executive will repay the Company the full amount of the Signing Bonus and the Company will be entitled (but not required) to deduct the amount of any such repayment obligations from any amounts otherwise payable to Executive by the Company or any of its affiliates.
(i) Relocation. The parties acknowledge that the Company’s principal place of business is currently in Watertown, Massachusetts and Executive’s primary residence is currently in the state of New York. Executive agrees to relocate his primary residence to the greater Boston, Massachusetts area prior to the first anniversary of the Effective Date. For the avoidance of doubt, Executive’s failure to relocate his primary residence to the greater Boston, Massachusetts area prior to the first anniversary of the Effective Date will constitute a breach of a material provision of this Agreement that entitles the Company to terminate Executive’s employment for Cause (as defined below) without the requirement that the Executive be provided written notice of, or an opportunity to cure, such breach. Until Executive relocates to the greater Boston, Massachusetts area, Executive will be permitted from time to time to perform his obligations under this Agreement remotely, provided that Executive will spend such time at the Company’s principal place of business in Watertown, Massachusetts as the Company’s Chief Executive Officer reasonably determines is necessary or appropriate for Executive to perform his duties and responsibilities under this Agreement. During the first twelve months of the Term or until Executive’s earlier relocation to the greater Boston, Massachusetts area, notwithstanding any contrary terms of the Company’s expense reimbursement Policy, but subject to Section 9(l)(iv) the Company shall reimburse Executive for reasonable expenses incurred by Executive for travel between Massachusetts and New York in performing his duties for the Company, including airfare, lodging accommodations, and local transportation, up to a maximum monthly amount of $6,100, which maximum, for avoidance of doubt, shall not limit amounts otherwise reimbursable under the Company’s expense reimbursement Policy. To the extent the Company reasonably determines all or a portion of any such reimbursement constitutes taxable income to Executive, Executive will be liable and responsible for the employee portion of all taxes owed in connection therewith and the Company may (but will not be required to) deduct or withhold such taxes from any compensation payable to Executive by the Company or its affiliates. Further, the Company will reimburse Executive for (or pay directly on Executive’s behalf) Executive’s reasonable moving expenses incurred in connection with Executive’s relocation to the greater Boston, Massachusetts area in an amount not to exceed $75,000 (the “Relocation Allowance”), provided that such relocation occurs prior to the first anniversary of the Effective Date. Documentation reasonably acceptable to the Company of all reimbursable moving expenses must be submitted to the Company promptly following the date such expenses are incurred. All payments of the Relocation Allowance will be provided within 60 days following Executive’s submission to the Company of such documentation, except that in no event will any payments of Relocation Allowance be made other than in calendar year
2020. Executive will be liable and responsible for the employee portion of all taxes owed in connection with the Relocation Allowance (to the extent the Company reasonably determines all or a portion of the Relocation Allowance constitutes taxable income to Executive), and the Company may (but will not be required to) deduct or withhold such taxes from any compensation payable to Executive by the Company or its affiliates. If (i) Executive’s employment is terminated by the Company for Cause (as defined below) or by Executive other than for Good Reason (as defined below), in either case within 12 months of the date Executive relocates to the greater Boston area, or (ii) Executive fails to relocate to the greater Boston, Massachusetts area prior to the first anniversary of the Effective Date, Executive will repay the Company the full amount of any Relocation Allowance paid to Executive (or paid on Executive’s behalf), and the Company will be entitled (but not required) to deduct the amount of any such repayment obligations from any amounts otherwise payable to Executive by the Company or any of its affiliates.
3. Termination.
Executive’s employment hereunder may be terminated by the Company or Executive, as applicable, without any breach of this Agreement under the following circumstances:
(a) Circumstances.
(i) Death. Executive’s employment hereunder shall terminate upon Executive’s death.
(ii) Disability. If Executive has incurred a Disability, as defined below, the Company may terminate Executive’s employment.
(iii) Termination for Cause. The Company may terminate Executive’s employment for Cause, as defined below.
(iv) Termination without Cause. The Company may terminate Executive’s employment without Cause.
(v) Resignation from the Company with Good Reason. Executive may resign Executive’s employment with the Company with Good Reason, as defined below.
(vi) Resignation from the Company without Good Reason. Executive may resign Executive’s employment with the Company for any reason other than Good Reason or for no reason.
(b) Notice of Termination. Any termination of Executive’s employment by the Company or by Executive under this Section 3 (other than termination pursuant to Section 3(a)(i)) shall be communicated by a written notice to the other Party hereto (i) indicating the specific termination provision in this Agreement relied upon, (ii) setting forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated, if applicable, and (iii) specifying a Date of Termination which, except in the case of a termination pursuant to Section 3(a)(iii), shall be at least thirty-five (35) days following the date of such notice, but no more than forty-five (45) days following the date of such notice (a “Notice of Termination”); provided, however, that in the case of a termination pursuant to Section 3(a)(v) the Date of Termination will be subject to the Company’s right to cure pursuant to Section 7(f) and provided further, however, that the Company may deliver a Notice of Termination to Executive that specifies any Date of Termination that occurs on or after the date of the Notice of Termination (but no more than forty (40) days following the
date of such notice) and, in the event that Executive delivers a Notice of Termination to the Company, the Company may, in its sole discretion, change the Date of Termination to any date that occurs on or following the date of the Notice of Termination and is prior to the Date of Termination specified in the Notice of Termination, provided, in either case , that if the Company selects a Date of Termination that is less than thirty (30) days after the date of the Notice of Termination the Company will pay Executive the base salary Executive would have earned during the period commencing on the Date of Termination selected by the Company and ending thirty (30) days after the date of the Notice of Termination. The failure by either party to set forth in the Notice of Termination any fact or circumstance shall not waive any right of the party hereunder or preclude the party from asserting such fact or circumstance in enforcing the party’s rights hereunder.
(c) Company Obligations upon Termination. Upon termination of Executive’s employment pursuant to any of the circumstances listed in this Section 3, Executive (or Executive’s estate) shall be entitled to receive the sum of: (i) the portion of Executive’s Annual Base Salary earned through the Date of Termination, but not yet paid to Executive; (ii) any unpaid Annual Bonus earned by Executive for the year prior to the year in which the Date of Termination occurs, as determined by the Board in its good faith discretion based upon actual performance achieved, which Annual Bonus, if any, shall be paid to Executive when bonuses for such year are paid to actively employed senior executives of the Company but in no event later than March 15 of the year in which the Date of Termination occurs; (iii) any expenses owed to Executive pursuant to Section 2(e); and (iv) any amount accrued and arising from Executive’s participation in, or benefits accrued under any employee benefit plans, programs or arrangements, which amounts shall be payable in accordance with the terms and conditions of such employee benefit plans, programs or arrangements (collectively, the “Company Arrangements”). Except as otherwise expressly required by law (e.g., COBRA) or as specifically provided in a benefit plan or herein, all of Executive’s rights to salary, severance, benefits, bonuses and other compensatory amounts hereunder (if any) shall cease upon the termination of Executive’s employment hereunder.
(d) Deemed Resignation. Upon termination of Executive’s employment for any reason, Executive shall be deemed to have resigned from all offices and directorships, if any, then held with the Company or any of its subsidiaries.
4. Severance Payments.
(a) Termination for Cause, or Termination Upon Death, Disability or Resignation from the Company Without Good Reason. If Executive’s employment shall terminate as a result of Executive’s death pursuant to Section 3(a)(i) or Disability pursuant to Section 3(a)(ii), pursuant to Section 3(a)(iii) for Cause, or pursuant to Section 3(a)(vi) for Executive’s resignation from the Company without Good Reason, then Executive shall not be entitled to any severance payments or benefits, except as provided in Section 3(c).
(b) Termination without Cause, or Resignation from the Company with Good Reason. If Executive’s employment terminates without Cause pursuant to Section 3(a)(iv), or pursuant to Section 3(a)(v) due to Executive’s resignation with Good Reason, then, subject to Executive signing on or before the 60th day following Executive’s Separation from Service (as defined below), and not revoking, a release of claims (which Executive will receive no later than ten (10) business days following Executive’s Separation from Service) substantially in the form attached as Exhibit A to this Agreement (the “Release”), and Executive’s continued compliance with Section 5, Executive shall receive, in addition to payments and benefits set forth in Section 3(c), the following:
(i) an amount in cash equal to the then current Annual Base Salary, payable in the form of salary continuation in regular installments over the 12-month period following the date of Executive’s Separation from Service (the “Severance Period”) in accordance with the Company’s normal payroll practices, commencing on the Company’s next regular payday that is at least five days following the effective date of the Release (with the first payment including all amounts accrued to that date) (the “Payment Date”);
(ii) the Annual Bonus, payable in the form of a lump sum payment, in an amount equal to the product of (A)(i) the Target Bonus, if the Date of Termination occurs during the first quarter of the calendar year or (ii) the Annual Bonus amount based on actual performance as determined by the Board, if the Date of Termination occurs after the first quarter of the calendar year, multiplied by (B) a fraction, using the number of full months of the year elapsed prior to the Date of Termination as the numerator and 12 as the denominator, payable in either case by the later of March 15 of the year following the year in which the Date of Termination occurs and the Payment Date; and
(iii) if Executive elects to receive continued medical, dental and/or vision coverage under one or more of the Company’s group healthcare plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company shall directly pay, or reimburse Executive for, the COBRA premiums for Executive and Executive’s covered dependents under such plans during the period commencing on Executive’s Separation from Service and ending upon the earliest of (X) the last day of the Severance Period, (Y) the date that Executive and/or Executive’s covered dependents become no longer eligible for COBRA or (Z) the date Executive becomes eligible to receive medical, dental or vision coverage, as applicable, from a subsequent employer (and Executive agrees to promptly notify the Company of such eligibility). Notwithstanding the foregoing, if the Company determines in its sole discretion that it cannot provide the foregoing benefit without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act) or incurring an excise tax, the Company may alter the manner in which medical, dental or vision coverage is provided to Executive after the Date of Termination so long as such alteration does not increase the after-tax cost to Executive of such benefits.
(c) Change in Control. Notwithstanding anything to the contrary in any applicable Company equity plan or equity agreement, in the event Executive’s employment terminates without Cause pursuant to Section 3(a)(iv), or pursuant to Section 3(a)(v) due to Executive’s resignation with Good Reason, in either case, within 60 days prior to or on or within 12 months following the date of a Change in Control, subject to Executive signing on or before the 60th day following Executive’s Separation from Service, and not revoking, the Release (which Executive will receive no later than ten (10) business days following Executive’s Separation from Service) and Executive’s continued compliance with Section 5, Executive shall receive, in addition to the payments and benefits set forth in Section 3(c) and Section 4(b), immediate vesting of all unvested equity or equity-based awards held by Executive under any Company equity compensation plans that vest solely based on the passage of time (for the avoidance of doubt, with any such awards that vest in whole or in part based on the attainment of performance-vesting conditions being governed by the terms of the applicable award agreement).
(d) Survival. Notwithstanding anything to the contrary in this Agreement, the provisions of Sections 5 through 9 will survive the termination of Executive’s employment and the termination of the Term.
5. Restrictive Covenants. As a condition to the effectiveness of this Agreement, Executive will execute and deliver to the Company contemporaneously herewith the Restrictive Covenant Agreement. Executive agrees to abide by the terms of the Restrictive Covenant Agreement, which are hereby incorporated by reference into this Agreement. Executive acknowledges that the provisions of the Restrictive Covenant Agreement will survive the termination of Executive’s employment and the termination of the Term for the periods set forth in the Restrictive Covenant Agreement.
6. Assignment and Successors.
The Company may assign its rights and obligations under this Agreement to any of its affiliates or to any successor to all or substantially all of the business or the assets of the Company (by merger or otherwise). This Agreement shall be binding upon and inure to the benefit of the Company, Executive and their respective successors, assigns, personnel and legal representatives, executors, administrators, heirs, distributees, devisees, and legatees, as applicable. None of Executive’s rights or obligations may be assigned or transferred by Executive, other than Executive’s rights to payments hereunder, which may be transferred only by will or operation of law. Notwithstanding the foregoing, Executive shall be entitled, to the extent permitted under applicable law and applicable Company Arrangements, to select and change a beneficiary or beneficiaries to receive compensation hereunder following Executive’s death by giving written notice thereof to the Company.
7. Certain Definitions.
(a) Cause. The Company shall have “Cause” to terminate Executive’s employment hereunder upon:
(i) Executive’s willful failure to perform (other than by reason of Disability), or gross negligence in the performance of, Executive’s duties and responsibilities to the Company or any of its affiliates;
(ii) Executive’s commission of, or indictment or conviction for, any felony or any crime involving dishonesty by Executive;
(iii) Executive’s participation in any fraud against the Company or any of its affiliates;
(iv) Any intentional material damage to any property of the Company or any of its affiliates by Executive;
(v) Executive’s misconduct which materially and adversely reflects upon the business, operations or reputation of the Company or any of its affiliates, which misconduct has not been cured (or cannot be reasonably cured) within thirty (30) days after the Company gives written notice to Executive regarding such misconduct; or
(vi) Executive’s breach of any material provision of this Agreement or any other written agreement between Executive and the Company or any of its affiliates and failure to cure such breach (if reasonably capable of cure) within thirty (30) days after the Company gives written notice to Executive regarding such breach.
(b) Change in Control. “Change in Control” shall have the meaning set forth in the version of the 2018 EIIAP in effect on the Effective Date.
(c) Code. “Code” shall mean the Internal Revenue Code of 1986, as amended, and the regulations and guidance promulgated thereunder.
(d) Date of Termination. “Date of Termination” shall mean (i) if Executive’s employment is terminated by Executive’s death, the date of Executive’s death; or (ii) if Executive’s employment is terminated pursuant to Section 3(a)(ii) – (vi) either the date indicated in the Notice of Termination or the date specified by the Company pursuant to Section 3(b), whichever is earlier.
(e) Disability. “Disability” shall mean, at any time the Company or any of its affiliates sponsors a long-term disability plan for the Company’s employees, “disability” as defined in such long-term disability plan for the purpose of determining a participant’s eligibility for benefits, provided, however, if the long-term disability plan contains multiple definitions of disability, “Disability” shall refer to that definition of disability which, if Executive qualified for such disability benefits, would provide coverage for the longest period of time. The determination of whether Executive has a Disability shall be made by the person or persons required to make disability determinations under the long-term disability plan. At any time the Company does not sponsor a long-term disability plan for its employees, “Disability” shall mean Executive’s inability to perform, with or without reasonable accommodation, the essential functions of Executive’s positions hereunder for a total of six months during any twelve-month period as a result of incapacity due to mental or physical illness as determined by a physician selected by the Company or its insurers and acceptable to Executive or Executive’s legal representative, with such agreement as to acceptability not to be unreasonably withheld or delayed. Any unreasonable refusal by Executive to submit to a medical examination for the purpose of determining Disability shall be deemed to constitute conclusive evidence of Executive’s Disability.
(f) Good Reason. For the sole purpose of determining Executive’s right to severance payments and benefits as described above, Executive’s resignation will be with “Good Reason” if Executive resigns within six months after any of the following events, unless Executive consents to the applicable event in writing: (i) a material reduction in Executive’s Annual Base Salary or Target Bonus, (ii) a material diminution in Executive’s authority, title or duties or areas of responsibility, (iii) the requirement that Executive report to someone other than the Chief Executive Officer of the Company, (iv) the relocation of Executive’s primary office to a location more than 40 miles from Watertown, Massachusetts, or (v) a material breach by the Company of this Agreement or any other written agreement with Executive. Notwithstanding the foregoing, no Good Reason event will have occurred unless and until Executive has: (a) provided the Company, within 60 days of Executive’s knowledge of the occurrence of the facts and circumstances underlying the Good Reason event, written-notice stating with specificity the applicable facts and circumstances underlying such Good Reason event, and (b) the Company fails to cure the same within 30 days after the receipt of such notice.
8. Parachute Payments.
(a) Notwithstanding any other provisions of this Agreement or any Company equity plan or agreement, in the event that any payment or benefit by the Company or otherwise to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and benefits, including the payments and benefits under Section 4(b) and Section 4(c) hereof, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be reduced (in the order provided in Section 8(b)) to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income and
employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
(b) The Total Payments shall be reduced in the following order: (i) reduction on a pro-rata basis of any cash severance payments that are exempt from Section 409A of the Code (“Section 409A”), (ii) reduction on a pro-rata basis of any non-cash severance payments or benefits that are exempt from Section 409A, (iii) reduction on a pro-rata basis of any other payments or benefits that are exempt from Section 409A, and (iv) reduction of any payments or benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A; provided, in case of clauses (ii), (iii) and (iv), that reduction of any payments attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time.
(c) The Company will select an accounting firm or consulting group with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax (the “Independent Advisors”) to make determinations regarding the application of this Section 8. For purposes of such determinations, no portion of the Total Payments shall be taken into account which, in the opinion of the Independent Advisors, (i) does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) or (ii) constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne by the Company.
(d) If Executive incurs legal fees or other expenses (including expert witness and accounting fees) in an effort to determine the applicability of this Section 8 or establish entitlement to or obtain any portion of the Total Payments that have been reduced under this Section 8 (collectively, “Legal and Other Expenses”), Executive shall be entitled to payment of or reimbursement for such Legal and Other Expenses in accordance with this Section 8(d). Subject to Sections 9(1)(iv) and the other provisions of this Section 8, the Company will reimburse all Legal and Other Expenses on a monthly basis reasonably promptly after presentation of Executive’s written request for reimbursement accompanied by evidence reasonably acceptable to the Company that such Legal and Other Expenses were incurred. If the Company establishes before a court of competent jurisdiction that Executive had no reasonable basis for a claim made by Executive hereunder, or acted in bad faith, no further payment of or reimbursement for Legal and Other Expenses shall be due to Executive in respect of such claim, and Executive shall refund any amounts previously paid or reimbursed hereunder with respect to such claim.
(e) In the event it is later determined that to implement the objective and intent of this Section 8, (i) a greater reduction in the Total Payments should have been made, the excess amount shall be returned promptly by Executive to the Company or (ii) a lesser reduction in the Total Payments should have been made, the excess amount shall be paid or provided promptly by the Company to Executive, except to the extent the Company reasonably determines would result in imposition of an excise tax under Section 409A.
9. Miscellaneous Provisions.
(a) Governing Law. This Agreement shall be governed, construed, interpreted and enforced in accordance with its express terms, and otherwise in accordance with the substantive laws of the Commonwealth of Massachusetts without reference to the principles of conflicts of law of the Commonwealth of Massachusetts or any other jurisdiction that would result in application of the laws of a jurisdiction other than the Commonwealth of Massachusetts, and where applicable, the laws of the United States.
(b) Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
(c) Notices. Any notice, request, claim, demand, document and other communication hereunder to any Party shall be effective upon receipt (or refusal of receipt) and shall be in writing and delivered personally or sent by facsimile, a nationally recognized overnight courier service or certified or registered mail, postage prepaid, as follows:
(i) If to the Company, to the General Counsel of the Company at the Company’s headquarters,
(ii) If to Executive, to the last address that the Company has in its personnel records for Executive, or
(iii) At any other address as any Party shall have specified by notice in writing to the other Party.
(d) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same Agreement. Signatures delivered by facsimile or PDF shall be deemed effective for all purposes.
(e) Entire Agreement. The terms of this Agreement, the Restrictive Covenant Agreement incorporated herein by reference as set forth in Section 5, the Indemnification Agreement (defined below) and the 2018 EIIAP and related Award Agreements are intended by the Parties to be the final expression of their agreement with respect to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral, including without limitation any prior employment agreement or offer letter between Executive and the Company. The Parties further intend that this Agreement shall constitute the complete and exclusive statement of their terms and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding to vary the terms of this Agreement.
(f) Indemnification. The Parties acknowledge that they have or will enter into an Indemnification Agreement in substantially the form attached as Exhibit C hereto.
(g) Amendments; Waivers. This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by Executive and a duly authorized officer of Company. By an instrument in writing similarly executed, Executive or a duly authorized officer of the Company may waive compliance by the other Party with any specifically identified provision of this Agreement that such other Party was or is obligated to comply with or perform; provided, however, that such waiver shall not operate as a waiver of, or estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder preclude any other or further exercise of any other right, remedy, or power provided herein or by law or in equity.
(h) No Inconsistent Actions. The Parties hereto shall not voluntarily undertake or fail to undertake any action or course of action inconsistent with the provisions or essential intent of this Agreement. Furthermore, it is the intent of the Parties hereto to act in a fair and reasonable manner with respect to the interpretation and application of the provisions of this Agreement.
(i) Construction. This Agreement shall be deemed drafted equally by both the Parties. Its language shall be construed as a whole and according to its fair meaning. Any presumption or principle that the language is to be construed against any Party shall not apply. The headings in this Agreement are only for convenience and are not intended to affect construction or interpretation. Any references to paragraphs, subparagraphs, sections or subsections are to those parts of this Agreement, unless the context clearly indicates to the contrary. Also, unless the context clearly indicates to the contrary, (i) the plural includes the singular and the singular includes the plural; (ii) “and” and “or” are each used both conjunctively and disjunctively; (iii) “any,” “all,” “each,” or “every” means “any and all,” and “each and every”; (iv) “includes” and “including” are each “without limitation”; (v) “herein,” “hereof,” “hereunder” and other similar compounds of the word “here” refer to the entire Agreement and not to any particular paragraph, subparagraph, section or subsection; and (vi) all pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the entities or persons referred to may require.
(j) Enforcement. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the Term, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a portion of this Agreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be added automatically as part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
(k) Withholding. The Company shall be entitled to withhold from any amounts payable under this Agreement any federal, state, local or foreign withholding or other taxes or charges which the Company is required to withhold. The Company shall be entitled to rely on an opinion of counsel if any questions as to the amount or requirement of withholding shall arise.
(l) Section 409A.
(i) General. The intent of the Parties is that the payments and benefits under this Agreement comply with or be exempt from Section 409A and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith.
(ii) Separation from Service. For purposes of any compensation or benefits payable to Executive under this Agreement, all references to “termination of employment” and correlative phrases shall be construed to require a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury regulations after giving effect to the presumptions contained therein) (a “Separation from Service”).
(iii) Specified Employee. Notwithstanding anything in this Agreement to the contrary, if Executive is deemed by the Company at the time of Executive’s Separation from Service to be a “specified employee” for purposes of Section 409A, to the extent delayed commencement of any portion of the benefits to which Executive is entitled under this Agreement is required in order to avoid a prohibited distribution under Section 409A, such portion of Executive’s benefits shall not be provided to Executive prior to the earlier of (i) the expiration of the six-month period measured from the date of Executive’s Separation from Service with the Company or (ii) the date of Executive’s death. Upon the first business day following the expiration of the applicable Section 409A period, all payments deferred pursuant to the preceding sentence shall be paid in a lump sum to Executive (or Executive’s estate or beneficiaries), and any remaining payments due to Executive under this Agreement shall be paid as otherwise provided herein.
(iv) Expense Reimbursements. To the extent that any reimbursements under this Agreement are subject to Section 409A, any such reimbursements payable to Executive shall be paid to Executive no later than December 31 of the year following the year in which the expense was incurred, the amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year, other than medical expenses referred to in Section 105(b) of the Code, and Executive’s right to reimbursement under this Agreement will not be subject to liquidation or exchange for another benefit.
(v) Installments. Executive’s right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that are payable on Company payroll dates, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Section 409A. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A. Notwithstanding anything to the contrary contained herein, if the period to consider, return and not revoke the Release crosses two calendar years, any payments or benefits described in Section 4(b) will be paid in the later calendar year.
10. Executive Acknowledgment.
Executive acknowledges that Executive has read and understands this Agreement, is fully aware of its legal effect, has not acted in reliance upon any representations or promises made by the Company other than those contained in writing herein, and has entered into this Agreement freely based on Executive’s own judgment.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and year first above written.
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SELECTA BIOSCIENCES, INC.
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By:
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/s/ Carsten Brunn, Ph.D.
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Name: Carsten Brunn, Ph.D.
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Title: President and Chief Executive Officer
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EXECUTIVE
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/s/ Bradford D. Dahms
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BRADFORD D. DAHMS
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EXHIBIT A
Separation Agreement and Release
This Separation Agreement and Release (“Agreement”) is made by and between BRADFORD D. DAHMS (“Executive”) and Selecta Biosciences, Inc. (the “Company”) (collectively referred to as the “Parties” or individually referred to as a “Party”). Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Employment Agreement (as defined below).
WHEREAS, the Parties have previously entered into that certain Employment Agreement, dated as of _____________, 2019 (the “Employment Agreement”) and that certain Employee Nondisclosure, Noncompetition and Assignment of Intellectual Property Agreement, dated as of ________, 2019 (the “RCA”); and
WHEREAS, in connection with Executive’s termination of employment with the Company or a subsidiary or affiliate of the Company effective ________, 20__, the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions, and demands that Executive may have against the Company and any of the Releasees as defined below, including, but not limited to, any and all claims arising out of or in any way related to Executive’s employment with or separation from the Company or its subsidiaries or affiliates but, for the avoidance of doubt, nothing herein will be deemed to release any rights or remedies in connection with Executive’s ownership of vested equity securities of the Company, vested benefits or Executive’s right to defense or indemnification by the Company or any of its affiliates pursuant to contract (including, without limitation, the Indemnification Agreement attached to the Employment Agreement) or applicable law (collectively, the “Retained Claims”). The Company agrees not to contest Executive’s application for unemployment benefits; provided that nothing herein shall prohibit the Company from responding truthfully to requests for information from, or require the Company to make any false or misleading statements to, any governmental authority.
NOW, THEREFORE, in consideration of the severance payments and benefits described in Section 4 of the Employment Agreement, which, pursuant to the Employment Agreement, are conditioned on Executive’s execution and non-revocation of this Agreement, and in consideration of the mutual promises made herein, the Company and Executive hereby agree as follows:
1. Severance Payments; Salary and Benefits. The Company agrees to provide Executive with the severance payments and benefits described in Section 4(b) [and Section 4(c)] of the Employment Agreement, payable at the times set forth in, and subject to the terms and conditions of, the Employment Agreement. In addition, to the extent not already paid, and subject to the terms and conditions of the Employment Agreement, the Company shall pay or provide to Executive all other payments or benefits described in Section 3(c) of the Employment Agreement, subject to and in accordance with the terms thereof.
2. Release of Claims. Executive agrees that, other than with respect to the Retained Claims and subject to the last two sentences of this Section 2, the foregoing consideration represents settlement in full of all outstanding obligations owed to Executive by the Company, any of its direct or indirect subsidiaries and affiliates, and any of their current and former officers, directors, equity holders, managers, employees, agents, investors, attorneys, shareholders, administrators, affiliates, benefit plans, plan administrators, insurers, trustees, divisions, and subsidiaries and predecessor and successor corporations and assigns (collectively, the “Releasees”). Executive, on Executive’s own behalf and on behalf of any of Executive’s affiliated companies or entities and any of their respective heirs, family members, executors, agents, and assigns, other than with respect to the Retained Claims, except as provided in the last two sentences of this Section 2, hereby and forever releases the Releasees from any
matters of any kind, whether presently known or unknown, suspected or unsuspected, that Executive may possess against any of the Releasees arising from any omissions, acts, facts, or damages that have occurred up until and including the date Executive signs this Agreement, including, without limitation:
(a) any and all claims relating to or arising from Executive’s employment or service relationship with the Company or any of its direct or indirect subsidiaries or affiliates and the termination of that relationship;
(b) any and all claims relating to, or arising from, Executive’s right to purchase, or actual purchase of any shares of stock or other equity interests of the Company or any of its affiliates, including, without limitation, any claims for fraud, misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law, and securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of employment; termination in violation of public policy; discrimination; harassment; retaliation; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional infliction of emotional distress; fraud; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; unfair business practices; defamation; libel; slander; negligence; personal injury; assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
(d) any and all claims for violation of any federal, state, or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the Fair Credit Reporting Act; the Age Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the Family and Medical Leave Act; and the Sarbanes-Oxley Act of 2002;
(e) any and all claims for violation of the federal or any state constitution;
(f) any and all claims arising out of any other laws and regulations relating to employment or employment discrimination;
(g) any claim for any loss, cost, damage, or expense arising out of any dispute over the non-withholding or other tax treatment of any of the proceeds received by Executive as a result of this Agreement;
(h) any and all claims arising out of the wage and hour and wage payments laws and regulations of the state or states in which Executive has provided service to the Company or any of its affiliates (including without limitation the Massachusetts Payment of Wages Law); and
(i) any and all claims for attorneys’ fees and costs.
Executive agrees that the release set forth in this section shall be and remain in effect in all respects as a complete general release as to the matters released. Notwithstanding anything to the contrary contained in this Agreeement, this release does not release claims that cannot be released as a matter of law, including, but not limited to, Executive’s right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation, Executive’s right to
file a charge with or participate in a charge, investigation or proceeding by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company (with the understanding that Executive’s release of claims herein bars Executive from recovering monetary or other individual relief from the Company or any Releasee in connection with any charge, investigation or proceeding, or any related complaint or lawsuit, filed by Executive or by anyone else on Executive’s behalf before the federal Equal Employment Opportunity Commission or a comparable state or local agency), claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law, claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of COBRA, non-termination related claims under the Employee Retirement Income Security Act (29 U.S.C. § 1001 et seq.), as amended, claims to any benefit entitlements vested as of the date of separation of Executive’s employment, pursuant to written terms of any employee benefit plan of the Company or its affiliates and Executive’s right under applicable law, claims for reimbursement of approved business expenses incurred prior to the Date of Termination, rights to vested options under any Award Agreement issued pursuant to the 2018 EIIAP, rights or claims Executive may have as a shareholder of the Company, and any Retained Claims. This release further does not release claims for breach of or to enforce Section 3(c), Section 4(b), Section 4(c) or Section 8 of the Employment Agreement, or claims arising after the date Executive signs this Agreement.
3. Acknowledgment of Waiver of Claims under ADEA. Executive understands and acknowledges that Executive is waiving and releasing any rights Executive may have under the Age Discrimination in Employment Act of 1967 (“ADEA”), and that this waiver and release is knowing and voluntary. Executive understands and agrees that this waiver and release does not apply to any rights or claims that may arise under the ADEA after the date Executive executes this Agreement. Executive understands and acknowledges that the consideration given for this waiver and release is in addition to anything of value to which Executive was already entitled. Executive further understands and acknowledges that Executive is hereby advised by this writing that: (a) Executive should consult with an attorney prior to executing this Agreement; (b) Executive has [21/45] days within which to consider this Agreement, and the parties agree that such time period to review this Agreement shall not be extended upon any material or immaterial changes to this Agreement; (c) Executive has 7 business days following Executive’s execution of this Agreement to revoke this Agreement pursuant to written notice to the General Counsel of the Company; (d) this Agreement shall not be effective until after the revocation period has expired; and (e) nothing in this Agreement prevents or precludes Executive from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless specifically authorized by federal law. In the event Executive signs this Agreement and returns it to the Company in less than the [21/45] day period identified above, Executive hereby acknowledges that Executive has freely and voluntarily chosen to waive the time period allotted for considering this Agreement.
4. Restrictive Covenants.
(a) Executive acknowledges and agrees that the restrictive covenants and other post-termination obligations set forth in the RCA, including without limitation Executive’s obligations relating to confidentiality, non-use and non-disclosure of Confidential Information (as defined in the RCA), non-solicitation, cooperation, and return of property, are hereby incorporated by reference and shall remain in full force and effect pursuant to their terms to the maximum extent permitted by applicable law, except that the parties expressly agree to modify the RCA by removing Section 6, and each subpart thereto, of the RCA, which shall be of no further force or effect upon the Effective Date (as defined below).
Executive represents and warrants that Executive has complied with all provisions of the RCA at all times through the Effective Date.
(b) In consideration for the severance payments and benefits set forth in Section 1 of this Agreement, Executive agrees for a period of 12 months after the Effective Date (the “Noncompetition Restricted Period”) to not directly or indirectly, on Executive’s own behalf or for the benefit of any other individual or entity: (i) operate, conduct, engage in, or own (except as a holder of not more than three percent (3%) of the stock of a publicly held company), or prepare to operate, conduct, engage in, or own any business that develops, markets, distributes, plans, sells or otherwise provides, or is preparing to develop, market, distribute, plan, sell or otherwise provide, any product or service that is in competition with any of the products or services being developed, marketed, distributed, planned, sold or otherwise provided by the Company or its affiliates at the time of, or during the 12 months preceding, Executive’s termination from the Company (a “Competing Business”) or (ii) participate in, render services to, or assist any individual or entity that engages in a Competing Business in any capacity (whether as an employee, manager, consultant, director, officer, contractor, or otherwise) (A) which involve the same or similar types of services Executive performed for the Company at any time during the last two years of Executive’s employment with the Company or (B) in which Executive could reasonably be expected to use or disclose Confidential Information, in each case (i) and (ii) limited to each city, county, state, territory and country in which (x) Executive provided services or had a material presence or influence at any time during Executive’s last two years of employment with the Company or (y) the Company is engaged in or has plans to engage in the Competing Business as of the Effective Date. Without limiting the Company’s ability to seek other remedies available in law or equity, if Executive violates this Section 4(b), the Noncompetition Restricted Period shall be extended by one day for each day that Executive is in violation of such provisions, up to a maximum extension equal to the length of the Noncompetition Restricted Period, so as to give the Company the full benefit of the bargained-for length of forbearance.
(c) Executive’s continued compliance with the terms of the RCA (as modified in Section 4(a) above) and the noncompetition obligations set forth in Section 4(b) above (collectively, the “Restrictive Covenants”) is a material condition to receipt of the severance payments and benefits set forth in Section 1 of this Agreement. In the event Executive breaches any part of such Restrictive Covenants, then, in addition to any remedies and enforcement mechanisms set forth in the RCA and this Agreement and any other remedies available to the Company (including equitable and injunctive remedies), Executive shall forfeit any additional consideration owing and shall be obligated to promptly return to the Company (within two (2) business days of any breach) the full gross amount of all severance payments and benefits provided.
(d) If any provision of the Restrictive Covenants shall be determined to be unenforceable by any court of competent jurisdiction or arbitrator by reason of its extending for too great a period of time or over too large a geographic area or over too great a range of activities, it shall be interpreted to extend only over the maximum period of time, geographic area or range of activities as to which it may be enforceable.
5. Severability. In the event that any provision or any portion of any provision hereof or any surviving agreement made a part hereof becomes or is declared by a court of competent jurisdiction or arbitrator to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without said provision or portion of provision.
6. No Oral Modification. This Agreement may only be amended in a writing signed by Executive and a duly authorized officer of the Company.
7. Governing Law. This Agreement shall be subject to the provisions of Sections 9(a) and 9(c) of the Employment Agreement.
8. Effective Date. Executive has seven (7) business days after Executive signs this Agreement to revoke it, and this Agreement will become effective on the eighth (8th) business day after Executive signed this Agreement (the “Effective Date”), so long as it has been signed by the Parties and has not been revoked by either Party before such date. For the avoidance of doubt, if Executive revokes this Agreement as provided herein, the Parties’ modification to the RCA set forth in Section 4(a) above shall be void and of no effect. Unless the Company has elected or elects to expressly waive Executive’s noncompetition obligations set forth in Section 6(a) of the RCA (as amended by this Agreement), the RCA, including without limitation Section 6 of the RCA (as amended by this Agreement), shall remain in full force and effect.
9. Voluntary Execution of Agreement. Executive understands and agrees that Executive executed this Agreement voluntarily, without any duress or undue influence on the part or behalf of the Company or any third party, with the full intent of releasing all of Executive’s claims against the Company and any of the other Releasees. Executive acknowledges that: (a) Executive has read this Agreement; (b) Executive has not relied upon any representations or statements made by the Company that are not specifically set forth in this Agreement; (c) Executive has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of Executive’s own choice or has elected not to retain legal counsel; (d) Executive understands the terms and consequences of this Agreement and of the releases it contains; and (e) Executive is fully aware of the legal and binding effect of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth below.
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EXECUTIVE
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Dated:
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BRADFORD D. DAHMS
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SELECTA BIOSCIENCES, INC.
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Dated:
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By:
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EXHIBIT B
Employee Nondisclosure, Noncompetition and Assignment of Intellectual Property Agreement
[attached]
EXHIBIT C
Form of Indemnification Agreement
[attached]
Exhibit 10.2
[***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED
Execution Copy
FEASIBILITY STUDY AND LICENSE AGREEMENT
BY AND BETWEEN
ASKLEPIOS BIOPHARMACEUTICAL, INC.
AND
SELECTA BIOSCIENCES, INC.
TABLE OF CONTENTS
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3.1
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3.2
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3.3
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3.4
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3.5
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3.6
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3.7
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3.8
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4.1
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4.2
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4.3
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5.1
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5.2
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5.3
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5.4
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6.1
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6.2
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6.3
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6.4
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6.5
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7.1
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7.2
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7.3
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7.4
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8.1
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8.2
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8.3
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8.4
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8.5
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9.1
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9.2
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9.3
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9.4
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10.1
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10.2
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10.3
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10.4
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10.5
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10.6
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11.1
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11.2
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11.3
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11.4
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11.5
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11.6
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11.7
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11.8
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12.1
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12.2
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12.3
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12.4
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12.5
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13.1
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13.2
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13.3
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13.4
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13.5
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13.6
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13.7
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13.8
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13.9
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13.10
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13.11
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13.12
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13.13
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13.14
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13.15
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13.16
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13.17
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13.18
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13.19
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13.20
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FEASIBILITY STUDY AND LICENSE AGREEMENT
This Feasibility Study and License Agreement (this “Agreement”, as further defined below) is made and entered into as of this 6th day of August, 2019 (the “Effective Date”), by and between Asklepios Biopharmaceutical, Inc., a Delaware corporation with an address at 20 TW Alexander Drive, Suite 110, Research Triangle Park, NC 27514 (“AskBio”), and Selecta Biosciences, Inc., a Delaware corporation with an address at 480 Arsenal Way, Watertown, MA 27709 (“Selecta”). AskBio and Selecta may be referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, AskBio has expertise and intellectual property rights in AAV (as defined below) vector design (including but not limited to inverted capsid and promoter design, and cell lines used for production of AAVs) and manufacturing, and Controls (as defined below) the AskBio Core Technology (as defined below);
WHEREAS, Selecta has expertise and intellectual property rights in antigen-specific biodegradable nanoparticle-based, immune tolerance technology, including such technology comprising synthetic vaccine particle(s) encapsulating the immunomodulator rapamycin (“ImmTOR”) and Controls the Selecta Core Technology (as defined below);
WHEREAS, AskBio and Selecta desire to develop certain Products (as defined below) and assess the feasibility and benefit of those Products; and
WHEREAS, AskBio and Selecta, upon success of the POC (as defined below), or as agreed by the Parties, desire to collaborate to develop, manufacture, and commercialize Collaboration Products (as defined below) and may, in the future, negotiate and execute definitive agreements to form a joint venture through a to-be formed company, owned in whole or in part by AskBio and Selecta (the “Joint Venture” or “JV”) to develop, manufacture and commercialize such Collaboration Products.
NOW, THEREFORE, in consideration of the foregoing and the covenants and promises contained in this Agreement, in accordance with and subject to the terms and conditions specified below, the Parties agree as follows:
AGREEMENT
ARTICLE 1.
DEFINITIONS
Unless otherwise defined in this Agreement, all capitalized terms shall have the meaning ascribed to them in this Article 1.
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1.1
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“AAV” means adeno-associated virus, recombinant adeno-associated virus and all chimerics, hybrids, haploids, polyploids, and derivatives of each of the foregoing.
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1.2
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“AAV Product” means (a) a pharmaceutical product utilizing an AAV vector, transgene and promoter to deliver a gene therapy or (b) any pharmaceutical product incorporating or utilizing ImmTOR for use in conjunction with, or inclusion in, an AAV Product described in (a).
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1.3
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“Accounting Standards” means U.S. Generally Accepted Accounting Principles or International Financial Reporting Standards, as applicable, consistently applied by the applicable Party.
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1.4
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“Affiliate” means, with respect to any person or entity, any other person or entity that directly or indirectly controls, is controlled by, or is under common control with such person or entity, for so long as such control exists. For purposes of this Section 1.4 only, a person or entity shall be deemed to “control” another person or entity if (a) it owns or controls, directly or indirectly, more than fifty percent (50%) of the issued and outstanding voting securities, capital stock, or other comparable equity or ownership interest of the other person or entity, (b) it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the person or other entity or (c) it possesses the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the person or other entity. [***]
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1.5
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“Agreement” means this Feasibility Study and License Agreement, including any Exhibits attached hereto, as such may be amended from time to time, in writing, by mutual agreement of the Parties.
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1.6
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“Applicable Law” means any local, state or federal rule, regulation, statute or law in any jurisdiction relevant to the activities undertaken pursuant to this Agreement or applicable to either of the Parties with respect to any matters set forth herein.
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1.7
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“Approach” means the therapeutic approach used to treat a particular [***] targeting a specific gene, whether by mRNA, gene editing, peptide delivery or otherwise, in each case to be delivered using an AAV vector.
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1.8
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“AskBio Background Technology” means all Patent Rights and Know-How: (a) in existence and owned or otherwise Controlled by AskBio or any of its Affiliates as of the Effective Date; or (b) that are created or obtained outside the scope of this Agreement and are owned or otherwise Controlled by AskBio or any of its Affiliates after the Effective Date.
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1.9
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“AskBio Core Technology” means all AskBio Background Technology pertaining to AAV capsids and AAV vectors, including but not limited to any cell lines used for production of AAVs. For the avoidance of doubt, AskBio Core Technology includes, but is not limited to, the Patent Rights listed in Schedule 1.9.
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1.10
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“AskBio Licensed Patent Rights” means any and all Patent Rights licensed by AskBio to Selecta under the AskBio Research License or the AskBio Collaboration Product License, other than Joint Patent Rights.
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1.11
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“AskBio Patent Rights” means any and all Patent Rights that claim an AskBio Invention.
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1.12
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“BLA” means (a) a Biologics License Application as defined by the FDA, 21 CFR § 600 et. seq. and applicable regulations promulgated thereunder or (b) the equivalent application to the applicable Competent Authority in any other regulatory jurisdiction, and any amendments to the foregoing (a) or (b), in each case, the filing of which is necessary to request permission to introduce, or deliver for introduction, a biologic product into interstate commerce in such jurisdiction.
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1.13
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“Calendar Quarter” means each of the three (3) month periods ending March 31, June 30, September 30 and December 31; provided, however, that: (a) the first Calendar Quarter of the Term shall extend from the Effective Date to the end of the first complete Calendar Quarter thereafter; and (b) the last Calendar Quarter shall extend from the beginning of the Calendar Quarter in which this Agreement expires or terminates until the effective date of such expiration or termination.
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1.14
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“cGMP” means current good manufacturing practices and standards in relation to the production of pharmaceutical intermediates and active pharmaceutical ingredients (as applicable) as provided for (and as amended from time to time) under the laws, rules or regulations of the applicable Governmental Authority in the country in which the relevant product is manufactured, which, with respect to the European Union, by the standards, rules, principles and guidelines set out in Directive 2001/83/EC (as amended by Directive 2004/27/EC), Directive 2003/94/EC and EudraLex - Volume 4 of the Rules Governing Medicinal Products in the European Union entitled “EU Guidelines to Good Manufacturing Practice Medicinal Products for Human and Veterinary Use” and, with respect to the U.S., is the current Good Manufacturing Practice Regulations to the U.S. Code of Federal Regulations Title 21 (21 CFR, Parts 210, 211, 314 and 600), in each case as applicable.
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1.15
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“Change of Control” means, with respect to a Party, (a) a merger or consolidation of such Party with a Third Party that results in the voting securities of such Party outstanding immediately prior thereto, or any securities into which such voting securities have been converted or exchanged, ceasing to represent more than fifty percent (50%) of the combined voting power of the surviving entity or the parent of the surviving entity immediately after such merger or consolidation, or (b) a transaction or series of related transactions in which a Third Party, together with its Affiliates, becomes the beneficial owner of more than fifty percent (50%) of the combined voting power of the outstanding securities of such Party, or (c) the sale or other transfer to a Third Party of all or substantially all of such Party’s business, in each case, other than in connection with the issuance or sale of equity securities for financing purposes.
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1.16
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“Clinical Study” or “Clinical Studies” means, respectively, a research study, or research studies, in humans that are (a) designed in accordance with international ethical and scientific quality standards for designing, conducting, recording, and reporting research studies involving investigational medicinal products for human use and that involve the participation of human subjects, which standards are established through Applicable Law, and (b) designed to generate clinical data and results regarding a biological molecule in support of Marketing Approval, including any translational research studies. Clinical Studies include, but are not limited to, any Phase 1 Clinical Study, Phase 2 Clinical Study, or Pivotal Clinical Study.
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1.17
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“CMC” means chemistry, manufacturing, and control.
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1.18
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“Commercialization” means any and all activities related to obtaining pricing and reimbursement approval, marketing, promoting, distributing, importing, exporting, offering for sale, having sold, selling, or conducting any other commercial exploitation activities relating to a Collaboration Product. For clarity, “Commercialize” has a correlative meaning.
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1.19
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“Commercialization Costs” means, with respect to a Collaboration Product, the out-of-pocket costs paid by a Party to a Third Party related to Commercialization and FTE Costs actually incurred, after the Effective Date, in connection with Commercialization of such Collaboration Product by or on behalf of a Party in accordance with the applicable Commercialization Plan and Commercialization Plan Budget, as determined from the books and records of the applicable Party and/or its Affiliates maintained in accordance with the Accounting Standards. For clarity, a Product’s Commercialization Costs includes the Cost of Goods Sold for such Collaboration Product. Commercialization Costs also include costs associated with Collaboration Product recalls and other field actions and other similar costs associated with the Commercialization of the Collaboration Products that may not be planned for in the Commercialization Plan or Commercialization Plan Budget.
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1.20
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“Commercially Reasonable Efforts” means, with respect to the performance of such activities (including those set forth in the applicable POC Plan, Therapeutic Development Plan or Commercialization Plan, as amended or implemented from time to time) as would reasonably and properly be expended by a Party using efforts and resources comparable to the efforts and resources that a similarly situated company in a similar industry and of similar size and resources to the relevant Party would typically devote in pursuing research and development of products at a similar stage in development or product life, taking into account the safety and efficacy, the product profile, the then current competitive environment for such product and the likely timing of such product’s entry into the market, the patent and other proprietary position of the product, the pricing and launching strategy for the respective product, the regulatory environment and status of such product, and other relevant scientific, technical and commercial factors commonly considered in similar circumstance. Commercially Reasonable Efforts shall be determined on a country-by-country (or region-by-region, where applicable) basis, as applicable.
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1.21
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“Competent Authority” means any regulatory agency, department, bureau, commission, council, or other governmental entity of (a) any country, territory, national, federal, state, provincial, county, city, or other political subdivision government, including the FDA, or (b) any supranational body (including the EMA), in any applicable jurisdiction in the world, involved in the granting of Regulatory Approval.
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1.22
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“Confidential Information” means all Know-How, which is generated by or on behalf of a Party under this Agreement or which one Party or any of its Affiliates or contractors has provided or otherwise made available to the other Party pursuant to this Agreement, where made available orally, in writing, or in electronic form, including (a) such Know-How comprising or relating to concepts, discoveries, Inventions, data, designs or formulae arising from this Agreement and (b) any unpublished patent applications disclosed hereunder. The existence and terms of this Agreement constitute Confidential Information of both of the Parties.
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1.23
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“Control” or “Controlled” means, with respect to any material, Know-How, or intellectual property right (including Patent Rights), that a Party: (a) owns; or (b) has a license to such material, Know-How, or intellectual property right and, in each case ((a) and (b)), has the power to grant to the other Party access, a license, or a sublicense (as applicable) to the same on the terms and conditions set forth in this Agreement without violating any obligations of the granting Party to a Third Party. Notwithstanding anything to the contrary in this Agreement, the following shall not be deemed to be Controlled by a Party: (i) any material, Know-How, or intellectual property right (including Patent Rights) owned or licensed by any Third Party acquirer of such Party immediately prior to the effective date of the Change of Control of such Party making such Third Party an acquirer; and (ii) any material, Know-How, or intellectual property right (including Patent Rights) that any Third Party acquirer subsequently develops without accessing or practicing the material, Know-How, or intellectual property right (including Patent Rights) Controlled by such Party immediately prior to the effective date of the Change of Control of such Party making such Third Party an acquirer.
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1.24
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“Cost of Goods Sold” means, with respect to a Collaboration Product, actual costs and expenses incurred by the Parties or their Affiliates allocable to the sourcing and Manufacture of such Collaboration Product; provided, however, that with respect to a Collaboration Product acquired by the Parties or their Affiliates from a Third Party, the Cost of Goods Sold for such Collaboration Product shall be deemed to be the amount actually paid therefor to such Third Party or incurred by the Parties or their Affiliates for such Collaboration Product, including the transfer price payable by the Parties or their Affiliates to such Third Party, and all out-of-pocket costs incurred by the Parties and their Affiliates for handling, intake, testing and holding and storing such Collaboration Product, including any special packaging expenses, taxes, inspection fees and other similar out-of-pocket charges applicable to the shipping and transport of such Collaboration Product purchase by the Parties or their Affiliates, in all cases for or allocable to such Collaboration Product in accordance with Accounting Standards.
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1.25
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“Critical Matter” means the following matters, to the extent they are within the scope of the JSC’s decision-making authority, (a) approval of a POC Plan and any material changes to a POC Plan; (b) a decision for a Collaboration Product that would cause the Shared Costs to exceed the then current approved Therapeutic Development Plan Budget for such Collaboration Product in excess of the threshold set forth in Section 4.2.2.4.2 (Overages); (c) approval of the protocol (and any substantive amendments thereto) for each clinical trial of the Collaboration Products; (d) approval of elements of the Commercialization Plan related to the price for a given Collaboration Product and whether to launch and the timing for launch of a Collaboration Product; and (e) the determination of whether POC or [***] has been attained (provided that such determination shall not be submitted to mediation until after the POC Determination Deadline); in each case, (a) through (e), except to the extent either Party is expressly granted final decision-making authority under this Agreement.
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1.26
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“CRO” means a contract research organization.
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1.27
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“Development” or “Develop” means, with respect to a Product, any and all pre-clinical, non-clinical and clinical research and development activities for such Product, and that are reasonably related to or leading to the development, preparation, and submission of data and information to a Competent Authority for the purpose of obtaining, supporting or expanding Marketing Approval or to the appropriate body for obtaining, supporting or expanding pricing approval, including all activities related to pharmacokinetic profiling, design and conduct of Clinical Studies, those Manufacturing related activities that support the Development of the applicable Product (such as process development, scale up, test method development, formulation development, delivery system development, quality control development, and validation) and CMC activities, medical affairs, regulatory affairs, statistical analysis, report writing, and regulatory filing creation and submission (including the services of outside advisors and consultants in connection therewith).
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1.28
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“Development Costs” means, with respect to a Product, all FTE Costs and out-of-pocket costs actually incurred by a Party to Third Parties (collectively) after the Effective Date in connection with the Development of such Product in accordance with the relevant POC Plan or Therapeutic Development Plan and POC Budget or Therapeutic Development Plan Budget, as determined from the books and records of the applicable Party and/or its Affiliates maintained in accordance with the Accounting Standards and each Party’s policies and practices as such may be modified from time to time. For clarity, Development Costs shall include all filing fees and expenses associated with regulatory submissions to a Governmental Authority for the Products. In the event that the Parties mutually agree in a POC Plan or Therapeutic Development Plan to conduct activities separately or in advance with respect to products incorporating the AskBio Core Technology or Selecta Core Technology, but not both together, in connection with, or in preparation for the Development of a Product, the FTE Costs and out-of-pocket costs associated with such activities shall nevertheless be included in Development Costs.
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1.29
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“Disclosing Party” means the Party disclosing Confidential Information to the other Party hereunder.
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1.30
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“EMA” means the European Medicines Agency or any successor entity thereto.
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1.31
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“European Union” or “EU” means the member states of the European Union as of the Effective Date (including for the avoidance of doubt, the United Kingdom), and such other countries as may become part of the European Union after the Effective Date. For clarity, to the extent the United Kingdom and/or any other member state of the European Union would not anymore be a member of the European Union after the Effective Date, it shall still be included in this definition of EU for the purposes of this Agreement.
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1.32
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“FDA” means the United States Food and Drug Administration or any successor entity thereto.
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1.33
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“FTE” shall mean, with respect to an applicable Product, a full-time equivalent person-year of work engaged in the direct performance of the applicable research, Development, Manufacturing, or Commercialization activities for such Product, determined using an 1,800-hour annual base. In no circumstance can the work of any given person in a given year exceed one (1) FTE. For clarity, indirect personnel (including supervisors and support functions such as legal, finance or business development) shall not constitute FTEs.
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1.34
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“FTE Costs” means, for a given period and with respect to an applicable Product, the product of (a) the total FTEs (proportionately, on a per-FTE basis) dedicated by a Party or its Affiliates in the particular period to the direct performance of the applicable Development, Manufacturing, or Commercialization activities allocated to such Party hereunder and that are reasonably allocable to such Product and (b) the applicable FTE Rate.
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1.35
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“FTE Rate” means, unless otherwise agreed between the Parties, a rate per FTE not to exceed [***] Dollars ($[***]) per hour. The FTE Rate is “fully burdened” and will cover employee salaries, benefits, and overhead for such facilities and equipment and other materials and services including ordinary laboratory and Manufacturing consumables procured from distributors of relevant products as they may use, to the extent allocable to such FTE. Commencing upon the first (1st) anniversary of the Effective Date and upon every anniversary thereafter, the FTE Rate will be adjusted in accordance with the percentage change over the applicable annual period in the Consumer Price Index (U.S. Bureau of Labor Statistics for all urban consumers, U.S. city average, all items).
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1.36
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“GCP” means Good Clinical Practices, including as set forth in 21 C.F.R., Parts 50 and 56.
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1.37
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“GLP” means Good Laboratory Practices, including as set forth in 21 C.F.R., Part 58.
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1.38
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“GLP Tox Study” means, a study conducted in a species using applicable regulatory good laboratory practices for the purposes of assessing the onset, severity, and duration of toxic effects and their dose dependency with the goal of establishing a safety profile required for a
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regulatory submission supporting the dosing of human subjects, as outlined in applicable FDA (or other Competent Authority) or ICH guidance.
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1.39
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“Governmental Authority” means any court, agency, department, authority (including any regulatory authority) or other instrumentality of any national, state, county, city or other political subdivision.
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1.40
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“ICH” means International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use
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1.41
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“IND” or “IND/IMPD” means (a) an Investigational New Drug Application as defined in the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et. seq. and applicable regulations promulgated thereunder by the FDA, (b) the Investigational Medicinal Product Dossier in the European Union, or (c) the equivalent application to the applicable Competent Authority in any other regulatory jurisdiction, and any amendments to the foregoing (a), (b) or (c), in each case, the filing of which is necessary to initiate or conduct clinical testing of an investigational drug or biological product in humans in such jurisdiction.
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1.42
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“Inventions” means any Know-How, composition of matter, article of manufacture or other subject matter, whether patentable or not, that is conceived or reduced to practice under and as a result of any work performed pursuant to a POC Plan or Therapeutic Development Plan or Commercialization Plan.
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1.43
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“Joint Patent Rights” means any and all Patent Rights that claim a Joint Invention.
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1.44
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“Know-How” means all technical information, know-how, data, inventions, discoveries, trade secrets, specifications, instructions, processes, formulae, methods, protocols, expertise and other technology, and all biological, chemical, pharmacological, biochemical, toxicological, pharmaceutical, physical and analytical, safety, quality control, manufacturing, preclinical and clinical data relevant to any of the foregoing. For clarity, Know-How excludes Patent Rights and materials.
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1.45
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“MAA” means a Marketing Authorization Application, in relation to any Collaboration Product, filed or to be filed with the FDA, EMA, or other Competent Authority, for authorization to place a medicinal product on the market in the United States, European Union or any other territory, including a BLA, or any equivalent application that is filed with the relevant Competent Authority in such country or regulatory jurisdiction.
