CONTRIBUTION AGREEMENT (351)
[***] = Confidential Information has been
omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
CONTRIBUTION AGREEMENT (351)
This Contribution
Agreement (this “Agreement”) is
entered into as of August 25, 2017 (the “Effective
Date”), among TacticGem LLC, a Delaware limited
liability company (the “Company”),
Monopar Therapeutics Inc., a Delaware corporation
(“Monopar”), Gem
Pharmaceuticals, LLC, an Alabama limited liability company
(“Gem”) and
Tactic Pharma, LLC, an Illinois limited liability company
(“Tactic”, and
collectively with Gem, the owners of 100% of the issued and
outstanding limited liability company interests of the Company).
The Company, Monopar, Tactic, and Gem are sometimes hereinafter
referred to collectively as the “Parties”, and
each individually as a “Party”.
BACKGROUND INFORMATION
A. The
parties have entered into that certain Contribution Agreement by
and among the Company, Tactic, and Gem, dated as of August 24, 2017
(the “721
Contribution Agreement”) whereby Gem contributed to
the Company all of Gem’s right, title and interest in and to
the property and assets described on Exhibit A attached hereto
(collectively, the “Gem Contributed
Assets”) and Tactic contributed to the Company the
Tactic Contributed Assets (as defined in the 721 Contribution
Agreement).
B. Pursuant
to this Agreement and subsequent to the contributions contemplated
by the 721 Contribution Agreement, the Company will contribute (the
“Company
Contribution”) to Monopar all of the Company’s
right, title and interest in and to the Gem Contributed Assets in
exchange for 3,055,394.12 shares of Monopar’s common stock.
Subsequent to the transactions contemplated by the 721 Contribution
Agreement and this Agreement, the Company will own 7,166,667 shares
of Monopar common stock, which will constitute 79.70% of the total
number of shares outstanding of Monopar. By a separate agreement
(the “Investor Contribution
Agreement”), entered into on or before this Agreement,
between Monopar and a third party investor (the “Investor”),
the Investor will contribute $2,000,004 to Monopar in exchange for
333,334 shares of common stock (the “Investor
Contribution”, and together with the Company
Contribution, the “351
Transaction”). The Company and the Investor,
collectively, will own at least 80% of the total combined voting
power of all classes of stock entitled to vote and at least 80% of
the total number of shares of all classes of stock of Monopar
subsequent to the 351 Transaction.
C. It
is the intent of the Parties hereto that the 351 Transaction
constitutes a tax-free transfer pursuant to Section 351 of the
Internal Revenue Code of 1986, as amended.
STATEMENT OF AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parties
agree as follows:
ARTICLE I
COMPANY CONTRIBUTION
§1.1
Contribution. As of the Effective Date, (a) the Company hereby
contributes the Gem Contributed Assets to Monopar, and (b) Monopar
hereby accepts the Gem Contributed Assets, and assumes and
agrees to perform all obligations, restrictions and conditions
which are applicable to the Gem Contributed Assets to the extent
such obligations arise or accrue from and after the Effective Date
(except as otherwise provided in this Agreement). Monopar does not
assume or otherwise accept responsibility for any Liabilities (as
defined in the 721 Agreement) or obligations of Gem, Tactic, or the
Company, provided that Monopar will assume the obligations of Gem
accruing or arising after the Effective Date under the agreements
listed on the attached Exhibit B (the
“Assigned
Contracts”), with Gem being responsible for all such
liabilities and obligations accruing or arising prior to the
Effective Date.
§1.2 Shares
Issued. In exchange for the Gem
Contributed Assets, Monopar shall issue 3,055,394.12 shares
of its common stock (the “Issued Stock”)
to the Company. The Company shall hold
such shares as a separate block of stock that may be specifically
indentified as separate from the other 4,111,272.88 shares of
Monopar common stock held by the Company.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
§2.1
Representations and Warranties
of the Company, Tactic, and Gem. The representations and warranties of the Company,
Tactic, and Gem set forth in Article 5 of the 721 Agreement are
hereby made by them to Monopar and incorporated by reference in
this Agreement as if fully rewritten herein.
§ 2.2
Representations and Warranties
of Monopar. Monopar hereby represents and warrants to each
of the other Parties hereto that the statements contained in
this §2.2 are, except as would not be reasonably expected to
have a material adverse effect, true and correct as of the
Effective Date.
(a)
Organization;
Authority; Enforceability.
Monopar is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and
has full corporate power and authority to execute and deliver this
Agreement and perform its obligations hereunder. This Agreement
constitutes the legal, valid, and binding obligation of Monopar,
enforceable against Monopar in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, and other similar laws relating to
and/or affecting creditors’ rights generally and to general
equitable principles. The Issued Stock, when issued pursuant to the
terms and conditions of this Agreement, will be duly authorized,
validly issued, fully paid, and non-assessable, and issued in
compliance with all applicable federal and state securities
laws.
(b) Non-Contravention.
Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (i)
violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of
any government, governmental agency, or court to which
Monopar is subject or
any provision of Monopar’s Organizational Documents or any
other governing document of Monopar or (ii) conflict with, result
in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other
arrangement to which any assets of Monopar are subject (or result
in the imposition of any Encumbrance upon any assets of
Monopar).
(c) Private
Placement Memorandum of Monopar. The Private Placement Memorandum of Monopar dated
August 22, 2017, which includes the private placement memorandum
dated March 25, 2017 (the “PPM”)
contains information about Monopar. The PPM was prepared for an
offering limited to accredited investors and does not contain all
of the information that would be included in a registration
statement filed with the SEC. Monopar is not aware of any
inaccurate statements of fact in the PPM.
(d) Capitalization.
(i) The authorized capital of Monopar as of July 31, 2017 consisted
of 40,000,000 shares of common stock, $0.001 par value per share,
and 8,675,919.61 shares of common stock outstanding
(non-dilutive); (ii) on a fully
diluted basis, accounting for all issued options, there were
9,231,439.61 shares of common stock outstanding as of July 31,
2017; (iii) following the surrender of 2,888,727.12 shares of
Tactic’s Monopar common stock back to Monopar, Monopar would
have shares outstanding of 5,787,192.5 shares of common stock
(non-dilutive), and 6,342,712.5 shares of common stock on a
fully-diluted basis; and (iv) 700,000 shares of Common Stock have
been reserved for issuance under Monopar’s 2016 Stock
Incentive Plan, of which 555,520 shares are subject to issued and
outstanding options. All outstanding shares of Monopar common stock
have been duly authorized and validly issued, are fully paid
and non-assessable, and to Monopar’s knowledge, issued in
compliance with all applicable federal and state securities
laws.
