RESEARCH FUNDING AGREEMENT by and between THE SCRIPPS RESEARCH INSTITUTE a California nonprofit public benefit corporation and ChromaPharma, Inc. A Nevada corporation RESEARCH FUNDING AGREEMENT
|
|
Exhibit
10.6
***Text
Omitted and Filed Separately
with
the Securities and Exchange Commission.
Confidential
Treatment Requested
Under
17 C.F.R. Sections 200.80(b)(4)
and
240.24b-2
|
by and
between
THE
SCRIPPS RESEARCH INSTITUTE
a
California nonprofit
public
benefit corporation
and
ChromaPharma,
Inc.
A
Nevada corporation
This
Agreement is entered into this 5th day of June, 2017
(the “Effective Date”), by and between The Scripps
Research Institute, a California nonprofit public benefit
corporation located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("TSRI"), and ChromaPharma, Inc., a Nevada
for-profit corporation located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ("Sponsor"), with respect to the facts set
forth below.
RECITALS
A. TSRI
is engaged in fundamental scientific biomedical and biochemical
research including research relating to breast cancer, as more
particularly described herein.
B. Sponsor
is engaged in research and development of proprietary health,
wellness and nutritional ingredients, that creates science-based
solutions to dietary supplement, food and beverage, skin care,
sports nutrition, and pharmaceutical products.
C. Sponsor
desires to provide certain funding as part of TSRI’s research
activities described above.
D. Subject
to any non-exclusive rights of the U.S. Government, TSRI is
granting to Sponsor an exclusive license to certain intellectual
property arising from the Research Program, in accordance with a
separate License Agreement between the parties, with an Effective
Date of June 1, 2017.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and conditions
outlined herein, TSRI and Sponsor hereby agree as
follows:
1. DEFINITIONS.
1.1 Affiliate.
The term "Affiliate" shall mean any entity which directly or
indirectly controls, or is controlled by Sponsor. The term
"control" as used herein means (a) in the case of corporate
entities, direct or indirect ownership of at least fifty percent
(50%) of the stock or shares entitled to vote for the election of
directors; or (b) in the case of non-corporate entities, direct or
indirect ownership of at least fifty percent (50%) of the equity
interest with the power to direct the management and policies of
such non-corporate entities. Unless otherwise specified, the term
Sponsor includes Affiliates.
1.2
Agreement Number.
This Agreement is TSRI number SFP-2235.
-1-
1.3 Biological
Materials. The term “Biological Materials” shall
mean any Technology in the form of tangible materials together with
any progeny, mutants, or derivatives thereof developed in
performance of the Research Program.
1.4 Confidential
Information. The term "Confidential Information" shall mean
any and all proprietary information of TSRI or Sponsor which may be
exchanged between the parties at any time and from time to time
during the term hereof. The fact that a party may have marked or
identified as confidential or proprietary any specific information
shall be indicative that such party believes such information to be
confidential or proprietary, but the failure to so ▇▇▇▇ information
shall not conclusively determine that such information was or was
not considered confidential information by such party. Confidential
Information shall also include any information which, given the
circumstances surrounding the disclosure, would be considered
confidential by the disclosing party. Information shall not be
considered confidential to the extent that it:
a. Is
publicly disclosed through no fault of any party hereto, either
before or after it becomes known to the receiving party;
or
b. Was
known to the receiving party prior to the Effective Date, which
knowledge was acquired independently and not from the other party
hereto (including such party's employees); or
c. Is
subsequently disclosed to the receiving party in good faith by a
third party who has a right to make such disclosure;
or
d. Has
been published by a third party as a matter of right.
1.5 Patent
Rights. The term “Patent Rights” shall
mean:
(a)
U.S. patents or patent application(s) directed to the
Technology;
(b)
Foreign counterpart patents or patent applications claiming and
entitled to the priority date of the respective patents and patent
application(s) referenced in sub-clause (a) above;
(c)
Divisionals and continuations of any patents or patent applications
referenced in sub-clauses (a) and (b) above;
(d) Any
claim(s) of a continuation-in-part claiming and entitled to the
priority date of the respective patents and patent application(s)
referenced in sub-clause (a) above; and
(e)
Reissues, reexaminations, renewals and patent term extensions of
the patents referenced in sub-clauses (a) - (d) above.
-2-
1.6 Principal
Investigator. The term "Principal Investigator" shall mean
[…***…], together with such replacement persons
selected in accordance with the provisions of Section 2.2
hereof.