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1.46
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“Manufacture” or “Manufacturing” means, with respect to a Product, all activities related to the manufacture of the Product, including, but not limited to, manufacturing supplies for Development or Commercialization, packaging, in-process and finished product testing, release of product or any component or ingredient thereof, quality assurance and quality control activities related to manufacturing and release of product, ongoing stability tests, storage, shipment, import and export as needed, improvement of production, improvement of manufacturing processes, and regulatory activities related to any of the foregoing.
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1.47
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“Marketing Approval” means all approvals, licenses, registrations or authorizations of the Competent Authorities in a country, necessary for the commercial marketing and sale of a Product in such country, including (a) the approval of a MAA or a BLA, and (b) a determination or decision establishing prices for a Product that can be charged or reimbursed in regulatory jurisdictions where the applicable Competent Authorities approve or determine the price or reimbursement of pharmaceutical products.
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1.48
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“[***]” means the determination by the JSC, based on the results of the POC Studies with respect to [***] (and such other studies deemed reasonably necessary by the Parties following completion of the POC Studies with respect to the [***], including in response to input from Regulatory Authorities, and set forth in the POC Plans), that the use of ImmTOR in conjunction with AAV capsids using the AskBio Core Technology or other AAV capsids as mutually agreed by both Parties can serve to mitigate the formation of neutralizing anti-AAV capsid antibodies in [***].
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1.49
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“Net Profits” means, with respect to a Calendar Quarter and a Collaboration Product, Net Sales for such Collaboration Product less Shared Costs for such Collaboration Product.
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1.50
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“Net Sales” means the gross amount invoiced with respect to the sale of Collaboration Products, less the following deductions solely to the extent such deduction: (a) is reasonable and customary, (b) is included in the gross invoiced sales price for such Collaboration Product or otherwise directly paid or actually incurred by the seller with respect to the sale of such Collaboration Product, (c) is applicable and in accordance with standard allocation procedures, (d) has not already been deducted or excluded, (e) is incurred in the ordinary course of business in type and amount consistent with good industry practice, and (f) is determined in accordance with, and as recorded in revenues under GAAP (“Permitted Deductions”):
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1.50.1
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trade, cash, and credit allowances for such Collaboration Product; price reductions (retroactive or otherwise);
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1.50.2
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any tax, tariff, duty (including custom duty) or other governmental charge (such as excise, sales or use taxes or value added tax), levied on the sale, transportation or delivery of such Collaboration Product;
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1.50.3
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customary freight, insurance, packing costs and other transportation charges added to the sales price that are incurred in delivering such Collaboration Product;
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1.50.4
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amounts repaid or credits taken by reason of rejections, defects, or returns of such Collaboration Product or because of retroactive price reductions, or due to recalls or rebates required by Applicable Laws; and
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1.50.5
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any fees for services provided by wholesalers and warehousing chains related to the distribution of such Collaboration Product and the portion of administrative fees paid during the relevant time period to group purchasing organizations, pharmaceutical
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benefit managers and/or Medicare Prescription Drug Plans relating specifically to such Collaboration Product.
“Net Sales” shall not include any consideration received with respect to a sale, use or other disposition of any Collaboration Product in a country for purposes of conducting Clinical Studies in the course of Development of the Collaboration Product in accordance with this Agreement or as samples (reasonable in number), for compassionate use, or for other pre‑clinical, clinical, or regulatory purposes, in each case to the extent such Collaboration Product is sold at or below cost.
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1.51
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“Other Joint Venture” means any joint venture entity formed by AskBio, or in which AskBio otherwise holds at least a fifty percent (50%) ownership issue, which does not develop or commercialize AAV Products for use in Collaboration Indications, by targeting the gene specified in Schedule 4.1 for such Collaboration Indication, and with respect to each [***] utilizing the associated Approach specified in Schedule 4.1.
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1.52
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“Patent Rights” means any and all issued patents and pending patent applications (which, for purposes of this Agreement, include certificates of invention, applications for certificates of invention and priority rights) in any country or region, including all provisional applications, substitutions, continuations, continuations-in-part, continued prosecution applications including requests for continued examination, divisional applications and renewals, and all letters patent or certificates of invention granted thereon, and all reissues, reexaminations, extensions (including pediatric exclusivity patent extensions), term restorations, renewals, substitutions, confirmations, registrations, revalidations, revisions and additions of or to any of the foregoing, in each case, in any country or jurisdiction.
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1.53
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“Phase 1 Clinical Study” means a clinical study of a product in human subjects which provides for the first introduction into humans of a product, conducted in healthy volunteers or patients to obtain information on product safety, tolerability, pharmacological activity, or pharmacokinetics, as described in 21 C.F.R. § 312.21(a) (or the non-United States equivalent thereof), and may also include a Phase 1 Clinical Study Expansion Cohort.
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1.54
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“Phase 1 Clinical Study Expansion Cohort” means the expansion of a Phase 1 Clinical Study to include additional patient(s) following the selection of a dose during the dose escalation part of the Phase 1 Clinical Study (such as a maximum tolerated dose).
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1.55
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“Phase 2 Clinical Study”, “Phase 2a Clinical Study” or “Phase 2b Clinical Study” means a clinical study of a product that is prospectively designed to establish the safety, dose ranging and efficacy of a product as further defined in 21 C.F.R. § 312.21(b) (or the non-United States equivalent thereof).
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1.56
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“Pivotal Clinical Study” means a clinical study of a product that is designed to generate statistically significant evidence of the efficacy of a product for a particular indication or use (as well as additional safety information) and that is intended to form the primary scientific
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support for filing a BLA to obtain Marketing Approval to market the product (or any MAA for the non-United States equivalent thereof).
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1.57
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“POC” means, through the conduct of the POC Studies, the determination in human clinical studies that the use of ImmTOR in conjunction with (a) AAV [***] or (b) [***] as mutually agreed by both Parties for the treatment of Methylmalonic Acidemia (MMA), based on Selecta’s product candidate SEL-302, in each case, (a) and (b), using both the Selecta Core Technology and the AskBio Core Technology, serves to mitigate the formation of neutralizing anti-AAV capsid antibodies; provided, however, that if the FDA does not approve the conduct of the POC Studies with respect to the [***] or otherwise withdraws such approval, then POC shall also mean, through the conduct of other studies mutually agreed to by the Parties, the determination in human clinical studies that the use of ImmTOR serves to mitigate the formation of neutralizing anti-AAV capsid antibodies. For clarification, the Parties may elect to conduct the POC Studies in territories outside of the United States.
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1.58
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“Profit Share” means Net Profits multiplied by the Profit Share Percentage.
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1.59
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“Recipient” means the Party receiving Confidential Information hereunder.
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1.60
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“Regulatory Approval” means any and all approvals, licenses, registrations, or authorizations by a Competent Authority necessary for the Development activities (including any IND/IMPD approval), Manufacturing activities or Commercialization activities (including, where applicable, Marketing Approval, pricing, labeling and reimbursement determinations or approvals).
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1.61
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“Selecta Background Technology” means all Patent Rights and Know-How: (a) in existence and owned or otherwise Controlled by Selecta or any of its Affiliates as of the Effective Date; or (b) that are created or obtained outside the scope of this Agreement and are owned or otherwise Controlled by Selecta or any of its Affiliates after the Effective Date.
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1.62
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“Selecta Core Technology” means all Selecta Background Technology pertaining to ImmTOR. For the avoidance of doubt, Selecta Core Technology includes, but is not limited to, the Patent Rights listed in Schedule 1.62.
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1.63
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“Selecta Licensed Patent Rights” means any and all Patent Rights licensed by Selecta to AskBio under the Selecta Research License or the Selecta Collaboration Product License, other than Joint Patent Rights.
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1.64
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“Selecta Patent Rights” means any and all Patent Rights that claim a Selecta Invention.
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1.65
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“Shared Costs” means, with respect to a Collaboration Product, (a) Development Costs incurred pursuant to the applicable Therapeutic Development Plan, (b) Cost of Goods Sold for such Collaboration Product Manufactured for purposes of Developing such Collaboration Product in accordance with the relevant Therapeutic Development Plan and Commercializing
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such Collaboration Product in accordance with the applicable Commercialization Plan, (c) Commercialization Costs, and (d) any Third Party Intellectual Property Payments.
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1.66
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“Third Party” means any person or entity other than AskBio or Selecta or an Affiliate of AskBio or Selecta.
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1.67
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“Third Party Intellectual Property Payments” means, with respect to a Collaboration Product, any royalties, license fees, maintenance fees or other monetary payments made by a Party or its Affiliates to any Third Party in consideration of a license(s) under Patent Rights or Know-How or other intellectual property rights that are owned or Controlled by such Third Party, where such license is included in the Therapeutic Development Plan or otherwise determined by the JSC to be necessary to Develop, Manufacture or Commercialize such Collaboration Product without infringing such Third Party’s Patent Rights, Know-How or other intellectual property rights, but in all cases, excluding all monetary payments owed by the Parties or their Affiliates to a Third Party in consideration of such license(s) to the extent such license is under intellectual property rights (including Patent Rights) owned or Controlled by a Third Party that were valid and enforceable as of the Effective Date and would be infringed or misappropriated by either Party’s use or practice of the AskBio Core Technology or the Selecta Core Technology, as it existed as of the Effective Date, in accordance with the Research Licenses or the Collaboration Product Licenses; provided that any such licenses obtained (a) by Selecta or its Affiliates with respect to the AskBio Core Technology or (b) by AskBio or its Affiliates with respect to the Selected Core Technology, shall require approval by the JSC prior to execution.
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1.68
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Additional Definitions. Each of the following definitions is set forth in the section of this Agreement as indicated below.
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Definition
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Section
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Definition
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Section
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AskBio
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Preamble
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Collaboration
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4.1
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AskBio Collaboration Product License
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8.1.3.1.2
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Collaboration Indication
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4.1
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Collaboration Product Licenses
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8.1.3.1.2
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AskBio Improvements
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8.2.1
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Collaboration Products
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4.1
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AskBio Indemnified Party
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10.2
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Collaboration Start Date
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3.8
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AskBio Inventions
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8.2.2
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Commercialization Lead Party
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4.2.5
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AskBio Research License
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8.1.2
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Commercialization Plan
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4.2.5
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Clinical Feasibility Activities
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3.6.1.1
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Commercialization Plan Budget
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4.2.5
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Clinical Feasibility Budget
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3.6.1.2
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Committees
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5.1.2
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Clinical Feasibility Plan
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3.6.1.1
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Deadlocked Matter
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5.1.4
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Clinical Feasibility Plan Timeline
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3.6.1.1
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Definitive JV Agreements
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4.2.8.1
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Effective Date
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Preamble
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Code
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11.8
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[***]
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[***]
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Definition
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Section
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Definition
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Section
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Enforcement Notice
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8.4.1
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Opting Out Party
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6.3.2
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Enforcing Party
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8.4.2
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Opt-Out Option
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6.3.1
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Failed Indication
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11.5
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Parties
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Preamble
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FCPA
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13.18
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Partnering Notice
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4.2.8.2
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Final Clinical Feasibility Report
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3.6.2.1
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Party
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Preamble
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Final POC Trial Report
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3.6.2.1
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Patent Prosecution and Enforcement Committee
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5.2.1
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Final Pre-Clinical Report
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3.5.2.2
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ImmTOR
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Recitals
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Permitted Deductions
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1.50
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IND Enabling Studies
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3.5.1.1
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Pharmacovigilance Agreement
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4.2.3.7
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Indemnified Party
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10.3.1
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POC Budget
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3.6.1.2
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Indemnifying Party
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10.3.1
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POC Candidate(s)
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3.1
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Initial POC Trial Report
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3.6.2.1
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POC Clinical Trials
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3.5.1.1
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JAMS
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12.4
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POC Cost Report
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3.4
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JCC
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5.2.3
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POC Costs
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3.3
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JDC
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5.2.2
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POC Determination Deadline
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3.7.3
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JFC
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5.2.4
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POC Notice
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3.8
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Joint Commercialization Committee
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5.2.3
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POC Plans
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3.6.1.1
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POC Studies
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3.1
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Joint Development Committee
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5.2.2
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POC Trial Reports
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3.6.2.1
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Joint Finance Committee
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5.2.4
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Potential Partnership
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4.2.8.2
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Joint Improvements
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8.2.1
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PPEC
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5.2.1
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Joint Inventions
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8.2.2
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Pre-Clinical Plan
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3.5.1.1
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Joint Patent Right Infringement
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8.4.1
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Pre-Clinical Plan Budget
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3.5.1.3
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Joint Steering Committee
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5.1.1
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Pre-Clinical Plan Timeline
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3.5.1.2
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Joint Venture
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Recitals
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Preliminary Pre-Clinical Report
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3.5.2.1
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JSC
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5.1.1
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Preparing Party
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6.2.3
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JSC Co-Chairs
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5.1.2
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Product
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3.1
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JV
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Recitals
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Profit Share Percentage
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6.2.1
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KOL
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4.2.3.1
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Proposed Study(ies)
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4.2.2.5
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Licensed Patent Right Infringement
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8.4.1
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Proposing Party
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4.2.2.5
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Prosecuting Party
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8.3.3.6
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[***]
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[***]
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Publications Policy
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7.4
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Losses
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10.1
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Reconciliation Report
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6.2.3
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[***]
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[***]
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Regulatory Lead Party
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4.2.3.1
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Non-Proposing Party
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4.2.2.5
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Definition
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Section
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Definition
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Section
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Representatives
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7.1
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Subcommittee
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5.1.2
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Research Licenses
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8.1.2
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Summary Statement
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6.2.2
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Rules
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12.4
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Term
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11.1
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Selecta
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Preamble
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Therapeutic Development Plan
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4.2.2.1
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Selecta Collaboration Product License
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8.1.3.1.1
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Therapeutic Development Plan Budget
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4.2.2.1
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Selecta Improvements
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8.2.1
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Therapeutic Development Plan Timeline
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4.2.2.1
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Selecta Indemnified Party
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10.1
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Selecta Inventions
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8.2.2
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Therapeutic POC Candidate
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3.1
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Selecta Research License
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8.1.2
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Third Party Claims
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10.1
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Study Data
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4.2.3.2
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Viralgen
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1.4
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Study Results
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3.7.2
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Withholding Party
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6.5
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Working Group
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5.3
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ARTICLE 2.
COLLABORATION OVERVIEW
Subject to the terms and conditions of this Agreement, the Parties will conduct the POC Studies (as defined below) and undertake the related activities set forth in Article 3 in furtherance of seeking to determine whether POC is met. If POC is achieved, or the Parties mutually agree, the Parties will thereafter collaborate in the development and commercialization of certain AAV-mediated therapeutics which use ImmTOR and other Selecta Core Technology in combination with the AskBio Core Technology. Such further development and commercialization will be conducted pursuant to the terms and conditions of this Agreement unless, following attainment of POC, the Parties elect to conduct their collaboration through a separate entity and form a Joint Venture or pursuant to another structure mutually agreed by the Parties.
ARTICLE 3.
FEASIBILITY POC
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3.1
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Overview. In order to demonstrate POC, the Parties will conduct certain IND Enabling Studies and POC Clinical Trials of certain AAV-mediated therapeutics which use Selecta Core Technology in combination with the AskBio Core Technology (each such therapeutic, a “Product”), as set forth in the applicable POC Plan and in further detail below in this Article 3. Such IND Enabling Studies and POC Clinical Trials may be referred to herein, individually or collectively, as the “POC Studies”. The POC Studies will be conducted with respect to: (a) a Product consisting of [***] developed using the AskBio Core Technology and powered by ImmTOR [***]; and (b) a Product intended for the treatment of Methylmalonic Acidemia (MMA), based on Selecta’s product candidate SEL-302 in an [***] as mutually agreed by both
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Parties (the “Therapeutic POC Candidate”). The [***] and Therapeutic POC Candidate may be referred to herein, individually or collectively, as the “POC Candidate(s)”.
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3.2
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Manufacturing. Selecta shall be responsible for, and shall use Commercially Reasonable Efforts to conduct, the manufacture and supply of ImmTOR and all other Selecta Core Technology, necessary or useful for the conduct of the POC Studies, in accordance with the applicable POC Plan. Similarly, AskBio shall be responsible for, and shall use Commercially Reasonable Efforts to conduct, the manufacture and supply of AAV capsids and all other AskBio Core Technology necessary or useful for the conduct of the POC Studies, in accordance with the applicable POC Plan. For clarity, such supply by each Party shall include, without limitation, supplying ImmTOR and AAV capsids to the applicable CRO for purposes of conducting any studies included in the Pre-Clinical Plan. Each Party shall conduct its manufacturing and supply activities pursuant to this Section 3.2 in accordance with Applicable Law (including cGMPs for all clinical supply) and this Agreement.
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3.3
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POC Costs. Each Party shall bear its own costs for the [***] activities conducted pursuant to the Pre-Clinical Plans (other than [***]), including such costs associated with the IND Enabling Studies, unless otherwise explicitly agreed in writing. All other Development Costs and Cost of Goods Sold for POC Candidate activities conducted pursuant to the POC Plans that are set forth in the applicable POC Budget, including such costs associated with the POC Studies, (collectively, the “POC Costs”) shall be shared equally by the Parties, unless otherwise explicitly agreed in writing. The POC Costs shall be reported and trued up in accordance with Section 3.4.
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3.4
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Reporting and POC Cost Sharing. In addition to any reporting requirements set forth elsewhere in this Agreement or the POC Plans, each Party will report to the other Party, within thirty (30) days of the end of each calendar month, a summary of its progress under each POC Plan, as well as an itemization of its POC Costs incurred during such calendar quarter under each of the Pre-Clinical Plan and the Clinical Feasibility Plan for each Therapeutic POC Candidate (each, a “POC Cost Report”). Within thirty (30) days after provision of the last POC Cost Report for the Pre-Clinical Plan, AskBio shall reconcile all such POC Cost Reports and issue to Selecta a statement of any amounts owed by a Party to the other Party to ensure that the Parties have shared the POC Costs from the Pre-Clinical Plan equally. Within thirty (30) days of the provision of such statement, the Party owing pre-clinical POC Cost amounts to the other Party shall pay such amounts. Similarly, within thirty (30) days after provision of the last POC Cost Report for the Clinical Feasibility Plan, AskBio shall reconcile all such POC Cost Reports and issue to Selecta a statement of any amounts owed by a Party to ensure that the Parties have shared the POC Costs from the Clinical Feasibility Plan equally. Within thirty (30) days of the provision of such statement, the Party owing clinical POC Cost amounts to the other Party shall pay such amounts.
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3.5
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Pre-Clinical Feasibility Activities
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3.5.1.1
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Within sixty (60) days following the Effective Date of this Agreement, the JSC will develop a plan (the “Pre-Clinical Plan”), based on a preliminary plan attached hereto as Schedule 3.5.1.1, setting forth all of the pre-clinical tests, studies and activities to be conducted by each Party (the “IND Enabling Studies”) to support the filing of an IND for a Clinical Study of the [***] and an IND for a Phase 1 Clinical Study of the Therapeutic POC Candidate selected by the Parties (as set forth in more detail in the Clinical Feasibility Plan, the “POC Clinical Trials”), for approval by the JSC. The purpose of the IND Enabling Studies is to enable the filing of an IND to conduct certain Clinical Studies (as described above) to test POC. Such Pre-Clinical Plan may include pharmacology studies and GLP Tox Studies deemed necessary to support an IND filing, subject to further guidance from the FDA. All modifications to the Pre-Clinical Plan, including the Pre-Clinical Plan Timeline and Pre-Clinical Plan Budget, shall be subject to approval in writing by the JSC.
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3.5.1.2
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The Pre-Clinical Plan shall set forth a timeline for the conduct of activities thereunder (the “Pre-Clinical Plan Timeline”). Without limiting the foregoing, the Pre-Clinical Plan will include good faith estimates for critical development milestones for each POC Candidate, such as completion of the GLP Tox Study, manufacturing of pre-clinical materials under cGMP, and preparation of documentation for submission of an IND (e.g., toxicity, CMC, and initial stability). Subject to further guidance from the FDA, the IND Enabling Studies may include pharmacology studies and GLP Tox Studies deemed necessary to support an IND filing.
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3.5.1.3
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As part of the Pre-Clinical Plan, the Parties shall agree upon a budget for performance of the Pre-Clinical Plan, including performance of the IND Enabling Studies (the “Pre-Clinical Plan Budget”).
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3.5.1.4
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Each Party shall cooperate with the other Party in the determination of the IND Enabling Studies and finalization of the Pre-Clinical Plan, including by participating in related discussions with the Competent Authorities. AskBio shall lead all discussions with the Competent Authorities regarding the Pre-Clinical Plan, provided, however, that Selecta shall have the right to actively participate in any interactions with such Competent Authorities and shall have ultimate decision-making authority with respect to any communications with, or submissions to, such Competent Authorities that relate primarily to Selecta Background Technology. To facilitate the foregoing, AskBio shall provide prompt prior written notice to Selecta, and in any case no less than fifteen (15) days prior to such interactions (to the extent practicable), in order to provide Selecta sufficient time to prepare to participate in such
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interactions or to revise such communications or submissions. AskBio shall have ultimate decision-making authority with respect to any communications with, or submissions to, such Competent Authorities regarding the Pre-Clinical Plan that relate primarily to any matter other than Selecta Background Technology. All disputes regarding the content of the Pre-Clinical Plan shall be resolved by the JSC.
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3.5.1.5
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Each Party shall use Commercially Reasonable Efforts to perform the activities allocated to it in the Pre-Clinical Plan, in accordance with the Pre-Clinical Plan Timeline, the Pre-Clinical Plan Budget and this Agreement. Except for the manufacture and supply of ImmTOR and other necessary Selecta Core Technology, and subject to the foregoing sentence, AskBio shall conduct and complete all IND Enabling Studies set forth in the Pre-Clinical Plan. Notwithstanding the foregoing, AskBio may, at its sole discretion, elect to have selected IND Enabling Studies performed by its Affiliates and/or subcontract standard tasks and services to Third Party providers of such services, including, without limitation, CROs and other subcontractors; provided that AskBio shall be and remain responsible for ensuring that the performance of all such IND Enabling Studies by its Affiliates or such Third Parties complies with the terms of this Agreement and Applicable Law, and in no event shall any such delegation or subcontract release AskBio from any of its obligations under this Agreement. The Parties agree that any Third Party CRO contracted to conduct any pharmacology studies or GLP Tox Studies in accordance with the Pre-Clinical Plan will use materials provided by Selecta and AskBio, and that such Third Party CRO shall be selected and engaged by AskBio.
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3.5.2
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Pre-Clinical Studies Reporting Requirements
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3.5.2.1
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Within thirty (30) days after completion of any studies set forth in the Pre-Clinical Plan, and at such earlier time points mutually agreed upon by the Parties in the Pre-Clinical Plan or otherwise through the JSC, AskBio shall provide Selecta with a written progress report which shall describe the activities under the IND Enabling Studies that AskBio has performed to date, all results generated to date, and evaluate the work performed in relation to the goals of the Pre-Clinical Plan and the POC Studies (the “Preliminary Pre-Clinical Report”). Upon Selecta’s request, AskBio shall promptly provide any data, results or reports generated, prepared or received in the performance of the Pre-Clinical Plan or POC Studies.
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3.5.2.2
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Within thirty (30) days after completion of the Pre-Clinical Plan, AskBio shall provide Selecta with a final written report which shall describe the activities under the Pre-Clinical Plan that AskBio performed, the results
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of those activities, and an evaluation of the work performed in relation to the Pre-Clinical Plan goals and the POC Studies (the “Final Pre-Clinical Report”). Within thirty (30) days of Selecta’s receipt of the Final Pre-Clinical Report, the Parties shall meet, at such time and place as the Parties may agree, to review the Final Pre-Clinical Report, including the results of the Pre-Clinical Plan contained therein. Upon Selecta’s request, AskBio shall promptly provide any data, results or reports generated, prepared or received in the performance of the Pre-Clinical Plan or POC Studies.
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3.5.2.3
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In addition to the written reports specified in Section 3.5.2.1 and Section 3.5.2.2 above, the Parties shall provide such other information as may be reasonably requested by the other Party or the JSC relating to the Pre-Clinical Plan from time to time.
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3.5.3
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Pre-Clinical Performance Representations, Warranties and Covenants. Each Party represents, warrants and covenants that it shall perform its assigned activities under the Pre-Clinical Plan in good scientific manner and in compliance in all material respects with all Applicable Laws and good, professional clinical and laboratory practices and under such regulatory standards (for example GCP, GLP or cGMP) as shall be specified in the Pre-Clinical Plan, and shall endeavor to achieve the objectives of the Pre-Clinical Plan efficiently and expeditiously. Moreover, each Party shall proceed diligently with the IND Enabling Studies by allocating sufficient time, effort, equipment, and skilled personnel to complete the IND Enabling Studies successfully and promptly. Notwithstanding the foregoing, the Parties acknowledge and agree that there can be no assurances that the objectives of the Pre-Clinical Plan can be achieved, or that they can be achieved in accordance with the Pre-Clinical Plan Timeline.
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3.5.4
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[***]. If, based on the results of the POC Studies with respect to the [***], the JSC determines that [***] has not been obtained, or if the Parties otherwise determine that additional data would be beneficial in obtaining [***], the Parties may include in the POC Plans and associated budgets additional pre-clinical and clinical activities determined by the Parties to be reasonably necessary to achieve [***]. The Parties shall share the Development Costs associated therewith equally and will use Commercially Reasonable Efforts to complete such activities in accordance with the applicable timelines set forth in the POC Plans. Upon completion of such activities the JSC will promptly determine whether [***] has been achieved and provide the Parties with notice of such determination.
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3.6
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Clinical POC Activities
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3.6.1
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Clinical Feasibility Plan
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3.6.1.1
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Within sixty (60) days of completion of the Pre-Clinical Plan, the JSC shall develop a written plan (the “Clinical Feasibility Plan” and, together
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with the Pre-Clinical Plan, the “POC Plans”) that sets forth (a) activities that are necessary or desirable to enable the Parties to commence and complete the POC Clinical Trials for the attainment of POC (the “Clinical Feasibility Activities”), (b) the Party responsible for performing each Clinical Feasibility Activity, and (c) an estimated timeline for completion of critical Clinical Feasibility Activities (the “Clinical Feasibility Plan Timeline”). The Clinical Feasibility Plan shall be subject to the approval of the JSC. In the event of any dispute between the Parties with respect to the contents of the Clinical Feasibility Plan, such dispute will be submitted to the JSC and resolved by the JSC in accordance with Section 5.1. The Clinical Feasibility Plan, including the Clinical Feasibility Plan Timeline and Clinical Feasibility Budget, may be amended from time to time by the JSC in accordance with Section 5.1.
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3.6.1.2
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As part of the Clinical Feasibility Plan, the Parties shall agree upon a budget for performance of the Clinical Feasibility Plan, including performance of the Clinical Feasibility Activities (the “Clinical Feasibility Budget” and, together with the Pre-Clinical Plan Budget, the “POC Budget”).
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3.6.1.3
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The Clinical Feasibility Plan shall allocate to AskBio the responsibility to obtain the IND for, and conduct, each POC Clinical Trial contemplated in the Clinical Feasibility Plan. Accordingly, AskBio, as IND holder, shall be the sponsor of the applicable POC Clinical Trial conducted in connection with the Clinical Feasibility Plan, provided, however, that Selecta shall have the right to actively participate in any interactions with any Competent Authorities and shall have ultimate decision-making authority with respect to any communications with, or submissions to, such Competent Authorities that relate primarily to Selecta Background Technology. To facilitate the foregoing, AskBio shall provide prompt prior written notice to Selecta, and in any case no less than fifteen (15) days prior to such interactions (to the extent practicable), in order to provide Selecta sufficient time to prepare to participate in such interactions or to revise such communications or submissions. AskBio shall have ultimate decision-making authority with respect to any communications with, or submissions to, such Competent Authorities regarding the Clinical Feasibility Plan that relate primarily to any matter other than Selecta Background Technology. AskBio may engage the services of one or more reputable Third Party CROs and transfer regulatory obligations to such CROs as is reasonable and customary in furtherance of the conduct of the applicable Clinical Study(ies).
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3.6.1.4
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Each of AskBio and Selecta shall use Commercially Reasonable Efforts to conduct and complete all tests, studies and other activities for which
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it is assigned responsibility in the Clinical Feasibility Plan; provided that each Party may, at its sole discretion, elect to have certain Clinical Feasibility Activities allocated to it under the Clinical Feasibility Plan be performed by its Affiliates and further may subcontract standard tasks and services to Third Party providers of such services; and provided further that each Party shall be responsible for ensuring that the performance of all Clinical Feasibility Activities by its Affiliates or Third Parties complies with the terms of this Agreement and Applicable Law, and in no event shall any such delegation or subcontract release the delegating Party from any of its obligations under this Agreement.
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3.6.1.5
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Each of AskBio and Selecta represents, warrants and covenants that it shall perform the Clinical Feasibility Activities for which it is assigned responsibility in the Clinical Feasibility Plan in good scientific manner and in compliance in all material respects with all requirements of Applicable Laws and good, professional clinical and laboratory practices and under such regulatory standards (for example GCP, GLP or cGMP) as shall be specified in the Clinical Feasibility Plan, and shall endeavor to achieve the objectives of the Clinical Feasibility Plan efficiently and expeditiously. Moreover, each of AskBio and Selecta shall proceed diligently with the Clinical Feasibility Plan by promptly allocating sufficient time, effort, equipment, and skilled personnel to complete the Clinical Feasibility Activities for which it is assigned responsibility.
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3.6.2
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Reporting Requirements
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3.6.2.1
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Within thirty (30) days after completion of any studies set forth in the Clinical Feasibility Plan, and at such earlier time points mutually agreed upon by the Parties in the Clinical Feasibility Plan or otherwise through the JSC, AskBio shall provide Selecta with a written progress report which shall describe the activities under the Clinical Feasibility Plan that AskBio has performed to date and evaluate the work performed in relation to the goals of the Clinical Feasibility Plan. AskBio shall provide Selecta with an initial report of the results of such POC Clinical Trial, including top-line data (“Initial POC Trial Report”), within fifteen (15) days after completion of each POC Clinical Trial, and a final report of the results of such POC Clinical Trial within thirty (30) days of completion of each POC Clinical Trial (“Final POC Trial Report” and, together with the Initial POC Trial Report, the “POC Trial Reports”). Within sixty (60) days after completion of the Clinical Feasibility Plan and receipt of all POC Trial Reports, AskBio shall provide to Selecta a written report, which shall describe the Clinical Feasibility Activities performed, evaluate the work performed in relation to the goals of the Clinical Feasibility Plan, and provide such other information as may be reasonably
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requested by Selecta with respect to the Clinical Feasibility Activities (the “Final Clinical Feasibility Report”). Within thirty (30) days of Selecta’s receipt of the Final Clinical Feasibility Report, the Parties shall meet, at such time and place as the Parties may agree, to review the Final Clinical Feasibility Report, including the results of the Clinical Feasibility Plan contained therein.
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3.6.2.2
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In addition to the written reports specified in Section 3.6.2.1 above, the Parties shall provide such other information as may be reasonably requested by the other Party or the JSC relating to the Clinical Feasibility Plan from time to time.
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3.7
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Feasibility Study Results
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3.7.1
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Regulatory Records. Each Party shall maintain records of all IND Enabling Studies and Clinical Feasibility Activities conducted by it in sufficient detail and in good scientific manner in form and substance (including data being provided in a readily usable and appropriate format) appropriate for all patent and regulatory purposes (including, without limitation, Marketing Approval, pricing, and reimbursement purposes), which shall be substantially complete and materially accurate and shall reflect all work done and results achieved in the performance of the IND Enabling Studies and Clinical Feasibility Activities by or on behalf of such Party, and which shall be retained by such Party during the term of this Agreement and for at least five (5) years thereafter, or for such longer period as may be required by Applicable Law. The other Party shall have the right, during normal business hours and upon reasonable notice, to inspect and copy any such records maintained by the other Party for legitimate business purposes.
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3.7.2
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Study Results. All data, reports, and other information (excluding patentable Inventions, which are subject to Article 8 below) generated by the Parties during performance of the IND Enabling Studies or the POC Clinical Trials (the “Study Results”) shall be jointly owned by the Parties. Each Party hereby grants to the other Party the right to reference and use for all lawful purposes all Study Results effective after delivery of the Final Clinical Feasibility Report; provided that, prior to delivery of the Final Clinical Feasibility Report, neither Party may use the Study Results to, directly or indirectly, develop, manufacture or commercialize (or aid in such activities) any product with or for a Third Party outside of this Agreement. For clarity, prior to delivery of the Final Clinical Feasibility Report, neither Party shall use the Study Results, except for research, Development, Manufacture or Commercialization of POC Candidates or in connection with deciding whether to proceed with the Collaboration prior to achievement of POC. Notwithstanding anything to the contrary in this Section 3.7.2, (a) AskBio may use any Study Results (i) comprising safety data solely with respect to AskBio Core Technology as is reasonably necessary to satisfy its regulatory obligations with respect thereto, and (ii) after delivery of the Final Clinical Feasibility Report to secure equity or debt
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financing for its activities under this Agreement, including sharing such Study Results with Third Parties in order to secure such financing, in each case, as long as such Third Parties are under written obligations of confidentiality, non-disclosure and non-use consistent with this Agreement and (b) Selecta may use any Study Results (i) comprising safety data solely with respect to Selecta Core Technology as is reasonably necessary to satisfy its regulatory obligations with respect thereto, and (ii) after delivery of the Final Clinical Feasibility Report to secure equity or debt financing for its activities under this Agreement, including sharing such Study Results with Third Parties in order to secure such financing, in each case, as long as such Third Parties are under written obligations of confidentiality, non-disclosure and non-use consistent with this Agreement. Neither Party shall publish the Study Results without the express written consent of the other Party (which consent shall not be unreasonably withheld, conditioned, or delayed). Each Party shall promptly provide the other Party with accurate copies of all Study Results. Neither Party shall withhold any Study Results from the other Party.
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3.7.3
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Analysis of Feasibility Study. Upon completion of the Clinical Feasibility Plan, the Parties through the JSC shall review the Study Results to determine if POC was successfully attained. The JSC shall use Commercially Reasonable Efforts to make such assessment within sixty (60) days following Selecta’s receipt of the Final Clinical Feasibility Report, or such longer period as may be agreed by the Parties in writing (“POC Determination Deadline”).
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3.8
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Election to Co-Develop Products. Based on the results of the POC Studies with respect to the [***], the Parties may mutually agree in writing to proceed with the Collaboration. In the event that the JSC determines that POC is attained [***], it shall send written notice (the “POC Notice”) to each of the Parties stating such determination and the basis therefor prior to the expiration of the POC Determination Deadline. If the JSC determines that POC is not achieved, then this Agreement shall terminate on the POC Determination Deadline, unless the Parties mutually agree in writing to proceed with the Collaboration. Upon receipt of the POC Notice or upon a mutual agreement in writing to proceed with the Collaboration (the date of receipt of such POC Notice or the execution of such mutual agreement in writing to proceed with the Collaboration, the “Collaboration Start Date”), the Parties will collaborate in the Development and Commercialization of the Collaboration Products in accordance with Article 4 below.
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ARTICLE 4.
COLLABORATION
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4.1
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Scope. Following the Collaboration Start Date, the Parties shall pursue the Development and Commercialization of Products intended for use to treat [***], targeting a specific gene, listed in Schedule 4.1 (each, a “[***]”), and following determination by the JSC that [***] has been attained, the Parties shall pursue the Development and Commercialization of Products intended for use to treat [***], targeting a specific gene, listed in Schedule 4.1 (each, a “[***],” and together with the [***], the “Collaboration Indications”). For
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clarification, (a) each Collaboration Indication listed in Schedule 4.1 includes the specific gene listed in Schedule 4.1 alongside such Collaboration Indication, and in the case of each [***], includes the specific Approach listed in Schedule 4.1 alongside such [***] and (b) Schedule 4.1 is intended to only be a preliminary list of Collaboration Indications, and the Parties shall, within sixty (60) days of the Effective Date, meet and finalize the list of Collaboration Indications (including associated genes and Approaches, as applicable), which updated list shall replace Schedule 4.1 hereto. For clarity, within such sixty (60) day period, the Parties shall determine the order in which the Parties should commence activities under any Therapeutic Development Plan with respect to the [***] and [***] that are Collaboration Indications. If the JDC cannot reach such determination within such sixty (60) day period, then the order in which the Collaboration Indications will be developed shall be determined as follows: [***]. Products targeting the gene specified in Schedule 4.1 and intended for use to treat such Collaboration Indication, and with respect to each [***] utilizing the associated Approach specified in Schedule 4.1, shall be “Collaboration Products” and the Parties’ Development, Manufacturing and Commercialization activities under this Agreement with respect to such Collaboration Indication and Collaboration Products may be referred to as the “Collaboration.” Notwithstanding anything herein to the contrary, if POC is achieved for MMA, such indication may also be a Collaboration Indication for purposes of this Agreement if included in Schedule 4.1, but shall not count toward the total number of Collaboration Indications permitted in the first sentence of this Section 4.1.
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4.2
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Collaboration Indications
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4.2.1
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Scope. The Parties shall be jointly responsible for the research and Development of each Collaboration Product Developed hereunder in accordance with the applicable Therapeutic Development Plan unless and until, where applicable, a Party exercises an Opt-Out Option as described below with respect to the Collaboration Indication for which such Collaboration Product is being Developed. The Parties shall be jointly responsible for all Shared Costs associated with the Development, Manufacture, and Commercialization of Collaboration Products, subject to the cost sharing provisions for a Collaboration Product which is subject to the exercise of an Opt-Out Option. In the event that a Party exercises an Opt-Out Option for a Collaboration Indication, and the Parties agree that the Party exercising such Opt-Out Option should continue to conduct activities for the research, Development or Manufacture of a Collaboration Product for such Collaboration Indication, then the Party requesting such activities shall (a) directly pay when due any Third Parties for all out-of-pocket costs and expenses incurred by the Party exercising the Opt-Out Option, and (b) reimburse the Party exercising the Opt-Out Option for all FTE Costs and other internal costs and expenses, in connection with such agreed activities within thirty (30) days of receiving an invoice detailing such costs and expenses.
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4.2.2.1
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Development Plan. The JDC shall develop a plan for the Development of Collaboration Products for each of the Collaboration Indications (each,
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a “Therapeutic Development Plan”), which shall be subject to the approval of the JSC and may be supplemented and amended from time to time by the JSC. Each Therapeutic Development Plan shall include a work plan and budget (“Therapeutic Development Plan Budget”) for the activities to be conducted by each Party for the Collaboration Indications. Each
Therapeutic Development Plan shall allocate activities and responsibilities between the Parties, and shall include a timeline for the completion of all activities included therein (“Therapeutic Development Plan Timeline”). Each Party shall use Commercially Reasonable Efforts to complete the activities assigned to it in each Therapeutic Development Plan in accordance with the applicable Therapeutic Development Plan Timeline. Each Party shall ensure that its performance under each Therapeutic Development Plan is at all times in compliance with all Applicable Laws and in accordance with professional and ethical standards customary in the biopharmaceutical industry.
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4.2.2.2
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Updates. Each Therapeutic Development Plan (together with the corresponding budget) shall be updated by the JDC annually (on an annual cycle ending on September 30th) for the upcoming calendar year, such update subject to review and approval by the JSC. Either Party can propose amendments to a Therapeutic Development Plan, each of which shall be subject to review by the JDC and approval by the JSC.
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4.2.2.3
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Development Funding. The Parties shall fund the conduct of the activities under each Therapeutic Development Plan in accordance with the Therapeutic Development Plan Budget set forth therein, with the Shared Costs of performing such activities being borne by the Parties equally pursuant to the cost and profit sharing provisions of Section 6.2, other than with respect to Collaboration Indications for which one Party has exercised the Opt-Out Option. Each Party shall be solely responsible for costs it incurs in connection with the Development of a Collaboration Product that are outside of the applicable Therapeutic Development Plan Budget, subject to Section 4.2.2.4 below.
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4.2.2.4
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Overages. For a Product, neither Party shall be required to commit resources or funds towards activities that are not included in a POC Budget and POC Plan, or a Therapeutic Development Plan Budget and Therapeutic Development Plan, provided that:
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4.2.2.4.1
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In the event that a Party anticipates that the actual amount of aggregate annual Development Costs for the Development activities included in the current applicable POC Plan or
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Therapeutic Development Plan will exceed the amounts set forth in the then-current POC Budget or Therapeutic Development Plan Budget for such year by up to [***], such Party shall bring such information to the JDC, which will engage in a good faith discussion of the reason(s) for such anticipated increase but approval of the JDC shall not be required and such increased amount shall be shared equally by the Parties.
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4.2.2.4.2
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In the event that a Party anticipates that the actual amount of aggregate annual Development Costs for the Development activities included in the current applicable POC Plan or Therapeutic Development Plan will exceed the amounts set forth in the then-current POC Budget or Therapeutic Development Plan Budget for such year by more than [***], such Party shall bring such information to the JDC for approval, and if approved such increased amount shall be shared equally by the Parties. If not approved, such matter shall be escalated to the JSC, and such amounts over [***] of the Therapeutic Development Plan Budget shall be borne by the Party incurring such costs unless otherwise determined by the JSC; provided, however, that to the extent such additional amounts are borne at the direction of any Competent Authority, then such amounts shall be shared equally, whether or not approved by the JSC. For clarity, if a Party incurs any such overage amount that is not approved by the JSC, the Party incurring such overage amounts may elect to proceed with the activities that would result in such overage and the determination as to whether that overage amount shall be equally shared by the Parties as Development Costs shall be deemed a Deadlocked Matter and subject to the dispute resolution provisions described in Section 5.1.4.
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4.2.2.5
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Additional Studies. If a Party (including its Affiliates or sublicensees) wishes to conduct one or more additional Clinical Studies or other Development activities for a Collaboration Product beyond the Clinical Studies included in the then-current Therapeutic Development Plan, such Party (the “Proposing Party”) shall notify the other Party (the “Non-Proposing Party”) of such proposed studies (the “Proposed Study(ies)”) and provide the Non-Proposing Party with any data or publications supporting any such proposal. In such event, the Non-Proposing Party shall consider such proposal and evaluate the supporting data and information in good faith. If the Parties both wish to collaborate in the conduct of such Proposed Study(ies), the Proposing Party shall
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prepare an amendment to a Therapeutic Development Plan and Therapeutic Development Plan Budget for the Collaboration Indication for which such Collaboration Product is intended to be used, to include the Proposed Study(ies) for review by the JDC, and subsequent approval by the JSC.
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4.2.2.6
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Reporting; Development Records. Each Party shall provide to the other quarterly written reports regarding the progress and results of their activities under a Therapeutic Development Plan through the JDC. Each Party shall (and shall cause its Affiliates, sublicensees, subcontractors and consultants to) maintain complete and accurate records (in the form of technical
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notebooks and/or electronic files where appropriate) of all work conducted by it or on its behalf (including by its Affiliates, sublicensees, subcontractors and consultants) under a Therapeutic Development Plan. Such records, including any electronic files where such data may also be contained, shall fully and properly reflect all work done and results achieved in sufficient detail and in a good scientific manner appropriate for patent and regulatory purposes. Each Party shall have the right to review and receive a copy of such records (including a copy of the databases) maintained by the other Party (including its Affiliates, sublicensees, subcontractors and consultants) at reasonable times, but no more than twice in any one calendar year, and to obtain access to source documents to the extent needed for patent or regulatory purposes or for other legal proceedings. For each Clinical Study pursuant to a Therapeutic Development Plan, the Parties shall use the applicable regulatory database format in order to fulfill both FDA and EMA, or other Competent Authority, requirements under Applicable Law.
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4.2.3.1
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Responsibilities. Subject to the specific activities allocated to each Party under a Therapeutic Development Plan, the JSC shall allocate primary responsibility for obtaining Regulatory Approvals for each Collaboration Product to a Party (the “Regulatory Lead Party”), on a Collaboration Product-by-Collaboration Product basis. Unless otherwise agreed by the JSC, [***]. The Regulatory Lead Party for each Collaboration Product shall be the sponsor of the Clinical Studies conducted under the Therapeutic Development Plan for such Collaboration Product, unless the Parties agree otherwise. For each Collaboration Product Clinical Study, the Regulatory Lead Party shall have and maintain operational control and responsibility for such Clinical Study, provided, however, that the non-sponsoring Party shall have equal input and participation in strategic level decisions (including via participation and membership in
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all major global program teams and sub-teams) relating to such Clinical Study, including the right to actively participate in any interactions with Competent Authorities and key opinion leader (“KOL”) interactions. To facilitate the foregoing, the Regulatory Lead Party shall provide prompt prior written notice, and in any case no less than [***] days prior to such interactions, of all such interactions with Competent Authorities and all KOL interactions, investigator meetings and advisory board meetings regarding Clinical Studies of the applicable Collaboration Product, in order to provide the non-sponsoring Party sufficient time to prepare to participate in such interactions or meetings, or to revise any communications or submissions. Notwithstanding the foregoing, Selecta shall have ultimate decision-making authority with respect to any communications with, or submissions to, any Competent
Authorities that primarily relate to Selecta Background Technology and AskBio shall have ultimate decision-making authority with respect to any communications with, or submissions to, any Competent Authorities that primarily relate to AskBio Background Technology.
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4.2.3.2
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Ownership. The applicable Regulatory Lead Party shall own all INDs, BLAs, or other Regulatory Approvals and related regulatory documentation submitted to any Competent Authority in the Territory with respect to the applicable Collaboration Product. No Regulatory Lead Party shall transfer any right, title, interest, or option in or to any such Regulatory Approvals or documentation without the prior written consent of the other Party (except in accordance with Section 13.1). No Regulatory Lead Party shall authorize or permit or grant access to any compassionate use for a Collaboration Product without the written approval of the other Party hereto. All information, data, and reports generated in connection with each Clinical Study of a Collaboration Product pursuant to a Therapeutic Development Plan (“Study Data”) shall be jointly owned by the Parties; provided that any patentable Inventions arising therefrom shall be subject to Article 8. Each Party hereby grants to the other Party the right to reference and use all Study Data for all lawful purposes; provided that, such purpose is not inconsistent with this Agreement, and provided further that, prior to delivery of the Final Clinical Feasibility Report, neither Party may use the Study Data to, directly or indirectly, develop, manufacture or commercialize (or aid in such activities) any product with or for a Third Party outside of this Agreement without the prior written consent of the other Party. Notwithstanding anything to the contrary in this Section 4.2.3.2 (a) AskBio may use any Study Data comprising safety data solely with respect to AskBio Core Technology as is reasonably necessary to satisfy its regulatory obligations with respect thereto and (b) Selecta may
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use any Study Results comprising safety data solely with respect to Selecta Core Technology as is reasonably necessary to satisfy its regulatory obligations with respect thereto. Neither Party shall publish the Study Data without the express written consent of the other Party (which consent shall not be unreasonably withheld, conditioned, or delayed). Each Party shall promptly provide the other Party with accurate copies of all Study Data. Neither Party shall withhold any Study Data from the other Party.
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4.2.3.3
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Communications. Within [***] days after receipt of any communication from a Competent Authority with respect to a Product, the recipient Party will provide the other Party with a brief written description of the principal issues raised in such communication and will also simultaneously provide complete copies of such correspondence. The recipient Party will additionally allow such other Party a reasonable opportunity to review and comment on any proposed response to such communications in advance of
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the transmission of such response, and will reasonably consider all comments timely provided in connection therewith.
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4.2.3.4
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Clinical Hold. Without limiting the foregoing, with respect to each Product, within [***] after receipt of any communications from a Competent Authority related to a Clinical Study hold or potential Clinical Study hold for safety reasons or for a potential withdrawal from the market for a safety issue or a report of a serious safety finding by a Competent Authority, the recipient Party will provide the other Party with a brief written description of the principal issues raised in such communication and will also simultaneously provide complete copies of such correspondence. The recipient Party will additionally allow such other Party a reasonable opportunity to review and comment on any proposed response to such communications in advance of the transmission of such response and will reasonably consider all comments timely provided in connection therewith. AskBio shall not make any public disclosures regarding any Clinical Study holds or potential Clinical Study holds without the prior written consent of Selecta.
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4.2.3.5
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Meetings. Each Party shall provide the other Party with reasonable advance notice of all meetings and teleconferences with a Competent Authority pertaining to a Product, or with as much advance notice as practicable under the circumstances. The notifying Party shall use reasonable efforts to permit the other Party to have, at such other Party’s expense, mutually acceptable representatives attend as participants, such meetings and teleconferences with Competent Authorities pertaining to such Product, provided that for any meetings and teleconferences with
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Competent Authorities that address any CMC-related issues for such Product, each Party shall have representatives attend such meetings and teleconferences and such representatives shall be primarily responsible for addressing any CMC-related questions, as well as for defending the CMC section of the BLA of such Product which pertains to their respective technologies.
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4.2.3.6
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Submissions. With respect to a Product, each Party shall allow the other Party a reasonable opportunity to review and comment on all filings and other submissions to a Competent Authority related to such Product in advance of such submission or filing, and such first Party shall reasonably consider in good faith all comments timely provided by such other Party in connection therewith. Notwithstanding the foregoing, Selecta shall have ultimate decision-making authority with respect to any filings and submissions to a Competent Authority that primarily relate to Selecta Background Technology and AskBio shall have ultimate decision-making authority with respect to any filings or submissions to a Competent Authority that primarily relate to AskBio Background Technology.
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Notwithstanding the foregoing, each Party shall prepare and defend the CMC section of each MAA, which pertains to their respective technology for such Product, provide the other Party with a reasonable opportunity to review and comment on such CMC section, and reasonably consider in good faith all comments timely provided by such Party in connection therewith.
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4.2.3.7
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Agreement/Safety Data Exchange Agreement. Prior to initiation of the first Clinical Study for each Product, the Parties shall negotiate in good faith and enter into an agreement setting forth the worldwide pharmacovigilance procedures for the Parties with respect to such Product (each, a “Pharmacovigilance Agreement”). When executed, the Pharmacovigilance Agreement shall remain a stand-alone document, independent from this Agreement to enable amendment thereto as required independently of this Agreement. The Parties acknowledge that the prompt exchange of safety data is important to support the Parties’ regulatory reporting obligations, and therefore, the Pharmacovigilance Agreement shall contain provisions to ensure that adverse event and other pharmacovigilance information is exchanged in accordance with, and in a manner enabling both Parties to fulfill, all local, national, and regional regulatory reporting obligations under Applicable Laws. For clarity, the Pharmacovigilance Agreement shall continue to apply to Collaboration Indications for which a Party has exercised its Opt-Out Option.
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4.2.4.1
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Selecta shall be responsible for, and shall use Commercially Reasonable Efforts to conduct, the manufacture and supply of ImmTOR and all other Selecta Core Technology, necessary or useful (a) for the conduct of Clinical Studies of the Collaboration Products, in accordance with the applicable Therapeutic Development Plan, and (b) for use with or for inclusion in Collaboration Products. AskBio shall be responsible for, and shall use Commercially Reasonable Efforts to conduct, the manufacture and supply of AAV capsids, AAV vectors, AAV particles, AAV production cells, and all other AskBio Core Technology necessary or useful (y) for the conduct of Clinical Studies, in accordance with the Therapeutic Development Plans, and (z) for use with or for inclusion in Collaboration Products. Each Party shall conduct its manufacturing and supply activities pursuant to this Section 4.2.4 in accordance with Applicable Law (including cGMPs for all clinical supply) and this Agreement. The costs of such manufacture and supply set forth in the Therapeutic Development Plan shall be shared equally, as Shared Costs. AskBio shall be responsible, itself or through Viralgen, for the manufacturing of all Collaboration Products excluding the manufacture of ImmTOR for use with or for inclusion in such Collaboration
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Products, and shall be paid for such manufacture of Collaboration Products based on mutually agreed upon rates, which rates shall include all of AskBio’s costs incurred with such manufacture of Collaboration Products without any markup.
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4.2.4.2
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Except as otherwise agreed by the Parties in writing, AskBio shall not exercise AskBio Collaboration Product License to make and have made ImmTOR for use with or for inclusion in Collaboration Products unless and until: (a) Selecta fails, or AskBio reasonably believes that Selecta will fail, to supply AskBio or its Affiliates’ requirements of ImmTOR in connection with the Collaboration, including as ordered pursuant to the supply agreement described in Section 4.2.4.4, (b) the Parties fail to enter into a supply agreement pursuant to Section 4.2.4.4 prior to the initiation of the first Pivotal Clinical Study of such Collaboration Product if AskBio is the Lead Commercialization Party. If Selecta exercises the Opt-Out Option with respect to any Collaboration Indication or AskBio enters into a Partnership Agreement for a Collaboration Product, Selecta shall supply ImmTOR to AskBio or its designee for use in such Collaboration Indication or Collaboration Products at a price not to exceed Manufacturing Costs plus [***] and if Selecta does not supply ImmTOR for such purposes at such pricing AskBio may exercise its right to make and have made ImmTOR for use with or for inclusion in Collaboration
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Products pursuant to the AskBio Collaboration Product License for use in such Collaboration Indication.
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4.2.4.3
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Except as otherwise agreed by the Parties in writing, Selecta shall not exercise the Selecta Collaboration Product License to make and have made AAV vectors, transgenes or promoters for use with or for inclusion in Collaboration Products unless and until: (a) AskBio fails, or Selecta reasonably believes that AskBio will fail, to supply AskBio or its Affiliates’ requirements of AAV vectors, transgenes or promoters, in connection with the Collaboration, including as ordered pursuant to the supply agreement described in Section 4.2.4.4, (c) the Parties fail to enter into a supply agreement pursuant to Section 4.2.4.4 prior to the initiation of the first Pivotal Clinical Study of such Collaboration Product if Selecta is the Lead Commercialization Party. If AskBio exercises the Opt-Out Option with respect to any Collaboration Indication or Selecta enters into a Partnership Agreement for a Collaboration Product, AskBio shall supply AAV vectors, transgenes and promoters to Selecta or its designee for use in such Collaboration Indication or Collaboration Products, and if AskBio does not supply AAV vectors, transgenes or promoters for such purposes, , Selecta may exercise its right to make and have made AAV vectors, transgenes or promoters for use with or for inclusion in Collaboration Products pursuant to the Selecta Collaboration Product License for use in such Collaboration Indication. In the event that either AskBio exercises the Opt-Out Option
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with respect to any Collaboration Indication or if Selecta is allocated responsibility for the Manufacture of any Collaboration Product, then Selecta may engage with Viralgen directly to manufacture any relevant Collaboration Products and AskBio will use reasonable efforts to facilitate such discussions.
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4.2.4.4
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Prior to initiation of the first Pivotal Clinical Study of a Collaboration Product or in connection with a Potential Partnership upon request of the Commercialization Lead Party for such Collaboration Product, or upon earlier request by either Party as reasonably necessary to support the Development or Commercialization of the Collaboration Products in accordance with this Agreement, the Parties shall negotiate, promptly and in good faith, a supply agreement or manufacturing technology transfer arrangement, as is reasonably necessary or useful for such Commercialization Lead Party to support such Pivotal Clinical Studies and the Commercialization of such Collaboration Products.
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4.2.5
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Commercialization. Prior to initiation of the first Pivotal Clinical Study of a Collaboration Product, the JCC shall develop a commercialization plan for such Collaboration Product and submit such plan to the JSC for approval (such approved
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plan, the “Commercialization Plan”). The Commercialization Plan may be amended from time to time by the JCC, subject to approval of the JSC. As part of such initial Commercialization Plan, the Parties shall determine which Party will have the right to Commercialize such Collaboration Product (the “Commercialization Lead Party”), and the Parties shall agree upon a budget for performance of the Commercialization Plan, as well as pricing and reimbursement strategy for such Collaboration Product (the “Commercialization Plan Budget”). If the Parties cannot agree on which Party should be the Commercialization Lead Party with respect to a Collaboration Product, the Party that bears a majority of the Shared Costs incurred prior to submission of the first MAA for such Collaboration Product shall be the Commercialization Lead Party. The Commercialization Lead Party shall use Commercially Reasonable Efforts to Commercialize each Collaboration Product in accordance with the applicable Commercialization Plan. The Party that is not the Commercialization Lead Party with respect to a given Collaboration Product shall have the right, but not the obligation, to co-promote such Collaboration Product. All Commercialization activities conducted by the Parties shall be conducted in accordance with Applicable Law and this Agreement.
