REDACTED VERSION
EXHIBIT 10.30
TO
LIGHT SCIENCES ONCOLOGY, INC.'S
REGISTRATION STATEMENT ON FORM S-1
INITIALLY FILED
APRIL 21, 2006
REGISTRATION NO. 333-133474
"[ * ]" = omitted, confidential material, which material has been separately
filed with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
SUPPLY AGREEMENT
DATED AS OF JUNE 30, 2006
BETWEEN
LIGHT SCIENCES ONCOLOGY, INC.
AND
FRONTIER SCIENTIFIC, INC.
SUPPLY AGREEMENT
This Supply Agreement, dated as of June 30, 2006, is made and entered into
by and between Light Sciences Oncology, Inc., a Washington corporation ("LSO"),
and Frontier Scientific, Inc., a Utah corporation ("Frontier"). LSO and Frontier
agree as follows:
SECTION 1. MANUFACTURE AND SUPPLY OF COMPOUND
1.1 PURCHASE. Frontier will produce, sell and deliver to LSO, and LSO will
purchase from Frontier, [ * ] of [ * ] ("Compound") in accordance with the terms
and subject to the conditions of this Agreement. The Compound will conform to
the specifications set forth in the attached Exhibit A ("Specifications").
Frontier will procure, install and test all equipment, supplies, materials and
other items necessary to timely satisfy its obligations under this Agreement,
including, without limitation, procuring sufficient quantities of [ * ].
Frontier will procure [ * ] from [ * ] (a vendor approved by LSO) or another
vendor approved by LSO in writing, which approval will not be unreasonably
withheld by LSO. Prior to approving any vendor of [ * ] (other than [ * ]), LSO
must be provided an opportunity to interview the prospective vendor, inspect its
production facilities and test samples of its [ * ] material.
1.2 DELIVERY. Frontier will deliver the Compound to LSO FOB Frontier's
manufacturing facility in accordance with the following delivery schedule:
QUANTITY DELIVERY DATE
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[ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
Frontier will notify LSO at least [ * ] business days before delivery of any
Compound and will coordinate with LSO so that each shipment of Compound is
delivered at a time on the delivery date reasonably acceptable to LSO. Frontier
will properly label the Compound and, unless otherwise approved by LSO, package
it in accordance with the packaging procedures set forth in the attached Exhibit
B. Risk of loss will pass to LSO when each
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shipment of the Compound is delivered to LSO at Frontier's manufacturing
facility following testing and acceptance of the Compound pursuant to Section
1.4. Upon [ * ] days' prior written notice to Frontier, LSO may reschedule any
delivery date to a date not more than [ * ] days after the original delivery
date specified above.
1.3 SCHEDULE. In the event of any actual or anticipated delay in the
production or delivery of any shipment of the Compound, Frontier will give LSO
prompt written notice of the circumstances giving rise to the delay, the
anticipated duration of the delay, and the action Frontier is taking to overcome
or mitigate the delay. Frontier will promptly update such information upon
request of LSO.