1.7 Research
Program. The term "Research Program" shall mean the research
program to be undertaken by TSRI under the direction and control of
the Principal Investigator as expressly set forth on Exhibit A
hereto.
1.8 Research
Tool. The term “Research Tool” shall mean any
Technology which is designed or utilized for basic research
purposes or internal drug discovery purposes and which is not
utilized to produce, or incorporated into, a product.
1.9 Technology.
The term "Technology" shall mean any invention, discovery,
know-how, Biological Material, software, information and data,
whether patentable or not, conceived and reduced to practice during
the performance of the Research Program.
2. CONDUCT
OF RESEARCH PROGRAM.
2.1 Conduct
of Research Program. TSRI hereby agrees to use reasonable
efforts to perform the Research Program subject to the provisions
of this Agreement. Notwithstanding the foregoing, TSRI makes no
warranties or representations regarding its ability to achieve, nor
shall it be bound to accomplish, any particular research objective
or results.
2.2 Supervision
of Research Program. TSRI agrees that the Research Program
at TSRI shall be conducted by or under the direct supervision of
the Principal Investigator. In the event that the Principal
Investigator leaves TSRI, or terminates his/her involvement in the
Research Program, TSRI shall use its best efforts to find a
replacement Principal Investigator acceptable to Sponsor, which
acceptance shall not be unreasonably withheld. In the event that
TSRI shall fail to appoint a replacement Principal Investigator
reasonably acceptable to Sponsor, Sponsor shall have a right to
terminate this Agreement upon delivery to TSRI of written notice of
intent to terminate pursuant to this Section 2.2, which notice
must be delivered to TSRI not less than […***…]
days nor more than […***…] days after delivery by
TSRI to Sponsor of the name of the replacement Principal
Investigator.
2.3 Reports.
TSRI agrees that within […***…] days following the last
day of each calendar year during the term of this Agreement, TSRI
shall furnish Sponsor with a written report summarizing the results
of the research included within the scope of the Research Program
conducted by TSRI, during the immediately preceding calendar year,
including but not limited to all data, conclusions, results,
observations and a detailed description of all procedures. All such
reports shall be treated as Confidential Information by Sponsor.
TSRI further agrees to furnish Sponsor with written milestone
updates every […***…] months.
***Confidential Treatment
Requested
-3-
2.4 Financial
and Staffing Obligations
(a)
Contributions of Parties
to Research Program. Contributions in the form of financial
support, equipment, personnel, technology and other necessary
components for the conduct of the Research Program shall be made by
the parties in accordance with the terms set forth on
Exhibit B. All payments due to TSRI by Sponsor shall be
payable in U.S. Dollars in quarterly installments in advance,
within […***…] days of the dates set forth in the
following payment schedule:
|
1st
payment: $[…***…] (USD)
|
due:
within (10) days of the Effective Date
|
|
2nd
payment: $[…***…] (USD)
|
due:
January 1, 2018
|
|
3rd
payment: $[…***…] (USD)
|
due:
upon completion of Year 1 Milestones as described in Exhibit A and
a technical review by ChromaDex with a decision to fund year
2
|
|
4th
payment $[…***…]
|
due six
months after the 3rd
payment
|
|
5th
payment: $[…***…] (USD)
|
due:
upon completion of Year 2 Milestones as described in Exhibit A and
a technical review by ChromaDex with a decision to fund year
3
|
|
6th
payment $[…***…]
|
due six
months after payment 5
|
Each
payment must reference the Research Project title, Agreement Number
and Principal Investigator for purposes of identification. Payments
under this Section 2.4.a shall be sent to:
The
Scripps Research Institute
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇-▇
▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Vice President, Sponsored Programs
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy
to:
The Scripps
Research Institute
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇-▇
▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Director, Technology Development
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
TSRI
shall not be obligated to perform any of the research specified
herein or to take any other action required under this Agreement if
the funding is not provided as set forth in Exhibit B
and
***Confidential Treatment
Requested
-4-
in
accordance with the payment schedule as set forth in this Section
2.4(a). Furthermore, should Sponsor fail to make the first payment
to TSRI in accordance with this Section 2.4(a), TSRI shall have the
right to immediately terminate this Agreement and this Agreement
shall be null and void ab
initio.
(b)
Capital Equipment.