(e)
Disclosure. No representation
or warranty or other statement made by Monopar in this Agreement,
or otherwise in connection with the transactions contemplated
hereby contains any material untrue statement or omits to state a
material fact necessary to make any of them, in light of the
circumstances in which it was made, not misleading in any adverse
respect.
(f) No
Other Representations and Warranties. Except for the
representations and warranties set forth in this Agreement, each of
the Company, Tactic, and Gem acknowledges and agrees that no
representation or warranty of any kind whatsoever, express or
implied, at law or in equity, is made or shall be deemed to have
been made by or on behalf of Monopar to the Company, Tactic, or
Gem, and Monopar hereby disclaims any such representation or
warranty, whether by or on behalf of Monopar.
ARTICLE III
POST-CLOSING MATTERS
§3.1 Tax
Matters. Each Party
shall cooperate fully, as and to the extent reasonably requested by
any other Party, in connection with the preparation and filing of
any Tax Return (as defined in the 721 Agreement) and any audit with
respect to Tax (as defined in the 721 Agreement), with respect to
the Gem Contributed Assets. Such cooperation shall include the
retention and, upon request, the provision of records and
information which are reasonably relevant to any such Tax Return or
audit or any tax planning and shall also include making employees
available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder.
Each Party further agrees, upon request, to use its commercially
reasonable efforts to obtain any certificate or other document from
any taxing authority or any other individual, corporation,
partnership, limited liability company, association, trust or any
other entity or organization as may be necessary to mitigate,
reduce or eliminate any Tax that could be imposed (including any
sales, use, documentary, stamp, gross receipts, registration,
transfer, conveyance, excise, recording, license, stock transfer
stamps and other similar taxes and fees arising out of or in
connection with or attributable to the transactions effected
pursuant to this Agreement (collectively, “Transfer
Taxes”; but for purposes of clarification, Transfer
Taxes do not include any income taxes incurred by or allocable to
any party in connection with or
attributable to the transfer of the Gem Contributed Assets, and the
transactions affected pursuant to this Agreement). The
Company shall bear and be responsible for the timely payment of,
and to such extent shall indemnify and hold harmless Monopar
against any Transfer Taxes, and Gem and Tactic shall each in turn
bear and be responsible for the timely payment of, and to such
extent shall indemnify and hold harmless the Company against, fifty
percent (50%) of such Transfer Taxes so paid.
§3.2 Consulting
Relationship with Gem Personnel. Each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall
become consultants of Monopar at the Effective Date and Monopar
will execute a consulting agreement with such individuals in
substantially the form of the attached Exhibit
C.
§ 3.3 Indemnification.
(a) Notwithstanding any investigation
conducted at any time with regard thereto, by or on behalf of the
Company, Tactic, Gem or Monopar, all representations, warranties,
covenants and agreements of the Parties in this Agreement
(including those incorporated by reference) and in any other
documents executed or delivered by any of them pursuant to this
Agreement or in connection with the transactions contemplated by
this Agreement (collectively, the “Additional
Documents”) shall survive the execution, delivery, and
performance of this Agreement and the Additional
Documents.
(b) (i)
Each Party shall defend, indemnify and hold harmless the other
Parties, and their directors, officers, employees and
representatives from and against any and all Damages asserted
against, resulting to, imposed upon, or incurred or suffered by
such Party, directly or indirectly, as a result of or arising from
any Indemnifiable Claims as set forth in Sections 9.2, 9.3, 9.4, 9.5, 9.7, 9.8 and 9.9 of
the 721 Contribution Agreement (the “Indemnification
Provisions”), which are
hereby incorporated by reference; and (ii) Monopar shall
defend, indemnify and hold harmless each of the Parties from and
against any and all Damages asserted against, resulting to, imposed
upon, or incurred or suffered by Gem, directly or indirectly, as a
result of or arising from any material breaches of the
representations and warranties of Monopar in §2.2 pursuant to
the Indemnification Provisions.
Indemnification by any Party to this Agreement shall be governed by
the Indemnification Provisions. References to the
“Agreement” in such Sections shall be interpreted to
refer to this Agreement in the context of Indemnifiable Claims
under this Agreement.
§3.4. Tax Treatment. Each of the Parties
acknowledges and agrees that the contribution of the Gem
Contributed Assets to Monopar is intended to qualify for treatment
as an exchange described in Section 351(a) of the Internal Revenue
Code of 1986, as amended (the "Code"). All Parties agree to
prepare or cause to be prepared their Tax Returns in accordance
with the immediately preceding sentence, including complying with
the record keeping requirements of Treasury Regulation Section
1.351-3.
ARTICLE
IV
REGISTRATION RIGHTS
§ 4.1 Registration
Rights.