1.4 TESTING AND ACCEPTANCE. Before delivering any Compound to LSO, Frontier
will analyze and test the Compound using appropriate test methods (including,
without limitation, the test methods described in the Specifications) to ensure
that the Compound conforms to the Specifications. Before delivering each batch
of Compound specified in Section 1.2, Frontier will deliver to LSO a sample of
the Compound to be delivered suitable for testing. Frontier will deliver a
completed and signed Certificate of Analysis (in a form generally consistent
with the historical practices of the parties) with or before delivery of each
sample. During the [ * ]-business day period following LSO's actual receipt of
each sample, LSO may test the sample to determine whether it conforms with the
Specifications. If LSO does not notify Frontier in writing of its determination
regarding the applicable shipment of Compound within [ * ] business days after
the end of such [ * ] business day period, the shipment will be deemed to
conform to the Specifications and accepted by LSO. If LSO determines that the
Sample conforms to the Specifications, then LSO will notify Frontier in writing,
Frontier will deliver the shipment of Compound in accordance with Section 1.2
and the shipment will be deemed accepted by LSO. If LSO determines that the
Compound fails to conform to the Specifications, then LSO will notify Frontier,
and Frontier will notify LSO within [ * ] business days whether Frontier
disputes LSO's determination. If Frontier fails to provide such notice, then
Frontier will replace the Compound with Compound that conforms to the
Specifications within [ * ] days after the date of LSO's notice of
nonconformance. If Frontier timely disputes LSO's determination, then LSO will
engage [ * ], Inc. or, if [ * ], Inc. is not available, then another independent
third-party testing laboratory approved by both parties, which the parties will
approve within [ * ] business days after Frontier's notice, (the "Inspector") to
inspect and test the Compound to be delivered, in order to determine whether the
Compound conforms to the Specifications. The parties will instruct the Inspector
to complete its testing as soon as practicable and in no event more than [ * ]
days after an appropriate sample of the Compound to be delivered is furnished to
the Inspector. The Inspector will furnish the results of its tests to Frontier
and LSO, and each party may have a representative present when the testing is
performed. If the Inspector determines that the Compound does not comply with
the Specifications, Frontier will immediately advise LSO of the date on which
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Frontier will be able to replace the non-conforming Compound with Compound that
conforms to the Specifications. If Frontier's delivery date for the replacement
Compound is more than [ * ] days after the Inspector's determination that the
Compound does not conform to the Specifications, LSO may terminate the Agreement
upon written notice to Frontier. If Frontier's delivery date for the replacement
Compound is equal to or less than [ * ] days after the Inspector's determination
that the Compound does not materially conform to the Specifications, Frontier
will replace the non-conforming Compound with Compound that conforms to the
Specifications by such date at no additional charge to LSO. If the Inspector
determines that the Compound conforms to the Specifications, the Compound will
be deemed accepted by LSO upon delivery.
1.5 PROGRESS REPORTS. Frontier will inform LSO of all significant
developments, events and circumstances that occur in connection [ * ] Frontier's
production [ * ]; procurement of materials, equipment, services or other
resources necessary to produce the Compound hereunder; or the production of the
Compound and will promptly respond to any reasonable requests from LSO for
information relating to the status and progress of such activities. Attached
hereto as Exhibit C is a summary of Frontier's plans and schedule [ * ] to meet
its obligations under this Agreement. Frontier will promptly notify LSO of any
material changes to the plans or schedule described in the attached Exhibit C.
1.6 FACILITIES. LSO will have the right, but not the obligation, to visit
Frontier's facilities during Frontier's regular business hours and upon not less
than [ * ] business days' advance notice to Frontier, in order to observe [ * ]
Frontier's production facilities and the production of the Compound and to
review related records and data as reasonably necessary to confirm Frontier's
compliance with this Agreement; provided, that (a) Frontier will not be required
to disclose, and LSO will not have access to, Frontier's documented proprietary
production processes and methods, proprietary formulae or trade secrets and (b)
upon LSO's request, LSO will be permitted access to Frontier's analytical
reports regarding the Compound. During the Term (as defined below) and for a
period of [ * ] years thereafter (unless a longer period is required by
applicable law or regulation), Frontier will prepare, maintain and retain
accurate records and other documentation related to Frontier's raw materials
sourcing and Frontier's handling, storage and shipment of the Compound. For
avoidance of doubt, analytical reports regarding the production of the Compound
will not be considered proprietary to Frontier and will be made available to LSO
upon request.
1.7 COMPLIANCE WITH LAWS. Frontier will comply with all applicable laws,
ordinances, rules, regulations, orders, licenses, permits and other
requirements, now or hereafter in effect in connection with its activities under
this Agreement, including, without limitation, all applicable safety, labeling,
packaging and other governmental requirements,
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associated with handling, storing, producing, shipping and delivering the
Compound. Without limiting the foregoing, Frontier will furnish a Material Data
Safety Sheet pursuant to 29 CFR 1910.1200 with each shipment of Compound.