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4.2.6
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Subcontractors. Each Party will have the right to use its Affiliates or Third Parties to perform the research, Development, Manufacturing, or Commercialization activities for the benefit of such Party under this Agreement; provided that: (a) such Party remains responsible for the work allocated to such Party hereunder to the same extent it would if it had done such work itself; and (b) such Party will enter into a binding written agreement with each such Affiliate and/or Third Party, prior to commencing
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such activities, which agreement includes the following terms (i) the subcontractors undertake in writing all compliance obligations, and agree to comply with the terms of this Agreement and Applicable Law, (ii) the subcontractors undertake in writing all obligations of confidentiality and non-use regarding Confidential Information that are substantially the same as those undertaken by the Parties pursuant to Article 7 (except for a commercially reasonable term for confidentiality obligations), and (iii) such Party Controls all intellectual property rights developed by the subcontractors in the course of performing any such work and owns all such intellectual property that is related to, or otherwise necessary for research, Development, Manufacture, or Commercialization of a Collaboration Product. Without limiting the foregoing, prior to commencing any such activities, each such subcontractor shall execute an agreement exclusively licensing or assigning any Inventions and related intellectual property rights to the Party by whom they are employed or for whom they are providing services (or its designated Affiliate). Notwithstanding the foregoing in this Section 4.2.6, where the Third Party is an academic or academic institution, the Parties shall consider in good faith to agree to waive clause (iii). Notwithstanding the foregoing, neither Party may license the
right to Commercialize a Collaboration Product to a Third Party without the other Party’s consent.
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4.2.7
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Cost/Profit Sharing. Each Collaboration Product will be subject to the cost/profit sharing structure set forth in Section 6.2.
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4.2.8
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Joint Venture Formation; Partnering; Asset Sale
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4.2.8.1
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Joint Venture. The Parties may, in the future, mutually agree to the establishment of a Joint Venture to Develop, Manufacture and Commercialize one or more Collaboration Products. In the event that the Parties agree to conduct such activities in a Joint Venture, the Parties shall cooperate in the formation of a newly incorporated entity and shall negotiate in good faith the terms of the Joint Venture, which terms shall be set forth in one or more definitive agreements (collectively, the “Definitive JV Agreements”). The Parties shall use commercially reasonable efforts to negotiate and execute such Definitive JV Agreements within [***] days following agreement to establish a Joint Venture. Unless and until the Definitive JV Agreements are executed, this Agreement shall govern the Parties’ Development and Commercialization of the Collaboration Products.
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4.2.8.2
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Partnering/Asset Sale. The Parties may, upon mutual written agreement, out-license, partner or sell the rights or assets, in whole or in part, necessary to Develop, Manufacture and Commercialize any Collaboration Product (each, a “Potential Partnership”). A Party proposing a Potential Partnership shall provide prompt written notice to the other Party (“Partnering Notice”), which shall include the Collaboration Product(s)
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and scope for rights or assets to be partnered or sold, the potential partner(s), the proposed financial structure of such Potential Partnership, and all material terms. Upon receipt of a Partnering Notice, the Parties shall discuss the Potential Partnership in good faith and reach agreement as to whether to proceed in the negotiation of such Potential Partnership. If the Parties mutually agree in writing to negotiate a Potential Partnership, each Party shall cooperate in good faith to ensure that exclusive rights (including as to the licensor) under AskBio Core Technology, Selecta Core Technology and Inventions to Develop, Manufacture and Commercialize the Collaboration Product(s) being partnered can be transferred to the partner as necessary, including by authorizing any necessary sublicenses under the Research Licenses and Collaboration Product Licenses. If the Parties do not mutually agree in writing to negotiate a Potential Partnership within [***] days after provision of a Partnering Notice for a Collaboration Product(s), then the
Commercialization Lead Party (or, if the Commercialization Lead Party has not yet been determined, the Regulatory Lead Party) for such Collaboration Product(s) shall have the final decision-making authority as to whether to proceed in the negotiation of such Potential Partnership; provided that such Party has borne at least [***] of the Shared Costs incurred prior to submission of the Partnering Notice for such Collaboration Product, and such Party proposed the Potential Partnership. In such case, each Party shall also cooperate in good faith to ensure that exclusive rights (including as to the licensor) under AskBio Core Technology, Selecta Core Technology and Inventions to Develop, Manufacture and Commercialize the Collaboration Product(s) being partnered can be transferred to the partner as necessary, including by authorizing any necessary sublicenses under the Research Licenses and Collaboration Product Licenses. The final agreements governing such Potential Partnership shall be subject to the prior written approval of both Parties. Unless otherwise agreed by the Parties, immediately upon execution of any such final agreement, the Research Licenses and the Collaboration Product Licenses granted by the Party entering to such agreement to the other Party hereunder (and associated intellectual property rights) shall terminate with respect to any Collaboration Product covered by such final agreement, to enable such Party to instead grant the new partner or acquirer exclusive rights to such Collaboration Product.
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4.2.8.3
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Sharing of Proceeds. The proceeds from any license, partnership or asset sale entered into pursuant to Section 4.2.8.2 shall be shared between the Parties according to the Profit Share Percentage after each Party recovers its reasonable transactions costs associated therewith.
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4.3.1
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During the Term for the applicable Collaboration Indication, (a) neither Party, nor their Affiliates, shall, directly or indirectly, Develop or Commercialize AAV Products or ImmTOR for use in the Collaboration Indications that are [***] targeting the same gene listed in Schedule 4.1 alongside such [***], other than pursuant to this Agreement; and (b) neither Party, nor their Affiliates, shall, directly or indirectly, Develop or Commercialize AAV Products or ImmTOR for use in the Collaboration Indications that are [***] targeting the same gene and using the Approach designated for such [***] in Schedule 4.1, other than pursuant to this Agreement. Notwithstanding the foregoing, (w) no arrangement or agreement listed in Schedule 4.3.1(w) (as such schedule may be updated by AskBio in good faith by written notice to AskBio within five (5) Business Days of the Effective Date) entered into by AskBio prior to the effective date that grants a Third Party rights to Develop, Manufacture or Commercialize AAV Products or utilize the Pro10 cell line, or activities conducted
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pursuant to such arrangement or agreements, shall be deemed to be in violation of this Section 4.3; (x) no arrangement or agreement listed in Schedule 4.3.1(x) entered into by Selecta prior to the effective date that grants a Third Party rights to Develop, Manufacture or Commercialize AAV Products or utilize ImmTOR, or activities conducted pursuant to such arrangement or agreements, shall be deemed to be in violation of this Section 4.3; (y) nothing in this Section 4.3 shall restrict AskBio or any of its Affiliates from entering into any transaction or arrangement with respect to (i) the Pro10 cell line or otherwise using the Pro10 cell line for any purpose whatsoever, (ii) the manufacturing of AAV cassettes, or components thereof (excluding AskBio’s proprietary capsids), including authorizing others to use Pro10 cell line for such purposes; (iii) AAV Products, which do not incorporate or utilize ImmTOR, for use in the Collaboration Indications that are [***] if they target a gene or use an Approach other than the specific gene or Approach listed in Schedule 4.1 alongside such [***], (iv) AAV Products, which do not incorporate or utilize ImmTOR, for use in the Collaboration Indications that are [***] if they target a gene other than the specific gene listed in Schedule 4.1 alongside such [***], (v) AAV Products (which do not incorporate or utilize ImmTOR) or AskBio Background Technology, in each case for use in any indications that are not Collaboration Indications, or (vi) any Other Joint Venture; provided that such transaction or arrangement does not conflict with, or limit, AskBio’s express obligations under this Section 4.3.1(a) and (b); and (z) nothing in this Section 4.3 shall restrict Selecta or any of its Affiliates from entering into any transaction or arrangement with respect to (i) the manufacture of ImmTOR, provided that such manufacture of ImmTOR does not conflict with, or limit, Selecta’s express obligations under this Section 4.3.1(a) and (b), (ii) AAV Products or ImmTOR for use in the Collaboration Indications that are [***] if they target a gene or use an Approach other than the specific gene or Approach listed in Schedule 4.1 alongside such [***], (iii) AAV Products or ImmTOR for use in the Collaboration Indications that are [***] if they target a gene other than the specific gene listed in Schedule 4.1 alongside such [***], and (iv) AAV Products or ImmTOR, or Selecta Background Technology, in each case for use in any indications that are not Collaboration Indications.
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4.3.2
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Acquisition of Competing Product Pursuant to Merger or Acquisition. Neither Party will be deemed to be in breach of the restrictions set forth in this Section 4.3 if such Party or any of its Affiliates acquires an AAV Product intended for use in a Collaboration Indication, or the right to develop, manufacture or commercialize such an AAV Product (in each case, the Development or Commercialization of which would otherwise be a violation of Section 4.3.1), through an acquisition of or a merger with the whole or substantially the whole of the business or assets of another person, so long as such Party (or its Affiliate) notifies the other Party in writing within thirty (30) days after the closing of such acquisition or merger and:
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4.3.2.1
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enters into a definitive agreement with a Third Party to divest such acquired AAV Product within [***] (or such longer period that is required under Applicable Law) after the closing of such acquisition or merger; or
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4.3.2.2
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discontinues the development and commercialization of such acquired AAV Product no later than [***] (or such longer period that is required under Applicable Law) after the closing of such acquisition or merger.
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4.3.3
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Acquisition by a Third Party with a Competing AAV Product. In the event that a Party (or all or substantially all of its assets and business related to this Agreement) is acquired by a Third Party, Section 4.3.1 shall not apply with respect to any AAV Product that such Third Party of its Affiliates is developing or commercializing for use in a Collaboration Indication as of the date of such acquisition, or subsequently develops or commercializes without the use of (a) the AskBio Background Technology in existence as of the date of such of such acquisition or any Invention, with respect to an acquirer of AskBio or (b) the Selecta Background Technology in existence as of the date of such acquisition or any Invention, with respect to an acquirer of Selecta.
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ARTICLE 5.
COMMITEES & GOVERNANCE
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5.1
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Joint Steering Committee.
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5.1.1
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JSC Functions. Within ten (10) days after the Effective Date, the Parties shall establish a joint steering committee (the “Joint Steering Committee” or “JSC”). The JSC will assume a general role of oversight of the POC Plans, Therapeutic Development Plans and the Commercialization Plans, to oversee the other Committees and guide the implementation of the strategic objectives of the POC Studies and the Collaboration and will be responsible for:
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5.1.1.1
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reviewing and approving the POC Plans, Therapeutic Development Plans, and Commercialization Plans for each Product and Collaboration Product, as applicable, and any annual or interim updates and proposed amendments thereto;
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5.1.1.2
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establishing, as appropriate, any Subcommittees and Working Groups;
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5.1.1.3
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resolving matters presented to it by any Subcommittee or Working Group that are within the scope of responsibilities delegated to such Subcommittee or Working Group by the JSC or otherwise pursuant to this Agreement;
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5.1.1.4
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making such other determinations as are expressly delegated to it under this Agreement, including whether POC or [***] has been attained;
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5.1.1.5
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determining whether, based on the results of activities conducted pursuant to the applicable Therapeutic Development Plan, the Development, Manufacture or Commercialization of Collaboration Products for a Collaboration Indication is not scientifically or therapeutically viable;
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5.1.1.6
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discussing and approving any licenses to be obtained (a) by Selecta or its Affiliates under Third Party Patent Rights or Know-How covering the AskBio Core Technology or (b) by AskBio or its Affiliates under Third Party Patent Rights or Know-How covering the Selected Core Technology; and
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5.1.1.7
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fulfilling such other responsibilities as may be allocated to the JSC under this Agreement or by mutual written agreement of the Parties.
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5.1.2
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JSC Membership. The JSC shall be comprised of three (3) employee representatives of AskBio and three (3) employee representatives of Selecta (or such other equal number of representatives as the Parties may agree). Representatives from each Party shall be employees of such Party, and have appropriate technical credentials, experience and knowledge pertaining to and ongoing familiarity with the POC Plans, the Therapeutic Development Plans and Commercialization Plans. One (1) of the members of the JSC appointed by AskBio and one (1) of the members of the JSC appointed by Selecta shall be designated the JSC co-chairpersons (the “JSC Co-Chairs”). Each JSC Co-Chairs will alternatively be responsible for calling meetings of the JSC, circulating agenda and performing administrative tasks required to assure efficient operation of the JSC. The JSC may from time to time establish one (1) or more subcommittees (each, a “Subcommittee”, and together with the JSC, the “Committees”), in addition to the PCC, JDC and JCC, to perform certain duties and exercise certain powers of the JSC as expressly delegated by the JSC to such Subcommittee. Either Party may replace its respective Committee representatives at any time with prior written notice to the other Party. In the event a Committee member from either Party is unable to attend or participate in a Committee meeting, the Party who designated such representative may designate a substitute representative for the meeting in its sole discretion. The JSC and each Subcommittee shall be promptly disbanded following the end of the Term.
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5.1.3
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JSC Meetings. The JSC shall meet in accordance with a schedule established by mutual written agreement of the Parties no less frequently than [***]. The JSC shall meet by means of teleconference, videoconference or other similar virtual means, unless if otherwise agreed to by the Parties. As appropriate, additional employees, consultants, or counsel of each Party may from time to time attend the JSC meetings as nonvoting observers; provided, that any such consultant, if not already bound by fiduciary obligations, shall agree in writing to comply with the confidentiality obligations substantially similar to those under this Agreement; and provided, further, that no Third Party personnel may attend unless otherwise agreed by both Parties or otherwise reasonably necessary to facilitate discussion between the Parties. Each Party shall bear its own expenses related to the attendance of the JSC meetings by its representatives. Each Party may also call for special meetings to resolve particular matters requested by such Party upon ten (10) Business Days’ prior written notice to the other Party. The applicable JSC Co-Chair or his/her designee shall keep
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minutes of each JSC meeting that record in writing all decisions made, action items assigned or completed and other appropriate matters. The applicable JSC Co-Chair or his/her designee shall send meeting minutes to all members of the JSC promptly after a meeting for review. Each member shall have five (5) business days from receipt in which to comment on and to approve/provide comments to the minutes (such approval not to be unreasonably withheld, conditioned or delayed). If a member, within such time period, does not notify the applicable JSC Co-Chair that s/he does not approve of the minutes, the minutes shall be deemed to have been approved by such member. Each Party’s JSC members may designate another staff member of such Party, who will coordinate the administrative work surrounding JSC, including sending the notice of holding JSC meetings, creating the draft of minutes, or distributing the minutes.
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5.1.4
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JSC Decision Making. The JSC will endeavor to make decisions by consensus, with each of AskBio’s and Selecta’s representatives having, collectively, one vote. If, despite using reasonable efforts, the JSC does not reach consensus on any matter within its decision-making authority (a “Deadlocked Matter”) within a period of [***] (or such other period as the Parties may agree in writing) after it has met and attempted to reach such consensus, then either Party may, by written notice to the other Party, invoke the dispute resolution procedures pursuant to Section 12.2 Notwithstanding the foregoing, day-to-day operational level decisions concerning tasks or activities shall be made by the Party to which responsibility for such task or activity has been allocated under this Agreement; provided that such decisions are not inconsistent with the POC Plans, Therapeutic Development Plans or Commercialization Plans, or the express terms and conditions of this Agreement.
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5.2.1
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Patent Prosecution and Enforcement Committee. Promptly after establishing the JSC, the Parties shall establish a Patent Prosecution and Enforcement Committee (the “Patent Prosecution and Enforcement Committee” or “PPEC”). Unless otherwise
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agreed upon between the Parties, the PPEC shall be comprised of an equal number of representatives from each of AskBio and Selecta, which unless otherwise agreed upon between the Parties, shall be comprised of two (2) members of each Party. The PPEC will meet at least two (2) times per year (and upon generation or reduction to practice of any Invention). As appropriate, additional employees or consultants of each Party may from time to time attend the PPEC meetings as nonvoting observers; provided, that any such consultant, if not already bound by fiduciary obligations, shall agree in writing to comply with the confidentiality obligations substantially similar to those under this Agreement; and provided, further, that no Third Party personnel may attend unless otherwise agreed by both Parties. The PPEC will be responsible for:
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5.2.1.1
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reviewing, discussing, and recommending to the JSC the classification of any Invention as an AskBio Invention, Selecta Invention or Joint Invention;
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5.2.1.2
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to the extent an Invention is a Joint Invention, reviewing, discussing and recommending to the JSC what Party is the Prosecuting Party for such Joint Invention and the patent strategy for such Joint Invention; and
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5.2.1.3
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coordinate the conduct of enforcement of AskBio Licensed Patent Rights and Selecta Licensed Patent Rights, and oversee and coordinate the conduct of enforcement of Joint Patent Rights pursuant to Section 8.4; provided, however, that in the event of a disagreement as to which Party should control an enforcement action, AskBio shall have final decision-making authority over the conduct of enforcement of AskBio Licensed Patent Rights and Selecta shall have final decision-making authority over the conduct of enforcement of Selecta Licensed Patent Rights.
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5.2.2
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Joint Development Committee. Within [***] after the Collaboration Start Date, and in any event, prior to commencing activities under a Therapeutic Development Plan, the Parties shall establish a joint development committee for the development of the Collaboration Products (the “Joint Development Committee” or “JDC”). Unless otherwise agreed upon between the Parties, the JDC shall be comprised of an equal number of representatives from each of AskBio and Selecta, which unless otherwise agreed upon between the Parties, shall be comprised of [***] members of each Party. The JDC will meet at least [***] times per year (or more if agreed upon in good faith if needed). The JDC will be responsible for:
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5.2.2.1
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receiving and discussing updates for each Therapeutic Development Plan;
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5.2.2.2
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coordinating the sharing of, reviewing and discussing any material data generated by either Party in the course of performing any activities under each Therapeutic Development Plan;
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5.2.2.3
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reviewing and discussing ongoing and anticipated Manufacturing activities with respect to each Therapeutic Development Plan;
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5.2.2.4
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initiating, implementing and overseeing the conduct of each Therapeutic Development Plan;
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5.2.2.5
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conducting annual review of each Therapeutic Development Plan and related Therapeutic Development Plan Budget for each Therapeutic Development Plan and prepare any annual or interim updates and proposed amendments thereto to be submitted to the JSC;
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5.2.2.6
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establishing a core joint development and regulatory team to ensure work under each Therapeutic Development Plan is executed efficiently;
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5.2.2.7
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coordinating the activities of the Parties under each Therapeutic Development Plan, including facilitating communications between the Parties with respect to the Development and Manufacture of a Collaboration Product;
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5.2.2.8
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providing a forum for discussion of the Development, Manufacture, and regulatory strategies of the Collaboration Product covered under each Therapeutic Development Plan;
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5.2.2.9
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preparing and approving a global medical affairs plan that addresses, for example, study recruitment, enhancement, and disease awareness, as well as corresponding medical affairs plans in connection with the activities to be performed under a Therapeutic Development Plan; and
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5.2.2.10
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making such determinations as are expressly delegated to it under the terms of this Agreement.
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5.2.3
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Joint Commercialization Committee. The Parties shall establish a joint commercialization committee (the “Joint Commercialization Committee” or “JCC”) at an appropriate time, reasonably in advance of the first potential Marketing Approval of a Collaboration Product and reasonably in advance of the time required for the strategy for Commercialization. Selecta and AskBio shall have equal membership on the JCC.
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5.2.4
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Joint Finance Committee. The Parties may establish a joint finance committee (the “Joint Finance Committee” or “JFC”) at an appropriate time, to facilitate disclosure and sharing of Shared Costs to enable the cost/profit sharing structure described in Section 6.2. Selecta and AskBio shall have equal membership on the JFC.
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5.2.5
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Operation of Subcommittees. Each Subcommittee shall operate in a manner to be agreed by the JSC; provided, that, except as expressly set forth herein,
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Subcommittees shall have no decision-making authority, but shall instead operate by consensus and make recommendations to the JSC with respect to matters within its authority. Any
matter within a Subcommittee’s authority with respect to which it cannot reach consensus will be escalated to the JSC for resolution.
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5.3
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Working Groups. From time to time, a Committee may establish and delegate duties to sub-committees or teams (each, a “Working Group”) to oversee projects or activities within their respective authority. Each Working Group and its activities shall be subject to the oversight, review, and approval of, and shall report to, the Committee that established such Working Group. In no event shall the authority of any Working Group exceed that specified for the Committee under which such Working Group is established.
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5.4
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Scope of Committee Authority. For clarity and notwithstanding the creation of the JSC or any Subcommittee, each Party shall retain the rights, powers and discretion granted to it hereunder, and none of the JSC or any Subcommittee shall be delegated or vested with such rights, powers or discretion unless such delegation or vesting is expressly provided herein, or the Parties expressly so agree in writing. Neither the JSC nor any Subcommittee shall have the power to (A) resolve any dispute regarding the existence or amount of any payment owed under this Agreement, or (B) amend, waive or modify any term of this Agreement, and no decision of the JSC or any Subcommittee shall be in contravention of any terms and conditions of this Agreement. It is understood and agreed that issues to be formally decided by the JSC are limited to those specific issues that are expressly provided in Section 5.1.1 of this Agreement and the disputes which relate to the subjects other than those set forth in Section 5.1.1 will be handled according to Article 12. Once a Committee is disbanded, such Committee shall have no further obligations under this Agreement and, thereafter, each Party shall designate a contact person for the exchange of information under this Agreement or such exchange of information shall be made through the JSC Co-Chairs. In the event a Committee is disbanded, any decisions that are designated under this Agreement as being subject to the review or approval of such Committee shall be made by the Parties directly, subject to the other terms and conditions of this Agreement.
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ARTICLE 6.
FINANCIAL PROVISIONS
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6.1
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Overview. With respect to each Collaboration Product, the Parties shall share all Shared Costs and Net Profits for such Collaboration Product in accordance with Section 6.2. All Shared Costs and Net Profits for each Collaboration Product shall be subject to reconciliation, reimbursement and payment pursuant to Section 6.2.2, Section 6.2.3 and Section 6.2.4. For clarity, all Shared Costs shall be accounted for only once when calculating the Profit Share, even if the activity with respect to which such expense is incurred is described in more than one subcategory of Shared Costs. POC Costs shall be shared by the Parties in accordance with Section 3.4 and 3.5.
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6.2
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Sharing of Profits and Costs for Collaboration Products.
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6.2.1
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Cost/Profit Share. The Parties shall share Shared Costs for the Collaboration Products equally; provided that if one Party is unable to bear its share of Shared Costs for a
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Collaboration Product as incurred on a Calendar Quarter-by-Calendar Quarter basis, the other Party shall have the right to bear the excess Shared Costs. Each Party shall receive a percentage of Net Profits for each Collaboration Product equal to the percentage of Shared Costs borne by such Party with respect to such Collaboration Product as of the date of submission of the first MAA for such Collaboration Product to the applicable Competent Authority (such percentage, the “Profit Share Percentage”). Notwithstanding the foregoing, each Party’s Profit Share Percentage shall never fall below [***]%, even if such Party contributes less than [***]% in Shared Costs, as a minimum payment for such Party’s intellectual property contribution to the Collaboration pursuant to the Collaboration Product Licenses; provided that if a Party contributes at least [***]% in Shared Costs, such Party’s Profit Share Percentage shall not fall below [***]%.
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6.2.2
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Payment of Shared Costs; Summary Statements. Except as expressly provided otherwise in this Agreement and subject to reconciliation, reimbursement and payment as provided in Section 6.2.3 and Section 6.2.4, the Party initially incurring Shared Costs will be responsible for and pay for all such Shared Costs so incurred. Each Party will maintain the books and records referred to in Section 6.4 and will accrue all Shared Costs and Net Sales in accordance with the terms and conditions hereof and in accordance with applicable Accounting Standards. Within fifteen (15) business days after the end of each Calendar Quarter, each Party will submit to the other Party a written report reflecting the accrual of Shared Costs and Net Sales during the just-ended Calendar Quarter on a Collaboration Product-by-Collaboration Product basis, including any overage amounts pursuant to Section 4.2.2.4 (each a “Summary Statement”). Such Summary Statements shall specify in reasonable detail (as agreed by the JSC) all expenses included in such Shared Costs and overage amounts during such Calendar Quarter and, upon the reasonable request of the other Party, shall be accompanied by invoices, and/or such other appropriate supporting documentation as may be required by the JSC. Each Party shall report the Shared Costs and overage amounts incurred by it in comparison to the Therapeutic Development Plan and Commercialization Plan, as applicable. The Parties shall seek to resolve any questions related to such Summary Statements within fifteen (15) days following receipt by each Party of the other Party’s report hereunder. The JSC shall facilitate the resolution of any questions concerning such Summary Statements, as appropriate. Each Party shall have the right at reasonable times and upon reasonable prior notice to audit the other Party’s records as provided in Section 6.4 to confirm the accuracy of the other Party’s costs and reports with respect to Shared Costs that are shared under this Agreement. Upon the request of either Party
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from time to time, the JSC will discuss any questions or issues arising from the Summary Statements, including the basis for the accrual of specific Shared Costs.
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6.2.3
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Reconciliation Report. As soon as practicable after the end of the Calendar Quarter, but in any event within thirty (30) business days after receipt by the Preparing Party of the other Party’s Summary Statement, the Preparing Party (as defined below) will
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prepare a reconciliation report (accompanied with reasonable supporting documentation and calculations sufficient to support each Party’s associated financial reporting obligations, independent auditor requirements and obligations under the Sarbanes-Oxley Act) that reconciles each Party’s Summary Statement and the Net Profits to be allocated to each Party for such Calendar Quarter on a Collaboration Product-by-Collaboration Product basis in accordance with Section 6.2 (the “Reconciliation Report”). The Regulatory Lead Party for a particular Collaboration Product shall be the Party to prepare the Reconciliation Report (the “Preparing Party”) with respect to such Collaboration Product. Without limiting the foregoing, following the first commercial sale of a Collaboration Product, the Reconciliation Report shall include:
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6.2.3.1
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the gross sales of all Collaboration Products on a Collaboration Product-by-Collaboration Product and country-by-country basis, sold by each Party and its Affiliates during the Calendar Quarter, including the amount of each Collaboration Product sold and the gross amount invoiced for each Collaboration Product;
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6.2.3.2
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calculation of Net Sales of each Collaboration Product from gross sales, including itemized information on deductions allowed to be taken pursuant to Section 1.50, along with a description of the applicable accounting policies, methodologies and calculations for such deductions; and
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6.2.3.3
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the calculation of Net Profits, including detailed information on the (a) Cost of Goods Sold, including itemized information on standard cost of goods sold, production and purchase price variances, inventory reevaluations and write-offs and any other applicable components, along with applicable accounting policies, methodologies and calculations for such components; (b) Development Costs and Commercialization Costs, including itemized information on applicable components of such costs, along with applicable accounting policies, methodologies and calculations for such components; and (c) all other Shared Costs.
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6.2.3.4
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any other information reasonably requested by a Party or its independent certified accounting firm related to the calculation of Shared Costs, Net Sales, Net Profits and each Party’s Profit Share.
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6.2.4
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Payments of Shared Costs and Profit Share. Based on the Reconciliation Report, the applicable Party (to whom a net amount is owed to achieve the Profit Share) will invoice the other Party after such Reconciliation Report is complete, and the receiving Party will pay such undisputed amount of the invoice within thirty (30) days of receipt of such invoice. For clarity, in Calendar Quarters where there are no Net Sales of Collaboration Products or Shared Costs exceed Net Sales, the Parties will share the Shared Costs (or negative Net Profits) in accordance with this Section 6.2.
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6.3.1
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Generally. On a Collaboration Indication-by-Collaboration Indication basis, each Party shall have the right, at any time, and for any reason, or for no reason, to opt-out of the obligation of contributing its share of the Shared Costs, upon written notice to the other Party (“Opt-Out Option”). No exercise by a Party of such opt-out right for any Collaboration Indication shall constitute a breach of this Agreement by such Party, but in the case of any such exercise, the Parties’ respective shares in Net Profits from all Collaboration Product for use in such Collaboration Indication shall be adjusted based on the applicable Profit Share Percentage.
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6.3.2
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Control. On a Collaboration Indication-by-Collaboration Indication basis, in the event of any exercise by either Party (the “Opting Out Party”) of its opt-out right under Section 6.3.1 with respect to paying its portion of the Shared Costs with respect to any Collaboration Product for use in such Collaboration Indication, the other Party’s Collaboration Product License shall automatically become exclusive (with respect to such other Party) with respect to Collaboration Products for use in such Collaboration Indication, upon its receipt of the opt-out notice from the other Party and, notwithstanding anything hereunder the Opting Out Party shall have no review, comment or approval rights with respect to such Collaboration Products, other than as reasonably necessary to comply with Applicable Laws and other than as provided in the Pharmacovigilance Agreement covering such Collaboration Product, which shall continue in full force and effect after such exercise of such opt-out right. Rather, the other Party shall keep the Opting Out Party reasonably informed with respect to the Development and Commercialization of such Collaboration Product. The Opting Out Party shall continue to be entitled to its Profit Share for such Collaboration Product and shall reasonably cooperate to complete the transfer of the Development, Manufacture and Commercialization responsibilities of such Collaboration Product to the other Party.
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6.4
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Audits and Interim Reviews. Each Party will maintain accurate books and records regarding POC Costs, Shared Costs and Net Sales, as applicable, sufficient to enable the calculation of amounts payable hereunder to be verified and will retain such books and records for each quarterly period for three (3) years after submission of the corresponding report pursuant to this Agreement. Either Party will have the right to request that an independent certified public accountant selected by it (but excluding its own accountant)
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and reasonably acceptable to the other Party (such reasonable acceptance shall not be unreasonably withheld, conditioned, or delayed) perform an audit, not more than once in any four (4) consecutive Calendar Quarters during the Term, but including one post-termination audit and, if any such audit results in a material restatement of records (i.e., a discrepancy of [***]% or more for any calendar year), such Party will be permitted an additional examination within such four (4) quarter period, of the other Party’s books of accounts covering the preceding three (3) year period for the sole purpose of verifying compliance with the payment provisions of this Agreement. Such audits will be conducted at the expense of the requesting Party at reasonable times during regular
business hours and upon at least twenty (20) business days’ prior notice. Audit results, but not the underlying books and records, will be shared with both Parties, subject to Article 7. Any inspection or audit pursuant to this Section 6.4 will be at the expense of the Party initiating the audit; provided, however, that if the Party’s accountants reasonably determine that Net Sale or Net Profits have been understated or Shared Costs have been overstated by an amount equal to or greater than [***] for any calendar year, the audited Party will pay the reasonable fees of such accountants for such audit.
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6.5
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Withholding Taxes. If Applicable Law requires that taxes be withheld from payments made hereunder, or from Net Profits, the Party making such payments or otherwise responsible for such withholding (the “Withholding Party”) will promptly notify the other Party, and shall reasonably cooperate with the other Party to claim any benefits or reduce and/or eliminate any such withholding taxes. The Withholding Party will (a) deduct such taxes from any payments to which they relate or in the case of taxes withheld from the other Party’s share of Net Profits account for such taxes as amounts paid on behalf of the other Party, (b) timely pay such taxes to the proper authority in accordance with Applicable Law, and (c) send written evidence of payment to the Party with respect to which such taxes were withheld or paid within sixty (60) days after payment. Taxes withheld from payments made hereunder will be treated as amounts received by the Party with respect to which such taxes were withheld for all purposes under this Agreement.
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ARTICLE 7.
CONFIDENTIALITY
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7.1
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Confidentiality Protection. Except as otherwise provided in this Agreement, during the Term and for [***] years thereafter (or, with respect to Confidential Information that is a trade secret of the Disclosing Party, until such trade secret no longer qualifies as a trade secret under Applicable Law), the Recipient shall maintain in confidence all of the Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, the Recipient shall take all reasonable steps to maintain the confidentiality of the Disclosing Party’s Confidential Information, which steps shall be no less protective than those that Recipient takes to protect its own information and materials of a similar nature, but in no event less than a reasonable degree of care. The Recipient shall not use or permit the use of any of the Disclosing Party’s Confidential Information except for the purposes of carrying out its obligations or exercising its rights under this Agreement. Recipient shall not disclose
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any of the Disclosing Party’s Confidential Information other than to those of its directors or managers, officers, Affiliates, employees, licensors, independent contractors, permitted assignees, agents, and external advisors (collectively, “Representatives”) directly involved with the carrying out of this Agreement, on a strictly applied “need to know” basis, in each case only to the extent such persons have been informed of the confidential nature of the information and such persons are bound by written confidentiality and non-use obligations with respect to the Disclosing Party’s Confidential Information consistent with the confidentiality and non-use provisions of this Agreement. The Recipient will be responsible to the Disclosing Party for any breach by the Recipient’s Representatives of such confidentiality and non-use obligations.
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7.2
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Exceptions. Notwithstanding the foregoing, the Recipient shall have no obligations under Section 7.1 with respect to any of the Disclosing Party’s Confidential Information that the Recipient can demonstrate by contemporaneous written records was:
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7.2.1
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known by the Recipient, or in the Recipient’s possession, prior to disclosure (other than as a result of the prior disclosure under this Agreement) by the Disclosing Party;
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7.2.2
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known to the general public at the time of its disclosure to the Recipient, or thereafter became generally known to the general public, other than as a result of actions or omissions of the Recipient in violation of this Agreement;
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7.2.3
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disclosed to the Recipient on an unrestricted basis from a source unrelated to the Disclosing Party and not known by the Recipient to be under a duty of confidentiality to the Disclosing Party; or
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7.2.4
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independently developed by the Recipient without the use of or reference to the Confidential Information of the Disclosing Party.
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7.3
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Permitted Disclosures. The obligations set forth in this Article 7 shall not apply to the extent that Recipient is required to disclose the Disclosing Party’s Confidential Information under Applicable Law, judicial order or court decision by a court of competent jurisdiction, administrative order, arbitration award, the rules of a securities exchange or to a patent office for the purposes of filing, prosecuting, or maintaining Patent Rights as permitted in this Agreement; provided, however, that the Recipient shall, to the extent practicable, provide prior written notice thereof to the Disclosing Party and sufficient opportunity for the Disclosing Party to review and comment on such required disclosure and request confidential treatment thereof or a protective order therefor. In addition, the Recipient may disclose the Disclosing Party’s Confidential Information to: (a) the Recipient’s or the Recipient’s Affiliates’ attorneys, independent accountants or financial advisors for the sole purpose of enabling such attorneys, independent accountants or financial advisors to provide advice regarding this Agreement to the Recipient or such Affiliates, on the condition that such attorneys, independent accountants and financial advisors are bound by confidentiality and non-use obligations consistent with the confidentiality provisions of this Agreement as they apply to the Recipient; and (b) the Recipient’s actual or potential investors, acquirers or
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sublicensees, and their advisors, in connection with due diligence or similar investigation by Third Parties, on the condition that such investors, acquirers and sublicensees, and their advisors, are bound by confidentiality and non-use obligations consistent with the confidentiality provisions of this Agreement as they apply to the Recipient.
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7.4
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Publications. Each Party shall submit to the JSC for review and approval all proposed academic, scientific and medical publications and public presentations relating to a Collaboration Product or any POC Studies for review in connection with preservation of related patent rights and trade secrets, to determine whether Confidential Information should be modified or deleted from the proposed publication or public presentation, and to ensure compliance with any publications policy adopted by the JSC (the “Publications Policy”).
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Written copies of such proposed publications and presentations shall be submitted to the JSC no later than [***] days before submission for publication or presentation, and the JSC shall provide its comments with respect to such publications and presentations within [***] days of its receipt of such written copy. The publishing or presenting Party shall remove any Confidential Information from such publication or presentation as requested by the JSC. The review period may be extended for an additional [***] days if a representative of the non-publishing Party on the JSC can demonstrate a reasonable need for such extension including, but not limited to, the preparation and filing of patent applications. Without limiting the foregoing, each publication or presentation regarding a Collaboration Product or POC Study shall be subject to the prior written approval of both Parties; provided that the first approval of the contents of a proposed academic, scientific or medical publication or public presentation relating to a Collaboration Product or any POC Study under this Agreement shall, in each case, constitute permission to use such contents subsequently without submission to the other Party for approval.
ARTICLE 8.
INTELLECTUAL PROPERTY
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8.1.1
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Selecta Research License. Subject to the terms and conditions set forth in this Agreement, AskBio hereby grants to Selecta, during the Term, a non-exclusive, non-transferable (except in accordance with Section 13.1), royalty-free, fully paid-up, worldwide license under the AskBio Core Technology and AskBio Inventions for the sole purpose of performing the POC Studies in accordance with the POC Plans (the “Selecta Research License”). AskBio agrees to promptly disclose to Selecta all AskBio Inventions that are necessary or useful for Selecta’s performance or decision making under the POC Plans. Except as expressly permitted under Section 8.1.5 or Section 13.1, Selecta shall not sublicense or assign the Selecta Research License, and any attempt to do so shall be null and void, ab initio.
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8.1.2
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AskBio Research License. Subject to the terms and conditions set forth in this Agreement, Selecta hereby grants to AskBio, during the Term, a non-exclusive, non-
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transferable (except in accordance with Section 13.1), royalty-free, fully paid-up, worldwide license under the Selecta Core Technology and Selecta Inventions for the sole purpose of performing the POC Studies in accordance with the POC Plans (the “AskBio Research License” and, together with the Selecta Research License, the “Research Licenses”). Selecta agrees to promptly disclose to AskBio all Selecta Inventions that are necessary or useful for AskBio’s performance or decision making under the POC Plans. Except as expressly permitted under Section 8.1.5 or Section 13.1, AskBio shall not sublicense or assign the AskBio Research License, and any attempt to do so shall be null and void, ab initio.
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8.1.3
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Commercial Licenses. Effective on the Collaboration Start Date, the Parties shall grant, and hereby grant, each other the following licenses:
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8.1.3.1
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Collaboration Indications.
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8.1.3.1.1
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With respect to each Collaboration Indication, AskBio shall grant, and hereby grants, to Selecta (a) an exclusive (except as to AskBio and its Affiliates and as set forth in Section 8.1.4), non-transferable (except in accordance with Section 13.1), worldwide license under the AskBio Core Technology, AskBio Inventions, and AskBio’s interest in the Joint Inventions, including the right to grant and authorize sublicenses (subject to Section 8.1.5), to develop, use, offer for sale, sell, import, and otherwise exploit (but not make or have made) Collaboration Products for use in such Collaboration Indication and (b) a non-exclusive, non-transferable (except in accordance with Section 13.1), worldwide license under the AskBio Core Technology, AskBio Inventions, and AskBio’s interest in the Joint Inventions, including the right to grant and authorize sublicenses (subject to Section 8.1.5), to make and have made Collaboration Products for use in such Collaboration Indication; provided that with respect to Joint Inventions that do not relate to the Pro10 cell line, such license in this clause (b) shall be exclusive ((a) and (b) collectively, the “Selecta Collaboration Product License”).
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8.1.3.1.2
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With respect to each Collaboration Indication, Selecta shall grant, and hereby grants, to AskBio an exclusive (except as to Selecta and its Affiliates and as set forth in Section 8.1.4), non-transferable (except in accordance with Section 13.1), worldwide license under the Selecta Core Technology, Selecta Inventions, and Selecta’s interest in the Joint Inventions, including the right to grant and authorize sublicenses (subject to Section 8.1.5), to develop, make, have
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made, use, offer for sale, sell, import and otherwise exploit Collaboration Products for use in such Collaboration Indication (the “AskBio Collaboration Product License” and, together with the Selecta Collaboration Product License, the “Collaboration Product Licenses”).
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8.1.4
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Retention of Rights.
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8.1.4.1
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AskBio retains the right under the AskBio Background Technology, AskBio Inventions and its interest in the Joint Inventions to make, have made, use, offer for sale, sell, import and otherwise exploit Collaboration
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Products for use in Collaboration Indications solely under this Agreement (and to grant licenses under the AskBio Background Technology, AskBio Inventions and its interest in the Joint Inventions to its Affiliates and Third Parties who are acting with or on behalf of AskBio and/or Selecta in connection with this Agreement to make, have made, use, offer for sale, sell, import and otherwise exploit Collaboration Products for use in Collaboration Indications solely under this Agreement). Selecta retains the right under the Selecta Background Technology, Selecta Inventions and its interest in the Joint Inventions to make, have made, use, offer for sale, sell, import and otherwise exploit Collaboration Products for use in Collaboration Indications solely under this Agreement (and to grant licenses under the Selecta Background Technology, Selecta Inventions and its interest in the Joint Inventions to its Affiliates and Third Parties who are acting with or on behalf of AskBio and/or Selecta in connection with this Agreement to make, have made, use, offer for sale, sell, import and otherwise exploit Collaboration Products for use in Collaboration Indications solely under this Agreement). Except as otherwise expressly granted under the Research Licenses and the Collaboration Product Licenses and subject to Section 4.3, as between the Parties, (a) AskBio reserves all rights, title and interest in and to the AskBio Background Technology, AskBio Inventions and its interest in the Joint Inventions, and (b) Selecta reserves all rights, title, and interest in and to the Selecta Background Technology, Selecta Inventions and its interest in the Joint Inventions.
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8.1.4.2
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Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement (including Section 8.1.3) shall limit or contravene any rights granted, directly or indirectly, by AskBio to (a) its Affiliates or Third Parties with respect to manufacture or supply of AAV vectors or capsids, or components thereof, including without limitation such rights granted to, or agreements with, Viralgen, Touchlight AAV Limited and any other affiliate of AskBio that is principally in the business of manufacturing or (b) Other Joint Ventures, other than to make, have made,
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use, offer for sale, sell, import and otherwise exploit Collaboration Products for use in Collaboration Indications.
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8.1.4.3
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Except as otherwise expressly set forth in this Agreement, this Agreement does not confer upon any Party any rights, whether by implication, estoppel or otherwise, in or under the other Party’s intellectual property rights.
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8.1.5.1
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Research Licenses. The Research Licenses shall include the right to grant and authorize sublicenses to Affiliates or Third Parties, subject to the prior
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written consent of the other Party, not to be unreasonably withheld, conditioned or delayed, to the extent reasonably necessary to have activities performed under the POC Plans on the applicable Party’s behalf; provided that for any sublicense grant (a) the Party requesting the right to grant the sublicense shall notify the other Party of such request, which notice shall identify the particular sublicensee and the activities to be performed thereby, (b) if approved, the Party granting the sublicense shall notify the other Party within ten (10) days of the execution or grant of such sublicense, and shall provide a copy of such sublicense with such notice, and (c) the Party granting the sublicense shall be and remain responsible to the other Party for the compliance of each sublicensee with the applicable terms and conditions hereunder.
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8.1.5.2
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Collaboration Product Licenses. The Collaboration Product Licenses shall include the right to grant and authorize sublicenses to Affiliates or Third Parties, subject to the prior written consent of the other Party, not to be unreasonably withheld, conditioned or delayed; provided that for any sublicense grant (a) the Party requesting the right to grant the sublicense shall notify the other Party of such request, which notice shall identify the particular sublicensee and the activities to be performed thereby, (b) if approved, the Party granting the sublicense shall notify the other Party within ten (10) days of the execution or grant of such sublicense, and shall provide a copy of such sublicense with such notice, and (c) the Party granting the sublicense shall be and remain responsible to the other Party for the compliance of each sublicensee with the applicable terms and conditions hereunder.
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8.2
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Ownership of Inventions. Ownership of all Inventions, including Patent Rights and other intellectual property rights with respect to such Inventions, shall be as set forth in this Article 8. Determination of inventorship of Inventions shall be made in accordance with U.S. patent laws. Without limiting the foregoing, as between the Parties, AskBio will continue to own
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all AskBio Background Technology, and Selecta will continue to own all Selecta Background Technology.
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8.2.1
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Improvements to AskBio Core Technology and Selecta Core Technology. As between the Parties, and notwithstanding anything in this Agreement to the contrary, (a) AskBio shall retain all rights in any and all Inventions (whether made solely by or on behalf of either Party or jointly by or on behalf of the Parties) solely comprising any improvements to AskBio Core Technology, and all intellectual property rights therein (“AskBio Improvements”), (b) Selecta shall retain all rights in any and all Inventions (whether made solely by or on behalf of either Party or jointly by or on behalf of the Parties) solely comprising any improvements to Selecta Core Technology, and all intellectual property rights therein (“Selecta Improvements”), and (c) the Parties shall jointly own all rights in any and all Inventions (whether made solely by or on behalf of
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either Party or jointly by or on behalf of the Parties) comprising improvements to both AskBio Core Technology and Selecta Core Technology, and all intellectual property rights therein (“Joint Improvements”).
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8.2.2
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Ownership by Inventorship. Except as otherwise provided in Section 8.2.1 with respect to AskBio Improvements, Selecta Improvements and Joint Improvements, (a) any Invention conceived or reduced to practice solely by one or more employees of AskBio or its Affiliates or a Third Party acting under authority of AskBio or its Affiliates (and all intellectual property rights therein, including the Patent Rights claiming them) shall be solely owned by AskBio (together with AskBio Improvements, “AskBio Inventions”), (b) any Invention conceived or reduced to practice solely by one or more employees of Selecta or its Affiliates or a Third Party acting under authority of Selecta or its Affiliates (and all intellectual property rights therein, including the Patent Rights claiming them) shall be solely owned by Selecta (together with Selecta Improvements, “Selecta Inventions”), and (c) any Invention conceived or reduced to practice by one or more employees of AskBio or its Affiliate or a Third Party acting under the authority of AskBio or its Affiliate, on the one hand, and one or more employees of Selecta or its Affiliate or a Third Party acting under authority of Selecta or its Affiliate, on the other hand (and all intellectual property rights therein, including the Patent Rights claiming them), shall be owned jointly by the Parties (together with Joint Improvements, “Joint Inventions”). Except as otherwise set forth in Section 8.1, neither Party shall have the right to make, use, manufacture, grant licenses to, or otherwise exploit the Joint Inventions for any purposes without the prior written consent of the other Party.
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8.2.3
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Assignment; Further Assurances. Each Party shall assign, and hereby assigns, to the other Party all rights, title and interest it may have in and to any Invention or improvement that is to be owned by the other Party pursuant to this Section 8.2, if any, and agrees to sign, execute and acknowledge or cause to be signed, executed and acknowledged any and all documents and to perform such acts as may be
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reasonably requested by the other Party for the purposes of perfecting the foregoing assignments to the extent necessary to give effect to the ownership allocation set forth in this Section 8.2.
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8.3
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Patent Prosecution and Maintenance.
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8.3.1
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Definition. As used in this Section 8.3, “prosecution” includes (a) all communication and other interaction with any patent office or patent authority having jurisdiction over a patent application in connection with pre-grant proceedings and (b) post-grant proceedings, including interferences, reexaminations, reissues, oppositions, and the like.
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8.3.2
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AskBio Patent Rights and Selecta Patent Rights. AskBio, at AskBio’s expense, shall have the sole right to control the preparation, filing, prosecution and maintenance of
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AskBio Patent Rights using patent counsel of AskBio’s choice. Selecta, at Selecta’s expense, shall have the sole right to control the preparation, filing, prosecution and maintenance of Selecta Patent Rights using patent counsel of Selecta’s choice.
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8.3.2.1
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With respect to any AskBio Patent Rights pertaining to a Collaboration Product, if AskBio elects not to prosecute, or elects to discontinue prosecution, (whether worldwide or with respect to any particular country), AskBio shall promptly notify Selecta in writing (which notice shall be at least [***] calendar days prior to the lapse or abandonment of any such prosecution). In the event that Selecta elects to assume prosecution of such AskBio Patent Rights (whether worldwide or with respect to any particular country, as applicable), Selecta shall notify AskBio in writing within [***] days after Selecta’s receipt of AskBio’s written notice. In the event that AskBio has not received written notice from Selecta within such [***] day period, Selecta will be deemed to have waived the right to assume prosecution of such AskBio Patent Rights. If Selecta assumes prosecution of such AskBio Patent Rights, Selecta may undertake, but shall not be required to undertake, at its sole expense and in its sole discretion, the prosecution of such AskBio Patent Rights; provided, however, that in the event that Selecta undertakes such prosecution, AskBio, at Selecta’s expense, shall cooperate with and assist Selecta as set forth in Section 8.3.3.6 (with such AskBio Patent Rights being treated similar to Joint Patent Rights for purposes of Section 8.3.3.6).
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8.3.2.2
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With respect to any Selecta Patent Rights pertaining to a Collaboration Product, if Selecta elects not to prosecute, or elects to discontinue prosecution, (whether worldwide or with respect to any particular country), Selecta shall promptly notify AskBio in writing (which notice
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shall be at least [***] calendar days prior to the lapse or abandonment of any such prosecution). In the event that AskBio elects to assume prosecution of such Selecta Patent Rights (whether worldwide or with respect to any particular country, as applicable), AskBio shall notify Selecta in writing within [***] days after AskBio’s receipt of Selecta’s written notice. In the event that Selecta has not received written notice from AskBio within such [***] day period, AskBio will be deemed to have waived the right to assume prosecution of such Selecta Patent Rights. If AskBio assumes prosecution of such Selecta Patent Rights, AskBio may undertake, but shall not be required to undertake, at its sole expense and in its sole discretion, the prosecution of such Selecta Patent Rights; provided, however, that in the event that AskBio undertakes such prosecution, Selecta, at AskBio’s expense, shall cooperate with and assist AskBio as set forth in Section 8.3.3.6 (with such Selecta Patent Rights being treated similar to Joint Patent Rights for purposes of Section 8.3.3.6).
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8.3.3
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Joint Patent Rights.
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8.3.3.1
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With respect to any Joint Invention, each Party shall promptly exchange with the other Party all relevant information, including without limitation the identity of any and all inventors. The PPEC shall meet periodically, prior to the filing of any patent application, to discuss strategies for filing such a patent application, if any, on such Joint Inventions.
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8.3.3.2
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Except as otherwise provided in Section 8.3.3.4 and Section 8.3.3.5, the costs of prosecution for any and all Joint Patent Rights shall be borne equally by the Parties.
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8.3.3.3
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Upon the identification of a Joint Invention, the PPEC shall confer to determine which Party would be best suited to prosecute Joint Patent Rights covering such Joint Invention. Such determination shall be made by the JSC after recommendation made by the PPEC, which recommendation shall consider the nature of the Joint Invention, each Party’s relative contribution towards such Joint Invention and the experience of each of the Parties with respect to prosecution of Joint Patent Rights covering inventions other than such Joint Invention but based on similar technology features.
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8.3.3.4
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With respect to any Joint Patent Rights that the Parties determine should be prosecuted by AskBio, if AskBio elects not to prosecute, or elects to discontinue prosecution, (whether worldwide or with respect to any particular country), AskBio shall promptly notify Selecta in writing (which notice shall be at least [***] calendar days prior to the lapse or abandonment of any such prosecution). In the event that Selecta elects
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to assume prosecution of such Joint Patent Rights (whether worldwide or with respect to any particular country, as applicable), Selecta shall notify AskBio in writing within [***] days after Selecta’s receipt of AskBio’s written notice. In the event that AskBio has not received written notice from Selecta within such [***] day period, Selecta will be deemed to have waived the right to assume prosecution of such Joint Patent Rights. If Selecta assumes prosecution of such Joint Patent Rights, Selecta may undertake, but shall not be required to undertake, at its sole expense and in its sole discretion, the prosecution of such Joint Patent Rights and, as of the date of AskBio’s receipt of Selecta’s written notice of Selecta’s intent to assume prosecution of such Joint Patent Rights, AskBio shall have no further obligation with respect to such Joint Patent Rights, and the Joint Invention covered by such Joint Patent Rights; provided, however, that in the event that Selecta undertakes such prosecution, AskBio, at Selecta’s expense, shall cooperate with and assist Selecta as set forth in Section 8.3.3.6.
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8.3.3.5
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With respect to any Joint Patent Rights that the Parties determine should be prosecuted by Selecta, if Selecta elects not to prosecute, or elects to discontinue prosecution, (whether worldwide or with respect to any particular country), Selecta shall promptly notify AskBio in writing (which notice shall be at least [***] calendar days prior to the lapse or abandonment of any such prosecution). In the event that AskBio elects to assume prosecution of such Joint Patent Rights (whether worldwide or with respect to any particular country, as applicable), AskBio shall notify Selecta in writing within [***] days after AskBio’s receipt of Selecta’s written notice. In the event that Selecta has not received written notice from AskBio within such [***] day period, AskBio will be deemed to have waived the right to assume prosecution of such Joint Patent Rights. If AskBio assumes prosecution of such Joint Patent Rights, AskBio may undertake, but shall not be required to undertake, at its sole expense and in its sole discretion, the prosecution of such Joint Patent Rights and, as of the date of Selecta’s receipt of AskBio’s written notice of AskBio’s intent to assume prosecution of such Joint Patent Rights, Selecta shall have no further obligation with respect to such Joint Patent Rights, and the Joint Invention covered by such Joint Patent Rights; provided, however, that in the event that AskBio undertakes such prosecution, Selecta, at AskBio’s expense, shall cooperate with and assist AskBio as set forth in Section 8.3.3.6.
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8.3.3.6
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Each Party, as the non-prosecuting Party, shall cooperate with the Party prosecuting a Joint Patent Right (“Prosecuting Party”), including without limitation, (a) making scientists and scientific records reasonably available, (b) making reasonably available its respective authorized
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attorneys, agents or representatives, and (c) signing or use its best efforts to have signed and delivered, at no charge to the Prosecuting Party, all documents necessary in connection with such prosecution. The non-Prosecuting Party will be provided in a timely manner with copies of all correspondence with the U.S. Patent & Trademark Office (or the applicable foreign patent office) and with the opportunity to review and comment upon any papers, responses or other filings prepared by the Prosecuting Party for submission to the said offices in advance of their filing, and the Prosecuting Party will reasonably consider any reasonable comments that are provided by the non-Prosecuting Party in a timely manner.
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8.4.1
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Notice. Each Party shall promptly notify the other Party in writing upon learning of any (a) actual or suspected infringement of any and all Joint Patent Rights by a Third Party, or of any claim of invalidity, unenforceability, or non-infringement of the Joint Patent Rights (“Joint Patent Right Infringement”) and (b) actual or suspected infringement of any and all AskBio Licensed Patent Rights and Selecta Licensed Patent
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Rights by a Third Party through the research, development, making, using selling, offering for sale, import or export of a product intended for use in a Collaboration Indication (such infringement, “Licensed Patent Right Infringement”, and such notice, “Enforcement Notice”), and, in each case, (a) and (b), shall, along with such Enforcement Notice, supply the other Party with all evidence in its possession pertaining materially thereto.
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8.4.2
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Defense. Promptly after delivery of an Enforcement Notice by a Party to the other Party, but in any event within [***] days of such delivery, the PPEC shall meet to discuss which Party shall have the first right, but not the obligation, to initiate a suit or take other appropriate action that it believes is reasonably required to prevent or abate the Joint Patent Right Infringement or Licensed Patent Right Infringement, as applicable (the “Enforcing Party”). After such determination, the Enforcing Party shall have the first right, but not the obligation, to initiate a suit or take other appropriate action that it believes is reasonably required to prevent or abate the Joint Patent Right Infringement or Licensed Patent Right Infringement. The non-Enforcing Party agrees to be joined as a party plaintiff, if necessary, to prosecute the action or proceeding and to give reasonable assistance and authority to file and prosecute the action or proceeding at no charge to the Enforcing Party, in each case with the aim to preserve the integrity of the Joint Patent Rights, AskBio Licensed Patent Rights or Selecta Patent Rights, as applicable. In the event that the Enforcing Party does not initiate a suit or take other appropriate action to prevent or abate such Joint Patent Right Infringement or Licensed Patent Right Infringement, as applicable, within [***] days after knowledge of such infringement, then the non-Enforcing
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Party shall have the right, but not the obligation, to initiate a suit or take other appropriate action that it believes is reasonably required to prevent or abate such Joint Patent Right Infringement or Licensed Patent Right Infringement, as applicable. In such a case, the Enforcing Party agrees to be joined as a party plaintiff, if necessary, to prosecute the action or proceeding and to give reasonable assistance and authority to file and prosecute the action or proceeding at no charge to the non-Enforcing Party, in each case with the aim to preserve the integrity of the Joint Patent Rights, AskBio Licensed Patent Rights or Selecta Patent Rights, as applicable. Each Party shall provide the other Party in a timely manner with copies of all material correspondence and documents regarding such Joint Patent Right Infringement, and with the opportunity to review and comment upon any material correspondence or documents prepared by such Party, and such Party will reasonably consider any reasonable comments that are provided by the other Party in a timely manner.