(a)
Monopar shall, upon direction by the Company at any time after
Monopar has been subject to the reporting requirements of the
Securities and Exchange Act of 1934 for at least 12 months (the
“Initial
Holding Period”), file with the U.S. Securities and
Exchange Commission (“SEC”) a Form S-3 or other
appropriate form of registration statement, covering the resale of
any Monopar common stock by the Company, Gem, or Tactic and shall
use its best efforts to have such registration statement declared
effective as soon as practical thereafter. During the period that
the registration statement is effective, Monopar shall make all
public filings required in the normal course of its business and
necessary to maintain the effectiveness of the registration
statement during the period of resale of any Monopar common stock
by the Company, Gem, or Tactic; provided that the Company, Gem, and
Tactic agree that Monopar may, from time to time, inform the
Company, Gem, and Tactic that it may not sell Monopar common stock
until further notice if circumstances exist which have not been
disclosed publicly and the omission of which, in the reasonable
opinion of Monopar, would result in a material omission of fact in
the registration statement. The Company, Gem, and Tactic agree that
upon receipt of such notice and until otherwise informed by
Monopar, the Company, Gem, and Tactic shall not sell, or permit to
be
sold,
the Monopar common stock. The Company, Gem, and Tactic acknowledge
that Monopar cannot guarantee receipt of approval from the SEC, and
in the event that approval is not granted, the Company, Gem, and/or
Tactic, as applicable, must hold the Monopar common stock until
such time as the Company, Gem, and/or Tactic may be permitted to
sell the Monopar common stock pursuant to applicable securities
laws or exemptions therefrom. Monopar shall pay the costs to
prepare and file the registration statement, including the
registration fee due to the SEC and all legal and accounting
expenses and the cost of compliance with the securities or blue sky
laws in the State of Delaware or any other state. The Company, Gem,
or Tactic, as applicable (the party which is the seller of such
Monopar common stock) shall pay all other costs of sale of the
Monopar common stock, including any underwriting fees, commissions
on sale or stock transfer taxes resulting from the sale of the
Monopar common stock. In the event that a registration statement
for the resale of the Monopar common stock is not approved by the
SEC, Monopar shall, upon written request of the Company, prepare
and file a registration statement on Form S-1 registering for sale
any of the common stock and use its best efforts to have such
registration statement declared effective as soon as practical
thereafter. Monopar shall pay the costs to prepare and file such
registration statement, including the registration fee due to the
SEC and all legal and accounting expenses and the cost of
compliance with the securities or blue sky laws in the State of
Delaware or any other State. Additionally, the Company, Gem, and
Tactic shall receive the piggyback registration rights set forth in
(b) below.
(b) At
any time following the Effective Date (but without obligation to do
so) if Monopar proposes to register any of its common stock under
the Securities Act of 1933, as amended (the “Securities
Act”) in connection with the public offering of such
securities solely for cash (other than a registration effected
solely to implement an employee benefit plan or a transaction to
which Rule 145 of the Securities Act is applicable or a
registration using any form that does not permit secondary sales of
securities), Monopar will give written notice to the Company, Gem,
and Tactic of its intention to do so and, upon written request of
the Company, Gem, or Tactic, delivered to Monopar within 15 days
after receipt of notice, Monopar will use its best efforts at its
own expense (but excluding any underwriting commissions and stock
transfer taxes accruing to any common stock registered by the
Company, Gem, or Tactic) to cause to be registered under the
Securities Act the shares of common stock specified by the Company,
Gem, or Tactic, subject to (1) the right of other holders of
restricted stock to include their stock in any such registration
prior to the inclusion of the common stock, including but not
limited to rights of parties acquiring shares of common stock under
any agreement that Monopar will register the resale thereof, (2)
the Company’s acceptance of the terms of any underwriting
agreement entered into or proposed to be entered into between
Monopar and any underwriter of such offering, and (3) if the sole
or managing underwriter of such offering determines that the
aggregate number of shares of common stock which have been
requested by the Company, Gem, or Tactic to be included in the
registration should be limited to a lesser number or not included
due to market conditions, then Monopar may only sell the lesser
portion, if any. If a limitation is imposed on the number of common
stock includable by Monopar in any such offering, Monopar shall
give the Company, Gem, and Tactic, as applicable, prompt written
notice thereof.
§4.2 Form
10. Monopar shall
exert its commercially reasonable best efforts to cause to be filed
with the Securities and Exchange Commission (the
“SEC”),
under the Securities Exchange Act of 1934 (the “1934 Act”), a
registration statement on Form 10 (or another appropriate form), to
register Monopar’s shares of common stock, $0.001 par value
per share, within ninety (90) days after the Effective
Date.
ARTICLE V
MISCELLANEOUS PROVISIONS
§5.1 Severability.
Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction (as determined
by a court) shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
§5.2 Notices.
All notices, requests, demands, claims, and other communications
hereunder shall be made as set forth in Section 11.1 of the 721
Contribution Agreement.
§5.3 Construction.
The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties and no presumption
or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this
Agreement. Any reference to any federal, state, local, or foreign
statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires
otherwise.
§5.4 Entire
Agreement; Amendment; Waivers, etc. This Agreement
(including its schedules and exhibits), along with the 721
Agreement and the Investor Contribution Agreement constitutes the
entire agreement among the Parties and supersedes all prior
agreements and understandings, agreements or representations by or
among the Parties, written and oral, with respect to their subject
matter. No amendment, supplement, waiver or termination of this
Agreement is binding unless executed in writing by the Party to be
bound thereby. No waiver of any of the provisions of this Agreement
constitutes a waiver of any other provision of this Agreement,
whether or not similar, unless otherwise expressly
provided.
§5.5 Successors
and Assigns. Except as otherwise expressly permitted in this
Agreement, the Parties agree not to assign this Agreement or any of
the rights, interests, or obligations hereunder to any other person
or entity (whether in whole or in part, whether directly or
indirectly, and whether voluntarily or, to the fullest extent
permitted by applicable law, involuntarily), except with the prior
written consent of the other Party, which consent such Party may
grant or withhold in its sole discretion, and which consent, if
granted, does not imply any other consent in the future. Any
purported assignment in violation of this Section will be void and
of no legal effect. This Agreement will inure to the benefit of and
be binding upon each Party to this Agreement and each Party’s
successors, heirs, permitted assigns, and legal
representatives.
§5.6 Captions.
The headings of the Sections and Articles of this Agreement are
inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of this
Agreement.
§5.7 Counterparts.
This Agreement may be executed in any number of separate
counterparts (including facsimile and electronic transmission),
each of which upon execution and delivery will constitute an
original and all of which taken together will constitute one
agreement.
§5.8 Governing
Law; Consent to Jurisdiction and Venue.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE
STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE
APPLIED.
(b) Each of
the Parties hereto irrevocably submits itself to the exclusive
jurisdiction of the United States District Court of the Northern
District of Illinois (unless such court lacks jurisdiction under
Applicable Law, in which case each Party submits itself exclusively
to the jurisdiction of the state courts of Illinois sitting in ▇▇▇▇
County) for the purpose of any Action arising out of or relating to
this Agreement and/or the transactions contemplated
hereby.