1.8 REGULATORY MATTERS. Frontier will (a) promptly notify LSO if it
receives notice of any material inspection or inquiry by any governmental
authority related to the production of the Compound; (b), to the extent
permitted by applicable regulations and orders, forward to LSO copies of any
correspondence from any such governmental authority relating to production of
the Compound; and (c) obtain the written consent of LSO, which will not
unreasonably be withheld, before referring to LSO in any regulatory
correspondence.
1.9 SUPPLY TO OTHERS. Frontier will not directly or through any of its
affiliates supply any third party and its affiliates more than [ * ] of Compound
in any calendar year during the Term and thereafter; provided, however, that the
foregoing restriction shall lapse and not apply if (a) in the first full
calendar year after expiration of the Term (expected to be calendar year [ * ]),
LSO has not ordered from Frontier at least the lesser of (i) [ * ] of the
Compound during the calendar year or (ii) [ * ] of the Compound ordered by LSO
during the calendar year from all third parties or (b) in any subsequent
calendar year (expected to be calendar year [ * ]), LSO has not ordered from
Frontier at least the greater of (i) [ * ] of the Compound during the calendar
year or (ii) [ * ] of the Compound ordered by LSO during the calendar year from
all third parties.
SECTION 2. COMPENSATION
2.1 PRODUCTION [ * ]. In partial consideration for Frontier's manufacture
and delivery of the Compound, LSO will reimburse Frontier the actual
out-of-pocket costs incurred by Frontier, up to a maximum of [ * ], for
Frontier's procurement of the following goods, services and resources related to
(a)[ * ] at least [ * ] of the Compound, or (b) the production of [ * ] of
Compound for LSO in accordance with this Agreement:
(i) [ * ];
(ii) chemical engineering consulting services for scale-up consulting,
process development and hardware installation;
(iii) [ * ];
(iv) [ * ] (other than [ * ]) used for the production of the Compound
hereunder; and
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(v) disposal of hazardous materials generated during the production of
the Compound for LSO.
Frontier (itself or through one or more of its subsidiaries) will procure
such equipment, services and resources from unaffiliated third parties at
competitive prices and in the ordinary course of business. At LSO's election,
LSO will either reimburse Frontier such costs promptly after presentation of
proof that Frontier has paid such costs, or LSO will promptly pay the vendor's
invoices directly. To Frontier's knowledge, the equipment, services and other
resources identified for purchase under this Section 2.1 will be sufficient to
enable Frontier to satisfy its obligations under this Agreement and to produce
and supply on an annual basis [ * ] of the Compound.
2.2 RAW MATERIALS. In partial consideration for Frontier's manufacture and
delivery of the Compound, LSO will reimburse Frontier the actual amounts paid by
Frontier to [ * ] (together with all related payments to third parties and
governmental entities for shipping, insurance, taxes, duties, customs charges
and related expenses associated with the shipment of [ * ]) to purchase such
quantities of [ * ] necessary to produce [ * ] of the Compound for LSO under
this Agreement up to a maximum of [ * ]. LSO will reimburse [ * ] of Frontier's
costs for such [ * ] at the time Frontier places its order, which amount must be
paid to Frontier's supplier (up to an aggregate maximum of [ * ], and the
remaining [ * ] (up to an aggregate maximum of [ * ] promptly after Frontier
accepts such [ * ].
2.3 PER [ * ] FEE. LSO will pay Frontier at a rate of [ * ] per [ * ] of
the Compound received and accepted by LSO pursuant to Section 1.4; provided,
however, that up to [ * ] of the amounts payable by LSO under this Section 2.3
for each [ * ] of the Compound will be offset by the payments made by LSO to
Frontier pursuant to Sections 2.1 and 2.2 above until the aggregate amount of
such payments made under Sections 2.1 and 2.2 have been exhausted. Frontier will
invoice LSO for amounts payable pursuant to this Section 2.3 at the time
Frontier delivers the Compound to LSO pursuant to Section 1.4 and such invoices
will be paid by LSO within [ * ] days after Frontier's delivery of the
applicable shipment of the Compound.
