DRS/A

As confidentially submitted to the Securities and Exchange Commission on March 22, 2019. This Amendment No. 1 to the draft registration statement has not been publicly filed with the Securities and Exchange Commission and all information herein remains confidential.

Registration No. 333-            

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-1

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

CODIAK BIOSCIENCES, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   2836   47-4926530

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

 

 

500 Technology Square, 9th Floor

Cambridge, MA 02139

(617) 949-4100

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Douglas E. Williams, Ph.D.

President and Chief Executive Officer

500 Technology Square, 9th Floor

Cambridge, MA 02139

(617) 949-4100

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Stephen M. Davis

Daniel A. Lang

Goodwin Procter LLP

620 Eighth Avenue

New York, NY 10018

(212) 813-8800

 

Linda C. Bain

Codiak BioSciences, Inc.

500 Technology Square, 9th Floor

Cambridge, MA 02139

(617) 949-4100

 

Divakar Gupta

Richard C. Segal

Brent B. Siler

Cooley LLP

1114 Avenue of the Americas

New York, NY 10036

(212) 479-6000

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, check the following box.  

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large Accelerated Filer      Accelerated Filer  
Non-Accelerated Filer      Smaller Reporting Company  
     Emerging Growth Company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act.  

 

 

CALCULATION OF REGISTRATION FEE

 

 

TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED  

PROPOSED
  MAXIMUM AGGREGATE  

OFFERING PRICE (1)(2)

  AMOUNT OF
REGISTRATION FEE (3)

Common Stock, par value $0.0001 per share

       

 

 

(1)    Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
(2)    Includes the offering price of shares that the underwriters may purchase pursuant to an option to purchase additional shares.
(3)    Calculated pursuant to Rule 457(o) based on an estimate of the proposed maximum aggregate offering price.

 

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 


EXPLANATORY NOTE

This Amendment No. 1 to the Draft Registration Statement on Form S-1 of Codiak BioSciences, Inc. is an exhibits-only submission to file certain exhibits incorporated by reference in Item 16 of Part II of the Registration Statement and to restate the exhibit index incorporated by reference in Item 16. Accordingly, this Amendment No. 1 consists only of the facing page, this explanatory note, Part II of the Registration Statement, including the signature page, the exhibit index, and the exhibits filed herewith. The prospectus is unchanged and has therefore been omitted from this submission.


PART II

Information not required in prospectus

Item 13. Other expenses of issuance and distribution.

The following table sets forth the fees and expenses, other than underwriting discounts and commissions, payable in connection with the registration of the common stock hereunder. All amounts are estimates except the SEC registration fee, FINRA filing fee and Nasdaq Global Select Market listing fee.

 

 

 

     AMOUNT
TO BE PAID
 

SEC registration fee

   $             *  

FINRA filing fee

                 *  

Nasdaq Global Select Market listing fee

                 *  

Printing and mailing

                 *  

Legal fees and expenses

                 *  

Accounting fees and expenses

                 *  

Transfer agent and registrar fees and expenses

                 *  

Miscellaneous

                 *  
  

 

 

 

Total

   $             *  
  

 

 

 

 

 

*   To be completed by amendment.

Item 14. Indemnification of directors and officers.

Section 145 of the Delaware General Corporation Law (the “DGCL”) authorizes a corporation to indemnify its directors and officers against liabilities arising out of actions, suits and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served or are currently serving as a director or officer to a corporation. The indemnity may cover expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with any such action, suit or proceeding. Section 145 permits corporations to pay expenses (including attorneys’ fees) incurred by directors and officers in advance of the final disposition of such action, suit or proceeding. In addition, Section 145 provides that a corporation has the power to purchase and maintain insurance on behalf of its directors and officers against any liability asserted against them and incurred by them in their capacity as a director or officer, or arising out of their status as such, whether or not the corporation would have the power to indemnify the director or officer against such liability under Section 145.

We have adopted provisions in our certificate of incorporation to be in effect upon the closing of this offering and by-laws to be in effect upon the effectiveness of this registration statement that limit or eliminate the personal liability of our directors to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended. Consequently, a director will not be personally liable to us or our stockholders for monetary damages or breach of fiduciary duty as a director, except for liability for:

 

   

any breach of the director’s duty of loyalty to us or our stockholders;

 

   

any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

 

   

any unlawful payments related to dividends or unlawful stock purchases, redemptions or other distributions; or

 

   

any transaction from which the director derived an improper personal benefit.

These limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.

In addition, our by-laws provide that:

 

   

we will indemnify our directors, officers and, in the discretion of our board of directors, certain employees to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended; and

 

II-i


   

we will advance reasonable expenses, including attorneys’ fees, to our directors and, in the discretion of our board of directors, to our officers and certain employees, in connection with legal proceedings relating to their service for or on behalf of us, subject to limited exceptions.

We have entered into indemnification agreements with each of our directors and intend to enter into such agreements with our executive officers. These agreements provide that we will indemnify each of our directors, our executive officers and, at times, their affiliates to the fullest extent permitted by Delaware law. We will advance expenses, including attorneys’ fees (but excluding judgments, fines and settlement amounts), to each indemnified director, executive officer or affiliate in connection with any proceeding in which indemnification is available and we will indemnify our directors and officers for any action or proceeding arising out of that person’s services as a director or officer brought on behalf of us or in furtherance of our rights. Additionally, certain of our directors or officers may have certain rights to indemnification, advancement of expenses or insurance provided by their affiliates or other third parties, which indemnification relates to and might apply to the same proceedings arising out of such director’s or officer’s services as a director referenced herein. Nonetheless, we have agreed in the indemnification agreements that our obligations to those same directors or officers are primary and any obligation of such affiliates or other third parties to advance expenses or to provide indemnification for the expenses or liabilities incurred by those directors are secondary.

We also maintain general liability insurance which covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”).

The underwriting agreement filed as Exhibit 1.1 to this registration statement provides for indemnification of us and our directors and officers by the underwriters against certain liabilities under the Securities Act and the Securities Exchange Act of 1934, as amended.

Item 15. Recent sales of unregistered securities.

In the three years preceding the filing of this registration statement, we have issued the following securities that were not registered under the Securities Act:

Issuances of capital stock

Set forth below is information regarding securities we have issued within the past three years that were not registered under the Securities Act.

In January 2016, we issued and sold to investors in a private placement an aggregate of 20,333,331 shares of our Series B preferred stock at a purchase price of $3.00 per share, for aggregate consideration of approximately $61.0 million.

In November 2017, we issued and sold to investors in a private placement an aggregate of 20,204,079 shares of our Series C preferred stock at a purchase price of $3.7876 per share, for aggregate consideration of approximately $76.5 million.

In November 2015, we entered into a patent and technology license agreement with The Board of Regents of the University of Texas System, on behalf of the MD Anderson Center for Cancer, or MDACC, which we refer to as the MDACC License. At the same time we also entered into a sponsored research agreement with MDACC, or the SRA. As partial consideration for the MDACC License, we issued 5,000,000 shares of our common stock and 1,500,000 shares of our Series A preferred stock to MDACC. As partial consideration for the SRA, we issued 200,000 shares of Series A preferred stock during the first year of operation and issued 41,666 shares of Series B preferred stock quarterly in the second and third years of operation. In February 2016, the SRA was amended to change the issued stock to 20,833 shares of Series B preferred stock quarterly in the second through fifth years of operation.

In November 2018, we entered into a license agreement with Kayla Therapeutics S.A.S., or Kayla, which we refer to as the Kayla License. As partial consideration for the Kayla License, we issued 924,068 shares of our common stock to Kayla.

 

II-ii


No underwriters were involved in the foregoing sales of securities. Unless otherwise stated, the sales of securities described above were deemed to be exempt from registration pursuant to Section 4(a)(2) of the Securities Act, including Regulation D and Rule 506 promulgated thereunder, as transactions by an issuer not involving a public offering. All of the purchasers in these transactions represented to us in connection with their purchase that they were acquiring the securities for investment and not distribution, that they could bear the risks of the investment and could hold the securities for an indefinite period of time. Such purchasers received written disclosures that the securities had not been registered under the Securities Act and that any resale must be made pursuant to a registration or an available exemption from such registration. All of the foregoing securities are deemed restricted securities for the purposes of the Securities Act.

Grants and exercises of stock options

We have granted stock options to purchase an aggregate of 32,748,408 shares of our common stock, with exercise prices ranging from $0.42 to $2.80 per share, to employees, directors and consultants pursuant to the 2015 Plan. Since 2016, 515,459 shares of common stock have been issued upon the exercise of stock options pursuant to the 2015 Plan.

The issuances of the securities described above were deemed to be exempt from registration pursuant to Section 4(a)(2) of the Securities Act or Rule 701 promulgated under the Securities Act as transactions pursuant to compensatory benefit plans. The shares of common stock issued upon the exercise of options are deemed to be restricted securities for purposes of the Securities Act.

Item 16. Exhibits and financial statement schedules.

(a) Exhibits

 

 

 

EXHIBIT
NUMBER

 

DESCRIPTION

  1.1*   Form of Underwriting Agreement
  3.1^   Third Amended and Restated Certificate of Incorporation of Registrant, as currently in effect.
  3.2*   Form of Amended and Restated Certificate of Incorporation of Registrant, to be in effect upon completion of this offering.
  3.3^   Amended and Restated By-laws of Registrant, as currently in effect.
  3.4*   Form of Amended and Restated By-laws of Registrant, to be in effect upon the effectiveness of this registration statement.
  4.1*   Specimen Common Stock Certificate.
  4.2^   Amended and Restated Investors’ Rights Agreement among the Registrant and certain of its stockholders, dated November 17, 2017.
  5.1*   Opinion of Goodwin Procter LLP.
10.1^#   2015 Stock Option and Grant Plan, as amended and forms of award agreements thereunder.
10.2*#   2019 Stock Option and Incentive Plan, and forms of award agreements thereunder, to be in effect upon completion of this offering.
10.3*#   2019 Employee Stock Purchase Plan, to be in effect upon completion of this offering.
10.4*#   Non-Employee Director Compensation Policy, to be in effect upon completion of this offering.
10.5*#   Executive Incentive Bonus Plan, to be in effect upon completion of this offering.
10.6*#   Form of Indemnification Agreement between the Registrant and each of its directors and executive officers, to be in effect upon completion of this offering.

 

 

 

 

II-iii


 

 

EXHIBIT
NUMBER

 

DESCRIPTION

 

10.7*#

 

 

Form of Executive Employment Agreement

10.8^   Lease Agreement between the Registrant and ARE Tech Square, LLC dated January 15, 2016.
10.9†   Lease Agreement between the Registrant and King 4 Hartwell Place, LLC, dated March 5, 2019.
10.10^†   Patent and Technology License Agreement between the Registrant and The Board of Regents of the University of Texas System, on behalf of The M.D. Anderson Cancer Center, dated November 10, 2015, as amended by the First Amendment on April 26, 2018.
10.11^†   Sponsored Research Agreement between the Registrant and The Board of Regents of the University of Texas System, on behalf of The M.D. Anderson Cancer Center, dated February 1, 2016, as amended by the First Amendment on February 14, 2017 and the Second Amendment on April 26, 2018.
10.12^†   License Agreement between the Registrant and Kayla Therapeutics, S.A.S., dated November 6, 2018.
10.13†   Collaboration and License Agreement between the Registrant and Jazz Pharmaceuticals Ireland Limited, dated January 2, 2019.
10.14*#   Non-Employee Director Compensation Policy
10.15*#   Executive Incentive Bonus Plan
21.1*   List of Subsidiaries of Registrant.
23.1*   Consent of Ernst and Young LLP, independent registered public accounting firm.
23.2*   Consent of Goodwin Procter LLP (included in Exhibit 5.1).
24.1*   Power of Attorney (included on signature page).

 

 

*   To be filed by amendment.
^   Previously filed.
  Application has been made to the Securities and Exchange Commission for confidential treatment of certain provisions. Omitted material for which confidential treatment has been requested has been filed separately with the Securities and Exchange Commission.
#   Indicates a management contract or any compensatory plan, contract or arrangement.

(b) Financial Statements Schedules:

Schedules have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or notes thereto.

Item 17. Undertakings.

Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, or the Act, may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

The undersigned registrant hereby undertakes that:

 

(1)

The Registrant will provide to the underwriter at the closing as specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.

 

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(2)

For purposes of determining any liability under the Securities Act of 1933, as amended, the information omitted from a form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933, as amended, shall be deemed to be part of this registration statement as of the time it was declared effective.

 

(3)

For the purpose of determining any liability under the Securities Act of 1933, as amended, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

II-v


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cambridge, Massachusetts, on the                day of                , 2019.

 

CODIAK BIOSCIENCES, INC.
By:  

 

Name:   Douglas E. Williams, Ph.D.
Title:   Chief Executive Officer

 

II-vi


POWER OF ATTORNEY AND SIGNATURES

Each individual whose signature appears below hereby constitutes and appoints Douglas E. Williams, Ph.D., Linda C. Bain and Andrea DiFabio, as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement (or any Registration Statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement and Power of Attorney has been signed by the following person in the capacities and on the date indicated.

 

 

 

NAME

  

TITLE

 

DATE

 

Douglas E. Williams, Ph.D.

   Chief Executive Officer, Director
(Principal Executive Officer)
                      , 2019

 

Linda C. Bain

   Chief Financial Officer (Principal
Financial and Accounting Officer)
                      , 2019

 

Steven Gillis, Ph.D.

   Chairman of the Board                       , 2019

 

Karen Bernstein, Ph.D.

   Director                       ,2019

 

Charles L. Cooney, Ph.D.

   Director                       , 2019

 

Avak Kahvejian, Ph.D.

   Director                       , 2019

 

Eric S. Lander, Ph.D.

   Director                       , 2019

 

Briggs W. Morrison, M.D.

   Director                       , 2019

 

Jonathan Poole

   Director                       , 2019

 

 

 

II-vii

EX-10.9

[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Exhibit 10.9

4 HARTWELL PLACE

LEXINGTON, MASSACHUSETTS 02421

LEASE SUMMARY SHEET

 

Execution Date:    March 5, 2019
Tenant:    Codiak Biosciences, Inc., a Delaware corporation
Tenant’s Mailing Address   
Prior to Occupancy:    500 Technology Square, 9th floor
   Cambridge, MA 02139
Landlord:    King 4 Hartwell Place, LLC, a Delaware limited liability company
Campus:    The following buildings and the land thereon, located in Lexington, Massachusetts, as shown on Exhibit A attached hereto:
  

•   4 Hartwell Place

  

•   101 Hartwell Avenue

  

•   113 Hartwell Avenue

  

•   115 Hartwell Avenue

   The aggregate total rentable area of the buildings located on the Campus is 276,469 rentable square feet.
Building:    4 Hartwell Place, Lexington, Massachusetts 02421. The Building consists of approximately 40,123 rentable square feet. The land on which the Building is located (the “Land”) is more particularly described in Exhibit 2 attached hereto and made a part hereof (such land, together with the Building, are hereinafter collectively referred to as the “Property”).
Premises:    An area in the Building, consisting of approximately 18,707 rentable square feet of space, as more particularly shown as hatched, highlighted or outlined on the plan attached hereto as Exhibit 1 and made a part hereof (the “Lease Plan”).
Term Commencement   
Date:    The earlier of:
  

(i) the date Tenant takes possession of the Premises, or any portion thereof, to commence the performance of Tenant’s Work, or

  

(ii)  the later of: (x) July 1, 2019, or (y) the date that Landlord delivers the Premises to Tenant in compliance with Section 3.1 of the Lease.

 

-1-


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Rent Commencement   
Date:    The date that is the later of:
  

(i) six (6) months after the Term Commencement Date, or

  

(ii)  the earlier of:

  

(x) the Outside Rent Commencement Date (as hereinafter defined), or

  

(y) the date that Tenant first commences to use the Premises, or any portion thereof, for any Permitted Use.

   Neither the performance of Tenant’s Work (as hereinafter defined) nor the installation of any furniture, fixtures or equipment shall be deemed to be use of the Premises for the Permitted Use for the purposes of determining the Rent Commencement Date.
Outside Rent Commencement   
Date:    The date six (6) months after the Term Commencement Date, except that the Outside Rent Commencement Date shall be extended by the number of days, if any, which Tenant’s Work is actually delayed by reason of any Landlord Delay (as hereinafter defined).
Landlord Delay:    Landlord Delay” shall mean any delay in the performance of Tenant’s Work to the extent actually caused by Landlord in the default of Landlord in its obligations under the Lease. Landlord is not charged with any period of any Landlord Delay prior to the time that Landlord receives written notice from Tenant of such Landlord Delay.
Expiration Date:    Ten (10) years and six (6) months after the Term Commencement Date, provided that, if the Term Commencement Date does not occur on the first day of the calendar month, the Expiration Date shall be the last day of the calendar month that is ten (10) years and six (6) months after the Term Commencement Date occurs.
Extension Term:    Subject to Section 1.2 below, two (2) extension terms of five (5) years each.
Landlord’s Contribution:    An amount not to exceed $1,309,490.00 (“Maximum Amount”), as more particularly described in Exhibit 4 attached hereto.

 

-2-


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Permitted Uses:    Subject to Legal Requirements, (i) laboratory and manufacturing, vivarium and any other ancillary uses related the foregoing, and (ii) the operation and maintenance of an Acid Neutralization Tank, as set forth in Section 1.7 hereof.
Base Rent:   

 

LEASE YEAR

   ANNUAL BASE RENT      MONTHLY PAYMENT  

Lease Year 1

   $ 879,229.00    $ 73,269.08  

Lease Year 2

   $ 905,605.87      $ 75,467.16  

Lease Year 3

   $ 932,774.05      $ 77,731.17  

Lease Year 4

   $ 960,757.27      $ 80,063.11  

Lease Year 5

   $ 989,579.99      $ 82,465.00  

Lease Year 6

   $ 1,019,267.39      $ 84,938.95  

Lease Year 7

   $ 1,049,845.41      $ 87,487.12  

Lease Year 8

   $ 1,081,340.77      $ 90,111.73  

Lease Year 9

   $ 1,113,780.99      $ 92,815.08  

Lease Year 10

   $ 1,147,194.42      $ 95,599.54  

 

*

annualized

For purposes hereof, “Lease Year 1” shall commence on the Rent Commencement Date and shall expire on the day immediately preceding the first anniversary of the Rent Commencement Date, except that if the Rent Commencement Date does not occur on the first day of the calendar month, the last day of Lease Year 1 shall be the last day of the calendar month immediately preceding the first anniversary of the Rent Commencement Date. Thereafter, every consecutive twelve (12) months after Lease Year 1 shall be a Lease Year.

 

Operating Costs and Taxes:    See Sections 5.2 and 5.3.

Tenant’s Share:

   A fraction, the numerator of which is the number of rentable square feet in the Premises and the denominator of which is the number of rentable square feet in the Building. As of the Execution Date, Tenant’s Share is 46.62%.
Security Deposit/Letter of Credit:    $439,614.48, as more particularly described in Section 7 hereof

 

-3-


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

 

EXHIBIT 1    LEASE PLAN
EXHIBIT 1A    RESERVED PARKING SPACES
EXHIBIT 2    LEGAL DESCRIPTION
EXHIBIT 3    EXISTING TENANT’S DECOMMISSIONING OBLIGATIONS
EXHIBIT 4    TENANT’S WORK; LANDLORD’S CONTRIBUTION
EXHIBIT 5    FORM OF LETTER OF CREDIT
EXHIBIT 6    LANDLORD’S SERVICES
EXHIBIT 7    TENANT’S HAZARDOUS MATERIALS
EXHIBIT 8    RULES AND REGULATIONS
EXHIBIT 9    INSURANCE REQUIREMENTS FOR TENANT’S CONTRACTORS
EXHIBIT 10    PTDM
EXHIBIT 11    FORM OF SNDA
EXHIBIT 12    ADDITIONAL PROVISIONS

 

-4-


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

THIS INDENTURE OF LEASE (this “Lease”) is hereby made and entered into on the Execution Date by and between Landlord and Tenant.

Each reference in this Lease to any of the terms and titles contained in any Exhibit attached to this Lease shall be deemed and construed to incorporate the data stated under that term or title in such Exhibit. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them as set forth in the Lease Summary Sheet which is attached hereto and incorporated herein by reference.

1. LEASE GRANT; TERM; APPURTENANT RIGHTS; EXCLUSIONS

1.1 Lease Grant. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises upon and subject to terms and conditions of this Lease, for a term of years commencing on the Term Commencement Date and, unless earlier terminated or extended pursuant to the terms hereof, ending on the Expiration Date (the “Initial Term”; the Initial Term and any duly exercised Extension Terms are hereinafter collectively referred to as the “Term”).

1.2 Extension Terms.

(a) Provided that the following conditions, which may be waived by Landlord in its sole discretion, are satisfied, (i) Tenant has not assigned its interest in this Lease nor sublet more than fifty percent (50%) of the Premises to anyone other than to Affiliated Entities (hereinafter defined) and/or a Successor (hereinafter defined); and (ii) no uncured Event of Default exists (1) as of the date of the Extension Notice (hereinafter defined), and (2) at the commencement of the applicable Extension Term (hereinafter defined), Tenant shall have the option to extend the Term for two (2) additional terms of five (5) years each (the “Extension Term”), commencing as of the expiration of the Initial Term, or the prior Extension Term, as the case may be. Tenant must exercise such option to extend, if at all, by giving Landlord written notice (the “Extension Notice”) on or before the date that is no earlier than eighteen (18) months and not later than twelve (12) months prior to the expiration of the then-current term of this Lease, time being of the essence. Upon the timely giving of such notice, the Term shall be deemed extended upon all of the terms and conditions of this Lease, except that Base Rent during each Extension Term shall be calculated in accordance with this Section 1.2, Landlord shall have no obligation to construct or renovate the Premises and Tenant shall have one (1) fewer option to extend the Term. If Tenant fails to give timely notice, as aforesaid, Tenant shall have no further right to extend the Term. Notwithstanding the fact that Tenant’s proper and timely exercise of such option to extend the Term shall be self-executing, the parties shall promptly execute a lease amendment reflecting the applicable Extension Term after Tenant exercises such option. The execution of such lease amendment shall not be deemed to waive any of the conditions to Tenant’s exercise of its rights under this Section 1.2.

(b) The Base Rent during each Extension Term (the “Extension Term Base Rent”) shall be determined in accordance with the process described hereafter. Extension Term Base Rent shall be the fair market rental value of the Premises then demised to Tenant as of the commencement of the applicable Extension Term as determined in accordance with the process described below, for renewals of combination laboratory and office space in the vicinity of equivalent quality, size, utility and location, with the length of the Extension Term, the credit standing of Tenant, any economic concessions (including, without limitation, tenant improvement

 

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allowances and free rent) then being provided by landlords to tenants, and all other relevant factors to be taken into account. Within thirty (30) days after receipt of the Extension Notice, Landlord shall deliver to Tenant written notice of its determination of the Extension Term Base Rent for the applicable Extension Term. Tenant shall, within thirty (30) days after receipt of such notice, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Extension Term Base Rent (“Tenant’s Response Notice”). If Tenant fails timely to deliver Tenant’s Response Notice, Landlord’s determination of the Extension Term Base Rent shall be binding on Tenant.

(c) If and only if Tenant’s Response Notice is timely delivered to Landlord and indicates both that Tenant rejects Landlord’s determination of the Extension Term Base Rent and desires to submit the matter to arbitration, then the Extension Term Base Rent shall be determined in accordance with the procedure set forth in this Section 1.2(c). In such event, within ten (10) days after receipt by Landlord of Tenant’s Response Notice indicating Tenant’s desire to submit the determination of the Extension Term Base Rent to arbitration, Tenant and Landlord shall each notify the other, in writing, of their respective selections of an appraiser (respectively, “Landlord’s Appraiser” and “Tenant’s Appraiser”). Landlord’s Appraiser and Tenant’s Appraiser shall then jointly select a third appraiser (the “Third Appraiser”) within ten (10) days of their appointment. All of the appraisers selected shall be individuals with at least ten (10) consecutive years’ commercial appraisal experience for office and laboratory space in the area in which the Premises are located, shall be members of the Appraisal Institute (M.A.I.), and, in the case of the Third Appraiser, shall not have acted in any capacity for either Landlord or Tenant within five (5) years of his or her selection. The three appraisers shall determine the Extension Term Base Rent in accordance with the requirements and criteria set forth in Section 1.2(b) above, employing the method commonly known as Baseball Arbitration, whereby Landlord’s Appraiser and Tenant’s Appraiser each sets forth its determination of the Extension Term Base Rent as defined above, and the Third Appraiser must select one or the other (it being understood that the Third Appraiser shall be expressly prohibited from selecting a compromise figure). Landlord’s Appraiser and Tenant’s Appraiser shall deliver their determinations of the Extension Term Base Rent to the Third Appraiser within five (5) days of the appointment of the Third Appraiser and the Third Appraiser shall render his or her decision within ten (10) days after receipt of both of the other two determinations of the Extension Term Base Rent. The Third Appraiser’s decision shall be binding on both Landlord and Tenant. Each party shall bear the cost of its own appraiser and the cost of the Third Appraiser shall be paid by the party whose determination is not selected.

1.3 Appurtenant Rights.

(a) Common Areas. Subject to the terms of this Lease and the Rules and Regulations (hereinafter defined), Tenant shall have, as appurtenant to the Premises, rights to use in common with others entitled thereto, the areas in the Building, on the Land and elsewhere on the Campus designated from time to time for the common use of Tenant and other tenants of the Property and/or Campus (such areas are hereinafter referred to as the “Common Areas”). The Common Areas include: (i) the common lobbies (if any), loading docks, hallways and stairways of the Building serving the Premises, (ii) common walkways and driveways necessary for access to the Building, (iii) the common toilets and other common facilities, if any; and (iv) other areas designated by Landlord from time to time for the common use of Tenant and other tenants of the Building; and no other appurtenant rights or easements.