(c) Each
of the Parties hereto irrevocably agrees that all claims with
respect to any such Action arising out of or relating to this
Agreement and/or the transactions contemplated hereby shall be
heard and determined exclusively in United States District Court of
the Northern District of Illinois (unless such court lacks
jurisdiction under Applicable Law, in which case each Party submits
itself exclusively to the jurisdiction of the state courts of
Illinois sitting in ▇▇▇▇ County).
§ 5.9 WAIVER
OF JURY TRIAL. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR
EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (EACH PARTY HAVING
HAD OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY EXPRESSLY WAIVES
THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ACTION OR PROCEEDING
RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR ANY
TRANSACTIONS RELATED HERETO OR CONTEMPLATED HEREBY.
§ 5.10 Defined
Terms. Any terms not defined in this Agreement shall have
the meanings assigned to them in the 721 Agreement.
The
Parties have duly executed this Agreement as of the date first
above written.
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MONOPAR THERAPEUTICS, INC.
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TACTICGEM LLC
By: CDR
Pharma LLC
Its:
Manager
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By:/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO
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By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its:
Member of the Manager
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TACTIC PHARMA, LLC
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GEM PHARMACEUTICALS, LLC
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|
By: /s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Its: Manager
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By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO
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EXHIBIT
A
Gem
Contributed Assets
See
Attached.
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
“Gem
Contributed Assets” means, collectively, the following (each
as defined herein):
1.
$5,000,000 in cash.
2.
All right, title
and interest, tangible and intangible, in and to the following
(individually and collectively, the
“Compounds”):
a.
GPX-100
b.
GPX-150
c.
GPX-160
d.
GPX-170
e.
GPX-180
3.
The Related
Assets
4.
All of the Gem
Contributed Intellectual Property
5.
All of the Gem
Contracts including:
a.
License
Agreements
b.
Research and
Collaboration Agreements
c.
Manufacturing,
Clinical Research and Compound Storage Agreements
6.
All inventory of
product, including raw materials, work in process and finished
product
7.
All works-made-for
hire agreements relating to the Compounds.
8.
After Closing, Gem
will use reasonable good faith efforts to cause Monopar and the
Company to be added as additional insureds to its product liability
and comprehensive general liability insurance policies (the
“Gem Insurance Policies”). Such rights as additional
insureds shall be transferred to each of Monopar and the Company
and shall be considered Gem Contributed Assets.
B.
“GPX-150”
means:
1.
[***]
2.
[***]
3. Any
[***]
4.
[***]
5. Any
formulation of [***]
6. Any
uses of [***]
C.
“GPX-160”
means:
1.
[***]
2.
[***]
3.
[***]
4.
Any formulation of
[***]
5.
Any uses of
[***]
D.
“GPX-100”
means:
1.
[***]
2.
[***]
3.
[***]
4.
[***]
5. Any
formulation of [***]
6. Any
uses of [***]
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
E.
“GPX-170”
means:
1.
[***]
2.
[***]
3. Any
[***]
4.
[***]
5. Any
formulation of [***]
6. Any
uses and formulations of [***] and
F.
“GPX-180”
means:
1.
[***]
2.
[***] and [***].
3. Any
[***]
4.
[***]
5. Any
formulation of [***]
6. Any
uses and formulations of [***]
G.
“Related
Assets” means:
1.
All assets related
to Gem’s use and development of the Compounds (including
without limitation [***] for any purpose, all assets used by Gem,
and necessary or useful to Gem as of Closing, in conducting
research, development, testing, marketing, selling, manufacturing
and/or distributing the Compounds and any other analogs derived
from them and their use (including without limitation [***] or any
other analogs derived from ▇▇▇-▇▇▇, ▇▇▇-▇▇▇, ▇▇▇-▇▇▇, ▇▇▇-▇▇▇, or
GPX-180)) as such activity is presently conducted and as such
activity is presently planned to be conducted, including, but not
limited to, all inventory of Compounds, all other inventory,
agreements, contracts, licenses, Intellectual Property related to
or useful for the Business, intellectual property assignments, ,
orphan drug or other regulatory designations, pending orphan drug
or other regulatory applications, trademarks, service marks and all
goodwill associated therewith, pre-clinical and clinical data,
manufacturing equipment; anthracycline molecules that,
[***].
2.
The
[***].
3.
Manufacturing
agreements.
4.
Written reports,
regulatory documents, case reports, and manufacturing
methods.
5.
All FDA and other
regulatory authorities filings and scientific studies relating to
the Compounds and the Related Assets including the
following:
a.
Orphan drug
designation [***]
b.
[***] GPX-150
[***]. All relevant filings and approvals in the US for GPX-150
have been made to this IND and are part of the IND record. [Date
February 7, 2007]
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
H.
“Gem
Contributed Intellectual Property” has the meaning set forth
in Section 10 of the Agreement. “Intellectual Property”
means:
All
domestic and foreign (1) patents and patent applications, and all
patents issuing thereon, including without limitation utility,
model and design patents and certificates of invention, together
with all reissue patents, patents of addition, divisionals,
provisional applications, renewals, continuations,
continuations-in-part, substitutions, additions, extensions,
confirmations, re-examinations, and all foreign counterparts of the
forgoing which are in the process of being prepared, and all
inventions and improvements disclosed therein including the right
to claim priority benefit of or to any of the foregoing
(collectively, “Patents”); (2) trademarks, service
marks, trade dress, trade names, brand names, designs, logos,
commercial symbols and corporate names, and all registrations,
applications and goodwill associated therewith (collectively,
“Trademarks”); (3) copyrights and all works of
authorship, whether or not registered or copyrightable, and all
applications, registrations, and renewals in connection therewith
(collectively, “Copyrights”); (4) confidential and
proprietary information, including without limitation, trade
secrets, know-how, formulae, ideas, concepts, discoveries,
innovations, improvements, results, reports, information and data,
research, laboratory and programmer notebooks, methods, procedures,
proprietary technology, operating and maintenance manuals,
engineering and other drawings and sketches, customer lists,
supplier lists, pricing information, cost information, business
manufacturing and production processes and techniques, designs,
specifications, and blueprints (collectively, “Trade
Secrets”); and (5) all other intellectual property and
proprietary rights in any form or medium known or later devised,
all copies and tangible embodiments of the foregoing, and all
goodwill associated with any of the foregoing; and (6) the right to
bring suit, the right to claim and retain all damages and/or seek
other remedies for the past, present, and future infringement
and/or misappropriation of and the right to collect royalties and
other payments under or on account of any of the foregoing; in each
case whether registered or unregistered.