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8.4.3
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Recovery. Unless otherwise mutually agreed by the Parties, all monies recovered upon the final judgment or settlement of any action described in this Section 8.4, shall be used first to reimburse the Parties for their respective out-of-pocket expenses relating to the action, and any remaining balance shall be shared between the Parties equally; provided that if the Joint Patent Right Infringement or Licensed Patent Right Infringement is primarily related to a Collaboration Indication, the remaining balance
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shall be shared by the Parties in accordance with the Profit Share Percentage for such Collaboration Indication.
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8.5
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Defense Against Third Party Infringement Claims.
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8.5.1
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Core Technology. In the event that a Third Party makes any claim or brings any suit or other proceeding for infringement or misappropriation of any intellectual property rights of such Third Party in the research, development, making, using selling, offering for sale, import or export of Collaboration Product against (a) AskBio, or any of their respective Affiliates or sublicensees, (i) based on the use of the AskBio Core Technology, AskBio shall have the sole right, at its expense, to defend and control the defense of such claim, suit or other proceeding as well as to initiate and control any counterclaim or other similar action with respect to AskBio Core Technology, or (ii) based on the use of the Selecta Core Technology, Selecta and AskBio shall cooperate, at each Party’s own expense, to defend such claim, suit or other proceeding as well as to initiate any counterclaim or other similar action with respect to Selecta Core Technology; and (b) Selecta, or any of their respective Affiliates or sublicensees, (i) based on the use of the Selecta Core Technology, Selecta shall have the sole right, at its expense, to defend and control the defense of such claim, suit or other proceeding as well as to initiate and control any counterclaim or other similar action with respect to Selecta Core Technology, or (ii) based on the use of the AskBio Core Technology, Selecta and AskBio shall cooperate, at each Party’s own expense, to defend such claim, suit or other proceeding as well as to initiate any counterclaim or other similar action with respect to AskBio Core Technology.
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Any disputes among the Parties as to how the claim, suit or other proceeding is controlled or handled shall be resolved by the PPEC.
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8.5.2
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Other Claims. In the event that a Third Party makes any claim or brings any suit or other proceeding against a Party, or any of their respective Affiliates or sublicensees, for infringement or misappropriation of any intellectual property rights of such Third Party based on the research, development, making, using selling, offering for sale, import or export of any Collaboration Products, other than as set forth in Section 8.5.1, the Party first obtaining knowledge of such a claim shall immediately provide written notice to the other Party of such claim along with the related facts in reasonable detail. Unless the Parties otherwise agree, the Party against which such claim is brought shall have the first right, but not the obligation, at its expense, to defend and control the defense of such claim, suit or other proceeding. In the event that the Party against which such claim is brought does not defend such claim, suit or other proceeding or take other appropriate action within thirty (30) days after acquiring knowledge of such claim, suit or other proceeding, then the other Party shall have the right, but not the obligation, to be joined as a party and to defend and control such claim, suit or other proceeding or take other appropriate action that it believes is reasonably required. Each Party shall fully cooperate with the defending Party, at the defending Party’s reasonable request and expense, in defense of such claim, suit or other proceeding, including by
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being joined as a party, and shall have the right to be represented separately by counsel of its own choice but at its own expense. The defending Party shall also control settlement of such claim; provided, however, that no settlement shall be entered into without the prior written consent of the other Party if such settlement would adversely affect the rights and benefits of, or impose or adversely affect any obligations on, the other Party. To the extent appropriate, the Parties shall enter into a joint defense agreement with respect to the common interest privilege protecting communications regarding such claim in a form reasonably acceptable to the Parties.
ARTICLE 9.
REPRESENTATIONS AND WARRANTIES
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9.1
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Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that as of the Effective Date:
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9.1.1
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it is duly organized, validly existing, and in good standing under the laws and regulations of the jurisdiction in which it is organized;
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9.1.2
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it (a) has the requisite power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder, and (b) has taken all requisite action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
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9.1.3
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that this Agreement has been duly executed and delivered by such Party and constitutes a legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms;
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9.1.4
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it has obtained all necessary consents, approvals, and authorizations of all Governmental Authorities and other persons or entities required to be obtained by such Party in connection with the execution and delivery of this Agreement;
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9.1.5
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the execution, delivery and performance by such Party of this Agreement and its compliance with the terms and provisions hereof does not and will not conflict with or result in a breach of any of the terms and provisions of or constitute a default under (a) a loan agreement, guaranty, financing agreement, agreement relating to one or more Patent Rights or other agreement or instrument binding or affecting it or its property; or (b) any order, writ, injunction or decree of any court or Governmental Authority entered against it or by which any of its property is bound; and
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9.1.6
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it has not, and will not, during the Term, grant any right to any Third Party that would conflict with the rights granted to the other Party or would be inconsistent with its obligations hereunder.
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9.2
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Additional Representations and Warranties of AskBio. As of the Effective Date, AskBio hereby represents and warrants to Selecta that as of the Effective Date: (a) to AskBio’s actual
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knowledge (which, for clarity, does not include obtaining any legal opinions or freedom to operate analysis), (i) there is no known infringement or threatened infringement of the AskBio Core Technology by any Third Party, (ii) AskBio has not received any written claims alleging that the AskBio Core Technology is invalid or unenforceable, and (iii) AskBio has not taken any action or failed to take any action since January 1, 2018 that would reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation or unenforceability of any of the Patent Rights listed on Schedule 1.9, and all filing, examination, issuance, post registration and maintenance fees, annuities and the like that have come due between January 1, 2018 and the Effective Date and are required to maintain, preserve or renew any such Patent Rights have been timely paid; (b) there are no valid and enforceable intellectual property rights (including Patent Rights) owned or Controlled by a Third Party that would be infringed or misappropriated by Selecta’s use or practice of the AskBio Core Technology in accordance with the Selecta Research License or the Selecta Collaboration Product License; (c) AskBio has not granted any licenses or covenants not to sue, or similar rights under the AskBio Core Technology with respect to any AAV Products for use in a Collaboration Indication that conflict with the rights granted to Selecta hereunder; (d) neither AskBio nor any of its employees or contractors performing activities hereunder has been debarred under Article 306 of the FDCA, 21 U.S.C. §335a(a) or (b), or any equivalent foreign or local law, rule or regulation, and neither appears on the United States Food and Drug debarment list; (e) neither AskBio nor any of its employees
or contractors performing activities hereunder has committed any crime or conduct that could result in such debarment or exclusion from any governmental healthcare program; and (f) to AskBio’s actual knowledge (which, for clarity, does not include obtaining any legal opinions or freedom to operate analysis), no investigations, claims or proceedings with respect to any such crimes or conduct are pending or threatened against AskBio or any of its employees or contractors performing activities hereunder. AskBio agrees and undertakes to promptly notify Selecta if AskBio or any of its employees or contractors performing activities hereunder becomes debarred or excluded, or proceedings have been initiated against either of them with respect to debarment or exclusion, whether such debarment or exclusion, or initiation of proceedings, occurs during or after the Term.
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9.3
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Additional Representations and Warranties of Selecta. As of the Effective Date, Selecta hereby represents and warrants to AskBio that as of the Effective Date: (a) to Selecta’s actual knowledge (which, for clarity, does not include obtaining any legal opinions or freedom to operate analysis), (i) there is no known infringement or threatened infringement of the Selecta Core Technology by any Third Party, (ii) Selecta has not received any written claims alleging that the Selecta Core Technology is invalid or unenforceable, and (iii) Selecta has not taken any action or failed to take any action since January 1, 2018 that would reasonably be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation or unenforceability of any of the Patent Rights listed on Schedule 1.62, and all filing, examination, issuance, post registration and maintenance fees, annuities and the like that have come due between January 1, 2018 and the Effective Date and are required to maintain, preserve or renew any such Patent Rights have been timely paid; (b) there are no valid and enforceable intellectual property rights (including Patent Rights) owned or Controlled by a
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Third Party that would be infringed or misappropriated by AskBio’s use or practice of the Selecta Core Technology in accordance with the AskBio Research License or the AskBio Collaboration Product License; (c) Selecta has not granted any licenses or covenants not to sue, or similar rights under the Selecta Core Technology with respect to any AAV Products or ImmTOR for use in a Collaboration Indication that conflict with the rights granted to AskBio hereunder; (d) neither Selecta nor any of its employees or contractors performing activities hereunder has been debarred under Article 306 of the FDCA, 21 U.S.C. §335a(a) or (b), or any equivalent foreign or local law, rule or regulation, and neither appears on the United States Food and Drug debarment list; (e) neither Selecta nor any of its employees or contractors performing activities hereunder has committed any crime or conduct that could result in such debarment or exclusion from any governmental healthcare program; and (f) to Selecta’s actual knowledge (which, for clarity, does not include obtaining any legal opinions or freedom to operate analysis), no investigations, claims or proceedings with respect to any such crimes or conduct are pending or threatened against Selecta or any of its employees or contractors performing activities hereunder. Selecta agrees and undertakes to promptly notify AskBio if Selecta or any of its employees or contractors performing activities hereunder becomes debarred or excluded, or proceedings have been initiated
against either of them with respect to debarment or exclusion, whether such debarment or exclusion, or initiation of proceedings, occurs during or after the Term.
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9.4
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Disclaimer of Warranty. Each Party acknowledges that any tangible materials provided by the other Party may be experimental in nature, may have hazardous properties, and are provided “as-is.” EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY OF (A) MERCHANTABILITY, (B) FITNESS FOR A PARTICULAR USE OR PURPOSE, (C) NON-INFRINGEMENT BY THIRD PARTIES, (D) INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTIES’ INTELLECTUAL PROPERTY RIGHTS, (E) VALIDITY OR ENFORCEABILITY OF THE ASKBIO BACKGROUND TECHNOLOGY, ASKBIO PATENT RIGHTS, SELECTA BACKGROUND TECHNOLOGY, OR SELECTA PATENT RIGHTS; (F) COMMERCIAL UTILITY, (G) THAT ANY PATENT APPLICATION INCLUDED IN THE ASKBIO BACKGROUND TECHNOLOGY, ASKBIO PATENT RIGHTS, SELECTA BACKGROUND TECHNOLOGY, OR SELECTA PATENT RIGHTS WILL ULTIMATELY ISSUE, (H) THAT ANY MATERIALS PROVIDED BY EITHER PARTY WILL NOT POSE A SAFETY OR HEALTH RISK, OR (I) SUCCESS OF THE FEASIBILITY STUDY OR COLLABORATION, AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS THE FOREGOING SET FORTH IN SUBSECTIONS (A)-(I).
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ARTICLE 10.
INDEMNIFICATION AND LIABILITY
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10.1
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Indemnification by AskBio. AskBio shall indemnify, defend (subject to Section 10.3) and hold Selecta and its Affiliates, and their respective officers, directors, employees, contractors,
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agents and assigns (each, a “Selecta Indemnified Party”), harmless from and against losses, expenses, fees, damages and liability of any nature, including reasonable legal expenses and attorneys’ fees, (collectively, “Losses”) to which any Selecta Indemnified Party may become subject as a result of any Third Party demands, claims, suits, actions, proceedings, causes of action, or judgments (“Third Party Claims”) against any Selecta Indemnified Party to the extent: (a) arising or resulting from the negligence or willful misconduct of AskBio or any of its Affiliates, or their licensees, employees, contractors or agents under this Agreement, (b) arising or resulting from the material breach by AskBio of this Agreement, or (c) arising or resulting from the infringement or misappropriation of any intellectual property rights (including Patent Rights) owned or Controlled by a Third Party to the extent such infringement or misappropriation arises or results from Selecta’s use or practice of the AskBio Core Technology in accordance with this Agreement. AskBio’s obligations to so indemnify and hold the Selecta Indemnified Parties harmless shall not apply to the extent that such Third Party Claims result from any Loss (i) for which Selecta is obligated to indemnify, defend and hold AskBio Indemnified Parties harmless under Section 10.2 or (ii) arising out of or relating to such Selecta Indemnified Parties’ fraud, willful misconduct or gross negligence.
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10.2
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Indemnification by Selecta. Selecta shall indemnify, defend (subject to Section 10.3) and hold AskBio and its Affiliates, and their respective officers, directors, employees, contractors, agents and assigns (each, a “AskBio Indemnified Party”), harmless from and against Losses to which any AskBio Indemnified Party may become subject as a result of any Third Party Claims against any AskBio Indemnified Party to the extent: (a) arising or resulting from the negligence or willful misconduct of Selecta or any of its Affiliates, or their licensees, employees, contractors or agents under this Agreement, (b) arising or resulting from the material breach by Selecta of this Agreement, or (c) arising or resulting from the infringement or misappropriation of any intellectual property rights (including Patent Rights) owned or Controlled by a Third Party to the extent such infringement or misappropriation arises or results from AskBio’s use or practice of the Selecta Core Technology or use of Selecta’s product candidate SEL-302 in accordance with this Agreement. Selecta’s obligations to so indemnify and hold the AskBio Indemnified Parties harmless shall not apply to the extent that such Third Party Claims result from any Loss (i) for which AskBio is obligated to indemnify, defend and hold Selecta Indemnified Parties harmless under Section 10.1 or (ii) arising out of or relating to such AskBio Indemnified Parties’ fraud, willful misconduct or gross negligence.
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10.3
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Indemnification Procedure.
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10.3.1
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Any Selecta Indemnified Party or AskBio Indemnified Party seeking indemnification hereunder (“Indemnified Party”) shall notify the Party against whom indemnification is sought (“Indemnifying Party”) in writing reasonably promptly after the assertion against the Indemnified Party of any Third Party Claim in respect of which the Indemnified Party intends to base a claim for indemnification hereunder, but the failure or delay to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any obligation or liability that it may have to the Indemnified Party except to the extent
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that the Indemnifying Party demonstrates that its ability to defend or resolve such Third Party Claim is adversely affected thereby.
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10.3.2
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Subject to the provisions of Section 10.3.3 below, the Indemnifying Party shall have the right, upon providing notice to the Indemnified Party of its acceptance of responsibility to indemnify the Indemnified Party and its intent to do so within thirty (30) days after receipt of the notice from the Indemnified Party of any Third Party Claim, to assume the defense and handling of such Third Party Claim, at the Indemnifying Party’s sole expense.
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10.3.3
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The Indemnifying Party shall select counsel reasonably acceptable to the Indemnified Party in connection with conducting the defense and handling of such Third Party Claim, and the Indemnifying Party shall defend or handle the same in consultation with the Indemnified Party, and shall keep the Indemnified Party timely apprised of the status of such Third Party Claim. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, agree to a settlement of
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any Third Party Claim which imposes any liability or obligation on the Indemnified Party other than financial obligations which are fully assumed by the Indemnifying Party, would involve any admission of wrongdoing on the part of the Indemnified Party, or does not include a release of all claims against the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party (at the Indemnifying Party’s request and subject to reimbursement of associated out-of-pocket expenses by the Indemnifying Party), shall be entitled to participate in the defense and handling of such Third Party Claim with its own counsel and at its own expense and shall not make any admission or other communication regarding such Third Party Claim or agree to a settlement of any Third Party Claim without the consent of the Indemnifying Party.
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10.4
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Collaboration Product Claims. In the event of any Third Party Claim that results in Losses being incurred by any AskBio Indemnified Party or any Selecta Indemnified Party, where such Third Party Claim and associated Losses (a) are not within the indemnification obligations described in Section 10.1 or Section 10.2 and (b) arise as a result of, or in connection with, the Development, Manufacture or Commercialization activities conducted by either Party on or after the Effective Date with respect to any Collaboration Product, each Party shall be responsible for its Profit Share Percentage of such Losses, regardless of which Party’s indemnitees initially bear such Losses. Appropriate indemnification shall be made by the Party bearing less than its Profit Share Percentage to the other Party to effect the foregoing allocation of applicable Losses.
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10.5
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Limitation of Liability. EXCEPT FOR LIABILITY INCURRED AS A RESULT OF A PARTY’S BREACH OF ARTICLE 7, A PARTY’S MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, A PARTY’S BREACH OF SECTION 13.18 OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR
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INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTHING IN THIS SECTION 10.5 IS INTENDED TO OR SHALL LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF ANY PARTY UNDER SECTION 10.1, SECTION 10.2 OR SECTION 10.4.
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10.6
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Insurance. Each Party shall maintain insurance (which may include any self-insured arrangements), including product liability insurance, with respect to its activities under this Agreement. Such insurance or self-insurance shall be in such amounts and subject to such deductibles as are prevailing in the industry from time to time, provided that, each Party shall maintain a minimum of an aggregate of [***] in general comprehensive liability insurance and an aggregate of: (a) [***] in product liability insurance until the Collaboration
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Start Date and (b) [***] in product liability insurance no later than thirty (30) days following the Collaboration Start Date. Each Party shall provide written proof of the existence of such insurance to the other Party upon request. For clarity, either Party shall have the right to provide the total limits required under this Section 10.6 by any combination of primary and umbrella/excess coverage and may provide all or part of the required coverage through its insurance captive. Further, each Party sponsoring any clinical trials of the Products shall maintain clinical trial insurance that is in compliance with the local laws of each country in which such clinical trials are being completed. Each Party shall name the other Party as an additional insured under its general comprehensive and product liability policies, as well as under its clinical trial policies.
ARTICLE 11.
TERM AND TERMINATION
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11.1
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Term. The term of this Agreement (the “Term”) will commence as of the Effective Date, and will expire as follows, unless earlier terminated in accordance with this Article 11:
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11.1.1
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If the activities under the POC Plans fail to demonstrate POC, no POC Notice is provided by the JSC pursuant to Section 3.8, and the Parties do not mutually agree in writing to proceed with the Collaboration despite such failure, then the Term shall expire on the POC Determination Deadline or earlier as mutually agreed in writing.
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11.1.2
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If the POC Notice is provided or the Parties mutually agree in writing to proceed with the Collaboration, then this Agreement shall continue in effect on a Collaboration Indication-by-Collaboration Indication basis, until the Parties are no longer Developing or Commercializing any Collaboration Product for use in such Collaboration Indication, or earlier as mutually agreed in writing.
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11.2
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Termination for Cause. Either Party may terminate this Agreement if the other Party materially breaches any provision of this Agreement and fails to remedy such breach within [***] days, or [***] days if such breach is with respect to a payment obligation hereunder, after receipt of written notice of such breach; provided that if such breach is specific to a particular
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Collaboration Indication (or a Collaboration Product for a particular Collaboration Indication), such termination shall apply only with respect to such Collaboration Indication. In addition, either Party shall have the right to immediately terminate this Agreement upon notice to the other Party if the other Party or any of its officers, directors, employees, contractors, subcontractors, Third Party vendors, or agents, violates, or is investigated, indicted, or charged by any governmental or regulatory authority for, violating any anti-corruption or anti-bribery laws, rules, or regulations, including, without limitation, the FCPA, in which case the effective date of any such termination shall be the date stated on such notice of termination given by such Party.
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11.3
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Termination for Insolvency. Notwithstanding anything contained in this Agreement to the contrary, either Party may terminate this Agreement immediately by written notice in the event: (a) the other Party voluntarily enters into bankruptcy proceedings; (b) the other Party
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makes an assignment for the benefit of creditors; (c) a petition is filed against the other Party under a bankruptcy law, a corporate reorganization law, or any other law for relief of debtors or similar law analogous in purpose or effect, which petition is not stayed or dismissed within [***] days of filing thereof; or (d) the other Party enters into liquidation or dissolution proceedings or a receiver is appointed with respect to any assets of the other Party, which appointment is not vacated within one hundred and twenty (120) days.
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11.4
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Challenge of Patent Rights.
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11.4.1
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If Selecta commences any legal proceeding (or if Selecta assists any Third Party in commencing any legal proceeding) that challenges the validity or enforceability of any Patent Rights within the AskBio Core Technology or AskBio Patent Rights, AskBio shall have the right to terminate this Agreement upon thirty (30) days’ prior written notice; provided, however, that if Selecta or such Third Party withdraws such challenge during such thirty (30)-day period, AskBio may not terminate this Agreement for such challenge. In the event that at least one claim of a patent that is subject to a challenge survives the challenge by not being found invalid or unenforceable, regardless of whether the claim is amended as part of the challenge, Selecta shall pay all reasonable costs and expenses incurred by AskBio (including attorneys’ fees and expert witness fees) in connection with defending such challenge.
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11.4.2
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If AskBio commences any legal proceeding (or if AskBio assists any Third Party in commencing any legal proceeding) that challenges the validity or enforceability of any Patent Rights within the Selecta Core Technology or Selecta Patent Rights, Selecta shall have the right to terminate this Agreement upon thirty (30) days’ prior written notice; provided, however, that if AskBio or such Third Party withdraws such challenge during such thirty (30)-day period, Selecta may not terminate this Agreement for such challenge. In the event that at least one claim of a patent that is subject to a challenge survives the challenge by not being found invalid or unenforceable, regardless of whether the claim is amended as part of the challenge, AskBio shall pay all reasonable
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costs and expenses incurred by Selecta (including attorneys’ fees and expert witness fees) in connection with defending such challenge.
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11.4.3
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Notwithstanding anything to the contrary in this Section 11.4, termination under this Section 11.4 is not permitted for any counterclaim or defense made, filed or maintained by a Party in any patent infringement claim, demand, lawsuit, cause of action or other action made, filed or maintained by the other Party or its Affiliate.
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11.5
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Termination for Failure of a Collaboration Indication. On a Collaboration Indication-by-Collaboration Indication basis, if (a) the JSC determines that based on the results of activities under the applicable Therapeutic Development Plan, Development, Manufacture or Commercialization of Collaboration Products for such Collaboration Indication is not scientifically or therapeutically viable, or (b) Regulatory Approval is not granted within
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[***] of filing of the BLA for such Collaboration Product, or withdrawn by a Competent Authority for any reason (in each case, a “Failed Indication”), then either Party may, upon written notice to the other Party, terminate this Agreement with respect to such Failed Indication, in which case such Failed Indication will cease to be a Collaboration Indication and all Collaboration Products for use in such Failed Indication shall cease to be Collaboration Products. For clarity, the Agreement shall otherwise continue with respect to all other Collaboration Indications.
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11.6
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General Effects of Termination or Expiration. Upon termination or expiration of this Agreement, unless otherwise agreed in writing:
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11.6.1
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termination of this Agreement for any reason will not release either Party from any liability which, at the time of such expiration or termination, has already accrued to the other Party or which is attributable to a period prior to such termination nor preclude either Party from pursuing all rights and remedies it may have at law or in equity with respect to any breach of this Agreement;
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11.6.2
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each Party shall promptly return or destroy, at the Disclosing Party’s option, to the other Party all Confidential Information received from the other Party (except to the extent reasonably necessary to exercise any remaining rights under this Agreement and, in all cases, except that one copy of which may be retained by legal counsel for archival purposes and ensuring compliance with the confidentiality obligations imposed by this Agreement, and which such copy shall not be accessed for any other purpose);
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11.6.3
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termination of this Agreement for any reason will not affect either Party’s ownership of or rights to Joint Inventions or Joint Patent Rights as set forth in this Agreement;
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11.6.4
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the Research Licenses and Collaboration Product Licenses shall automatically terminate with respect to all terminated Collaboration Indications and Collaboration Products for use in such Collaboration Indications (which, in the case of termination or expiration of this Agreement in its entirety shall be all Collaboration Indications, Collaboration Products, and POC Candidates); and
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11.6.5
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Except as expressly set forth in this Agreement, including this Section 11.6 and Section 11.7, all rights and obligations of the Parties hereunder shall terminate, with respect to this Agreement (in the case of expiration of this Agreement or termination in its entirety) or the terminated Collaboration Indications and Collaboration Products for use in such Collaboration Indications (in the case of termination of one or more Collaboration Indications).
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11.7
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Survival. Notwithstanding any provision of this Agreement to the contrary, the provisions of Article 1, Section 3.7.2, Section 4.2.3.2, Section 6.4 (for three (3) years after submission of the applicable Party’s last quarterly report), Article 7 (for five (5) years after the Term), Section 8.2, Section 8.3.3, Section 8.4 (with respect to Joint Patent Rights), Article 10, this
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Section 11.7, Article 12, and Article 13 shall survive any termination or expiration of this Agreement, as will the Parties’ respective rights accrued hereunder to the date of termination or expiration.
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11.8
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Bankruptcy Code. If this Agreement is rejected by a Party as a debtor under Section 365 of the United States Bankruptcy Code or similar provision in the bankruptcy laws of another jurisdiction (the “Code”), then, notwithstanding anything else in this Agreement to the contrary, all licenses and rights to licenses granted under or pursuant to this Agreement by the Party in bankruptcy to the other Party are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (or similar provision in the bankruptcy laws of the jurisdiction), licenses of rights to “intellectual property” as defined under Section 101(35A) of the United States Bankruptcy Code (or similar provision in the bankruptcy laws of the jurisdiction) and subject to survival in accordance with the Code. The Parties agree that a Party that is a licensee of rights under this Agreement shall retain and may fully exercise all of its rights and elections under the Code. The foregoing provisions of this Section 11.8 are without prejudice to any rights a Party may have arising under the Code.
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ARTICLE 12.
DISPUTE RESOLUTION
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12.1
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General. Except as otherwise provided in this Agreement or agreed by the Parties in writing, all disputes under this Agreement shall be resolved as set forth in this Article 12.
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12.2
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Initial Attempts to Resolve Disputes. Any disputes between the Parties first shall be addressed informally between the Parties. Either Party may request a special dispute resolution meeting. Upon such request, the Parties will use reasonable efforts to convene such a special meeting at a time and place that is mutually convenient to the Parties. If the Parties are unable to resolve a dispute among them informally, or a meeting could not be convened to consider the matter, then either Party may, by written notice to the other, have such dispute referred to their respective executive officers designated below or their successors, for attempted resolution by good faith negotiations:
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FOR Selecta:
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Carsten Brunn, CEO
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FOR AskBio:
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Sheila A. Mikhail, CEO
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In the event the designated executive officers are not able to resolve any such dispute within thirty (30) days after written notice given by one Party to the other specifically invoking this stage in the dispute resolution procedure, either Party may by written notice to the other (a) commence the mediation process set forth in Section 12.3 if any such dispute is a Critical Matter, or (b) commence the arbitration process set forth in Section 12.4 below for all other disputes.
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12.3
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Mediation. All disputes regarding a Critical Matter which the Parties are unable to resolve amicably in accordance with Section 12.2 may be referred to a Third Party outside mediator
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mutually acceptable to both Parties in good faith, for assistance in seeking resolution. The mediation shall proceed at such times and place mutually acceptable to both Parties in good faith; provided that any mediation pursuant to this Section 12.3 shall not last longer than sixty (60) days unless otherwise agreed by the Parties in writing. Each Party may be represented at the mediation by external legal counsel. The Parties shall each bear their own costs regarding mediation, except that the Parties shall share equally the cost of the mediator and the mediation facility.
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12.4
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Arbitration. All disputes, other than to the extent they related to Critical Matters, which the Parties are unable to resolve amicably in accordance with Section 12.2 hereof shall be finally settled by binding arbitration in accordance with the then applicable rules (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”) by three (3) arbitrators selected from a list of arbitrators proposed by JAMS in accordance with the Rules, as long as such arbitrators have a reasonable level of legal expertise in the area of commercial transactions involving intellectual property and gene therapy pharmaceutical products. The arbitrators shall allow such discovery as is appropriate and consistent with the purposes of arbitration in accomplishing fair, speedy and cost-effective resolution of disputes. The arbitrators shall reference the rules of evidence and the Federal Rules of Civil Procedure then in effect in setting the scope of discovery. The seat of arbitration shall be [***]. The decision and/or award rendered by the arbitrator shall be written, final and non-appealable and such decision and/or award shall be both Parties’ Confidential Information. Judgment upon the award may be entered in any court having jurisdiction thereof or having jurisdiction over the applicable Party or its assets. Notwithstanding the generality of Section 12.2 and Section 12.4, and without waiver of a Party’s right to final adjudication on the merits by arbitration as provided herein, either Party may seek provisional remedies by filing a lawsuit in any court, domestic or foreign, having jurisdiction over the Parties or any assets of the Parties, to toll the running of a relevant statute of limitations or to seek equitable or other judicial relief to prevent or stop the breach or threatened breach of this Agreement, including the misuse or disclosure of Confidential Information or otherwise, and to enforce the Parties’ obligations hereunder.
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12.5
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Expenses. All expenses and fees of the arbitrators and expenses for hearing facilities and other expenses of the arbitration shall be borne equally by Selecta and AskBio unless the Parties agree otherwise in writing or unless the arbitrators in the award assess such expenses against one of the Parties or allocate such expenses other than equally between Selecta and AskBio.
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Each of the Parties shall bear its own counsel fees and the expenses of its witnesses except (a) to the extent otherwise provided in this Agreement or by Applicable Law or (b) to the extent the arbitrators in their discretion determine for any reason to allocate such fees and expenses among the Parties in a different manner.
ARTICLE 13.
MISCELLANEOUS
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13.1
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Assignment. This Agreement may not be assigned, directly or indirectly, by either Party without the prior written consent of the other Party, except that either Party may, subject to the terms of this Agreement, assign its rights and obligations under this Agreement without such consent to a Third Party in connection with a Change of Control or to an Affiliate of such Party. This Agreement will be binding upon the successors and permitted assigns of the Parties and the name of a Party appearing herein will be deemed to include the names of such Party’s successors and permitted assigns to the extent necessary to carry out the intent of this Agreement. Any assignment not in accordance with this Section 13.1 will be null and void, ab initio.
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13.2
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Acquirer’s Right to Negotiation. In the event of a Change of Control of a Party, within thirty (30) days following such Change of Control, the acquiring entity of such Party, or its Affiliates, may deliver an offer to the other Party to acquire any portion, or all, of the other Party’s rights under this Agreement, which the other Party may consider in its sole discretion.
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13.3
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Force Majeure. A Party shall not be liable to the other Party for any loss or damages attributable to any occurrence beyond the reasonable control of the affected Party that prevents or substantially interferes with the performance of its obligations under this Agreement, including without limitation, delays in deliveries from Third Party subcontractors or suppliers, changes in legal requirements, and technical events beyond a Party’s reasonable control, such as, for example, acts of God (including, but not limited to, earthquake, tornado, and hurricane), war, terrorism or civil commotion. Any Party so affected shall give prompt notice of any such cause to the other Party. The Party giving such notice shall thereupon be excused from such of its obligations hereunder as it is thereby disabled from performing for so long as it is so disabled; provided, however, that such affected Party commences and continues to take reasonable and diligent actions to cure such cause. If any such failure of delay in a Party’s performance hereunder continues for more than one hundred eighty (180) days, the other Party may terminate this Agreement upon written notice to the delayed Party.
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13.4
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Notices. All notices and reports required under, and other communications with respect to, this Agreement shall be in writing, and given or sent to the Party to be notified at its respective address set forth below either (a) personally and thereby deemed to be given on that day, (b) by electronic transmission (e.g., email) and thereby deemed to be given on the day following such transmission; or (c) by internationally recognized overnight courier service (e.g., Federal Express) and thereby deemed to be given on the second (2nd) business day following dispatch.
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Either Party may change its address and related information by giving notice to the other Party in the manner set forth in this Section 13.4.
If to Selecta, addressed to:
Selecta Biosciences, Inc.
480 Arsenal Way
Watertown, MA 02472
Attention: General Counsel
Email: [***]
With a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
555 Mission St.
San Francisco, CA 94105
Attention: Ryan Murr
Email: [***]
If to AskBio, addressed to:
Asklepios Biopharmaceutical, Inc.
20 TW Alexander Drive, Suite 110.
Research Triangle Park, NC 27709
Attention: Sheila A. Mikhail, CEO
Email: [***]
With a copy (which shall not constitute notice) to:
Wilson Sonsini Goodrich & Rosati
28 State Street
Boston, MA 02109
Attention: Farah B. Gerdes
Email: [***]
Notwithstanding the foregoing, any notice to be given pursuant to Article 10 and Article 12 shall not be delivered solely by electronic transmission.
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13.5
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Independent Contractors. Subject to the terms of this Agreement, the activities and resources of each Party shall be managed by such Party, acting independently and in its individual capacity, and the Parties will have a relationship of independent contractors with respect to each other. Other than to the extent the Parties execute the Definitive JV Agreements, no term or condition of this Agreement is intended to create, nor will any such term or condition create, any fiduciary duty on the part of either Party for the benefit of the other, nor require either
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Party to expend funds or efforts or commit resources on behalf of the other, other than as specifically agreed in this Agreement.
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13.6
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Interpretation. Except where the context expressly requires otherwise, (a) the use of any gender herein will be deemed to encompass references to any gender, and the use of the singular will be deemed to include the plural (and vice versa), (b) the words “include,” “includes,” “including” or “e.g.” will be deemed to be followed by the phrase “without limitation,” whether or not expressly stated, (c) the word “will” will be construed to have the same meaning and effect as the word “shall,” (d) any definition of or reference to any agreement, instrument or other document herein will be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (e) any reference herein to any person will be construed to include the person’s successors and assigns, (f) the words “herein,” “hereof” and “hereunder,” and words of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (g) all references herein to Sections, Schedules or Exhibits will be construed to refer to Sections, Schedules or Exhibits of this Agreement, and references to this Agreement include all Schedules and Exhibits hereto, (h) the word “notice” will mean notice in writing (whether or not specifically stated) and will include notices, consents, approvals and other written communications contemplated under this Agreement, (i) provisions that require that a Party, the Parties or any committee hereunder “agree,” “consent” or “approve” or the like will require that such agreement, consent or approval be specific and in writing, whether by written agreement, letter, e-mail (solely with return receipt), approved minutes or otherwise (but excluding (A) e-mail without return receipt and (B) text messaging or instant messaging), (j) references to any specific law, rule or regulation, or article, section or other division thereof, will be deemed to include the then-current amendments thereto or any replacement or successor law, rule or regulation thereof, (k) any action or occurrence deemed to be effective as of a particular date will be deemed to be effective as of 11:59 PM New York City local time on such date, unless an earlier time is specified, and (l) the term “or” will be interpreted in the inclusive sense commonly associated with the term “and/or.”
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13.7
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Amendment. No amendment, modification or supplement of any provision of this Agreement, or any Exhibit hereto, shall be valid or effective unless made in writing and signed by a duly authorized officer of each Party.
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13.8
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Waiver. No provision of this Agreement shall be waived by any act, omission or knowledge of any Party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving Party. Without limiting the foregoing, the failure of any Party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other Party.
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13.9
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Counterparts; Facsimile. This Agreement may be executed in any number of counterparts, each of which need not contain the signature of more than one Party, all of which taken
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together will constitute one and the same agreement. For purposes of this Agreement and any other document required to be delivered pursuant to this Agreement, facsimiles or other electronic transmissions of signatures shall be deemed to be original signatures. In addition, if any of the Parties sign facsimile or other electronic copies of this Agreement, such copies shall be deemed originals.
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13.10
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Headings. The headings contained in this Agreement are for convenience only and shall be of no force or effect in construing or interpreting any of the provisions of this Agreement.
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13.11
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Governing Law. This Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of New York, without regard to the conflict of law or choice of law rules or principles of any jurisdiction; provided, however, that any and all issues concerning any patent including validity, infringement, enforceability, ownership, inventorship, and any other controversy concerning any patent shall be resolved in accordance with the laws of the jurisdiction which granted such patent(s).
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13.12
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Severability. In the event that any clause or portion thereof in this Agreement is for any reason held to be invalid, illegal or unenforceable, the same will not affect any other portion of this Agreement; this Agreement shall be construed in such fashion as to maintain its existence, validity and enforceability to the greatest extent possible. In any such event, this Agreement shall be construed as if such clause or portion thereof had never been contained in this Agreement, and there shall be deemed substituted therefor such provision as will most nearly carry out the intent of the Parties as expressed in this Agreement to the fullest extent permitted by Applicable Law unless doing so would have the effect of materially altering the rights and obligations of the Parties. Solely in the event an arbitrator or a court of competent jurisdiction presiding over a dispute arising under this Agreement determines that the duration of the obligations set forth herein with respect to non-disclosure of certain Confidential Information is unenforceable, the Parties agree that such arbitrator or court shall be permitted to modify the period of non-disclosure to the maximum period permitted; provided, however, that the non-disclosure period for Confidential Information qualifying as a trade secret under Applicable Law shall endure until such time as the trade secret is no longer qualified as a trade secret under Applicable Law.
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13.13
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Entire Agreement. This Agreement, including all Exhibits attached hereto, set forth all the covenants, promises, agreements, warranties, representations, conditions, and understandings between the Parties hereto concerning the subject matter hereof and supersede all prior agreements and understandings between the Parties with respect to such subject matter.
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13.14
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Press Releases. Promptly after the Effective Date, the Parties shall issue a joint press release in the form attached hereto as Schedule 13.14. Except (a) with respect to a Party’s securities disclosure obligations, (b) as may be required by Applicable Law or any listing agreement of any Party hereto, or (c) as otherwise set forth in this Section 13.14, neither Party shall issue
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any press release or make any public statement with respect to this Agreement without the express prior written consent of the other Party.
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13.15
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Further Assurances.
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13.15.1 General. Each Party agrees to execute, acknowledge or deliver such further instruments, and to do all other reasonable acts, as may be reasonably necessary or appropriate in order to carry out the purposes and intent of this Agreement.
13.15.2 In-Licensed IP. In the event that the Development, Manufacture, or Commercialization of the Collaboration Products in accordance with this Agreement requires a Party to obtain the consent of a Third Party to grant a sublicense to the other Party under any Patent Rights or Know-How that would, but for the absence of such consent, be included in the AskBio Core Technology or Selecta Core Technology, as applicable, (a) AskBio will use Commercially Reasonable Efforts to obtain any such consent necessary to include such Patent Rights or Know-How within the AskBio Core Technology and (b) Selecta will use Commercially Reasonable Efforts to obtain any such consent necessary to include such Patent Rights or Know-How within the Selecta Core Technology, promptly upon request by the other Party.
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13.16
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Injunctive Relief and Specific Performance. Both Parties acknowledge that a Party may be irreparably injured by a breach of this Agreement by the other Party and that monetary remedies may be inadequate to protect a Party against any actual or threatened breach of this Agreement by the other Party. Accordingly, each Party may seek an injunction or injunctions (without the proof of actual damages or posting of a bond) to prevent breaches or threatened breaches of this Agreement or to compel specific performance of this Agreement. Such remedies shall not be deemed to be the exclusive remedy for actual or threatened breaches of this Agreement but shall be in addition to all other remedies available at law or in equity.
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13.17
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Statutory and Common Law Duties. The duties each Party owes to the other Party under this Agreement shall be deemed to include federal and state statutory and common law obligations and do not in any way supersede or limit any of the obligations or duties each Party owes to the other Party pursuant to any Applicable Law.
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13.18
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Compliance. Each Party commits to comply with Applicable Laws. Without limiting the generality of the foregoing, at all times and with respect to all matters pertaining to this Agreement and the transactions contemplated herein, each Party, on its own behalf and on behalf of any and all of its Third Party vendors, suppliers, contractors, and subcontractors shall comply with any and all Applicable Laws, including, without limitation, all applicable anti-trust, anti-bribery, anti-fraud and abuse, anti-kickback, anti-retaliation, unfair and deceptive trade practices, books-and-record, securities, tax, and import/export laws and regulations, and the listing requirements of any applicable securities exchanges. Each Party shall not, and shall not permit any of its directors, officers, managers, employees, independent contractors, representatives or agents to, promise, authorize or make any
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payment to, or otherwise contribute any item of value to, directly or indirectly, any non-U.S. government official, in
each case, in violation of the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§ 78dd-1, et seq. (“FCPA”) or any other applicable anti-bribery or anti-corruption law. Each Party further represents and warrants that it shall cease all of its activities, as well as remediate any actions taken by such Party, or any of its directors, officers, managers, employees, independent contractors, representatives or agents, in violation of the FCPA or any other applicable anti-bribery or anti-corruption law. Each Party further represents and warrants that it shall maintain systems of internal controls (including, but not limited to, accounting systems, purchasing systems and billing systems) to ensure compliance with the FCPA or any other applicable anti-bribery or anti-corruption law.
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13.19
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No Third Party Beneficiaries. This Agreement is not intended to and shall not be construed to give any Third Party any interest or rights (including any Third Party beneficiary rights) with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
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13.20
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Construction. The Parties hereto acknowledge and agree that: (a) each Party and its counsel reviewed and negotiated the terms and provisions of this Agreement and have contributed to its revision; (b) the rule of construction to the effect that any ambiguities are resolved against the drafting Party shall not be employed in the interpretation of this Agreement; and (c) the terms and provisions of this Agreement shall be construed fairly as to all Parties hereto and not in a favor of or against any Party, regardless of which Party was generally responsible for the preparation of this Agreement.
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[SIGNATURE PAGE FOLLOWS]
The Parties have executed this Agreement by their duly authorized officers as of the Effective Date.
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The Parties have executed this Agreement by their duly authorized officers as of the Effective Date.
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ASKLEPIOS BIOPHARMACEUTICAL, INC.
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SELECTA BIOSCIENCES, INC.
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By:
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/s/ Sheila Mikhail
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By:
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/s/ Carsten Brunn
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Name:
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Sheila Mikhail
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Name:
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Carsten Brunn
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Title:
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CEO
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Title:
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President and CEO
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Signature Page to Feasibility Study and License Agreement
SCHEDULE 1.9
ASKBIO CORE TECHNOLOGY
[***]
SCHEDULE 1.62
SELECTA CORE TECHNOLOGY
[***]
SCHEDULE 3.5.1.1
[***]
SCHEDULE 4.1
COLLABORATION INDICATIONS
[***]
SCHEDULE 4.3.1(w)
[***]
SCHEDULE 4.3.1(x)
[***]
SCHEDULE 13.14
FORM OF PRESS RELEASE
Selecta Biosciences Combines ImmTOR™ Platform with AskBio’s Industry-Leading Gene Therapy Platform in Strategic Partnership
Development pipeline and human trials planned for repeat dosing of AAV-based gene therapies to address the unmet medical need for patients with rare and orphan genetic diseases.
Watertown, Mass., and Research Triangle Park, N.C., August 7, 2019 – Selecta Biosciences, Inc. (NASDAQ: SELB) and Asklepios BioPharmaceutical, Inc. (AskBio), today announced a strategic partnership to jointly develop, manufacture and commercialize a broad portfolio of life-changing, next-generation adeno-associated virus (AAV) gene therapies in areas of high medical need. This partnership will leverage the unique proprietary technology platforms of both companies with a human proof of concept trial to validate the potential for re-dosing in patients with genetic diseases.
Selecta is the first company with preclinical evidence to support the potential for re-dosing patients receiving gene therapy. When used in combination with AAV gene therapy vectors, Selecta’s ImmTOR™ inhibits the immune response to the vector (Nature Communications, October 2018). Currently the ability to re-administer systemic AAV gene therapy is limited by the development of neutralizing antibodies. The ability to safely re-dose AAV should help achieve therapeutic benefit in patients who are under-dosed; it should also help restore transgene expression in patients, particularly growing pediatric patients, who may lose expression over time. In addition, integrating ImmTOR into a gene therapy protocol provides a first dose benefit by enhancing liver-directed transgene expression in preclinical models.
“We are very excited to partner with AskBio, as they are proven leaders in next-generation gene therapy development and scaled manufacturing,” said Carsten Brunn, PhD, Chief Executive Officer of Selecta. “We expect that Selecta’s ImmTOR technology, in combination with AskBio’s AAV technology and clinical leadership, will allow us to rapidly advance a portfolio of new combination therapies through proof of concept and into the clinic. We look forward to working together as we aim to bring targeted therapeutics into clinical development that can offer patients a new treatment paradigm in areas of high unmet need.”
AskBio was founded in 2001 as one of the first gene therapy companies and now owns over 500 patents and applications for AAV technology and processes. AskBio’s gene therapy platform includes a robust pipeline of potentially curative gene therapies, an extensive capsid library, groundbreaking manufacturing process and several advanced AAV initiatives under development, including Doggybone DNA. The AskBio platform also was used to develop the only two FDA-approved gene therapies available today (Zolgensma® and Luxterna™). Several of AskBio’s founders have been influential in the field. Dr. Jude Samulski was the first to clone AAV and discovered how AAV could be safely used to deliver corrected genes to cells with genetic defects. Dr. Xiao was the first to create a mini-dystrophin gene that opened the door for the development of
potential Duchenne Muscular Dystrophy therapies. Dr. Josh Grieger, Askbio’s Chief Technology Officer, pioneered a production technology, the Pro10 cell line, that is paving the way to ensure these important gene therapeutics can reach all patients.
“We only seek to collaborate with companies that share our mission and core values, which are focused on one goal, finding the answers that will cure patients suffering from life-threatening genetic diseases,” said Sheila Mikhail, CEO and cofounder of AskBio. “Selecta is a leading example of that kind of company, and we’re enthusiastic to have this opportunity to work with them on behalf of patients and their families.”
According to Dr. Jude Samulski, “We look forward to this opportunity to deploy our collective platforms to overcome one of the key obstacles to providing long-term treatment from AAV based therapeutics to all patients.”
About AskBio
Asklepios BioPharmaceutical, Inc. (AskBio) is a privately held, clinical stage gene therapy platform company dedicated to improving the lives of children and adults with rare genetic disorders. AskBio’s gene therapy platform includes an industry-leading proprietary cell line manufacturing process known as Pro10™ and an extensive AAV capsid library. The company has generated hundreds of proprietary third generation gene vectors, several of which that have entered clinical testing, and maintains a portfolio of clinical programs across a range of indications, including Pompe, Limb Girdle Muscular Dystrophy, Cystic Fibrosis, Myotonic Muscular Dystrophy, Huntington’s, Hemophilia (Chatham Therapeutic/Takeda) and Duchenne Muscular Dystrophy (Bamboo Therapeutics/Pfizer). For more information, visit www.askbio.com.
About Selecta Biosciences, Inc.
Selecta Biosciences, Inc. is a clinical-stage biotechnology company focused on unlocking the full potential of biologic therapies based on its immune tolerance technology (ImmTOR) platform. Selecta plans to combine ImmTOR with a range of biologic therapies for rare and serious diseases that require new treatment options due to high immunogenicity. The company’s current proprietary pipeline includes ImmTOR-powered therapeutic enzyme and gene therapy product candidates. SEL-212, the company’s lead product candidate, is being developed to treat chronic refractory gout patients and resolve their debilitating symptoms, including flares and gouty arthritis. Selecta’s proprietary gene therapy product candidates are in preclinical development for certain rare inborn errors of metabolism and incorporate ImmTOR with the goal of addressing barriers to repeat administration. Selecta is based in Watertown, Mass. For more information, please visit http://selectabio.com.
Forward-Looking Statements
Any statements in this press release about the future expectations, plans and prospects of Selecta Biosciences, Inc. (“the company”), including without limitation, statements regarding the unique proprietary technology platform of the Company, and the unique proprietary platform of its partners, the potential of ImmTOR to enable re-dosing of AAV gene therapy, the potential treatment applications of product candidates utilizing the ImmTOR platform in areas such as gene therapy, the ability of the Company and AskBio to develop gene therapy products using ImmTOR and AskBio’s technology, the novelty of treatment paradigms that the Company is able to develop, the potential of any therapies developed by the Company and AskBio to fulfill unmet medical needs, the company’s plan to apply its ImmTOR technology platform to a range of biologics for rare and orphan genetic diseases, the potential of the company’s intellectual property
to enable repeat administration in gene therapy product candidates and products, the ability to re-dose patients and the potential of ImmTOR to allow for re-dosing, the potential to safely re-dose AAV, the ability to restore transgene expression, the potential of the ImmTOR technology platform generally and the company’s ability to grow its strategic partnerships, and other statements containing the words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “hypothesize,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “would,” and similar expressions, constitute forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995. Actual results may differ materially from those indicated by such forward-looking statements as a result of various important factors, including, but not limited to, the following: the uncertainties inherent in the initiation, completion and cost of clinical trials including proof of concept trials, including the uncertain outcomes, the availability and timing of data from ongoing and future clinical trials and the results of such trials, whether preliminary results from a particular clinical trial will be predictive of the final results of that trial or whether results of early clinical trials will be indicative of the results of later clinical trials, the unproven approach of the company’s ImmTOR technology, potential delays in enrollment of patients, undesirable side effects of the company’s product candidates, its reliance on third parties to manufacture its product candidates and to conduct its clinical trials, the company’s inability to maintain its existing or future collaborations, licenses or contractual relationships, its inability to protect its proprietary technology and intellectual property, potential delays in regulatory approvals, , the availability of funding sufficient for its foreseeable and unforeseeable operating expenses and capital expenditure requirements, the company’s recurring losses from operations and negative cash flows from operations raise substantial doubt regarding its ability to continue as a going concern, substantial fluctuation in the price of its common stock, and other important factors discussed in the “Risk Factors” section of the company’s most recent Quarterly Report on Form 10-Q, and in other filings that the company makes with the Securities and Exchange Commission. In addition, any forward-looking statements included in this press release represent the company’s views only as of the date of its publication and should not be relied upon as representing its views as of any subsequent date. The company specifically disclaims any intention to update any forward-looking statements included in this press release.
# # #
Selecta Contacts:
Media:
Leticia Diaz
Spectrum Science Communications, Inc.
202-587-2517
ldiaz@spectrumscience.com
Investors:
Sarah McCabe
Stern Investor Relations, Inc.
212-362-1200
sarah.mccabe@sternir.com
AskBio Contacts:
Mark Rosenberg
mark@trueparallel.com
919-412-7378
Roger Friedensen, APR
roger@trueparallel.com
919-349-3206
LEASE
by and between
BRE-BMR GROVE LLC,
a Delaware limited liability company
and
SELECTA BIOSCIENCES, INC.,
a Delaware corporation
LEASE
THIS LEASE (this “Lease”) is entered into as of this 23rd day of July, 2019 (the “Execution Date”), by and between BRE-BMR Grove LLC, a Delaware limited liability company (“Landlord”), and Selecta Biosciences, Inc., a Delaware corporation (“Tenant”).
RECITALS
A.WHEREAS, Landlord owns certain real property (the “Property”) and the improvements on the Property located at 65 Grove Street, Watertown, Massachusetts, including the building located thereon (the “Building” and, together with the Property, the “Project”); and
B.WHEREAS, Landlord wishes to lease to Tenant, and Tenant desires to lease from Landlord, certain premises (the “Premises”) located on the first (1st) floor of the Building, pursuant to the terms and conditions of this Lease, as detailed below.
AGREEMENT
NOW, THEREFORE, Landlord and Tenant, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, agree as follows:
1. Lease of Premises.
1.1. Effective on the Term Commencement Date (as defined below), Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises, as shown on Exhibit A attached hereto, for use by Tenant in accordance with the Permitted Use (as defined below) and no other uses. The Property and all landscaping, parking facilities, private drives and other improvements and appurtenances related thereto, including the Building, are hereinafter collectively referred to as the “Project.” All portions of the Project that are for the non-exclusive use of tenants of the Building, including driveways, sidewalks, parking facilities and areas, landscaped areas, service corridors, stairways, elevators, public restrooms and public lobbies, are hereinafter referred to as “Common Area.” Subject to such Rules and Regulations (as defined below), Tenant shall have the non-exclusive right, as appurtenant to the Premises, to use the Common Areas.
2. Basic Lease Provisions. For convenience of the parties, certain basic provisions of this Lease are set forth herein. The provisions set forth herein are subject to the remaining terms and conditions of this Lease and are to be interpreted in light of such remaining terms and conditions.
2.1. This Lease shall take effect upon the Execution Date and, except as specifically otherwise provided within this Lease, each of the provisions hereof shall be binding upon and inure to the benefit of Landlord and Tenant from the date of execution and delivery hereof by all parties hereto.
2.2. In the definitions below, each current Rentable Area (as defined below) is expressed in square feet. Rentable Area and “Tenant’s Pro Rata Share” are both subject to adjustment as provided in this Lease.
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Definition or Provision
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Means the Following
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Approximate Rentable Area of Premises
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25,078 square feet
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Approximate Rentable Area of Building
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124,349 square feet
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Approximate Rentable Area of Project
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124,349 square feet
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Tenant’s Pro Rata Share of Building
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20.17%
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Tenant’s Pro Rata Share of Project
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20.17%
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2.3. Initial monthly and annual installments of Base Rent for the Premises (“Base Rent”) as of the Rent Commencement Date (as defined below), subject to adjustment under this Lease:
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Dates
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Square
Feet of Rentable
Area
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Base Rent
per Square Foot of Rentable
Area
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Monthly
Base Rent
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Annual Base Rent
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Rent Commencement Date – the day immediately prior to the first (1st) annual anniversary of the Rent Commencement Date
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25,078
square feet
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$66.00
annually
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$137,929.00
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$1,655,148.00
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Note: Subject to adjustment to reflect disbursement of Additional TI Allowance, as provided in Section 4.5, below.
2.4. Estimated Term Commencement Date: March 10, 2020
2.5. Estimated Term Expiration Date: April 30, 2028
2.6. Security Deposit: $1,379,290.00, subject to adjustment in accordance with the terms hereof
2.7. Permitted Use: Office and laboratory use in conformity with all federal, state, municipal and local laws, codes, ordinances, rules and regulations of Governmental Authorities (as defined below), committees, associations, or other regulatory committees, agencies or governing bodies having jurisdiction over the Premises, the Building, the Property, the Project, Landlord or Tenant, including both statutory and common law and hazardous waste rules and regulations (“Applicable Laws”)
2.8. Address for Rent Payment:
BRE-BMR Grove LLC
Attention Entity 111450
P.O. Box 511446
Los Angeles, California 90051-8001
2.9. Address for Notices to Landlord:
BRE-BMR Grove LLC
17190 Bernardo Center Drive
San Diego, California 92128
Attn: Legal Department
2.10. Address for Notices to Tenant:
Prior to the Term Commencement Date:
Selecta Biosciences, Inc.
480 Arsenal Way
Watertown, MA 02472
Attn: Lloyd Johnston, C.O.O.
Following the Term Commencement Date:
Selecta Biosciences, Inc.
65 Grove Street
Watertown, MA 02472
Attn: Lloyd Johnston, C.O.O.
With a copy to:
Foley Hoag LLP
155 Seaport Boulevard
Boston, Massachusetts 02210
Attn: Jeffrey L. Quillen, Esq.
2.11. Address for Invoices to Tenant:
Prior to the Term Commencement Date:
Selecta Biosciences, Inc.
480 Arsenal Way
Watertown, MA 02472
Attn: Lloyd Johnston, C.O.O.
Following the Term Commencement Date:
Selecta Biosciences, Inc.
65 Grove Street
Watertown, MA 02472
Attn: Lloyd Johnston, C.O.O.
2.12. The following Exhibits are attached hereto and incorporated herein by reference:
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Exhibit A
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Premises
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Exhibit B
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Work Letter
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Exhibit B-1
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Tenant Work Insurance Schedule
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Exhibit B-2
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Base Building Improvements
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Exhibit C
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Acknowledgement of Term Commencement Date and Term Expiration Date
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Exhibit D
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Form of Additional TI Allowance Acceptance Letter
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Exhibit E
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Form of Letter of Credit
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Exhibit F
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Rules and Regulations
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Exhibit G
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Tenant’s Personal Property
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Exhibit H
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Form of Estoppel Certificate
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3. Term. The actual term of this Lease (as the same may be extended pursuant to Article 42 hereof, and as the same may be earlier terminated in accordance with this Lease, the “Term”) shall commence on the actual Term Commencement Date (as defined in Article 4) and end on the date (the “Term Expiration Date”) that is ninety-six (96) months after the Rent Commencement Date, subject to extension or earlier termination of this Lease as provided herein.