2.4 MAXIMUM PAYMENT. The maximum amount of compensation to be paid and
reimbursed under this Agreement for [ * ] of the Compound will not exceed [ * ]
constituting of the payments to be made by LSO under Sections 2.1, 2.2 and 2.3.
2.5 INVOICES. Frontier will invoice LSO for all compensation, reimbursable
expenses and other amounts due under this Agreement. Each invoice will be in a
form consistent with the historical practices of the parties, and will be
furnished to LSO before the due date of the amount subject to the invoice. Upon
LSO's reasonable request, Frontier will
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promptly furnish to LSO documentation and other records substantiating any
reimbursable expense, including, without limitation, copies of purchase orders,
shipping document and receipts.
2.6 SECURITY INTEREST. To secure Frontier's obligations hereunder, Frontier
hereby grants to LSO a security interest in all assets, equipment, raw materials
and other items acquired by Frontier and reimbursed or paid by LSO under this
Agreement, the proceeds thereof, and all work-in-progress and inventory produced
from such raw materials ("Collateral"). Frontier authorizes LSO to file and
record financing statements, amendments and other documents under the Uniform
Commercial Code ("UCC") reasonably necessary to evidence, perfect and maintain
the security interest granted under this Section 2.6. Frontier has not granted,
created or knowingly allowed to exist, and, during the Term Frontier will not,
grant, create or knowingly allow to exist, any lien, security interest or
encumbrance on the Collateral except as created by this Agreement or otherwise
authorized by LSO. The security interest granted under this Section 2.6, and
Frontier's obligations under this Section 2.6, will terminate when Frontier has
delivered, and LSO has accepted, [ * ] of the Compound in accordance with the
terms and conditions of this Agreement. Upon the occurrence of any material
breach by Frontier under this Agreement that is not cured within [ * ] days
after written notice thereof, LSO will, without limiting any other remedies,
have the remedies of a secured party under the UCC, and LSO will have the right
to dispose of the Collateral by way of one or more contracts or transactions,
for cash or on terms, in such manner and at such places as LSO determines is
commercially reasonable, and apply any proceeds thereof to the obligations
secured under this Agreement in whatever manner or order LSO deems appropriate.
LSO will not foreclose on the security interest granted hereunder if Frontier
fully and timely satisfies its obligations under Section 3.3.
2.7 OBLIGATION TO SUPPLY ADDITIONAL QUANTITIES. In addition to the
quantities of Compound identified in Section 1.2 above, upon the written request
of LSO, Frontier will produce and deliver to LSO up to an additional [ * ] of
Compound conforming to the Specifications. In exchange of Frontier's production
and delivery of such additional Compound, LSO shall pay to Frontier a price of
[ * ] per additional [ * ] pursuant to terms and conditions substantially
similar to the terms and conditions set forth herein; provided, however, that
Frontier shall not be required to grant any security interest or pledge any
assets in favor of LSO as security for Frontier's performance of its obligations
under this Section 2.7 and no payments will be required under Sections 2.1 and
2.2. Without limiting the foregoing, lead and delivery times for any such
additional Compound will be substantially the same as the lead and delivery
times set forth herein taking into account that no expansion of production
capacity will be required to produce such additional Compound.
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SECTION 3. TERM AND TERMINATION
3.1 TERM. The term of this Agreement will commence on the date of this
Agreement and, unless sooner terminated as provided in Section 3.2, will end on
the date that Frontier has delivered [ * ] of Compound in accordance with the
terms and conditions of this Agreement and such Compound has been found
acceptable in accordance with Section 1.4 (the "Term").
3.2 TERMINATION. Either party may terminate this Agreement by giving the
other party [ * ] days' prior written notice of termination if the other party
materially breaches any of its obligations under this Agreement and fails to
cure such breach within such [ * ] day period. Any failure of Frontier to
deliver a shipment of the Compound conforming to the Specifications within [ * ]
days after the applicable delivery date set forth in Section 1.2 or established
pursuant to Section 1.4 will be deemed a material breach of this Agreement.