U.S.
patents and patent applications within the Gem Contributed
Intellectual Property:
1.
[***].
2.
[***].
3.
[***].
4.
[***].
5.
[***].
6.
[***].
7.
[***].
8.
Patent pending
[***], filed [***]: covers the composition of [***] and the
[***].
9.
[***]
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
Foreign
patents and patent applications within the within the Gem
Contributed Intellectual Property:
|
Country
|
Patent
#
|
Based
on U.S. Patent No.
|
|
[***]
|
[***]
|
[***]
|
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
|
|
|
|
|
[***]
|
[***]
|
[***]
|
Copyrights
and Trade Secrets within the Gem Contributed Intellectual
Property:
1.
Analysis of [***]
for GPX-150
2.
Analysis of
[***]for GPX-150
3.
Analysis of [***]
for GPX-100
Unpatented
inventions within the Gem Contributed Intellectual
Property:
1.
GPX-160, GPX-170 and GPX-180
Trademarks
within the Gem Contributed Intellectual Property:
1. Gem
Pharmaceuticals (unregistered
2.
On [***], Gem submitted an International Non-Proprietary Name
(INN)request to the World Health Organization for GPX-150,
[***]
I.
Gem
Contracts
License
Agreements (no active license agreements)
1.
Non-binding term
sheet with Vitel Laboratories, expired on August 1,
2017.
2.
Coronado
Biosciences agreement, expired on October 8, 2010.
3.
[AOI, expired on
February 5, 2003]
Assigned
Research and Collaboration Agreements (no active agreements other
than [***])
1.
[***]:
-- two
Service Agreements, each expired April 30, 2016; fully completed
and fully paid
--
Service Agreement expired August 14, 2017; work complete but final
report due to be delivered soon after Closing. Gem agrees to
promptly deliver to Monopar said report upon receipt, to pay in
full all amounts owed under said Agreement, and if requested, to
use reasonable good faith efforts to obtain a consent from BSU in
substantially the same form as Exhibit E to the Contribution
Agreement.
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
--Service
Agreement expiring August 31, 2017; work complete and final report
has been delivered. Gem agrees to pay in full all amounts owed
under said Agreement.
2.
[***], expired on June 24, 2015.
3.
Agreements with [***] as reflected in proposals of [***] dated
April 21, 2016, June 24, 2016, July 5, 2016, and December 6,
2016.
Assigned
Manufacturing, Clinical Research and Compound Storage
Agreements
1.
Manufacturing (All
manufacturing agreements other than [***] have
expired)
a.
Tetrionics, expired
January, 2005.
b.
SAFC, expired
August, 2015.
c.
[***], dated May
31, 2017.
d.
Bioserv, expired
January, 2016.
2.
Clinical Research
Organizations (no active agreements)
a.
Premier Research ,
expired on May 14, 2014.
b.
Clinical Trial Data
Services, expired on March 26, 2017.
3.
Compound
Storage
a.
Clinical Supplies
Management, Inc., dated October 16, 2014.
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
Other
Gem Contracts
1.
Renewal Service
Agreement between Gem Pharmaceuticals, LLC and CPAGlobaldated
August 31, 2016.
J.
All inventory of
product, including raw materials, work in process and finished
product
1.
Inventory of
GPX-150 and GPX-100 located in [***]
●
200 vials of
GPX-150 product (about 50 mg/vial = about 10 grams of GPX-150 mixed
with lactose)
●
6.8 grams of
GPX-150 from a batch made in 2006
2.
Inventory of
clinical-grade GPX-150 located at CSM in [***]
●
GPX-150 Powder
14.11 grams – expired 17 Nov 2016
●
GPX-150 50mg vial
406 vials – expired 31 Oct 2016
3.
Inventory of
GPX-150 (approximately 15 grams) located at [***]
EXHIBIT
B
Assigned
Contracts
1.
Master Services Agreement by and between Gem and Clinical Supplies
Management, Inc., dated October 1, 2014
2.
Renewal Service Agreement between Gem Pharmaceuticals, LLC and CPA
Global dated August 31, 2016
EXHIBIT
C
Form of
Consulting Agreement
See
attached.
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
CONSULTING AGREEMENT
This
Consulting Agreement (herein referred to as “Agreement”) is made and entered
into as of this day of , 2017 (the “Effective Date”), by and between
Monopar Therapeutics, Inc. (herein referred to as
“Monopar”), a
Delaware corporation, located at ▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (herein referred to as
“▇▇▇▇▇”) who
resides at [***] (each herein referred
to as “Party” and collectively as
“Parties”).
RECITALS
WHEREAS, ▇▇▇▇▇
specializes in the fields of pharmacology, toxicology, intellectual
property, and pharmaceutical management.
WHEREAS, Monopar
desires to contract with ▇▇▇▇▇ to provide certain consultation
services, as requested by Monopar, and ▇▇▇▇▇ wishes to provide such
services to Monopar, upon the terms and conditions set forth
below.
NOW,
THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Parties agree as follows:
1.
Consulting Arrangement. ▇▇▇▇▇
agrees to perform consulting services as described herein upon the
terms and conditions herein set forth.
2.
Term of Agreement. Subject to
the provision for early termination set forth below in Section 5 of this Agreement, this
Agreement shall commence as of the Effective Date and shall
continue from the Effective Date through one year later (the “Term”).
3.
Duties of ▇▇▇▇▇.
3.1
Specific Duties. ▇▇▇▇▇ shall
provide consulting services to Monopar, such duties to include: See
Appendix A (herein referred to as the “Services”).
3.2
Obligations. ▇▇▇▇▇ shall be
diligent in the performance of Services, and be professional in his
commitment to meeting his obligations hereunder. ▇▇▇▇▇ represents
and warrants that he is not party to any other existing agreement,
which would prevent him from entering into this Agreement or which
would adversely affect this Agreement. ▇▇▇▇▇ ▇▇▇ be engaged or
employed in any other business, profession, or other activity but
▇▇▇▇▇ shall not perform Services for any other individuals or
entities in direct competition with Monopar, within the scope of
Services under this Agreement, during the Term of this Agreement,
and for two years after its termination, except as provided for by
mutual written agreement of the Parties. ▇▇▇▇▇ shall not perform
services for any party which would require or facilitate the
unauthorized disclosure of any confidential or proprietary
information of Monopar.