4. Possession and Commencement Date.
4.1. Landlord shall use commercially reasonable efforts to tender possession of the Premises to Tenant on the Estimated Term Commencement Date, with the work (the “Tenant Improvements”) required of Landlord described in the Work Letter attached hereto as Exhibit B (the “Work Letter”), and the base Building improvements described in Exhibit B-2 to the Work Letter (the “Base Building Improvements”), Substantially Complete (as defined below). Tenant agrees that in the event such work is not Substantially Complete on or before the Estimated Term Commencement Date for any reason, then (a) this Lease shall not be void or voidable, (b) Landlord shall not be liable to Tenant for any loss or damage resulting therefrom, (c) the Term Commencement Date, the Rent Commencement Date and the Term Expiration Date shall be extended accordingly, (d) Tenant shall not be responsible for the payment of any Base Rent until the actual Rent Commencement Date as described in Section 4.2 occurs, and (e) Tenant shall not be responsible for the payment of the Property Management Fee or Tenant’s Adjusted Share of Operating Expenses (as defined below) until the actual Term Commencement Date as described in Section 4.2 occurs. If Landlord fails to deliver the Premises to Tenant with the Tenant Improvements Substantially Complete on or before the day that is forty-five (45) days after the Estimated Term Commencement Date (as the same shall be extended to the extent of any delay caused by Force Majeure or Tenant Delay), then the Base Rent shall be abated one (1) day for each day after the Estimated Term Commencement Date that Landlord fails to deliver the Premises to Tenant with the Tenant Improvements Substantially Complete. For purposes of the construction of the Tenant Improvements, Landlord agrees that Landlord may not claim as a Force Majeure the failure of Landlord’s contractor to Substantially Complete the Tenant Improvements by the Estimated Term Commencement Date solely on the basis that it is Landlord’s contractor, and not Landlord, directly performing the Tenant Improvements. The term “Substantially Complete” or “Substantial Completion” means, (x) with respect to the Tenant Improvements, that the Tenant Improvements are substantially complete in accordance with the Approved Plans (as defined in the Work Letter), except for minor punch list items, (y) with respect to the Base Building Improvements, that the Base Building Improvements are substantially complete as reasonably determined by Landlord’s architect, except for minor punch list items, and (z) Landlord has received a temporary or permanent certificate of occupancy (or its substantial equivalent) for the Premises; provided, that if Landlord receives a temporary certificate of occupancy (or its substantial equivalent), prior to the expiration of the same Landlord shall obtain a permanent certificate of occupancy (or its substantial equivalent). Notwithstanding anything in this Lease (including the Work Letter) to the contrary, Landlord’s obligation to timely achieve Substantial Completion shall be subject to extension on a day-for-day basis as a result of Force Majeure (as defined below) or a Tenant Delay
(as defined below). Landlord shall use reasonable efforts to complete all punch list items in a timely manner and with minimal interference with Tenant’s use of the Premises, provided, that Tenant shall not interfere with Landlord’s completion of the punch list work and, notwithstanding anything in this Lease to the contrary, shall provide access to Landlord to the Premises as and when requested by Landlord in order to perform said punch list work.
4.2. The “Term Commencement Date” shall be the day Landlord tenders possession of the Premises to Tenant with the Tenant Improvements Substantially Complete. If possession is delayed by (i) the failure of Tenant to comply with its obligations under this Lease and the Work Letter, or (ii) any action or omission of Tenant or Tenant’s agents, contractors, or representatives that results in a delay of the Term Commencement Date (each, a “Tenant Delay”), then Tenant shall commence paying Rent (as defined in Section 7.3) from and after the date that the Term Commencement Date would have occurred but for such Tenant Delay through the day immediately preceding the actual Term Commencement Date. Tenant shall execute and deliver to Landlord written acknowledgment of the actual Term Commencement Date and the Term Expiration Date within ten (10) days after Tenant takes occupancy of the Premises, in the form attached as Exhibit C hereto. Failure to execute and deliver such acknowledgment, however, shall not affect the Term Commencement Date or Landlord’s or Tenant’s liability hereunder. Failure by Tenant to obtain validation by any medical review board or other similar governmental licensing of the Premises required for the Permitted Use by Tenant shall not serve to extend the Term Commencement Date.
4.3. In the event that Landlord permits (in Landlord’s sole and absolute discretion) Tenant to enter upon the Premises prior to the Term Commencement Date for the purpose of installing improvements, equipment, cabling, furniture and/or the placement of personal property, provided that no such early access shall interfere with Landlord’s construction of the Tenant Improvements, Tenant shall furnish to Landlord evidence satisfactory to Landlord in advance that insurance coverages required of Tenant under the provisions of Article 23 are in effect, and such entry shall be subject to all the terms and conditions of this Lease other than the payment of Base Rent, the Property Management Fee or Tenant’s Adjusted Share of Operating Expenses (as defined below); and provided, further, that if the Term Commencement Date is delayed due to such early access, then the Term Commencement Date shall be the date that the Term Commencement Date would have occurred but for such delay. For the avoidance of doubt, Landlord may deny or withdraw any such permission if such early access is anticipated to or does interfere with the execution or completion of the Tenant Improvements.
4.4. Landlord shall cause the Tenant Improvements to be constructed in the Premises pursuant to the Work Letter at a cost to Landlord not to exceed (a) Four Million Three Hundred Eighty-Eight Thousand Six Hundred Fifty and 00/100 Dollars ($4,388,650.00) (based upon One Hundred Seventy-Five and 00/100 Dollars ($175.00) per square foot of Rentable Area (as defined below)) (the “Base TI Allowance”) plus (b) if properly requested by Tenant pursuant to this Section, Three Hundred Seventy-Six Thousand One Hundred Seventy and 00/100 Dollars ($376,170.00) (based upon Fifteen and 00/100 Dollars ($15.00) per square foot of Rentable Area) (the “Additional TI Allowance”). The Base TI Allowance, together with the Additional TI Allowance (if properly requested by Tenant pursuant to this Article), shall be referred to herein as the “TI Allowance.” The TI Allowance may be applied to the costs of (m) construction, (n) project management by Landlord (which fee shall equal three percent (3%) of the hard costs of the Tenant Improvements, including the Base TI Allowance and, if used by Tenant, the Additional TI Allowance), (o) commissioning of mechanical, electrical and plumbing systems by a licensed, qualified commissioning agent hired by Landlord, and review of such party’s commissioning report by a licensed, qualified commissioning agent hired by Tenant, (p) space planning, architect, engineering and other related services performed by third parties unaffiliated with Tenant, (q) building permits and other taxes, fees, charges and levies by Governmental Authorities (as defined below) for permits or for inspections of the Tenant Improvements, (r) costs and expenses for labor, material, equipment and fixtures, and (s) telephone and data cabling and installation. In no event shall more than fifteen percent (15%) of the TI Allowance be used for telephone and data cabling and installation and other so-called “soft” costs (excluding third party architectural, engineering or project oversight
fees). In no event shall the TI Allowance be used for (w) payments to Tenant or any affiliates of Tenant, (x) the purchase of any furniture, personal property or other non-building system equipment (excluding movable casework, which is Landlord’s property pursuant to Section 17.7 and shall be surrendered with the Premises at the expiration or earlier termination of the Term in the condition required in Section 26), (y) costs arising from any default by Tenant of its obligations under this Lease or (z) costs that are recoverable by Tenant from a third party (e.g., insurers, warrantors, or tortfeasors).
4.5. Tenant shall have until the date that is nine (9) months after the Term Commencement Date (the “TI Deadline”) to submit Fund Requests (as defined in the Work Letter) to Landlord for disbursement of the unused portion of the TI Allowance, after which date Landlord’s obligation to fund any such costs for which Tenant has not submitted a Fund Request to Landlord shall expire. The Base Rent amount shall be increased to include the amount of the Additional TI Allowance disbursed by Landlord in accordance with this Lease for each year of the Initial Term starting on the Rent Commencement Date by adding Zero and 18.2/100 Dollars ($0.182) per square foot of Rentable Area for each Dollar of the Additional TI Allowance disbursed by Landlord to the Base Rent amount, which such amount shall be prorated if the Additional TI Allowance that is disbursed by Landlord is not a whole dollar amount (i.e., such Additional TI Allowance disbursed by Landlord includes both dollars and cents). By way of example and not in limitation of any provisions hereof, in the event Tenant properly requests the Additional TI Allowance in the amount of $15.00 per square foot of Rentable Area, then Tenant’s Base Rent as of the Rent Commencement Date shall be increased to $68.73 per square feet of Rentable Area. The amount by which Base Rent shall be increased shall be determined (and Base Rent shall be increased accordingly) as of the date immediately following the scheduled expiration of the Free Rent Period and, if such determination does not reflect use by Tenant of all of the Additional TI Allowance, shall be determined again as of the TI Deadline, with Tenant paying (on the next succeeding day that Base Rent is due under this Lease (the “TI True-Up Date”)) any underpayment of the further adjusted Base Rent for the period beginning on the date immediately following the scheduled expiration of the Free Rent Period and ending on the TI True-Up Date.
4.6. Landlord shall not be obligated to expend any portion of the Additional TI Allowance until Landlord shall have received from Tenant a letter in the form attached as Exhibit D hereto executed by an authorized officer of Tenant. In no event shall any unused TI Allowance entitle Tenant to a credit against Rent payable under this Lease.
4.7. Notwithstanding anything to the contrary in this Lease, Landlord and Tenant agree that all Tenant Improvements and Alterations (as hereinafter defined) shall be programmed in accordance with the lab and office zones identified on Exhibit A-1 attached hereto.
5. Condition of Premises. Tenant acknowledges that neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the condition of the Premises, the Building or the Project, or with respect to the suitability of the Premises, the Building or the Project for the conduct of Tenant’s business. Tenant acknowledges that (a) it is fully familiar with the condition of the Premises and agrees to take the same in its condition “as is” as of the Term Commencement Date (subject to Landlord’s obligations to complete the punch list work), and (b) Landlord shall have no obligation to alter, repair or otherwise prepare the Premises for Tenant’s occupancy or to pay for or construct any improvements to the Premises, except with respect to the completion of the Base Building Improvements and the Tenant Improvements and with respect to payment of the TI Allowance and Landlord’s maintenance obligations under Section 18.1. Tenant’s taking of possession of the Premises shall, except as otherwise agreed to in writing by Landlord and Tenant, conclusively establish that the Premises, the Building and the Project were at such time in good, sanitary and satisfactory condition and repair. Notwithstanding the foregoing, Landlord represents to Tenant that, on the Term Commencement Date, (i) the base building systems serving the Premises (including the HVAC, electrical, life safety and plumbing systems) shall be in good working order, and (ii) the Tenant Improvements shall be free from defects in materials and workmanship not inherent in
the quality required or permitted (collectively, “Landlord’s Delivery Condition”). In the event that Landlord fails to satisfy Landlord’s Delivery Condition, Tenant’s sole and exclusive remedy for such failure shall be to deliver written notice to Landlord (a “Repair Notice”) on or before the date that is (i) six (6) months after the Term Commencement Date with respect to the heating, ventilating and air conditioning systems servicing the Premises, and (ii) sixty (60) days after the Term Commencement Date otherwise (the “Repair Notice Date”), detailing the nature of such failure. In the event that Landlord receives a Repair Notice on or before the Repair Notice Date, Landlord shall promptly make any repairs reasonably necessary to correct the failure described in the Repair Notice (but only to the extent that Landlord reasonably determines that the failure described in the Repair Notice constitutes and actual failure of Landlord’s Delivery Condition), at Landlord’s sole cost and expense. Any such failure of Landlord’s Delivery Condition shall not entitle Tenant to any monetary damages or delay the Term Commencement Date.
6. Rentable Area.
6.1. The term “Rentable Area” shall reflect such areas as reasonably calculated by Landlord’s architect, as the same may be reasonably adjusted from time to time by Landlord in consultation with Landlord’s architect to reflect changes to the Premises, the Building or the Project, as applicable. Notwithstanding the foregoing to the contrary, in no event shall the Rentable Area of the Premises, the Building or the Project be deemed to have increased unless due to a change in the outer dimensions of the exterior walls of the same.
6.2. The Rentable Area of the Building is generally determined by making separate calculations of Rentable Area applicable to each floor within the Building and totaling the Rentable Area of all floors within the Building. The Rentable Area of a floor is computed by measuring to the outside finished surface of the permanent outer Building walls. The full area calculated as previously set forth is included as Rentable Area, without deduction for columns and projections or vertical penetrations, including stairs, elevator shafts, flues, pipe shafts, vertical ducts and the like, as well as such items’ enclosing walls.
6.3. The term “Rentable Area,” when applied to the Premises, is that area equal to the usable area of the Premises, plus an equitable allocation of Rentable Area within the Building that is not then utilized or expected to be utilized as usable area, including that portion of the Building devoted to corridors, equipment rooms, restrooms, elevator lobby, atrium and mailroom.
7. Rent.
7.1. Tenant shall pay to Landlord as Base Rent for the Premises, commencing on the later of (a) May 1, 2020, and (b) one (1) calendar month after the Term Commencement Date if the Term Commencement Date occurs after March 31, 2020 (such later date, the “Rent Commencement Date”), the sums set forth in Section 2.3, subject to the rental adjustments provided in Article 8 hereof. Base Rent shall be paid in equal monthly installments as set forth in Section 2.3, subject to the rental adjustments provided in Article 8 hereof, each in advance on the first day of each and every calendar month during the Term.
7.2. In addition to Base Rent, Tenant shall pay to Landlord as additional rent (“Additional Rent”) at times hereinafter specified in this Lease (a) Tenant’s Adjusted Share (as defined below) of Operating Expenses (as defined below), (b) the Property Management Fee (as defined below), and (c) any other amounts that Tenant assumes or agrees to pay under the provisions of this Lease that are owed to Landlord, including any and all other sums that may become due by reason of any default of Tenant or failure on Tenant’s part to comply with the agreements, terms, covenants and conditions of this Lease to be performed by Tenant, after notice and the lapse of any applicable cure periods.
7.3. Base Rent and Additional Rent shall together be denominated “Rent.” Rent shall be paid to Landlord, without abatement, deduction or offset, in lawful money of the United States of America to the address set forth in Section 2.8 or to such other person or at such other place as Landlord may from time designate in writing. In the event the Term commences or ends on a day other than the first day of a calendar month, then the Rent for such fraction of a month shall be prorated for such period on the basis of the number of days in the month and shall be paid at the then-current rate for such fractional month.
7.4. Tenant’s obligation to pay Rent shall not be discharged or otherwise affected by (a) any Applicable Laws now or hereafter applicable to the Premises, (b) any other restriction on Tenant’s use, (c) except as expressly provided herein, any casualty or taking or (d) any other occurrence; and Tenant waives all rights now or hereafter existing to terminate or cancel this Lease or quit or surrender the Premises or any part thereof, or to assert any defense in the nature of constructive eviction to any action seeking to recover rent. Tenant’s obligation to pay Rent with respect to any period or obligations arising, existing or pertaining to the period prior to the date of the expiration or earlier termination of the Term or this Lease shall survive any such expiration or earlier termination; provided, however, that nothing in this sentence shall in any way affect Tenant’s obligations with respect to any other period.
8. Rent Adjustments; Free Rent Period.
8.1. Base Rent (including any increase to Base Rent arising from any disbursement of the Additional TI Allowance by Landlord in accordance with this Lease) shall be subject to an annual upward adjustment of three percent (3%) of the then-current Base Rent. The first such adjustment shall become effective commencing on the first (1st) annual anniversary of the Rent Commencement Date, and subsequent adjustments shall become effective on every successive annual anniversary for so long as this Lease continues in effect.
8.2. Notwithstanding anything to the contrary contained in this Lease, and so long as no Default (as defined below) by Tenant has occurred, Tenant shall not be required to pay Base Rent for the period commencing on the Term Commencement Date and expiring on the day immediately prior to the Rent Commencement Date (such period, the “Free Rent Period”). During the Free Rent Period, Tenant shall continue to be responsible for the payment of all of Tenant’s other Rent obligations under this Lease, including all Additional Rent such as Operating Expenses, the Property Management Fee, and costs of utilities for the Premises. Upon the occurrence of any Default, the Free Rent Period shall immediately expire, and Tenant shall no longer be entitled to any further abatement of Base Rent pursuant to this Section. In the event of any Default that results in termination of this Lease, then, as part of the recovery to which Landlord is entitled pursuant to this Lease, and in addition to any other rights or remedies to which Landlord may be entitled pursuant to this Lease (including Article 31), at law or in equity, Landlord shall be entitled to the immediate recovery, as of the day immediately prior to such termination of the Lease, of the unamortized amount of Base Rent that Tenant would have paid had the Free Rent Period not been in effect.
9. Operating Expenses.
9.1. As used herein, the term “Operating Expenses” shall include:
(a) Government impositions, including property tax costs consisting of real and personal property taxes (including amounts due under any improvement bond upon the Building or the Project (including the parcel or parcels of real property upon which the Building and areas serving the Building are located)) or assessments in lieu thereof imposed by any federal, state, regional, local or municipal governmental authority, agency or subdivision (each, a “Governmental Authority”); taxes on or measured by gross rentals received from the rental of space in the Project; taxes based on the square footage of the Premises, the Building or the Project, as well as any parking charges, utilities surcharges or any other costs levied, assessed or imposed by, or at the direction of, or arising from Applicable Laws or interpretations thereof, promulgated by any Governmental Authority in
connection with the use or occupancy of the Project or the parking facilities serving the Project; taxes on this transaction or any document to which Tenant is a party creating or transferring an interest in the Premises; any fee for a business license to operate an office building; and any expenses, including the reasonable cost of attorneys or experts, reasonably incurred by Landlord in seeking reduction by the taxing authority of the applicable taxes, less tax refunds obtained as a result of an application for review thereof; and
(b) All other costs of any kind paid or incurred by Landlord in connection with the operation or maintenance of the Building and the Project, which shall include Project office rent at fair market rental for a commercially reasonable amount of space for Project management personnel, to the extent an office used for Project operations is maintained at the Project, plus customary expenses for such office, and costs of repairs and replacements to improvements within the Project as appropriate to maintain the Project as required hereunder; costs of any shuttle or other transportation services provided for the Project; costs of utilities furnished to the Common Area; sewer fees; cable television; trash collection; cleaning, including windows; heating, ventilation and air-conditioning (“HVAC”); maintenance of landscaping and grounds; snow removal; maintenance of drives and parking facilities and areas; maintenance of the roof; security services and devices; building supplies; maintenance or replacement of equipment utilized for operation and maintenance of the Project; license, permit and inspection fees; sales, use and excise taxes on goods and services purchased by Landlord in connection with the operation, maintenance or repair of the Building or Project systems and equipment; telephone, postage, stationery supplies and other expenses incurred in connection with the operation, maintenance or repair of the Project; accounting, legal and other professional fees and expenses incurred in connection with the Project; costs of furniture, draperies, carpeting, landscaping supplies, snow removal and other customary and ordinary items of personal property provided by Landlord for use in Common Area; capital expenditures (i) for replacing obsolete equipment, (ii) for the primary purpose of reducing Operating Expenses or (iii) required by any Governmental Authority to comply with changes in Applicable Laws that take effect after the Execution Date (collectively, “Permitted Capital Expenditures”), in each case amortized over the useful life thereof, as reasonably determined by Landlord, in accordance with generally accepted accounting principles, but in no event longer than ten (10) years; costs of complying with Applicable Laws (except to the extent such costs are incurred to remedy non-compliance as of the Execution Date with Applicable Laws); costs to keep the Project in compliance with, or costs or fees otherwise required under or incurred pursuant to any CC&Rs (as defined below), including condominium fees; insurance premiums, including premiums for commercial general liability, property casualty, earthquake, terrorism and environmental coverages; portions of insured losses paid by Landlord as part of the deductible portion of a loss pursuant to the terms of insurance policies; service contracts; costs of services of independent contractors retained to do work of a nature referenced above; and costs of compensation (including employment taxes and fringe benefits) of all persons who perform regular and recurring duties connected with the day-to-day operation and maintenance of the Project, its equipment, the adjacent walks, landscaped areas, drives and parking areas, including janitors, floor waxers, window washers, watchmen, gardeners, sweepers, plow truck drivers, handymen, and engineering/maintenance/facilities personnel.
(c) Notwithstanding the foregoing, Operating Expenses shall not include any net income, franchise, capital stock, estate or inheritance taxes, or taxes that are the personal obligation of Tenant or of another tenant of the Project, penalties or interest incurred by reason of Landlord’s failure to timely pay any taxes or other impositions of a Governmental Authority; any leasing commissions; expenses that relate to preparation of rental space for a tenant; expenses of initial development and construction, including grading, paving, landscaping and decorating (as distinguished from maintenance, repair and replacement of the foregoing); legal expenses relating to other tenants; costs of repairs to the extent reimbursed by payment of insurance proceeds received by Landlord; principal, interest and other expenses for loans to Landlord or secured by a loan agreement, mortgage, deed of trust, security instrument or other loan document covering the Project or a portion thereof (collectively, “Loan Documents”) (provided that interest upon a government assessment or improvement bond payable in installments shall constitute an Operating Expense under Subsection 9.1(a)); depreciation claimed by Landlord for tax purposes (provided that
this exclusion of depreciation is not intended to delete from Operating Expenses actual costs of repairs and replacements and reasonable reserves in regard thereto that are provided for in Subsection 9.1(b)); taxes that are excluded from Operating Expenses by the last sentence of Subsection 9.1(a); costs or expenses incurred in connection with the financing or sale of the Project or any portion thereof (other than property taxes); costs expressly excluded from Operating Expenses elsewhere in this Lease or that are charged to or paid by Tenant under other provisions of this Lease; professional fees and disbursements and other costs and expenses related to the ownership (as opposed to the use, occupancy, operation, maintenance or repair) of the Project; cost and expenses of investigating, monitoring and remediating hazardous materials that existed on the Property prior to the Execution Date; rent under any ground lease; capital expenditures other than Permitted Capital Expenditures; reserves; expenses for any item or service not provided to Tenant but provided to certain other tenant(s) in the Project; expenses for any item or service which Tenant pays directly to a third party or separately pays to Landlord; management fees (other than the Property Management Fee); costs incurred due to the negligence or willful misconduct of Landlord or its agents and employees; penalties, fines and other costs incurred due to violation of Applicable Laws by Landlord and any interest or penalties attributable to late payment by Landlord of any Operating Expenses (but only provided Tenant is timely in the payment of Tenant’s Pro Rata Share of Operating Expenses); and any item that, if included in Operating Expenses, would involve a double collection for such item by Landlord. To the extent that Tenant uses more than Tenant’s Pro Rata Share of any item of Operating Expenses, Tenant shall pay Landlord for such excess in addition to Tenant’s obligation to pay Tenant’s Pro Rata Share of Operating Expenses (such excess, together with Tenant’s Pro Rata Share, “Tenant’s Adjusted Share”).
9.2. Tenant shall pay to Landlord on the first day of each calendar month of the Term, as Additional Rent, (a) the Property Management Fee (as defined below), and (c) Landlord’s estimate of Tenant’s Adjusted Share of Operating Expenses with respect to the Building and the Project, as applicable, for such month.
(w) The “Property Management Fee” shall equal three percent (3%) of Base Rent due from Tenant. Tenant shall pay the Property Management Fee in accordance with Section 9.2 with respect to the entire Term, including any Free Rent Period, any extensions of the Term, or any holdover periods, regardless of whether Tenant is obligated to pay Base Rent, Operating Expenses or any other Rent with respect to any such period or portion thereof. During any Free Rent Period (and any period of occupancy prior to the Term as further described in Section 9.5), the Property Management Fee shall be calculated as if Tenant were paying Base Rent in the full amount required pursuant to this Lease had the Free Rent Period not been in effect.
(x) Within ninety (90) days after the conclusion of each calendar year (or such longer period as may be reasonably required by Landlord), Landlord shall furnish to Tenant a statement showing in reasonable detail the actual Operating Expenses, Tenant’s Adjusted Share of Operating Expenses, and the cost of providing utilities to the Premises for the previous calendar year (“Landlord’s Statement”). Any additional sum due from Tenant to Landlord shall be due and payable within thirty (30) days after receipt of an invoice therefor. If the amounts paid by Tenant pursuant to this Section exceed Tenant’s Adjusted Share of Operating Expenses for the previous calendar year, then Landlord shall credit the difference against the Rent next due and owing from Tenant; provided that, if the Lease term has expired, Landlord shall accompany Landlord’s Statement with payment for the amount of such difference. Landlord’s annual statement shall be final and binding upon Tenant unless Tenant, within ninety (90) days after Tenant’s receipt thereof, shall contest any item therein by giving written notice to Landlord, specifying each item contested and the reasons therefor; provided that Tenant shall in all events pay the amount specified in Landlord’s annual statement, pending the results of the Independent Review and determination of the Accountant(s), as applicable and as each such term is defined below. If, during such 90-day period, Tenant reasonably and in good faith questions or contests the correctness of Landlord’s statement of Tenant’s Share of Operating Expenses, Landlord shall provide Tenant with reasonable access to Landlord’s books and records to the extent relevant to determination of Operating Expenses, and such information as Landlord reasonably determines to be responsive to Tenant’s written inquiries. In the event that, after Tenant’s review of such information, Landlord and Tenant
cannot agree upon the amount of Tenant’s Share of Operating Expenses, then Tenant shall have the right to have an independent public accounting firm hired by Tenant on an hourly basis and not on a contingent-fee basis (at Tenant’s sole cost and expense) and approved by Landlord (which approval Landlord shall not unreasonably withhold or delay) audit and review such of Landlord’s books and records for the year in question as directly relate to the determination of Operating Expenses for such year (the “Independent Review”). Landlord shall make such books and records available at the location where Landlord maintains them in the ordinary course of its business. Landlord need not provide copies of any books or records. Tenant shall commence the Independent Review within fifteen (15) days after the date Landlord has given Tenant access to Landlord’s books and records for the Independent Review. Tenant shall complete the Independent Review and notify Landlord in writing of Tenant’s specific objections to Landlord’s calculation of Operating Expenses (including Tenant’s accounting firm’s written statement of the basis, nature and amount of each proposed adjustment) no later than sixty (60) days after Landlord has first given Tenant access to Landlord’s books and records for the Independent Review. Landlord shall review the results of any such Independent Review. The parties shall endeavor to agree promptly and reasonably upon Operating Expenses taking into account the results of such Independent Review. If, as of sixty (60) days after Tenant has submitted the Independent Review to Landlord, the parties have not agreed on the appropriate adjustments to Operating Expenses, then the parties shall engage a mutually agreeable independent third party accountant with at least ten (10) years’ experience in commercial real estate accounting in the Watertown area (the “Accountant”). If the parties cannot agree on the Accountant, each shall within ten (10) days after such impasse appoint an Accountant (different from the accountant and accounting firm that conducted the Independent Review) and, within ten (10) days after the appointment of both such Accountants, those two Accountants shall select a third (which cannot be the accountant and accounting firm that conducted the Independent Review). If either party fails to timely appoint an Accountant, then the Accountant the other party appoints shall be the sole Accountant. Within ten (10) days after appointment of the Accountant(s), Landlord and Tenant shall each simultaneously give the Accountants (with a copy to the other party) its determination of Operating Expenses, with such supporting data or information as each submitting party determines appropriate. Within ten (10) days after such submissions, the Accountants shall by majority vote select either Landlord’s or Tenant’s determination of Operating Expenses. The Accountants may not select or designate any other determination of Operating Expenses. The determination of the Accountant(s) shall bind the parties. If the parties agree or the Accountant(s) determine that the Operating Expenses actually paid by Tenant for the calendar year in question exceeded Tenant’s obligations for such calendar year, then Landlord shall, at Tenant’s option, either (a) credit the excess to the next succeeding installments of estimated Additional Rent or (b) pay the excess to Tenant within thirty (30) days after delivery of such results, and if such excess is more than ten percent (10%) of Tenant’s obligations, then Landlord shall also reimburse Tenant for the costs of its Independent Review and its Accountants. If the parties agree or the Accountant(s) determine that Tenant’s payments of Operating Expenses for such calendar year were less than Tenant’s obligation for the calendar year, then Tenant shall pay the deficiency to Landlord within thirty (30) days after delivery of such results.
(y) Any amount due under this Section for any period that is less than a full month shall be prorated for such fractional month on the basis of the number of days in the month.
9.3. Landlord or an affiliate(s) of Landlord currently own and may acquire in the future other property(ies) in the vicinity of the Project (collectively, “Neighboring Properties”). In connection with Landlord performing services for the Project pursuant to this Lease, similar services may be performed by the same vendor(s) for Neighboring Properties, including without limitation, shuttle services. In such a case, Landlord shall reasonably allocate to each Building and the Project the costs for such services based upon the ratio that the square footage of the Building or the Project (as applicable) bears to the total square footage of all of the Neighboring Properties or buildings within the Neighboring Properties for which the services are performed, unless the scope of the services performed for any building or property (including the Building and the Project) is disproportionately more or less than for others, in which case Landlord shall equitably allocate the costs based on the scope of the services being performed for each building or property (including the Building and the Project).
9.4. Tenant shall not be responsible for Operating Expenses with respect to any time period prior to the Term Commencement Date; provided, however, that if Landlord shall permit Tenant possession of the Premises prior to the Term Commencement Date for the conduct of Tenant’s business (as opposed to installation of improvements, equipment, cabling, furniture and personal property pursuant to Section 4.3), Tenant shall be responsible for Operating Expenses from such earlier date of possession (the Term Commencement Date or such earlier date, as applicable, the “Expense Trigger Date”); and provided, further, that Landlord may annualize certain Operating Expenses incurred prior to the Expense Trigger Date over the course of the budgeted year during which the Expense Trigger Date occurs, and Tenant shall be responsible for the annualized portion of such Operating Expenses corresponding to the number of days during such year, commencing with the Expense Trigger Date, for which Tenant is otherwise liable for Operating Expenses pursuant to this Lease. Tenant’s responsibility for Tenant’s Adjusted Share of Operating Expenses shall continue to the latest of (a) the date of termination of the Lease, (b) the date Tenant has fully vacated the Premises and (c) if termination of the Lease is due to a default by Tenant, the date through which Tenant’s obligations to pay Rent hereunder shall cease.
9.5. Operating Expenses for the calendar year in which Tenant’s obligation to share therein commences and for the calendar year in which such obligation ceases shall be prorated on a basis reasonably determined by Landlord. Expenses such as taxes, assessments and insurance premiums that are incurred for an extended time period shall be prorated based upon the time periods to which they apply so that the amounts attributed to the Premises relate in a reasonable manner to the time period wherein Tenant has an obligation to share in Operating Expenses.
9.6. Within thirty (30) days after the end of each calendar month, Tenant shall submit to Landlord an invoice, or, in the event an invoice is not available, an itemized list, of all costs and expenses that (a) Tenant has incurred (either internally or by employing third parties) during the prior month and (b) for which Tenant reasonably believes it is entitled to reimbursements from Landlord pursuant to the terms of this Lease or that Tenant reasonably believes is the responsibility of Landlord pursuant to this Lease or the Work Letter.
9.7. In the event that the Building or Project is less than fully occupied during a calendar year, Tenant acknowledges that Landlord may extrapolate Operating Expenses that vary depending on the occupancy of the Building or Project, as applicable, to equal Landlord’s reasonable estimate of what such Operating Expenses would have been had the Building or Project, as applicable, been ninety-five percent (95%) occupied during such calendar year; provided, however, that Landlord shall not recover more than one hundred percent (100%) of Operating Expenses.
10. Taxes on Tenant’s Property.
10.1. Tenant shall be solely responsible for the payment of any and all taxes levied upon (a) personal property and trade fixtures located at the Premises and (b) any gross or net receipts of or sales by Tenant, and shall pay the same at least twenty (20) days prior to delinquency.
10.2. If any such taxes on Tenant’s personal property or trade fixtures are levied against Landlord or Landlord’s property or, if the assessed valuation of the Building, the Property or the Project is increased by inclusion therein of a value attributable to Tenant’s personal property or trade fixtures, and if Landlord, after written notice to Tenant, pays the taxes based upon any such increase in the assessed value of the Building, the Property or the Project, then Tenant shall, within twenty (20) days after demand, repay to Landlord the taxes so paid by Landlord.
10.3 If any improvements in or alterations to the Premises, whether owned by Landlord or Tenant and whether or not affixed to the real property so as to become a part thereof, are assessed for real property tax purposes at a valuation higher than the valuation at which improvements conforming to Landlord’s building standards (the “Building Standard”) in other spaces in the Building are assessed, then the real property taxes and assessments
levied against Landlord or the Building, the Property or the Project by reason of such excess assessed valuation shall be deemed to be taxes levied against personal property of Tenant and shall be governed by the provisions of Section 10.2. Any such excess assessed valuation due to improvements in or alterations to space in the Project leased by other tenants at the Project shall not be included in Operating Expenses. If the records of the applicable governmental assessor’s office are available and sufficiently detailed to serve as a basis for determining whether such Tenant improvements or alterations are assessed at a higher valuation than the Building Standard, then such records shall be binding on both Landlord and Tenant.
11. Security Deposit.
11.1. Tenant shall deposit with Landlord on or before the Execution Date the sum set forth in Section 2.6 (the “Security Deposit”), which sum shall be held by Landlord as security for the faithful performance by Tenant of all of the terms, covenants and conditions of this Lease to be kept and performed by Tenant during the period commencing on the Execution Date and ending upon the expiration or termination of Tenant’s obligations under this Lease. If Tenant Defaults (as defined below) with respect to any provision of this Lease, including any provision relating to the payment of Rent, then Landlord may (but shall not be required to) use, apply or retain all or any part of the Security Deposit for the payment of any Rent or any other sum in default, or to compensate Landlord for any other loss or damage that Landlord may suffer by reason of Tenant’s default. If any portion of the Security Deposit is so used or applied, then Tenant shall, within ten (10) days following demand therefor, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its original amount, and Tenant’s failure to do so shall be a material breach of this Lease. The provisions of this Article shall survive the expiration or earlier termination of this Lease.
11.2. In the event of bankruptcy or other debtor-creditor proceedings against Tenant, the Security Deposit shall be deemed to be applied first to the payment of Rent and other charges due Landlord for all periods prior to the filing of such proceedings.
11.3. Landlord may deliver to any purchaser of Landlord’s interest in the Premises the funds deposited hereunder by Tenant, and thereupon Landlord shall be discharged from any further liability with respect to such deposit. This provision shall also apply to any subsequent transfers.
11.4. If Tenant shall fully and faithfully perform every provision of this Lease to be performed by it, then the Security Deposit, or any balance thereof, shall be returned to Tenant (or, at Landlord’s option, to the last assignee of Tenant’s interest hereunder) within thirty (30) days after the expiration or earlier termination of this Lease.
11.5. If the Security Deposit shall be in cash, Landlord shall hold the Security Deposit in an account at a banking organization selected by Landlord; provided, however, that Landlord shall not be required to maintain a separate account for the Security Deposit, but may intermingle it with other funds of Landlord. Landlord shall be entitled to all interest and/or dividends, if any, accruing on the Security Deposit. Landlord shall not be required to credit Tenant with any interest for any period during which Landlord does not receive interest on the Security Deposit.
11.6. The Security Deposit may be in the form of cash, a letter of credit or any other security instrument acceptable to Landlord in its sole discretion. Tenant may at any time, except when Tenant is in Default (as defined below), deliver a letter of credit (the “L/C Security”) as the entire Security Deposit, as follows:
(a) If Tenant elects to deliver L/C Security, then Tenant shall provide Landlord, and maintain in full force and effect throughout the Term and until the date that is ninety (90) days after the then-current Term Expiration Date, a letter of credit substantially in the form of Exhibit E issued by an issuer reasonably satisfactory to Landlord (it being agreed that Silicon Valley Bank, N.A. is satisfactory), in the amount of the Security Deposit, with an
initial term of at least one year. Landlord may require the L/C Security to be re-issued by a different issuer at any time during the Term if Landlord reasonably believes that the issuing bank of the L/C Security is or may soon become insolvent; provided, however, Landlord shall return the existing L/C Security to the existing issuer immediately upon receipt of the substitute L/C Security. If any issuer of the L/C Security shall become insolvent or placed into FDIC receivership, then Tenant shall immediately deliver to Landlord (without the requirement of notice from Landlord) substitute L/C Security issued by an issuer reasonably satisfactory to Landlord, and otherwise conforming to the requirements set forth in this Article. As used herein with respect to the issuer of the L/C Security, “insolvent” shall mean the determination of insolvency as made by such issuer’s primary bank regulator (i.e., the state bank supervisor for state chartered banks; the OCC or OTS, respectively, for federally chartered banks or thrifts; or the Federal Reserve for its member banks). If, at the Term Expiration Date, any Rent remains uncalculated or unpaid, then (i) Landlord shall with reasonable diligence complete any necessary calculations, (ii) Tenant shall extend the expiry date of such L/C Security from time to time as Landlord reasonably requires and (iii) in such extended period, Landlord shall not unreasonably refuse to consent to an appropriate reduction of the L/C Security. Tenant shall reimburse Landlord’s legal costs (as estimated by Landlord’s counsel) in handling Landlord’s acceptance of L/C Security or its replacement or extension.
(b) If Tenant delivers to Landlord satisfactory L/C Security in place of the entire Security Deposit, Landlord shall remit to Tenant any cash Security Deposit Landlord previously held.
(c) Landlord may draw upon the L/C Security, and hold and apply the proceeds in the same manner and for the same purposes as the Security Deposit, if (i) an uncured Default (as defined below) exists, (ii) as of the date that is forty-five (45) days before any L/C Security expires (even if such scheduled expiry date is after the Term Expiration Date) Tenant has not delivered to Landlord an amendment or replacement for such L/C Security, reasonably satisfactory to Landlord, extending the expiry date to the earlier of (1) sixty (60) days after the then-current Term Expiration Date or (2) the date that is one year after the then-current expiry date of the L/C Security, (iii) the L/C Security provides for automatic renewals, Landlord asks the issuer to confirm the current L/C Security expiry date, and the issuer fails to do so within ten (10) business days, (iv) Tenant fails to pay (when and as Landlord reasonably requires) any bank charges for Landlord’s transfer of the L/C Security or (v) the issuer of the L/C Security ceases, or announces that it will cease, to maintain an office in the city where Landlord may present drafts under the L/C Security (and fails to permit drawing upon the L/C Security by overnight courier or facsimile). This Section does not limit any other provisions of this Lease allowing Landlord to draw the L/C Security under specified circumstances.
(d) Tenant shall not seek to enjoin, prevent, or otherwise interfere with Landlord’s draw under L/C Security, even if it violates this Lease. Tenant acknowledges that the only effect of a wrongful draw would be to substitute a cash Security Deposit for L/C Security, causing Tenant no legally recognizable damage. Landlord shall hold the proceeds of any draw in the same manner and for the same purposes as a cash Security Deposit. In the event of a wrongful draw, the parties shall cooperate to allow Tenant to post replacement L/C Security simultaneously with the return to Tenant of the wrongfully drawn sums, and Landlord shall upon request confirm in writing to the issuer of the L/C Security that Landlord’s draw was erroneous.
(e) If Landlord transfers its interest in the Premises, then Tenant shall at Tenant’s expense, within five (5) business days after receiving a request from Landlord, deliver (and, if the issuer requires, Landlord shall consent to) an amendment to the L/C Security naming Landlord’s grantee as substitute beneficiary. If the required Security Deposit changes while L/C Security is in force, then Tenant shall deliver (and, if the issuer requires, Landlord shall consent to) a corresponding amendment to the L/C Security.
11.7. If as of the third (3rd) anniversary of the Rent Commencement Date, Tenant has not been in Default under this Lease (the “SD Reduction Obligation”), then Tenant, at any time after the third (3rd) anniversary of the
Rent Commencement Date, but no later than forty-five (45) days after the third (3rd) anniversary of the Rent Commencement Date, may notify Landlord in writing that it wishes to decrease the Security Deposit to an amount equal to One Million Ninety Thousand Six Hundred Seventy-Two and 00/100 Dollars ($1,090,672.00) (the “Reduced Security Deposit”). Within ten (10) Business Days following Landlord’s receipt of such notice, Landlord shall (y) confirm in writing that the SD Reduction Obligation has been satisfied and that the Security Deposit shall be deemed to equal the Reduced Security Deposit, or (z) notify Tenant that the SD Reduction Obligation has not been satisfied and that the Security Deposit shall not be decreased. Upon Landlord’s confirmation that the SD Reduction Obligation has been satisfied, (i) if the Security Deposit is in the form of cash, Landlord shall return to Tenant the excess amount within ten (10) Business Days following such confirmation, or (ii) if the Security Deposit is in the form of the L/C Security, the Tenant may provide to Landlord, and Landlord shall accept, a replacement L/C Security in the amount of the Reduced Security Deposit in the form required by Section 11.6 of this Lease.
12. Use.
12.1. Tenant shall use the Premises for the Permitted Use, and shall not use the Premises, or permit or suffer the Premises to be used, for any other purpose without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion. Tenant shall be prohibited from using the Premises or any portion of the Property for the sale or production of marijuana.
12.2. Tenant shall not use or occupy the Premises in violation of Applicable Laws; zoning ordinances; or the certificate of occupancy (or its substantial equivalent) issued for the Building or the Project, and shall, upon five (5) days’ written notice from Landlord, discontinue any use of the Premises that is declared or claimed by any Governmental Authority having jurisdiction to be a violation of any of the above, or that in Landlord’s reasonable opinion violates any of the above. Tenant shall comply with any direction of any Governmental Authority having jurisdiction that shall, by reason of the nature of Tenant’s use or occupancy of the Premises, impose any duty upon Tenant or Landlord with respect to the Premises or with respect to the use or occupation thereof, and shall indemnify, defend (at the option of and with counsel reasonably acceptable to the indemnified party(ies)), save, reimburse and hold harmless (collectively, “Indemnify,” “Indemnity” or “Indemnification,” as the case may require) Landlord and its affiliates, employees, agents and contractors; and any lender, mortgagee, ground lessor or beneficiary (each, a “Lender” and, collectively with Landlord and its affiliates, employees, agents and contractors, the “Landlord Indemnitees”) harmless from and against any and all demands, claims, liabilities, losses, costs, expenses, actions, causes of action, damages, suits or judgments, and all reasonable expenses (including reasonable attorneys’ fees, charges and disbursements, regardless of whether the applicable demand, claim, action, cause of action or suit is voluntarily withdrawn or dismissed) incurred in investigating or resisting the same (collectively, “Claims”) of any kind or nature that arise before, during or after the Term as a result of Tenant’s breach of this Section.
12.3. Tenant shall not do or permit to be done anything that will invalidate or increase the cost of any fire, environmental, extended coverage or any other insurance policy covering the Building or the Project, and shall comply with all rules, orders, regulations and requirements of the insurers of the Building and the Project, and Tenant shall promptly, upon demand, reimburse Landlord for any additional premium charged for such policy by reason of Tenant’s failure to comply with the provisions of this Article.
12.4. Tenant shall keep all doors opening onto public corridors closed, except when in use for ingress and egress.
12.5. No additional locks or bolts of any kind shall be placed upon any of the doors or windows by Tenant, nor shall any changes be made to existing locks or the mechanisms thereof without Landlord’s prior written consent. Tenant shall, upon termination of this Lease, return to Landlord all keys to offices and restrooms either furnished to or otherwise procured by Tenant. In the event any key so furnished to Tenant is lost, Tenant shall pay to Landlord
the cost of replacing the same or of changing the lock or locks opened by such lost key if Landlord shall deem it necessary to make such change.
12.6. No awnings or other projections shall be attached to any outside wall of the Building. No curtains, blinds, shades or screens shall be attached to or hung in, or used in connection with, any window or door of the Premises other than Landlord’s standard window coverings. Neither the interior nor exterior of any windows shall be coated or otherwise sunscreened without Landlord’s prior written consent, nor shall any bottles, parcels or other articles be placed on the windowsills or items attached to windows that are visible from outside the Premises. No equipment, furniture or other items of personal property shall be placed on any exterior balcony without Landlord’s prior written consent.
12.7. No sign, advertisement or notice (“Signage”) shall be exhibited, painted or affixed by Tenant on any part of the Premises visible from outside the Premises or on any part of the Building without Landlord’s prior written consent. Signage shall conform to Landlord’s design criteria. For any Signage, Tenant shall, at Tenant’s own cost and expense, (a) acquire all permits for such Signage in compliance with Applicable Laws and (b) design, fabricate, install and maintain such Signage in a first-class condition. Tenant shall be responsible for reimbursing Landlord for costs incurred by Landlord in removing any of Tenant’s Signage and restoring any damage to the Premises or the Building upon the expiration or earlier termination of the Lease. Interior signs on entry doors to the Premises and the directory tablet shall be inscribed, painted or affixed for Tenant by Landlord at Landlord’s sole cost and expense, and shall be of a size, color and type and be located in a place acceptable to Landlord. The directory tablet shall be provided exclusively for the display of the name and location of tenants only. Tenant shall not place anything on the exterior of the corridor walls or corridor doors other than Landlord’s standard lettering. At Landlord’s option, Landlord may install any Tenant Signage, and Tenant shall pay all costs associated with such installation within thirty (30) days after demand therefor. Notwithstanding anything herein to the contrary, all Tenant Signage, other than directory or monument signage, whether installed by Landlord or Tenant, shall incorporate, at Tenant’s election, Tenant’s corporate logo, graphics and colors.
12.8. Tenant may only place equipment within the Premises with floor loading consistent with the Building’s structural design unless Tenant obtains Landlord’s prior written approval. Tenant may place such equipment only in a location designed to carry the weight of such equipment.
12.9. Tenant shall cause any equipment or machinery to be installed in the Premises so as to reasonably prevent sounds or vibrations therefrom from extending into the Common Area or other offices in the Project.
12.10. Tenant shall not (a) do or permit anything to be done in or about the Premises that shall in any way obstruct or interfere with the rights of other tenants or occupants of the Project, or injure or annoy them, (b) use or allow the Premises to be used for immoral, unlawful or objectionable purposes, (c) cause, maintain or permit any nuisance or waste in, on or about the Project or (d) take any other action that would in Landlord’s reasonable determination in any manner adversely affect other tenants’ quiet use and enjoyment of their space or adversely impact their ability to conduct business in a professional and suitable work environment. Notwithstanding any other provision herein to the contrary, Tenant shall be responsible for all liabilities, costs and expenses arising from or in connection with the compliance of the Premises with the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and any state and local accessibility laws, codes, ordinances and rules (collectively, and together with regulations promulgated pursuant thereto, the “ADA”), and Tenant shall Indemnify the Landlord Indemnitees from and against any Claims arising from any such failure of the Premises to comply with the ADA. Notwithstanding the foregoing, and without limiting Tenant’s responsibilities under this Section, at the time of Landlord’s delivery of the Premises, the Common Area shall be ADA compliant. This Section (as well as any other provisions of this Lease dealing with Indemnification of the Landlord Indemnitees by Tenant) shall be deemed to be modified in each case by the insertion in the appropriate place of the following: “except as otherwise provided in Mass. G.L.
Ter. Ed., C. 186, Section 15.” For the avoidance of doubt, “Lenders” shall also include historic tax credit investors and new market tax credit investors. The provisions of this Section shall survive the expiration or earlier termination of this Lease.
12.11. Tenant shall establish and maintain a chemical safety program administered by a licensed, qualified individual in accordance with the requirements of the Massachusetts Water Resources Authority (“MWRA”) and any other applicable Governmental Authority. Tenant shall be solely responsible for all costs incurred in connection with such chemical safety program, and Tenant shall provide Landlord with such documentation as Landlord may reasonably require evidencing Tenant’s compliance with the requirements of (a) the MWRA and any other applicable Governmental Authority with respect to such chemical safety program and (b) this Section. Notwithstanding the foregoing, Landlord shall obtain and maintain during the Term (m) any permit required by the MWRA (“MWRA Permit”) and (n) a wastewater treatment operator license from the Commonwealth of Massachusetts with respect to Tenant’s use of the Acid Neutralization Tank (as defined below) in the Building. Tenant shall not introduce anything into the Acid Neutralization Tank (x) in violation of the terms of the MWRA Permit, (y) in violation of Applicable Laws or (z) that would interfere with the proper functioning of the Acid Neutralization Tank. Tenant agrees to reasonably cooperate with Landlord in order to obtain the MWRA Permit and the wastewater treatment operator license. Tenant shall reimburse Landlord within ten (10) business days after demand for any costs incurred by Landlord pursuant to this Section.
13. Rules and Regulations, CC&Rs, Parking Facilities and Common Area.
13.1. Tenant shall have the non-exclusive right, in common with others, to use the Common Area in conjunction with Tenant’s use of the Premises for the Permitted Use, and such use of the Common Area and Tenant’s use of the Premises shall be subject to the rules and regulations adopted by Landlord and attached hereto as Exhibit F, together with such other reasonable and nondiscriminatory rules and regulations as are hereafter promulgated by Landlord in its sole and absolute discretion (the “Rules and Regulations”). Tenant shall and shall ensure that its contractors, subcontractors, employees, subtenants and invitees faithfully observe and comply with the Rules and Regulations. Landlord shall not be responsible to Tenant for the violation or non-performance by any other tenant or any agent, employee or invitee thereof of any of the Rules and Regulations.
13.2. This Lease is subject to any recorded covenants, conditions or restrictions on the Project or Property, including, without limitation, a Declaration of Use Restrictions and Affirmative Covenants dated as June 24, 2014 recorded with the Middlesex South District Registry of Deeds Registry in Book 63800, Page 255, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “CC&Rs”) provided that any such amendments, restatements, supplements or modifications do not materially modify Tenant’s rights or obligations hereunder. Tenant shall, at its sole cost and expense, comply with the CC&Rs.
13.3. Notwithstanding anything in this Lease to the contrary, Tenant may not install any security systems (including cameras) outside the Premises or that record sounds or images outside the Premises without Landlord’s prior written consent, which Landlord may withhold in its sole and absolute discretion.
13.4. Tenant shall have a non-exclusive, irrevocable license to use sixty-seven (67) parking spaces at the parking facilities, which consist of a structured parking garage and surface lot adjacent to the Building, serving the Building in common on an unreserved basis with other tenants of the Building during the Term (i) at no additional cost during the initial Term; and (ii) upon the commencement of an Option term, at a cost equal to fair market rent, as determined by Landlord from time to time, per parking space per month, which Tenant shall pay simultaneously with payments of Base Rent as Additional Rent. Landlord reserves the right to adopt protocols concerning the use of the parking facilities, such as the use of passes or stickers issued by Landlord, with which Tenant and its contractors, subcontractors, employees, subtenants and invitees shall faithfully observe and comply.
13.5. Tenant agrees not to unreasonably overburden the parking facilities and agrees to cooperate with Landlord and other tenants in the use of the parking facilities. Landlord reserves the right to determine that parking facilities are becoming overcrowded and to limit Tenant’s use thereof. Upon such determination, Landlord may reasonably allocate parking spaces among Tenant and other tenants of the Building or the Project. Nothing in this Section, however, is intended to create an affirmative duty on Landlord’s part to monitor parking.
13.6. Subject to the terms of this Lease including the Rules and Regulations and the rights of other tenants of the Building, Tenant shall have the non-exclusive right to access the freight loading dock, at no additional cost.
13.7. This Lease is subject to that certain Activity and Use Limitation a notice of which is recorded with the Middlesex South District Registry of Deeds in Book 60629, Page 36.
14. Project Control by Landlord.
14.1. Landlord reserves full control over the Building and the Project to the extent not inconsistent with Tenant’s enjoyment of the Premises as provided by this Lease. This reservation includes Landlord’s right to subdivide the Project; convert the Building to condominium units; change the size of the Project by selling all or a portion of the Project or adding real property and any improvements thereon to the Project; grant easements and licenses to third parties; maintain or establish ownership of the Building separate from fee title to the Property; make additions to or reconstruct portions of the Building and the Project; install, use, maintain, repair, replace and relocate for service to the Premises and other parts of the Building or the Project pipes, ducts, conduits, wires and appurtenant fixtures, wherever located in the Premises, the Building or elsewhere at the Project; and alter or relocate any other Common Area or facility, including private drives, lobbies, entrances and landscaping; provided, however, that such rights shall be exercised in a way that does not materially adversely affect Tenant’s beneficial use and occupancy of the Premises, including the Permitted Use and Tenant’s access to the Premises. Tenant acknowledges that Landlord specifically reserves the right to allow the exclusive use of corridors and restroom facilities located on specific floors to one or more tenants occupying such floors; provided, however, that Tenant shall not be deprived of the use of the corridors reasonably required to serve the Premises or of restroom facilities serving the floor upon which the Premises are located.
14.2. Possession of areas of the Premises necessary for utilities, services, safety and operation of the Building is reserved to Landlord, provided, however, that Landlord’s exercise of its rights under this Section shall not reduce the usable area of the Premises or materially adversely interfere with the Permitted Use of the Premises.
14.3. Tenant shall, at Landlord’s request, promptly execute such further documents as may be reasonably appropriate to assist Landlord in the performance of its obligations hereunder; provided that Tenant need not execute any document that creates additional liability for Tenant or that deprives Tenant of the quiet enjoyment and use of the Premises as provided for in this Lease.
14.4. Landlord may, at any and all reasonable times during non-business hours (or during business hours, if Landlord so requests), and upon twenty-four (24) hours’ prior notice (which may be oral or by email to the office manager or other Tenant-designated individual at the Premises; but provided that no time restrictions shall apply or advance notice be required if an emergency necessitates immediate entry), enter the Premises to (u) inspect the same and to determine whether Tenant is in compliance with its obligations hereunder, (v) supply any service Landlord is required to provide hereunder, (w) alter, improve or repair any portion of the Building other than the Premises for which access to the Premises is reasonably necessary, (x) post notices of nonresponsibility, (y) access the telephone equipment, electrical substation and fire risers and (z) show the Premises to prospective tenants during the final year of the Term and current and prospective purchasers and lenders at any time. In connection with any such alteration, improvement or repair as described in Subsection 14.4(w), Landlord may erect in the Premises or elsewhere in the Project scaffolding and other structures reasonably required for the alteration,
improvement or repair work to be performed. In no event shall Tenant’s Rent abate as a result of Landlord’s activities pursuant to this Section; provided, however, that all such activities shall be conducted in such a manner so as to cause as little interference to Tenant as is reasonably possible. Landlord shall at all times retain a key with which to unlock all of the doors in the Premises. If an emergency necessitates immediate access to the Premises, Landlord may use whatever force is necessary to enter the Premises, and any such entry to the Premises shall not constitute a forcible or unlawful entry to the Premises, a detainer of the Premises, or an eviction of Tenant from the Premises or any portion thereof.
15. Quiet Enjoyment. Landlord covenants that Tenant, upon paying the Rent and performing its obligations contained in this Lease, may peacefully and quietly have, hold and enjoy the Premises, free from any claim by Landlord or persons claiming under Landlord, but subject to all of the terms and provisions hereof, provisions of Applicable Laws and rights of record to which this Lease is or may become subordinate. This covenant is in lieu of any other quiet enjoyment covenant, either express or implied.
16. Utilities and Services.
16.1. Tenant shall pay for all water (including the cost to service, repair and replace reverse osmosis, de-ionized and other treated water), gas, heat, light, power, telephone, internet service, cable television, other telecommunications and other utilities supplied to the Premises, together with any fees, surcharges and taxes thereon. If any such utility is not separately metered to Tenant, Tenant shall pay Tenant’s Adjusted Share of all charges of such utility jointly metered with other premises as Additional Rent or, in the alternative, Landlord may, at its option, monitor the usage of such utilities by Tenant and charge Tenant with the cost of purchasing, installing and monitoring such metering equipment, which cost shall be paid by Tenant as Additional Rent. Tenant shall maintain temperature and humidity in the Premises in accordance with ASHRAE standards at all times.