Equipment purchased by TSRI with funds provided by Sponsor shall be
the property of TSRI. All capital equipment provided under this
Agreement by Sponsor for the use of TSRI remains the property of
the Sponsor unless other disposition is mutually agreed upon in
writing by the parties. If title to this equipment remains with the
Sponsor, Sponsor is responsible for maintenance and repair of the
equipment, insuring the equipment against damage or loss, and the
costs of its transportation to and from the site where it will be
used.
(c)
Indirect Cost
Adjustment. TSRI shall have the right to adjust the payment
amounts referenced above to reflect changes in the indirect cost
rate negotiated between TSRI and the U.S. Government and that will
be in effect during the quarter that the work is performed. TSRI
will notify Sponsor in writing of any change in the indirect cost
rate before the effective date of such change. The corresponding
direct costs will remain fixed as specified in Exhibit
B.
3. TECHNOLOGY
DISCLOSURE AND GRANT OF LICENSE.
3.1 Disclosure
of Technology. After Principal Investigator submits an
invention disclosure covering any Technology to TSRI’s Office
of Technology Development, TSRI shall disclose such Technology in
writing to Sponsor (the “Technology Disclosure”). TSRI
shall use reasonable efforts to provide a Technology Disclosure
that contains sufficient detail to enable Sponsor to evaluate the
advisability of exercising the option granted hereunder with
respect to such Technology. All such Technology Disclosures shall
be maintained in confidence by Sponsor.
3.2 Option.
Sponsor shall have a period of […***…] days from
receipt of the Technology Disclosure from TSRI (the “Option
Period”) within which to exercise its Option with respect to
TSRI’s rights to the particular Technology disclosed therein.
Upon delivery of written notice that Sponsor waives its Option, or
upon the failure of Sponsor to exercise its Option in writing
during the Option Period, either party may license the Technology
to third parties as it sees fit.
3.3 Exercise
of Option. Sponsor shall exercise its Option by delivering
to TSRI a written notice within the Option Period which specifies
the particular Technology for which the Option is being exercised.
Upon such notification, TSRI and Sponsor shall amend the license
agreement between the parties with an Effective Date of June 1,
2017 (“License Agreement”), in writing (to update and
replace the applicable exhibits of the License Agreement), to
include Technology, at the same terms and conditions as the License
Agreement and for no additional consideration payable to
TSRI.
***Confidential Treatment
Requested
-5-
4. INTERESTS
AND RIGHTS IN INTELLECTUAL PROPERTY.
4.1 Title.
TSRI shall retain sole ownership and title to TSRI Technology and
to all intellectual property rights related thereto. TSRI shall, in
the good faith exercise of its discretion, undertake reasonable
efforts to preserve and maintain its ownership and title as TSRI
deems appropriate. Ownership of and title to Technology shall be
vested jointly in TSRI and Sponsor, with each owning an undivided
interest therein.
4.2 Governmental
Interest. TSRI and Sponsor
acknowledge that TSRI has received, and expects to continue to
receive, funding from the United States Government in support of
TSRI's research activities. TSRI and Sponsor acknowledge and agree
that their respective rights and obligations pursuant to this
Agreement shall be subject to the rights of the United States
Government, existing and as amended, which may arise or result from
TSRI’s receipt of research support from the United States
Government, including but not limited to, ▇▇ ▇▇▇ ▇▇▇, the NIH
Grants Policy Statement and the NIH Guidelines for Obtaining and
Disseminating Biomedical Research Resources.
4.3 Reservation
of Rights. TSRI reserves the right to use for any research
or educational purposes any Patent Rights, Biological Materials, or
Research Tools, without TSRI being obligated to pay Sponsor any
royalties or other compensation.
5. CONFIDENTIALITY
AND PUBLICATION.
5.1
Treatment of Confidential
Information. The parties agree that during the term of this
Agreement, and for a period of five (5) years after this Agreement
terminates, a party receiving Confidential Information of the other
party will (a) maintain in confidence such Confidential
Information to the same extent such party maintains its own
proprietary information; (b) not disclose such Confidential
Information to any third party without the prior written consent of
the other party; and (c) not use such Confidential Information
for any purpose except those permitted by this
Agreement.
If
Confidential Information is required to be disclosed by law or
court order, the Party required to make such disclosure shall limit
the same to the minimum required to comply with the law or court
order, and shall use reasonable efforts to attempt to seek
confidential treatment for that disclosure, and prior to making
such disclosure that Party shall notify the other party, not later
than ten (10) days (or such shorter period of time as may be
reasonably practicable under the circumstances) before the
disclosure in order to allow that other Party to comment and/or to
obtain a protective or other order, including extensions of time
and the like, with respect to such disclosure.