 

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(b) Parking. During the Term, Landlord shall, subject to the terms hereof, make available up to fifty-six (56) parking spaces for Tenant’s use in the parking areas serving the Building, free of charge (except that the costs of maintenance and repair of the parking areas serving the Building shall, subject to Section 5.2, be included in Operating Costs (and Taxes imposed upon the parking areas which are located on the Land which are available for Tenant’s use shall, subject to Section 5.3 hereof, be included in Taxes). The number of parking spaces in the parking areas reserved for Tenant, as modified pursuant to this Lease or as otherwise permitted by Landlord, are hereinafter referred to as the “Parking Spaces.” Four (4) of the Parking Spaces (“Reserved Parking Spaces”) shall be reserved for Tenant’s exclusive use. The Reserved Parking Spaces shall be located as shown on Exhibit 1A, subject to Landlord’s right to relocate the Reserved Parking Spaces, from time to time, to another location in the parking areas on the Land. The Reserved Parking Spaces shall be identified by markings and/or signage; provided however, that Landlord shall have no obligation to police the use of the Reserved Parking Spaces. Tenant shall have no right to hypothecate or encumber the Parking Spaces, and shall not sublet, assign, or otherwise transfer the Parking Spaces other than to employees of Tenant occupying the Premises or to a Successor (hereinafter defined), an Affiliated Entity (hereinafter defined) or a transferee pursuant to an approved Transfer under Section 13 of this Lease. Subject to Landlord’s right to reserve parking for other tenants of the Building and except for the Reserved Parking Spaces, said Parking Spaces will be on an unassigned, non-reserved basis. Tenant’s use of the Parking Spaces shall be subject to such reasonable rules and regulations as may be in effect for the use of the parking areas from time to time. Reserved and handicap parking spaces must be honored. Notwithstanding anything to the contrary contained herein, Landlord shall have the right, upon at least three (3) months’ written notice to Tenant, to temporarily (i.e., for a period of time not to exceed six (6) months) and not more than one time every twelve month period, other than for reasons of Force Majeure) relocate all or any portion of the Parking Spaces in to other parking areas owned, controlled or leased by Landlord in the vicinity of the Property (Landlord and Tenant hereby agreeing that the parking areas located at 101 Hartwell Avenue, 113 Hartwell Avenue and/or 91 Hartwell Avenue are acceptable). Any such relocation of the Parking Spaces shall be done on an equitable basis as between Tenant and those other tenants with rights to park in the parking areas.

(c) Pavilion. Tenant acknowledges that Landlord may construct a common building (the “Pavilion”) located on the Campus for the common use of the tenants of the Campus. Landlord may cause a food service facility (“Cafeteria”) to be operated in the Pavilion. So long as the Cafeteria is in operation, Tenant, in common with other tenants of the Campus, shall have the right, during the Term of this Lease, to use the Cafeteria.

1.4 Tenant’s Access.

(a) From and after the Term Commencement Date and until the end of the Term, Tenant shall have access to the Premises twenty-four (24) hours a day, seven (7) days a week, subject to Legal Requirements, the Rules and Regulations, the terms of this Lease, Force Majeure (hereinafter defined) and matters of record.

(b) Tenant and its employees shall have access to the Premises after normal business hours by means of the existing card reader access system. Tenant shall have the right, subject to Tenant’s obtaining Landlord’s prior written approval of Tenant’s plans and specifications therefor (which approval shall not be unreasonably withheld, delayed or

 

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conditioned), to replace and/or modify the existing card reader access system within the Premises (the existing card reader access system, as it may be modified or replaced is referred to herein as “Tenant’s Security System”). Any modification or replacement of Tenant’s Security System shall be performed in accordance with this Lease, including, without limitation, Section 11 hereof. Tenant shall provide Landlord and the cleaning personnel with access cards permitting normal entry to Tenant’s Premises. In addition to the foregoing, such security system shall be designed with a master key override using the Building master key, so that Landlord shall have access to the Premises in an emergency, but Landlord shall only use such master key access in an emergency. Additionally, Tenant shall ensure that such system shall comply with all applicable laws, rules and regulations, including all fire safety laws, and in no event shall Landlord be liable for, and Tenant shall defend, indemnify, and hold harmless Landlord and its representatives and agents from and against, any claims, demands, liabilities, causes of action, suits, judgments, damages and expenses arising from such system or the malfunctioning thereof in accordance with Tenant’s indemnity obligations set forth in Section 14.2.

1.5 Notice of Lease. Neither party shall record this Lease, but each of the parties hereto agrees to join in the execution, in recordable form, of a statutory notice of lease and/or written declaration in which shall be stated the Term Commencement Date, the Rent Commencement Date, the number and length of the Extension Term and the Expiration Date, which notice of lease may be recorded by Tenant with the Middlesex South Registry of Deeds and/or filed with the Middlesex South Registry District of the Land Court, as appropriate (collectively, the “Registry”) at Tenant’s sole cost and expense. If a notice of lease was previously recorded with the Registry, upon the expiration or earlier termination of this Lease, Landlord shall deliver to Tenant a notice of termination of lease and Tenant shall promptly execute and deliver the same to Landlord for Landlord’s execution and recordation with the Registry, which obligation shall survive the expiration or earlier termination of the Lease.

1.6 Exclusions. The following are expressly excluded from the Premises and reserved to Landlord: all the perimeter walls of the Premises (except the inner surfaces thereof), the Common Areas, and any space in or adjacent to the Premises used for shafts, stacks, pipes, conduits, wires and appurtenant fixtures, fan rooms, ducts, electric or other utilities, sinks or other Building facilities, and the use of all of the foregoing, except as expressly permitted pursuant to Section 1.3(a) above.

1.7 Acid Neutralization Tank.

(a) There currently exists an acid neutralization tank (the “Acid Neutralization Tank”) that is located in the Premises. Subject to Sections 3.2 and 3.3 hereof, Tenant acknowledges and agrees that Tenant is leasing the Acid Neutralization Tank in its “AS IS,” “WHERE IS” condition and with all faults on the Execution Date, without representations or warranties, express or implied, in fact or by law, of any kind, or recourse to Landlord. Tenant shall have the exclusive right, throughout the Term of the Lease, as the same may be extended, to use the Acid Neutralization Tank in accordance with Legal Requirements. Tenant shall obtain, and maintain all governmental permits and approvals necessary for the operation and maintenance of the Acid Neutralization Tank. Tenant shall be responsible for all costs, charges and expenses incurred from time to time in connection with or arising out of the operation, use, maintenance, repair or refurbishment of the Acid Neutralization Tank, including all clean-up costs relating to the Acid Neutralization Tank (collectively, “Tank Costs”), except, subject to Section 14.5, to the extent such costs are caused by the negligence or willful misconduct of any of the Landlord Parties (as hereinafter defined).

 

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(b) Tenant shall be responsible for the operation, cleanliness, and maintenance of the Acid Neutralization Tank and the appurtenances, all of which shall remain the personal property of Landlord, and shall be left in place by Tenant at the expiration or earlier termination of the Lease. Such maintenance and operation shall be performed in a manner to avoid any unreasonable interference with any other tenants or Landlord. Subject to Sections 3.2 and 3.3 hereof, Tenant shall take the Acid Neutralization Tank “as is” in the condition in which the Acid Neutralization Tank is in as of the Term Commencement Date. Without limiting the foregoing, Landlord makes no warranties or representations to Tenant as to the suitability of the Acid Neutralization Tank. If and only so long as Tenant shall use the Acid Neutralization Tank, Tenant agrees to maintain the Acid Neutralization Tank in the condition in which the Acid Neutralization Tank is in as of the Term Commencement Date, reasonable wear and tear (provided however, that Tenant shall immediately make any repairs necessary to eliminate any risk to the safety and proper operation of the Acid Neutralization Tank caused by wear and tear), and casualty excepted. Landlord shall have no obligation to provide any services, including, without limitation, electric current, to the Acid Neutralization Tank.

2. RIGHTS RESERVED TO LANDLORD

2.1 Additions and Alterations. Landlord reserves the right, at any time and from time to time, to make such changes, alterations, additions, improvements, repairs or replacements in or to the Property (including the Premises but, with respect to the Premises, only for purposes of repairs, maintenance, replacements and the exercise of any other rights expressly reserved to Landlord herein) and the fixtures and equipment therein, as well as in or to the street entrances and/or the Common Areas, as it may deem necessary or desirable, provided, however, that there be no material obstruction of permanent access to, or material interference with the use and enjoyment of, the Premises by Tenant. Subject to the foregoing, Landlord expressly reserves the right to temporarily close all, or any portion, of the Common Areas for the purpose of making repairs or changes thereto, provided that Landlord shall use commercially reasonable efforts to complete the work in a timely manner, subject to causes beyond Landlord’s reasonable control.

2.2 Additions to the Property.

(a) Landlord may at any time or from time to time (i) construct additional improvements and related site improvements (collectively, “Future Development”) in all or any part of the Property and/or (ii) change the location or arrangement of any improvement outside the Building in or on the Property or all or any part of the Common Areas, or add or deduct any land to or from the Property; provided that there shall be no material increase in Tenant’s obligations or material interference with Tenant’s rights under this Lease in connection with the exercise of the foregoing reserved rights. In case any excavation shall be made for building or improvements or for any other purpose upon the land adjacent to or near the Premises, Tenant will afford without charge to Landlord, or the person or persons, firms or corporations causing or making such excavation, license to enter upon the Premises for the purpose of doing such work as Landlord or such person or persons, firms or corporation shall deem to be necessary to preserve the walls or structures of the Building from injury, and to protect the Building by proper securing of foundations.

 

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(b) Reference is made to following:

(1) Existing REAs: Landlord is presently constructing a common pavilion (“Pavilion”) on land which is subject to an REA dated March 24, 2014 and filed with the Middlesex Registry District of the Land Court (“the “Land Court”) as Document No. 1668032, and (ii) the REA dated November 13, 2015 and filed with the Land Court as Document No. 1715486 affects both the land on which the Pavilion is being constructed, as noted in clause (i) above, as well as land on which Landlord has constructed a parking deck (the second level portion of such parking deck on which Tenant has a right to park and the associated ramps to the same being referred to herein as the “Parking Deck”). Said REAs are referred to herein as the “REAs”. The Pavilion will be used in common by the occupants of 4 Hartwell Avenue, 101 Hartwell Avenue, the 113 Hartwell Avenue (“113 Building”), and 115 Hartwell Avenue (“115 Building”) and the Parking Deck will be used in common by occupants of the 113 Building and the 115 Building only. The Building, 101 Hartwell Avenue, the 113 Building, and the 115 Building are referred to collectively as the “Campus Buildings”.

(2) Existing Condominium: Landlord has, by Master Deed (“Master Deed”) dated as of June 15, 2017 as recorded in the Middlesex County South District Registry of Deeds (the “Registry”) at Book 69458, Page 399, and Declaration of Trust (“Declaration of Trust”) dated as of June 15, 2017 and recorded in the Registry at Book 69458, Page 430, subjected the 113 Building, the 115 Building and the land on which they are located to the 113/115 Hartwell Avenue Condominium (“Existing Condominium”)

(3) Landlord and Tenant each hereby acknowledges and agrees that, in connection with any Future Development, Landlord shall have the right to: (i) subject the Land and the improvements located now or in the future located thereon to a commercial condominium regime (“Condominium”) on terms and conditions consistent with first class office and laboratory parks in the Route 128 area, in which the Building shall be a single unit, or (ii) incorporate the Building and some or all of the remainder of the Campus in the Existing Condominium, (iii) upon Landlord’s request in connection with the recording of the Master Deed for the Condominium (or an amendment to the Existing Condominium, as the case may be), Tenant shall execute a reasonable instrument in recordable form making this Lease subject and subordinate to the Master Deed and other documents evidencing the Condominium, or the amended Existing Condominium (collectively, the “Condo Documents”) provided that such Condo Documents continue to provide Tenant with all of the rights and obligations contained in this Lease (e.g. the appurtenant right to use all Common Areas) and the Condo Documents comply with the provisions of this Section 2.2; (iv) Landlord shall have the right to enter into, and subject the Property and this Lease to the terms and conditions of, additional reciprocal easement agreements (each a “New REA”) with any one or more of the neighboring property owners in order to increase the size of the Campus, provided that any such New REA continues to provide Tenant with all of the rights and obligations contained in this Lease as of the Execution Date (e.g. the appurtenant right to use all Common Areas) and any New REA complies with the provisions of this Section 2.2; (iv) Landlord shall submit to Tenant for Tenant’s approval drafts of the Condo Documents and any New REA (and any amendments thereto) prior to their execution; (v) Tenant shall have the right to notify Landlord within twenty (20) days after receipt of the draft Condo Documents and/or New REA (or any amendments thereto) of Tenant’s disapproval thereof, but only to the extent such draft(s) (A) materially adversely affect Tenant’s use of, or access to, the Premises, (B) materially adversely affect the operation of Tenant’s business from the Premises in accordance with the terms of this

 

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Lease, or Tenant’s rights under and pursuant to the terms of this Lease, including without limitation Tenant’s rights with respect to the Common Areas, and/or (C) result in any increase in Tenant’s payment or other obligations under this Lease in more than a de minimis manner; (vi) upon Landlord’s request in connection with the recording of any New REA, Tenant shall execute a commercially reasonable instrument in recordable form making this Lease subject and subordinate to the REA; (vii) Landlord shall have the right to subdivide the Property so long as Tenant continues to have all of the rights and obligations contained in this Lease (e.g. the appurtenant right to use all Common Areas); and (viii) Tenant shall execute such reasonable documents (which may be in recordable form) evidencing the foregoing promptly upon Landlord’s request.

2.3 Name and Address of Building. Landlord reserves the right at any time and from time to time to change the name or address of the Building and/or the Property, provided Landlord gives Tenant at least three (3) months’ prior written notice thereof.

2.4 Landlord’s Access.

(a) Subject to the terms hereof, Tenant shall (a) upon reasonable advance notice (not less than forty-eight (48) hours), which may be by email at kim.barry@codiakbio.com or such other email address or addresses as may be provided in writing by Tenant to Landlord (except that no notice shall be required in emergency situations), permit Landlord and any holder of a Mortgage (hereinafter defined) (each such holder, a “Mortgagee”), and their agents, representatives, employees and contractors, to have reasonable access to the Premises at all reasonable hours for the purposes of inspection, making repairs, replacements or improvements in or to the Premises or the Building or equipment therein (including, without limitation, sanitary, electrical, heating, air conditioning or other systems), complying with all applicable laws, ordinances, rules, regulations, statutes, by-laws, court decisions and orders and requirements of all public authorities (collectively, “Legal Requirements”), or exercising any right reserved to Landlord under this Lease (including without limitation the right to take upon or through, or to keep and store within the Premises all necessary materials, tools and equipment); (b) permit Landlord and its agents and employees, at reasonable times, upon reasonable advance notice, to show the Premises during normal business hours (i.e. Monday – Friday 8 A.M.—6 P.M., Saturday 8 A.M. – 1 P.M., excluding holidays) to any prospective Mortgagee or purchaser of the Building and/or the Property or of the interest of Landlord therein, and, during the last twelve (12) months of the Term or at any time after the occurrence of an Event of Default, prospective tenants; and (c) upon reasonable prior written notice from Landlord, permit Landlord and its agents, at Landlord’s sole cost and expense, to perform environmental audits, environmental site investigations and environmental site assessments (“Site Assessments”) in, on, under and at the Premises and the Land, it being understood that Landlord shall repair any damage arising as a result of the Site Assessments, and such Site Assessments may include both above and below the ground testing and such other tests as may be necessary or appropriate to conduct the Site Assessments. In addition, to the extent that it is necessary to enter the Premises in order to access any area that serves any portion of the Building outside the Premises, then Tenant shall, upon as much advance notice as is practical under the circumstances, and in any event at least twenty-four (24) hours’ prior written notice (except that no notice shall be required in emergency situations), permit contractors engaged by other occupants of the Building to pass through the Premises in order to access such areas but only if accompanied by a representative of Landlord. Notwithstanding anything to the contrary contained herein, Tenant shall be entitled to have a representative present for any access by Landlord or any Landlord Parties in exercising its rights under this Section 2.4.

 

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(b) Secure Areas within the Premises. Notwithstanding the foregoing, Tenant, at its own expense may, as hereinafter set forth, designate one or more areas of the Premises to be “Secure Areas” (i.e., portions of the Premises to which Landlord shall not have a right of entry or access for any reason whatsoever (except as otherwise provided below). Tenant may, from time to time, exercise its right to create Secure Areas by delivering to Landlord, for Landlord’s written approval, a plan showing the location of any such Secure Areas. Landlord agrees that it will not unreasonably withhold, condition or delay such consent. If Landlord must gain access to a Secure Areas in a non-emergency situation, Landlord shall contact Tenant, and Landlord and Tenant shall arrange a mutually agreed upon time for Landlord to have such access. Landlord shall be accompanied by an employee of Tenant or a party designated by Tenant (the “Escort”). Tenant shall make an Escort available to Landlord during business hours. At all times, Landlord shall comply with all reasonable security measures of the Tenant pertaining to the Secure Areas. If an emergency representing an imminent risk of injury to persons or material property damage in the Building or the Premises, including, without limitation, a suspected fire or flood, requires Landlord to gain access to the Secure Areas, Landlord may enter the Secure Areas without an Escort. If practicable under the circumstances, Landlord shall immediately notify (which may be oral notification) and request that Tenant make an Escort available to Landlord if time permits, and if Tenant shall not make an Escort available to accompany Landlord, then Tenant hereby authorizes Landlord to enter the Secure Areas forcibly or with a master key, and to enter without an Escort. In any such event, except (subject to Section 14.5 of this Lease) to the extent resulting from Landlord’s negligence or willful misconduct, Landlord shall have no liability whatsoever to Tenant, and Tenant shall pay all reasonable expenses incurred by Landlord in repairing or reconstructing any entrance, corridor, door or other portions of the Premises damaged as a result of a forcible entry by Landlord. Landlord shall have no obligation to provide either janitorial service or cleaning in the Secure Areas unless Tenant shall make arrangements to have an Escort in the Secure Areas at the time such service or cleaning is provided to the remainder of the Premises.

2.5 Pipes, Ducts and Conduits. Tenant shall permit Landlord to erect, use, maintain and relocate pipes, ducts and conduits in and through the Premises, provided the same do not reduce the rentable square footage of the Premises, other than in a de minimis amount, or adversely affect the appearance of the Premises. In exercising its rights under this Section 2.5, Landlord shall make commercially reasonable efforts to locate any pipes, ducts, and conduits behind walls and above ceilings so as to minimize interference with the Premises.

2.6 Minimize Interference. Subject to the provisions of this Lease, Tenant agrees to cooperate with Landlord as reasonably necessary in connection with the exercise of Landlord’s rights under this Section 2. Tenant further agrees that dust, noise, vibration, temporary closures of Common Areas, or other inconvenience or annoyance resulting from the exercise of Landlord’s rights under Section 2.1 and 2.2 shall not be deemed to be a breach of Landlord’s obligations under the Lease, so long as Landlord shall, except in the event of an emergency, use reasonable efforts, consistent with accepted construction practice when applicable, to avoid unreasonably interfering with the conduct of Tenant’s business and Tenant’s use and occupancy of the Premises. Notwithstanding the foregoing, in no event shall any of the space leased by Tenant at the Property under this Lease be deprived of safe and reasonable access or rendered untenantable for the Permitted Uses by reason of Landlord’s exercise of its rights under this Section 2.

 

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3. CONDITION OF PREMISES; DELIVERY CONDITION; TENANT’S WORK.

3.1 Condition of Premises. Subject to the provisions of this Section 3.1, Tenant acknowledges and agrees that Tenant is leasing the Premises in their “AS IS,” “WHERE IS” condition and with all faults on the Execution Date, without representations or warranties, express or implied, in fact or by law, of any kind, and without recourse to Landlord, except that (i) the Premises shall be delivered to Tenant in the Delivery Condition, as hereinafter defined, and (ii) Landlord shall deliver to Tenant the Decommissioning Documentation (as hereinafter defined) from the Existing Tenant in accordance with Section 3.3 below.

3.2 Delivery Condition. Landlord shall deliver the Premises to Tenant on the Term Commencement Date in good operating condition and repair, free and clear of any tenants or occupants, personal property and clean of debris, and satisfying the Delivery Condition (as hereinafter defined). The “Delivery Condition” shall mean: (a) the roof, foundation, footings, slab, structural walls, exterior windows and skylights (including seals), plumbing, fire sprinkler/life safety system, lighting, heating, ventilation and air conditioning systems, and electrical systems serving the Premises shall be in good operating condition and repair (except to the extent modified or otherwise impaired by any improvements constructed by Tenant); (b) the Acid Neutralization Tank shall be delivered to Tenant in good operating condition, and (c) the Premises shall comply with all laws, codes and regulations (collectively, “Laws”). Landlord shall promptly correct any non-compliance with the foregoing Delivery Condition at its sole cost and expense provided that Tenant notify Landlord of such non-compliance not later than one hundred twenty (120) days from and after the Term Commencement Date. Nothing in this Section 3.2, however, shall relieve Landlord of its maintenance and repair obligations as expressly set forth in the Lease or of Landlord’s obligations with respect to Legal Requirements, as set forth in Section 19.2 hereof.

3.3 Existing Tenant’s Obligations with respect to Decommissioning the Premises. The parties hereby acknowledge that: (i) the Premises are, as of the Execution Date of this Lease, leased by Landlord to another tenant (“Existing Tenant”), and (ii) the Existing Tenant is required to clean and decommission the Premises (including, without limitation, the Acid Neutralization Tank) in compliance with the provisions of its lease as set forth on Exhibit 3 attached hereto. Promptly after Landlord’s receipt of a Surrender Report from the Existing Tenant which is approved by Landlord, and receipt of the satisfactory certification from the industrial hygienist as required by Exhibit 3 from the Existing Tenant, Landlord shall forward the Surrender Report and certification from the industrial hygienist to Tenant. Such Surrender Report and certification from the industrial hygienist are referred to herein as the “Decommissioning Documentation”.

3.4 Tenants Work. Tenant, at Tenant’s sole cost and expense, but subject to Tenant’s right to receive Landlord’s Contribution (as defined in Exhibit 4 attached hereto), shall perform the leasehold improvements to prepare the Premises for Tenant’s occupancy (“Tenants Work”), as more particularly described in Exhibit 4 attached hereto. Tenant’s Work shall be performed in accordance with the provisions of Section 11 and Exhibit 4 of this Lease.

 

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3.5 Tenant’s Remedies in the Event of a Delay in the Term Commencement Date. The provisions of this Section 3.5 set forth Tenant’s sole remedies, both in law and in equity in the event of any delay in the Term Commencement Date:

(a) Hold Over by the Existing Tenant. If the Existing Tenant holds over in the Premises beyond the expiration of the term of its lease with Landlord (“Existing Tenant’s Lease”), then: (i) Landlord shall use commercially reasonable efforts (including commencement of a summary process action) to recover the Premises from the Existing Tenant as soon as possible, (ii) Landlord shall use commercially reasonable efforts to recover any Hold Over Premium, as hereinafter defined, payable by the Existing Tenant to Landlord, and (iii) Landlord shall pay to Tenant the net (i.e. net of reasonable attorneys fees and court costs) amount of any Hold Over Premium actually received by Landlord from the Existing Tenant pursuant to the Existing Tenant’s Lease with respect to its use and occupation of the Premises after the expiration of the term of the Existing Tenant’s Lease. The “Hold Over Premium” shall be defined as the amount which the Existing Tenant is required to pay to Landlord on account of its occupancy of the Premises after the expiration of the term of the Existing Tenant’s Lease in excess of the amount which the Existing Tenant would have been required to pay to Landlord on account of such hold over period had the term of the Existing Tenant’s Lease been extended through the hold over period on the same terms as were in effect immediately prior to the expiration of the Existing Tenant’s Lease.

(b) Tenant’s Termination Right. Notwithstanding the foregoing, if the Term Commencement Date shall not have occurred on or before the Outside Date, as hereinafter defined, then Tenant shall have the right, exercisable by a written thirty (30) day termination notice given on or after the Outside Date, to terminate the Lease. The “Outside Date” shall be defined as September 1, 2019, except that, if Landlord files a summary process action against the Existing Tenant to recover possession of the Premises, and if the judgment in such action is appealed to the Superior Court, then the Outside Date shall be December 1, 2019. If the Term Commencement Date occurs on or before the thirtieth (30th) day after Landlord receives such termination notice, Tenant’s termination notice shall be deemed to be void and of no force or effect. If the Term Commencement Date does not occur on or before such thirtieth (30th) day, then: (i) Landlord shall promptly return the Security Deposit/Letter of Credit which it has received from Tenant, and (ii) this Lease shall terminate and shall be of no further force or effect, except that Tenant shall continue to be entitled to receive the net amount of any Hold Over Premium actually received by Landlord from the Existing Tenant.

4. USE OF PREMISES

4.1 Permitted Uses. During the Term, Tenant shall use the Premises only for the Permitted Uses and for no other purposes. Service and utility areas (whether or not a part of the Premises) shall be used only for the particular purpose for which they are designed. Tenant shall keep the Premises equipped with appropriate safety appliances to the extent required by applicable laws or insurance requirements. Landlord shall cooperate with Tenant, in such manner as Tenant may reasonably request, in assisting Tenant to obtain any governmental permits or approvals necessary to enable Tenant to use the Premises for any of the Permitted Uses, provided that Landlord shall not be obligated to incur any out-of-pocket costs or expenses or incur any liability in connection with any such request.

 

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4.2 Prohibited Uses.

(a) Notwithstanding any other provision of this Lease, Tenant shall not use the Premises or the Building, or any part thereof, or suffer or permit the use or occupancy of the Premises or the Building or any part thereof by any of the Tenant Parties (i) in a manner which would violate any of the covenants, agreements, terms, provisions and conditions of this Lease or otherwise applicable to or binding upon the Premises; (ii) for any unlawful purposes or in any unlawful manner; (iii) which, in the reasonable judgment of Landlord (taking into account the use of the Building as a combination laboratory, research and development and office building and the Permitted Uses) shall (a) impair, interfere with or otherwise diminish the quality of any of the Building services or the proper and economic heating, cleaning, ventilating, air conditioning or other servicing of the Building or Premises, or the use or occupancy of any of the Common Areas; (b) occasion impairment, interference or injury in any material respect (and Tenant shall not install or use any electrical or other equipment of any kind, which, in the reasonable judgment of Landlord, will cause any such impairment, interference, or injury), or cause any injury or damage to any occupants of the Premises or other tenants or occupants of the Building or their property; or (c) cause harmful air emissions, laboratory odors or noises or any unusual or other objectionable odors, noises or emissions to emanate from the Premises; (iv) in a manner which is inconsistent with the operation and/or maintenance of the Building as a first-class combination office, research, development and laboratory facility; or (v) in a manner which shall increase such insurance rates on the Building or on property located therein over that applicable when Tenant first took occupancy of the Premises hereunder, unless Tenant otherwise agrees in writing to be responsible for the increased cost of such insurance rates. Notwithstanding the foregoing, Landlord agrees that Tenant’s use of the Premises for the Permitted Use (as opposed to the particular manner of Tenant’s use of the Premises) shall not, in and of itself, be deemed to breach the provisions of this Section 4.2.