16.2. Landlord may base its bills for utilities on reasonable estimates; provided that Landlord adjusts such billings as part of the next Landlord’s Statement (or more frequently, as determined by Landlord) to reflect the actual cost of providing utilities to the Premises. To the extent that Tenant uses more than Tenant’s Pro Rata Share of any utilities, then Tenant shall pay Landlord for Tenant’s Adjusted Share of such utilities to reflect such excess. In the event that the Building or Project is less than fully occupied during a calendar year, Tenant acknowledges that Landlord may extrapolate utility usage that varies depending on the occupancy of the Building or Project (as applicable) to equal Landlord’s reasonable estimate of what such utility usage would have been had the Building or Project, as applicable, been ninety-five percent (95%) occupied during such calendar year; provided, however, that Landlord shall not recover more than one hundred percent (100%) of the cost of such utilities. Tenant shall not be liable for the cost of utilities supplied to the Premises attributable to the time period prior to the Term Commencement Date; provided, however, that, if Landlord shall permit Tenant possession of the Premises prior to the Term Commencement Date and Tenant uses the Premises for any purpose other than installation of improvements, equipment, cabling, and furniture and placement of personal property as set forth in Section 4.3 (including to construct the Tenant Improvements), then Tenant shall be responsible for the cost of utilities supplied to the Premises from such earlier date of possession.
16.3. Landlord shall not be liable for, nor shall any eviction of Tenant result from, the failure to furnish any utility or service, whether or not such failure is caused by accidents; breakage; casualties (to the extent not caused by the party claiming Force Majeure); Severe Weather Conditions (as defined below); physical natural disasters (but excluding weather conditions that are not Severe Weather Conditions); strikes, lockouts or other labor disturbances or labor disputes (other than labor disturbances and labor disputes resulting solely from the acts or omissions of the party claiming Force Majeure); acts of terrorism; riots or civil disturbances; wars or insurrections; shortages of materials (which shortages are not unique to the party claiming Force Majeure); government regulations, moratoria or other governmental actions, inactions or delays; failures to grant consent or delays in
granting consent by any Lender whose consent is required under any applicable Loan Document; failures by third parties to deliver gas, oil or another suitable fuel supply, or inability of the party claiming Force Majeure, by exercise of reasonable diligence, to obtain gas, oil or another suitable fuel; or other causes beyond the reasonable control of the party claiming that Force Majeure has occurred (collectively, “Force Majeure”); or, to the extent permitted by Applicable Laws, Landlord’s negligence. In the event of such failure, Tenant shall not be entitled to termination of this Lease or any abatement or reduction of Rent, nor shall Tenant be relieved from the operation of any covenant or agreement of this Lease. “Severe Weather Conditions” means weather conditions that are materially worse than those that reasonably would be anticipated for the Property at the applicable time based on historic meteorological records. Notwithstanding anything to the contrary in this Lease, if, for more than seven (7) consecutive days following written notice to Landlord and as a direct result of Landlord’s gross negligence or willful misconduct (and except to the extent that such failure arises from any other factor, including any action or inaction of a Tenant Party (as defined below)), the provision of HVAC or other utilities to all or a material portion of the Premises that Landlord must provide pursuant to this Lease is interrupted (a “Material Services Failure”), then Base Rent and Tenant’s Adjusted Share of Operating Expenses (or, to the extent that less than all of the Premises are affected, a proportionate amount (based on the Rentable Area of the Premises that is rendered unusable) of Base Rent and Tenant’s Adjusted Share of Operating Expenses) shall thereafter be abated until the Premises are again usable by Tenant for the Permitted Use; provided, however, that, if Landlord is diligently pursuing the restoration of such HVAC and other utilities and Landlord provides substitute HVAC and other utilities reasonably suitable for Tenant’s continued use and occupancy of the Premises for the Permitted Use (e.g., supplying potable water or portable air conditioning equipment), then neither Base Rent nor Tenant’s Adjusted Share of Operating Expenses shall be abated. During any Material Services Failure, Tenant will cooperate with Landlord to arrange for the provision of any interrupted utility services on an interim basis via temporary measures until final corrective measures can be accomplished, and Tenant will permit Landlord the necessary access to the Premises to remedy such Material Service Failure. In the event of any interruption of HVAC or other utilities that Landlord must provide pursuant to this Lease, regardless of the cause, Landlord shall diligently pursue the restoration of such HVAC and other utilities. Notwithstanding anything in this Lease to the contrary, but subject to Article 24 (which shall govern in the event of a casualty), the provisions of this Section shall be Tenant’s sole recourse and remedy in the event of an interruption of HVAC or other utilities to the Premises, including related to Section 16.8.
16.4. Tenant shall pay for, prior to delinquency of payment therefor, any utilities and services that may be furnished to the Premises during or, if Tenant occupies the Premises after the expiration or earlier termination of the Term, after the Term, beyond those utilities provided by Landlord, including telephone, internet service, cable television and other telecommunications, together with any fees, surcharges and taxes thereon. Upon Landlord’s demand, utilities and services provided to the Premises that are separately metered shall be paid by Tenant directly to the supplier of such utilities or services.
16.5. Tenant shall not, without Landlord’s prior written consent, use any device in the Premises (including data processing machines) that will in any way (a) increase the amount of ventilation, air exchange, gas, steam, electricity or water required or consumed in the Premises based upon Tenant’s Pro Rata Share of the Building or Project (as applicable) beyond the existing capacity of the Building or the Project usually furnished or supplied for the Permitted Use or (b) exceed Tenant’s Pro Rata Share of the Building’s or Project’s (as applicable) capacity to provide such utilities or services.
16.6. If Tenant shall require utilities or services in excess of those usually furnished or supplied for tenants in similar spaces in the Building or the Project by reason of Tenant’s equipment or extended hours of business operations, then Tenant shall first procure Landlord’s consent for the use thereof, which consent Landlord may condition upon the availability of such excess utilities or services, and Tenant shall pay as Additional Rent an amount equal to the cost of providing such excess utilities and services.
16.7. Landlord shall provide water in Common Area for lavatory and landscaping purposes only, which water shall be from the local municipal or similar source; provided, however, that if Landlord determines that Tenant requires, uses or consumes water provided to the Common Area for any purpose other than ordinary lavatory purposes, Landlord may install a water meter (“Tenant Water Meter”) and thereby measure Tenant’s water consumption for all purposes. Tenant shall pay Landlord for the costs of any Tenant Water Meter and the installation and maintenance thereof during the Term. If Landlord installs a Tenant Water Meter, Tenant shall pay for water consumed, as shown on such meter, as and when bills are rendered. If Tenant fails to timely make such payments, Landlord may pay such charges and collect the same from Tenant. Any such costs or expenses incurred or payments made by Landlord for any of the reasons or purposes stated in this Section shall be deemed to be Additional Rent payable by Tenant and collectible by Landlord as such.
16.8. Landlord reserves the right to stop service of the elevator, plumbing, ventilation, air conditioning and utility systems, when Landlord deems necessary or desirable, due to accident, emergency or the need to make repairs, alterations or improvements, until such repairs, alterations or improvements shall have been completed, and subject to the abatement of Rent provided in Section 16.3, Landlord shall further have no responsibility or liability for failure to supply elevator facilities, plumbing, ventilation, air conditioning or utility service when prevented from doing so by Force Majeure or, to the extent permitted by Applicable Laws, Landlord’s negligence. Without limiting the foregoing, it is expressly understood and agreed that any covenants on Landlord’s part to furnish any service pursuant to any of the terms, covenants, conditions, provisions or agreements of this Lease, or to perform any act or thing for the benefit of Tenant, shall not be deemed breached if Landlord is unable to furnish or perform the same by virtue of Force Majeure or, to the extent permitted by Applicable Laws, Landlord’s negligence.
16.9. Landlord will install a generator providing standby power to the base Building systems, the Premises, and other tenant premises in the Building (the “Generator”) as part of the Base Building Improvements. Landlord will connect the Generator to the Premises as part of the Tenant Improvements. Tenant shall be entitled to use up to its proportionate share (after deducting any power from the Generator required for the Common Area) of power from the Generator on a non-exclusive basis with other tenants in the Building. The cost of maintaining, repairing and replacing the Generator shall constitute Operating Expenses. Landlord expressly disclaims any warranties with regard to the Generator or the installation thereof, including any warranty of merchantability or fitness for a particular purpose. Landlord shall maintain the Generator and any equipment connecting the Generator to Tenant’s automatic transfer switch in good working condition, provided, however, that Tenant shall be solely responsible, at Tenant’s sole cost and expense, (and Landlord shall not be liable) for maintaining and operating Tenant’s automatic transfer switch and the distribution of power from Tenant’s automatic transfer switch throughout the Premises, and provided further that Landlord shall not be liable for any failure to make any repairs or to perform any maintenance of the Generator that is an obligation of Landlord unless and except to the extent that Landlord willfully fails to make such repairs or perform such maintenance and such failure persists for an unreasonable time after Tenant provides Landlord with written notice of the need for such repairs or maintenance. Upon receipt of such written notice, Landlord shall promptly commence to cure such failure and shall diligently prosecute the same to completion in accordance with Section 31.13. The provisions of Section 16.3 shall apply to the Generator.
16.10. For the Premises, Landlord shall (a) maintain and operate the base Building HVAC systems used for the Permitted Use only and (b) furnish HVAC as reasonably required (except as this Lease otherwise provides or as to any special requirements that arise from Tenant’s particular use of the Premises) for reasonably comfortable occupancy of the Premises twenty-four (24) hours a day, every day during the Term, subject to casualty, eminent domain or as otherwise specified in this Article. To the extent that Tenant requires HVAC services in excess of those provided by connection to the base Building HVAC systems, Tenant shall install and maintain, at its sole cost, supplemental HVAC systems in accordance with the provisions of this Lease. Tenant shall pay Landlord, as Additional Rent, Tenant’s Adjusted Share of airflow to the Premises. Notwithstanding anything to the contrary in
this Section, but subject to the abatement of Rent provided in Section 16.3, Landlord shall have no liability, and Tenant shall have no right or remedy, on account of any interruption or impairment in HVAC services; provided that Landlord diligently endeavors to cure any such interruption or impairment.
16.11. For any utilities serving the Premises for which Tenant is billed directly by such utility provider, Tenant agrees to furnish to Landlord (a) any invoices or statements for such utilities within thirty (30) days after Tenant’s receipt thereof, (b) within thirty (30) days after Landlord’s request, any other utility usage information reasonably requested by Landlord, and (c) within thirty (30) days after each calendar year during the Term, authorization to allow Landlord to access Tenant’s usage information necessary for Landlord to complete an ENERGY STAR® Statement of Performance (or similar comprehensive utility usage report (e.g., related to Labs 21), if requested by Landlord) and any other information reasonably requested by Landlord for the immediately preceding year; and Tenant shall comply with any other energy usage or consumption requirements required by Applicable Laws. Tenant shall retain records of utility usage at the Premises, including invoices and statements from the utility provider, for at least sixty (60) months, or such other period of time as may be requested by Landlord. Tenant acknowledges that any utility information for the Premises, the Building and the Project may be shared with third parties, including Landlord’s consultants and Governmental Authorities. In the event that Tenant fails to comply with this Section, Tenant hereby authorizes Landlord to collect utility usage information directly from the applicable utility providers, and Tenant shall pay Landlord a fee of Five Hundred Dollars ($500) per month to collect such utility usage information. In addition to the foregoing, Tenant shall comply with all Applicable Laws related to the disclosure and tracking of energy consumption at the Premises. The provisions of this Section shall survive the expiration or earlier termination of this Lease.
16.12. As part of the Base Building Improvements, Landlord will install a common laboratory waste sanitary sewer connection from the pH neutralization room on the first (1st) floor of the Building to the municipal sewer line in the street adjacent to the Building, as well as a separate acid neutralization tank (the “Acid Neutralization Tank”) serving the Premises and other premises at the Building. Landlord will install a lab waste line connecting the Acid Neutralization Tank to the Premises as part of the Tenant Improvements. Tenant shall have a non-exclusive right to use its proportionate share of the Acid Neutralization Tank in accordance with Applicable Laws in common with other tenants at the Building. Tenant, as a portion of its Operating Expenses, shall reimburse Landlord for all costs, charges and expenses incurred by Landlord from time to time in connection with or arising from the operation, use, maintenance, repair or refurbishment of the Acid Neutralization Tank, including all clean-up costs relating to the Acid Neutralization Tank (collectively, “Tank Costs”); provided, however, that if the Acid Neutralization Tank is being used by other tenant(s) or occupant(s) of the Building at any time during the Term, then, during such time period, Tenant shall only be obligated to pay its proportionate share of the Tank Costs. Notwithstanding the foregoing, in the event the Acid Neutralization Tank is damaged or repairs to the Acid Neutralization Tank are required as a result of the improper use of the Acid Neutralization Tank by Tenant, Tenant shall be responsible for one hundred percent (100%) of the cost of any repairs or replacement required as a result of such improper use by Tenant, regardless of whether the Acid Neutralization Tank is then being used by other tenant(s) or occupant(s) of the Building. Similarly, if the Acid Neutralization Tank is damaged, or if repairs to the Acid Neutralization Tank are required as a result of the improper use of the Acid Neutralization Tank by other tenant(s) or occupant(s) of the Building, then Tenant shall have no responsibility for the cost of any repairs or replacements required as a result of such improper use by such other tenant(s) or occupant(s). Tenant shall Indemnify the Landlord Indemnitees from and against any and all Claims, including (a) diminution in value of the Project or any portion thereof, (b) damages for the loss or restriction on use of rentable or usable space or of any amenity of the Project, (c) damages arising from any adverse impact on marketing of space in the Project or any portion thereof and (d) sums paid in settlement of Claims that arise during or after the Term as a result of Tenant’s improper use of the Acid Neutralization Tank. This Indemnification by Tenant includes costs incurred in connection with any investigation of site conditions or any clean-up, remediation, removal or restoration required by any Governmental Authority arising from Tenant’s improper use of the Acid Neutralization Tank.
16.13. Landlord shall provide a dumpster or trash compactor at the Project for the disposal of Tenant’s non-hazardous/non-controlled substances.
17. Alterations.
17.1. Tenant shall make no alterations, additions or improvements in or to the Premises or engage in any construction, demolition, reconstruction, renovation or other work (whether major or minor) of any kind in, at or serving the Premises (“Alterations”) without Landlord’s prior written approval, which approval may be subject to the consent of one or more Lenders, if required under any applicable Loan Document, but which approval Landlord shall not otherwise unreasonably withhold; provided, however, that, in the event any proposed Alteration affects (a) any structural portions of the Building, including exterior walls, the roof, the foundation or slab, foundation or slab systems (including barriers and subslab systems) or the core of the Building, (b) the exterior of the Building or (c) any Building systems, including elevator, plumbing, HVAC, electrical, security, life safety and power, then Landlord may withhold its approval in its sole and absolute discretion. Tenant shall, in making any Alterations, use only those architects, contractors, suppliers and mechanics of which Landlord has given prior written approval, which approval shall not be unreasonably withheld. In seeking Landlord’s approval, Tenant shall provide Landlord, at least thirty (30) days in advance of the desired commencement date of any proposed construction, with plans, specifications, bid proposals, certified stamped engineering drawings and calculations by Tenant’s engineer of record or architect of record (including connections to the Building’s structural system, modifications to the Building’s envelope, non-structural penetrations in slabs or walls, and modifications or tie-ins to life safety systems), work contracts, requests for laydown areas and such other information concerning the nature and cost of the Alterations as Landlord may reasonably request, provided that Tenant shall not commence any such Alterations that require Landlord’s consent unless and until Tenant has received the written approval of Landlord and any and all Lenders whose consent is required under any applicable Loan Document. In no event shall Tenant use or Landlord be required to approve any architects, consultants, contractors, subcontractors or material suppliers that Landlord reasonably believes could cause labor disharmony or may not have sufficient experience, in Landlord’s reasonable opinion, to perform work in an occupied Class “A” laboratory research building and in tenant-occupied lab areas. Notwithstanding the foregoing, Tenant may make strictly cosmetic changes to the Premises that do not require any permits or more than three (3) total contractors and subcontractors (“Cosmetic Alterations”) without Landlord’s consent; provided that (y) the cost of any Cosmetic Alterations does not exceed Ten Thousand Dollars ($10,000) in any one instance or Fifty Thousand Dollars ($50,000) annually, (z) such Cosmetic Alterations are not reasonably expected to have any material adverse effect on the Project and do not (i) require any structural or other substantial modifications to the Premises, (ii) require any changes to or adversely affect the Building systems, (iii) affect any portion of the Building or Project that is exterior to the Premises or (iv) trigger any requirement under Applicable Laws that would require Landlord to make any alteration or improvement to the Premises, the Building or the Project. Tenant shall give Landlord at least ten (10) days’ prior written notice of any Cosmetic Alterations.
17.2. Tenant shall not construct or permit to be constructed partitions or other obstructions that might interfere with free access to mechanical installation or service facilities of the Building or with other tenants’ components located within the Building, or interfere with the moving of Landlord’s equipment to or from the enclosures containing such installations or facilities.
17.3. Tenant shall accomplish any work performed on the Premises or the Building in such a manner as to permit any life safety systems to remain fully operable at all times.
17.4. Any work performed on the Premises, the Building or the Project by Tenant or Tenant’s contractors shall be done at such times and in such manner as Landlord may from time to time designate. Tenant covenants and agrees that all work done by Tenant or Tenant’s contractors shall be performed in full compliance with Applicable Laws. Within thirty (30) days after completion of any Alterations (other than Cosmetic Alterations), Tenant shall
provide Landlord with complete “as built” drawing print sets and electronic CADD files on disc (or files in such other current format in common use as Landlord reasonably approves or requires) showing any changes in the Premises, as well as a commissioning report prepared by a licensed, qualified commissioning agent hired by Tenant and approved by Landlord for all new or affected mechanical, electrical and plumbing systems. Any such “as built” plans shall show the applicable Alterations as an overlay on the Building as-built plans; provided that Landlord provides the Building “as built” plans to Tenant.
17.5. Before commencing any Alterations, Tenant shall (a) give Landlord at least thirty (30) days’ prior written notice of the proposed commencement of such work and the names and addresses of the persons supply labor or materials therefor so that Landlord may enter the Premises to post and keep posted thereon and therein notices or to take any further action that Landlord may reasonably deem proper for the protection of Landlord’s interest in the Project and (b) shall, if required by Landlord, secure, at Tenant’s own cost and expense, a completion and lien indemnity bond satisfactory to Landlord for such work.
17.6. Tenant shall repair any damage to the Premises arising from Tenant’s removal of any property from the Premises. During any such restoration period, Tenant shall pay Rent to Landlord as provided herein as if such space were otherwise occupied by Tenant. The provisions of this Section shall survive the expiration or earlier termination of this Lease.
17.7. The Premises plus any Alterations; Signage; Tenant Improvements; attached equipment, decorations, fixtures and trade fixtures; movable laboratory casework and related appliances; and other additions and improvements attached to or built into the Premises made by either of the parties (including all floor and wall coverings; paneling; sinks and related plumbing fixtures; laboratory benches; exterior venting fume hoods; walk-in freezers and refrigerators; ductwork; conduits; electrical panels and circuits; attached machinery and equipment; and built-in furniture and cabinets, in each case, together with all additions and accessories thereto), shall (unless, prior to such construction or installation, Landlord elects otherwise in writing) at all times remain the property of Landlord, shall remain in the Premises and shall (unless, prior to construction or installation thereof, Landlord elects otherwise in writing) be surrendered to Landlord upon the expiration or earlier termination of this Lease. For the avoidance of doubt, the items listed on Exhibit G attached hereto (which Exhibit G may be updated by Tenant from and after the Term Commencement Date, subject to Landlord’s written consent) constitute Tenant’s property and shall be removed by Tenant upon the expiration or earlier termination of the Lease.
17.8. Notwithstanding any other provision of this Article to the contrary, in no event shall Tenant remove any improvement from the Premises in which any Lender has a security interest or as to which Landlord contributed payment, including the Tenant Improvements, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
17.9. If Tenant shall fail to remove any of its property from the Premises prior to the expiration or earlier termination of this Lease, then Landlord may, at its option, remove the same in any manner that Landlord shall choose and store such effects without liability to Tenant for loss thereof or damage thereto, and Tenant shall pay Landlord, upon demand, any costs and expenses incurred due to such removal and storage or Landlord may, at its sole option and without notice to Tenant, sell such property or any portion thereof at private sale and without legal process for such price as Landlord may obtain and apply the proceeds of such sale against any (a) amounts due by Tenant to Landlord under this Lease and (b) any expenses incident to the removal, storage and sale of such personal property.
17.10. Tenant shall pay to Landlord an amount equal to three percent (3%) of the cost to Tenant of all Alterations to cover Landlord’s overhead and expenses for plan review, engineering review, coordination, scheduling and supervision thereof or obtaining any required Lender consent. For purposes of payment of such sum, Tenant shall submit to Landlord copies of all bills, invoices and statements covering the costs of such charges,
accompanied by payment to Landlord of the fee set forth in this Section. Tenant shall reimburse Landlord for any extra expenses incurred by Landlord by reason of faulty work done by Tenant or its contractors, or by reason of delays arising from such faulty work, or by reason of inadequate clean-up.
17.11. Within sixty (60) days after final completion of any Alterations performed by Tenant with respect to the Premises, Tenant shall submit to Landlord documentation showing the amounts expended by Tenant with respect to such Alterations, together with supporting documentation reasonably acceptable to Landlord.
17.12. Tenant shall take, and shall cause its contractors to take, commercially reasonable steps to protect the Premises during the performance of any Alterations, including covering or temporarily removing any window coverings so as to guard against dust, debris or damage.
17.13. Tenant shall require its contractors and subcontractors performing work on the Premises to name Landlord and its affiliates and Lenders as additional insureds on their respective insurance policies.
18. Repairs and Maintenance.
18.1. Subject to the limitations set forth in Section 16.10, Landlord shall repair and maintain the structural and exterior portions and Common Area of the Building and the Project, including roofing and covering materials; foundations (excluding any architectural slabs, but including any structural slabs); exterior walls (excluding any glass windows or doors of the Premises, whether interior or exterior); plumbing; fire sprinkler systems (if any); base Building HVAC systems up to the first damper or isolation valve that serves the Premises (for purposes of clarity, the portion of the HVAC system that includes such first damper or isolation valve and extends into and through the Premises, including but not limited to any supplemental HVAC serving Tenant’s vivarium, shall not be part of the base Building HVAC and shall be Tenant’s obligation to maintain and repair pursuant to Section 18.2 below); elevators; and base Building electrical systems installed or furnished by Landlord. In addition, Landlord shall provide: (i) janitorial service for the Common Area in the Building of a level that is consistent with other first-class office/laboratory buildings in the Watertown submarket; and (ii) snow and ice removal from the parking areas and Building entrances and walkways and maintenance of all landscaped areas.
18.2. Except for services of Landlord, if any, required by Section 18.1, Tenant shall at Tenant’s sole cost and expense maintain and keep the Premises (including but not limited to the portion of the HVAC system that includes the first damper or isolation valve and extends into and through the Premises, any supplemental HVAC serving the Premises, including but not limited to any supplemental HVAC serving Tenant’s vivarium, and any other systems or equipment exclusively serving the Premises and including, but not limited to, any systems or facilities installed as part of the Tenant Improvements) and every part thereof in good condition and repair, damage thereto from ordinary wear and tear excepted, and shall, within ten (10) days after receipt of written notice from Landlord, provide to Landlord any maintenance records that Landlord reasonably requests. Tenant shall, upon the expiration or sooner termination of the Term, surrender the Premises to Landlord in as good a condition as when received, ordinary wear and tear excepted; and shall, unless otherwise notified by Landlord in writing at least sixty (60) days prior to the expiration of the Term and at Tenant’s sole cost and expense, remove all telephone and data systems, wiring and equipment from the Premises, and repair any damage to the Premises caused thereby. Landlord shall have no obligation to alter, remodel, improve, repair, decorate or paint the Premises or any part thereof, other than pursuant to the terms and provisions of the Work Letter.
18.3. Landlord shall not be liable for any failure to make any repairs or to perform any maintenance that is Landlord’s obligation pursuant to this Lease unless such failure shall persist for an unreasonable time after Tenant provides Landlord with written notice of the need of such repairs or maintenance. Tenant waives its rights under Applicable Laws now or hereafter in effect to make repairs at Landlord’s expense.
18.4. If any excavation shall be made upon land adjacent to or under the Building, or shall be authorized to be made, Tenant shall afford to the person causing or authorized to cause such excavation, license to enter the Premises for the purpose of performing such work as such person shall deem necessary or desirable to preserve and protect the Building from injury or damage and to support the same by proper foundations, without any claim for damages or liability against Landlord and without reducing or otherwise affecting Tenant’s obligations under this Lease.
18.5. This Article relates to repairs and maintenance arising in the ordinary course of operation of the Building and the Project. In the event of a casualty described in Article 24, Article 24 shall apply in lieu of this Article. In the event of eminent domain, Article 25 shall apply in lieu of this Article.
18.6. Costs incurred by Landlord pursuant to this Article shall constitute Operating Expenses.
19. Liens.
19.1. Subject to the immediately succeeding sentence, Tenant shall keep the Premises, the Building and the Project free from any liens arising from work or services performed, materials furnished to or obligations incurred by Tenant. Tenant further covenants and agrees that any mechanic’s or materialman’s lien filed against the Premises, the Building or the Project for work or services claimed to have been done for, or materials claimed to have been furnished to, or obligations incurred by Tenant shall be discharged or bonded by Tenant within ten (10) days after the filing thereof, at Tenant’s sole cost and expense. The foregoing obligations exclude any work or services provided by Landlord.
19.2. Should Tenant fail to discharge or bond against any lien of the nature described in Section 19.1, Landlord may, at Landlord’s election, pay such claim or post a statutory lien bond or otherwise provide security to eliminate the lien as a claim against title, and Tenant shall immediately reimburse Landlord for the costs thereof as Additional Rent. Tenant shall Indemnify the Landlord Indemnitees from and against any Claims arising from any such liens, including any administrative, court or other legal proceedings related to such liens.
19.3. In the event that Tenant leases or finances the acquisition of office equipment, furnishings or other personal property of a removable nature utilized by Tenant in the operation of Tenant’s business, Tenant warrants that any Uniform Commercial Code financing statement shall, upon its face or by exhibit thereto, indicate that such financing statement is applicable only to removable personal property of Tenant located within the Premises. In no event shall the address of the Premises, the Building or the Project be furnished on a financing statement without qualifying language as to applicability of the lien only to removable personal property located in an identified suite leased by Tenant. Should any holder of a financing statement record or place of record a financing statement that appears to constitute a lien against any interest of Landlord or against equipment that may be located other than within an identified suite leased by Tenant, Tenant shall, within ten (10) days after filing such financing statement, cause (a) a copy of the lender security agreement or other documents to which the financing statement pertains to be furnished to Landlord to facilitate Landlord’s ability to demonstrate that the lien of such financing statement is not applicable to Landlord’s interest and (b) Tenant’s lender to amend such financing statement and any other documents of record to clarify that any liens imposed thereby are not applicable to any interest of Landlord in the Premises, the Building or the Project.
20. Estoppel Certificate. Tenant shall, within ten (10) business days after receipt of written notice from Landlord, execute, acknowledge and deliver a statement in writing substantially in the form attached to this Lease as Exhibit H, or on any other form reasonably requested by a current or proposed Lender or encumbrancer or proposed purchaser, (a) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease as so modified is in full force and effect) and the dates to which rental and other charges are paid in advance, if any, (b) acknowledging that there are not, to Tenant’s knowledge,
any uncured defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed, and (c) setting forth such further information with respect to this Lease or the Premises as may be requested thereon. Any such statements may be relied upon by any prospective purchaser or encumbrancer of all or any portion of the Property. Tenant’s failure to deliver any such statement within such the prescribed time shall, at Landlord’s option, constitute a Default (as defined below) under this Lease, and, in any event, shall be binding upon Tenant that the Lease is in full force and effect and without modification except as may be represented by Landlord in any certificate prepared by Landlord and delivered to Tenant for execution. Upon request, Landlord shall execute such instruments as may be reasonably requested by vendor or lender of Tenant relating to the leasing or financing of Tenant’s equipment, furnishings, trade fixtures and other personal property.
21. Hazardous Materials.
21.1. Tenant shall not cause or permit any Hazardous Materials (as defined below) to be brought upon, kept or used in or about the Premises, the Building or the Project in violation of Applicable Laws by Tenant or any of its employees, agents, contractors or invitees (collectively with Tenant, each a “Tenant Party”). If (a) Tenant breaches such obligation, (b) the presence of Hazardous Materials as a result of such a breach results in contamination of the Project, any portion thereof, or any adjacent property, (c) contamination of the Premises otherwise occurs during the Term or any extension or renewal hereof or holding over hereunder (other than if such contamination results from (i) migration of Hazardous Materials from outside the Premises not arising from the acts or omissions of a Tenant Party or coming from property owned or leased by a Tenant Party or (ii) to the extent such contamination arises directly from Landlord’s gross negligence or willful misconduct) or (d) contamination of the Project occurs as a result of Hazardous Materials that are placed on or under or are released into the Project by a Tenant Party, then Tenant shall Indemnify the Landlord Indemnitees from and against any and all Claims of any kind or nature, including (w) diminution in value of the Project or any portion thereof, (x) damages for the loss or restriction on use of rentable or usable space or of any amenity of the Project, (y) damages arising from any adverse impact on marketing of space in the Project or any portion thereof and (z) sums paid in settlement of Claims that arise before, during or after the Term as a result of such breach or contamination. This Indemnification by Tenant includes costs incurred in connection with any investigation of site conditions or any clean-up, remedial, removal or restoration work required by any Governmental Authority because of Hazardous Materials present in the air, soil or groundwater above, on, under or about the Project. Without limiting the foregoing, if the presence of any Hazardous Materials in, on, under or about the Project, any portion thereof or any adjacent property caused or permitted by any Tenant Party results in any contamination of the Project, any portion thereof or any adjacent property, then Tenant shall promptly take all actions at its sole cost and expense as are necessary to return the Project, any portion thereof or any adjacent property to its respective condition existing prior to the time of such contamination; provided that Landlord’s written approval of such action shall first be obtained, which approval Landlord shall not unreasonably withhold; and provided, further, that it shall be reasonable for Landlord to withhold its consent if such actions could have a material adverse long-term or short-term effect on the Project, any portion thereof or any adjacent property. Tenant’s obligations under this Section shall not be affected, reduced or limited by any limitation on the amount or type of damages, compensation or benefits payable by or for Tenant under workers’ compensation acts, disability benefit acts, employee benefit acts or similar legislation.
21.2. Landlord acknowledges that it is not the intent of this Article to prohibit Tenant from operating its business for the Permitted Use. Tenant may operate its business according to the custom of Tenant’s industry so long as the use or presence of Hazardous Materials is strictly and properly monitored in accordance with Applicable Laws. As a material inducement to Landlord to allow Tenant to use Hazardous Materials in connection with its business, Tenant agrees to deliver to Landlord (a) a list identifying each type of Hazardous Material to be present at the Premises that is subject to regulation under any environmental Applicable Laws in the form of a Tier II form pursuant to Section 312 of the Emergency Planning and Community Right-to-Know Act of 1986 (or any successor statute) or any other form reasonably requested by Landlord, (b) a list of any and all approvals or permits from
Governmental Authorities required in connection with the presence of such Hazardous Material at the Premises and (c) correct and complete copies of (i) notices of violations of Applicable Laws related to Hazardous Materials and (ii) plans relating to the installation of any storage tanks to be installed in, on, under or about the Project (provided that installation of storage tanks shall only be permitted after Landlord has given Tenant its written consent to do so, which consent Landlord may withhold in its sole and absolute discretion) and closure plans or any other documents required by any and all Governmental Authorities for any storage tanks installed in, on, under or about the Project for the closure of any such storage tanks (collectively, “Hazardous Materials Documents”). Tenant shall deliver to Landlord updated Hazardous Materials Documents, within fourteen (14) days after receipt of a written request therefor from Landlord, not more often than once per year, unless (m) there are any changes to the Hazardous Materials Documents or (n) Tenant initiates any Alterations or changes its business, in either case in a way that involves any material increase in the types or amounts of Hazardous Materials, in which case Tenant shall deliver updated Hazardous Materials documents (without Landlord having to request them) before or, if not practicable to do so before, as soon as reasonably practicable after the occurrence of the events in Subsection 21.2(m) or (n). For each type of Hazardous Material listed, the Hazardous Materials Documents shall include (t) the chemical name, (u) the material state (e.g., solid, liquid, gas or cryogen), (v) the concentration, (w) the storage amount and storage condition (e.g., in cabinets or not in cabinets), (x) the use amount and use condition (e.g., open use or closed use), (y) the location (e.g., room number or other identification) and (z) if known, the chemical abstract service number. Notwithstanding anything in this Section to the contrary, Tenant shall not be required to provide Landlord with any documents containing information of a proprietary nature, unless such documents contain a reference to Hazardous Materials or activities related to Hazardous Materials. Landlord may, at Landlord’s expense, cause the Hazardous Materials Documents to be reviewed by a person or firm qualified to analyze Hazardous Materials to confirm compliance with the provisions of this Lease and with Applicable Laws. In the event that a review of the Hazardous Materials Documents indicates non-compliance with this Lease or Applicable Laws, Tenant shall, at its expense, diligently take steps to bring its storage and use of Hazardous Materials into compliance. Notwithstanding anything in this Lease to the contrary or Landlord’s review into Tenant’s Hazardous Materials Documents or use or disposal of hazardous materials, however, Landlord shall not have and expressly disclaims any liability related to Tenant’s or other tenants’ use or disposal of Hazardous Materials, it being acknowledged by Tenant that Tenant is best suited to evaluate the safety and efficacy of its Hazardous Materials usage and procedures. If Tenant is required to provide Landlord with Hazardous Materials Documents containing information of a proprietary nature and notifies Landlord in writing upon disclosure that such information is proprietary, Landlord shall keep the same confidential and shall not disclose such information to any third-party, except that Landlord may disclose such information (a) as may be required by Applicable Laws or in any judicial proceeding (provided that prior to disclosure Landlord gives Tenant reasonable notice of such requirement, if feasible) and (b) to Landlord’s attorneys, accountants and other bona fide consultants or advisers who are advised of the confidential nature of such information. Landlord agrees that a breach of such confidentiality may cause Tenant harm for which recovery of damages would be an inadequate remedy, and in such event, Tenant shall be entitled to obtain injunctive relief, as well as such further relief as may be granted by a court of competent jurisdiction, but excluding special, punitive, exemplary or consequential damages.
21.3. Tenant represents and warrants to Landlord that it is not nor has it been, in connection with the use, disposal or storage of Hazardous Materials, (a) subject to a material enforcement order issued by any Governmental Authority or (b) required to take any remedial action.
21.4. At any time, and from time to time, prior to the expiration of the Term, Landlord shall have the right to conduct appropriate tests of the Project or any portion thereof to demonstrate that Hazardous Materials are present or that contamination has occurred due to the acts or omissions of a Tenant Party. Tenant shall pay all reasonable costs of such tests if such tests reveal that Hazardous Materials exist at the Project in violation of this Lease.
21.5. If underground or other storage tanks storing Hazardous Materials installed or utilized by Tenant are located on the Premises, or are hereafter placed on the Premises by Tenant (or by any other party, if such storage tanks are utilized by Tenant), then Tenant shall monitor the storage tanks, maintain appropriate records, implement reporting procedures, properly close any underground storage tanks, and take or cause to be taken all other steps necessary or required under the Applicable Laws. Tenant shall have no responsibility or liability for underground or other storage tanks installed by anyone other than Tenant unless Tenant utilizes such tanks, in which case Tenant’s responsibility for such tanks shall be as set forth in this Section.
21.6. Tenant shall promptly report to Landlord any actual or suspected presence of mold or water intrusion at the Premises.
21.7. Tenant’s obligations under this Article shall survive the expiration or earlier termination of the Lease. During any period of time needed by Tenant or Landlord after the termination of this Lease to complete the removal from the Premises of any such Hazardous Materials, Tenant shall be deemed a holdover tenant and subject to the provisions of Article 27.
12.8. As used herein, the term “Hazardous Material” means any toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous substance, material or waste that is or becomes regulated by Applicable Laws or any Governmental Authority.
12.9. Notwithstanding anything to the contrary in this Lease, Tenant shall have (a) sole control over one (1) of fire control area (as defined in the Uniform Building Code as adopted by the city or municipality(ies) in which the Project is located (the “UBC”)), and (b) up to fifty percent (50%) of one (1) fire control area shared with the Common Area of Project for the storage of Hazardous Materials. Notwithstanding anything to the contrary in this Lease, the quantity of Hazardous Materials allowed by this Section is specific to Tenant and shall not run with the Lease in the event of a Transfer (as defined in Article 29). In the event of a Transfer, if the use of Hazardous Materials by such new tenant (“New Tenant”) is such that New Tenant utilizes fire control areas in the Project in excess of New Tenant’s Pro Rata Share of the Building, then New Tenant shall, at its sole cost and expense and upon Landlord’s written request, establish and maintain a separate area of the Premises classified by the UBC as an “H” occupancy area for the use and storage of Hazardous Materials, or take such other action as is necessary to ensure that its share of the fire control areas of the Building is not greater than New Tenant’s Pro Rata Share of the Building. Notwithstanding anything in this Lease to the contrary, Landlord shall not have and expressly disclaims any liability related to Tenant’s or other tenants’ use or disposal of fire control areas, it being acknowledged by Tenant that Tenant and other tenants are best suited to evaluate the safety and efficacy of its Hazardous Materials usage and procedures.
22. Odors and Exhaust. Tenant acknowledges that Landlord would not enter into this Lease with Tenant unless Tenant assured Landlord that under no circumstances will any other occupants of the Building or the Project (including persons legally present in any outdoor areas of the Project) be subjected to odors or fumes (whether or not noxious), and that the Building and the Project will not be damaged by any exhaust, in each case from Tenant’s operations, including in Tenant’s vivarium. Landlord and Tenant therefore agree as follows:
22.1 Tenant shall not cause or permit (or conduct any activities that would cause) any release of any odors or fumes of any kind from the Premises.
22.2 If the Building has a ventilation system that, in Landlord’s judgment, is adequate, suitable, and appropriate to vent the Premises in a manner that does not release odors affecting any indoor or outdoor part of the Project, Tenant shall vent the Premises through such system. If Landlord at any time determines that any existing ventilation system is inadequate, or if no ventilation system exists, Tenant shall in compliance with Applicable Laws vent all fumes and odors from the Premises (and remove odors from Tenant’s exhaust stream)
as Landlord requires. The placement and configuration of all ventilation exhaust pipes, louvers and other equipment shall be subject to Landlord’s approval. Tenant acknowledges Landlord’s legitimate desire to maintain the Project (indoor and outdoor areas) in an odor-free manner, and Landlord may require Tenant to abate and remove all odors in a manner that goes beyond the requirements of Applicable Laws.
22.3 Tenant shall, at Tenant’s sole cost and expense, provide odor eliminators and other devices (such as filters, air cleaners, scrubbers and whatever other equipment may in Landlord’s judgment be necessary or appropriate from time to time) to completely remove, eliminate and abate any odors, fumes or other substances in Tenant’s exhaust stream that, in Landlord’s judgment, emanate from Tenant’s Premises. Any work Tenant performs under this Section shall constitute Alterations.
22.4 Tenant’s responsibility to remove, eliminate and abate odors, fumes and exhaust shall continue throughout the Term. Landlord’s construction of the Tenant Improvements shall not preclude Landlord from requiring additional measures to eliminate odors, fumes and other adverse impacts of Tenant’s exhaust stream (as Landlord may designate in Landlord’s discretion). Tenant shall install additional equipment as Landlord requires from time to time under the preceding sentence. Such installations shall constitute Alterations.
22.5 If Tenant fails to install satisfactory odor control equipment within ten (10) business days after Landlord’s demand made at any time, then Landlord may, without limiting Landlord’s other rights and remedies, require Tenant to cease and suspend any operations in the Premises that, in Landlord’s determination, cause odors, fumes or exhaust. For example, if Landlord determines that Tenant’s production of a certain type of product causes odors, fumes or exhaust, and Tenant does not install satisfactory odor control equipment within ten (10) business days after Landlord’s request, then Landlord may require Tenant to stop producing such type of product in the Premises unless and until Tenant has installed odor control equipment satisfactory to Landlord.
23. Insurance
23.1. Landlord shall maintain insurance for the Building and the Project in amounts equal to full replacement cost (exclusive of the costs of excavation, foundations and footings, engineering costs or such other costs to the extent the same are not incurred in the event of a rebuild and without reference to depreciation taken by Landlord upon its books or tax returns) or such lesser coverage as Landlord may elect consistent with coverages carried by owners of similar properties in the Greater Boston area, provided that such coverage shall not be less than the amount of such insurance Landlord’s Lender, if any, requires Landlord to maintain, providing protection against any peril generally included within the classification “Fire and Extended Coverage,” together with insurance against sprinkler damage (if applicable), vandalism and malicious mischief. Landlord, subject to availability thereof, shall further insure, if Landlord deems it appropriate, coverage against flood, environmental hazard, earthquake, loss or failure of building equipment, rental loss during the period of repairs or rebuilding, Workers’ Compensation insurance and fidelity bonds for employees employed to perform services. Notwithstanding the foregoing, Landlord may, but shall not be deemed required to, provide insurance for any improvements installed by Tenant or that are in addition to the standard improvements customarily furnished by Landlord, without regard to whether or not such are made a part of or are affixed to the Building.
23.2. In addition, Landlord shall carry Commercial General Liability insurance with limits of One Million Dollars ($1,000,000) per occurrence/general aggregate for bodily injury (including death), or property damage with respect to the Project.
23.3. Tenant shall, at its own cost and expense, procure and maintain during the Term the following insurance for the benefit of Tenant and Landlord (as their interests may appear) with insurers financially acceptable and lawfully authorized to do business in the state where the Premises are located:
(a) Commercial General Liability insurance on a broad-based occurrence coverage form, with coverages including but not limited to bodily injury (including death), property damage (including loss of use resulting therefrom), premises/operations, personal & advertising injury, and contractual liability with limits of liability of not less than $2,000,000 for bodily injury and property damage per occurrence, $4,000,000 general aggregate, which limits may be met by use of excess and/or umbrella liability insurance; provided that such coverage is at least as broad as the primary coverages required herein.
(b) Commercial Automobile Liability insurance covering liability arising from the use or operation of any auto on behalf of Tenant or invited by Tenant (including those owned, hired, rented, leased, borrowed, scheduled or non-owned). Coverage shall be on a broad-based occurrence form in an amount not less than $2,000,000 combined single limit per accident for bodily injury and property damage. Such coverage shall apply to all vehicles and persons, whether accessing the property with active or passive consent.
(c) Commercial Property insurance covering property damage to the full replacement cost value and business interruption. Covered property shall include all tenant improvements in the Premises (to the extent not insured by Landlord pursuant to Section 23.1) and Tenant’s Property including personal property, furniture, fixtures, machinery, equipment, stock, inventory and improvements and betterments, which may be owned by Tenant or Landlord and required to be insured hereunder, or which may be leased, rented, borrowed or in the care custody or control of Tenant, or Tenant’s agents, employees or subcontractors. Such insurance, with respect only to all Tenant Improvements, Alterations or other work performed on the Premises by Tenant (collectively, “Tenant Work”), shall name Landlord and Landlord’s current and future mortgagees as loss payees as their interests may appear. Such insurance shall be written on an “all risk” of physical loss or damage basis including the perils of fire, extended coverage, electrical injury, mechanical breakdown, windstorm, vandalism, malicious mischief, sprinkler leakage, back-up of sewers or drains, flood, earthquake, terrorism and such other risks Landlord may from time to time designate, for the full replacement cost value of the covered items with an agreed amount endorsement with no co-insurance. Business interruption coverage shall have limits sufficient to cover Tenant’s lost profits and necessary continuing expenses, including rents due Landlord under the Lease. The minimum period of indemnity for business interruption coverage shall be eighteen (18) months.
(d) Workers’ Compensation in compliance with all Applicable Laws or as may be available on a voluntary basis. Employer’s Liability must be at least in the amount of $1,000,000 for bodily injury by accident for each employee, $1,000,000 for bodily injury by disease for each employee, and $1,000,000 bodily injury by disease for policy limit.
(e) Medical malpractice insurance at limits of not less than $1,000,000 each claim during such periods, if any, that Tenant engages in the practice of medicine or clinical trials involving human beings at the Premises.
(f) Pollution Legal Liability insurance is required if Tenant stores, handles, generates or treats Hazardous Materials, as determined solely by Landlord, on or about the Premises. Such coverage shall include bodily injury, sickness, disease, death or mental anguish or shock sustained by any person; property damage including physical injury to or destruction of tangible property including the resulting loss of use thereof, clean-up costs, and the loss of use of tangible property that has not been physically injured or destroyed; and defense costs, charges and expenses incurred in the investigation, adjustment or defense of claims for such compensatory damages. Coverage shall apply to both sudden and non-sudden pollution conditions including the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water. Claims-made coverage is permitted, provided the policy retroactive date is continuously maintained prior to the commencement date of this agreement, and coverage is continuously maintained during all periods in
which Tenant occupies the Premises. Coverage shall be maintained with limits of not less than $2,000,000 per incident with a $4,000,000 policy aggregate and for a period of two (2) years thereafter.
(g) During all construction by Tenant at the Premises, with respect to tenant improvements being constructed (including any Alterations, insurance required in Exhibit B-1 must be in place.
23.4. The insurance required of Tenant by this Article shall be with companies at all times having a current rating of not less than A- and financial category rating of at least Class VII in “A.M. Best’s Insurance Guide” current edition. Tenant shall obtain for Landlord from the insurance companies/broker or cause the insurance companies/broker to furnish certificates of insurance evidencing all coverages required herein to Landlord. Landlord reserves the right to require complete, certified copies of all required insurance policies including any endorsements. No such policy shall be cancelable or subject to reduction of coverage or other modification or cancellation except after thirty (30) days’ prior written notice to Landlord from Tenant or its insurers (except in the event of non-payment of premium, in which case ten (10) days’ written notice shall be given). All such policies shall be written as primary policies, not contributing with and not in excess of the coverage that Landlord may carry. Tenant’s required policies shall contain severability of interests clauses stating that, except with respect to limits of insurance, coverage shall apply separately to each insured or additional insured. Tenant shall, on the date of expiration of such policies, furnish Landlord with renewal certificates of insurance or binders. Tenant agrees that if Tenant does not take out and maintain such insurance, Landlord may (but shall not be required to) procure such insurance on Tenant’s behalf and at its cost to be paid by Tenant as Additional Rent. Commercial General Liability, Commercial Automobile Liability, Umbrella Liability and Pollution Legal Liability insurance as required above shall name Landlord, BioMed Realty LLC, BioMed Realty II LP and their respective officers, employees, agents, general partners, members, subsidiaries, affiliates and Lenders (“Landlord Parties”) as additional insureds as respects liability arising from work or operations performed by or on behalf of Tenant, Tenant’s use or occupancy of Premises, and ownership, maintenance or use of vehicles by or on behalf of Tenant.
23.5. In each instance where insurance is to name Landlord Parties as additional insureds, Tenant shall, upon Landlord’s written request, also designate and furnish certificates evidencing such Landlord Parties as additional insureds to (a) any Lender of Landlord holding a security interest in the Building or the Project, (b) the landlord under any lease whereunder Landlord is a tenant of the real property upon which the Building is located if the interest of Landlord is or shall become that of a tenant under a ground lease rather than that of a fee owner and (c) any management company retained by Landlord to manage the Project.
23.6. Tenant assumes the risk of damage to any fixtures, goods, inventory, merchandise, equipment and leasehold improvements, and Landlord shall not be liable for injury to Tenant’s business or any loss of income therefrom, relative to such damage, all as more particularly set forth within this Lease. Tenant shall, at Tenant’s sole cost and expense, carry such insurance as Tenant desires for Tenant’s protection with respect to personal property of Tenant or business interruption.
23.7. Tenant, on behalf of itself and its insurers, hereby waives any and all rights of recovery against the Landlord Parties with respect to any loss, damage, claims, suits or demands, howsoever caused, that are covered, or should have been covered as required by this Lease, by valid and collectible workers’ compensation, employer’s liability insurance and other liability insurance required to be obtained and carried by Tenant pursuant to this Article, including any deductibles or self-insurance maintained thereunder. Tenant agrees to endorse the required workers’ compensation, employer’s liability and other liability insurance policies to permit waivers of subrogation as required hereunder and hold harmless and indemnify the Landlord Parties for any loss or expense incurred as a result of a failure to obtain such waivers of subrogation from insurers. Such waivers shall continue so long as Tenant’s insurers so permit. Any termination of such a waiver shall be by written notice to Landlord, containing a description of the circumstances hereinafter set forth in this Section. Tenant, upon obtaining the policies of
workers’ compensation, employer’s liability and other liability insurance required or permitted under this Lease, shall give notice to its insurance carriers that the foregoing waiver of subrogation is contained in this Lease. If such policies shall not be obtainable with such waiver or shall be so obtainable only at a premium over that chargeable without such waiver, then Tenant shall notify Landlord of such condition.
23.8. Landlord, on behalf of itself and its insurers, hereby waives any and all rights of recovery against the Tenant Parties with respect to any loss, damage, claims, suits or demands, howsoever caused (unless caused by Tenant’s willful misconduct (it being agreed that the actions of employees and other persons acting outside the scope of their relationship with Tenant shall not be deemed to be the willful misconduct of Tenant), that are covered, or should have been covered as required by this Lease, by valid and collectible commercial general liability insurance and property insurance, but excluding any deductibles or self-insurance maintained thereunder. Landlord agrees to endorse the required commercial general liability insurance and property insurance policies to permit waivers of subrogation as required hereunder and hold harmless and indemnify the Tenant Parties for any loss or expense incurred as a result of a failure to obtain such waivers of subrogation from insurers. Such waivers shall continue so long as Landlord’s insurers so permit. Any termination of such a waiver shall be by written notice to Tenant, containing a description of the circumstances hereinafter set forth in this Section. Landlord, upon obtaining the policies of commercial general liability insurance and property insurance, shall give notice to its insurance carriers that the foregoing waiver of subrogation is contained in this Lease. If such policies shall not be obtainable with such waiver or shall be so obtainable only at a premium over that chargeable without such waiver, then Landlord shall notify Tenant of such condition.
23.9. Landlord may require insurance policy limits required under this Lease to be raised to conform with requirements of Landlord’s Lender or to bring coverage limits to levels then being reasonably required of new tenants within the Project.
23.10. In addition to other insurance required by this Lease to be carried by Tenant, if Tenant sells, merchandises, transfers, gives away or exchanges so-called “alcoholic liquors” in, upon or from any part of the Premises, then Tenant shall, at Tenant’s sole cost and expense, purchase and maintain in full force and effect during the Term dram shop insurance in form and substance satisfactory to Landlord, with total limits of liability for bodily injury, loss of means of support and property damage for each occurrence in an amount and with a carrier reasonably acceptable to Landlord, and otherwise in compliance with the general provisions of this Article governing the provision of insurance by Tenant. Such policy shall name Landlord and the Landlord Parties as additional insureds against any liability by virtue of Applicable Laws concerning the use, sale or giving away of alcoholic liquors. If at any time such insurance is for any reason not in force, then during all and any such times no selling, merchandising, transferring, giving away or exchanging of so-called “alcoholic liquors” shall be conducted by Tenant in, upon or from any part of the Premises.
23.11. Any costs incurred by Landlord pursuant to this Article shall constitute a portion of Operating Expenses.
23.12. The provisions of this Article shall survive the expiration or earlier termination of this Lease.
24. Damage or Destruction.
24.1. In the event of a partial destruction of (a) the Premises, (b) the Building, (c) the Common Area or (d) the Project ((a)-(d) collectively, the “Affected Areas”) by fire or other perils covered by extended coverage insurance not exceeding twenty-five percent (25%) of the full insurable value thereof, and provided that (w) the damage thereto is such that the Affected Areas may be repaired, reconstructed or restored within a period of six (6) months from the date of the happening of such casualty, (x) Landlord shall receive insurance proceeds from its insurer or Lender sufficient to cover the cost of such repairs, reconstruction and restoration (except for any deductible amount
provided by Landlord’s policy, which deductible amount, if paid by Landlord, shall constitute an Operating Expense), (y) the repair, reconstruction or restoration of the Affected Areas is permitted by all applicable Loan Documents or otherwise consented to by any and all Lenders whose consent is required thereunder and (z) such casualty was not intentionally caused by a Tenant Party, then Landlord shall commence and proceed diligently with the work of repair, reconstruction and restoration of the Affected Areas and this Lease shall continue in full force and effect.
24.2. In the event of any damage to or destruction of the Building or the Project other than as described in Section 24.1, Landlord may elect to repair, reconstruct and restore the Building or the Project, as applicable, in which case this Lease shall continue in full force and effect. If Landlord elects not to repair, reconstruct and restore the Building or the Project, as applicable, then this Lease shall terminate as of the date of such damage or destruction. In the event of any damage or destruction (regardless of whether such damage is governed by Section 24.1 or this Section), if (a) in Landlord’s determination as set forth in the Damage Repair Estimate (as defined below), the Affected Areas cannot be repaired, reconstructed or restored within twelve (12) months after the date of the Damage Repair Estimate, (b) subject to Section 24.6, the Affected Areas are not actually repaired, reconstructed and restored within fifteen (15) months after the date of the Damage Repair Estimate, or (c) the damage and destruction occurs within the last twelve (12) months of the then-current Term, then Tenant shall have the right to terminate this Lease, effective as of the date of such damage or destruction, by delivering to Landlord its written notice of termination (a “Termination Notice”) (y) with respect to Subsections 24.2(a) and (c), no later than fifteen (15) days after Landlord delivers to Tenant Landlord’s Damage Repair Estimate and (z) with respect to Subsection 24.2(b), no later than fifteen (15) days after such twelve (12) month period (as the same may be extended pursuant to Section 24.6) expires. If Tenant provides Landlord with a Termination Notice pursuant to Subsection 24.2(z), Landlord shall have an additional thirty (30) days after receipt of such Termination Notice to complete the repair, reconstruction and restoration. If Landlord does not complete such repair, reconstruction and restoration within such thirty (30) day period, then Tenant may terminate this Lease by giving Landlord written notice within two (2) business days after the expiration of such thirty (30) day period. If Landlord does complete such repair, reconstruction and restoration within such thirty (30) day period, then this Lease shall continue in full force and effect.
24.3. As soon as reasonably practicable, but in any event within sixty (60) days following the date of damage or destruction, Landlord shall notify Tenant of Landlord’s good faith estimate of the period of time in which the repairs, reconstruction and restoration will be completed (the “Damage Repair Estimate”), which estimate shall be based upon the opinion of a contractor reasonably selected by Landlord and experienced in comparable repair, reconstruction and restoration of similar buildings. Additionally, Landlord shall give written notice to Tenant within sixty (60) days following the date of damage or destruction of its election not to repair, reconstruct or restore the Building or the Project, as applicable.
24.4. Upon any termination of this Lease under any of the provisions of this Article, the parties shall be released thereby without further obligation to the other from the date possession of the Premises is surrendered to Landlord, except with regard to (a) items occurring prior to the damage or destruction and (b) provisions of this Lease that, by their express terms, survive the expiration or earlier termination hereof.
24.5. In the event of repair, reconstruction and restoration as provided in this Article, all Rent to be paid by Tenant under this Lease shall be abated proportionately from the date of casualty based on the extent to which Tenant’s use of the Premises is impaired during the period of such repair, reconstruction or restoration, unless Landlord provides Tenant with other space during the period of repair, reconstruction and restoration that, in Tenant’s reasonable opinion, is suitable for the temporary conduct of Tenant’s business; provided, however, that the amount of such abatement shall be reduced by the amount of Rent that is received by Tenant as part of the
business interruption or loss of rental income with respect to the Premises from the proceeds of business interruption or loss of rental income insurance actually received by Tenant with respect to the Premises.