5.2
Publications.
Sponsor acknowledges that it is the general policy of TSRI to
encourage publication of research results in technical or
scientific journals; and Sponsor agrees that TSRI shall have a
right to publish in accordance with its general policy. TSRI shall
submit to Sponsor copies of proposed publications which describe
Technology and afford Sponsor a period of thirty (30) days to
review the publication to (i) ascertain whether Sponsor’s
Confidential Information would be disclosed by the publication; and
(ii) ascertain whether or not the
-6-
publication
discloses any Technology to which Sponsor wishes to exercise its
Option. If such publication discloses Sponsor’s Confidential
Information and upon Sponsor’s written request, TSRI shall
remove such Confidential Information or delay publication for up to
an additional sixty (60) days to allow Sponsor to protect its
Confidential Information by filing a patent application(s). In the
event that Sponsor identifies any Technology to which it wishes to
exercise its Option, Sponsor shall notify TSRI of such in writing.
Upon such notification, TSRI shall (i) file any patent applications
necessary to protect the proprietary positions of both parties in
the Technology at Sponsor’s sole expense; and (ii) provide
Sponsor with a Technology Disclosure in accordance with Section
3.2. Absent receipt by TSRI of any written instruction by Sponsor
within the thirty (30) day period, TSRI shall be free to publish
the proposed publication.
5.3
Publicity. Except
as otherwise provided herein or required by law, no party shall
originate any publication, news release or other public
announcement, written or oral, whether in the public press,
stockholders' reports, or otherwise, relating to this Agreement or
to the performance hereunder without the prior written approval of
the other party, which approval shall not be unreasonably withheld.
Scientific publications published in accordance with
Section 5.2 of this Agreement shall not be construed as
publicity governed by this Section 5.3.
6. WARRANTY
AND DISCLAIMER.
TSRI
hereby represents and warrants that it has full right and power to
enter into this Agreement. TSRI MAKES NO OTHER WARRANTIES
CONCERNING PATENT RIGHTS, TECHNOLOGY, RESEARCH TOOLS, BIOLOGICAL MATERIALS OR ANY
OTHER MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY EXPRESS
OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING OUT OF
COURSE OF CONDUCT OR TRADE CUSTOM OR USAGE, AND TSRI DISCLAIMS ALL
SUCH EXPRESS OR IMPLIED WARRANTIES. TSRI MAKES NO WARRANTY OR
REPRESENTATION AS TO THE VALIDITY OR SCOPE OF PATENT RIGHTS, OR
THAT ANY PRODUCT, PROCESS, SERVICE, BIOLOGICAL MATERIAL, OR
RESEARCH TOOL WILL BE FREE FROM AN INFRINGEMENT ON PATENTS OR OTHER
INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR THAT NO THIRD
PARTIES ARE IN ANY WAY INFRINGING UPON ANY PATENT RIGHTS,
TECHNOLOGY, RESEARCH
TOOLS OR BIOLOGICAL
MATERIALS COVERED BY THIS AGREEMENT. FURTHER, TSRI HAS MADE NO
INVESTIGATION AND MAKES NO REPRESENTATION THAT THE PATENT RIGHTS,
RESEARCH TOOLS OR BIOLOGICAL MATERIALS ARE SUITABLE FOR
SPONSOR’S PURPOSES.
IN NO
EVENT SHALL TSRI BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF PROFITS OR EXPECTED SAVINGS OR OTHER ECONOMIC
LOSSES, OR FOR INJURY TO PERSONS OR PROPERTY) ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER. TSRI’S
AGGREGATE LIABILITY, IF ANY, FOR ALL DAMAGES OF ANY KIND RELATING
TO THIS AGREEMENT OR ITS SUBJECT MATTER SHALL NOT EXCEED THE AMOUNT
PAID BY SPONSOR TO TSRI UNDER THIS AGREEMENT. THE FOREGOING
EXCLUSIONS AND LIMITATIONS SHALL APPLY TO ALL CLAIMS AND ACTIONS OF
ANY KIND AND ON ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT,
TORT (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE OR STRICT
LIABILITY), OR ANY OTHER GROUNDS, AND REGARDLESS OF WHETHER TSRI
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
-7-
PURPOSE
OF ANY LIMITED REMEDY. THE PARTIES FURTHER AGREE THAT EACH WARRANTY
DISCLAIMER, EXCLUSION OF DAMAGES OR OTHER LIMITATION OF LIABILITY
HEREIN IS INTENDED TO BE SEVERABLE AND INDEPENDENT OF THE OTHER
PROVISIONS SINCE THEY EACH REPRESENT SEPARATE ELEMENTS OF RISK
ALLOCATION BETWEEN THE PARTIES.