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
3.3
Reporting. ▇▇▇▇▇ will report to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D. and liase with ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, M.D.,
▇▇▇▇▇▇▇ ▇▇▇▇▇, M.D. and/or any other assigned Monopar employee or
consultant as may be designated in writing by Monopar.
3.4
Compensation. Monopar shall pay
▇▇▇▇▇ as follows:
a.
[***] per month payable within thirty (30) days of the end of each
month.
b.
[***] per hour for consulting work that exceeds fifteen (15) hours
per month, and has been approved by Monopar. ▇▇▇▇▇ will document
all hours, including the initial fifteen (15) hours, and invoice
Monopar monthly for the hours above the first fifteen (15)
hours.
▇▇▇▇▇
shall not be reimbursed, and is responsible for the facilities
and equipment necessary to perform Services required under
this Agreement.
4.
Reimbursement of Expenses.
Monopar shall promptly reimburse ▇▇▇▇▇ for all direct expenses
incurred in providing the Services to Monopar pursuant to this
Agreement, including travel, meals and lodging as long as
Monopar’s prior approval has been obtained. Invoices
submitted by ▇▇▇▇▇ pursuant to this Section 4 shall also include a detail of
all reimbursable expenses incurred during the period covered by
such invoice as well as receipts. Per diem for food will be
reimbursed as per IRS specified rates in effect at that
time.
5.
Termination of Agreement - Failure to
perform. In the event that ▇▇▇▇▇ ceases to perform the
Services or breaches his obligations as required hereunder for any
reason and such cessation or breach remains uncured for ten (10)
business days following Monopar’s written notice thereof to
▇▇▇▇▇, Monopar shall have the right to immediately terminate this
Agreement upon notice to ▇▇▇▇▇ and to enforce such other rights and
remedies under this Agreement as it may have as a result of said
breach.
In the
event that Monopar breaches its obligations under this Agreement
and such breach remains uncured for ten (10) business days
following Jerry’s written notice thereof to Monopar, ▇▇▇▇▇
shall have the right to immediately terminate this Agreement upon
notice to Monopar and to enforce such other rights and remedies
under this Agreement as it may have as a result of said
breach.
6.
Certain Liabilities. It is
understood and agreed that ▇▇▇▇▇ shall be acting as an independent
contractor and not as an agent or employee of, or partner, joint
venturer or in any other relationship with Monopar. ▇▇▇▇▇ will be
solely responsible for all insurance, employment taxes, FICA taxes
and all obligations to governments or other organizations for its
employees arising out of this consulting assignment. ▇▇▇▇▇
acknowledges that no income, social security or other taxes shall
be withheld or accrued by Monopar for Jerry’s benefit. ▇▇▇▇▇
assumes all risks and hazards encountered in the performance of
duties under this Agreement. Unless Monopar has provided prior
written approval, ▇▇▇▇▇ shall not use any sub-contractors to
perform obligations hereunder. ▇▇▇▇▇ shall be solely responsible
for any and all injuries, including death, to all persons and any
and all loss or damage to property, which may result from
performance under this Agreement.
7.
Indemnities. ▇▇▇▇▇ hereby
agrees to indemnify Monopar and hold Monopar harmless from and
against all claims (whether asserted by a person, firm, entity or
governmental unit or otherwise), liabilities, losses, damages,
expenses, charges and fees which Monopar may sustain or incur
arising out of or attributable to any gross negligence or willful
misconduct by ▇▇▇▇▇, as applicable, in the performance under this
Agreement. Monopar hereby agrees to indemnify ▇▇▇▇▇ and hold ▇▇▇▇▇
harmless from and against all liabilities, losses, damages,
expenses, charges and fees which ▇▇▇▇▇ ▇▇▇ sustain or incur by
reason of any claim which may be asserted against ▇▇▇▇▇ by any
person, firm, corporation or governmental unit and which may arise
out of or be attributable to any gross negligence or willful
misconduct by Monopar or its employees or contractors, as
applicable, in the performance of this Agreement.
8.
Warranties. The Services shall
be performed in a professional manner, consistent with industry
standards. In performing the Services under this Agreement, ▇▇▇▇▇
shall not make any unauthorized use of any confidential or
proprietary information of any other party or infringe the
intellectual property rights of any other party. Monopar represents
and warrants that it has full right, power, and authority to enter
into this Agreement and to perform its obligations
hereunder.
9.
Arbitration. Any controversy or
claim between Monopar and ▇▇▇▇▇ arising out of or relating to this
Agreement, or the breach thereof, shall be submitted to arbitration
in accordance with the rules of the American Arbitration
Association. The site of the arbitration shall be Chicago, IL, and
except as provided herein the arbitration shall be conducted in
accordance with the Rules of the American Arbitration Association
prevailing at the time the demand for arbitration is made
hereunder. At least one member of the arbitration panel shall be a
financial expert knowledgeable in the area of biopharmaceutical
corporate compliance. Judgment upon any award rendered by the
arbitrator(s) may be entered in any court of competent jurisdiction
and shall be binding and final. The cost of arbitration shall be
borne by the losing Party, as determined by the
arbitrator(s).
10.
Confidential Information. ▇▇▇▇▇
has executed the attached confidential disclosure agreement
referenced herein as Appendix
B prior to commencement of the Services. ▇▇▇▇▇ hereby
represents and warrants that the obligations thereunder shall be
binding.
11.
Inventions. ▇▇▇▇▇ agrees that
all ideas, developments, suggestions and inventions conceived or
reduced to practice, as a result of Services provided by ▇▇▇▇▇
under this Agreement, shall be the exclusive property of Monopar
and shall be promptly communicated and assigned to Monopar. ▇▇▇▇▇
shall require any other parties contracted by ▇▇▇▇▇ to disclose the
same to ▇▇▇▇▇ and to be bound by the provisions of this paragraph.