(b) With respect to the use and occupancy of the Premises and the Common Areas, Tenant will not: (i) place or maintain any signage (except as set forth in Section 12.2 below), trash, refuse or other articles in any vestibule or entry of the Premises, on the footwalks or corridors adjacent thereto or elsewhere on the exterior of the Premises, nor obstruct any driveway, corridor, footwalk, parking area, mall or any other Common Areas; (ii) permit undue accumulations of or burn garbage, trash, rubbish or other refuse within or without the Premises; (iii) permit the parking of vehicles so as to interfere with the use of any driveway, corridor, footwalk, parking area, or other Common Areas; (iv) receive or ship articles of any kind outside of those areas reasonably designated by Landlord; (v) conduct or permit to be conducted any auction, going out of business sale, bankruptcy sale (unless directed by court order), or other similar type sale in or connected with the Premises; (vi) use the name of Landlord, or any of Landlord’s affiliates in any publicity, promotion, trailer, press release, advertising, printed, or display materials without Landlord’s prior written consent; or (vii) except in connection with Alterations (hereinafter defined) approved by Landlord, cause or permit any hole to be drilled or made in any part of the Building.

4.3 Chemical Safety Program. Tenant shall establish and maintain a chemical safety program administered by a licensed, qualified individual in accordance with the requirements of the Massachusetts Water Resources Authority (“MWRA”) and any other applicable governmental authority. Tenant shall be solely responsible for all costs incurred in connection with such chemical safety program, and Tenant shall provide Landlord with such documentation as Landlord may reasonably require evidencing Tenant’s compliance with the requirements of (a) the MWRA and any other applicable governmental authority with respect to such chemical safety program and (b) this Section 4.3. Tenant shall obtain and maintain during the Term (i) any permit required by

 

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the MWRA (“MWRA Permit”) and (ii) a wastewater treatment operator license from the Commonwealth of Massachusetts with respect to Tenant’s use of the Acid Neutralization Tank. Tenant shall not introduce anything into the Acid Neutralization Tank serving the Premises, if any (x) in violation of the terms of the MWRA Permit, (y) in violation of Legal Requirements or (z) that would interfere with the proper functioning of any such Acid Neutralization Tank.

4.4 Parking and Traffic Demand Management Plan. Tenant acknowledges that the Property is subject to a traffic mitigation and/or management plan, a copy of which is attached hereto as Exhibit 10 (the “PTDM”). Tenant agrees not to violate the terms of the PTDM applicable to tenants of the Building. Tenant shall, at Tenant’s sole expense, for so long as the PTDM remains applicable to the Property, (a) participate in the Hartwell Avenue Transportation Management Association, (b) to the extent required by the PTDM, allow employees at the Premises to set-aside pre-tax funds as allowable under the Commuter Choice provision of the Federal tax code, and (c) reasonably cooperate with Landlord in (i) connection with Landlord’s reporting obligations under the PTDM and any amendments thereto, and (ii) encouraging employees to avoid vehicle trips at peak commuting hours and to seek alternate modes of transportation. The costs incurred by Landlord in connection with compliance with the PTDM shall be included in Operating Costs.

4.5 Transportation of Animals. No animals, animal waste, food or supplies relating to the animals maintained from time to time in the animal storage areas of the Premises shall be transported within the Building except as provided in this Section 4.5. All deliveries of animals or animal food or supplies to Tenant at the Building shall be made prior to 11:00 a.m. No transportation of animals, animal waste, food or supplies within the Building shall occur between the hours of 11:00 a.m. and 1:00 p.m. At all times that animals are transported within the Common Areas, they shall be transported in an appropriate cage or other container. At no time shall any animals, animal waste, food or supplies relating to the animals be brought into, transported through, or delivered to the lobby of the Building or be transported within the Building in elevators other than the freight elevator.

4.6 Vivarium. Tenant shall be responsible, at its sole cost and expense, for the operations of its vivarium in accordance with all Legal Requirements and with best industry practices. Without limiting the general application of the foregoing, Tenant shall separately dispose of all waste products from the operation of Tenant’s vivarium, including, without limitation, dead animals, strictly in accordance with Legal Requirements. Landlord shall have the right, from time to time by written notice to Tenant, to promulgate reasonable rules and regulations with respect to the operation of Tenant’s vivarium so as to minimize any adverse effect that such operation may have on other occupants of the Building, including, without limitation, regulations as to noise mitigation.

5. RENT; ADDITIONAL RENT

5.1 Base Rent. Unless otherwise expressly provided herein, the payment of Base Rent, additional rent (“Additional Rent”) and other charges reserved and covenanted to be paid under this Lease with respect to the Premises (collectively, “Rent”) shall commence on the Term Commencement Date, and shall be prorated for any partial months. Commencing as of the Rent Commencement Date, and continuing thereafter throughout the remainder of the Term, Tenant shall pay to Landlord, Base Rent in equal monthly installments, in advance and without demand

 

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on the first day of each month for and with respect to such month, except that, if the Rent Commencement Date is any day other than the first day of a calendar month, Base Rent due for the period between the Rent Commencement Date and the last day of the calendar month in which the Rent Commencement Date occurs shall be due on the Rent Commencement Date. Rent shall be payable to Landlord or, if Landlord shall so direct in writing, to Landlord’s agent or nominee, in lawful money of the United States which shall be legal tender for payment of all debts and dues, public and private, at the time of payment.

5.2 Operating Costs.

(a) “Operating Costs” shall mean all costs incurred and expenditures of whatever nature made by Landlord in the operation, management, repair, replacement, maintenance and insurance (including, without limitation, environmental liability insurance and property insurance on Landlord-supplied leasehold improvements for tenants, but not property insurance on tenants’ equipment) of the Property or allocated to the Property, including without limitation all costs of labor (wages, salaries, fringe benefits, etc.) up to and including the Director of Property Management, however denominated, any costs for utilities supplied to exterior areas and the Common Areas, and any costs for repair and replacements, cleaning and maintenance of the exterior areas and the Common Areas, including, without limitation, the parking areas serving the Building, related equipment, facilities and appurtenances and HVAC equipment, security services, a management fee paid to Landlord’s property manager in the amount not to exceed four percent (4%) of gross revenues of the Building, the costs (“Management Office Costs”), including, without limitation, a commercially reasonable rental factor, of Landlord’s management office for the Property, which management office may be located outside the Property and which may serve other properties in addition to the Property (in which event such costs shall be equitably allocated among the properties served by such office), and the cost of operating any amenities in the Property available to all tenants of the Property and any subsidy provided by Landlord for or with respect to any such amenity, and the Annual Charge-Off (as hereinafter defined) with respect to a Permitted Capital Expenditure (as hereinafter defined). Operating Costs shall include costs (“Common Campus Costs”) incurred by Landlord in the operation, management, repair, replacement, maintenance and insurance of the Common Areas of the Campus which are available for Tenant’s use, including, without limitation, the parking areas available to Tenant for Tenant’s use and the Pavilion. So long as the Cafeteria is in operation, the Common Campus Costs shall include the costs of operating and maintaining the Cafeteria to the extent such costs exceed the income of the Cafeteria. Landlord shall proportionately, unless Landlord has reasonable basis to do so otherwise, allocate the Common Campus Costs among the buildings comprising the Campus. Operating Costs shall not include Excluded Costs (hereinafter defined).

(b) Capital Expenditures. Permitted Capital Expenditures (as hereinafter defined) shall only be included in Operating Costs for each fiscal year during the Term to the extent of the Annual Charge-Off, as hereinafter defined, for such fiscal year with respect to such capital expenditure. Operating Costs shall not include any Annual Charge-Off with respect to Excluded Costs, as hereinafter defined. For the purposes hereof:

(i) “Annual Charge-Off” means the annual amount of principal and interest payments which would be required to repay a loan in equal monthly installments over the Useful Life, as defined below, of the capital item in question on a direct reduction basis at an annual interest rate equal to the Capital Interest Rate, as defined below, where the initial principal balance is the cost of the capital item in question.

 

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(ii) “Useful Life” shall be reasonably determined by Landlord in accordance with generally accepted accounting principles and commercially reasonable practices in effect at the time of acquisition of the capital item.

(iii) “Capital Interest Rate” shall be defined as an annual rate of either one percentage point over the AA bond rate (Standard & Poor’s corporate composite or, if unavailable, its equivalent) as reported in the financial press at the time the capital expenditure is made or, if the capital item is acquired through third-party financing, then the actual (including fluctuating) rate paid by Landlord in financing the acquisition of such capital item.

(c) “Excluded Costs” shall be defined as (i) any fixed or percentage ground rent payable to any ground lessor, or any mortgage charges (including interest, principal, points and fees and any debt service costs (provided however, that the provisions of this clause (i) shall not be deemed to exclude mortgage charges and debt service costs incurred with respect to Permitted Capital Expenditures, as hereinafter defined, from Operating Costs) (provided however, that the provisions of this clause (i) shall not be deemed to exclude mortgage charges and debt service costs incurred with respect to Permitted Capital Expenditures); (ii) brokerage commissions, marketing costs, concessions and leasehold improvement costs incurred in connection with the leasing of any rentable space at the Building or Campus including, without limitation, finders’ fees, attorneys’ fees and expenses, entertainment costs and travel expenses; (iii) salaries and bonuses and benefits of officers, executives of Landlord and administrative employees above the grade of Director of Property Management; (iv) the cost of work done by Landlord for a particular tenant or any special work or service performed for any tenant (including Tenant) billable to such tenant or any costs in connection with services or benefits that are provided to or for the particular benefit of other tenants but not offered to Tenant; (v) capital expenditures, except to the extent such capital expenditure is (A) required by any Legal Requirements enacted after the Execution Date, or (B) reasonably projected to reduce Operating Costs (collectively, “Permitted Capital Expenditures”); (vi) the costs of Landlord’s Work and any contributions made by Landlord to any tenant of the Property in connection with the build-out of its premises; (vii) franchise or income taxes imposed on Landlord; (viii) costs paid directly by individual tenants to suppliers, including tenant electricity, telephone and other utility costs; (ix) increases in premiums for insurance when such increase is caused by the use of the Building by Landlord or any other tenant of the Building; (x) depreciation of the Building or Campus or any part thereof (provided however, that the provisions of this clause (x) shall not be deemed to exclude depreciation incurred with respect to Permitted Capital Expenditures from Operating Costs; (xi) costs relating to maintaining Landlord’s existence as a corporation, partnership or other entity; (xii) advertising and other fees and costs incurred in procuring tenants; (xiii) the cost of any items for which Landlord is reimbursed by insurance, condemnation awards, refund, rebate or otherwise, and any expenses for repairs or maintenance to the extent covered by warranties, guaranties and service contracts; (xiv) attorneys’ fees incurred in connection with lease negotiations, disputes with individual tenants and/or for the existence, maintenance or non-Building or Campus related operations of the legal entity or entities of which Landlord is comprised or the development of additional space at the Building or Campus; (xv) the cost of any items for which Landlord may be reimbursed by condemnation awards, refund, rebate or otherwise, and any expenses for repairs or maintenance to the extent covered by warranties, guaranties and service contracts; (xvi) Taxes; (xvii) the cost of any repairs or

 

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restoration required because of fire, other casualty or taking, provided, however, that Operating Costs may include costs of repairs which are not covered because the cost of such repairs is within a commercially reasonable deductible carried under Landlord’s casualty insurance policy (Tenant hereby agreeing that, as of the Execution Date, $10,000.00 is a commercially reasonable deductible, (xviii) management and administrative fees, other than as provided in Section 5.2(a) above; (xix) the cost of remediating Hazardous Materials from the Building or the Campus other than Included Hazardous Materials, as hereinafter defined; “Included Hazardous Materials” shall be defined as all Hazardous Materials, other than: (A) any material or substance located in the Building or the Property on the Execution Date which, as of the Execution Date, is not considered under then existing Legal Requirements, to be Hazardous Material, but which is subsequently determined to be a Hazardous Material by reason of a Legal Requirement which first becomes effective after the Execution Date of this Lease, and (B) any material or substance that is introduced to the Building or the Property after the Execution Date which, when introduced to the Building or the Property, is not then (i.e., at the time of introduction to the Building or the Property) considered, as a matter of any Legal Requirement, to be a Hazardous Material, but which is subsequently determined to be a Hazardous Material by reason of Legal Requirements which first becomes effective after the date of introduction of such material or substance to the Building or Property; (xx) any cost covered by a warranty that Landlord is required to obtain in connection with the Building or the Land; (xxi) any amounts paid to a person, firm, corporation or other entity under common ownership and control with Landlord that is in excess of a commercially reasonable amount paid on a market rate basis (other than management fees); (xxii) depreciation of the Building or Campus or any part thereof (provided however, that the provisions of this clause (xxiii) shall not be deemed to exclude depreciation incurred with respect to Permitted Capital Expenditures from Operating Costs; (xxiv) any compensation paid to personnel in retail concessions operated by Landlord and any subsidies or concessions to third parties operating retail concessions at the Building or the Campus, provided that the provisions of this clause (xxv) shall not be deemed to exclude from Operating Costs such compensation, subsidies or concessions incurred by Landlord with respect the Pavilion; (xxvi) replacement or contingency reserves; (xxvii) Landlord’s general overhead, including costs incurred in connection with any disputes between Landlord and its employees, between Landlord and Building management, or between Landlord and other tenants or occupants, provided however, that the provisions of this clause (xxvii) shall not be deemed to exclude an equitable allocation of Management Office Costs, as set forth in Section 5.2(a) above; and (xxviii) the cost of acquiring sculptures, paintings and other objects of art. Notwithstanding anything to the contrary contained herein, the properly passed through cost of any Permitted Capital Expenditures shall be amortized over the Useful Life of such capital item.

(d) Payment of Operating Costs. Commencing as of the Rent Commencement Date and continuing thereafter throughout the remainder of the Term, Tenant shall pay to Landlord, as Additional Rent, Tenant’s Share of Operating Costs. Landlord may make a good faith estimate of Tenant’s Share of Operating Costs for any fiscal year or part thereof during the Term, and Tenant shall pay to Landlord, on the Rent Commencement Date and on the first (1st) day of each calendar month thereafter, an amount equal to Tenant’s Share of Operating Costs for such fiscal year and/or part thereof divided by the number of months therein. Landlord may estimate and re-estimate Tenant’s Share of Operating Costs and deliver a copy of the estimate or re-estimate to Tenant. Thereafter, the monthly installments of Tenant’s Share of Operating Costs shall be appropriately adjusted in accordance with the estimations so that, by the end of the fiscal year in question, Tenant shall have paid all of Tenant’s Share of Operating Costs as estimated by Landlord. Any amounts paid based on such an estimate shall be subject to adjustment as herein provided when actual Operating Costs are available for each fiscal year.

 

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(e) Annual Reconciliation. Landlord shall, within one hundred twenty (120) days after the end of each fiscal year, deliver to Tenant a reasonably detailed statement of the actual amount of Operating Costs for such fiscal year (“Year End Statement”). Failure of Landlord to provide the Year End Statement within the time prescribed shall not relieve Tenant from its obligations hereunder; provided, however, Landlord shall be obligated to bill any Operating Costs on or before the date (“Outside Billing Date”) which is two (2) years after the end of the fiscal year in which the expenditure is made. If the total of such monthly remittances on account of any fiscal year is greater than Tenant’s Share of Operating Costs actually incurred for such fiscal year, then, provided no Event of Default has occurred, Tenant may credit the difference against the next installment of Rent or Additional Rent on account of Operating Costs due hereunder, except that if such difference is determined after the end of the Term, Landlord shall refund such difference to Tenant within thirty (30) days after such determination to the extent that such difference exceeds any amounts then due from Tenant to Landlord. If the total of such remittances is less than Tenant’s Share of Operating Costs actually incurred for such fiscal year, Tenant shall pay the difference to Landlord, as Additional Rent hereunder, within thirty (30) days of Tenant’s receipt of an invoice therefor. Landlord’s estimate of Operating Costs for the next fiscal year shall be based upon the Operating Costs actually incurred for the prior fiscal year as reflected in the Year-End Statement plus a reasonable adjustment based upon estimated increases in Operating Costs. The provisions of this Section 5.2(d) shall survive the expiration or earlier termination of this Lease.

(f) Part Years. If the Rent Commencement Date or the Expiration Date occurs in the middle of a calendar year, Tenant shall be liable for only that portion of the Operating Costs with respect to such calendar year after the Rent Commencement Date on a pro-rated basis.

(g) Gross-Up. If, during any calendar year, less than 95% of the Building is occupied by tenants or if Landlord was not supplying all tenants with the services being supplied to Tenant hereunder, actual Operating Costs incurred shall be reasonably extrapolated by Landlord on an item-by-item basis to the reasonable Operating Costs that would have been incurred if the Building was 95% occupied and such services were being supplied to all tenants, and such extrapolated Operating Costs shall, for all purposes hereof, be deemed to be the Operating Costs for such fiscal year. This “gross up” treatment shall be applied only with respect to variable Operating Costs arising from services provided to Common Areas or to space in the Building being occupied by tenants (which services are not provided to vacant space or may be provided only to some tenants) in order to allocate equitably such variable Operating Costs to the tenants receiving the benefits thereof.

(h) Audit Right. Provided there is no Event of Default nor any event which, with the passage of time and/or the giving of notice would constitute an Event of Default, Tenant may, upon at least thirty (30) days’ prior written notice, inspect or audit Landlord’s records relating to Operating Costs for any periods of time within the previous fiscal year before the audit or inspection. However, no audit or inspection shall extend to periods of time before the Term Commencement Date. If Tenant fails to object to the calculation of Tenant’s Share of Operating Costs on the Year-End Statement within ninety (90) days after such statement has been delivered to Tenant and/or fails to complete any such audit or inspection within one hundred twenty (120)

 

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days after receipt of the Year End Statement, then Tenant shall be deemed to have waived its right to object to the calculation of Tenant’s Share of Operating Costs for the year in question and the calculation thereof as set forth on such statement shall be final. Tenant’s audit or inspection shall be conducted only at Landlord’s offices or the offices of Landlord’s property manager during business hours reasonably designated by Landlord. Tenant shall pay the cost of such audit or inspection. Tenant may not conduct an inspection or have an audit performed more than once during any fiscal year. If, after such inspection or audit has been performed, it is finally determined or mutually agreed that there has been an underpayment by Tenant, then Tenant shall pay to Landlord, as Additional Rent hereunder, any underpayment of any such costs, as the case may be, within thirty (30) days after receipt of an invoice therefor. In the event the Landlord disagrees in good faith with the results of the audit, Landlord shall notify Tenant within fifteen (15) days of the audit, and Landlord and Tenant shall mutually select a neutral third party to evaluate the charges for Tenant’s Share of Operating Costs, and the results of such third party’s evaluation shall bind Landlord and Tenant and shall be final. Costs charged by any such third party shall be shared equally by Landlord and Tenant. If, after such inspection or audit has been performed, it is finally determined or mutually agreed that that there has been overpayment by Tenant, then Landlord shall credit such overpayment against the next installment(s) of Base Rent thereafter payable by Tenant, except that if such overpayment is determined after the termination or expiration of the Term, Landlord shall promptly refund to Tenant the amount of such overpayment less any amounts then due from Tenant to Landlord. Tenant shall maintain the results of any such audit or inspection confidential and shall not be permitted to use any third party to perform such audit or inspection, other than an independent firm of certified public accountants (A) reasonably acceptable to Landlord, (B) which is not compensated on a contingency fee basis or in any other manner which is dependent upon the results of such audit or inspection, and (C) which executes Landlord’s standard confidentiality agreement whereby it shall agree to maintain the results of such audit or inspection confidential. The provisions of this Section 5.2(g) shall survive the expiration or earlier termination of this Lease.

5.3 Taxes.

(a) “Taxes” shall mean the real estate taxes and other taxes, levies and assessments imposed upon the Building and the Land, and upon any personal property of Landlord used in the operation thereof, or on Landlord’s interest therein or such personal property; charges, fees and assessments for transit, housing, police, fire or other services or purported benefits to the Building and the Land (including without limitation any community preservation assessments); service or user payments in lieu of taxes; and any and all other taxes, levies, betterments, assessments and charges arising from the ownership, leasing, operation, use or occupancy of the Building and the Land or based upon rentals derived therefrom, which are or shall be imposed by federal, state, county, municipal or other governmental authorities. Taxes shall include Taxes (“Common Campus Taxes”) incurred by Landlord in connection with the Common Areas of the Campus which are available to Tenant’s use, including, without limitation, the parking areas which are available to Tenant for Tenant’s use and the Pavilion. From and after substantial completion of any occupiable improvements constructed as part of a Future Development, if such improvements are not separately assessed, Landlord shall reasonably allocate Taxes between the Building and such improvements and the land area associated with the same. Taxes shall not include any inheritance, estate, succession, gift, franchise, rental, income or profit tax, capital stock tax, capital levy or excise, or any income taxes arising out of or related to the ownership and operation of the Building and the Land, provided, however, that any of the same and any other tax,

 

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excise, fee, levy, charge or assessment, however described, that may in the future be levied or assessed as a substitute for or an addition to, in whole or in part, any tax, levy or assessment which would otherwise constitute Taxes, whether or not now customary or in the contemplation of the parties on the Execution Date of this Lease, shall constitute Taxes, but only to the extent calculated as if the Building and the Land were the only real estate owned by Landlord. “Taxes” shall also include reasonable expenses (including without limitation legal and consultant fees) of tax abatement or other proceedings contesting assessments or levies.

(b) “Tax Period” shall be any fiscal/tax period in respect of which Taxes are due and payable to the appropriate governmental taxing authority (i.e., as mandated by the governmental taxing authority), any portion of which period occurs during the Term of this Lease.

(c) Payment of Taxes. Commencing as of the Rent Commencement Date and continuing thereafter throughout the remainder of the Term, Tenant shall pay to Landlord, as Additional Rent, Tenant’s Share of Taxes. Landlord may make a good faith estimate of the Taxes to be due by Tenant for any Tax Period or part thereof during the Term, and Tenant shall pay to Landlord, on the Rent Commencement Date and on the first (1st) day of each calendar month thereafter, an amount equal to Tenant’s Share of Taxes for such Tax Period or part thereof divided by the number of months therein. Landlord may estimate and re-estimate Tenant’s Share of Taxes and deliver a copy of the estimate or re-estimate to Tenant. Thereafter, the monthly installments of Tenant’s Share of Taxes shall be appropriately adjusted in accordance with the estimations so that, by the end of the Tax Period in question, Tenant shall have paid all of Tenant’s Share of Taxes as estimated by Landlord. Any amounts paid based on such an estimate shall be subject to adjustment as herein provided when actual Taxes are available for each Tax Period. If the total of such monthly remittances is greater than Tenant’s Share of Taxes actually due for such Tax Period, then, provided no Event of Default has occurred, Tenant may credit the difference against the next installment of Additional Rent on account of Taxes due hereunder, except that if such difference is determined after the end of the Term, Landlord shall refund such difference to Tenant within thirty (30) days after such determination to the extent that such difference exceeds any amounts then due from Tenant to Landlord. If the total of such remittances is less than Tenant’s Share of Taxes actually due for such Tax Period, Tenant shall pay the difference to Landlord, as Additional Rent hereunder, within thirty (30) days of Tenant’s receipt of an invoice therefor. Landlord’s estimate for the next Tax Period shall be based upon actual Taxes for the prior Tax Period plus a reasonable adjustment based upon estimated increases in Taxes. The provisions of this Section 5.3(c) shall survive the expiration or earlier termination of this Lease.

(d) Effect of Abatements. Appropriate credit against Taxes shall be given for any refund obtained by reason of a reduction in any Taxes by the assessors or the administrative, judicial or other governmental agency responsible therefor after deduction of Landlord’s expenditures for reasonable legal fees and for other reasonable expenses incurred in obtaining the Tax refund.

(e) Part Years. If the Rent Commencement Date or the Expiration Date occurs in the middle of a Tax Period, Tenant shall be liable for only that portion of the Taxes, as the case may be, with respect to such Tax Period after the Rent Commencement Date.

 

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5.4 Late Payments.

(a) Any payment of Rent due hereunder not paid when due shall bear interest for each month or fraction thereof from the due date until paid in full at the annual rate of eighteen percent (18%), or at any applicable lesser maximum legally permissible rate for debts of this nature (the “Default Rate”).

(b) Additionally, if Tenant fails to make any payment within five (5) business days after the due date therefor, Landlord may charge Tenant a fee, which shall constitute liquidated damages, equal to three percent (3%) of any such late payment; provided, however, Landlord shall waive the late fee once in any twelve-(12)-month period in the event Tenant shall pay such late payment within five (5) business days following Landlord’s written notice to Tenant of the occurrence of such late payment.

(c) For each Tenant payment check to Landlord that is returned by a bank for any reason, Tenant shall pay a returned check charge equal to the amount as shall be customarily charged by Landlord’s bank at the time.

(d) Money paid by Tenant to Landlord shall be applied to Tenant’s account in the following order: first, to any unpaid Additional Rent, including without limitation late charges, returned check charges, legal fees and/or court costs chargeable to Tenant hereunder; and then to unpaid Base Rent.

(e) The parties agree that the late charge referenced in Section 5.4(b) represents a fair and reasonable estimate of the costs that Landlord will incur by reason of any late payment by Tenant, and the payment of late charges and interest are distinct and separate in that the payment of interest is to compensate Landlord for the use of Landlord’s money by Tenant, while the payment of late charges is to compensate Landlord for Landlord’s processing, administrative and other costs incurred by Landlord as a result of Tenant’s delinquent payments. Acceptance of a late charge or interest shall not constitute a waiver of Tenant’s default with respect to the overdue amount or prevent Landlord from exercising any of the other rights and remedies available to Landlord under this Lease or at law or in equity now or hereafter in effect.

(f) If Tenant during any six (6) month period shall be more than five (5) days delinquent in the payment of any installment of Rent on three (3) or more occasions, then, notwithstanding anything herein to the contrary, Landlord may, by written notice to Tenant, elect to require Tenant to pay all Base Rent and Additional Rent on account of Operating Costs and Taxes quarterly in advance. Such right shall be in addition to and not in lieu of any other right or remedy available to Landlord hereunder or at law on account of Tenant’s default hereunder.