7. TERM
AND TERMINATION.
7.1 Term.
Unless terminated sooner, the initial term of this Agreement shall
commence on the Effective Date and shall continue for three
years.
7.2 Termination
by Sponsor. Sponsor may terminate this Agreement by giving
ninety (90) days advance written notice of termination to
TSRI.
7.3 Termination
Upon Default. Except as specified in Section 7.5, the
failure of a party to perform any obligation required of it to be
performed hereunder, including payment obligations under Section
2.4(a), and the failure to cure within sixty (60) days after
receipt of notice from the other party specifying in reasonable
detail the nature of such default, shall constitute an event of
default hereunder. For clarity, TSRI shall not be obligated to
perform any of the research specified herein or to take any other
action required under this Agreement if the funding is not provided
as set forth in Exhibit B. Upon the occurrence of an event of
default, the non-defaulting party may deliver to the defaulting
party written notice of intent to terminate, such termination to be
effective upon the date set forth in such notice. Such termination
rights shall be in addition to and not in substitution for any
other remedies that may be available to the non-defaulting party
serving such notice against the defaulting party. Termination
pursuant to this Section 7.4 shall not relieve the defaulting
party of liability and damages to the non-defaulting party for
breach of this Agreement. Waiver by any party of a single default
or a succession of defaults shall not deprive such party of any
right to terminate this Agreement arising by reason of any
subsequent default.
7.4 Termination
Upon Insolvency. This Agreement may be terminated as to any
party ("Insolvent Party") by another party giving written notice of
termination to the Insolvent Party upon the filing of bankruptcy or
bankruptcy of the Insolvent Party or the appointment of a receiver
of any of the Insolvent Party's assets, or the making by the
Insolvent Party of any assignment for the benefit of creditors, or
the institution of any proceedings against the Insolvent Party
under any bankruptcy law. Termination shall be effective upon the
date specified in this notice.
7.5 Effect
of Expiration or Termination.
a. Termination
Upon Default of Sponsor. Upon the termination of this
Agreement by reason of a default by Sponsor, neither party shall
have any further rights or obligations with respect to this
Agreement, other than the obligation of Sponsor to make any and all
final payments accrued prior to the date of termination, the
obligation of the parties to make all reports required hereunder,
and except as provided below. Upon such termination of this
Agreement, the parties shall continue to abide by their
non-disclosure obligations as described in Section 5.1 and
each party hereto shall fulfill any other obligations incurred
prior to such
-8-
termination.
Any such termination of this Agreement shall not constitute the
termination of any license or any other agreements between the
parties which are then in effect except as expressly provided
therein. In addition, upon such termination, Sections 4, 6, 7 and 9
shall survive any such termination.
b. Expiration
or Termination upon Default of TSRI. Upon the expiration of
this Agreement at its regularly scheduled expiration date, or upon
a termination of this Agreement on account of a default by TSRI,
then TSRI shall make the disclosures required by Section 3.2
for TSRI Technology conceived or reduced to practice up to the date
of said expiration or termination;[…***…].
Additionally, each party shall perform all other obligations up to
the date of said expiration or termination; and the parties shall
continue to abide by their non-disclosure obligations described in
Section 5.1; and any previously existing license agreements or
other agreements between the parties shall continue in effect. In
addition, upon such expiration or termination, Sections 4, 6, 7 and
9 shall survive.
8. ASSIGNMENT;
SUCCESSORS.
8.1 Assignment.
Any and all assignments of this Agreement or any rights granted
hereunder by Sponsor without the prior written consent of TSRI are
void except a) to an Affiliate of Sponsor; and b) Sponsor may
assign this Agreement and its rights and obligations hereunder in
connection with the transfer or sale of all or substantially all of
Sponsor’s business or assets to a third party, whether by
merger, sale of stock, sale of assets or otherwise, subject to
Section 8.2 hereof.