During the period of this Agreement and thereafter at any
reasonable time when called upon to do so by Monopar, ▇▇▇▇▇ shall
require any employees of or other parties contracted by ▇▇▇▇▇ to
execute patent applications, assignments to Monopar (or any
designee of Monopar) and other papers and to perform acts which
Monopar believes necessary to secure to Monopar full protection and
ownership of the rights in and to the services performed by ▇▇▇▇▇
and/or for the preparation, filing and prosecution of applications
for patents or inventions made by any employees of or other parties
contracted by ▇▇▇▇▇ hereunder. The decision to file patent
applications on inventions made by any employees of or other
parties contracted by ▇▇▇▇▇ shall be made by Monopar and shall be
for such countries, as Monopar shall elect. Monopar agrees to bear
all the expense in connection with the preparation, filing and
prosecution of applications for patents and for all matters
provided in this paragraph requiring the time and/or assistance of
▇▇▇▇▇ as to such inventions. Notwithstanding the foregoing, ideas,
developments, suggestions, and inventions conceived or reduced to
practice by ▇▇▇▇▇ that do not directly arise from Jerry’s
performance under this Agreement, shall be owned by
▇▇▇▇▇.
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
12.
Miscellaneous.
12.1
Notice. Any notices to be given
hereunder by either Party to the other may be effectuated, in
writing, by personal delivery, by electronic mail, or by mail,
registered or certified, postage prepaid, with return receipt
requested or by Federal Express. Mailed notices shall be addressed
to the parties at the following addresses:
If to
Monopar:
Monopar Therapeutics, Inc
▇
▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, M.D.
Email:
[***]
If to
▇▇▇▇▇:
▇▇▇▇▇▇
▇.▇▇▇▇▇
or at
such other addresses as either Monopar or ▇▇▇▇▇ ▇▇▇ designate by
written notice to each other. Notices delivered personally shall be
deemed duly given on the date of actual receipt, mailed notices
shall be deemed duly given as of the fourth day after the date so
mailed, and electronic mail shall be deemed duly given upon
confirmation of receipt by recipient.
12.2
Waiver of Breach. The waiver by
either Party to a breach of any provision in this Agreement cannot
operate or be construed as a waiver of any subsequent breach by
either Party.
12.3
Severability. If any provision
of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, that provision shall
be deemed modified to the extent necessary to make it valid or
enforceable, or if it cannot be so modified, then severed, and the
remainder of the Agreement shall continue in full force and effect
as if the Agreement had been signed with the invalid portion so
modified or severed.
12.4
Choice of Law. This Agreement
has been made and entered into in the State of Illinois, and the
laws of such state, excluding its choice of law rules, shall govern the validity and
interpretation of this Agreement and the performance due hereunder.
The losing party in any dispute hereunder shall pay the
attorneys’ fees and disbursements of the prevailing
party.
12.5
Integration. The drafting,
execution and delivery of this Agreement by the Parties have been
induced by no representations, statements, warranties or agreements
other than those expressed herein. This Agreement embodies the
entire understanding of the Parties, and there are no further or
other agreements or understandings, written or oral, in effect
between the Parties relating to the subject matter hereof unless
expressly referred to herein.
12.6
Modification. This Agreement
may not be modified unless such is in writing and signed by both
Parties to this Agreement.
12.7
Assignment. ▇▇▇▇▇ shall not be
permitted to assign this Agreement to any other person or entity
without the prior written consent of Monopar. ▇▇▇▇▇ hereby agrees
that Monopar shall be permitted to assign this Agreement to any
affiliate of Monopar. This Agreement shall be binding upon and
shall inure to the benefit of the successors and permitted assigns
of the parties.
12.8
Survival. The provisions of
Sections 7, 8, 9, 10, and
11 shall survive expiration
or termination of this Agreement for any reason. Expiration or
termination of this Agreement shall not affect Monopar’s
obligations to pay any amounts that may then be due to
▇▇▇▇▇.
12.9
Force Majeure. If Jerry’s
performance of his obligations under this Agreement is prevented or
delayed due to a flood, earthquake, war, terrorist act, revolution,
riot, or insurrection, ▇▇▇▇▇ shall not be deemed in breach of his
obligations under this Agreement or otherwise liable for any costs,
charges or losses sustained or incurred by Monopar, to the extent
arising directly from such force majeure event.
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first above written.
ACCEPTED
AND AGREED TO:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
|
|
|
|
|
By: Individual
|
|
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
|
APPENDIX A
Services
include, but are not limited to, assisting the Monopar Management
team with the following:
1.
Near and long term
planning of product development for existing Monopar drugs such as
Validive, ▇▇▇-▇▇▇, ▇▇▇-▇▇▇, ▇▇▇-▇▇▇, ▇▇▇-▇▇▇, and
GPX-180.
2.
Developing near and
long term budgets for product development programs: preclicnal,
clinical, manufacturing, and related regulatory
affairs.
3.
Designing,
managing, evaluating, and reporting for preclinical and clinical
studies and for manufacturing API and drug product.
4.
Data storage and
retrieval for preclinical, clinical, manufacturing, and regulatory
programs.
5.
Identifying and
evaluating suitable in-licensing drug products, including
evaluation of strength and scope of patent protection.
6.
Identifying
patentable IP based on data from Monopar’s preclinical,
clinical, and manufacturing programs.
7.
Creating
presentation content for Board Meetings, fund raising, and M&A
activities.
8.
Evaluating
qualifications of employment candidates for Monopar.
9.
Any other Services
required by Monopar.
Appendix
B
See
executed CDA attached
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
MONOPAR THERAPEUTICS INC.
CONFIDENTIAL DISCLOSURE AGREEMENT
AGREEMENT
between the individual ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (“Recipient”)
and Monopar Therapeutics Inc.
(“Monopar”).
In
consideration for the mutual agreements contained herein and the
other provisions of this Agreement, the receipt of which is hereby
acknowledged by the parties, the parties hereto agree as
follows:
1. Scope of Confidential Information
“Confidential
Information” means, subject to the other provisions of this
Section:
(a) all
information, whether oral or written, disclosed by Monopar that is
described in Schedule A under “Description of Confidential
Information”. Confidential Information may relate to the
activities or property of Monopar or any of Monopar’s
members, directors, officers, employees, consultants, agents,
representatives or affiliated entities (collectively,
“Associated Persons”); and
(b) any
written material prepared by Recipient or Recipient’s
partners, directors, officers, employees, agents, representatives
or affiliated entities (collectively, “Associated
Persons”) containing any Monopar Confidential
Information.