24.6. Notwithstanding anything to the contrary contained in this Article, (a) Landlord shall not be required to repair, reconstruct or restore any damage or destruction to the extent that Landlord is prohibited from doing so by any applicable Loan Document or any Lender whose consent is required thereunder withholds its consent, and (b) should Landlord be delayed or prevented from completing the repair, reconstruction or restoration of the damage or destruction to the Premises after the occurrence of such damage or destruction by Force Majeure or delays caused by a Lender or Tenant Party, then the time for Landlord to commence or complete repairs, reconstruction and restoration shall be extended on a day-for-day basis; provided, however, that, (i) such day-for-day extension on account of a Force Majeure shall not exceed six (6) months after the date that Landlord has estimated for the completion of the repairs in the Damage Repair Estimate and (ii) at Landlord’s election, Landlord shall be relieved of its obligation to make such repairs, reconstruction and restoration, in which event this Lease shall automatically terminate upon written notice from Landlord.
24.7. If Landlord is obligated to or elects to repair, reconstruct or restore as herein provided, then Landlord shall be obligated to make such repairs, reconstruction or restoration only with regard to (a) those portions of the Premises that were originally provided at Landlord’s expense and (b) the Common Area portion of the Affected Areas. The repairs, reconstruction or restoration of improvements not originally provided by Landlord or at Landlord’s expense shall be the obligation of Tenant. In the event Tenant has elected to upgrade certain improvements from the Building Standard, Landlord shall, upon the need for replacement due to an insured loss, provide only the Building Standard, unless Tenant again elects to upgrade such improvements and pay any incremental costs related thereto, except to the extent that excess insurance proceeds, if received, are adequate to provide such upgrades, in addition to providing for basic repairs, reconstruction and restoration of the Premises, the Building and the Project.
24.8. Notwithstanding anything to the contrary contained in this Article, Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Premises if the damage resulting from any casualty covered under this Article occurs during the last twelve (12) months of the Term or any extension thereof, or to the extent that insurance proceeds are not available therefor.
24.9. Landlord’s obligation, should it elect or be obligated to repair, reconstruct or restore, shall be limited to the Affected Areas, and shall be conditioned upon Landlord receiving any permits or authorizations required by Applicable Laws. Tenant shall, at its expense, replace or fully repair all of Tenant’s personal property and any Alterations installed by Tenant existing at the time of such damage or destruction. If Affected Areas are to be repaired, reconstructed or restored in accordance with the foregoing, Landlord shall make available to Tenant any portion of insurance proceeds it receives that are allocable to the Alterations constructed by Tenant pursuant to this Lease; provided Tenant is not then in default under this Lease, and subject to the requirements of any Lender of Landlord.
24.10. This Article sets forth the terms and conditions upon which this Lease may terminate in the event of any damage or destruction. Accordingly, the parties hereby waive the provisions of any Applicable Laws (and any successor statutes) permitting the parties to terminate this Lease as a result of any damage or destruction.
25. Eminent Domain.
25.1. In the event (a) the whole of all Affected Areas or (b) such part thereof as shall substantially interfere with Tenant’s use and occupancy of the Premises for the Permitted Use shall be taken for any public or quasi-public purpose by any lawful power or authority by exercise of the right of appropriation, condemnation or eminent domain, or sold to prevent such taking, Tenant or Landlord may terminate this Lease effective as of the date
possession is required to be surrendered to such authority, except with regard to (y) items occurring prior to the taking and (z) provisions of this Lease that, by their express terms, survive the expiration or earlier termination hereof.
25.2. In the event of a partial taking of (a) the Building or the Project or (b) drives, walkways or parking areas serving the Building or the Project for any public or quasi-public purpose by any lawful power or authority by exercise of right of appropriation, condemnation, or eminent domain, or sold to prevent such taking, then, without regard to whether any portion of the Premises occupied by Tenant was so taken, Landlord may elect to terminate this Lease (except with regard to (a) items occurring prior to the taking and (b) provisions of this Lease that, by their express terms, survive the expiration or earlier termination hereof) as of such taking if such taking is, in Landlord’s sole opinion, of a material nature such as to make it uneconomical to continue use of the unappropriated portion for purposes of renting office or laboratory space.
25.3. To the extent permitted under all applicable Loan Documents or otherwise consented to by any and all Lenders whose consent is required thereunder, Tenant shall be entitled to any award that is specifically awarded as compensation for (a) the taking of Tenant’s personal property that was installed at Tenant’s expense and (b) the costs of Tenant moving to a new location and (c) the unamortized costs of any Alterations (and expressly excluding the Tenant Improvements) paid solely for by Tenant. Except as set forth in the previous sentence, any award for such taking shall be the property of Landlord.
25.4. If, upon any taking of the nature described in this Article, this Lease continues in effect, then Landlord shall promptly proceed to restore the Affected Areas to substantially their same condition prior to such partial taking. To the extent such restoration is infeasible, as determined by Landlord in its sole and absolute discretion, the Rent shall be decreased proportionately to reflect the loss of any portion of the Premises no longer available to Tenant. Notwithstanding anything to the contrary contained in this Article, Landlord shall not be required to restore the Affected Areas to the extent that Landlord is prohibited from doing so by any applicable Loan Document or any Lender whose consent is required thereunder withholds its consent.
25.5. This Article sets forth the terms and conditions upon which this Lease may terminate in the event of any taking. Accordingly, the parties hereby waive the provisions of any Applicable Laws (and any successor statutes) permitting the parties to terminate this Lease as a result of any damage or destruction.
26. Surrender.
26.1. At least thirty (30) days prior to Tenant’s surrender of possession of any part of the Premises, Tenant shall provide Landlord with a facility decommissioning and Hazardous Materials closure plan for the Premises (“Exit Survey”) prepared by an independent third party state-certified professional with appropriate expertise, which Exit Survey must be reasonably acceptable to Landlord. The Exit Survey shall comply with the American National Standards Institute’s Laboratory Decommissioning guidelines (ANSI/AIHA Z9.11-2008) or any successor standards published by ANSI or any successor organization (or, if ANSI and its successors no longer exist, a similar entity publishing similar standards). In addition, at least ten (10) days prior to Tenant’s surrender of possession of any part of the Premises, Tenant shall (a) provide Landlord with written evidence of all appropriate governmental releases obtained by Tenant in accordance with Applicable Laws, including laws pertaining to the surrender of the Premises, (b) place Laboratory Equipment Decontamination Forms on all decommissioned equipment to assure safe occupancy by future users and (c) conduct a site inspection with Landlord. In addition, Tenant agrees to remain responsible after the surrender of the Premises for the remediation of any recognized environmental conditions set forth in the Exit Survey and comply with any recommendations set forth in the Exit Survey. Tenant’s obligations under this Section shall survive the expiration or earlier termination of the Lease.
26.2. No surrender of possession of any part of the Premises shall release Tenant from any of its obligations hereunder, unless such surrender is accepted in writing by Landlord.
26.3. The voluntary or other surrender of this Lease by Tenant shall not effect a merger with Landlord’s fee title or leasehold interest in the Premises, the Building, the Property or the Project, unless Landlord consents in writing, and shall, at Landlord’s option, operate as an assignment to Landlord of any or all subleases.
26.4. The voluntary or other surrender of any ground or other underlying lease that now exists or may hereafter be executed affecting the Building or the Project, or a mutual cancellation thereof or of Landlord’s interest therein by Landlord and its lessor shall not effect a merger with Landlord’s fee title or leasehold interest in the Premises, the Building or the Property and shall, at the option of the successor to Landlord’s interest in the Building or the Project, as applicable, operate as an assignment of this Lease.
27. Holding Over.
27.1. If, with Landlord’s prior written consent, Tenant holds possession of all or any part of the Premises after the Term, Tenant shall become a tenant from month to month after the expiration or earlier termination of the Term, and in such case Tenant shall continue to pay (a) Base Rent in accordance with Article 7, as adjusted in accordance with Article 8, and (b) any amounts for which Tenant would otherwise be liable under this Lease if the Lease were still in effect, including payments for Tenant’s Adjusted Share of Operating. Any such month-to-month tenancy shall be subject to every other term, covenant and agreement contained herein.
27.2. Notwithstanding the foregoing, if Tenant remains in possession of the Premises after the expiration or earlier termination of the Term without Landlord’s prior written consent, (a) Tenant shall become a tenant at sufferance subject to the terms and conditions of this Lease, except that the monthly rent shall be equal to one hundred fifty percent (150%) of the Rent in effect during the last thirty (30) days of the Term, and (b) Tenant shall be liable to Landlord for any and all damages suffered by Landlord as a result of such holdover, including any lost rent or consequential, special and indirect damages (in each case, regardless of whether such damages are foreseeable).
27.3. Acceptance by Landlord of Rent after the expiration or earlier termination of the Term shall not result in an extension, renewal or reinstatement of this Lease.
27.4. The foregoing provisions of this Article are in addition to and do not affect Landlord’s right of reentry or any other rights of Landlord hereunder or as otherwise provided by Applicable Laws.
27.5. The provisions of this Article shall survive the expiration or earlier termination of this Lease.
28. Indemnification and Exculpation.
28.1. Subject to Section 23.8, Tenant agrees to Indemnify the Landlord Indemnitees from and against any and all Claims of any kind or nature, real or alleged, arising from (a) injury to or death of any person or damage to any property occurring within or about the Premises, the Building, the Property or the Project, arising directly or indirectly out of (i) the presence at or use or occupancy of the Premises or Project by a Tenant Party or (ii) an act or omission on the part of any Tenant Party, (b) a breach or default by Tenant in the performance of any of its obligations hereunder (including any Claim asserted by a Lender against any Landlord Indemnitees under any Loan Document as a direct result of such breach or default by Tenant) or (c) injury to or death of persons or damage to or loss of any property, real or alleged, arising from the serving of alcoholic beverages at the Premises or Project, including liability under any dram shop law, host liquor law or similar Applicable Law, except in each case to the extent arising directly from Landlord’s negligence or willful misconduct. Tenant’s obligations under this Section
shall not be affected, reduced or limited by any limitation on the amount or type of damages, compensation or benefits payable by or for Tenant under workers’ compensation acts, disability benefit acts, employee benefit acts or similar legislation. Tenant’s obligations under this Section shall survive the expiration or earlier termination of this Lease. Subject to Sections 23.7, 28.2 and 31.13 and any subrogation provisions contained in the Work Letter, Landlord agrees to Indemnify the Tenant Parties from and against any and all Claims arising from injury to or death of any person or damage to or loss of any physical property occurring within or about the Premises, the Building, the Property or the Project to the extent arising directly from Landlord’s gross negligence or willful misconduct.
28.2. Notwithstanding anything in this Lease to the contrary, Landlord shall not be liable to Tenant for and Tenant assumes all risk of (a) damage or losses arising from fire, electrical malfunction, gas explosion or water damage of any type (including broken water lines, malfunctioning fire sprinkler systems, roof leaks or stoppages of lines), unless any such loss is due to Landlord’s willful disregard of written notice by Tenant of need for a repair that Landlord is responsible to make for an unreasonable period of time, and (b) damage to personal property or scientific research, including loss of records kept by Tenant within the Premises (in each case, regardless of whether such damages are foreseeable). Tenant further waives any claim for injury to Tenant’s business or loss of income relating to any such damage or destruction of personal property as described in this Section. Notwithstanding anything in the foregoing or this Lease to the contrary, except (x) as otherwise provided herein (including Section 27.2), (y) as may be provided by Applicable Laws or (z) in the event of Tenant’s breach of Article 21 or Section 26.1, in no event shall Landlord or Tenant be liable to the other for any consequential, special or indirect damages arising from this Lease, including lost profits (provided that this Subsection 28.2(z) shall not limit Tenant’s liability for Base Rent or Additional Rent pursuant to this Lease).
28.3. Landlord shall not be liable for any damages arising from any act, omission or neglect of any other tenant in the Building or the Project, or of any other third party.
28.4. Tenant acknowledges that security devices and services, if any, while intended to deter crime, may not in given instances prevent theft or other criminal acts. Landlord shall not be liable for injuries or losses arising from criminal acts of third parties, and Tenant assumes the risk that any security device or service may malfunction or otherwise be circumvented by a criminal. If Tenant desires protection against such criminal acts, then Tenant shall, at Tenant’s sole cost and expense, obtain appropriate insurance coverage. Tenant’s security programs and equipment for the Premises shall be coordinated with Landlord and subject to Landlord’s reasonable approval.
28.5. The provisions of this Article shall survive the expiration or earlier termination of this Lease.
29. Assignment or Subletting.
29.1. Except as hereinafter expressly permitted, none of the following (each, a “Transfer”), either voluntarily or by operation of Applicable Laws, shall be directly or indirectly performed without Landlord’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed: (a) Tenant selling, hypothecating, assigning, pledging, encumbering or otherwise transferring this Lease or subletting the Premises or (b) a controlling interest in Tenant being sold, assigned or otherwise transferred (other than as a result of shares in Tenant being sold on a public stock exchange). For purposes of the preceding sentence, “control” means (f) owning (directly or indirectly) more than fifty percent (50%) of the stock or other equity interests of another person or (g) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. Notwithstanding the foregoing, Tenant shall have the right to Transfer, without Landlord’s prior written consent, Tenant’s interest in this Lease or the Premises or any part thereof to (i) any person that as of the date of determination and at all times thereafter directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with Tenant (“Tenant’s Affiliate”) or (ii) any person or any entity with which Tenant is merged or to which all or substantially all of Tenant’s assets or all or substantially all of the ownership interests in
Tenant are sold; provided that (in each instance under the foregoing clauses (i) and (ii)) Tenant shall notify Landlord in writing at least thirty (30) days prior to the effectiveness of such Transfer to Tenant’s Affiliate (an “Exempt Transfer”) and otherwise comply with the requirements of this Lease regarding such Transfer; and provided, further, that the person that will be the tenant under this Lease after the Exempt Transfer either is Tenant’s Affiliate or has a net worth (as of both the day immediately prior to and the day immediately after the Exempt Transfer) that is equal to or greater than the net worth (as of both the Execution Date and the date of the Exempt Transfer) of the transferring Tenant. For purposes of the immediately preceding sentence, “control” requires both (m) owning (directly or indirectly) more than fifty percent (50%) of the stock or other equity interests of another person and (n) possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of such person. In no event shall Tenant perform a Transfer to or with an entity that is a tenant at the Project or that is in discussions or negotiations with Landlord or an affiliate of Landlord to lease premises at the Project or a property owned by Landlord or an affiliate in Watertown, Massachusetts, except to the extent there is no comparable space available in any properties owned by Landlord or its affiliates in Watertown, Massachusetts.
29.2. In the event Tenant desires to effect a Transfer, then, at least thirty (30) but not more than ninety (90) days prior to the date when Tenant desires the Transfer to be effective (the “Transfer Date”), Tenant shall provide written notice to Landlord (the “Transfer Notice”) containing information (including references) concerning the character of the proposed transferee, assignee or sublessee; the Transfer Date; the most recent unconsolidated financial statements of Tenant and of the proposed transferee, assignee or sublessee satisfying the requirements of Section 40.2 (“Required Financials”); any ownership or commercial relationship between Tenant and the proposed transferee, assignee or sublessee; copies of Hazardous Materials Documents for the proposed transferee, assignee or sublessee; and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord shall reasonably require.
29.3. Landlord, in determining whether consent should be given to a proposed Transfer, may give consideration to (a) the financial strength of Tenant and of such transferee, assignee or sublessee (notwithstanding Tenant remaining liable for Tenant’s performance), (b) any change in use that such transferee, assignee or sublessee proposes to make in the use of the Premises and (c) Landlord’s desire to exercise its rights under Section 29.7 to cancel this Lease. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer if any applicable Loan Document prohibits such assignment or any Lender whose consent is required thereunder withholds its consent, or if the Transfer is to a transferee, assignee or sublessee of poor reputation, lacking financial qualifications or seeking a change in the Permitted Use, or jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that the rental or other amounts to be paid by the occupant, assignee, manager or other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not furnish or render any services to an occupant, assignee, manager or other transferee with respect to whom transfer consideration is required to be paid, or manage or operate the Premises or any capital additions so transferred, with respect to which transfer consideration is being paid; (y) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (z) Tenant shall not consummate a Transfer with any person or in any manner that could cause any portion of the amounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code. Notwithstanding anything in this Lease to the contrary, if (a) any proposed transferee, assignee or sublessee of Tenant has been required by any prior landlord, Lender or Governmental Authority to take material remedial action in connection with Hazardous Materials
contaminating a property if the contamination resulted from such party’s action or omission or use of the property in question or (b) any proposed transferee, assignee or sublessee is subject to a material enforcement order issued by any Governmental Authority in connection with the use, disposal or storage of Hazardous Materials, it shall not be unreasonable for Landlord to withhold its consent to any proposed transfer, assignment or subletting (with respect to any such matter involving a proposed transferee, assignee or sublessee).
29.4. The following are conditions precedent to a Transfer or to Landlord considering a request by Tenant to a Transfer:
(a) Tenant shall remain fully liable under this Lease. Tenant agrees that it shall not be (and shall not be deemed to be) a guarantor or surety of this Lease, however, and waives its right to claim that is it is a guarantor or surety or to raise in any legal proceeding any guarantor or surety defenses permitted by this Lease or by Applicable Laws;
(b) If Tenant or the proposed transferee, assignee or sublessee does not or cannot deliver the Required Financials, then Landlord may elect to have either Tenant’s ultimate parent company or the proposed transferee’s, assignee’s or sublessee’s ultimate parent company provide a guaranty of the applicable entity’s obligations under this Lease, in a form acceptable to Landlord, which guaranty shall be executed and delivered to Landlord by the applicable guarantor prior to the Transfer Date;
(c) In the case of an Exempt Transfer, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the Transfer qualifies as an Exempt Transfer;
(d) Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that the value of Landlord’s interest under this Lease shall not be diminished or reduced by the proposed Transfer. Such evidence shall include evidence respecting the relevant business experience and financial responsibility and status of the proposed transferee, assignee or sublessee;
(e) Tenant shall reimburse Landlord for Landlord’s actual costs and expenses, including reasonable attorneys’ fees, charges and disbursements incurred in connection with the review, processing and documentation of such request;
(f) If Tenant’s transfer of rights or sharing of the Premises provides for the receipt by, on behalf of or on account of Tenant of any consideration of any kind whatsoever (including a premium rental for a sublease or lump sum payment for an assignment, but excluding Tenant’s reasonable costs in marketing and subleasing the Premises) in excess of the rental and other charges due to Landlord under this Lease, Tenant shall pay fifty percent (50%) of all of such excess to Landlord, after making deductions for any reasonable marketing expenses, tenant improvement funds expended by Tenant, alterations, cash concessions, brokerage commissions, attorneys’ fees and free rent actually paid by Tenant. If such consideration consists of cash paid to Tenant, payment to Landlord shall be made upon receipt by Tenant of such cash payment;
(g) The proposed transferee, assignee or sublessee shall agree that, in the event Landlord gives such proposed transferee, assignee or sublessee notice that Tenant is in default under this Lease, such proposed transferee, assignee or sublessee shall thereafter make all payments otherwise due Tenant directly to Landlord, which payments shall be received by Landlord without any liability being incurred by Landlord, except to credit such payment against those due by Tenant under this Lease, and any such proposed transferee, assignee or sublessee shall agree to attorn to Landlord or its successors and assigns should this Lease be terminated for any reason; provided, however, that in no event shall Landlord or its Lenders, successors or assigns be obligated to accept such attornment;
(h) Landlord’s consent to any such Transfer shall be effected on Landlord’s forms;
(i) Tenant shall not then be in default hereunder in any respect;
(j) Such proposed transferee, assignee or sublessee’s use of the Premises shall be the same as the Permitted Use;
(k) Landlord shall not be bound by any provision of any agreement pertaining to the Transfer, except for Landlord’s written consent to the same;
(l) Tenant shall pay all transfer and other taxes (including interest and penalties) assessed or payable for any Transfer;
(m) Landlord’s consent (or waiver of its rights) for any Transfer shall not waive Landlord’s right to consent or refuse consent to any later Transfer;
(n) Tenant shall deliver to Landlord one executed copy of any and all written instruments evidencing or relating to the Transfer; and
(o) Tenant shall deliver to Landlord a list of Hazardous Materials (as defined below), certified by the proposed transferee, assignee or sublessee to be true and correct, that the proposed transferee, assignee or sublessee intends to use or store in the Premises. Additionally, Tenant shall deliver to Landlord, on or before the date any proposed transferee, assignee or sublessee takes occupancy of the Premises, all of the items relating to Hazardous Materials of such proposed transferee, assignee or sublessee as described in Section 21.2.
29.5. Any Transfer that is not in compliance with the provisions of this Article or with respect to which Tenant does not fulfill its obligations pursuant to this Article shall be void.
29.6. Notwithstanding any Transfer, Tenant shall remain fully and primarily liable for the payment of all Rent and other sums due or to become due hereunder, and for the full performance of all other terms, conditions and covenants to be kept and performed by Tenant. The acceptance of Rent or any other sum due hereunder, or the acceptance of performance of any other term, covenant or condition thereof, from any person or entity other than Tenant shall not be deemed a waiver of any of the provisions of this Lease or a consent to any Transfer.
29.7. If Tenant delivers to Landlord a Transfer Notice indicating a desire to transfer this Lease or greater than seventy-five percent (75%) of the Rentable Area of the Premises to a proposed transferee, assignee or Sublessee (other than an Exempt Transfer) with a proposed term of all or substantially all of the then-remaining balance of the Term (which excludes any extensions of the Term that have not been timely exercised by Tenant in accordance with Section 42 prior to the date of the Transfer Notice), then Landlord shall have the option, exercisable by giving notice to Tenant at any time within thirty (30) days after Landlord’s receipt of such Transfer Notice, to terminate this Lease as of the later of (i) the date specified in the Transfer Notice as the Transfer Date, and (ii) nine (9) months after the date Landlord notifies Tenant that it has elected to terminate this Lease pursuant to this Section 29.7, except for those provisions that, by their express terms, survive the expiration or earlier termination hereof. If Landlord exercises such option, then Tenant shall have the right to withdraw such Transfer Notice by delivering to Landlord written notice of such election within five (5) days after Landlord’s delivery of notice electing to exercise Landlord’s option to terminate this Lease. In the event Tenant withdraws the Transfer Notice as provided in this Section, this Lease shall continue in full force and effect. No failure of Landlord to exercise its option to terminate this Lease shall be deemed to be Landlord’s consent to a proposed Transfer.
29.8. If Tenant sublets the Premises or any portion thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s obligations under this Lease, all rent from any such subletting, and appoints Landlord as assignee and attorney-in-fact for Tenant, and Landlord (or a receiver for Tenant appointed
on Landlord’s application) may collect such rent and apply it toward Tenant’s obligations under this Lease; provided that, until the occurrence of a Default (as defined below) by Tenant, Tenant shall have the right to collect such rent.
29.9. In the event that Tenant enters into a sublease for the entire Premises in accordance with this Article that expires within two (2) days of the Term Expiration Date, the term expiration date of such sublease shall, notwithstanding anything in this Lease, the sublease or any consent to the sublease to the contrary, be deemed to be the date that is two (2) days prior to the Term Expiration Date.
30. Subordination and Attornment.
30.1. This Lease shall be subject and subordinate to the lien of any mortgage, deed of trust, or lease in which Landlord is tenant now or hereafter in force against the Building or the Project and to all advances made or hereafter to be made upon the security thereof without the necessity of the execution and delivery of any further instruments on the part of Tenant to effectuate such subordination. Landlord shall use commercially reasonable efforts to deliver to Tenant a subordination, non-disturbance and attornment agreement (“SNDA”) from Landlord’s existing Lender on its then-customary form within sixty (60) days following the Term Commencement Date, and from any future Lender within sixty (60) days of the date that Landlord obtains from such Lender additional financing secured by the Building during the Term.
30.2. Notwithstanding the foregoing, Tenant shall execute and deliver upon demand such further instrument or instruments evidencing such subordination of this Lease to the lien of any such mortgage or mortgages or deeds of trust or lease in which Landlord is tenant as may be required by Landlord. If any Lender so elects, however, this Lease shall be deemed prior in lien to any such lease, mortgage, or deed of trust upon or including the Premises regardless of date and Tenant shall execute a statement in writing to such effect at Landlord’s request. If Tenant fails to execute any document required from Tenant under this Section within ten (10) days after written request therefor, Tenant hereby constitutes and appoints Landlord or its special attorney-in-fact to execute and deliver any such document or documents in the name of Tenant. Such power is coupled with an interest and is irrevocable. For the avoidance of doubt, “Lenders” shall also include historic tax credit investors and new market tax credit investors.
30.3. Upon written request of Landlord and opportunity for Tenant to review, Tenant agrees to execute any Lease amendments not materially altering the terms of this Lease, if required by a Lender incident to the financing of the real property of which the Premises constitute a part.
30.4. In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under any mortgage or deed of trust made by Landlord covering the Premises, Tenant shall at the election of the purchaser at such foreclosure or sale attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as Landlord under this Lease.
31. Defaults and Remedies.
31.1. Late payment by Tenant to Landlord of Rent and other sums due shall cause Landlord to incur costs not contemplated by this Lease, the exact amount of which shall be extremely difficult and impracticable to ascertain. Such costs include processing and accounting charges and late charges that may be imposed on Landlord by the terms of any mortgage or trust deed covering the Premises. Therefore, if any installment of Rent due from Tenant is not received by Landlord within three (3) days after the date such payment is due, Tenant shall pay to Landlord (a) an additional sum of six percent (6%) of the overdue Rent as a late charge plus (b) interest at an annual rate (the “Default Rate”) equal to the lesser of (a) twelve percent (12%) and (b) the highest rate permitted by Applicable Laws. The parties agree that this late charge represents a fair and reasonable estimate of the costs that Landlord shall incur by reason of late payment by Tenant and shall be payable as Additional Rent to Landlord due with the
next installment of Rent or within five (5) business days after Landlord’s demand, whichever is earlier. Landlord’s acceptance of any Additional Rent (including a late charge or any other amount hereunder) shall not be deemed an extension of the date that Rent is due or prevent Landlord from pursuing any other rights or remedies under this Lease, at law or in equity.
31.2. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent payment herein stipulated shall be deemed to be other than on account of the Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such Rent or pursue any other remedy provided in this Lease or in equity or at law. If a dispute shall arise as to any amount or sum of money to be paid by Tenant to Landlord hereunder, Tenant shall have the right to make payment “under protest,” such payment shall not be regarded as a voluntary payment, and there shall survive the right on the part of Tenant to institute suit for recovery of the payment paid under protest.
31.3. If Tenant fails to pay any sum of money required to be paid by it hereunder or perform any other act on its part to be performed hereunder, in each case within the applicable cure period (if any) described in Section 31.4, then Landlord may (but shall not be obligated to), without waiving or releasing Tenant from any obligations of Tenant, make such payment or perform such act; provided that such failure by Tenant unreasonably interfered with the use of the Building or the Project by any other tenant or with the efficient operation of the Building or the Project, or resulted or could have resulted in a violation of Applicable Laws or the cancellation of an insurance policy maintained by Landlord. Notwithstanding the foregoing, in the event of an emergency, Landlord shall have the right to enter the Premises and act in accordance with its rights as provided elsewhere in this Lease. In addition to the late charge described in Section 31.1, Tenant shall pay to Landlord as Additional Rent all sums so paid or incurred by Landlord, together with interest at the Default Rate, computed from the date such sums were paid or incurred.
31.4. The occurrence of any one or more of the following events shall constitute a “Default” hereunder by Tenant:
(a) Tenant abandons the Premises;
(b) Tenant fails to make any payment of Rent, as and when due, or to satisfy its obligations under Article 19, where such failure shall continue for a period of three (3) days after written notice thereof from Landlord to Tenant;
(c) Tenant fails to observe or perform any obligation or covenant contained herein (other than described in Sections 31.4(a) and 31.4(b)) to be performed by Tenant, where such failure continues for a period of ten (10) days after written notice thereof from Landlord to Tenant; provided that, if the nature of Tenant’s default is such that it reasonably requires more than ten (10) days to cure, Tenant shall not be deemed to be in Default if Tenant commences such cure within such ten (10) day period and thereafter diligently prosecutes the same to completion; and provided, further, that such cure is completed no later than ninety (90) days after Tenant’s receipt of written notice from Landlord;
(d) Tenant makes an assignment for the benefit of creditors;
(e) A receiver, trustee or custodian is appointed to or does take title, possession or control of all or substantially all of Tenant’s assets;
(f) Tenant files a voluntary petition under the United States Bankruptcy Code or any successor statute (as the same may be amended from time to time, the “Bankruptcy Code”) or an order for relief is entered against Tenant pursuant to a voluntary or involuntary proceeding commenced under any chapter of the Bankruptcy Code;
(g) Any involuntary petition is filed against Tenant under any chapter of the Bankruptcy Code and is not dismissed within one hundred twenty (120) days;
(h) Tenant fails to deliver an estoppel certificate in accordance with Article 20; or
(i) Tenant’s interest in this Lease is attached, executed upon or otherwise judicially seized and such action is not released within one hundred twenty (120) days of the action.
Notices given under this Section shall specify the alleged default and shall demand that Tenant perform the provisions of this Lease or pay the Rent that is in arrears, as the case may be, within the applicable period of time, or quit the Premises. No such notice shall be deemed a forfeiture or a termination of this Lease unless Landlord elects otherwise in such notice.
31.5. In the event of a Chronic Delinquency (as defined below), Landlord may, in addition to all other remedies under this Lease, at law or in equity, require that Tenant thereafter pay Rent quarterly in advance. This provision shall not limit in any way nor be construed as a waiver of Landlord’s rights and remedies contained in this Lease, at law or in equity in the event of a default. “Chronic Delinquency” means that Tenant commits a Default pursuant to Section 31.4(b) three (3) times in any twelve (12) month period.
31.6. In the event of a Default by Tenant, and at any time thereafter, with or without notice or demand and without limiting Landlord in the exercise of any right or remedy that Landlord may have, Landlord has the right to do any or all of the following:
(a) Halt any Tenant Improvements and Alterations and order Tenant’s contractors, subcontractors, consultants, designers and material suppliers to stop work;
(b) Terminate Tenant’s right to possession of the Premises by written notice to Tenant or by any lawful means, in which case Tenant shall immediately surrender possession of the Premises to Landlord. In such event, Landlord shall have the immediate right to re-enter and remove all persons and property, and such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass or becoming liable for any loss or damage that may be occasioned thereby; and
(c) Terminate this Lease, in which event Tenant shall immediately surrender possession of the Premises to Landlord. In such event, Landlord shall have the immediate right to re-enter and remove all persons and property, and such property may be removed and stored in a public warehouse or elsewhere at the cost and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass or becoming liable for any loss or damage that may be occasioned thereby. In the event that Landlord shall elect to so terminate this Lease, then Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant’s default, including the sum of:
(i) The worth at the time of award of any unpaid Rent that had accrued at the time of such termination; plus
(ii) The costs of restoring the Premises to the condition required under the terms of this Lease; plus
(iii) An amount (the “Election Amount”) equal to either (A) the positive difference (if any, and measured at the time of such termination) between (1) the then-present value of the total Rent and other benefits that would have accrued to Landlord under this Lease for the remainder of the Term if Tenant had fully complied with the Lease minus (2) the then-present cash rental value of the Premises as determined by Landlord for what would be the then-unexpired Term if the Lease remained in effect, computed using the discount rate of the Federal Reserve Bank of San Francisco at the time of the award plus one (1) percentage point (the “Discount Rate”) or (B) twelve (12) months (or such lesser number of months as may then be remaining in the Term) of Base Rent and Additional Rent at the rate last payable by Tenant pursuant to this Lease, in either case as Landlord specifies in such election. Landlord and Tenant agree that the Election Amount represents a reasonable forecast of the minimum damages expected to occur in the event of a breach, taking into account the uncertainty, time and cost of determining elements relevant to actual damages, such as fair market rent, time and costs that may be required to re-lease the Premises, and other factors; and that the Election Amount is not a penalty.
As used in Section 31.6(c)(i), “worth at the time of award” shall be computed by allowing interest at the Default Rate.
31.7. In addition to any other remedies available to Landlord at law or in equity and under this Lease, Landlord may continue this Lease in effect after Tenant’s Default or abandonment and recover Rent as it becomes due. In addition, Landlord shall not be liable in any way whatsoever for its failure or refusal to relet the Premises. For purposes of this Section, the following acts by Landlord will not constitute the termination of Tenant’s right to possession of the Premises:
(a) Acts of maintenance or preservation or efforts to relet the Premises, including alterations, remodeling, redecorating, repairs, replacements or painting as Landlord shall consider advisable for the purpose of reletting the Premises or any part thereof; or
(b) The appointment of a receiver upon the initiative of Landlord to protect Landlord’s interest under this Lease or in the Premises.
Notwithstanding the foregoing, in the event of a Default by Tenant, Landlord may elect at any time to terminate this Lease and to recover damages to which Landlord is entitled.
31.8. If Landlord does not elect to terminate this Lease as provided in Section 31.6, then Landlord may, from time to time, recover all Rent as it becomes due under this Lease. At any time thereafter, Landlord may elect to terminate this Lease and to recover damages to which Landlord is entitled.
31.9. In the event Landlord elects to terminate this Lease and relet the Premises, Landlord may execute any new lease in its own name. Tenant hereunder shall have no right or authority whatsoever to collect any Rent from such tenant. The proceeds of any such reletting shall be applied as follows:
(a) First, to the payment of any indebtedness other than Rent due hereunder from Tenant to Landlord, including storage charges or brokerage commissions owing from Tenant to Landlord as the result of such reletting;
(b) Second, to the payment of the costs and expenses of reletting the Premises, including (i) alterations and repairs that Landlord deems reasonably necessary and advisable and (ii) reasonable attorneys’ fees, charges and disbursements incurred by Landlord in connection with the retaking of the Premises and such reletting;
(c) Third, to the payment of Rent and other charges due and unpaid hereunder; and
(d) Fourth, to the payment of future Rent and other damages payable by Tenant under this Lease.
31.10. All of Landlord’s rights, options and remedies hereunder shall be construed and held to be nonexclusive and cumulative. Landlord shall have the right to pursue any one or all of such remedies, or any other remedy or relief that may be provided by Applicable Laws, whether or not stated in this Lease. No waiver of any default of Tenant hereunder shall be implied from any acceptance by Landlord of any Rent or other payments due hereunder or any omission by Landlord to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect defaults other than as specified in such waiver. Notwithstanding any provision of this Lease to the contrary, in no event shall Landlord be required to mitigate its damages with respect to any default by Tenant, except as required by Applicable Laws. Any such obligation imposed by Applicable Laws upon Landlord to relet the Premises after any termination of this Lease shall be subject to the reasonable requirements of Landlord to (a) lease to high quality tenants on such terms as Landlord may from time to time deem appropriate in its discretion and (b) develop the Project in a harmonious manner with a mix of uses, tenants, floor areas, terms of tenancies, etc., as determined by Landlord. Landlord shall not be obligated to relet the Premises to (y) any Tenant’s Affiliate or (z) any party (i) unacceptable to a Lender, (ii) that requires Landlord to make improvements to or re-demise the Premises, (iii) that desires to change the Permitted Use, (iv) that desires to lease the Premises for more or less than the remaining Term or (v) to whom Landlord or an affiliate of Landlord may desire to lease other available space in the Project or at another property owned by Landlord or an affiliate of Landlord.
31.11. Landlord’s termination of (a) this Lease or (b) Tenant’s right to possession of the Premises shall not relieve Tenant of any liability to Landlord that has previously accrued or that shall arise based upon events that occurred prior to the later to occur of (y) the date of Lease termination and (z) the date Tenant surrenders possession of the Premises.
31.12. To the extent permitted by Applicable Laws, Tenant waives any and all rights of redemption granted by or under any present or future Applicable Laws if Tenant is evicted or dispossessed for any cause, or if Landlord obtains possession of the Premises due to Tenant’s default hereunder or otherwise.
31.13. Landlord shall not be in default or liable for damages under this Lease unless Landlord fails to perform obligations required of Landlord within a reasonable time, but in no event shall such failure continue for more than thirty (30) days after written notice from Tenant specifying the nature of Landlord’s failure; provided, however, that if the nature of Landlord’s obligation is such that more than thirty (30) days are required for its performance, then Landlord shall not be in default if Landlord commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. In no event shall Tenant have the right to terminate or cancel this Lease or to withhold or abate rent or to set off any Claims against Rent as a result of any default or breach by Landlord of any of its covenants, obligations, representations, warranties or promises hereunder, except as may otherwise be expressly set forth in this Lease.
31.14. In the event of any default by Landlord, Tenant shall give notice by registered or certified mail to any (a) beneficiary of a deed of trust or (b) mortgagee under a mortgage covering the Premises, the Building or the Project and to any landlord of any lease of land upon or within which the Premises, the Building or the Project is located, and shall offer such beneficiary, mortgagee or landlord a reasonable opportunity to cure the default, including time to obtain possession of the Building or the Project by power of sale or a judicial action if such should prove necessary to effect a cure; provided that Landlord shall furnish to Tenant in writing, upon written request by Tenant, the names and addresses of all such persons who are to receive such notices.
32. Bankruptcy. In the event a debtor, trustee or debtor in possession under the Bankruptcy Code, or another person with similar rights, duties and powers under any other Applicable Laws, proposes to cure any default under this Lease or to assume or assign this Lease and is obliged to provide adequate assurance to Landlord that (a) a default shall be cured, (b) Landlord shall be compensated for its damages arising from any breach of this Lease
and (c) future performance of Tenant’s obligations under this Lease shall occur, then such adequate assurances shall include any or all of the following, as designated by Landlord in its sole and absolute discretion:
32.1. Those acts specified in the Bankruptcy Code or other Applicable Laws as included within the meaning of “adequate assurance,” even if this Lease does not concern a shopping center or other facility described in such Applicable Laws;
32.2. A prompt cash payment to compensate Landlord for any monetary defaults or actual damages arising directly from a breach of this Lease;
32.3. A cash deposit in an amount at least equal to the then-current amount of the Security Deposit; or
32.4. The assumption or assignment of all of Tenant’s interest and obligations under this Lease.
33. Brokers.
33.1 Tenant represents and warrants that it has had no dealings with any real estate broker or agent in connection with the negotiation of this Lease other than CBRE (“Broker”), and that it knows of no other real estate broker or agent that is or might be entitled to a commission in connection with this Lease. Landlord shall compensate Broker in relation to this Lease pursuant to a separate agreement between Landlord and Broker.
33.2 Tenant represents and warrants that no broker or agent has made any representation or warranty relied upon by Tenant in Tenant’s decision to enter into this Lease, other than as contained in this Lease.
33.3 Tenant acknowledges and agrees that the employment of brokers by Landlord is for the purpose of solicitation of offers of leases from prospective tenants and that no authority is granted to any broker to furnish any representation (written or oral) or warranty from Landlord unless expressly contained within this Lease. Landlord is executing this Lease in reliance upon Tenant’s representations, warranties and agreements contained within Sections 33.1 and 33.2.
33.4 Tenant agrees to Indemnify the Landlord Indemnitees from any and all cost or liability for compensation claimed by any broker or agent, other than Broker, employed or engaged by Tenant or claiming to have been employed or engaged by Tenant.
33.5 Landlord represents and warrants that it has had no dealings with any real estate broker or agent in connection with the negotiation of this Lease other than Broker, and that it knows of no other real estate broker or agent that is or might be entitled to a commission in connection with this Lease. Landlord agrees to indemnify, save, defend (at Tenant’s option and with counsel reasonably acceptable to Tenant) and hold Tenant harmless from any and all cost or liability resulting from Landlord’s breach of said representation and warranty.
34. Definition of Landlord. With regard to obligations imposed upon Landlord pursuant to this Lease, the term “Landlord,” as used in this Lease, shall refer only to Landlord or Landlord’s then-current successor-in-interest. In the event of any transfer, assignment or conveyance of Landlord’s interest in this Lease or in Landlord’s fee title to or leasehold interest in the Property, as applicable, Landlord herein named (and in case of any subsequent transfers or conveyances, the subsequent Landlord) shall be automatically freed and relieved, from and after the date of such transfer, assignment or conveyance, from all liability for the performance of any covenants or obligations contained in this Lease thereafter to be performed by Landlord and, without further agreement, the transferee, assignee or conveyee of Landlord’s in this Lease or in Landlord’s fee title to or leasehold interest in the Property, as applicable, shall be deemed to have assumed and agreed to observe and perform any and all covenants
and obligations of Landlord hereunder during the tenure of its interest in the Lease or the Property. Landlord or any subsequent Landlord may transfer its interest in the Premises or this Lease without Tenant’s consent.
35. Limitation of Landlord’s Liability.
35.1 If Landlord is in default under this Lease and, as a consequence, Tenant recovers a monetary judgment against Landlord, the judgment shall be satisfied only out of (a) the proceeds of sale received on execution of the judgment and levy against the right, title and interest of Landlord in the Building and the Project, (b) rent or other income from such real property receivable by Landlord or (c) the consideration received by Landlord from the sale, financing, refinancing or other disposition of all or any part of Landlord’s right, title or interest in the Building or the Project.
35.2 Neither Landlord nor any of its affiliates, nor any of their respective partners, shareholders, directors, officers, employees, members or agents shall be personally liable for Landlord’s obligations or any deficiency under this Lease, and service of process shall not be made against any shareholder, director, officer, employee or agent of Landlord or any of Landlord’s affiliates. No partner, shareholder, director, officer, employee, member or agent of Landlord or any of its affiliates shall be sued or named as a party in any suit or action, and service of process shall not be made against any partner or member of Landlord except as may be necessary to secure jurisdiction of the partnership, joint venture or limited liability company, as applicable. No partner, shareholder, director, officer, employee, member or agent of Landlord or any of its affiliates shall be required to answer or otherwise plead to any service of process, and no judgment shall be taken or writ of execution levied against any partner, shareholder, director, officer, employee, member or agent of Landlord or any of its affiliates.
35.3 Each of the covenants and agreements of this Article shall be applicable to any covenant or agreement either expressly contained in this Lease or imposed by Applicable Laws and shall survive the expiration or earlier termination of this Lease.
36. Joint and Several Obligations. If more than one person or entity executes this Lease as Tenant, then:
36.1. Each of them is jointly and severally liable for the keeping, observing and performing of all of the terms, covenants, conditions, provisions and agreements of this Lease to be kept, observed or performed by Tenant, and such terms, covenants, conditions, provisions and agreements shall be binding with the same force and effect upon each and all of the persons executing this Agreement as Tenant; and
36.2. The term “Tenant,” as used in this Lease, shall mean and include each of them, jointly and severally. The act of, notice from, notice to, refund to, or signature of any one or more of them with respect to the tenancy under this Lease, including any renewal, extension, expiration, termination or modification of this Lease, shall be binding upon each and all of the persons executing this Lease as Tenant with the same force and effect as if each and all of them had so acted, so given or received such notice or refund, or so signed.
37. Representations. Tenant guarantees, warrants and represents that (a) Tenant is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (b) Tenant has and is duly qualified to do business in the state in which the Property is located, (c) Tenant has full corporate, partnership, trust, association or other appropriate power and authority to enter into this Lease and to perform all Tenant’s obligations hereunder, (d) each person (and all of the persons if more than one signs) signing this Lease on behalf of Tenant is duly and validly authorized to do so and (e) neither (i) the execution, delivery or performance of this Lease nor (ii) the consummation of the transactions contemplated hereby will violate or conflict with any provision of documents or instruments under which Tenant is constituted or to which Tenant is a party. In addition, Tenant guarantees, warrants and represents that none of
(x) it, (y) its affiliates or partners nor (z) to the best of its knowledge, having made no independent inquiry, its employees, officers, directors, representatives or agents is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) or other similar governmental action.
38. Confidentiality. Tenant shall keep the terms and conditions of this Lease and any information provided to Tenant or its employees, agents or contractors pursuant to Article 9 confidential and shall not (a) disclose to any third party any terms or conditions of this Lease or any other Lease-related document (including subleases, assignments, work letters, construction contracts, letters of credit, subordination agreements, non-disturbance agreements, brokerage agreements or estoppels) or the contents of any documents, reports, surveys or evaluations related to the Project or any portion thereof or (b) provide to any third party an original or copy of this Lease (or any Lease-related document or other document referenced in Subsection 38(a)); provided, however, the foregoing shall not apply to any information required to be disclosed by Applicable Laws at any time while Tenant is a corporation whose shares are traded on any nationally recognized stock exchange. Landlord shall not release to any third party any non-public financial information or non-public information about Tenant’s ownership structure that Tenant gives Landlord. Notwithstanding the foregoing, confidential information under this Section may be released by Landlord or Tenant under the following circumstances: (x) if required by Applicable Laws or in any judicial proceeding; provided that the releasing party has given the other party reasonable notice of such requirement, if feasible, (y) to a party’s attorneys, accountants, brokers, lenders, potential lenders, investors, potential investors and other bona fide consultants or advisers (with respect to this Lease only); provided such third parties agree to be bound by this Section or (z) to bona fide prospective assignees or subtenants of this Lease; provided they agree in writing to be bound by this Section.
39. Notices. Except as otherwise stated in this Lease, any notice, consent, demand, invoice, statement or other communication required or permitted to be given hereunder shall be in writing and shall be given by (a) personal delivery, (b) overnight delivery with a reputable international overnight delivery service, such as FedEx, or (c) facsimile or email transmission, so long as such transmission is followed within one (1) business day by delivery utilizing one of the methods described in Subsection 39(a) or (b). Any such notice, consent, demand, invoice, statement or other communication shall be deemed delivered (x) upon receipt, if given in accordance with Subsection 39(a); (y) one (1) business day after deposit with a reputable international overnight delivery service, if given in accordance with Subsection 39(b); or (z) upon transmission, if given in accordance with Subsection 39(c). Except as otherwise stated in this Lease, any notice, consent, demand, invoice, statement or other communication required or permitted to be given pursuant to this Lease shall be addressed to Tenant at the Premises, or to Landlord or Tenant at the addresses shown in Sections 2.9 and 2.10 or 2.11, respectively. Either party may, by notice to the other given pursuant to this Section, specify additional or different addresses for notice purposes.
40. Miscellaneous.
40.1. Landlord reserves the right to change the name of the Building or the Project in its sole discretion.
40.2. To induce Landlord to enter into this Lease, Tenant agrees that it shall furnish to Landlord, from time to time, within ten (10) business days after receipt of Landlord’s written request, the most recent year-end unconsolidated financial statements reflecting Tenant’s current financial condition audited by a nationally recognized accounting firm. Tenant shall, within ninety (90) days after the end of Tenant’s financial year, furnish Landlord with a certified copy of Tenant’s year-end unconsolidated financial statements for the previous year
audited by a nationally recognized accounting firm. Tenant represents and warrants that all financial statements, records and information furnished by Tenant to Landlord in connection with this Lease are true, correct and complete in all respects. If audited financials are not otherwise prepared, unaudited financials complying with generally accepted accounting principles and certified by the chief financial officer of Tenant as true, correct and complete in all respects shall suffice for purposes of this Section. If Tenant fails to deliver to Landlord any financial statement within the time period required under this Section, then Tenant shall be required to pay to Landlord an administrative fee equal to One Thousand Dollars ($1,000) within five (5) business days after receiving written notice from Landlord advising Tenant of such failure (provided, however, that Landlord’s acceptance of such fee shall not prevent Landlord from pursuing any other rights or remedies under this Lease, at law or in equity). The provisions of this Section shall not apply at any time while Tenant is a corporation whose shares are traded on any nationally recognized stock exchange.
40.3. Submission of this instrument for examination or signature by Tenant does not constitute a reservation of or option for a lease, and shall not be effective as a lease or otherwise until execution by and delivery to both Landlord and Tenant.
40.4. The terms of this Lease are intended by the parties as a final, complete and exclusive expression of their agreement with respect to the terms that are included herein, and may not be contradicted or supplemented by evidence of any other prior or contemporaneous agreement.
40.5. Upon the request of either Landlord or Tenant, the parties shall execute a document in recordable form containing only such information as is necessary to constitute a Notice of Lease under Massachusetts law. All costs of preparing and recording such notice shall be borne by the requesting party. Within ten (10) days after receipt of written request from Landlord after the expiration or earlier termination of this Lease, Tenant shall execute a termination of any Notice of Lease recorded with respect hereto. Neither party shall record this Lease.
40.6. Where applicable in this Lease, the singular includes the plural and the masculine or neuter includes the masculine, feminine and neuter. The words “include,” “includes,” “included” and “including” mean “‘include,’ etc., without limitation.” The word “shall” is mandatory and the word “may” is permissive. The word “business day” means a calendar day other than any national or local holiday on which federal government agencies in the County of Middlesex are closed for business, or any weekend. The section headings of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part of this Lease. Landlord and Tenant have each participated in the drafting and negotiation of this Lease, and the language in all parts of this Lease shall be in all cases construed as a whole according to its fair meaning and not strictly for or against either Landlord or Tenant.
40.7. Except as otherwise expressly set forth in this Lease, each party shall pay its own costs and expenses incurred in connection with this Lease and such party’s performance under this Lease; provided that, if either party commences an action, proceeding, demand, claim, action, cause of action or suit against the other party arising from or in connection with this Lease, then the substantially prevailing party shall be reimbursed by the other party for all reasonable costs and expenses, including reasonable attorneys’ fees and expenses, incurred by the substantially prevailing party in such action, proceeding, demand, claim, action, cause of action or suit, and in any appeal in connection therewith (regardless of whether the applicable action, proceeding, demand, claim, action, cause of action, suit or appeal is voluntarily withdrawn or dismissed). In addition, Landlord shall, upon demand, be entitled to all reasonable attorneys’ fees and all other reasonable costs incurred in the preparation and service of any notice or demand hereunder, regardless of whether a legal action is subsequently commenced, or incurred in connection with any contested matter or other proceeding in bankruptcy court concerning this Lease.
40.8. Time is of the essence with respect to the performance of every provision of this Lease.
40.9. Each provision of this Lease performable by Tenant shall be deemed both a covenant and a condition.
40.10. Notwithstanding anything to the contrary contained in this Lease, Tenant’s obligations under this Lease are independent and shall not be conditioned upon performance by Landlord.
40.11. Whenever consent or approval of either party is required, that party shall not unreasonably withhold, condition or delay such consent or approval, except as may be expressly set forth to the contrary.
40.12. Any provision of this Lease that shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof, and all other provisions of this Lease shall remain in full force and effect and shall be interpreted as if the invalid, void or illegal provision did not exist.
40.13. Each of the covenants, conditions and agreements herein contained shall inure to the benefit of and shall apply to and be binding upon the parties hereto and their respective heirs; legatees; devisees; executors; administrators; and permitted successors and assigns. This Lease is for the sole benefit of the parties and their respective heirs, legatees, devisees, executors, administrators and permitted successors and assigns, and nothing in this Lease shall give or be construed to give any other person or entity any legal or equitable rights. Nothing in this Section shall in any way alter the provisions of this Lease restricting assignment or subletting.
40.14. This Lease shall be governed by, construed and enforced in accordance with the laws of the state in which the Premises are located, without regard to such state’s conflict of law principles.
40.15. Tenant guarantees, warrants and represents that the individual or individuals signing this Lease have the power, authority and legal capacity to sign this Lease on behalf of and to bind all entities, corporations, partnerships, limited liability companies, joint venturers or other organizations and entities on whose behalf such individual or individuals have signed.
40.16. This Lease may be executed in one or more counterparts, each of which, when taken together, shall constitute one and the same document.
40.17. No provision of this Lease may be modified, amended or supplemented except by an agreement in writing signed by Landlord and Tenant.
40.18. No waiver of any term, covenant or condition of this Lease shall be binding upon Landlord unless executed in writing by Landlord. The waiver by Landlord of any breach or default of any term, covenant or condition contained in this Lease shall not be deemed to be a waiver of any preceding or subsequent breach or default of such term, covenant or condition or any other term, covenant or condition of this Lease.
40.19. To the extent permitted by Applicable Laws, the parties waive trial by jury in any action, proceeding or counterclaim brought by the other party hereto related to matters arising from or in any way connected with this Lease; the relationship between Landlord and Tenant; Tenant’s use or occupancy of the Premises; or any claim of injury or damage related to this Lease or the Premises.
41. Rooftop Installation Area.
41.1. Tenant may use those portions of the Building identified as a “Rooftop Installation Area” on Exhibit A attached hereto (the “Rooftop Installation Area”) solely to operate, maintain, repair and replace rooftop antennae, mechanical equipment, communications antennas and other equipment installed by Tenant in the Rooftop Installation Area in accordance with this Article (“Tenant’s Rooftop Equipment”). Tenant’s Rooftop Equipment shall be only for Tenant’s use of the Premises for the Permitted Use.
41.2. Tenant shall install Tenant’s Rooftop Equipment at its sole cost and expense, at such times and in such manner as Landlord may reasonably designate, and in accordance with this Article and the applicable provisions of this Lease regarding Alterations. Tenant’s Rooftop Equipment and the installation thereof shall be subject to Landlord’s prior written approval, which approval shall not be unreasonably withheld. Among other reasons, Landlord may withhold approval if the installation or operation of Tenant’s Rooftop Equipment could reasonably be expected to damage the structural integrity of the Building or to transmit vibrations or noise or cause other adverse effects beyond the Premises to an extent not customary in first class laboratory buildings, unless Tenant implements measures that are acceptable to Landlord in its reasonable discretion to avoid any such damage or transmission.
41.3. Tenant shall comply with any roof or roof-related warranties. Tenant shall obtain a letter from Landlord’s roofing contractor within thirty (30) days after completion of any Tenant work on the rooftop stating that such work did not affect any such warranties. Tenant, at its sole cost and expense, shall inspect the Rooftop Installation Area at least annually, and correct any loose bolts, fittings or other appurtenances and repair any damage to the roof arising from the installation or operation of Tenant’s Rooftop Equipment. Tenant shall not permit the installation, maintenance or operation of Tenant’s Rooftop Equipment to violate any Applicable Laws or constitute a nuisance. Tenant shall pay Landlord within thirty (30) days after demand (a) all applicable taxes, charges, fees or impositions imposed on Landlord by Governmental Authorities as the result of Tenant’s use of the Rooftop Installation Areas in excess of those for which Landlord would otherwise be responsible for the use or installation of Tenant’s Rooftop Equipment and (b) the amount of any increase in Landlord’s insurance premiums as a result of the installation of Tenant’s Rooftop Equipment. Upon Tenant’s written request to Landlord, Landlord shall use commercially reasonable efforts to cause other tenants to remedy any interference in the operation of Tenant’s Rooftop Equipment arising from any such tenants’ equipment installed after the applicable piece of Tenant’s Rooftop Equipment; provided, however, that Landlord shall not be required to request that such tenants waive their rights under their respective leases to the extent such rights exist as of the Effective Date.
41.4. If Tenant’s Equipment (a) causes physical damage to the structural integrity of the Building, (b) interferes with any telecommunications, mechanical or other systems located at or near or servicing the Building or the Project that were installed prior to the installation of Tenant’s Rooftop Equipment, (c) interferes with any other service provided to other tenants in the Building or the Project by rooftop or penthouse installations that were installed prior to the installation of Tenant’s Rooftop Equipment or (d) interferes with any other tenants’ business, in each case in excess of that permissible under Federal Communications Commission regulations, then Tenant shall cooperate with Landlord to determine the source of the damage or interference and promptly repair such damage and eliminate such interference, in each case at Tenant’s sole cost and expense, within ten (10) days after receipt of notice of such damage or interference (which notice may be oral; provided that Landlord also delivers to Tenant written notice of such damage or interference within twenty-four (24) hours after providing oral notice).