3.3 EFFECT OF TERMINATION. Upon any termination of this Agreement by LSO
pursuant to Section 1.4, 3.2 or 5.11, Frontier will promptly refund to LSO an
amount equal to [ * ] of the [ * ] of Compound accepted by LSO hereunder before
the effective date of termination multiplied by [ * ] before the effective date
of termination. For example, if LSO terminates the this Agreement pursuant to
Section 3.2 after LSO has accepted [ * ] then Frontier will refund [ * ],
calculated as follows: [ * ]. LSO will release the security interest granted
under Section 2.6 promptly following receipt of any refund owing under this
Section 3.3.
3.4 SURVIVAL. Sections 1.8, 1.9, 2.7, 3.3, 4 and 5 will survive the
expiration or termination of this Agreement.
SECTION 4. WARRANTIES AND INDEMNIFICATION
4.1 WARRANTIES. Frontier represents and warrants to LSO that (a) the
Compound will conform to the Specifications when delivered pursuant to Section
1.2; and (b) Frontier's production and sale of the Compound as contemplated by
this Agreement do not infringe or misappropriate any patent, trade secret or any
other intellectual property right of any third party.
4.2 INDEMNIFICATION BY FRONTIER. Frontier will defend, indemnify and hold
harmless LSO from and against all actions, claims, proceedings, losses,
liabilities, damages and expenses (including, without limitation, reasonable
attorneys' fees) incurred or sustained by LSO as a result of any claim made or
asserted against LSO based upon (a) any claim which, if proven, would constitute
a breach of Frontier's representations and warranties set forth in Section 4.1,
and (b) any claim of bodily injury or death arising from the gross
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negligence or intentional misconduct of Frontier. LSO will have the right to
approve the counsel selected by Frontier for defense of any such claim, which
approval will not be unreasonably withheld. LSO will provide Frontier prompt
written notice of any such claim and such information and assistance as Frontier
may reasonably request to help Frontier defend such claim; provided, that
Frontier pays or reimburses all of the costs and expenses reasonably incurred by
LSO in connection with any assistance requested by Frontier under this Section
4.2. Frontier will not have any right to settle any such claim without LSO's
written consent, which consent will not be unreasonably withheld.
4.3 INDEMNIFICATION BY LSO. LSO will defend, indemnify and hold harmless
Frontier from and against all actions, claims, proceedings, losses, liabilities,
damages and expenses (including, without limitation, reasonable attorneys' fees)
incurred or sustained by Frontier as a result of any claim made or asserted
against Frontier based upon (a) any sale or use by LSO of Compound conforming to
the Specifications after delivery to LSO pursuant to Section 1.2; or (b) any
claim of bodily injury or death arising from the gross negligence or intentional
misconduct of LSO. Frontier will have the right to approve the counsel selected
by LSO for defense of any such claim, which approval will not be unreasonably
withheld. Frontier will provide LSO prompt written notice of any such claim and
such information and assistance as LSO may reasonably request to help LSO defend
such claim; provided, that LSO pays or reimburses all of the costs and expenses
reasonably incurred by Frontier in connection with any assistance requested by
LSO under this Section 4.3. LSO will not have any right to settle any such claim
without Frontier's written consent, which consent will not be unreasonably
withheld.
SECTION 5. MISCELLANEOUS
5.1 RELATIONSHIP OF THE PARTIES. Frontier is an independent contractor, not
an agent of LSO. This Agreement will not be interpreted or construed to create
an association, joint venture, partnership or agency relationship between the
parties or to impose any partnership obligation or liability upon either party.