8.2 Binding
Upon Successors and Assigns. Subject to the limitations on
assignment set forth herein, this Agreement shall be binding upon
and inure to the benefit of any successors in interest and assigns
of TSRI and Sponsor. Any such successor to or assignee of a party's
interest shall expressly assume in writing the performance of all
the terms and conditions of this Agreement to be performed by such
party and such written assumption shall be delivered to the other
Party.
9.0 GENERAL
PROVISIONS.
9.1
Independent
Contractors. The relationship between TSRI and Sponsor is
that of independent contractors. TSRI and Sponsor are not joint
venturers, partners, principal and agent, master and servant,
employer or employee, and have no other relationship other than
independent contracting parties. TSRI and Sponsor shall have no
power to bind or obligate each other in any manner, other than as
is expressly set forth in this Agreement.
***Confidential Treatment
Requested
-9-
9.2
Dispute Resolution.
Any dispute or claim between the parties arising out of or relating
to this Agreement, including without limitation the breach thereof,
shall be resolved according to the following dispute resolution
procedures:
(a) Such
dispute shall be first addressed by the representatives of TSRI and
Sponsor who have primary responsibility for managing this
Agreement.
(b)
If the
dispute is not resolved by such representatives within
[…***…] days
after the date either party gives written notice that such dispute
exists, then the dispute shall be referred to and addressed by the
senior management of each party.
(c)
If such
dispute is not resolved by the parties’ senior management
within thirty (30) days after the date the dispute is referred to
them, then the dispute shall be submitted to mediation. The
mediator shall be a retired judge or other neutral third party
mutually selected by TSRI and Sponsor who has at least ten (10)
years experience in mediating or arbitrating cases in the
bio-pharmaceutical industry and regarding the same or substantially
similar subject matter as the dispute between Sponsor and TSRI. If
the parties are unable to agree on such mediator within
[…***…] days
after they exchange initial lists of potential mediators, a
mediator with the same qualifications will be selected by the JAMS
office in San Diego located at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(after consultation with the parties).
(d)
The
location of the mediation shall be in the County of San Diego,
California. TSRI and Sponsor hereby irrevocably submit to the
exclusive jurisdiction and venue of the mediator mutually selected
by the parties or to the neutral mediator selected by JAMS of San
Diego for purposes of the mediation, and to the exclusive
jurisdiction and venue of the federal and state courts located in
San Diego County, California for any action or proceeding regarding
this Agreement in the event mediation is unsuccessful as provided
in sub-clause (e) below, or as provided in sub-clause (f) below,
and waive any right to contest or otherwise object to such
exclusive jurisdiction or venue, including without limitation any
claim that such exclusive venue is not a convenient
forum.
(e)
If the
dispute is not resolved through mediation, either party may refer
the dispute to a court of competent jurisdiction in San Diego
County, California.
(f)
Notwithstanding
anything to the contrary in this Agreement, prior to or while a
mediation proceeding is pending, either party has the right to seek
and obtain injunctive and other equitable relief from a court of
competent jurisdiction to enforce that party’s rights
hereunder.
9.3
Entire Agreement;
Modification. This Agreement and all of the attached
Exhibits set forth the entire agreement and understanding between
the parties as to the subject matter hereof, and supersede all
prior or contemporaneous written or oral agreements. There shall be
no amendments or modifications to this Agreement, except by a
written document which is signed by both parties.
***Confidential Treatment
Requested
-10-
9.4
California Law.
This Agreement shall be construed and enforced in accordance with
the laws of the State of California notwithstanding any conflicts
or choice of laws provisions.
9.5
No Use of Name. The
use of the name "The Scripps Research Institute", "Scripps",
“TSRI” or any variation thereof in connection with the
advertising, sale or performance of Products, Processes, Services,
Biological Materials or Research Tools is expressly
prohibited.
9.6
Headings. The
headings for each article and section in this Agreement have been
inserted for the convenience of reference only and are not intended
to limit or expand on the meaning of the language contained in the
particular article or section.
9.7
Severability.
Should any one or more of the provisions of this Agreement be held
invalid or unenforceable by a court of competent jurisdiction, it
shall be considered severed from this Agreement and shall not serve
to invalidate the remaining provisions thereof. The parties shall
make a good faith effort to replace any invalid or unenforceable
provision with a valid and enforceable one such that the objectives
contemplated by them when entering this Agreement may be
realized.