5.5 No Offset; Independent Covenants; Waiver. Rent shall be paid without notice or demand, and without setoff, counterclaim, defense, abatement, suspension, deferment, reduction or deduction, except as expressly provided herein. TENANT WAIVES ALL RIGHTS (I) TO ANY ABATEMENT, SUSPENSION, DEFERMENT, REDUCTION OR DEDUCTION OF OR FROM RENT, AND (II) TO QUIT, TERMINATE OR SURRENDER THIS LEASE OR THE PREMISES OR ANY PART THEREOF, EXCEPT AS EXPRESSLY PROVIDED HEREIN. TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE OBLIGATIONS OF TENANT HEREUNDER SHALL BE SEPARATE AND INDEPENDENT COVENANTS AND AGREEMENTS, THAT RENT SHALL CONTINUE TO BE PAYABLE IN ALL EVENTS AND THAT THE OBLIGATIONS OF TENANT HEREUNDER SHALL CONTINUE UNAFFECTED, UNLESS THE REQUIREMENT TO PAY OR PERFORM THE SAME SHALL HAVE

 

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BEEN TERMINATED PURSUANT TO AN EXPRESS PROVISION OF THIS LEASE. LANDLORD AND TENANT EACH ACKNOWLEDGES AND AGREES THAT THE INDEPENDENT NATURE OF THE OBLIGATIONS OF TENANT HEREUNDER REPRESENTS FAIR, REASONABLE, AND ACCEPTED COMMERCIAL PRACTICE WITH RESPECT TO THE TYPE OF PROPERTY SUBJECT TO THIS LEASE, AND THAT THIS AGREEMENT IS THE PRODUCT OF FREE AND INFORMED NEGOTIATION DURING WHICH BOTH LANDLORD AND TENANT WERE REPRESENTED BY COUNSEL SKILLED IN NEGOTIATING AND DRAFTING COMMERCIAL LEASES IN MASSACHUSETTS, AND THAT THE ACKNOWLEDGEMENTS AND AGREEMENTS CONTAINED HEREIN ARE MADE WITH FULL KNOWLEDGE OF THE HOLDING IN WESSON V. LEONE ENTERPRISES, INC., 437 MASS. 708 (2002). SUCH ACKNOWLEDGEMENTS, AGREEMENTS AND WAIVERS BY TENANT ARE A MATERIAL INDUCEMENT TO LANDLORD ENTERING INTO THIS LEASE.

5.6 Survival. Any obligations under this Section 5 which shall not have been paid at the expiration or earlier termination of the Term shall survive such expiration or earlier termination and shall be paid when and as the amount of same shall be determined and be due.

6. GUARANTY. Intentionally Omitted.

7. LETTER OF CREDIT

7.1 Amount. Contemporaneously with the execution of this Lease, Tenant shall deliver either (i) cash in the amount specified in the Lease Summary Sheet (the “Cash Security Deposit”), which shall be held by Landlord in accordance with Section 7.5 below, or (ii) an irrevocable letter of credit to Landlord which shall (a) be in the amount specified in the Lease Summary Sheet and otherwise in the form attached hereto as Exhibit 5 or other form reasonably approved by Landlord (“Approved Issuer”); (b) name Landlord as its beneficiary; (c) be drawn on an FDIC insured financial institution reasonably satisfactory to Landlord that both (i) has an office in the greater Boston metropolitan area that will accept presentation of, and pay against, or allow for facsimile presentment for the payment of the Letter of Credit and (ii) satisfies both the Minimum Rating Agency Threshold and the Minimum Capital Threshold (as those terms are defined below); (d) be for a term of one (1) year, subject to extension in accordance with the terms hereof; and (e) have an outside expiration date no earlier than ninety (90) days after the scheduled Expiration Date of the then-current term of the Lease (the “Letter of Credit”). The “Minimum Rating Agency Threshold” shall mean that the issuing bank has outstanding unsecured, uninsured and unguaranteed senior long-term indebtedness that is then rated (without regard to qualification of such rating by symbols such as “+” or “-” or numerical notation) “Baa” or better by Moody’s Investors Service, Inc. and/or “BBB” or better by Standard & Poor’s Rating Services, or a comparable rating by a comparable national rating agency designated by Landlord in its discretion. The “Minimum Capital Threshold” shall mean that the issuing bank has combined capital, surplus and undivided profits of not less than $10,000,000,000. Notwithstanding the foregoing, Landlord hereby agrees that, as of the Execution Date, Silicon Valley Bank is an Approved Issuer. The Letter of Credit (and any renewals or replacements thereof) shall be for a term of not less than one (1) year. If the issuer of the Letter of Credit gives notice of its election not to renew such Letter of Credit for any additional period, Tenant shall be required to deliver a substitute Letter of Credit satisfying the conditions hereof at least thirty (30) days prior to the expiration of the term

 

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of such Letter of Credit. If the issuer of the Letter of Credit fails to satisfy either or both of the Minimum Rating Agency Threshold or the Minimum Capital Threshold, Tenant shall be required to deliver a substitute letter of credit from another issuer reasonably satisfactory to the Landlord and that satisfies both the Minimum Rating Agency Threshold and the Minimum Capital Threshold not later than ten (10) business days after Landlord notifies Tenant of such failure. Tenant agrees that it shall from time to time, as necessary, whether as a result of a draw on the Letter of Credit by Landlord pursuant to the terms hereof or as a result of the expiration of the Letter of Credit then in effect, renew or replace the original and any subsequent Letter of Credit so that a Letter of Credit, in the amount required hereunder, is in effect until a date which is at least ninety (90) days after the Expiration Date. If Tenant fails to furnish such renewal or replacement at least forty-five (45) days prior to the stated expiration date of the Letter of Credit then held by Landlord, Landlord may draw upon such Letter of Credit and hold the proceeds thereof (and such proceeds need not be segregated) as a Security Deposit pursuant to the terms of this Article 7. Any renewal or replacement of the original or any subsequent Letter of Credit shall meet the requirements for the original Letter of Credit as set forth above, except that such replacement or renewal shall be issued by an Approved Issuer.

The Letter of Credit shall be held by Landlord, without liability for interest, as security for the faithful performance by Tenant of all of the terms, covenants and conditions of this Lease by the Tenant to be kept and performed during the Term. In no event shall the Letter of Credit be deemed to be a prepayment of Rent nor shall it be considered a measure of liquidated damages.

7.2 Application of Proceeds of Letter of Credit. Upon an Event of Default, or if any proceeding shall be instituted by or against Tenant pursuant to any of the provisions of any Act of Congress or State law relating to bankruptcy, reorganizations, arrangements, compositions or other relief from creditors (and, in the case of any proceeding instituted against it, if Tenant shall fail to have such proceedings dismissed within thirty (30) days) or if Tenant is adjudged bankrupt or insolvent as a result of any such proceeding, or if the issuer of the Letter of Credit gives notice of its election not to renew such Letter of Credit for any additional period and Tenant fails to deliver a substitute Letter of Credit satisfying the conditions hereof at least thirty (30) days prior to the expiration of the term of such Letter of Credit, Landlord at its sole option may draw down all or a part of the Letter of Credit. The balance of any Letter of Credit cash proceeds shall be held in accordance with Section 7.5 below. Should the entire Letter of Credit, or any portion thereof, be drawn down by Landlord, Tenant shall, upon the written demand of Landlord, deliver a replacement Letter of Credit in the amount drawn, and Tenant’s failure to do so within ten (10) business days after receipt of such written demand shall constitute an additional Event of Default hereunder. The application of all or any part of the cash proceeds of the Letter of Credit to any obligation or default of Tenant under this Lease shall not deprive Landlord of any other rights or remedies Landlord may have nor shall such application by Landlord constitute a waiver by Landlord.

7.3 Transfer of Letter of Credit. In the event that Landlord transfers its interest in the Premises, Tenant shall upon notice from and at no cost to Landlord, deliver to Landlord an amendment to the Letter of Credit or a replacement Letter of Credit naming Landlord’s successor as the beneficiary thereof. If Tenant fails to deliver such amendment or replacement within ten (10) business days after written notice from Landlord, Landlord shall have the right to draw down the entire amount of the Letter of Credit and hold the proceeds thereof in accordance with Section 7.5 below.

 

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7.4 Credit of Issuer of Letter of Credit. If the issuer of the Letter of Credit fails to satisfy either or both of the Minimum Rating Agency Threshold or the Minimum Capital Threshold, Tenant shall be required to deliver a substitute letter of credit from another issuer reasonably satisfactory to the Landlord and that satisfies both the Minimum Rating Agency Threshold and the Minimum Capital Threshold not later than ten (10) business days after Landlord notifies Tenant of such failure.

7.5 Cash Proceeds of Letter of Credit. Landlord shall hold the Cash Security Deposit and/or the balance of proceeds remaining after a draw on the Letter of Credit (each hereinafter referred to as the “Security Deposit”) as security for Tenant’s performance of all its Lease obligations. After an Event of Default, Landlord may apply the Security Deposit, or any part thereof, to Landlord’s damages without prejudice to any other Landlord remedy. Should Landlord apply all or any portion of the Security Deposit in accordance with the terms of this Lease, Tenant shall, upon the written demand of Landlord, deliver cash or a Letter of Credit in the amount applied, and Tenant’s failure to do so within twenty (20) days after receipt of such written demand shall constitute an additional Event of Default hereunder. Landlord has no obligation to pay interest on the Security Deposit and may co-mingle the Security Deposit with Landlord’s funds. If Landlord conveys its interest under this Lease, the Security Deposit, or any part not applied previously, may be turned over to the grantee in which case Tenant shall look solely to the grantee for the proper application and return of the Security Deposit.

7.6 Return of Security Deposit or Letter of Credit. Should Tenant comply with all of such terms, covenants and conditions and promptly pay all sums payable by Tenant to Landlord hereunder, the Security Deposit shall (less any portion thereof which may have been utilized by Landlord to cure any default or applied to any actual damage suffered by Landlord) be returned to Tenant within forty-five (45) days after the latest to occur of: (i) the end of the Term, (ii) the delivery by Tenant to Landlord of the Premises free and clear of all parties claiming under Tenant and in compliance with Section 21 of the Lease, and (iii) the delivery to Landlord of an acceptable Surrender Report, as defined in Section 21 of the Lease.

8. INTENTIONALLY OMITTED.

9. UTILITIES, LANDLORD’S SERVICES

9.1 Electricity; Water; Gas. All necessary separate metering equipment to measure Tenant’s consumption of electricity and gas in the Premises is currently installed in the Premises. Commencing as of the Rent Commencement Date, and continuing thereafter throughout the remainder of the Term, (i) Tenant shall timely pay for the cost of consumption of all electricity and gas in the Premises directly to the utility companies providing such services, and (ii) Tenant shall reimburse Landlord for the cost of water consumed in the Premises based upon Landlord’s actual monthly readings of the submetering equipment for water service within thirty (30) days of Tenant’s receipt of Landlord’s invoice therefor. At Tenant’s request, Landlord shall provide Tenant with reasonable back-up documentation for water charges and the method of allocating the charges to Tenant. Tenant shall maintain and keep in good order, condition and repair the metering equipment used to measure electricity and gas furnished to the Premises and any equipment exclusively serving the same. Tenant shall, within thirty (30) days of written request from Landlord, from time to time, provide to Landlord actual readings and invoices with respect to electricity and gas consumed in the Premises.

 

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9.2 Other Utilities. Subject to Landlord’s reasonable rules and regulations governing the same, Tenant shall, commencing as of the Rent Commencement and continuing thereafter throughout the remainder of the Term, obtain and pay, as and when due, for all other utilities and services consumed in and/or furnished to the Premises, together with all taxes, penalties, surcharges and maintenance charges pertaining thereto. The cost of consumption of such other utilities may either be included in Operating Expenses, or Tenant shall reimburse Landlord for the cost thereof based upon Landlord’s actual monthly readings of the applicable submetering equipment within thirty (30) days of Tenant’s receipt of Landlord’s invoice therefor. At Tenant’s request, Landlord shall provide Tenant with reasonable back-up documentation regarding the total charges and the method of allocating the charges to Tenant.

9.3 Interruption or Curtailment of Utilities. When necessary by reason of accident or emergency, or for repairs, alterations, replacements or improvements which in the reasonable judgment of Landlord are desirable or necessary to be made, Landlord reserves the right, upon as much prior notice to Tenant as is practicable under the circumstances and no less than forty-eight (48) hours’ notice except in the event of an emergency, to interrupt, curtail, or stop (i) the furnishing of hot and/or cold water, and (ii) the operation of the plumbing and electric systems. Landlord shall exercise reasonable diligence to eliminate the cause of any such interruption, curtailment, stoppage or suspension, but, subject to Section 10.7 hereof, there shall be no diminution or abatement of Rent or other compensation due from Landlord to Tenant hereunder, nor shall this Lease be affected or any of Tenant’s obligations hereunder reduced, and Landlord shall have no responsibility or liability for any such interruption, curtailment, stoppage, or suspension of services or systems.

9.4 Landlords Services. Subject to reimbursement pursuant to Section 5.2 above, Landlord shall provide the services described in Exhibit 6 attached hereto and made a part hereof (“Landlords Services”) at the level of service set forth herein. All costs incurred in connection with the provision of Landlord’s Services shall be included in Operating Costs.

10. MAINTENANCE AND REPAIRS

10.1 Maintenance and Repairs by Tenant. Tenant shall keep neat and clean and free of insects, rodents, vermin and other pests and in good repair, order and condition the Premises, including without limitation the entire interior of the Premises, all electronic, phone and data cabling and related equipment (other than building service equipment) that is installed by or for the exclusive benefit of the Tenant (whether located in the Premises or other portions of the Building), all fixtures, equipment and lighting therein, electrical equipment wiring, doors, non-structural walls, interior windows (for the avoidance of doubt, exterior windows and related assemblies shall be the responsibility of Landlord in accordance with Section 10.2 hereof) and floor coverings, reasonable wear and tear and damage by Casualty excepted. Tenant shall be solely responsible, at Tenant’s sole cost and expense, for the proper maintenance of all building systems, life-safety, sanitary, electrical, heating, air conditioning, plumbing, security or other systems and of all equipment and appliances located within and exclusively serving the Premises. Tenant agrees to provide regular maintenance by contract with a reputable qualified service contractor for the heating and air conditioning equipment servicing the Premises. Such maintenance contract and contractor shall be subject to Landlord’s reasonable approval. Tenant, at Landlord’s request, shall at reasonable intervals provide Landlord with copies of such contracts and maintenance and repair records and/or reports.

 

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10.2 Maintenance and Repairs by Landlord. Except as otherwise provided in Section 15, and subject to those obligations in Section 10.1 above, Landlord shall maintain and keep in good working order: (i) the foundation, roof, structure, exterior windows and related assemblies, structural floor slabs and columns, of the Building, and (ii) the base Building systems, including, without limitation, all common mechanical, electrical and HVAC systems serving the Building in good repair, order and condition. In addition, Landlord shall operate and maintain the Common Areas in substantially the same manner as comparable combination office and laboratory facilities in the vicinity of the Premises. All costs incurred by Landlord under this Section 10.2 shall be included in Operating Costs, subject to, and in accordance with Section 5.2.

10.3 Accidents to Sanitary and Other Systems. Tenant shall give to Landlord prompt notice of any fire or accident in the Premises or in the Building and of any damage to, or defective condition in, any part or appurtenance of the Building including, without limitation, sanitary, electrical, ventilation, heating and air conditioning or other systems located in, or passing through, the Premises. Except as otherwise provided in Section 15, and subject to Tenant’s obligations in Section 10.1 above, such damage or defective condition shall be remedied by Landlord with reasonable diligence, but, subject to Section 14.5 below, if such damage or defective condition was caused by any of the Tenant Parties, the cost to remedy the same shall be paid by Tenant.

10.4 Floor Load—Heavy Equipment. Tenant shall not place a load upon any floor of the Premises exceeding the floor load per square foot of area which such floor was designed to carry and which is allowed by Legal Requirements. Landlord represents that the floor loading capacity of the Premises is 100 pounds per rentable square foot. Landlord reserves the right to prescribe the weight and position of all safes, heavy machinery, heavy equipment, freight, bulky matter or fixtures (collectively, “Heavy Equipment”), in a commercially reasonable manner, which shall be placed so as to distribute the weight. Heavy Equipment shall be placed and maintained by Tenant at Tenant’s expense in settings sufficient in Landlord’s reasonable judgment to absorb and prevent vibration, noise and annoyance. Tenant shall not move any Heavy Equipment into or out of the Building without giving Landlord prior written notice thereof and observing all of Landlord’s Rules and Regulations with respect to the same. If such Heavy Equipment requires special handling, Tenant agrees to employ only persons holding a Master Rigger’s License to do said work, and that all work in connection therewith shall comply with Legal Requirements. Any such moving shall be at the sole risk and hazard of Tenant and Tenant will defend, indemnify and save Landlord and Landlord’s agents (including without limitation its property manager), contractors and employees (collectively with Landlord, the “Landlord Parties”) harmless from and against any and all claims, damages, losses, penalties, costs, expenses and fees (including without limitation reasonable legal fees) (collectively, “Claims”) resulting directly or indirectly from such moving except, subject to Section 14.5 hereof, to the extent caused by the negligence or willful misconduct of any Landlord Parties. Proper placement of all Heavy Equipment in the Premises shall be Tenant’s responsibility.

10.5 Premises Cleaning. Tenant shall be responsible, at its sole cost and expense, for janitorial and trash removal services and other biohazard disposal services for the Premises, including the laboratory areas thereof. Such services shall be performed by licensed (where required by law or governmental regulation), insured and qualified contractors approved in advance, in writing, by Landlord (which approval shall not be unreasonably withheld, delayed or conditioned) and on a sufficient basis to ensure that the Premises are at all times kept neat and clean. Landlord shall provide a dumpster at the Building loading dock for Tenant’s disposal of non-biohazard material. All costs incurred by Landlord in connection with such dumpster shall be included in Operating Costs as provided in Section 5.2.

 

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10.6 Pest Control. Tenant, at Tenant’s sole cost and expense, shall cause the Premises to be exterminated on a monthly basis to Landlord’s reasonable satisfaction and shall cause all portions of the Premises used for the storage, preparation, service or consumption of food or beverages to be cleaned daily in a manner reasonably satisfactory to Landlord, and to be treated against infestation by insects, rodents and other vermin and pests whenever there is evidence of any infestation. Tenant shall not permit any person to enter the Premises for the purpose of providing such extermination services, unless such persons have been approved by Landlord. If requested by Landlord, Tenant shall, at Tenant’s sole cost and expense, store any refuse generated in the Premises by the consumption of food or beverages in a cold box or similar facility.

10.7 Service Interruptions.

(a) Abatement of Rent. In the event that: (i) there shall be an interruption, curtailment or suspension of any service or failure to perform any obligation required to be provided or performed by Landlord pursuant to Sections 9 and/or 10 (and no reasonably equivalent alternative service or supply is provided by Landlord) that shall materially interfere with Tenant’s use and enjoyment of the Premises, or any portion thereof (any such event, a “Service Interruption”), and (ii) such Service Interruption shall continue for five (5) consecutive business days following receipt by Landlord of written notice (the “Service Interruption Notice”) from Tenant describing such Service Interruption (“Abatement Service Interruption Cure Period”), and (iii) such Service Interruption shall not have been caused by an act or omission of Tenant or Tenant’s agents, employees, contractors or invitees (an event that satisfies the foregoing conditions (i)-(iii) being referred to hereinafter as a “Material Service Interruption”) then, Tenant, subject to the next following sentence, shall be entitled to an equitable abatement of Base Rent, Operating Costs and Taxes based on the nature and duration of the Material Service Interruption and the area of the Premises affected, for any and all days following the Material Service Interruption Cure Period that both (x) the Material Service Interruption is continuing and (y) Tenant does not use such affected areas of the Premises for any of the Permitted Uses. Any efforts by Tenant to respond or react to any Material Service Interruption, including, without limitation, any activities by Tenant to remove its personal property from the affected areas of the Premises, shall not constitute a use that precludes abatement pursuant to this Section 10.7(a). The Abatement Service Interruption Cure Period shall be extended by reason of any delays in Landlord’s ability to cure the Service Interruption in question caused by Landlord’s Force Majeure, provided however, that in no event shall the Abatement Service Interruption Cure Period with respect to any Service Interruption be longer than ten (10) consecutive business days after Landlord receives the applicable Service Interruption Notice.

(b) Tenant’s Termination Right. In the event that: (i) a Service Interruption occurs, and (ii) such Service Interruption continues for a period of ninety (90) consecutive days after Landlord receives a Service Interruption Notice with respect to such Service Interruption (“Termination Service Interruption Cure Period”), and (iii) such Service Interruption shall not have been caused by an act or omission of Tenant or Tenant’s agents, employees, or contractors, and (iv) for so long as Tenant ceases to use the affected portion of the Premises during such Service Interruption, then Tenant shall have the right to terminate this Lease by giving a written termination

 

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notice to Landlord after the expiration of the Termination Service Interruption Cure Period. If such Service Interruption is cured within ten (10) days (“Post-Termination Notice Cure Period”) after Landlord receives such termination notice, then Tenant shall have no right to terminate this Lease based upon such Service Interruption and Tenant’s termination notice shall be of no force or effect. The Termination Service Interruption Cure Period and the Post-Termination Notice Cure Period shall each be extended by reason of any delays in Landlord’s ability to cure the Service Interruption in question caused by Landlord’s Force Majeure, provided however, that in no event shall the aggregate extension of the Termination Service Interruption Cure Period and the Post-Termination Notice Cure Period by reason of Landlord’s Force Majeure exceed sixty (60) days.

(c) The provisions of this Section 10.7 shall not apply in the event of a Service Interruption caused by Casualty or Taking (see Section 15 hereof).

(d) The provisions of this Section 10.7 set forth Tenant’s sole rights and remedies, both in law and in equity, in the event of any Service Interruption.

11. ALTERATIONS AND IMPROVEMENTS BY TENANT

11.1 (a) Landlords Consent Required. Tenant shall not make any alterations, decorations, installations, removals, additions or improvements (collectively with Tenant’s Work, “Alterations”) in or to the Premises without Landlord’s prior written approval of the contractor(s), written plans and specifications and a time schedule therefor. Landlord reserves the right to require that Tenant use Landlord’s preferred vendor(s) for any Alterations that involve roof penetrations, alarm tie-ins, sprinklers, fire alarm and other life safety equipment. Tenant shall not make any amendments or additions to plans and specifications approved by Landlord without Landlord’s prior written consent. Landlord’s approval of non-structural Alterations shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, except to the extent as set forth in Exhibit 4, Landlord may withhold its consent in its sole discretion (a) to any Alteration to or affecting the fixed lab benches, fume hoods, roof and/or building systems, (b) with respect to matters of aesthetics relating to Alterations to or affecting the exterior of the Building, and (c) to any Alteration affecting the Building structure. Tenant shall be responsible for all elements of the design of Tenant’s plans (including, without limitation, compliance with Legal Requirements, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of Tenant’s plans shall in no event relieve Tenant of the responsibility for such design. In seeking Landlord’s approval, Tenant shall provide Landlord, at least fourteen (14) business days in advance of any proposed construction, with plans, specifications, bid proposals, certified stamped engineering drawings and calculations by Tenant’s engineer of record or architect of record, (including connections to the Building’s structural system, modifications to the Building’s envelope, non-structural penetrations in slabs or walls, and modifications or tie-ins to life safety systems), work contracts, requests for laydown areas and such other information concerning the nature and cost of the Alterations as Landlord may reasonably request. Landlord shall have no liability or responsibility for any claim, injury or damage alleged to have been caused by the particular materials (whether building standard or non-building standard), appliances or equipment selected by Tenant in connection with any work performed by or on behalf of Tenant. Except as otherwise expressly set forth herein, all Alterations shall be done at Tenant’s sole cost and expense and at such times and in such manner as Landlord may from time to time reasonably designate. If Tenant shall make any Alterations, then Landlord may elect to require Tenant at the expiration or sooner termination of the Term to restore the Premises to substantially the same condition as existed immediately prior to the Alterations. Tenant shall provide Landlord with reproducible record drawings (in CAD format) of all Alterations within sixty (60) days after completion thereof.

 

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(b) Alterations Permitted without Landlord’s Consent. Notwithstanding anything to the contrary herein contained, Tenant shall have the right without obtaining the prior consent of Landlord, but upon prior notice to Landlord as provided below, to make Alterations to the Premises where: (i) the same are within the interior of the Premises, and do not affect the exterior of the Building and do not affect any of the Building’s systems or the ceiling of the Premises; (ii) the same do not affect the roof or any structural element of the Building, or the fire protection systems of the Building; (iii) the cost of any individual Alteration shall not exceed $150,000.00 in cost; (iv) Tenant shall comply with the provisions of this Lease, and if such work increases the cost of insurance or taxes, Tenant shall pay for any such increase in cost; and (v) Tenant gives Landlord at least five (5) business days’ prior notice describing such work in reasonable detail, accompanied by copies of plans and specifications therefor (to the extent plans and specifications are typically prepared in accordance with such work (the “Permitted Alterations”).

11.2 Supervised Work. Landlord and Tenant recognize that to the extent Landlord permits Tenant to perform any Alterations outside the Premises and/or affecting the Building systems, or if required by Legal Requirements, Landlord may need to make arrangements to have supervisory personnel on site. Accordingly, Landlord and Tenant agree as follows: Tenant shall give Landlord at least two (2) business days’ prior written notice of any time outside of normal construction hours (i.e., Monday-Friday, 7:00 a.m. to 3:00 p.m., excluding holidays) when Tenant intends to perform portions of Alterations (the “Supervised Work”). Tenant shall reimburse Landlord, within thirty (30) days after written demand therefor, for the reasonable third party out of pocket cost of Landlord’s supervisory personnel overseeing the Supervised Work.

11.3 Harmonious Relations. Tenant agrees that it will not, either directly or indirectly, use any contractors and/or materials if their use will create any difficulty, whether in the nature of a labor dispute or otherwise, with other contractors and/or labor engaged by Tenant or Landlord or others in the construction, maintenance and/or operation of the Building, the Property or any part thereof. In the event of any such difficulty, upon Landlord’s request, Tenant shall cause all contractors, mechanics or laborers causing such difficulty to leave the Property immediately.