41.5. Landlord reserves the right to cause Tenant to relocate Tenant’s Rooftop Equipment to comparably functional space on the roof or in the penthouse of the Building by giving Tenant prior written notice thereof. Landlord agrees to pay the reasonable costs thereof. Tenant shall arrange for the relocation of Tenant’s Rooftop Equipment within sixty (60) days after receipt of Landlord’s notification of such relocation. In the event Tenant fails to arrange for relocation within such sixty (60)-day period, Landlord shall have the right to arrange for the relocation of Tenant’s Rooftop Equipment in a manner that does not unnecessarily interrupt or interfere with Tenant’s use of the Premises for the Permitted Use.
42. Option to Extend Term. Tenant shall have two (2) options (each, an “Option”) to extend the Term by five (5) years each as to the entire Premises (and no less than the entire Premises) upon the following terms and conditions. Any extension of the Term pursuant to an Option shall be on all the same terms and conditions as this Lease, except as follows:
42.1 . Base Rent at the commencement of each Option term shall equal the greater of (a) one hundred three percent (103%) of the then-current Base Rent and (b) the then-current fair market value for comparable office and laboratory space in the Watertown submarket of comparable age, quality, level of finish and proximity to amenities and public transit, and containing the systems and improvements present in the Premises as of the date that Tenant gives Landlord written notice of Tenant’s election to exercise such Option (“FMV”) (provided, however, that if at the time Tenant elects to exercise an Option, there does not exist any comparable data for the Watertown submarket, as determined by Landlord, then FMV shall be calculated based on comparable data for the West Cambridge submarket but taking into account the historical differences in market conditions between West Cambridge and Watertown including in the office and laboratory building product types (e.g., Class A versus Class B)), and in each case shall be further increased on each annual anniversary of the Option term commencement date, which increase shall be determined in accordance with the FMV. Tenant may, no more than fifteen (15) months prior to the date the Term is then scheduled to expire, request Landlord’s estimate of the FMV for the next Option term. Landlord shall, within fifteen (15) days after receipt of such request, give Tenant a written proposal of such FMV. If Tenant gives written notice to exercise an Option, such notice shall specify whether Tenant accepts Landlord’s proposed estimate of FMV. If Tenant does not accept the FMV, then the parties shall endeavor to agree upon the FMV, taking into account all relevant factors, including (a) the size of the Premises, (b) the length of the Option term, (c) rent in comparable buildings in the relevant market, including concessions offered to new tenants, such as free rent, tenant improvement allowances and moving allowances, (d) Tenant’s creditworthiness and (e) the quality and location of the Building and the Project. In the event that the parties are unable to agree upon the FMV within thirty (30) days after Tenant notifies Landlord that Tenant is exercising an Option, then either party may request that the same be determined as follows: a senior officer of a nationally recognized leasing brokerage firm with local knowledge of the Watertown and West Cambridge laboratory/research and development leasing market (the “Baseball Arbitrator”) shall be selected and paid for jointly by Landlord and Tenant. If Landlord and Tenant are unable to agree upon the Baseball Arbitrator, then the same shall be designated by the local chapter of the Judicial Arbitration and Mediation Services or any successor organization thereto (the “JAMS”). The Baseball Arbitrator selected by the parties or designated by JAMS shall (y) have at least ten (10) years’ experience in the leasing of laboratory/research and development space in the Watertown or West Cambridge market and (z) not have been employed or retained by either Landlord or Tenant or any affiliate of either for a period of at least ten (10) years prior to appointment pursuant hereto. Each of Landlord and Tenant shall submit to the Baseball Arbitrator and to the other party its determination of the FMV. The Baseball Arbitrator shall grant to Landlord and Tenant a hearing and the right to submit evidence. The Baseball Arbitrator shall determine which of the two (2) FMV determinations more closely represents the actual FMV. The arbitrator may not select any other FMV for the Premises other than one submitted by Landlord or Tenant. The FMV selected by the Baseball Arbitrator shall be binding upon Landlord and Tenant and shall serve as the basis for determination of Base Rent payable for the applicable Option term. If, as of the commencement date of an Option term, the amount of Base Rent payable during the Option term shall not have been determined, then, pending such determination, Tenant shall pay Base Rent equal to the Base Rent payable with respect to the last year of the then-current Term. After the final determination of Base Rent payable for the Option term, the parties shall promptly execute a written amendment to this Lease specifying the amount of Base Rent to be paid during the applicable Option term. Any failure of the parties to execute such amendment shall not affect the validity of the FMV determined pursuant to this Section.
42.2. No Option is assignable separate and apart from this Lease.
42.3. An Option is conditional upon Tenant giving Landlord written notice of its election to exercise such Option at least twelve (12) months prior to the end of the expiration of the then-current Term. Time shall be of the essence as to Tenant’s exercise of an Option. Tenant assumes full responsibility for maintaining a record of the deadlines to exercise an Option. Tenant acknowledges that it would be inequitable to require Landlord to accept any exercise of an Option after the date provided for in this Section.
42.4. Notwithstanding anything contained in this Article to the contrary, Tenant shall not have the right to exercise an Option:
(a) During the time commencing from the date Landlord delivers to Tenant a written notice that Tenant is in default under any provisions of this Lease and continuing until Tenant has cured the specified default to Landlord’s reasonable satisfaction; or
(b) At any time after any Default as described in Article 31 of the Lease (provided, however, that, for purposes of this Section 42.4(b), Landlord shall not be required to provide Tenant with notice of such Default if Landlord delivered a notice referenced in Section 42.4(a) above) and continuing until Tenant cures any such Default, if such Default is susceptible to being cured; or
(c) If Landlord has given Tenant two (2) or more notices of monetary default under this Lease, whether or not the monetary defaults are cured, during the twelve (12) month period prior to the date on which Tenant seeks to exercise an Option.
42.5.The period of time within which Tenant may exercise an Option shall not be extended or enlarged by reason of Tenant’s inability to exercise such Option because of the provisions of Section 42.4.
42.6. All of Tenant’s rights under the provisions of an Option shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of such Option if, after such exercise, but prior to the commencement date of the new term, (a) Tenant fails to pay to Landlord a monetary obligation of Tenant for a period of twenty (20) days after written notice from Landlord to Tenant, or (b) Tenant fails to commence to cure a default (other than a monetary default) within thirty (30) days after the date Landlord gives notice to Tenant of such default.
43. Right of First Offer. Subject to any other parties’ pre-existing rights as of the date hereof with respect to Available ROFO Premises (as defined below), Tenant shall have a one-time right of first offer (“ROFO”) as to any rentable premises on the first (1st) floor of the Building for which Landlord is seeking a tenant (“Available ROFO Premises”); provided, however, that in no event shall Landlord be required to lease any Available ROFO Premises to Tenant for any period past the date on which this Lease expires or is terminated pursuant to its terms. To the extent that Landlord renews or extends a then-existing lease with any then-existing tenant or subtenant of any space, or enters into a new lease with such then-existing tenant or subtenant, the affected space shall not be deemed to be Available ROFO Premises. In the event Landlord intends to market Available ROFO Premises, Landlord shall provide written notice thereof to Tenant (the “Notice of Marketing”), specifying the terms and conditions of a proposed lease to Tenant of the Available ROFO Premises.
43.1. Within fifteen (15) business days following its receipt of a Notice of Marketing, Tenant shall advise Landlord in writing whether Tenant elects to lease all (not just a portion) of the Available ROFO Premises on the terms and conditions set forth in the Notice of Marketing. If Tenant fails to notify Landlord of Tenant’s election within such fifteen (15) business day period, then Tenant shall be deemed to have elected not to lease the Available ROFO Premises.
43.2. If Tenant timely notifies Landlord that Tenant elects to lease all of the Available ROFO Premises on the terms and conditions set forth in the Notice of Marketing, then Landlord shall lease the Available ROFO Premises to Tenant upon the Terms and conditions set forth in the Notice of Marketing.
43.3. If Tenant notifies Landlord that Tenant elects not to lease the Available ROFO Premises on the terms and conditions set forth in the Notice of Marketing, or Tenant fails to notify Landlord of Tenant’s election within the fifteen (15) business day period described above, then Landlord shall have the right to consummate a lease of
the Available ROFO Premises at net effective base rent not less than ninety-five percent (95%) of that stated in the Notice of Marketing, if applicable.
43.4. Notwithstanding anything in this Article to the contrary, Tenant shall not exercise the ROFO during such period of time that Tenant is in default under any provision of this Lease. Any attempted exercise of the ROFO during a period of time in which Tenant is so in default shall be void and of no effect. In addition, Tenant shall not be entitled to exercise the ROFO if Landlord has given Tenant two (2) or more notices of monetary default under this Lease, whether or not the monetary defaults are cured, during the twelve (12) month period prior to the date on which Tenant seeks to exercise the ROFO.
43.5. Notwithstanding anything in this Lease to the contrary, Tenant shall not assign or transfer the ROFO, either separately or in conjunction with an assignment or transfer of Tenant’s interest in the Lease (other than in connection with an Exempt Transfer), without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
43.6. If Tenant exercises the ROFO, Landlord does not guarantee that the Available ROFO Premises will be available on the anticipated commencement date for the Lease as to such Premises due to a holdover by the then-existing occupants of the Available ROFO Premises or for any other reason beyond Landlord’s reasonable control.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as a sealed Massachusetts instrument as of the date first above written.
LANDLORD:
BRE-BMR GROVE LLC,
a Delaware limited liability company
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By:
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/s/ William Kane
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Name:
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William Kane
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Title:
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EVP East Coast & UK Markets
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TENANT:
SELECTA BIOSCIENCES, INC.,
a Delaware corporation
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By:
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/s/ Lloyd Johnston
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Name:
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Lloyd Johnston
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Title:
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Chief Operating Officer
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EXHIBIT A
PREMISES
(see attached)
EXHIBIT B
WORK LETTER
This Work Letter (this “Work Letter”) is made and entered into as of the 23rd day of July, 2019, by and between BRE-BMR Grove LLC, a Delaware limited liability company (“Landlord”), and Selecta Biosciences, Inc., a Delaware corporation (“Tenant”), and is attached to and made a part of that certain Lease dated as of the date hereof (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Lease”), by and between Landlord and Tenant for the Premises located at 65 Grove Street, Watertown, Massachusetts. All capitalized terms used but not otherwise defined herein shall have the meanings given them in the Lease.
1. General Requirements.
1.1. Authorized Representatives.
(a) Landlord designates, as Landlord’s authorized representative (“Landlord’s Authorized Representative”), (i) Edward McDonald (edward.mcdonald@biomedrealty.com) as the person authorized to initial plans, drawings, approvals and to sign change orders pursuant to this Work Letter and (ii) an officer of Landlord as the person authorized to sign any amendments to this Work Letter or the Lease. Tenant shall not be obligated to respond to or act upon any such item until such item has been initialed or signed (as applicable) by the appropriate Landlord’s Authorized Representative. Landlord may change either Landlord’s Authorized Representative upon one (1) business day’s prior written notice to Tenant.
(b) Tenant designates Lloyd Johnston (ljohnston@selectabio.com) (“Tenant’s Authorized Representative”) as the person authorized to initial and sign all plans, drawings, change orders and approvals pursuant to this Work Letter. Landlord shall not be obligated to respond to or act upon any such item until such item has been initialed or signed (as applicable) by Tenant’s Authorized Representative. Tenant may change Tenant’s Authorized Representative upon one (1) business day’s prior written notice to Landlord.
1.2. Schedule. The schedule for design and development of the Tenant Improvements, including the time periods for preparation and review of construction documents, approvals and performance, shall be in accordance with the schedule attached hereto as Schedule 1 (the “Schedule”). The Schedule shall be subject to adjustment as mutually agreed upon in writing by the parties, or as otherwise provided in this Work Letter.
1.3. Landlord’s Architects, Contractors and Consultants. The architect, engineering consultants, design team, general contractor and subcontractors responsible for the construction of the Tenant Improvements shall be selected by Landlord. Landlord hereby selects PIDC Construction as the general contractor, and TRIA Architects, Inc. as the architect.
2. Tenant Improvements. All Tenant Improvements shall be performed by Landlord’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of the Base TI Allowance and, if properly requested by Tenant pursuant to the terms of the Lease, the Additional TI Allowance used by Landlord in completing the Tenant Improvements), in a good and workmanlike manner in compliance with all Applicable Laws, and in substantial accordance with the Approved Plans (as defined below), the Lease and this Work Letter. To the extent that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the TI Allowance (such excess, the “Excess TI Costs”), Tenant shall pay the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due within thirty (30) days of Landlord’s invoice therefor, in the proportion of Excess TI Costs payable by Tenant to the TI Allowance. If Landlord is delayed in commencing the Tenant Improvements due to Tenant’s failure to timely pay the Excess TI Costs to Landlord, Landlord shall be
entitled to a day-for-day extension to achieve Substantial Completion of the Tenant Improvements for the period of such delay and it shall be deemed a Tenant Delay. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations, beginning after Landlord has completed the final accounting for the Tenant Improvements. If the cost of the Tenant Improvements (as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any sum due to Landlord under this Work Letter, then Landlord shall have all of the rights and remedies set forth in the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such amounts the same shall be considered Rent. All material and equipment furnished by Landlord or its contractors as the Tenant Improvements shall be new or “like new,” and the Tenant Improvements shall be performed in a first-class, workmanlike manner.
2.1. Test-Fit Plan. Landlord and Tenant hereby approve the test-fit plan for the Tenant Improvements (the “Test-Fit Plan”) attached to this Work Letter as Schedule 2. The parties acknowledge that the Test-Fit Plan shall be paid for by Landlord at its sole cost and expense (and not as part of the TI Allowance). Tenant acknowledges that any vivarium to be constructed as part of the Tenant Improvements shall not exceed 2,000 rentable square feet unless otherwise approved by Landlord. Any such vivarium shall be in a location approved by Landlord in its sole and reasonable discretion, and shall use disposable cages.
2.2. Work Plans. Landlord shall prepare and submit to Tenant for approval schematic plans covering the Tenant Improvements prepared in conformity with the applicable provisions of this Work Letter consistent with and are logical evolutions of the approved test fit plan and incorporate any Tenant-requested revisions (the “Draft Schematic Plans”). The Draft Schematic Plans shall contain sufficient information and detail to accurately describe the proposed design to Tenant. Tenant shall notify Landlord in writing within five (5) business days after receipt of the Draft Schematic Plans whether Tenant approves or objects to the Draft Schematic Plans and of the manner, if any, in which the Draft Schematic Plans are unacceptable. Tenant’s failure to respond within such five (5) business day period shall be deemed approval by Tenant. If Tenant reasonably objects to the Draft Schematic Plans, then Landlord shall revise the Draft Schematic Plans and cause Tenant’s objections to be remedied in the revised Draft Schematic Plans. Landlord shall then resubmit the revised Draft Schematic Plans to Tenant for approval, such approval not to be unreasonably withheld, conditioned or delayed. Tenant’s approval of or objection to revised Draft Schematic Plans and Landlord’s correction of the same shall be in accordance with this Section until Tenant has approved the Draft Schematic Plans in writing or been deemed to have approved them. The iteration of the Draft Schematic Plans that is approved or deemed approved by Tenant without objection shall be referred to herein as the “Approved Schematic Plans.” In the event that the Draft Schematic Plans are not approved by Tenant within the initial five (5) business day period specified in this Section 2.2, then, notwithstanding anything in the Lease or this Work Letter to the contrary (but subject to the following sentence), it shall be deemed a Tenant Delay, and in accordance with Section 4.2 of the Lease, the Term Commencement Date shall be the date that the Term Commencement Date would have occurred but for such Tenant Delay. Notwithstanding the foregoing, it shall not be deemed a Tenant Delay if Tenant provides written notice to Landlord within the initial five (5) business day period detailing a specific reason why the Draft Schematic Plans do not comply with either (a) Applicable Laws, or (b) the logical evolution of the Test-Fit Plan, together with any mutually agreed upon revisions (provided Tenant’s Authorized Representative attends the project meetings with Landlord and the architect).
2.3. Construction Plans. Landlord shall prepare final plans and specifications for the Tenant Improvements that (a) are consistent with and are logical evolutions of the Approved Schematic Plans and (b) incorporate any other Tenant-requested (and Landlord-approved) Changes (as defined below). As soon as such final plans and specifications (“Construction Plans”) are completed, Landlord shall deliver the same to Tenant for Tenant’s approval, which approval shall not be unreasonably withheld, conditioned or delayed. Such Construction Plans
shall be approved or disapproved by Tenant within five (5) days after delivery to Tenant. Tenant’s failure to respond within such five (5) day period shall be deemed approval by Tenant. If the Construction Plans are disapproved by Tenant, then Tenant shall notify Landlord in writing of its reasonable objections to such Construction Plans, and the parties shall confer and negotiate in good faith to reach agreement on the Construction Plans. Promptly after the Construction Plans are approved by Landlord and Tenant, two (2) copies of such Construction Plans shall be initialed and dated by Landlord and Tenant, and Landlord shall promptly submit such Construction Plans to all appropriate Governmental Authorities for approval. The Construction Plans so approved, and all change orders specifically permitted by this Work Letter, are referred to herein as the “Approved Plans.” In the event that the Construction Plans are not approved by Tenant within the initial five (5) business day period specified in this Section 2.3, then, notwithstanding anything in the Lease or this Work Letter to the contrary (but subject to the following sentence), it shall be deemed a Tenant Delay, and in accordance with Section 4.2 of the Lease, the Term Commencement Date shall be the date that the Term Commencement Date would have occurred but for such Tenant Delay. Notwithstanding the foregoing, it shall not be deemed a Tenant Delay if Tenant provides written notice to Landlord within the initial five (5) business day period detailing a specific reason why the Construction Plans do not comply with either (a) Applicable Laws, or (b) the logical evolution of the Approved Schematic Plans, together with any mutually agreed upon revisions (provided Tenant’s Authorized Representative attends the project meetings with Landlord and the architect).
2.4. Changes to the Tenant Improvements. Any changes to the Approved Plans (each, a “Change”) shall be requested and instituted in accordance with the provisions of this Article 2 and shall be subject to the written approval of the non-requesting party in accordance with this Work Letter.
(a) Change Request. Either Landlord or Tenant may request Changes after Tenant approves the Approved Plans by notifying the other party thereof in writing in substantially the same form as the AIA standard change order form (a “Change Request”), which Change Request shall detail the nature and extent of any requested Changes, including (a) the Change, (b) the party required to perform the Change and (c) any modification of the Approved Plans and the Schedule, as applicable, necessitated by the Change. If the nature of a Change requires revisions to the Approved Plans, then the requesting party shall be solely responsible for the cost and expense of such revisions and any increases in the cost of the Tenant Improvements as a result of such Change. Notwithstanding the foregoing, to the extent any Landlord-requested Change related to the Approved Plans is required due to a base building condition, the cost for such Change shall be paid for from the contingency for the Tenant Improvements. Change Requests shall be signed by the requesting party’s Authorized Representative.
(b) Approval of Changes. All Change Requests shall be subject to the other party’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. The non-requesting party shall have five (5) business days after receipt of a Change Request to notify the requesting party in writing of the non-requesting party’s decision either to approve or object to the Change Request. The non-requesting party’s failure to respond within such five (5) business day period shall be deemed approval by the non-requesting party.
3. Requests for Consent. Except as otherwise provided in this Work Letter, Tenant shall respond to all requests for consents, approvals or directions made by Landlord pursuant to this Work Letter within five (5) days following Tenant’s receipt of such request. Tenant’s failure to respond within such five (5) day period shall be deemed approval by Tenant.
4. TI Allowance.
4.1. Application of TI Allowance. Landlord shall contribute, in the following order, the Base TI Allowance and, if properly requested by Tenant pursuant to the terms of the Lease, the Additional TI Allowance; and any Excess TI Costs advanced by Tenant to Landlord toward the costs and expenses incurred in connection with the performance of the Tenant Improvements, in accordance with Article 4 of the Lease. If the entire TI Allowance
is not applied toward or reserved for the costs of the Tenant Improvements, then Tenant shall not be entitled to a credit of such unused portion of the TI Allowance. If the entire Excess TI Costs advanced by Tenant to Landlord are not applied toward the costs of the Tenant Improvements, then Landlord shall promptly return such excess to Tenant following completion of the Tenant Improvements. Tenant may apply the Base TI Allowance and, if properly requested by Tenant pursuant to the terms of the Lease, the Additional TI Allowance for the payment of construction and other costs in accordance with the terms and provisions of the Lease.
4.2. Approval of Budget for the Tenant Improvements. The parties agree that the budget for the Tenant Improvements attached hereto as Schedule 3 is a preliminary budget (the “Preliminary Budget”). Landlord anticipates obtaining from its contractor updated budgets in connection with the design process, which shall be subject to the review and approval of Landlord and Tenant. Notwithstanding anything to the contrary set forth elsewhere in this Work Letter or the Lease, Landlord shall not have any obligation to expend any portion of the TI Allowance until Landlord and Tenant shall have approved in writing a final budget for the Tenant Improvements (the “Approved Budget”). Tenant shall promptly reimburse Landlord for costs or expenses relating to the Tenant Improvements that exceed the amount of the TI Allowance. Notwithstanding anything herein to the contrary, the Approved Budget shall not be exceeded, and Excess TI Costs, if any, shall not increase, except pursuant an approved Change Request.
5. Miscellaneous.
5.1. Incorporation of Lease Provisions. Sections 40.6 through 40.19 of the Lease are incorporated into this Work Letter by reference, and shall apply to this Work Letter in the same way that they apply to the Lease.
5.2. General. Except as otherwise set forth in the Lease or this Work Letter, this Work Letter shall not apply to improvements performed in any additional premises added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise; or to any portion of the Premises or any additions to the Premises in the event of a renewal or extension of the original Term, whether by any options under the Lease or otherwise, unless the Lease or any amendment or supplement to the Lease expressly provides that such additional premises are to be delivered to Tenant in the same condition as the initial Premises.
5.3. Base Building Improvements. Landlord shall perform the Base Building Improvements at Landlord’s sole cost and expense, which cost will not be reimbursable from the TI Allowance. Any work to the Common Areas required by Applicable Laws as a result of the Base Building Improvements shall be considered Base Building Improvements and shall be undertaken at Landlord’s sole cost and expense. Any work to the Common Areas required by Applicable Laws as a result of the Tenant Improvements shall be considered Tenant Improvements and shall be undertaken by Landlord and shall be paid for in accordance with Section 4.4 of the Lease and this Work Letter.
5.4. Notices. Notwithstanding anything to the contrary set forth in the Lease, for the purposes of delivering notices, requests and responses related to the Tenant Improvements under this Work Letter, delivery by electronic mail to Landlord’s Authorized Representative and Tenant’s Authorized Representative shall be deemed sufficient.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Work Letter as a sealed Massachusetts instrument to be effective on the date first above written.
LANDLORD:
BRE-BMR Grove LLC,
a Delaware limited liability company
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By:
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/s/ William Kane
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Name:
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William Kane
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Title:
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EVP East Coast & UK Markets
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TENANT:
Selecta Biosciences, Inc.,
a Delaware corporation
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By:
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/s/ Lloyd Johnston
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Name:
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Lloyd Johnston
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Title:
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Chief Operating Officer
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SCHEDULE 1 TO WORK LETTER
SCHEDULE FOR TENANT IMPROVEMENTS
(see attached)
SCHEDULE 2 TO WORK LETTER
TEST-FIT PLAN
(see attached)
SCHEDULE 3 TO WORK LETTER
PRELIMINARY BUDGET
(see attached)
EXHIBIT B-1
TENANT WORK INSURANCE SCHEDULE
Tenant shall be responsible for requiring all of Tenant contractors doing construction or renovation work to purchase and maintain such insurance as shall protect it from the claims set forth below which may arise out of or result from any Tenant Work whether such Tenant Work is completed by Tenant or by any Tenant contractors or by any person directly or indirectly employed by Tenant or any Tenant contractors, or by any person for whose acts Tenant or any Tenant contractors may be liable:
1. Claims under workers’ compensation, disability benefit and other similar employee benefit acts which are applicable to the Tenant Work to be performed.
2. Claims for damages because of bodily injury, occupational sickness or disease, or death of employees under any applicable employer’s liability law.
3. Claims for damages because of bodily injury, or death of any person other than Tenant’s or any Tenant contractors’ employees.
4. Claims for damages insured by usual personal injury liability coverage which are sustained (a) by any person as a result of an offense directly or indirectly related to the employment of such person by Tenant or any Tenant contractors or (b) by any other person.
5. Claims for damages, other than to the Tenant Work itself, because of injury to or destruction of tangible property, including loss of use therefrom.
6. Claims for damages because of bodily injury or death of any person or property damage arising from the ownership, maintenance or use of any motor vehicle.
Tenant contractors’ Commercial General Liability Insurance shall include premises/operations (including explosion, collapse and underground coverage if such Tenant Work involves any underground work), elevators, independent contractors, products and completed operations, and blanket contractual liability on all written contracts, all including broad form property damage coverage.
Tenant contractors’ Commercial General, Automobile, Employers and Umbrella Liability Insurance shall be written for not less than limits of liability as follows:
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a. Commercial General Liability:
Bodily Injury and Property Damage
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Not less than (a) for the general contractor , $2,000,000 per occurrence and $5,000,000 general aggregate, with $5,000,000 products and completed operations aggregate, and (b) for all other contractors and subcontractors, $1,000,000 per occurrence and $2,000,000 general aggregate, with $2,000,000 products and completed operations aggregate
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b. Commercial Automobile Liability:
Bodily Injury and Property Damage
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Coverage for liability arising from the use or operation of any auto on behalf of Tenant or invited by Tenant (including those owned, hired, rented, leased, borrowed, scheduled or non-owned). Coverage shall be on a broad-based occurrence form in an amount not less than $2,000,000 combined single limit per accident. Such coverage shall apply to all vehicles and persons, whether accessing the property with active or passive consent
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c. Employer’s Liability:
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Each Accident
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$1,000,000
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Disease – Policy Limit
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$1,000,000
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Disease – Each Employee
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$1,000,000
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d. Umbrella Liability:
Bodily Injury and Property Damage
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(Excess of coverages a, b and c above) of not less than $5,000,000 per occurrence / aggregate
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e. Workers’ Compensation:
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As required by Applicable Laws
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All subcontractors for Tenant contractors shall carry the same coverages and limits as specified above, unless different limits are reasonably approved by Landlord. The foregoing policies shall contain a provision that coverages afforded under the policies shall not be canceled or not renewed until at least thirty (30) days’ prior written notice has been given to the Landlord. Certificates of insurance including required endorsements showing such coverages to be in force shall be filed with Landlord prior to the commencement of any Tenant Work and prior to each renewal. Coverage for completed operations must be maintained for the lesser of ten (10) years and the applicable statue of repose following completion of the Tenant Work, and certificates evidencing this coverage must be provided to Landlord. The minimum A.M. Best’s rating of each insurer shall be A- VII. the Landlord Parties shall be named as an additional insureds under Tenant contractors’ Commercial General Liability, Commercial Automobile Liability, Umbrella Liability and, to the extent required by the Lease, the Work Letter or this Exhibit, Pollution Legal Liability Insurance policies as respects liability arising from work or operations performed, or ownership, maintenance or use of any autos, by or on behalf of such contractors. Each contractor and its insurers shall provide waivers of subrogation with respect to all insurance required by the Lease, the Work Letter or this Exhibit.
If any contractor’s work involves the handling or removal of asbestos, lead or other Hazardous Materials (as determined by Landlord in its sole and absolute discretion), such contractor shall also carry Pollution Legal Liability insurance. Such coverage shall include bodily injury, sickness, disease, death or mental anguish or shock sustained by any person; property damage, including physical injury to or destruction of tangible property (including the resulting loss of use thereof), clean-up costs and the loss of use of tangible property that has not been physically injured or destroyed; and defense costs, charges and expenses incurred in the investigation, adjustment or defense of claims for such damages. Coverage shall apply to both sudden and non-sudden pollution conditions including the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water. Claims-made coverage is permitted, provided the policy retroactive date is continuously maintained prior to the Term Commencement Date, and coverage is continuously maintained during all periods in which Tenant occupies the Premises. Coverage shall be maintained with limits of not less than $1,000,000 per incident with a $2,000,000 policy aggregate.
EXHIBIT B-2
BASE BUILDING IMPOVEMENTS
ARCHITECTURAL
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•
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New Enclosed Mechanical Penthouse with capacity for tenant equipment
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•
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New 4,500 lb Freight |Passenger Elevator
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•
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New Service Corridor and Loading Entrance to provide access to new freight elevator
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•
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Installation of furniture and art throughout 2nd and 3rd floor lobbies
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STRUCTURAL
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•
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Modifications required to support new base building architectural and MEP upgrades \
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MECHANICAL
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•
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Two new rooftop air handling units to provide 1.25 CFM of 100% outside air across lab areas (assumed to be 50% of RSF). Office areas will be served by existing office AHU’s
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•
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Two new rooftop lab exhaust air units with energy recovery and exhaust risers to provide 1.25 CFM of 100% outside air across lab areas (assumed to be 50% of RSF)
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•
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New gas-fired hot water boiler plant and associated pumps to provide heating for lab supply air
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ELECTRICAL
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•
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Upgrade of base building electrical service from 3,000 Amps to 4,000 Amps to support lab requirements
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•
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New natural gas generator to provide stand-by power to select base building equipment and 5 watts/RSF across lab areas (assumed to be 50% of RSF) for tenant stand-by loads
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PLUMBING
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•
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Modifications required to support new base building architectural and MEP upgrades
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•
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New central lab waste treatment system including pump and treatment tank
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•
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New Tempered Water System for emergency showers and eyewash stations, including water tank and vertical riser
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FIRE PROTECTION
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•
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Modifications required to support base building Architectural and MEP upgrades
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EXHIBIT C
ACKNOWLEDGEMENT OF TERM COMMENCEMENT DATE
AND TERM EXPIRATION DATE
THIS ACKNOWLEDGEMENT OF TERM COMMENCEMENT DATE AND TERM EXPIRATION DATE is entered into as of [_______], 20[__], with reference to that certain Lease (the “Lease”) dated as of [_______], 20[__], by Selecta Biosciences, Inc., a Delaware corporation (“Tenant”), in favor of BRE-BMR Grove LLC, a Delaware limited liability company (“Landlord”). All capitalized terms used herein without definition shall have the meanings ascribed to them in the Lease.
Tenant hereby confirms the following:
1. Tenant accepted possession of the Premises for use in accordance with the Permitted Use on [_______], 20[__]. Tenant first occupied the Premises for the Permitted Use on [_______], 20[__].
2. The Premises are in good order, condition and repair.
3. The Tenant Improvements are Substantially Complete.
4. All conditions of the Lease to be performed by Landlord as a condition to the full effectiveness of the Lease have been satisfied, and Landlord has fulfilled all of its duties in the nature of inducements offered to Tenant to lease the Premises.
5. In accordance with the provisions of Article 4 of the Lease, the Term Commencement Date is [_______], 20[__], and, unless the Lease is terminated prior to the Term Expiration Date pursuant to its terms, the Term Expiration Date shall be [_______], 20[__].
6. The Lease is in full force and effect, and the same represents the entire agreement between Landlord and Tenant concerning the Premises[, except [_______]].
7. Tenant has no existing defenses against the enforcement of the Lease by Landlord, and there exist no offsets or credits against Rent owed or to be owed by Tenant.
8. The obligation to pay Rent is presently in effect and all Rent obligations on the part of Tenant under the Lease commenced to accrue on [_______], 20[__], with Base Rent payable on the dates and amounts set forth in the chart below:
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Dates
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Square Feet of Rentable Area
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Base Rent per Square Foot of Rentable Area
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Monthly Base Rent
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Annual Base Rent
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Rent Commencement Date – the day immediately prior to the first (1st) annual anniversary of the Rent Commencement Date
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25,078 square feet
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$66.00 annually
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$137,929.00
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$1,655,148.00
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Note: Subject to adjustment to reflect disbursement of Additional TI Allowance, as provided in Section 4.5 of the Lease
9. The undersigned Tenant has not made any prior assignment, transfer, hypothecation or pledge of the Lease or of the rents thereunder or sublease of the Premises or any portion thereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Tenant has executed this Acknowledgment of Term Commencement Date and Term Expiration Date as of the date first written above.
TENANT:
Selecta Biosciences, Inc.,
a Delaware corporation
EXHIBIT D
FORM OF ADDITIONAL TI ALLOWANCE ACCEPTANCE LETTER
[TENANT LETTERHEAD]
BRE-BMR Grove LLC
17190 Bernardo Center Drive
San Diego, California 92128
Attn: Legal Department
[Date]
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Re:
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Additional TI Allowance
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To Whom It May Concern:
This letter concerns that certain Lease dated as of [_______], 20[__] (the “Lease”), between BRE-BMR Grove LLC (“Landlord”) and Selecta Biosciences, Inc. (“Tenant”). Capitalized terms not otherwise defined herein shall have the meanings given them in the Lease.
Tenant hereby notifies Landlord that it wishes to exercise its right to utilize the Additional TI Allowance in the amount of [________] Dollars ($_____) per square foot of Rentable Area, for a total amount of [____________] Dollars ($_____) pursuant to Article 4 of the Lease.
If you have any questions, please do not hesitate to call [_______] at ([___]) [___]-[____].
Sincerely,
[Name]
[Title of Authorized Signatory]
Jon Bergschneider
John Lu
Kevin Simonsen
EXHIBIT E
FORM OF LETTER OF CREDIT
[On letterhead or L/C letterhead of Issuer]
LETTER OF CREDIT
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER _____________
ISSUE DATE: ______________
ISSUING BANK:
SILICON VALLEY BANK
3003 TASMAN DRIVE
2ND FLOOR, MAIL SORT HF210
SANTA CLARA, CALIFORNIA 95054
BENEFICIARY:
BRE-BMR GROVE LLC
17190 BERNARDO CENTER DRIVE
SAN DIEGO, CALIFORNIA 92128
ATTN: LEGAL DEPARTMENT
APPLICANT:
SELECTA BIOSCIENCES, INC.
480 ARSENAL WAY
WATERTOWN, MASSACHUSETTS 02472
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AMOUNT:
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US$$1,379,290.00 (ONE MILLION, THREE HUNDRED SEVENTY-NINE THOUSAND, TWO HUNDRED NINETY AND 00/100 U.S.DOLLARS)
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EXPIRATION DATE
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[INSERT DATE ONE YEAR FROM DATE OF ISSUANCE]
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PLACE OF EXPIRATION:
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ISSUING BANK’S COUNTERS AT ITS ABOVE ADDRESS
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DEAR SIR/MADAM:
WE HEREBY ESTABLISH IN FAVOR OF BENEFICIARY OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF______ (THE “L/C”) AVAILABLE BY PAYMENT AGAINST YOUR PRESENTATION TO US OF THE FOLLOWING DOCUMENTATATION (THE “DRAWING DOCUMENTATION”):
(A) THE ORIGINAL L/C; AND
(B) A SIGHT DRAFT IN THE FORM OF EXHIBIT A, WITH BLANKS FILLED IN AND BRACKETED ITEMS PROVIDED AS APPROPRIATE.
NO OTHER EVIDENCE OF AUTHORITY, CERTIFICATE, OR DOCUMENTATION IS REQUIRED.
DRAWING DOCUMENTATION MUST BE PRESENTED AT ISSUER’S OFFICE AT 3003 TASMAN DRIVE, SANTA CLARA, CA 95054 ON OR BEFORE THE EXPIRATION DATE BY PERSONAL PRESENTATION, COURIER, MESSENGER SERVICE, OR FACSIMILE. EACH FACSIMILE TRANSMISSION SHALL BE MADE AT: (408) 496-2418 OR (408) 969-6510; AND UNDER CONTEMPORANEOUS TELEPHONE ADVICE TO: (408) --- ---- OR (408) --- ----, ATTENTION: GLOBAL TRADE FINANCE. ABSENCE OF THE AFORESAID TELEPHONE ADVICE SHALL NOT AFFECT OUR OBLIGATION TO HONOR ANY DRAW REQUEST. IN CASE OF FACSIMILE DRAWING, THE ORIGINAL DOCUMENTS ARE NOT REQUIRED FOR PRESENTATION.
PARTIAL DRAWS AND MULTIPLE PRESENTATIONS ARE ALLOWED.
WE SHALL HAVE NO DUTY OR RIGHT TO INQUIRE INTO THE VALIDITY OF OR BASIS FOR ANY DRAW UNDER THIS L/C OR ANY DRAWING DOCUMENTATION.
THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR AN ADDITIONAL PERIOD OF ONE YEAR, WITHOUT AMENDMENT, FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE UNLESS AT LEAST 60 DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE WE SEND TO YOU A NOTICE BY REGISTERED OR CERTIFIED MAIL OR OVERNIGHT COURIER SERVICE AT THE ABOVE ADDRESS THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE THEN CURRENT EXPIRATION DATE. IN NO EVENT SHALL THIS LETTER OF CREDIT BE AUTOMATICALLY EXTENDED BEYOND ______________.
THIS LETTER OF CREDIT IS TRANSFERABLE IN WHOLE BUT NOT IN PART ONE OR MORE TIMES, BUT IN EACH INSTANCE ONLY TO A SINGLE BENEFICIARY AS TRANSFEREE AND FOR THE THEN AVAILABLE AMOUNT, AT NO COST OR EXPENSE TO BENEFICIARY, ASSUMING SUCH TRANSFER TO SUCH TRANSFEREE WOULD BE IN COMPLIANCE WITH THEN APPLICABLE LAW AND REGULATION, INCLUDING BUT NOT LIMITED TO THE REGULATIONS OF THE U.S. DEPARTMENT OF TREASURY AND U.S. DEPARTMENT OF COMMERCE. AT THE TIME OF TRANSFER, THE ORIGINAL LETTER OF CREDIT AND ORIGINALS OR COPIES OF ALL AMENDMENTS, IF ANY, TO THIS LETTER OF CREDIT MUST BE SURRENDERED TO US AT OUR ADDRESS INDICATED IN THIS LETTER OF CREDIT TOGETHER WITH OUR TRANSFER FORM ATTACHED HERETO AS EXHIBIT B DULY EXECUTED. APPLICANT SHALL PAY OUR TRANSFER FEE OF ¼ OF 1% OF THE TRANSFER AMOUNT (MINIMUM US$250.00) UNDER THIS LETTER OF CREDIT, HOWEVER, APPLICANT’S PAYMENT OF SUCH TRANSFER FEE SHALL NOT BE A CONDITION OF SUCH TRANSFER. EACH TRANSFER SHALL BE EVIDENCED BY EITHER (1) OUR ENDORSEMENT ON THE REVERSE OF THE LETTER OF CREDIT AND WE SHALL FORWARD THE ORIGINAL OF THE LETTER OF CREDIT SO ENDORSED TO THE TRANSFEREE OR (2) OUR ISSUING A REPLACEMENT LETTER OF CREDIT TO THE TRANSFEREE ON THE SAME TERMS AND CONDITIONS AS THE TRANSFERRED LETTER OF CREDIT (IN WHICH EVENT THE TRANSFERRED LETTER OF CREDIT SHALL HAVE NO FURTHER EFFECT).
ANY NOTICE TO BENEFICIARY SHALL BE IN WRITING AND DELIVERED BY HAND WITH RECEIPT ACKNOWLEDGED OR BY OVERNIGHT DELIVERY SERVICE SUCH AS FEDEX OR UPS (WITH PROOF OF DELIVERY) AT THE ABOVE ADDRESS, OR SUCH OTHER ADDRESS AS BENEFICIARY MAY SPECIFY BY WRITTEN NOTICE TO ISSUER.
NO AMENDMENT THAT ADVERSELY AFFECTS BENEFICIARY SHALL BE EFFECTIVE WITHOUT BENEFICIARY’S WRITTEN CONSENT.
WE HEREBY AGREE, IRREVOCABLY WITH YOU THAT DOCUMENTS PRESENTED UNDER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, WITHIN THE
MAXIMUM AMOUNT OF THIS L/C, SHALL BE DULY HONORED UPON PRESENTATION TO SILICON VALLEY BANK, IF PRESENTED ON OR BEFORE THE EXPIRATION DATE OF THIS CREDIT, AS SPECIFIED ABOVE.
EXCEPT AS EXPRESSLY STATED HEREIN, THIS UNDERTAKING IS NOT SUBJECT TO ANY AGREEMENT, CONDITION OR QUALIFICATION. OUR OBLIGATION UNDER THIS LETTER OF CREDIT SHALL BE OUR INDIVIDUAL OBLIGATION AND IS IN NO WAY CONTINGENT UPON THE REIMBURSEMENT WITH RESPECT THERETO, OR UPON OUR ABILITY TO PERFECT ANY LIEN, SECURITY INTEREST OR ANY OTHER REIMBURSEMENT
IF ANY INSTRUCTIONS ACCOMPANYING A DRAWING UNDER THIS LETTER OF CREDIT REQUEST THAT PAYMENT IS TO BE MADE BY TRANSFER TO YOUR ACCOUNT WITH ANOTHER BANK, WE WILL ONLY EFFECT SUCH PAYMENT BY FED WIRE TO A U.S. REGULATED BANK, AND WE AND/OR SUCH OTHER BANK MAY RELY ON AN ACCOUNT NUMBER SPECIFIED IN SUCH INSTRUCTIONS EVEN IF THE NUMBER IDENTIFIES A PERSON OR ENTITY DIFFERENT FROM THE INTENDED PAYEE.
THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES (ISP98), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590.
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AUTHORIZED SIGNATURE
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AUTHORIZED SIGNATURE
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EXHIBIT A
FORM OF SIGHT DRAFT
[BENEFICIARY LETTERHEAD]
TO:
[Name and Address of Issuer]
SIGHT DRAFT
AT SIGHT, pay to the Order of ______________, the sum of ______________ United States Dollars ($______________). Drawn under [Issuer] Letter of Credit No. ______________ dated ______________.
[Issuer is hereby directed to pay the proceeds of this Sight Draft solely to the following account: _________________________.]
[Name and signature block, with signature or purported signature of Beneficiary]
Date: ________________
EXHIBIT B
FORM OF TRANSFER NOTICE
DATE: ____________________
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TO: SILICON VALLEY BANK
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3003 TASMAN DRIVE
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RE: IRREVOCABLE STANDBY LETTER OF CREDIT
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SANTA CLARA, CA 95054
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NO. _____________ ISSUED BY
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ATTN: GLOBAL TRADE FINANCE
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SILICON VALLEY BANK, SANTA CLARA
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STANDBY LETTERS OF CREDIT
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L/C AMOUNT: ___________________
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LADIES AND GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:
_________________________________________________________________________________________
(NAME OF TRANSFEREE)
_________________________________________________________________________________________
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF CREDIT UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS TRANSFER.
BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF CREDIT ARE TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS, WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS, AND WHETHER NOW EXISTING OR HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECTLY TO THE TRANSFEREE WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.
THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO EITHER (1) ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER, OR (2) ISSUE A REPLACEMENT LETTER OF CREDIT TO THE TRANSFEREE ON SUBSTANTIALLY THE SAME TERMS AND CONDITIONS AS THE TRANSFERRED LETTER OF CREDIT (IN WHICH EVENT THE TRANSFERRED LETTER OF CREDIT SHALL HAVE NO FURTHER EFFECT).
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SINCERELY,
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SIGNATURE AUTHENTICATED
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(BENEFICIARY’S NAME)
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The name(s), title(s), and signature(s) conform to that/those on file with us for the company and the signature(s) is/are authorized to execute this instrument.
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(SIGNATURE OF BENEFICIARY)
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(NAME AND TITLE)
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(Name of Bank)
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(Address of Bank)
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(City, State, ZIP Code)
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EXHIBIT F
RULES AND REGULATIONS
NOTHING IN THESE RULES AND REGULATIONS (“RULES AND REGULATIONS”) SHALL SUPPLANT ANY PROVISION OF THE LEASE. IN THE EVENT OF A CONFLICT OR INCONSISTENCY BETWEEN THESE RULES AND REGULATIONS AND THE LEASE, THE LEASE SHALL PREVAIL.
1. No Tenant Party shall encumber or obstruct the common entrances, lobbies, elevators, sidewalks and stairways of the Building(s) or the Project or use them for any purposes other than ingress or egress to and from the Building(s) or the Project.
2. Except as specifically provided in the Lease, no sign, placard, picture, advertisement, name or notice shall be installed or displayed on any part of the outside of the Premises or the Building(s) without Landlord’s prior written consent. Landlord shall have the right to remove, at Tenant’s sole cost and expense and without notice, any sign installed or displayed in violation of this rule.
3. If Landlord objects in writing to any curtains, blinds, shades, screens, hanging plants or other similar objects attached to or used in connection with any window or door of the Premises or placed on any windowsill, and (a) such window, door or windowsill is visible from the exterior of the Premises and (b) such curtain, blind, shade, screen, hanging plant or other object is not included in plans approved by Landlord, then Tenant shall promptly remove such curtains, blinds, shades, screens, hanging plants or other similar objects at its sole cost and expense.
4. No deliveries shall be made that impede or interfere with other tenants in or the operation of the Project. Movement of furniture, office equipment or any other large or bulky material(s) through the Common Area shall be restricted to such hours as Landlord may designate and shall be subject to reasonable restrictions that Landlord may impose. A temporary loading permit is required for all temporary parking and such permit, which permit Landlord may provide in its sole and absolute discretion.
5. Tenant shall not place a load upon any floor of the Premises that exceeds the load per square foot that (a) such floor was designed to carry or (b) is allowed by Applicable Laws. Fixtures and equipment that cause noises or vibrations that may be transmitted to the structure of the Building(s) to such a degree as to be objectionable to other tenants shall be placed and maintained by Tenant, at Tenant’s sole cost and expense, on vibration eliminators or other devices sufficient to eliminate such noises and vibrations to levels reasonably acceptable to Landlord and the affected tenants of the Project.
6. Tenant shall not use any method of HVAC other than that approved in writing by Landlord.
7. Tenant shall not install any radio, television or other antennae; cell or other communications equipment; or other devices on the roof or exterior walls of the Premises except in accordance with the Lease. Tenant shall not interfere with radio, television or other digital or electronic communications at the Project or elsewhere.
8. Canvassing, peddling, soliciting and distributing handbills or any other written material within, on or around the Project (other than within the Premises) are prohibited. Tenant shall cooperate with Landlord to prevent such activities by any Tenant Party.
9. Tenant shall store all of its trash, garbage and Hazardous Materials in receptacles within its Premises or in receptacles designated by Landlord outside of the Premises. Tenant shall not place in any such receptacle any material that cannot be disposed of in the ordinary and customary manner of trash, garbage and Hazardous Materials disposal. Any Hazardous Materials transported through Common Area shall be held in secondary containment
devices. Tenant shall be responsible, at its sole cost and expense, for Tenant’s removal of its trash, garbage and Hazardous Materials. Tenant is encouraged to participate in the waste removal and recycling program in place at the Project.
10. The Premises shall not be used for lodging or for any improper, immoral or objectionable purpose. No cooking shall be done or permitted in the Premises; provided, however, that Tenant may use (a) equipment approved in accordance with the requirements of insurance policies that Landlord or Tenant is required to purchase and maintain pursuant to the Lease for brewing coffee, tea, hot chocolate and similar beverages, (b) microwave ovens for employees’ use and (c) equipment shown on Tenant Improvement plans approved by Landlord; provided, further, that any such equipment and microwave ovens are used in accordance with Applicable Laws.
11. Tenant shall not, without Landlord’s prior written consent, use the name of the Project, if any, in connection with or in promoting or advertising Tenant’s business except as Tenant’s address.
12. Tenant shall comply with all safety, fire protection and evacuation procedures and regulations established by Landlord or any Governmental Authority.
13. Tenant assumes any and all responsibility for protecting the Premises from theft, robbery and pilferage, which responsibility includes keeping doors locked and other means of entry to the Premises closed.
14. Tenant shall not modify any locks to the Premises without Landlord’s prior written consent, which consent Landlord shall not unreasonably withhold, condition or delay. Tenant shall furnish Landlord with copies of keys, pass cards or similar devices for locks to the Premises.
15. Tenant shall cooperate and participate in all reasonable security programs affecting the Premises.
16. Tenant shall require its employees and agents to sign Landlord’s waiver of liability in order for such individuals to use the fitness center, to the extent required by Landlord, and Tenant shall comply with all rules and regulations posted in or around the fitness center related thereto.
17. Tenant shall not permit any animals in the Project, other than for service animals or for use in laboratory experiments.
18. Bicycles shall not be taken into the Building(s) (including the elevators and stairways of the Building) except into areas designated by Landlord.
19. The water and wash closets and other plumbing fixtures shall not be used for any purposes other than those for which they were constructed, and no sweepings, rubbish, rags or other substances shall be deposited therein.
20. Discharge of industrial sewage shall only be permitted if Tenant, at its sole expense, first obtains all necessary permits and licenses therefor from all applicable Governmental Authorities.
21. Smoking is prohibited at the Project.
22. The Project’s hours of operation are currently 6:00 a.m. to 6:00 p.m., Monday through Friday, except for federal holidays. Tenant shall have access to the Premises 24 hours a day, seven days a week.
23. Tenant shall comply with all orders, requirements and conditions now or hereafter imposed by Applicable Laws or Landlord (“Waste Regulations”) regarding the collection, sorting, separation and recycling of waste products, garbage, refuse and trash generated by Tenant (collectively, “Waste Products”), including (without
limitation) the separation of Waste Products into receptacles reasonably approved by Landlord and the removal of such receptacles in accordance with any collection schedules prescribed by Waste Regulations.
24. Tenant, at Tenant’s sole cost and expense, shall cause the Premises to be exterminated as necessary to Landlord’s reasonable satisfaction and shall cause all portions of the Premises used for the storage, preparation, service or consumption of food or beverages to be cleaned daily in a manner reasonably satisfactory to Landlord, and to be treated against infestation by insects, rodents and other vermin and pests whenever there is evidence of any infestation. Tenant shall not permit any person to enter the Premises or the Project for the purpose of providing such extermination services, unless such persons have been approved by Landlord. If requested by Landlord, Tenant shall, at Tenant’s sole cost and expense, store any refuse generated in the Premises by the consumption of food or beverages in a cold box or similar facility.
25. If Tenant desires to use any portion of the Common Area for a Tenant-related event, Tenant must notify Landlord in writing at least thirty (30) days prior to such event on the form attached as Attachment 1 to this Exhibit, which use shall be subject to Landlord’s prior written consent, not to be unreasonably withheld, conditioned or delayed. Notwithstanding anything in this Lease or the completed and executed Attachment to the contrary, Tenant shall be solely responsible for setting up and taking down any equipment or other materials required for the event, and shall promptly pick up any litter and report any property damage to Landlord related to the event. Any use of the Common Area pursuant to this Section shall be subject to the provisions of Article 28 of the Lease.
Landlord may waive any one or more of these Rules and Regulations for the benefit of Tenant or any other tenant, but no such waiver by Landlord shall be construed as a waiver of such Rules and Regulations in favor of Tenant or any other tenant, nor prevent Landlord from thereafter enforcing any such Rules and Regulations against any or all of the tenants of the Project, including Tenant. These Rules and Regulations are in addition to, and shall not be construed to in any way modify or amend, in whole or in part, the terms covenants, agreements and conditions of the Lease. Landlord reserves the right to make such other and reasonable additional rules and regulations as, in its judgment, may from time to time be needed for safety and security, the care and cleanliness of the Project, or the preservation of good order therein; provided, however, that Tenant shall not be obligated to adhere to such additional rules or regulations until Landlord has provided Tenant with written notice thereof. Tenant agrees to abide by these Rules and Regulations and any such additional rules and regulations issued or adopted by Landlord. Tenant shall be responsible for the observance of these Rules and Regulations by all Tenant Parties.
ATTACHMENT 1 TO EXHIBIT F
REQUEST FOR USE OF COMMON AREA
REQUEST FOR USE OF COMMON AREA
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Date of Request:
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Landlord/Owner:
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Tenant/Requestor:
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Property Location:
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Event Description:
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Proposed Plan for Security & Cleaning:
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Date of Event:
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Hours of Event: (to include set-up and take down):
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Location at Property (see attached map):
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Number of Attendees:
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Open to the Public?
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[___] YES
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[___] NO
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Food and/or Beverages?
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[___] YES
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[___] NO
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If YES:
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Will food be prepared on site?
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[___] YES
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[___] NO
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Please describe:
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Will alcohol be served?
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[___] YES
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[___] NO
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Please describe
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Will attendees be charged for alcohol?
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[___] YES
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[___] NO
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Is alcohol license or permit required?
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[___] YES
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[___] NO
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Does caterer have alcohol license or permit:
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[___] YES
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[___] NO
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Other Amenities (tent, booths, band, food trucks, bounce house, etc.):
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Other Event Details or Special Circumstances:
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The undersigned certifies that the foregoing is true, accurate and complete and he/she is duly authorized to sign and submit this request on behalf of the Tenant/Requestor named above.
[INSERT NAME OF TENANT/REQUESTOR]
EXHIBIT G
TENANT’S PROPERTY
(see attached)
EXHIBIT H
FORM OF ESTOPPEL CERTIFICATE
17190 Bernardo Center Drive
San Diego, California 92128
Attention: Legal Department
BioMed Realty II LP
17190 Bernardo Center Drive
San Diego, California 92128
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Re:
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Suite [____] (the “Premises”) at 65 Grove Street, Watertown, Massachusetts (the “Property”)
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The undersigned tenant (“Tenant”) hereby certifies to you as follows:
1. Tenant is a tenant at the Property under a lease (the “Lease”) for the Premises dated as of [_______], 20[__]. The Lease has not been cancelled, modified, assigned, extended or amended [except as follows: [_______]], and there are no other agreements, written or oral, affecting or relating to Tenant’s lease of the Premises or any other space at the Property. The lease term expires on [_______], 20[__].
2. Tenant took possession of the Premises, currently consisting of 24,788 square feet, on [_______], 20[__], and commenced to pay rent on [_______], 20[__]. Tenant has full possession of the Premises, has not assigned the Lease or sublet any part of the Premises, and does not hold the Premises under an assignment or sublease[, except as follows: [_______]].
3. All base rent, rent escalations and additional rent under the Lease have been paid through [_______], 20[__]. There is no prepaid rent[, except $[_______]][, and the amount of security deposit is $[_______] [in cash][OR][in the form of a letter of credit]]. Tenant currently has no right to any future rent abatement under the Lease.
4. Base rent is currently payable in the amount of $[_______] per month.
5. Tenant is currently paying estimated payments of additional rent of $[_______] per month on account of real estate taxes, insurance, management fees and Common Area maintenance expenses.
6. All work to be performed for Tenant under the Lease has been performed as required under the Lease and has been accepted by Tenant[, except [_______]], and all allowances to be paid to Tenant, including allowances for tenant improvements, moving expenses or other items, have been paid.
7. The Lease is in full force and effect, free from default and free from any event that could become a default under the Lease, and Tenant has no claims against the landlord or offsets or defenses against rent, and there are no disputes with the landlord. Tenant has received no notice of prior sale, transfer, assignment, hypothecation or pledge of the Lease or of the rents payable thereunder[, except [_______]].
8. Tenant has no rights or options to purchase the Property.
9. To Tenant’s knowledge, no hazardous wastes have been generated, treated, stored or disposed of by or on behalf of Tenant in, on or around the Premises or the Project in violation of any environmental laws.
10. The undersigned has executed this Estoppel Certificate with the knowledge and understanding that [INSERT NAME OF LANDLORD, PURCHASER OR LENDER, AS APPROPRIATE] or its assignee is [acquiring the Property/making a loan secured by the Property] in reliance on this certificate and that the undersigned shall be bound by this certificate. The statements contained herein may be relied upon by [INSERT NAME OF PURCHASER OR LENDER, AS APPROPRIATE], BRE-BMR Grove LLC, BioMed Realty II LP, and any [other ]mortgagee of the Property and their respective successors and assigns.
Any capitalized terms not defined herein shall have the respective meanings given in the Lease.
Dated this [____] day of [_______], 20[__].
Selecta Biosciences, Inc.,
a Delaware corporation