9.8
No Waiver. Any
delay in enforcing a party's rights under this Agreement or any
waiver as to a particular default or other matter shall not
constitute a waiver of such party's rights to the future
enforcement of its rights under this Agreement, excepting only as
to an express written and signed waiver as to a particular matter
for a particular period of time.
9.9
Attorneys' Fees. In
the event of a dispute among the parties hereto or in the event of
any default hereunder, the party prevailing in the resolution of
any such dispute or default shall be entitled to recover its
reasonable attorneys' fees and other costs incurred in connection
with resolving such dispute or default.
9.10 Notices.
Any notices required by this Agreement shall be in writing, shall
specifically refer to this Agreement and shall be sent by
registered or certified airmail, postage prepaid, or by telefax,
telex or cable, charges prepaid, or by overnight courier, postage
prepaid, and shall be forwarded to the respective addresses set
forth below unless subsequently changed by written notice to the
other party:
FOR
TSRI:
The Scripps
Research Institute
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇-▇
▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Director, Technology Development
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
-11-
With a
copy
to:
The Scripps Research Institute
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇-▇
▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief
Business Counsel
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
FOR
SPONSOR:
ChromaPharma,
Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, ▇▇▇
Attention: ▇▇▇
▇▇▇▇▇▇▇
Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Notices
shall be deemed delivered upon the earlier of (i) when
received; (ii) three (3) days after deposit into the U.S.
mail; (iii) the date notice is sent via telefax, telex or
cable; or (iv) the day immediately following delivery to an
overnight courier guaranteeing next-day delivery (except Sunday and
holidays).
9.11 Compliance
with U.S. Laws. Nothing contained in this Agreement shall
require or permit TSRI or Sponsor to do any act inconsistent with
the requirements of any United States law, regulation or executive
order as the same may be in effect from time to time.
9.12
Indemnity. Sponsor
shall indemnify, defend (by counsel reasonably acceptable to TSRI)
and hold harmless TSRI and any parent, subsidiary or other
affiliated entity of TSRI and their trustees, directors, officers,
employees, scientists, agents, successors, assigns and other
representatives (collectively, the “Indemnitees”) from
and against all claims, suits, actions, damages, liabilities,
losses and other expenses, including without limitation reasonable
attorney’s fees, expert witness fees and costs incurred by or
asserted against the Indemnitees, whether or not a lawsuit or other
proceeding is filed (collectively “Claim”), that arise
out of or relate to any allegations regarding Sponsor’s use
of the Technology or the exercise of its non-exclusive license
rights under Section 3.1(b). Sponsor shall not enter into any
settlement of such Claims that imposes any obligation on TSRI, that
does not unconditionally release TSRI from all liability or that
would have an adverse effect on TSRI’s reputation or business
without TSRI’s prior written consent. Notwithstanding the
above, Indemnitees, at their expense, shall have the right to
retain separate independent counsel to assist in defending any such
Claims. In the event Sponsor fails to promptly indemnify and defend
such Claims and/or pay Indemnitees’ expenses as provided
above, Indemnitees shall have the right to defend themselves, and
in that case, Sponsor shall reimburse Indemnitees for all of their
reasonable attorney’s fees, costs and damages incurred in
settling or defending such Claims within thirty (30) days of each
of Indemnitees’ written requests. This indemnity shall be a
direct payment obligation and not merely a reimbursement obligation
of Sponsor to Indemnitees.
-12-
IN
WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives as of the date set forth
above.
TSRI:
SPONSOR:
THE SCRIPPS
RESEARCH
INSTITUTE
CHROMAPHARMA, INC.
By:_/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice
President, Business
Development
Title:
CFO
6/9/17
-13-
EXHIBIT
A
RESEARCH PROGRAM
“NICOTINAMIDE RIBOSIDE FOR ENHANCEMENT OF ENDOCRINE THERAPY
AND PREVENTION OF RELAPSE IN BREAST CANCER”
Milestones and Tranched Research Funding by Year
|
Yr
|
Specific
Aims and Milestones
|
Research
Payment
|
|
1
|
[…***…]
|
$[…***…]
|
|
2
|
[…***…]
|
$[…***…]
|
|
3
|
[…***…]
|
$[…***…]
|
***Confidential Treatment
Requested
-14-
|
|
[…***…]
|
|
***Confidential Treatment
Requested
-15-
EXHIBIT B
BUDGET
[…***…]
***Confidential Treatment
Requested
-16-