11.4 Liens. No Alterations shall be undertaken by Tenant until (i) Tenant has made provision for written waiver of liens from all contractors for such Alteration; and (ii) with respect to any Alteration, the cost of which exceeds $500,000: (x) Tenant has provided Landlord with reasonable evidence that there is sufficient funding to pay for such Alteration, and (y) Tenant has required its general contractor to obtain appropriate surety payment and performance bonds which shall name Landlord as an additional obligee and has filed lien bond(s) (in jurisdictions where available) on behalf of such contractors. Any mechanic’s lien filed against the Premises or the Building for work claimed to have been done for, or materials claimed to have been furnished to, Tenant shall be discharged by Tenant within ten (10) business days thereafter, at Tenant’s expense by filing the bond required by law or otherwise.

 

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11.5 General Requirements. Unless Landlord and Tenant otherwise agree in writing, Tenant shall (a) obtain Landlord’s written approval of any and all building permit applications relating to Alterations (including without limitation Permitted Alterations) to the Premises prior to submission thereof; (b) procure or cause others to procure on its behalf all necessary permits before undertaking any Alterations in the Premises (and provide copies thereof to Landlord); (c) perform all of such Alterations in a good and workmanlike manner, employing materials of good quality and in compliance with Landlord’s construction rules and regulations, all insurance requirements of this Lease, and Legal Requirements; and (d) defend, indemnify and hold the Landlord Parties harmless from and against any and all Claims occasioned by or growing out of such Alterations, except to the extent caused by the negligence or willful misconduct of any Landlord Parties. Tenant shall cause all contractors and subcontractors to maintain during the performance of any Alterations the insurance described in Exhibit 9 attached hereto.

12. SIGNAGE

12.1 Restrictions. Tenant shall have the right to install Building standard signage identifying Tenant’s business at the entrance to the Premises, which signage shall be subject to Landlord’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). Subject to the foregoing, and subject to Section 12.2 below, Tenant shall not, without first obtaining Landlord’s written approval, place or suffer to be placed or maintained on the exterior of the Premises, or any part of the interior visible from the exterior thereof, any sign, banner, advertising matter or any other thing of any kind (including, without limitation, any hand-lettered advertising), and shall not place or maintain any decoration, letter or advertising matter on the glass of any window or door of the Premises without first obtaining Landlord’s written approval. No signs or blinds may be put on or in any window or elsewhere if visible from the exterior of the Building; provided, however, Tenant may continue to retain and replace the existing blinds in the Premises, provided that any replacement blinds are identical to the existing blinds in the Premises.

12.2 Exterior Signage. Provided that the following conditions, which may be waived by Landlord in its sole discretion, are satisfied, Tenant has not assigned its interest in this Lease nor sublet more than fifty percent (50%) of the Premises to anyone other than to Affiliated Entities (hereinafter defined) and/or a Successor (hereinafter defined), Tenant shall have the right to erect and maintain at the entrance to the Premises one (1) sign identifying Tenant’s business, the size of which shall not exceed Tenant’s Share of the exterior Building signage allowed by Legal Requirements (the “Exterior Signage”), provided (i) the Exterior Signage complies with (A) the requirements of Exhibit 12 attached hereto and made a part hereof and (B) all Legal Requirements (and Tenant shall have obtained any necessary permits prior to erecting the Exterior Signage), (ii) such signage shall be placed in the same location as the existing signage for the Existing Tenant, (iii) the materials, design, lighting and method of installation of the Exterior Signage, and any requested changes thereto, shall be subject to Landlord’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed, and (iv) Tenant shall at all times maintain the Exterior Signage in good order, condition and repair and shall remove the Exterior Signage at the expiration or earlier termination of the Term hereof or upon Landlord’s written demand after the failure of Tenant to comply with the provisions of this Section 12.2, and shall repair any damage to the Building caused by the Exterior Signage or the installation or removal thereof. Tenant shall have the right, from time to time throughout the term of this Lease, to replace its signage (if any) with signage which is equivalent to the signage being replaced, subject to all of the terms and conditions of this Section 12.2.

 

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12.3 Monument Sign. Subject to Legal Requirements, Landlord shall list Tenant’s name and logo on the Property’s monument sign. The initial listing of Tenant’s name on the Monument Sign shall be at Landlord’s expense. The parties hereby agree that the maintenance and removal of such Tenant’s Monument Signage (including, without limitation, the repair and cleaning of the existing monument façade upon removal of Tenant’s Monument Signage) shall be performed by Landlord and the costs incurred by Landlord shall be included in Operating Costs in accordance with Section 5.2, except that Tenant shall be responsible for the cost of any change in Tenant’s Monument Signage during the initial Term of the Lease.

12.4 Building Directory. Tenant acknowledges that, as of the Execution Date of this Lease, there exists no common Building lobby directory. In the event that Landlord installs a Building lobby directory, Tenant shall have the right, during the Term of this Lease, to list Tenant’s name on the Building lobby directory. The initial listing of Tenant’s name shall be at Landlord’s cost and expense. Any changes, replacements or additions by Tenant to such directory shall be at Tenant’s sole cost and expense.

13. ASSIGNMENT, MORTGAGING AND SUBLETTING

13.1 Landlords Consent Required. Tenant shall not mortgage or encumber this Lease or in whole or in part whether at one time or at intervals, operation of law or otherwise. Except as expressly otherwise set forth herein, Tenant shall not, without Landlord’s prior written consent, assign, sublet, license or transfer this Lease or the Premises in whole or in part whether by changes in the ownership or control of Tenant, or any direct or indirect owner of Tenant, whether at one time or at intervals, by sale or transfer of stock, partnership or beneficial interests, operation of law or otherwise, or permit the occupancy of all or any portion of the Premises by any person or entity other than Tenant’s employees (each of the foregoing, a “Transfer”). Any purported Transfer made without Landlord’s consent, if required hereunder, shall be void and confer no rights upon any third person, provided that if there is a Transfer, Landlord may collect rent from the transferee without waiving the prohibition against Transfers, accepting the transferee, or releasing Tenant from full performance under this Lease. In the event of any Transfer in violation of this Section 13, Landlord shall have the right to terminate this Lease upon thirty (30) days’ written notice to Tenant given within sixty (60) days after receipt of written notice from Tenant to Landlord of any Transfer, or within one (1) year after Landlord first learns of the Transfer if no notice is given. No Transfer shall relieve Tenant of its primary obligation as party-Tenant hereunder, nor shall it reduce or increase Landlord’s obligations under this Lease.

13.2 Landlords Recapture Right. Except in the event of any Permitted Transfer, as defined in Section 13.7, Tenant shall, prior to offering or advertising the Premises or any portion thereof for a Transfer, give a written notice (the “Recapture Offer”) to Landlord which: (i) states that Tenant desires to make a Transfer, (ii) identifies the affected portion of the Premises (the “Recapture Premises”), (iii) identifies the period of time (the “Recapture Period”) during which Tenant proposes to sublet the Recapture Premises, or indicates that Tenant proposes to assign its interest in this Lease, and (iv) offers to Landlord to terminate this Lease with respect to the Recapture Premises (in the case of a proposed assignment of Tenant’s interest in this Lease or a subletting for the remainder of the term of this Lease) or to suspend the Term for the Recapture Period (i.e. the Term with respect to the Recapture Premises shall be terminated during the Recapture Period and Tenant’s rental obligations shall be proportionately reduced). Landlord shall have fifteen (15) business days within which to respond to the Recapture Notice by either accepting or rejecting the Recapture Offer.

 

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13.3 Standard of Consent to Transfer. If Landlord does not timely give written notice to Tenant accepting a Recapture Offer or declines to accept the same, then Landlord agrees that, subject to the provisions of this Section 13, Landlord shall not unreasonably withhold, condition or delay its consent to a Transfer on the terms contained in the Recapture Notice to an entity which will use the Premises for any of the Permitted Uses. In any event, Landlord shall respond to Tenant’s request for its consent to a Transfer within fifteen (15) business days after Tenant gives Landlord a written request for such consent and provides to Landlord all information and documentation relating to such proposed Transfer as Landlord may reasonably request.

Without limiting the reasonable reasons why Landlord may withhold its consent to a proposed Transfer, it shall be reasonable for Landlord to withhold its consent to a proposed Transfer if, in Landlord’s reasonable opinion: (a) the Proposed Transferee does not have a tangible net worth and other financial indicators sufficient to meet the Transferee’s obligations under the Transfer instrument in question; (b) the Proposed Transferee has a business reputation that is not compatible with the operation of a first-class combination laboratory, research, development and office building; or (c) the intended use of such entity violates any restrictive use provisions then in effect with respect to space in the Building.

13.4 Listing Confers no Rights. The listing of any name other than that of Tenant, whether on the doors of the Premises or on the Building directory, or otherwise, shall not operate to vest in any such other person, firm or corporation any right or interest in this Lease or in the Premises or be deemed to effect or evidence any consent of Landlord, it being expressly understood that any such listing is a privilege extended by Landlord revocable at will by written notice to Tenant.

13.5 Profits In Connection with Transfers. Except with respect to any Permitted Transfers, as defined in Section 13.7, and with respect to Flagship Subleases, as defined in Section 13.8, Tenant shall, within thirty (30) days of receipt thereof, pay to Landlord fifty percent (50%) of any rent, sum or other consideration to be paid or given in connection with any Transfer, either initially or over time, after deducting reasonable actual out-of-pocket legal, and brokerage expenses incurred by Tenant and unamortized improvements paid for by Tenant in connection therewith and any rental concessions, in excess of Rent hereunder as if such amount were originally called for by the terms of this Lease as Additional Rent.

13.6 Prohibited Transfers. Notwithstanding any contrary provision of this Lease, Tenant shall have no right to make a Transfer unless on both (i) the date on which Tenant notifies Landlord of its intention to enter into a Transfer and (ii) the date on which such Transfer is to take effect, there is no Event of Default under this Lease. Notwithstanding anything to the contrary contained herein, Tenant agrees that in no event shall Tenant make a Transfer to (a) any government agency; (b) any tenant, subtenant or occupant of other space in the Building if vacant space of a size and term comparable to the portion of the Premises subject to the Transfer then exists in the Building; or (c) any entity with whom Landlord shall have negotiated for space in the Property in the three (3) months immediately preceding such proposed Transfer.

 

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13.7 Exceptions to Requirement for Consent. Notwithstanding anything to the contrary herein contained, Tenant shall have the right, without obtaining Landlord’s consent, and without giving Landlord a Recapture Notice, to (a) make a Transfer to an Affiliated Entity (hereinafter defined) so long as the transfer to such Affiliated Entity is for legitimate business purposes (and not for the purpose of avoiding the provisions of this Section 13), and (b) assign all of Tenant’s interest in and to the Lease to a Successor, provided that prior to or simultaneously with any assignment pursuant to this Section 13.7, such Affiliated Entity or Successor, as the case may be, and Tenant execute and deliver to Landlord an assignment and assumption agreement in form and substance reasonably acceptable to Landlord whereby such Affiliated Entity or Successor, as the case may be, shall agree to be independently bound by and upon all the covenants, agreements, terms, provisions and conditions set forth in the Lease on the part of Tenant to be performed, and whereby such Affiliated Entity or Successor, as the case may be, shall expressly agree that the provisions of this Section 13 shall, notwithstanding such Transfer, continue to be binding upon it with respect to all future Transfers. For the purposes hereof, an “Affiliated Entity” shall be defined as any entity which is controlled by, is under common control with, or which controls Tenant. For the purposes hereof, a “Successor” shall be defined as any entity into or with which Tenant is merged or with which Tenant is consolidated or which acquires all or substantially all of Tenant’s stock or assets, provided that the surviving entity shall have a net worth and other financial indicators sufficient to meet Tenant’s obligations hereunder. Tenant shall give Landlord at least ten (10) days’ prior written notice of any Permitted Transfer in advance of such Permitted Transfer, provided that such prior notice of the Permitted Transfer is not prohibited by either Legal Requirements or by the terms of a confidentiality agreement entered into between Tenant and the Permitted Transferee, however, in all events, notice of such Permitted Transfer shall be provided to Landlord no later than five (5) days following such Permitted Transfer. Notice of any Permitted Transfer shall include evidence, reasonably satisfactory to Landlord, that the conditions to the Permitted Transfer in question have been satisfied. Transfers to Affiliated Entities and to Successors which are permitted pursuant to this Section 13.7, and Transfers to Flagship Entities which permitted pursuant to Section 13.8 below, are referred to collectively herein as “Permitted Transfers”, and such Affiliated Entities, Flagship Entities, and Successors are referred to herein as “Permitted Transferees”.

13.8 Flagship Subleases. Notwithstanding anything to the contrary herein contained, Tenant shall have the right, upon at least ten (10) days’ prior written notice from Tenant to Landlord, without obtaining Landlord’s consent, and without giving Landlord a Recapture Notice, to enter into Flagship Subleases, as hereinafter defined. A “Flagship Sublease” shall be defined as a sublease or license of Internal Sublet Space, as hereinafter defined, to Flagship Entities, as hereinafter defined, provided however, that: (i) at no time shall more than 10,000 rentable square feet of the Premises, in the aggregate, be subject to Flagship Subleases, and (ii) no sublease or license shall be considered to be a Flagship Sublease if it is entered into for the purposes of avoiding the operation of the provisions of this Article 13 (e.g., without limitation, the requirement of obtaining Landlord’s consent to such sublease, Landlord’s recapture rights, etc.). A “Flagship Entity” shall be defined as any person or entity operating a business which, as of the date of that such person or entity first occupies any portion of the Premises pursuant to its Flagship Sublease, has been provided funding from Flagship Pioneering (formerly known as Flagship Ventures) which is either: (i) more than fifty (50%) percent of the total funding received by such person or entity, or (ii) $1,000,000. An “Internal Sublet Space” shall consist of an area located in the Premises which has access to the Common Areas of the Building only through Tenant’s reception area.

 

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14. INSURANCE; INDEMNIFICATION; EXCULPATION

14.1 Tenants Insurance.

(a) Tenant shall procure, pay for and keep in force throughout the Term (and for so long thereafter as Tenant remains in occupancy of the Premises) commercial general liability insurance insuring Tenant on an occurrence basis against all claims and demands for personal injury liability (including, without limitation, bodily injury, sickness, disease, and death) or damage to property which may be claimed to have occurred from and after the time any of the Tenant Parties shall first enter the Premises, of not less than Three Million Dollars ($3,000,000) per occurrence, Five Million Dollars ($5,000,000) aggregate, and from time to time thereafter shall be not less than such higher amounts, if procurable, as may be reasonably required by Landlord. Tenant shall also carry umbrella liability coverage in an amount of no less than Five Million Dollars ($5,000,000). Such policy shall also include contractual liability coverage covering Tenant’s liability assumed under this Lease. Such insurance policy(ies) shall name Landlord, Landlord’s managing agent and persons claiming by, through or under them, if any, as additional insureds.

(b) Tenant shall take out and maintain throughout the Term a policy of fire, vandalism, malicious mischief, extended coverage and so-called “all risk” coverage insurance in an amount equal to one hundred percent (100%) of the replacement cost insuring (i) all items or components of Alterations (collectively, the “Tenant-Insured Improvements”), and (ii) all of Tenant’s furniture, equipment, fixtures and property of every kind, nature and description related or arising out of Tenant’s leasehold estate hereunder, which may be in or upon the Premises or the Building, including, without limitation, all of Tenant’s animals (collectively, “Tenants Property”). The insurance required to be maintained by Tenant pursuant to this Section 14.1(b) (referred to herein as “Tenant Property Insurance”) shall insure the interests of both Landlord and Tenant as their respective interests may appear from time to time.

(c) Tenant shall take out and maintain a policy of business interruption insurance throughout the Term sufficient to cover at least twelve (12) months of Rent due hereunder and Tenant’s business losses during such 12-month period.

(d) During periods when Tenant’s Work and/or any Alterations are being performed, Tenant shall maintain, or cause to be maintained, so-called all risk or special cause of loss property insurance or its equivalent and/or builders risk insurance on 100% replacement cost coverage basis, including hard and soft costs coverages. Such insurance shall protect and insure Landlord, Landlord’s agents, Tenant and Tenant’s contractors, as their interests may appear, against loss or damage by fire, water damage, vandalism and malicious mischief, and such other risks as are customarily covered by so-called all risk or special cause of loss property / builders risk coverage or its equivalent.

(e) Tenant shall procure and maintain at its sole expense such additional insurance as may be necessary to comply with any Legal Requirements.

(f) Tenant shall cause all contractors and subcontractors to maintain during the performance of any Alterations the insurance described in Exhibit 9 attached hereto.

 

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(g) The insurance required pursuant to Sections 14.1(a), (b), (c), (d) and (e) (collectively, “Tenants Insurance Policies”) shall be effected with insurers approved by Landlord, with a rating of not less than “A-XI” in the current Bests Insurance Reports, and authorized to do business in the Commonwealth of Massachusetts under valid and enforceable policies. Tenant’s Insurance Policies shall each provide that it shall not be canceled or modified without at least ten (10) days’ prior written notice to each insured named therein; provided, however, in the event Tenant’s insurer will not provide such notice, Tenant shall be obligated to provide Landlord with ten (10) days’ prior written notice of any cancellation or modification. Tenant’s Insurance Policies may include deductibles in an amount no greater than the greater of $25,000 or commercially reasonable amounts. On or before the date on which any of the Tenant Parties shall first enter the Premises and thereafter not less than five (5) days prior to the expiration date of each expiring policy, Tenant shall deliver to Landlord binders of Tenant’s Insurance Policies issued by the respective insurers setting forth in full the provisions thereof together with evidence satisfactory to Landlord of the payment of all premiums for such policies. In the event of any claim, and upon Landlord’s request, Tenant shall deliver to Landlord complete copies of Tenant’s Insurance Policies. Upon request of Landlord, Tenant shall deliver to any Mortgagee copies of the foregoing documents.

14.2 Indemnification. Except to the extent caused by the negligence or willful misconduct of any of the Landlord Parties, Tenant shall defend, indemnify and save the Landlord Parties harmless from and against any and all Claims asserted by or on behalf of any person, firm, corporation or public authority arising from:

(a) Tenant’s breach of any covenant or obligation under this Lease;

(b) Any injury to or death of any person, or loss of or damage to property, sustained or occurring in or upon the Premises;

(c) Any injury to or death of any person, or loss of or damage to property arising out of the use or occupancy of the Premises by or the negligence or willful misconduct of any of the Tenant Parties; and

(d) On account of or based upon any work or thing whatsoever done (other than by Landlord or any of the Landlord Parties) at the Premises during the Term and during the period of time, if any, prior to the Term Commencement Date that any of the Tenant Parties may have been given access to the Premises.

14.3 Property of Tenant. Tenant covenants and agrees that, to the maximum extent permitted by Legal Requirements, all of Tenant’s Property at the Premises shall be at the sole risk and hazard of Tenant, and that if the whole or any part thereof shall be damaged, destroyed, stolen or removed from any cause or reason whatsoever, no part of said damage or loss shall be charged to, or borne by, Landlord, except, subject to Section 14.5 hereof, to the extent such damage or loss is due to the negligence or willful misconduct of any of the Landlord Parties.

14.4 Limitation of Landlords Liability for Damage or Injury. Landlord shall not be liable for any injury or damage to persons, animals, or property resulting from fire, explosion, falling plaster, steam, gas, air contaminants or emissions, electricity, electrical or electronic emanations or disturbance, water, rain or snow or leaks from any part of the Building or from the pipes, appliances, equipment or plumbing works or from the roof, street or sub-surface or from any other place or caused by dampness, vandalism, malicious mischief or by any other cause of

 

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whatever nature, except, subject to Section 14.5, to the extent caused by or due to the negligence or willful misconduct of any of the Landlord Parties, and then, where notice and an opportunity to cure are appropriate (i.e., where Tenant has an opportunity to know of such condition sufficiently in advance of the occurrence of any such injury or damage resulting therefrom as would have enabled Landlord to prevent such damage or loss had Tenant notified Landlord of such condition) only after (i) notice to Landlord of the condition claimed to constitute negligence or willful misconduct, and (ii) the expiration of a reasonable time after such notice has been received by Landlord without Landlord having commenced to take all reasonable and practicable means to cure or correct such condition. Notwithstanding the foregoing, in no event shall any of the Landlord Parties be liable for any loss which is covered by insurance policies actually carried or required to be so carried by this Lease; nor shall any of the Landlord Parties be liable for any such damage caused by other tenants or persons in the Building or caused by operations in construction of any private, public, or quasi-public work; nor shall any of the Landlord Parties be liable for any latent defect in the Premises or in the Building.

14.5 Waiver of Subrogation; Mutual Release. Landlord and Tenant each hereby waives on behalf of itself and its property insurers (none of which shall ever be assigned any such claim or be entitled thereto due to subrogation or otherwise) any and all rights of recovery, claim, action, or cause of action against the other and its agents, officers, servants, partners, shareholders, or employees (collectively, the “Related Parties”) for any loss or damage that may occur to or within the Premises or the Building or any improvements thereto, or any personal property of such party therein which is insured against under any Property Insurance (as defined in Section 14.7) policy actually being maintained by the waiving party from time to time, even if not required hereunder, or which would be insured against under the terms of any Property Insurance policy required to be carried or maintained by the waiving party hereunder, whether or not such insurance coverage is actually being maintained, including, in every instance, such loss or damage that may be caused by the negligence of the other party hereto and/or its Related Parties. Landlord and Tenant each agrees to cause appropriate clauses to be included in its Property Insurance policies necessary to implement the foregoing provisions. For avoidance of doubt, each party (“Waiving Party”) expressly waives any claim which it might have against the other party (“Released Party”) for damage to property which is not covered by reason of any deductible or self-insured retention under the Waiving Party’s Property Insurance, or by reason of the fact that the Waiving Party is self-insuring damage to its property.

14.6 Tenants Acts—Effect on Insurance. Tenant shall not do or permit any Tenant Party to do any act or thing upon the Premises or elsewhere in the Building which will invalidate or be in conflict with any insurance policies covering the Building and the fixtures and property therein; and shall not do, or permit to be done, any act or thing upon the Premises which shall subject Landlord to any liability or responsibility for injury to any person or persons or to property by reason of any business or operation being carried on upon said Premises or for any other reason. Notwithstanding anything to the contrary contained herein, Tenant shall not be liable for any increases in the rate of insurance unless such increases arise from Tenant’s manner of use of the Premises (as opposed to Tenant’s use of the Premises for the Permitted Uses). If by reason of the failure of Tenant to comply with the provisions hereof the insurance rate applicable to any policy of insurance shall at any time thereafter be higher than it otherwise would be, Tenant shall reimburse Landlord within thirty (30) days of Landlord’s written demand for that part of any insurance premiums which shall have been charged because of such failure by Tenant, together with interest at the Default Rate until paid in full, within thirty (30) days after receipt of an invoice therefor. In addition, Tenant shall reimburse Landlord for any increase in insurance premiums arising as a result of Tenant’s use and/or storage of any Hazardous Materials in the Premises.

 

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14.7 Landlord’s Insurance. Landlord shall carry at all times during the Term of this Lease (a) commercial general liability insurance with respect to the Building, the Land and the Common Areas in an amount not less than Five Million Dollars ($5,000,000) combined single limit per occurrence, (b) with respect to the Building, excluding Tenant-Insured Improvements and alterations made by other tenants or occupants, insurance against loss or damage caused by any peril covered under fire, extended coverage and all risk insurance with coverage against vandalism, malicious mischief and such other insurable hazards and contingencies as are from time to time normally insured against by owners of similar first-class multi-tenant buildings in the Town of Lexington or which are required by any Mortgagee, in an amount equal to one hundred percent (100%) of the full replacement cost thereof above foundation walls (“Landlord Property Insurance”), and (c) rent interruption insurance covering at least eighteen (18) months. Any and all such insurance (i) may be maintained under a blanket policy affecting other properties of Landlord and/or its affiliated business organizations, and (ii) may be written with commercially reasonable deductibles as determined by Landlord. The costs incurred by Landlord related to such insurance shall be included in Operating Costs. Tenant Property Insurance and Landlord Property Insurance are referred to collectively herein as “Property Insurance.”

15. CASUALTY; TAKING

15.1 Damage. If the Premises are damaged in whole or part because of fire or other insured casualty (“Casualty”), or if the Premises are subject to a taking in connection with the exercise of any power of eminent domain, condemnation, or purchase under threat or in lieu thereof (any of the foregoing, a “Taking”), then unless this Lease is terminated in accordance with Section 15.2 below, Landlord shall restore the Building and/or the Premises to substantially the same condition as existed immediately following completion of Landlord’s Work, or in the event of a partial Taking which affects the Building and the Premises, restore the remainder of the Building and the Premises not so Taken to substantially the same condition as is reasonably feasible. Landlord shall, within sixty (60) days after any Casualty, deliver to Tenant an engineering estimate (“Restoration Estimate”) from a reputable contractor or engineer, setting forth an estimate of the period of time (“Restoration Period”) that it will take for Landlord to restore the Building and/or Premises, as aforesaid. If, in Landlord’s reasonable judgment, any element of the Tenant-Insured Improvements can more effectively be restored as an integral part of Landlord’s restoration of the Building or the Premises, such restoration shall also be made by Landlord, but at Tenant’s sole cost and expense. Subject to rights of Mortgagees, Tenant Delays, Legal Requirements then in existence and to delays for adjustment of insurance proceeds or Taking awards, as the case may be, and instances of Force Majeure, Landlord shall substantially complete such restoration within one (1) year after Landlord’s receipt of all required permits therefor. Upon substantial completion of such restoration by Landlord, Tenant shall use diligent efforts to complete restoration of the Premises to substantially the same condition as existed immediately prior to such Casualty or Taking, as the case may be, as soon as reasonably possible. Tenant agrees to cooperate with Landlord in such manner as Landlord may reasonably request to assist Landlord in collecting insurance proceeds due in connection with any Casualty which affects the Premises or the Building. In no event shall Landlord be required to expend more than the Net (hereinafter defined) insurance proceeds Landlord receives for damage to the Premises and/or the Building or the Net

 

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Taking award attributable to the Premises and/or the Building. “Net” means the insurance proceeds or Taking award actually paid to Landlord (and not paid over to a Mortgagee) less all costs and expenses, including adjusters and attorney’s fees, of obtaining the same. In the Operating Year in which a Casualty occurs, there shall be included in Operating Costs Landlord’s deductible under its property insurance policy. Except as Landlord may elect pursuant to this Section 15.1, under no circumstances shall Landlord be required to repair any damage to, or make any repairs to or replacements of, any Tenant-Insured Improvements.

15.2 Termination Rights.

(a) Landlords Termination Rights. Landlord may terminate this Lease upon thirty (30) days’ prior written notice to Tenant if:

(i) any material portion of the Building or any material means of access thereto is taken;

(ii) more than thirty-five percent (35%) of the Building is damaged by Casualty; or

(iii) if the estimated time to complete restoration exceeds one (1) year from the date on which Landlord receives all required permits for such restoration.