5.2 NOTICES. Any notice or other communication under this Agreement given
by either party to the other will be in writing and delivered to the address set
forth below either (a) in person or by first-class, registered or certified mail
or overnight delivery service, return receipt requested, postage prepaid, or (b)
by facsimile with a hard copy mailed or delivered as provided in clause (a)
above, unless first acknowledged as received by the recipient in writing,
whether by facsimile or other means. Notices will be deemed received once the
same have been received, as evidenced by a return receipt, delivery
confirmation, facsimile confirmation or similar record of delivery:
If to Frontier: Frontier Scientific, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: President
phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to LSO: Light Sciences Oncology, Inc.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change its address specified above by giving the other party
written notice of such change in accordance with this Section 5.2.
5.3 PUBLICITY. Neither party will issue any press release or other public
announcement regarding this Agreement or the transactions contemplated hereby
without first obtaining the prior written consent of the other party, except to
the extent required by applicable law, rule, regulation or order. In the event a
party determines that such disclosure is required by applicable law, rule,
regulation or order, the party shall promptly (and in no event less than two (2)
business days prior to the time of disclosure) notify the other party of the
nature and timing of the disclosure.
5.4 NONWAIVER. The failure of either party to insist upon or enforce strict
performance by the other party of any provision of this Agreement or to exercise
any right under this Agreement will not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same will be
and remain in full force and effect.
5.5 SEVERABILITY. If any provision of this Agreement is held by any court
of competent jurisdiction to be invalid, illegal or unenforceable under
applicable law, then such provision will be deemed reformed or omitted to the
extent determined by such court (i.e., with the objective of preserving the
intent of such provision to the extent permitted by applicable law). In any
event, the remainder of this Agreement will remain valid and enforceable.
5.6 ATTORNEYS' FEES AND COSTS. In any action, suit, arbitration or other
proceeding to enforce any right or remedy under this Agreement or to interpret
any provision of this Agreement, the party which prevails by enforcing the
provisions of this Agreement will be entitled to recover its costs and expenses
(including, without limitation, expert witness and reasonable attorneys' fees)
reasonably incurred in connection with such action, suit, or other proceeding or
any appeal thereof.
5.7 SUCCESSORS AND ASSIGNS. Neither party will assign (voluntarily, by
operation of law or otherwise), subcontract or delegate this Agreement or any
right, interest or benefit under this Agreement without the prior written
consent of the other party. No assignment
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with or without such consent will relieve or release the assigning party of any
of its obligations under this Agreement. Subject to the foregoing restriction on
assignments, this Agreement will be fully binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors, assigns and
legal representatives. Any attempted assignment in violation of this Section 5.7
will be void.
5.8 APPLICABLE LAW. This Agreement will be interpreted, construed and
enforced in accordance with the laws of the State of Utah, without reference to
its choice of law rules to the contrary.
5.9 AMENDMENT. No change, amendment or modification of any provision of
this Agreement will be valid unless set forth in a written instrument signed by
both parties.
5.10 ENTIRE AGREEMENT. This Agreement, the Non-Disclosure and Non-Use of
Information Agreement between the parties dated [ * ], and the Confidentiality
Agreement between the parties dated [ * ] (the "CDA") set forth the entire
agreement, and supersede any and all prior agreements, of the parties with
respect to the subject matter hereof. Neither party will be bound by, and each
of them specifically objects to, any term, condition or other provision which is
different from or in addition to the provisions of this Agreement (whether or
not it would materially alter this Agreement) and which is proffered by the
other party in any quotation, invoice, shipping document, acceptance,
confirmation, correspondence or otherwise, unless the recipient specifically
agrees to such provision in a written instrument signed by the recipient.
5.11 FORCE MAJEURE. In the event that either party is unable to perform any
of its obligations under this Agreement because of natural disaster, actions or
decrees of governmental bodies or actions of third parties beyond the control of
the party whose performance is so affected (hereinafter referred to as a "Force
Majeure Event"), the party who has been so affected shall give prompt notice to
the other party and shall use commercially reasonable efforts to resume
performance as soon as reasonably practicable. Upon delivery of such notice, the
performance obligations of the party affected by the Force Majeure Event shall
be suspended throughout the duration of the Force Majeure Event. If a party's
performance under this Agreement is delayed, or is reasonably expected to be
delayed, by more than six (6) months as a result of a Force Majeure Event, then
the non-affected party will have the right to terminate this Agreement upon
written notice.