“Confidential
Information” does not include information that: (i) was
available to Recipient (free of any confidentiality obligation in
favor of Monopar) prior to disclosure of such information by
Monopar to Recipient; (ii) is made available to Recipient from a
third party which (at the time of such availability) was not, to
Recipient’s knowledge, subject to a confidentiality
obligation with respect to such information; (iii) is made
available to third parties by Monopar without restriction on the
disclosure of such information, (iv) is or becomes available to the
public on or after the date of this Agreement (other than as a
result of disclosure prohibited by any confidentiality obligation
contained herein); or (v) is developed independently by Recipient
or its Associated Persons without reference to the Confidential
Information.
Recipient
agrees that it will not disclose to Monopar or to any of its
employees or consultants any confidential, proprietary, or trade
secret information, or any other form of confidential protectable
intellectual property, regardless of whether such information is
the property of Recipient itself or of some other individual or
organization.
2. Use and Disclosure of Confidential Information
(a)
Recipient agrees: (i) to preserve the confidentiality of
Confidential Information for [***] from the date of signing this
Agreement; (ii) to use and/or permit the use of Confidential
Information only for the purposes of, and to the extent necessary
for, evaluating a business relationship between the parties and, if
such a relationship is consummated, carrying out such relationship;
(iii) to disclose Confidential Information to, and to permit the
use of Confidential Information by, only such persons within
Recipient who Recipient reasonably determines need to know such
information in connection with the activities described in (ii)
above; and (iv) to use reasonable care to maintain the
confidentiality of Confidential Information, provided that such
care shall be at least as great as the precautions taken by
Recipient to protect its own confidential and/or proprietary
information.
(b)
Notwithstanding anything to the contrary herein, Recipient is free
to make (and this Agreement does not restrict) disclosure of any
Confidential Information in a judicial, legislative, or
administrative investigation or proceeding or to a government or
other regulatory agency; provided that, to the extent permitted by,
and practicable under, the circumstances, Recipient provides to
Monopar (i) prior notice of the intended disclosure or (ii) if
prior notice is not permitted or practicable under the
circumstances, prompt notice of such disclosure.
3. Certain Rights and Limitations
(a) All
Confidential Information shall remain the property of Monopar. The
provision of Confidential Information hereunder shall not transfer
any right, title or interest in such information to Recipient.
Monopar does not grant any express or implied right to Recipient to
or under Monopar’s patents, copyrights, trademarks, trade
secret information or other proprietary rights.
(b)
Recipient agrees to adhere to all applicable laws and regulations
relating to the export of technical data received
hereunder.
(c)
This Agreement imposes no obligations on either party to purchase,
sell, license, transfer or otherwise transact in any technology,
services or products. This Agreement does not create any agency or
partnership relationship between the parties hereto.
(d) All
information disclosed hereunder is without representation or
warranty of any kind whatsoever, including without limitation, any
representation or warranty as to accuracy or completeness, whether
express or implied.
4. Remedies
(a)
Upon Monopar’s reasonable request, Recipient agrees to return
promptly to Monopar all Confidential Information that is in writing
and in the possession of Recipient and, upon written request, to
certify the return or destruction (at Monopar’s option) of
all Confidential Information.
(b)
Recipient agrees that monetary damages may not be an adequate
remedy for improper disclosure or use of Confidential Information,
that Monopar, upon breach of this contract, shall be entitled to
such injunctive or equitable relief as may be deemed proper by a
court of competent jurisdiction, without waiving any other right or
remedy, and that Recipient shall not resist an application for such
relief on the ground that Monopar has an adequate remedy at
law.
5. Miscellaneous
(a)
Except where expressly indicated otherwise, the words
“written” or “in writing” shall include,
but not be limited to, written or printed documents, electronic and
facsimile transmissions and computer disks or tapes (whether
machine or user readable).
(b) In
the event that any one or more of the provisions of this Agreement
will for any reason be held to be invalid, illegal or unenforceable
by a court of competent jurisdiction, the remaining provisions of
this Agreement will be unimpaired, and the invalid, illegal or
unenforceable provisions will be replaced by a mutually acceptable
provision, which being valid, legal or enforceable, comes closest
to the intention of the parties underlying the invalid, illegal or
unenforceable provision.
(c) No
amendment or alteration of the terms of this Agreement shall be
effective unless made in writing and executed by both parties
hereto.
(d) A
failure or delay in exercising any right in respect of this
Agreement will not be presumed to operate as a waiver, and a single
or partial exercise of any right will not be presumed to preclude
any subsequent or further exercise of that right or the exercise of
any other right. Any modification or waiver of any provision of
this Agreement shall not be effective unless made in writing. Any
such waiver shall be effective only in the specific instance and
for the purpose given.
(e)
This Agreement and its enforcement
shall be governed by, and construed in accordance with, the laws of
the State of Illinois, without regard to conflicts-of-law
principles.
[***] = Confidential Information has
been omitted and filed separately with the Securities and Exchange
Commission.
Confidential
treatment has been requested with respect to the omitted
information.
[SIGNATURE PAGE
FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this
Agreement.
|
“RECIPIENT”
By:_______________________________________
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Consultant
Date:_____________________________________
Notices
hereunder shall be sent to:
▇▇▇▇▇▇
▇. ▇▇▇▇▇
[***]
|
“MONOPAR”
Monopar
Therapeutics Inc.
By:_______________________________________
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
CEO
Date:
_____________________________________
Notices
hereunder shall be sent to:
[***]
|
|
|
|
SCHEDULE A
Description
of Confidential Information Disclosed by Monopar:
(a) The
identity of the particular compound or compounds under
investigation by Monopar; (b) the medical indication and/or other
purpose for which any of these compounds are being investigated by
Monopar; (c) the (known or putative) mechanism of action of any of
these compounds; (d) any techniques used by Monopar to discover,
develop, produce, or test any of these compounds; and (e) any
non-public business, financial, regulatory, clinical or scientific
information pertaining to Monopar or the compound or compounds that
Monopar identifies as confidential when disclosed.