(b) Tenants Termination Rights. Tenant may terminate this Lease upon thirty (30) days’ prior written notice to Landlord if:

(i) any material portion of the Premises or any material means of access thereto is taken, so that, in Tenant’s reasonable judgment, the continued operation of Tenant’s business in the Premises is materially adversely affected;

(ii) if, 50% or more of the Building is damaged by a Casualty and the estimated Restoration Period, as set forth in the Restoration Estimate, exceeds one (1) year from the date on which Landlord receives all required permits for such restoration; or

(iii) if less than 50% of the Building is damaged by a Casualty, Tenant’s use of and/or access to the Premises is materially adversely affected by such Casualty, estimated Restoration Period, as set forth in the Restoration Estimate, exceeds six (6) months from the date on which Landlord receives all required permits for such restoration;

(iv) if Landlord is so required but fails to complete restoration of the Premises within the time frames and subject to the conditions set forth in Section 15.1 above, then Tenant may terminate this Lease upon thirty (30) days’ written notice to Landlord; provided, however, that if Landlord completes such restoration within thirty (30) days after receipt of any such termination notice on account of Landlord’s failure to so complete within the time period required, such termination notice shall be null and void and this Lease shall continue in full force and effect.

The remedies set forth in this Section 15.2(b) and in Section 15.2(c) below are Tenant’s sole and exclusive rights and remedies based upon Landlord’s failure to complete the restoration of the Premises as set forth herein.

 

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(c) Either Party May Terminate. In the case of any Casualty or Taking affecting the Premises and occurring during the last twelve (12) months of the Term, then (i) if such Casualty or Taking results in more than twenty-five percent (25%) of the floor area of the Premises being unsuitable for the Permitted Uses, or (ii) the damage to the Premises costs more than $250,000 to restore, then either Landlord or Tenant shall have the option to terminate this Lease upon thirty (30) days’ written notice to the other. In addition, if Landlord’s Mortgagee does not release sufficient insurance proceeds to cover the cost of Landlord’s restoration obligations, then Landlord shall (i) notify Tenant thereof, and (ii) have the right to terminate this Lease. If Landlord does not terminate this Lease pursuant to the previous sentence and such notice by Landlord does not include an agreement by Landlord to pay for the difference between the cost of such restoration and such released insurance proceeds, then Tenant may terminate this Lease by written notice to Landlord on or before the date that is thirty (30) days after such notice.

(d) Automatic Termination. In the case of a Taking of the entire Premises, then this Lease shall automatically terminate as of the date of possession by the Taking authority.

(e) Notwithstanding anything to the contrary contained herein, Tenant may not terminate this Lease pursuant to this Section 15 if the Casualty in question was caused by the gross negligence or willful misconduct of any of the Tenant Parties.

15.3 Abatement. In the event of a Casualty affecting the Premises, there shall be an equitable adjustment of Base Rent, Operating Costs and Taxes based upon the degree to which Tenant’s ability to conduct its business in the Premises is impaired by reason of such Casualty from and after the date of a Casualty, and continuing until the following portions of the repair and restoration work to be performed by Landlord, as set forth above, are substantially completed: (a) any repair and restoration work to be performed by Landlord within the Premises, and (b) repair and restoration work with respect to the Common Areas to the extent that damage to the Common Areas caused by such Casualty materially and adversely affects Tenant’s use of, or access to, the Premises.

15.4 Taking for Temporary Use. If the Premises are Taken for temporary use, this Lease and Tenant’s obligations, including without limitation the payment of Rent, shall continue. For purposes hereof, a “Taking for temporary use” shall mean a Taking of ninety (90) days or less.

15.5 Disposition of Awards. Except for any separate award for Tenant’s movable trade fixtures, relocation expenses, and unamortized leasehold improvements paid for by Tenant (provided that the same may not reduce Landlord’s award), all Taking awards to Landlord or Tenant shall be Landlord’s property without Tenant’s participation, and Tenant hereby assigns to Landlord Tenant’s interest, if any, in such award. Tenant may pursue its own claim against the Taking authority.

16. ESTOPPEL CERTIFICATE. Tenant shall at any time and from time to time upon not less than ten (10) business days’ prior written notice from Landlord, execute, acknowledge and deliver to Landlord a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified

 

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and stating the modifications), and the dates to which Rent has been paid in advance, if any, stating, to Tenant’s knowledge, whether or not Landlord is in default in performance of any covenant, agreement, term, provision or condition contained in this Lease and, if so, specifying each such default, and such other facts as Landlord may reasonably request, it being intended that any such statement delivered pursuant hereto may be relied upon by Landlord, any prospective purchaser of the Building or of any interest of Landlord therein, any Mortgagee or prospective Mortgagee thereof, any lessor or prospective lessor thereof, any lessee or prospective lessee thereof, or any prospective assignee of any mortgage thereof. Time is of the essence with respect to any such requested certificate, Tenant hereby acknowledging the importance of such certificates in mortgage financing arrangements, prospective sales and the like.

17. HAZARDOUS MATERIALS

17.1 Prohibition. Tenant shall not, without the prior written consent of Landlord, bring or permit to be brought or kept in or on the Premises or elsewhere in the Building or the Property (i) any inflammable, combustible or explosive fluid, material, chemical or substance (except for standard office supplies stored in proper containers); and (ii) any Hazardous Material (hereinafter defined), other than the types and quantities of Hazardous Materials which are listed on Exhibit 7 attached hereto (“Tenants Hazardous Materials”), provided that the same shall at all times be brought upon, kept or used in so-called one (1) ‘control area (which constitutes the entirety of the Premises) and in accordance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws (hereinafter defined) and prudent environmental practice and (with respect to medical waste and so-called “biohazard” materials) good scientific and medical practice. Tenant shall be responsible for assuring that all laboratory uses are adequately and properly vented. On or before each anniversary of the Rent Commencement Date, and on any earlier date during the 12-month period on which Tenant intends to add a new Hazardous Material or materially increase the quantity of any Hazardous Material to the list of Tenant’s Hazardous Materials, Tenant shall submit to Landlord an updated list of Tenant’s Hazardous Materials for Landlord’s review and approval, which approval shall not be unreasonably withheld, conditioned or delayed. Landlord shall have the right, from time to time, to inspect the Premises for compliance with the terms of this Section 17.1. Notwithstanding the foregoing, with respect to any of Tenant’s Hazardous Materials which Tenant does not properly handle, store or dispose of in compliance with all applicable Environmental Laws (hereinafter defined), prudent environmental practice and (with respect to medical waste and so-called “biohazard materials”) good scientific and medical practice, Tenant shall, upon written notice from Landlord, no longer have the right to bring such material into the Building or the Property until Tenant has demonstrated, to Landlord’s reasonable satisfaction, that Tenant has implemented programs to thereafter properly handle, store or dispose of such material. In order to induce Landlord to waive its otherwise applicable requirement that Tenant maintain insurance in favor of Landlord against liability arising from the presence of radioactive materials in the Premises, and without limiting the foregoing, Tenant hereby represents and warrants to Landlord that at no time during the Term will Tenant bring upon, or permit to be brought upon, the Premises any radioactive materials whatsoever.

17.2 Environmental Laws. For purposes hereof, “Environmental Laws” shall mean all laws, statutes, ordinances, rules and regulations of any local, state or federal governmental authority having jurisdiction concerning environmental, health and safety matters, including but not limited to any discharge by any of the Tenant Parties into the air, surface water, sewers, soil or groundwater of any Hazardous Material (hereinafter defined) whether within or outside the

 

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Premises, including, without limitation (a) the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq., (b) the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (c) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., (d) the Toxic Substances Control Act of 1976, 15 U.S.C. Section 2601 et seq., and (e) Chapter 21E of the General Laws of Massachusetts. Tenant, at its sole cost and expense, shall comply with (i) Environmental Laws, and (ii) any rules, requirements and safety procedures of the Massachusetts Department of Environmental Protection, the Town of Lexington and any insurer of the Building or the Premises with respect to Tenant’s use, storage and disposal of any Hazardous Materials.

17.3 Hazardous Material Defined. As used herein, the term “Hazardous Material” means asbestos, oil or any hazardous, radioactive or toxic substance, material or waste or petroleum derivative which is or becomes regulated by any Environmental Law, including without limitation live organisms, viruses and fungi, medical waste and any so-called “biohazard” materials. The term “Hazardous Material” includes, without limitation, oil and/or any material or substance which is (i) designated as a “hazardous substance,” “hazardous material,” “oil,” “hazardous waste” or toxic substance under any Environmental Law.

17.4 Testing. If any Mortgagee or governmental authority requires testing to determine whether there has been any release of Hazardous Materials and such testing is required as a result of the acts or omissions of any of the Tenant Parties in violation of this Lease, then Tenant shall reimburse Landlord within thirty (30) days of Landlord’s written demand, as Additional Rent, for the reasonable costs thereof, together with interest at the Default Rate until paid in full. Tenant shall execute affidavits, certifications and the like, as may be reasonably requested by Landlord from time to time concerning Tenant’s best knowledge and belief concerning the presence of Hazardous Materials in or on the Premises, the Building or the Property. If Landlord reasonably believes that any Hazardous Materials have been released on, in, under or at the Premises in violation of this Lease or any Legal Requirement, Landlord shall have the right to conduct appropriate tests of the Premises or any portion thereof to demonstrate that Hazardous Materials are present or that contamination has occurred due to the acts or omissions of any of the Tenant Parties in violation of this Lease. Tenant shall reimburse Landlord within thirty (30) days of Landlord’s written demand, as Additional Rent, for the reasonable costs of such tests if such tests reveal that Hazardous Materials exist at the Premises in violation of this Lease or any Legal Requirement. If any Mortgagee or governmental authority requires testing to determine whether there has been any release of Hazardous Materials and such testing is required as a result of the acts or omissions of any of the Tenant Parties, then Tenant shall reimburse Landlord upon demand, as Additional Rent, for the reasonable costs thereof, together with interest at the Default Rate until paid in full. Further, Landlord shall have the right to cause a third party consultant retained by Landlord, at Landlord’s expense (provided, however, that such costs shall be included in Operating Costs, if allowable pursuant to Section 5.2), to review, but not more than once in any calendar year, Tenant’s lab operations, procedures and permits to ascertain whether or not Tenant is complying with law and adhering to best industry practices. Tenant agrees to cooperate in good faith with any such review and to provide to such consultant any information requested by such consultant and reasonably required in order for such consultant to perform such review, but nothing contained herein shall require Tenant to provide proprietary or confidential information to such consultant.

 

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17.5 Indemnity; Remediation.

(a) Tenant hereby covenants and agrees to indemnify, defend and hold the Landlord Parties harmless from and against any and all Claims against any of the Landlord Parties arising out of contamination of any part of the Property or other adjacent property, which contamination arises as a result of: (i) the presence of Hazardous Material in the Premises, the presence of which is caused by any act or omission of any of the Tenant Parties, or (ii) from a breach by Tenant of its obligations under this Section 17. This indemnification of the Landlord Parties by Tenant includes, without limitation, reasonable costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work or any other response action required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil, soil vapor, or ground water on or under, or any indoor air in, the Building based upon the circumstances identified in the first sentence of this Section 17.5. The indemnification and hold harmless obligations of Tenant under this Section 17.5 shall survive the expiration or any earlier termination of this Lease. Without limiting the foregoing, if the presence of any Hazardous Material in the Building or otherwise at the Property is caused or permitted by any of the Tenant Parties and results in any contamination of any part of the Property or any adjacent property, Tenant shall promptly take all actions at Tenant’s sole cost and expense as are necessary to return the Property and/or the Building or any adjacent property to their condition as of the date of this Lease, provided that Tenant shall first obtain Landlord’s written approval of such actions, which approval shall not be unreasonably withheld, conditioned or delayed so long as such actions, in Landlord’s reasonable discretion, would not potentially have any adverse effect on the Property, and, in any event, Landlord shall not withhold its approval of any proposed actions which are required by applicable Environmental Laws. The provisions of this Section 17.5 shall survive the expiration or earlier termination of the Lease.

(b) Without limiting the obligations set forth in Section 17.5(a) above, if any Hazardous Material is in, on, under, at or about the Building or the Property as a result of the acts or omissions of any of the Tenant Parties and results in any contamination of any part of the Property or any adjacent property that is in violation of any applicable Environmental Law or that requires the performance of any response action pursuant to any Environmental Law, Tenant shall promptly take all actions at Tenant’s sole cost and expense as are necessary to reduce such Hazardous Material to amounts below any applicable Reportable Quantity, any applicable Reportable Concentration and any other applicable standard set forth in any Environmental Law such that no further response actions are required; provided that Tenant shall first obtain Landlord’s written approval of such actions, which approval shall not be unreasonably withheld, conditioned or delayed so long as such actions would not be reasonably expected to have an adverse effect on the market value or utility of the Property for the Permitted Uses, and in any event, Landlord shall not withhold its approval of any proposed actions which are required by applicable Environmental Laws (such approved actions, “Tenants Remediation”).

(c) In the event that Tenant fails to complete Tenant’s Remediation prior to the end of the Term, then:

(i) until the completion of Tenant’s Remediation (as evidenced by the certification of Tenant’s Licensed Site Professional (as such term is defined by applicable Environmental Laws), who shall be reasonably acceptable to Landlord) (the “Remediation Completion Date”), Tenant shall pay to Landlord, with respect to the portion of the Premises which reasonably cannot be occupied by a new tenant until completion of Tenant’s Remediation, (A) Additional Rent on account of Operating Costs and Taxes and (B) Base Rent in an amount equal to the greater of (1) the fair market rental value of such portion of the Premises (determined in substantial accordance with the process described in Section 1.2 above), and (2) Base Rent attributable to such portion of the Premises in effect immediately prior to the end of the Term; and

 

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(ii) Tenant shall maintain responsibility for Tenant’s Remediation and Tenant shall complete Tenant’s Remediation as soon as reasonably practicable in accordance with Environmental Laws. If Tenant does not diligently pursue completion of Tenant’s Remediation, Landlord shall have the right to either (A) assume control for overseeing Tenant’s Remediation, in which event Tenant shall pay all reasonable costs and expenses of Tenant’s Remediation (it being understood and agreed that all costs and expenses of Tenant’s Remediation incurred pursuant to contracts entered into by Tenant shall be deemed reasonable) within thirty (30) days of demand therefor (which demand shall be made no more often than monthly), and Landlord shall be substituted as the party identified on any governmental filings as the party responsible for the performance of such Tenant’s Remediation or (B) require Tenant to maintain responsibility for Tenant’s Remediation, in which event Tenant shall complete Tenant’s Remediation as soon as reasonably practicable in accordance with Environmental Laws, it being understood that Tenant’s Remediation shall not contain any requirement that Tenant remediate any contamination to levels or standards more stringent than those associated with the Property’s current office, research and development, laboratory, and vivarium uses.

(d) The provisions of this Section 17.5 shall survive the expiration or earlier termination of this Lease.

17.6 Disclosures. Prior to bringing any Hazardous Material into any part of the Property, Tenant shall deliver to Landlord the following information with respect thereto: (a) a description of handling, storage, use and disposal procedures; (b) all plans or disclosures and/or emergency response plans which Tenant has prepared, including without limitation Tenant’s Spill Response Plan, and all plans which Tenant is required to supply to any governmental agency or authority pursuant to any Environmental Laws; (c) copies of all Required Permits relating thereto; and (d) other information reasonably requested by Landlord.

17.7 Removal. Tenant shall be responsible, at its sole cost and expense, for Hazardous Material and other biohazard disposal services for the Premises. Such services shall be performed by contractors reasonably acceptable to Landlord and on a sufficient basis to ensure that the Premises are at all times kept neat, clean and free of Hazardous Materials and biohazards except in appropriate, specially marked containers reasonably approved by Landlord. Furthermore, if any Legal Requirements or Landlord’s trash removal company requires that any substances be disposed of separately from ordinary trash, Tenant shall make arrangements at Tenant’s expense for such disposal directly with a qualified and licensed disposal company reasonably acceptable to Landlord at a lawful disposal site.

17.8 Landlord Obligations with respect to Hazardous Materials.

(a) Landlord Representations, Covenants and Indemnity. Landlord hereby represents and warrants to Tenant that, to the Best of Landlord’s Knowledge (as that term is defined in clause (c) below), except to the extent (if any) as may be disclosed in the following described environmental assessment reports which have been made available by Landlord to Tenant (the “Disclosed Materials”), there exist, as of the Execution Date of this Lease, no Hazardous Materials on the Property which are in violation of applicable Environmental Laws or that require reporting, investigation, remediation or other response under Chapter 21E or other Environmental Laws:

 

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Phase I Environmental Site Assessment, 4 Hartwell Avenue, Lexington, Massachusetts, 02421, prepared by Boston Environmental Corporation, dated December 15, 2014; and

 

   

Decommissioning Documentation to be provided by Landlord from the Existing Tenant pursuant to Section 3.3 hereof.

Landlord covenants that neither Landlord nor any of the Landlord Parties shall bring any Hazardous Materials in or on to the Property or discharge any Hazardous Materials in or on to the Property which are, in either case, in violation of applicable Environmental Laws. Landlord hereby indemnifies and shall defend and hold Tenant, its officers, directors, employees, and agents harmless from any Claims arising as result of any breach by Landlord of its representations, warranties, or covenants under this Section 17.8(a).

(b) Landlord Remediation. If Hazardous Materials are discovered in, on or under the Property which are not in compliance with applicable Environmental Laws or that require reporting, investigation, remediation or other response under Chapter 21E or other Environmental Laws, and which are not the responsibility of Tenant pursuant to this Article 17, then Landlord shall remove or remediate the same, when, if, and in the manner required by applicable Environmental Laws.

(c) To the Best of Landlord’s Knowledge. The phrase “to the Best of Landlord’s Knowledge” under shall mean the best of the knowledge of Brian Grisaru, Landlord’s asset manager with respect to the Property.

18. RULES AND REGULATIONS.

18.1 Rules and Regulations. Tenant will faithfully observe and comply with all rules and regulations promulgated from time to time with respect to the Building, the Property and construction within the Property (collectively, the “Rules and Regulations”). The current version of the Rules and Regulations is attached hereto as Exhibit 8. In the case of any conflict between the provisions of this Lease and any future rules and regulations, the provisions of this Lease shall control. Nothing contained in this Lease shall be construed to impose upon Landlord any duty or obligation to enforce the Rules and Regulations or the terms, covenants or conditions in any other lease as against any other tenant and Landlord shall not be liable to Tenant for violation of the same by any other tenant, its servants, employees, agents, contractors, visitors, invitees or licensees.

18.2 Energy Conservation. Landlord may institute upon written notice to Tenant such policies, programs and measures as may be necessary, required, or expedient for the conservation and/or preservation of energy or energy services (collectively, the “Conservation Program”), provided however,: (i) that the Conservation Program does not, by reason of such policies, programs and measures, reduce the level of energy or energy services being provided to the Premises below the level of energy or energy services then being provided in comparable combination laboratory, research and development and office buildings in the vicinity of the

 

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Premises, for comparable operations to Tenant, provided the same shall not come at a material cost to Tenant, or adversely affect Tenant’s use of the Premises for any of the Permitted Uses, other than in a de minimis manner, or (ii) as may be necessary or required to comply with Legal Requirements or standards or the other provisions of this Lease. Upon receipt of such notice, Tenant shall comply with the Conservation Program.

18.3 Recycling. Upon written notice, Landlord may establish policies, programs and measures for the recycling of paper, products, plastic, tin and other materials (a “Recycling Program”). Upon receipt of such notice, Tenant will comply with the Recycling Program at Tenant’s sole cost and expense.

19. LAWS AND PERMITS.

19.1 Legal Requirements. Tenant shall not cause or permit the Premises, or cause the Property or the Building to be used in any way that violates any Legal Requirement, order, permit, approval, variance, covenant or restrictions of record or any provisions of this Lease, interferes with the rights of tenants of the Building, or constitutes a nuisance or waste. Tenant shall obtain, maintain and pay for all permits and approvals needed for the operation of Tenant’s business and shall, promptly take all actions necessary to comply with all Legal Requirements, including, without limitation, the Occupational Safety and Health Act, applicable to Tenant’s use of the Premises, the Property or the Building. Tenant shall maintain in full force and effect all certifications or permissions required by any authority having jurisdiction to authorize, franchise or regulate Tenant’s use of the Premises. Tenant shall be solely responsible for procuring and complying at all times with any and all necessary permits and approvals directly or indirectly relating or incident to: the conduct of its activities on the Premises; its scientific experimentation, transportation, storage, handling, use and disposal of any chemical or radioactive or bacteriological or pathological substances or organisms or other hazardous wastes or environmentally dangerous substances or materials or medical waste, animals or laboratory specimens. Within ten (10) days of a request by Landlord, which request shall be made not more than once during each period of twelve (12) consecutive months during the Term hereof, unless otherwise requested by any Mortgagee or unless Landlord reasonably suspects that Tenant has violated the provisions of this Section 19.1, Tenant shall furnish Landlord with copies of all such permits and approvals that Tenant possesses or has obtained together with a certificate certifying that such permits are all of the permits that Tenant possesses or has obtained with respect to the Premises. Tenant shall promptly give written notice to Landlord of any warnings or violations relative to the above received from any federal, state or municipal agency or by any court of law and shall promptly cure the conditions causing any such violations. Tenant shall not be deemed to be in default of its obligations under the preceding sentence to promptly cure any condition causing any such violation in the event that, in lieu of such cure, Tenant shall contest the validity of such violation by appellate or other proceedings permitted under applicable law, provided that (a) any such contest is made reasonably and in good faith, (b) Tenant makes provisions, including, without limitation, posting bond(s) or giving other security, reasonably acceptable to Landlord to protect Landlord, the Building and the Property from any liability, costs, damages or expenses arising in connection with such alleged violation and failure to cure, (c) Tenant shall agree to indemnify, defend (with counsel reasonably acceptable to Landlord) and hold Landlord harmless from and against any and all Claims arising in connection with such condition and/or violation, (d) Tenant shall promptly cure any violation in the event that its appeal of such violation is overruled or rejected, and (e) Tenant’s decision to delay such cure shall not, in Landlord’s good faith

 

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determination, be likely to result in any actual or threatened bodily injury, property damage, or any civil or criminal liability to Landlord, any tenant or occupant of the Building or the Property, or any other person or entity. Nothing contained in this Section 19.1 shall be construed to expand the uses permitted hereunder beyond the Permitted Uses. Landlord shall comply with any Legal Requirements and with any direction of any public office or officer relating to the maintenance or operation of the structural elements of the Building and the Common Areas, and the costs so incurred by Landlord shall be included in Operating Costs in accordance with the provisions of Section 5.2.

20. DEFAULT

20.1 Events of Default. The occurrence of any one or more of the following events shall constitute an “Event of Default” hereunder by Tenant:

(a) If Tenant fails to make any payment of Rent or any other payment required hereunder, as and when due, and such failure shall continue for a period of five (5) business days after notice thereof from Landlord to Tenant; provided, however, an Event of Default shall occur hereunder without any obligation of Landlord to give any notice if (i) Tenant fails to make any payment within five (5) business days after the due date therefor, and (ii) Landlord has given Tenant written notice under this Section 20.1(a) on more than two (2) occasions during the twelve (12) month interval preceding such failure by Tenant;

(b) If Tenant shall fail to execute and deliver to Landlord an estoppel certificate pursuant to Section 16 above or a subordination and attornment agreement pursuant to Section 22 below, within the timeframes set forth therein

(c) If Tenant shall fail to maintain any insurance required hereunder;

(d) If Tenant shall fail to restore the Security Deposit to its original amount or deliver a replacement Letter of Credit as required under Section 7 above;

(e) If Tenant causes or suffers any release of Hazardous Materials in or near the Property;

(f) If Tenant shall make a Transfer in violation of the provisions of Section 13 above, or if any event shall occur or any contingency shall arise whereby this Lease, or the term and estate thereby created, would (by operation of law or otherwise) devolve upon or pass to any person, firm or corporation other than Tenant, except as expressly permitted under Section 13 hereof;

(g) The failure by Tenant to observe or perform any of the covenants or provisions of this Lease to be observed or performed by Tenant, other than as specified above, and such failure continues for more than thirty (30) days after notice thereof from Landlord; provided, further, that if the nature of Tenant’s default is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant shall commence such cure within said thirty (30) day period and thereafter diligently prosecute such cure to completion, which completion shall occur not later than ninety (90) days from the date of such notice from Landlord;

 

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(h) Tenant shall be involved in financial difficulties as evidenced by an admission in writing by Tenant of Tenant’s inability to pay its debts generally as they become due, or by the making or offering to make a composition of its debts with its creditors;

(i) Tenant shall make an assignment or trust mortgage, or other conveyance or transfer of like nature, of all or a substantial part of its property for the benefit of its creditors,

(j) the leasehold hereby created shall be taken on execution or by other process of law and shall not be revested in Tenant within thirty (30) days thereafter;

(k) a receiver, sequesterer, trustee or similar officer shall be appointed by a court of competent jurisdiction to take charge of all or any part of Tenant’s Property and such appointment shall not be vacated within thirty (30) days;

(l) any proceeding shall be instituted by or against Tenant pursuant to any of the provisions of any Act of Congress or State law relating to bankruptcy, reorganizations, arrangements, compositions or other relief from creditors, and, in the case of any proceeding instituted against it, if Tenant shall fail to have such proceedings dismissed within thirty (30) days or if Tenant is adjudged bankrupt or insolvent as a result of any such proceeding.

With respect to any defaults set forth in subsections (b), (c), (d), (e) and (f) above, if Tenant shall fail to cure the default within the respective required timeframes set forth in this Lease, and such failure shall continue for three (3) business days after Tenant’s receipt of a Reminder Notice (as defined below), then such events shall be deemed to be an Event of Default. For purposes hereof, a “Reminder Notice” shall be a notice from Landlord to Tenant that states in bold faced capital letters at the top of the first page thereof the following: “TENANT’S FAILURE TO CURE DEFAULT WITHIN THREE (3) BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE SHALL CONSTITUTE AN EVENT OF DEFAULT.”