5.12 CONFIDENTIAL INFORMATION. Each party will maintain all of the
"Confidential Information" (as defined below) of the other party in confidence
and not disclose, publish or distribute any portion of the Confidential
Information of the other party to any third person other than their attorneys
and accountants who need to know such Confidential Information. In the event
that either party is requested or required (by oral question or request for
information or documents in any legal proceeding, interrogatory, subpoena, civil
investigative demand or similar process) to disclose any Confidential
Information of the other party, such party will promptly notify the other party
of the request or requirement so that the other party may seek an appropriate
protective order. If, in the absence of a
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protective order, a party is compelled to disclose any Confidential Information
to any tribunal or else stand liable for contempt, the party may disclose the
Confidential Information of the other party to the tribunal; provided, however,
that the party disclosing such information to the tribunal shall use its
reasonable efforts to obtain an order or other assurance that confidential
treatment will be accorded to such portion of the Confidential Information of
the other party required to be disclosed. The foregoing provisions shall not
apply to any Confidential Information, which (a) is or has become generally
available to the public through no fault of the receiving party, (b) is or was
acquired by the receiving party from a third party and is not subject to an
unexpired obligation to such third party restricting the receiving party's use
or disclosure thereof; or (c) is independently developed by the receiving party
without reliance upon or use of any of the Confidential Information of the other
party. Without in any manner limiting the foregoing, the parties agree that the
existence, terms and conditions of this Agreement shall not be disclosed or
furnished to any third party (other than a party's accountants and lawyers on a
need to know basis or, on a confidential basis, any prospective corporate
partner or purchaser of the party or its securities), except to the extent
required by applicable law, rule, regulation or order. If a party is required to
disclose the existence, terms or conditions of this Agreement under any
applicable law, rule, regulation or order, then the party required to disclose
will notify the other party prior to such disclosure. If LSO is required to
disclose the existence, terms or conditions of this Agreement to the SEC or in
any public securities filing, then LSO will use diligent efforts to obtain
confidential treatment of such terms and conditions for which confidential
treatment may be afforded under applicable SEC regulations and will provide
Frontier a [ * ] business day period to review and comment on any such request
for confidential treatment. LSO will consider all such comments in good faith.
For purposes of this Agreement, "Confidential Information" shall mean any and
all non-public information furnished or disclosed, in whatever form or medium,
concerning a disclosing party, including, without limitation, such disclosing
party's intellectual property, customer lists, business contacts, business
plans, policies, procedures, techniques, know-how, products, agreements,
economic and financial information, marketing plans, data, reports, analyses,
compilations and any other materials or information, or any materials based
thereon, whether written or oral, furnished directly or indirectly by a
disclosing party to the other party. Notwithstanding anything in this Agreement
to the contrary, the parties agree that the Specifications shall be deemed to be
Confidential Information of LSO and LSO may freely disclose the Specifications.
The obligations under this Section 5.12 will terminate [ * ] after the effective
date of termination of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
LSO: FRONTIER:
Light Sciences Oncology, Inc. Frontier Scientific, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Print: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: VP - CFO Title: President
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EXHIBIT A
Purchase Specification [ * ]
Frontier Scientific
Test Test Method Specification
Reference
[ * ]
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EXHIBIT B
PACKAGING PROCEDURES
Compound to be packed in [ * ].
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[ * ] Confidential Treatment Requested
EXHIBIT C
[ * ] PLANS
[ * ] Plan:
1. [ * ].
2. Engage chemical engineering firm to consult for scale-up, process
development, and hardware installation.
3. Purchase of [ * ]. Additionally, any other equipment as specified by the
chemical engineering firm.
Schedule for Implementation of [ * ] Plan:
1. Within two (2) weeks of signing to engage chemical engineering firm.
2. Upon signing [ * ].
3. Purchasing of equipment will be after the chemical engineering firm has
completed its review.
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[ * ] Confidential Treatment Requested