20.2 Remedies. Upon an Event of Default, Landlord may, by notice to Tenant, elect to terminate this Lease; and thereupon (and without prejudice to any remedies which might otherwise be available for arrears of Rent or preceding breach of covenant or agreement and without prejudice to Tenant’s liability for damages as hereinafter stated), upon the giving of such notice, this Lease shall terminate as of the date specified therein as though that were the Expiration Date. Upon such termination, Landlord shall have the right to utilize the Security Deposit or draw down the entire Letter of Credit, as applicable, and apply the proceeds thereof to its damages hereunder. Without being taken or deemed to be guilty of any manner of trespass or conversion, and without being liable to indictment, prosecution or damages therefor, Landlord may, by lawful process, enter into and upon the Premises (or any part thereof in the name of the whole); repossess the same, as of its former estate; and expel Tenant and those claiming under Tenant. The words “re-entry” and “re-enter” as used in this Lease are not restricted to their technical legal meanings.

20.3 Damages—Termination.

(a) Upon the termination of this Lease under the provisions of this Section 20, Tenant shall pay to Landlord Rent up to the time of such termination, shall continue to be liable for any preceding breach of covenant, and in addition, shall pay to Landlord as damages, at the election of Landlord, either:

 

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(i) the amount (discounted to present value at the rate of five percent (5%) per annum) by which, at the time of the termination of this Lease (or at any time thereafter if Landlord shall have initially elected damages under Section 20.3(a)(ii) below), (x) the aggregate of Rent projected over the period commencing with such termination and ending on the Expiration Date, exceeds (y) the aggregate projected rental value of the Premises for such period, taking into account a reasonable time period during which the Premises shall be unoccupied, plus all Reletting Costs (hereinafter defined); or

(ii) amounts equal to Rent which would have been payable by Tenant had this Lease not been so terminated, payable upon the due dates therefor specified herein following such termination and until the Expiration Date, provided, however, if Landlord shall re-let the Premises during such period, that Landlord shall credit Tenant with the net rents received by Landlord from such re-letting, such net rents to be determined by first deducting from the gross rents as and when received by Landlord from such re-letting the expenses incurred or paid by Landlord in terminating this Lease, as well as the expenses of re-letting, including altering and preparing the Premises for new tenants, brokers’ commissions, and all other similar and dissimilar expenses properly chargeable against the Premises and the rental therefrom (collectively, “Reletting Costs”), it being understood that any such re-letting may be for a period equal to or shorter or longer than the remaining Term; and provided, further, that (x) in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder and (y) in no event shall Tenant be entitled in any suit for the collection of damages pursuant to this Section 20.3(a)(ii) to a credit in respect of any net rents from a re-letting except to the extent that such net rents are actually received by Landlord prior to the commencement of such suit. If the Premises or any part thereof should be re-let in combination with other space, then proper apportionment on a square foot area basis shall be made of the rent received from such re-letting and of the expenses of re-letting.

(b) In calculating the amount due under Section 20.3(a)(i), above, there shall be included, in addition to the Base Rent, all other considerations agreed to be paid or performed by Tenant, including without limitation Tenant’s Share of Operating Costs and Taxes, on the assumption that all such amounts and considerations would have increased at the rate of four percent (4%) per annum for the balance of the full term hereby granted.

(c) Suit or suits for the recovery of such damages, or any installments thereof, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the Term would have expired if it had not been terminated hereunder.

(d) Nothing herein contained shall be construed as limiting or precluding the recovery by Landlord against Tenant of any sums or damages to which, in addition to the damages particularly provided above, Landlord may lawfully be entitled by reason of any Event of Default hereunder.

20.4 Landlords Self-Help; Fees and Expenses. If Tenant shall default in the performance of any covenant on Tenant’s part to be performed in this Lease contained, including without limitation the obligation to maintain the Premises in the required condition pursuant to Section 10.1 above, Landlord may, upon reasonable advance notice, except that no notice shall be required in an emergency, immediately, or at any time thereafter, perform the same for the account

 

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of Tenant. Tenant shall pay to Landlord within thirty (30) days of Landlord’s demand therefor any costs incurred by Landlord in connection therewith, together with interest at the Default Rate until paid in full. In addition, Tenant shall pay all of Landlord’s costs and expenses, including without limitation reasonable attorneys’ fees, incurred (i) in enforcing any obligation of Tenant under this Lease or (ii) as a result of Landlord or any of the Landlord Parties, without its fault, being made party to any litigation pending by or against any of the Tenant Parties.

20.5 Waiver of Redemption, Statutory Notice and Grace Periods. Tenant does hereby waive and surrender all rights and privileges which it might have under or by reason of any present or future Legal Requirements to redeem the Premises or to have a continuance of this Lease for the Term hereby demised after being dispossessed or ejected therefrom by process of law or under the terms of this Lease or after the termination of this Lease as herein provided. Except to the extent prohibited by Legal Requirements, any statutory notice and grace periods provided to Tenant by law are hereby expressly waived by Tenant.

20.6 Landlords Remedies Not Exclusive. The specified remedies to which Landlord may resort hereunder are cumulative and are not intended to be exclusive of any remedies or means of redress to which Landlord may at any time be lawfully entitled, and Landlord may invoke any remedy (including the remedy of specific performance) allowed at law or in equity as if specific remedies were not herein provided for.

20.7 No Waiver. Landlord’s failure to seek redress for violation, or to insist upon the strict performance, of any covenant or condition of this Lease, or any of the Rules and Regulations promulgated hereunder, shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of Rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach. The failure of Landlord to enforce any of such Rules and Regulations against Tenant and/or any other tenant in the Building shall not be deemed a waiver of any such Rules and Regulations. No provisions of this Lease shall be deemed to have been waived by either party unless such waiver be in writing signed by such party. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such Rent or pursue any other remedy in this Lease provided.

20.8 Restrictions on Tenants Rights. During the continuation of any Event of Default, (a) Landlord shall not be obligated to provide Tenant with any notice pursuant to Sections 2.3 and 2.4 above; and (b) Tenant shall not have the right to make, nor to request Landlord’s consent or approval with respect to, any Alterations or Transfers.

20.9 Landlord Default. Notwithstanding anything to the contrary contained in the Lease, Landlord shall in no event be in default in the performance of any of Landlord’s obligations under this Lease unless Landlord shall have failed to perform such obligations within thirty (30) days (or such additional time as is reasonably required to correct any such default, provided Landlord commences cure within 30 days) after notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation. Except as expressly set forth in this Lease, Tenant shall not have the right to terminate or cancel this Lease or to withhold rent or to

 

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set-off or deduct any claim or damages against rent as a result of any default by Landlord or breach by Landlord of its covenants or any warranties or promises hereunder, except in the case of a wrongful eviction of Tenant from the Premises (constructive or actual) by Landlord, and then only if the same continues after notice to Landlord thereof and an opportunity for Landlord to cure the same as set forth above. In addition, Tenant shall not assert any right to deduct the cost of repairs or any monetary claim against Landlord from rent thereafter due and payable under this Lease.

21. SURRENDER; ABANDONED PROPERTY; HOLD-OVER

21.1 Surrender

(a) Upon the expiration or earlier termination of the Term, Tenant shall (i) peaceably quit and surrender to Landlord the Premises (including without limitation all fixed lab benches, fume hoods, electric, plumbing, heating and sprinkling systems, fixtures and outlets, vaults, paneling, molding, shelving, radiator enclosures, cork, rubber, linoleum and composition floors, ventilating, silencing, air conditioning and cooling equipment therein and all other furniture, fixtures, and equipment that were either provided by Landlord or paid for in whole or in part by any allowance provided to Tenant by Landlord under this Lease) broom clean, in good order, repair and condition excepting only ordinary wear and tear and damage by fire or other insured Casualty; (ii) remove all of Tenant’s Property, all autoclaves and cage washers and, to the extent specified by Landlord, Alterations made by Tenant (Landlord hereby agreeing to make such election at the time that Landlord approves any Alteration if so requested by Tenant in writing at the time that Tenant requests that Landlord approve the plans and specifications for such Alteration); and (iii) repair any damages to the Premises or the Building caused by the installation or removal of Tenant’s Property and/or such Alterations. Tenant’s obligations under this Section 21.1(a) shall survive the expiration or earlier termination of this Lease.

(b) Prior to the expiration of this Lease (or within thirty (30) days after any earlier termination), Tenant shall clean and otherwise decommission all interior surfaces (including floors, walls, ceilings, and counters), piping, supply lines, waste lines, acid neutralization systems and plumbing in and/or exclusively serving the Premises, and all exhaust or other ductwork in and/or exclusively serving the Premises, in each case which has carried or released or been contacted by any Hazardous Materials or other chemical or biological materials used in the operation of the Premises, and shall otherwise clean the Premises so as to permit the Surrender Plan (defined below) to be issued. At least thirty (30) days prior to the expiration of the Term (or, if applicable, within five (5) business days after any earlier termination of this Lease), Tenant shall deliver to Landlord a reasonably detailed narrative description of the actions proposed (or required by any Legal Requirements) to be taken by Tenant in order to render the Premises (including any Alterations permitted or required by Landlord to remain therein) free of Hazardous Materials and otherwise released for unrestricted use and occupancy including without limitation causing the Premises to be decommissioned in accordance with the regulations of the U.S. Nuclear Regulatory Commission and/or the Massachusetts Department of Public health (the “MDPH”) for the control of radiation, and cause the Premises to be released for unrestricted use by the Radiation Control Program of the MDPH (the “Surrender Plan”). The Surrender Plan (i) shall be accompanied by a current list of (A) all Required Permits held by or on behalf of any Tenant Party with respect to Hazardous Materials in, on, under, at or about the Premises, and (B) Tenant’s Hazardous Materials, and (ii) shall be subject to the review and approval of Landlord’s environmental consultant. In connection with review and approval of the Surrender Plan, upon

 

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request of Landlord, Tenant shall deliver to Landlord or its consultant such additional non-proprietary information concerning the use of and operations within the Premises as Landlord shall request. On or before the expiration of the Term (or within thirty (30) days after any earlier termination of this Lease, during which period Tenant’s use and occupancy of the Premises shall be governed by Section 21.3 below), Tenant shall (i) perform or cause to be performed all actions described in the approved Surrender Plan, and (ii) deliver to Landlord a certification from a third party certified industrial hygienist reasonably acceptable to Landlord certifying that the Premises do not contain any Hazardous Materials and evidence that the approved Surrender Plan shall have been satisfactorily completed by a contractor acceptable to Landlord, and Landlord shall have the right, subject to reimbursement at Tenant’s expense as set forth below, to cause Landlord’s environmental consultant to inspect the Premises and perform such additional procedures as may be deemed reasonably necessary to confirm that the Premises are, as of the expiration of the Term (or, if applicable, the date which is thirty (30) days after any earlier termination of this Lease), free of Hazardous Materials and otherwise available for unrestricted use and occupancy as aforesaid. Landlord shall have the unrestricted right to deliver the Surrender Plan and any report by Landlord’s environmental consultant with respect to the surrender of the Premises to third parties. Such third parties and the Landlord Parties shall be entitled to rely on the Surrender Report. If Tenant shall fail to prepare or submit a Surrender Plan approved by Landlord, or if Tenant shall fail to complete the approved Surrender Plan, or if such Surrender Plan, whether or not approved by Landlord, shall fail to adequately address the use of Hazardous Materials by any of the Tenant Parties in, on, at, under or about the Premises, (A) Landlord shall have the right to take any such actions as Landlord may deem reasonable or appropriate to assure that the Premises and the Property are surrendered in the condition required hereunder, the cost of which actions shall be reimbursed by Tenant as Additional Rent within thirty (30) days of Landlord’s written demand; and (B) if the Term shall have ended, unless and until Landlord elects to take such actions to assure that the Premises are surrendered in the condition required hereunder, Tenant shall be deemed to be a holdover tenant subject to the provisions of Section 21.3 below until the date on which Tenant delivers the Surrender Report (in the form required hereunder) to Landlord. Tenant’s obligations under this Section 21.1(b) shall survive the expiration or earlier termination of the Term.

(c) No act or thing done by Landlord during the Term shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept such surrender shall be valid, unless in writing signed by Landlord. Unless otherwise agreed by the parties in writing, no employee of Landlord or of Landlord’s agents shall have any power to accept the keys of the Premises prior to the expiration or earlier termination of this Lease. The delivery of keys to any employee of Landlord or of Landlord’s agents shall not operate as a termination of this Lease or a surrender of the Premises.

(d) Notwithstanding anything to the contrary contained herein, Tenant shall, at its sole cost and expense, remove from the Premises, prior to the end of the Term, any item installed by or for Tenant and which, pursuant to Legal Requirements, must be removed therefrom before the Premises may be used by a subsequent tenant.

(e) Notwithstanding anything to the contrary herein contained. Landlord agrees that: (i) Tenant shall not be required to remove any other Alteration to the Premises (whether such Alteration arise from a Change to Landlord’s Work or a future Alteration made by Tenant), unless Landlord so advises Tenant at the time that Landlord approves Tenant’s plans and specifications for such Alteration, and, in Landlord’s reasonable judgment, such Alteration: (x)

 

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adversely affect the general utility of the Building for use by prospective and future tenants, and (y) require additional expense to readapt the Premises to normal use as a biotechnology office and research and development facility. For avoidance of doubt, Tenant shall, on or before the expiration or prior termination of the Term of the Lease, be required to remove: (i) all equipment installed by Tenant in the Premises or elsewhere on the Property, (ii) Tenant’s Property, as defined in Section 14.1(b), and (iii) the Structural Work.

21.2 Abandoned Property. After the expiration or earlier termination hereof, if Tenant fails to remove any property from the Building or the Premises which Tenant is obligated by the terms of this Lease to remove within five (5) business days after written notice from Landlord, such property (the “Abandoned Property”) shall be conclusively deemed to have been abandoned, and may either be retained by Landlord as its property or sold or otherwise disposed of in such manner as Landlord may see fit. If any item of Abandoned Property shall be sold, Tenant hereby agrees that Landlord may receive and retain the proceeds of such sale and apply the same, at its option, to the expenses of the sale, the cost of moving and storage, any damages to which Landlord may be entitled under Section 20 hereof or pursuant to law, and to any arrears of Rent.

21.3 Holdover. If any of the Tenant Parties holds over (which term shall include, without limitation, the failure of Tenant or any Tenant Party to perform all of its obligations under Section 21.1 above) after the end of the Term, Tenant shall be deemed a tenant-at-sufferance subject to the provisions of this Lease. Whether or not Landlord has previously accepted payments of Rent from Tenant:

(i) Tenant shall pay Base Rent at the Holdover Percentage, as hereinafter defined, of the highest rate of Base Rent payable during the Term,

(ii) Tenant shall continue to pay to Landlord all Additional Rent, and

(iii) in the event such hold over extends beyond sixty (60) days after the end of the Term, Tenant shall be liable for all damages, including without limitation lost business and consequential damages, incurred by Landlord as a result of such holding over, Tenant hereby acknowledging that Landlord may need the Premises after the end of the Term for other tenants and that the damages which Landlord may suffer as the result of Tenant’s holding over cannot be determined as of the Execution Date. The “Hold Over Percentage” shall be 150% for the first thirty (30) days of such holdover, and 200% for any period of hold over after the first thirty (30) days. Nothing contained herein shall grant Tenant the right to holdover after the expiration or earlier termination of the Term.

21.4 Warranties. Tenant hereby assigns to Landlord any warranties in effect on the last day of the Term with respect to any fixtures and Alterations installed in the Premises. Tenant shall provide Landlord with copies of any such warranties prior to the expiration of the Term (or, if the Lease is earlier terminated, within five (5) days thereafter).

 

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22. MORTGAGEE RIGHTS

22.1 Subordination. Tenant’s rights and interests under this Lease shall be (i) subject and subordinate to any ground lease, overleases, mortgage, deed of trust, or similar instrument covering the Premises, the Building and/or the Land and to all advances, modifications, renewals, replacements, and extensions thereof (each of the foregoing, a “Mortgage”), so long as the applicable Mortgagee and Tenant execute a commercially reasonable subordination, non-disturbance and attornment agreement (“SNDA”), (the form of SNDA attached hereto as Exhibit 11 being deemed commercially reasonable) or (ii) if any Mortgagee elects, prior to the lien of any present or future Mortgage, or (ii) if any Mortgagee elects, prior to the lien of any present or future Mortgage. Tenant further shall attorn to and recognize any successor landlord, whether through foreclosure or otherwise, as if the successor landlord were the originally named landlord. The provisions of this Section 22.1 shall be self-operative and no further instrument shall be required to effect such subordination or attornment; however, Tenant agrees to execute, acknowledge and deliver such instruments, confirming such subordination and attornment in such form as shall be requested by any such holder within fifteen (15) days of request therefor. Simultaneously with the execution and delivery of this Lease, Landlord, Tenant and Landlord’s current Mortgagee shall enter into an SNDA in form reasonably acceptable to such parties.

22.2 Notices. Tenant shall give each Mortgagee the same notices given to Landlord concurrently with the notice to Landlord, and each Mortgagee shall have a reasonable opportunity thereafter to cure a Landlord default, and Mortgagee’s curing of any of Landlord’s default shall be treated as performance by Landlord.

22.3 Mortgagee Consent. Tenant acknowledges that, where applicable, any consent or approval hereafter given by Landlord may be subject to the further consent or approval of a Mortgagee; and the failure or refusal of such Mortgagee to give such consent or approval shall, notwithstanding anything to the contrary in this Lease contained, constitute reasonable justification for Landlord’s withholding its consent or approval.

22.4 Mortgagee Liability. Tenant acknowledges and agrees that if any Mortgage shall be foreclosed, (a) the liability of the Mortgagee and its successors and assigns shall exist only so long as such Mortgagee or purchaser is the owner of the Premises, and such liability shall not continue or survive after further transfer of ownership; and (b) subject to the last sentence of this Section 22.4, such Mortgagee and its successors or assigns shall not be (i) liable for any act or omission of any prior lessor under this Lease; (ii) liable for the performance of Landlord’s covenants pursuant to the provisions of this Lease which arise and accrue prior to such entity succeeding to the interest of Landlord under this Lease or acquiring such right to possession; (iii) subject to any offsets or defense which Tenant may have at any time against Landlord; (iv) bound by any base rent or other sum which Tenant may have paid previously for more than one (1) month; or (v) liable for the performance of any covenant of Landlord under this Lease which is capable of performance only by the original Landlord. Notwithstanding the foregoing: (x) nothing shall relieve any Mortgagee, purchaser at foreclosure, or grantee of a deed in lieu of foreclosure from: (i) any liability which it has party-Landlord from and after the date (“Succession Date”) which it succeeds to Landlord’s interest under the Lease either by acquiring title to the Premises or possession of the Premises, and (y) any obligation which Landlord has to perform repairs or maintenance under the Lease based upon the fact that the need for such repairs or maintenance first arose after the Succession Date.

 

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23. QUIET ENJOYMENT. Landlord covenants that so long as Tenant keeps and performs each and every covenant, agreement, term, provision and condition herein contained on the part and on behalf of Tenant to be kept and performed, Tenant shall peaceably and quietly hold, occupy and enjoy the Premises during the Term from and against the claims of all persons lawfully claiming by, through or under Landlord subject, nevertheless, to the covenants, agreements, terms, provisions and conditions of this Lease, any matters of record or of which Tenant has knowledge and to any Mortgage to which this Lease is subject and subordinate, as hereinabove set forth.

24. NOTICES. Any notice, consent, request, bill, demand or statement hereunder (each, a “Notice”) by either party to the other party shall be in writing and shall be deemed to have been duly given when either delivered by hand or by nationally recognized overnight courier (in either case with evidence of delivery or refusal thereof) addressed as follows:

If to Landlord:             King 4 Hartwell Place, LLC

800 Boylston Street, Suite 1570

Boston, MA 02199

c/o King Street Properties

800 Boylston Street, Suite 1570

Boston, MA 02199

With a copy to:            Goulston & Storrs PC

400 Atlantic Avenue

Boston, MA 02110

Attention: Raymond M. Kwasnick, Esquire

If to Tenant:                 Codiak Biosciences, Inc.

500 Technology Square, 9th Floor

Cambridge, MA 02139

Attn: Andrea DiFabio

Notwithstanding the foregoing, any notice from Landlord to Tenant regarding ordinary business operations (e.g., exercise of a right of access to the Premises, maintenance activities, invoices, etc.) may also be given by written notice delivered by email to those parties listed in Section 2.4. Either party may at any time change the address or specify an additional address for such Notices by delivering or mailing, as aforesaid, to the other party a notice stating the change and setting forth the changed or additional address, provided such changed or additional address is within the United States. Notices shall be effective upon the date of receipt or refusal thereof. The parties hereby acknowledge that Tenant is required, pursuant to Section 22.2 hereof to give each Mortgagee the same notices given to Landlord concurrently with the notice to Landlord.

25. MISCELLANEOUS

25.1 Separability. If any provision of this Lease or portion of such provision or the application thereof to any person or circumstance is for any reason held invalid or unenforceable, the remainder of this Lease (or the remainder of such provision) and the application thereof to other persons or circumstances shall not be affected thereby.

25.2 Captions. The captions are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Lease nor the intent of any provisions thereof.

 

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25.3 Broker. Tenant and Landlord each warrants and represents that it has dealt with no broker in connection with the consummation of this Lease other than Colliers International (the “Broker”). Tenant and Landlord each agrees to defend, indemnify and save the other harmless from and against any Claims arising in breach of the representation and warranty set forth in the immediately preceding sentence. Landlord shall be solely responsible for the payment of any brokerage commissions to Broker.

25.4 Entire Agreement. This Lease, Lease Summary Sheet and Exhibits 1-11 attached hereto and incorporated herein contain the entire and only agreement between the parties and any and all statements and representations, written and oral, including previous correspondence and agreements between the parties hereto, are merged herein. Tenant acknowledges that all representations and statements upon which it relied in executing this Lease are contained herein and that Tenant in no way relied upon any other statements or representations, written or oral. This Lease may not be modified orally or in any manner other than by written agreement signed by the parties hereto.

25.5 Governing Law. This Lease is made pursuant to, and shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts and any applicable local municipal rules, regulations, by-laws, ordinances and the like.

25.6 Representation of Authority. By his or her execution hereof, each of the signatories on behalf of the respective parties hereby warrants and represents to the other that he or she is duly authorized to execute this Lease on behalf of such party. Upon Landlord’s request, Tenant shall provide Landlord with evidence that any requisite resolution, corporate authority and any other necessary consents have been duly adopted and obtained.

25.7 Expenses Incurred by Landlord Upon Tenant Requests.

(a) Tenant shall, upon demand, reimburse Landlord for all reasonable expenses, including, without limitation, legal fees, incurred by Landlord in connection with all requests by Tenant for consents, approvals or execution of collateral documentation related to this Lease, including, without limitation, costs incurred by Landlord in the review and approval of Tenant’s plans and specifications in connection with proposed Alterations to be made by Tenant to the Premises or in connection with requests by Tenant for Landlord’s consent to make a Transfer. Such costs shall be deemed to be Additional Rent under this Lease.

Notwithstanding the foregoing: (i) the amount of legal fees which Tenant is required to reimburse Landlord with respect to any Transfer shall not exceed the Transfer Legal Fee Cap, as hereinafter defined, with respect to such Transfer, and (ii) with respect any request by Tenant to review and approve Tenant’s plans and specifications with respect to any Alteration, Tenant shall only be required to reimburse Landlord for third party consultants engaged by Landlord to review such plans and specifications as Landlord, in good faith determines is necessary (e.g., reviews by structure engineers, MEP engineers, etc.). The “Transfer Legal Fees Cap” shall be defined as $2,500.00, except that (a) the Transfer Legal Fees Cap shall increase by $500 every fifth (5th) anniversary of the Premises Base Rent Commencement Date, and (b) the Transfer Legal Fees Cap shall not apply to Tenant’s request for Landlord’s approval of any sub-sublease of any tier.

 

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(b) In the case of litigation or other legal proceeding between Landlord and Tenant relating to the provisions of this Lease or Tenant’s occupancy of the Premises, the losing party shall, upon demand, reimburse the prevailing party for its reasonable costs of prosecuting and/or defending such proceeding (including, without limitation, reasonable attorneys’ fees).

25.8 Survival. Without limiting any other obligation of Tenant which may survive the expiration or prior termination of the Term, all obligations on the part of Tenant to indemnify, defend, or hold Landlord harmless, as set forth in this Lease shall survive the expiration or prior termination of the Term.

25.9 Limitation of Liability.

(a) Limitation on Landlord’s Liability. Tenant shall neither assert nor seek to enforce any claim against Landlord or any of the Landlord Parties, or the assets of any of the Landlord Parties, for breach of this Lease or otherwise, other than against Landlord’s interest in the Building and in the uncollected rents, issues and profits thereof, and Tenant agrees to look solely to such interest for the satisfaction of any liability of Landlord under this Lease. This Section 25.9 shall not limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord. Landlord and Tenant specifically agree that in no event shall any officer, director, trustee, employee or representative of Landlord or any of the other Landlord Parties ever be personally liable for any obligation under this Lease, nor shall Landlord or any of the other Landlord Parties be liable for consequential or incidental damages or for lost profits whatsoever in connection with this Lease.

(b) Limitation on Tenant’s Liability. Landlord shall neither assert nor seek to enforce any claim against Tenant or any of the Tenant Parties for breach of this Lease or otherwise, other than against the assets and property of Tenant, the Cash Security Deposit and/or the Letter of Credit, and Landlord agrees to look solely to such assets and property and the Cash Security Deposit and/or the Letter of Credit for the satisfaction of any liability of Tenant or any Tenant Parties under this Lease. This Section 25.9(b) shall not limit any right that Landlord might otherwise have to obtain injunctive relief against Tenant. Landlord and Tenant specifically agree that in no event: (i) any officer, director, trustee, employee or representative of Tenant or any of the other Tenant Parties ever be personally liable for any obligation under this Lease, and (ii) Tenant or any of the other Tenant Parties be liable for consequential or incidental damages or for lost profits whatsoever in connection with this Lease, except that nothing in this Section 26.9(b) shall limit or affect any liability or obligation which Tenant may have in the event of any breach by Tenant of its obligations under either Section 17 (Hazardous Materials) or Section 21.1 (Surrender) or Section 21.3 (Holdover).

25.10 Binding Effect. The covenants, agreements, terms, provisions and conditions of this Lease shall bind and benefit the successors and assigns of the parties hereto with the same effect as if mentioned in each instance where a party hereto is named or referred to, except that no violation of the provisions of Section 13 hereof shall operate to vest any rights in any successor or assignee of Tenant. A facsimile signature on this Lease shall be equivalent to, and have the same force and effect as, an original signature.

 

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25.11 Landlord Obligations upon Transfer. Upon any sale, transfer or other disposition of the Building, Landlord shall be entirely freed and relieved from the performance and observance thereafter of all covenants and obligations hereunder on the part of Landlord to be performed and observed, it being understood and agreed in such event (and it shall be deemed and construed as a covenant running with the land) that the person succeeding to Landlord’s ownership of said reversionary interest shall thereupon and thereafter assume, and perform and observe, any and all of such covenants and obligations of Landlord, except as otherwise agreed in writing.

25.12 No Grant of Interest. Tenant shall not grant any interest whatsoever in any fixtures within the Premises or any item paid in whole or in part by Landlord’s Contribution or by Landlord.

25.13 UBTI. Landlord and Tenant hereby agree that it is their intent that all Rent (including without limitation, Base Rent and all Additional Rent and any other charges payable to Landlord under this Lease) shall qualify as “rents from real property” within the meaning of Section 512(b)(3) of the Internal Revenue Code of 1986, as amended (the “Code”) and the U.S. Department of the Treasury Regulations promulgated thereunder (the “Regulations”). In the event that (a) the Code or the Regulations, or interpretations thereof by the Internal Revenue Service contained in revenue rulings or other similar public pronouncements, shall be changed so that any Rent no longer qualifies as “rent from real property” for purposes of said Section 512(b)(3), or (b) Landlord, in its sole discretion, determines that there is any risk that all or part of any Rent shall not qualify as “rents from real property” for the purposes of said Section 512(b)(3), Tenant agrees to cooperate with Landlord and enter into such amendment(s) to this Lease as Landlord deems necessary to qualify all Rent as “rents from real property,” provided, however, that (i) any amendment required under this Section 25.13 shall be made so as to produce, to the extent possible, the equivalent (in economic terms) Rent as payable before the amendment(s), and (ii) in the event that Landlord determines that an amendment cannot produce economically equivalent Rent as described in clause (i), the Rent payable under any such amendment(s) shall not be less favorable to Tenant than the Rent payable under this Lease immediately prior to such amendment(s). The parties agree to execute such further commercially reasonable instrument(s) as may reasonably be required by Landlord in order to give effect to the foregoing provisions of this Section 25.13.

25.14 Percentage Rent. Tenant expressly covenants and agrees not to enter into any sublease, transfer or assignment of this Lease (including, for avoidance of doubt, any Transfer to an Affiliated Entity or Successor under Section 13.6) that provides for rental or other payment for such use, occupancy or utilization based in whole or in part on the income or profits derived by any person from the property leases, used, occupied or utilized (other than an amount based on a fixed percentage or percentages of receipts or sales) and that any such purported sublease or assignment shall be absolutely void and ineffective as a conveyance of any right or interest in the possession use, occupancy, or utilization of any part of the Premises.

25.15. Financial Information. Tenant shall deliver to Landlord, within ten (10) business days after Landlord’s request (“Financial Information Request”), Tenant’s most recently completed balance sheet and related statements of income, shareholder’s equity and cash flows (audited if available) prepared and certified by an independent certified public accountant and certified by an officer of Tenant as being true and correct in all material respects. Landlord may make a Financial Information Request only one time during any twelve (12) month period, except that Landlord may make a second Financial Information Request during a twelve (12) month period in connection with a proposed a sale or refinancing of the Building. Any such financial information may be relied upon by Landlord, any actual or potential lessor, purchaser, or mortgagee of the Property or any portion thereof.

 

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25.16 No Air Rights. No rights to any view or to light or air over any property, whether belonging to Landlord or any other person, are granted to Tenant by this Lease. If at any time any windows of the Premises are temporarily darkened or the light therefrom is obstructed by reason of any repairs, improvements, maintenance or cleaning in or about the Property, the same shall be without liability to Landlord and without any reduction or diminution of Tenant’s obligations under this Lease.

25.17 OFAC Certificate and Indemnity. Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 10756, the “Patriot Act”) prohibit certain property transfers. Tenant hereby represents and warrants to Landlord (which representations and warranties shall be deemed to be continuing and re-made at all times during the Term) that neither Tenant, nor, to Tenant’s knowledge, nor any stockholder, manager, beneficiary, partner, or principal of Tenant is subject to the Executive Order, that none of them is listed on the United States Department of the Treasury Office of Foreign Assets Control (“OFAC”) list of “Specially Designated Nationals and Blocked Persons” as modified from time to time, and that none of them is otherwise subject to the provisions of the Executive Order or the Patriot Act. As of the Execution Date, the most current list of “Specially Designated Nationals and Blocked Persons” can be found at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html. Tenant shall from time to time, within ten (10) days after request by Landlord, deliver to Landlord any certification or other evidence requested from time to time by Landlord in its reasonable discretion, confirming Tenant’s compliance with these provisions. No assignment or subletting shall be effective unless and until the assignee or subtenant thereunder delivers to Landlord written confirmation of such party’s compliance with the provisions of this subsection, in form and content satisfactory to Landlord. If for any reason the representations and warranties set forth in this subsection, or any certificate or other evidence of compliance delivered to Landlord hereunder, is untrue in any respect when made or delivered, or thereafter becomes untrue in any respect, then an Event of Default hereunder shall be deemed to occur immediately, and there shall be no opportunity to cure. Tenant shall indemnify, defend with counsel reasonably acceptable to Landlord, and hold Landlord harmless from and against, any and all Claims arising from or related to the breach of any of the foregoing representations, warranties, and duties of Tenant. The provisions of this subsection shall survive the expiration or earlier termination of this Lease for the longest period permitted by law.

25.18 Confidentiality. Tenant acknowledges and agrees that the terms of this Lease are confidential. Disclosure of the terms hereof could adversely affect the ability of Landlord to negotiate other leases with respect to the Building and may impair Landlord’s relationship with other tenants of the Building. Tenant shall not disclose the terms and conditions of this Lease (“Landlord’s Confidential Information”) to any other person or entity without the prior written consent of Landlord which may be given or withheld by Landlord, in Landlord’s sole discretion, except as required for financial disclosures or securities filings, as required by the order of any court or public body with authority over Tenant, or in connection with any litigation between Landlord and Tenant with respect this Lease or to Tenant’s partners, officers, directors, employees, brokers, attorneys, or as may be required as part of any financing or Tenant’s normal course of business, provided that any recipient from Tenant of Landlord Confidential Information is required

 

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by Tenant to keep Landlord’s Confidential Information confidential in accordance with the terms of this Section 25.18. It is understood and agreed that damages alone would be an inadequate remedy for the breach of this provision by Tenant, and Landlord shall also have the right to seek specific performance of this provision and to seek injunctive relief to prevent its breach or continued breach.

25.19 Force Majeure. Other than Tenant’s obligations under this Lease that can be performed by the payment of money (e.g., payment of Rent and maintenance of insurance), whenever a period of time is herein prescribed for action to be taken by either party hereto, such party shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, acts of terrorism, governmental laws, regulations, or restrictions, or any other causes of any kind whatsoever which are beyond the control of such party (collectively “Force Majeure”). In no event shall financial inability of a party be deemed to be Force Majeure.

25.20 Condition to Lease. Reference is made to the fact that Landlord is negotiating in good faith to enter into an agreement with the Existing Tenant to terminate the Existing Tenant’s Lease as of June 30, 2019. Either party shall have the right, exercisable upon written notice to the other party, to render the Lease void and without force or effect, unless both of the following events occur on or before March 15, 2019:

A. Tenant executes and delivers to Landlord the foregoing Lease; and

B. Existing Tenant executes and delivers to Landlord an agreement, in form and substance acceptable to Landlord, whereby Existing Tenant agrees to terminate the term of the Existing Tenant’s Lease as of June 30, 2019.

 

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IN WITNESS WHEREOF the parties hereto have executed this Lease as a sealed instrument as of the Execution Date.

 

LANDLORD
KING 4 HARTWELL PLACE, LLC,
a Delaware limited liability company
By:   King Maris LLC, its operating partner
  By:  

King Street Properties Investments LLC, its manager

   

By:

 

/s/ Stephen D. Lynch

      Stephen D. Lynch, manager

TENANT

 

CODIAK BIOSCIENCES, INC.,

a Delaware corporation

By:  

/s/ Douglas E. Williams

       Name:  

Douglas E. Williams

       Title:  

Chief Executive Officer

 

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EXHIBIT 1

LEASE PLAN

 

LOGO

 

EXHIBIT 1, PAGE 1


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EXHIBIT 1A

RESERVED PARKING SPACES

 

LOGO

 

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EXHIBIT 2

LEGAL DESCRIPTION

 

LOGO

 

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EXHIBIT 3

EXISTING TENANT’S DECOMMISSIONING OBLIGATIONS

Tenant shall deliver to Landlord a narrative description of the actions proposed (or required by any Legal Requirements) to be taken by Tenant in order to render the Premises (including any Alterations permitted or required by Landlord to remain therein) free of Hazardous Materials and otherwise released for unrestricted use and occupancy (the “Surrender Plan”). The Surrender Plan (i) shall be accompanied by a current list of (A) all Required Permits held by or on behalf of any of Tenant or any of the Tenant Parties with respect to Hazardous Materials in, on, under, at or about the Premises, and (B) Tenant’s Hazardous Materials, and (ii) shall be subject to the review and approval of Landlord’s environmental consultant, which approval shall not be unreasonably withheld, conditioned or delayed. In connection with review and approval of the Surrender Plan, upon request of Landlord, Tenant shall deliver to Landlord or its consultant such additional non-proprietary information concerning the use of and operations within the Premises as Landlord shall reasonably request (it being understood that Tenant shall not be required to disclose any information if such disclosure is prohibited by a confidentiality agreement to which Tenant is a party). Tenant shall (i) perform or cause to be performed all actions described in the approved Surrender Plan, and (ii) deliver to Landlord a certification from a certified industrial hygienist reasonably acceptable to Landlord certifying that the Premises do not contain any Hazardous Materials and evidence that the approved Surrender Plan shall have been satisfactorily completed by a contractor acceptable to Landlord, and Landlord shall have the right, subject to reimbursement at Tenant’s expense to cause Landlord’s environmental consultant to inspect the Premises and perform such additional procedures as may be deemed reasonably necessary to confirm that the Premises are, as of the Execution Date of this Lease, free of Hazardous Materials and otherwise available for unrestricted use and occupancy. Landlord shall have the unrestricted right to deliver the Surrender Plan and any report by Landlord’s environmental consultant with respect to the surrender of the Premises to third parties. Such third parties and the Landlord Parties shall be entitled to rely on the Surrender Report.

 

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EXHIBIT 4

TENANT’S WORK; LANDLORD’S CONTRIBUTION

1. Performance of Tenant’s Work. Tenant, following the delivery of the Premises by Landlord and the full and final execution and delivery of the Lease to which this Exhibit is attached, shall have the right to perform alterations and improvements in the Premises to prepare the Premises for Tenant’s occupancy (the “Tenant’s Work”). In addition, Tenant’s Work may include Alterations to the exterior of the Building and to the roof of the Building (“Structural Work”) in order to enable Tenant to install pre-fabricated manufacturing equipment within the Premises. Landlord agrees that Landlord shall not unreasonably withhold its consent to the Structural Work; provided, however, that Landlord may, at Landlord’s election, require Tenant to remove such Structural Work and manufacturing equipment and to restore the exterior of the Building and the roof of the Building to the condition which the exterior of the Building and the roof of the Building were in immediately prior to the performance of the Structural Work. Tenant and its contractors shall not have the right to perform Tenant’s Work in the Premises unless and until Tenant has complied with all of the terms and conditions of Section 11 of the Lease, including, without limitation, approval by Landlord of the final plans for Tenant’s Work and the contractors to be retained by Tenant to perform such Tenant’s Work. Tenant shall be responsible for all elements of the design of Tenant’s plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of Tenant’s plans shall in no event relieve Tenant of the responsibility for such design. Landlord’s approval of Tenant’s plans for Tenant’s Work shall not be unreasonably withheld, conditioned or delayed. Landlord’s approval of the contractors to perform Tenant’s Work shall not be unreasonably withheld, conditioned or delayed. The parties agree that Landlord’s approval of the general contractor to perform Tenant’s Work shall not be considered to be unreasonably withheld if any such general contractor (i) does not have trade references reasonably acceptable to Landlord, (ii) does not maintain insurance as required pursuant to the terms of this Lease, (iii) does not have the ability to be bonded for the work in an amount of no less than 120% of the total estimated cost of Tenant’s Work, or (iv) is not licensed as a contractor in the Commonwealth of Massachusetts. Tenant acknowledges the foregoing is not intended to be an exclusive list of the reasons why Landlord may reasonably withhold its consent to a general contractor. Tenant shall ensure that all contractors performing Tenant’s Work include Landlord and such other parties as Landlord shall require as additional insureds on the insurance policies maintained by such contractors. Tenant shall provide to Landlord, for Landlord’s information, copies of all construction contracts for Tenant’s Work.

2. Budget and Landlord’s Share. Promptly after Landlord approves Tenant’s plans for Tenant’s Work, Tenant shall deliver to Landlord an itemized statement (the “Budget”) of the estimated hard and soft costs of Tenant’s Work (the “Estimated Cost”). Tenant shall, on a monthly basis, deliver to Landlord an updated Budget of the Estimated Cost, based upon the information then available to Tenant. “Landlord’s Share” shall be defined as follows: (i) if the Estimated Cost, as set forth in the then current Budget is less than, or equal to, the Maximum Amount of Landlord’s Contribution, as set forth in the Lease Summary Sheet, then Landlord’s Share shall be 100%, and (ii) if the Estimated Cost, as set forth in the then current Budget, is greater than the Maximum Amount of Landlord’s Contribution, then Landlord’s Share shall be equal to a fraction, expressed as a percentage, the numerator of which is the Maximum Amount of Landlord’s Contribution, and the denominator of which is the Estimated Cost, as set forth in the then current Budget.

 

EXHIBIT 4, PAGE 1


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

3. Definition of Landlord’s Contribution. Subject to the terms and conditions of this Exhibit, Landlord agrees to contribute up to the Maximum Amount of Landlord’s Contribution toward the cost of performing the Tenant’s Work in preparation of Tenant’s occupancy of the Premises. Landlord’s Contribution may only be used for the costs (the “Permitted Costs”) incurred (i) in preparing design and construction documents and mechanical and electrical plans for the Tenant’s Work (collectively, the “Soft Costs”), and (ii) the hard costs in connection with the Tenant’s Work, including construction management fees, if any (collectively, the “Hard Costs”). No more than $130,949.00 of the Maximum Amount of Landlord’s Contribution may be used to pay for Soft Costs. In no event shall Permitted Costs include the cost of security, telecommunications/data equipment, A/V systems, equipment, furniture or other items of personal property of Tenant.

4. Payment Procedures. Landlord shall, subject to the provisions of this Exhibit, pay Landlord’s Share of the amount requested by Tenant pursuant to each Requisition, as hereinafter defined, to Tenant or, in the event that the contractor performing any portion of Tenant’s Work records a mechanics lien which is not timely discharged or bonded over in accordance with Section 11.4 of the Lease, to the order of such contractor, within thirty (30) days after Landlord’s receipt of such Requisition. In no event shall Landlord be required to: (i) pay more than the Maximum Amount of Landlord’s Contribution towards Permitted Costs, (ii) disburse Landlord’s Contribution more than one time per month, or (iii) pay more than the Maximum Amount of Landlord’s Contribution. Notwithstanding anything herein to the contrary, Landlord shall not be obligated to disburse any portion of Landlord’s Contribution during the continuance of an uncured monetary or material non-monetary default under the Lease, and Landlord’s obligation to disburse shall only resume when and if such default is cured. If Landlord declines to disburse any portion of Landlord’s Contribution based upon Tenant’s default as aforesaid, Tenant shall have the right, after Tenant cures such default, to resubmit a Requisition for payment of such portion of Landlord’s Contribution in accordance with the provisions of this Section 4, so long as the Lease is then in full force and effect. Landlord shall have the right, upon reasonable advance notice to Tenant, to inspect Tenant’s books and records relating to each Requisition in order to verify the amount thereof. If Landlord fails to timely pay any installment of Landlord’s Contribution pursuant to this Section 4, then Tenant may send Landlord a notice in an envelope that conspicuously states the following in bold caps: “TENANT NOTICE OF INTENTION TO EXERCISE OFF-SET” and which notice shall include an explicit statement that such notice is a notice delivered pursuant to this Section 4 and describing Landlord’s failure to make such payment and, if Landlord fails to make such payment to Tenant within ten (10) days following delivery of such notice, then Tenant may off-set against the Rent due hereunder an amount equal to such installment(s) of Landlord’s Contribution which Landlord fails to timely pay, together with interest at the Default Rate from the date on which such installment was due, until (i) Tenant is paid in full for such installment, or (ii) Landlord pays the balance of such installment to Tenant.

 

EXHIBIT 4, PAGE 2


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

5. Requisition. A “Requisition” shall be defined as the following documentation: (i) an application for payment and sworn statement of contractor substantially in the form of AIA Document G-702 covering all work for which disbursement is to be made to a date specified therein; (ii) a certification from an AIA architect substantially in the form of the Architect’s Certificate for Payment which is located on AIA Document G702, Application and Certificate of Payment; (iii) Contractor’s, subcontractor’s and material supplier’s waivers of liens which shall cover all Tenant’s Work for which disbursement is being requested and all other statements and forms required for compliance with the mechanics’ lien laws of the state in which the Premises is located, together with all such invoices, contracts, or other supporting data as Landlord or Landlord’s Mortgagee may reasonably require; (iv) a cost breakdown for each trade or subcontractor performing Tenant’s Work; (v) plans and specifications for Tenant’s Work, together with a certificate from an AIA architect that such plans and specifications comply in all material respects with all laws affecting the Building, Property and Premises (to the extent that such plans, specifications and certificate have not been previously submitted by Tenant to Landlord); and (vi) a request to disburse from Tenant containing an approval by Tenant of the work done and a good faith estimate of the cost to complete Tenant’s Work. In addition, the final Requisition (i.e., after the completion of Tenant’s Work, and prior to final disbursement of Landlord’s Contribution) shall include the following documentation: (1) general contractor and architect’s completion affidavits, (2) full and final waivers of lien from all contractors, subcontractors and material suppliers, (3) receipted bills covering all labor and materials expended and used, and (4) as-built plans of Tenant’s Work.

6. Outside Draw Date. If Tenant does not submit a request for payment of the entire Landlord’s Contribution to Landlord in accordance with the provisions contained in this Exhibit by the date that is twelve (12) months after the Term Commencement Date, any unused amount shall accrue to the sole benefit of Landlord, it being understood that Tenant shall not be entitled to any credit, abatement or other concession in connection therewith. Tenant shall be responsible for all applicable state sales or use taxes, if any, payable in connection with Tenant’s Work and/or Landlord’s Contribution.

7. This Exhibit shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease.

 

EXHIBIT 4, PAGE 3


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

EXHIBIT 5

FORM OF LETTER OF CREDIT

IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER _____________

ISSUE DATE: ______________

 

ISSUING BANK:

SILICON VALLEY BANK

3003 TASMAN DRIVE

2ND FLOOR, MAIL SORT HF210

SANTA CLARA, CALIFORNIA 95054

BENEFICIARY:

                                             
                                             
                                             
                                             

APPLICANT:

                                             
                                             
                                             
                                             
AMOUNT:    US$_________ (____________ AND XX/100 U.S. DOLLARS)
EXPIRATION DATE:                            

 

PLACE OF EXPIRATION:

   ISSUING BANK’S COUNTERS AT ITS ABOVE ADDRESS

DEAR SIR/MADAM:

WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF______ IN YOUR FAVOR AVAILABLE BY PAYMENT AGAINST YOUR PRESENTATION TO US OF THE FOLLOWING DOCUMENT:

1. BENEFICIARY’S SIGNED AND DATED STATEMENT STATING AS FOLLOWS:

 

EXHIBIT 5, PAGE 1


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

“THE BENEFICIARY IS ENTITLED TO DRAW UPON THIS LETTER OF CREDIT (IN THE AMOUNT OF THE DRAFT SUBMITTED HEREWITH) PURSUANT TO THIS LEASE (THE “LEASE”) DATED FEBRUARY __, 2019, BY AND BETWEEN KING 4 HARTWELL PLACE, LLC, AS LANDLORD, AND CODIAK BIOSCIENCES, INC., AS TENANT, AND/OR ANY AMENDMENT TO THE LEASE OR ANY OTHER AGREEMENT BETWEEN SUCH PARTIES RELATED TO THE LEASE. THE AMOUNT HEREBY DRAWN UNDER THE LETTER OF CREDIT IS US$______________, WITH PAYMENT TO BE MADE TO THE FOLLOWING ACCOUNT: [INSERT WIRE INSTRUCTIONS (TO INCLUDE NAME AND ACCOUNT NUMBER OF THE BENEFICIARY)”

PARTIAL DRAWS AND MULTIPLE PRESENTATIONS ARE ALLOWED.

THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR AN ADDITIONAL PERIOD OF ONE YEAR, WITHOUT AMENDMENT, FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE UNLESS AT LEAST 45 DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE WE SEND TO YOU A NOTICE BY REGISTERED OR CERTIFIED MAIL OR OVERNIGHT COURIER SERVICE AT THE ABOVE ADDRESS THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE THEN CURRENT EXPIRATION DATE. IN NO EVENT SHALL THIS LETTER OF CREDIT BE AUTOMATICALLY EXTENDED BEYOND MARCH 31, 2030.

ALL DEMANDS FOR PAYMENT SHALL BE MADE BY PRESENTATION OF THE REQUIRED DOCUMENTS ON A BUSINESS DAY AT OUR OFFICE (THE “BANK’S OFFICE”) AT: SILICON VALLEY BANK, 3003 TASMAN DRIVE, MAIL SORT HF 210, SANTA CLARA, CA 95054, ATTENTION: GLOBAL TRADE FINANCE.

FACSIMILE PRESENTATIONS ARE ALSO PERMITTED. SHOULD BENEFICIARY WISH TO MAKE A PRESENTATION UNDER THIS LETTER OF CREDIT ENTIRELY BY FACSIMILE TRANSMISSION IT NEED NOT TRANSMIT THE ORIGINAL OF THIS LETTER OF CREDIT AND AMENDMENTS, IF ANY. EACH FACSIMILE TRANSMISSION SHALL BE MADE AT: (408) 496-2418 OR (408) 969-6510; AND UNDER CONTEMPORANEOUS TELEPHONE ADVICE TO: (408)              OR (408)             , ATTENTION: GLOBAL TRADE FINANCE. ABSENCE OF THE AFORESAID TELEPHONE ADVICE SHALL NOT AFFECT OUR OBLIGATION TO HONOR ANY DRAW REQUEST.

THIS LETTER OF CREDIT IS TRANSFERABLE IN WHOLE BUT NOT IN PART ONE OR MORE TIMES, BUT IN EACH INSTANCE ONLY TO A SINGLE BENEFICIARY AS TRANSFEREE AND FOR THE THEN AVAILABLE AMOUNT, ASSUMING SUCH TRANSFER TO SUCH TRANSFEREE WOULD BE IN COMPLIANCE WITH THEN APPLICABLE LAW AND REGULATION, INCLUDING BUT NOT LIMITED TO THE

 

EXHIBIT 5, PAGE 2


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

REGULATIONS OF THE U.S. DEPARTMENT OF TREASURY AND U.S. DEPARTMENT OF COMMERCE. AT THE TIME OF TRANSFER, THE ORIGINAL LETTER OF CREDIT AND ORIGINALS OR COPIES OF ALL AMENDMENTS, IF ANY, TO THIS LETTER OF CREDIT MUST BE SURRENDERED TO US AT OUR ADDRESS INDICATED IN THIS LETTER OF CREDIT TOGETHER WITH OUR TRANSFER FORM ATTACHED HERETO AS EXHIBIT A DULY EXECUTED. THE CORRECTNESS OF THE SIGNATURE AND TITLE OF THE PERSON SIGNING THE TRANSFER FORM MUST BE VERIFIED BY BENEFICIARY’S BANK. APPLICANT SHALL PAY OUR TRANSFER FEE OF 14 OF 1% OF THE TRANSFER AMOUNT (MINIMUM US$250.00) UNDER THIS LETTER OF CREDIT. HOWEVER, APPLICANT’S PAYMENT OF SUCH TRANSFER FEE SHALL NOT BE A CONDITION OF SUCH TRANSFER. EACH TRANSFER SHALL BE EVIDENCED BY EITHER (1) OUR ENDORSEMENT ON THE REVERSE OF THE LETTER OF CREDIT AND WE SHALL FORWARD THE ORIGINAL OF THE LETTER OF CREDIT SO ENDORSED TO THE TRANSFEREE OR (2) OUR ISSUING A REPLACEMENT LETTER OF CREDIT TO THE TRANSFEREE ON SUBSTANTIALLY THE SAME TERMS AND CONDITIONS AS THE TRANSFERRED LETTER OF CREDIT (IN WHICH EVENT THE TRANSFERRED LETTER OF CREDIT SHALL HAVE NO FURTHER EFFECT).

IF ANY INSTRUCTIONS ACCOMPANYING A DRAWING UNDER THIS LETTER OF CREDIT REQUEST THAT PAYMENT IS TO BE MADE BY TRANSFER TO YOUR ACCOUNT WITH ANOTHER BANK, WE WILL ONLY EFFECT SUCH PAYMENT BY FED WIRE TO A U.S. REGULATED BANK, AND WE AND/OR SUCH OTHER BANK MAY RELY ON AN ACCOUNT NUMBER SPECIFIED IN SUCH INSTRUCTIONS EVEN IF THE NUMBER IDENTIFIES A PERSON OR ENTITY DIFFERENT FROM THE INTENDED PAYEE.

THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES (ISP98), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590.

 

 

  

 

AUTHORIZED SIGNATURE    AUTHORIZED SIGNATURE

 

EXHIBIT 5, PAGE 3


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER __________________

EXHIBIT A

FORM OF TRANSFER FORM

DATE: ____________________

 

TO:  SILICON VALLEY BANK
3003 TASMAN DRIVE
SANTA CLARA, CA 95054
ATTN: GLOBAL TRADE FINANCE
STANDBY LETTERS OF CREDIT

  

RE:  IRREVOCABLE STANDBY LETTER OF CREDIT
NO. _____________ ISSUED BY
SILICON VALLEY BANK, SANTA CLARA
L/C AMOUNT: ___________________

GENTLEMEN:

FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:

 

 

(NAME OF TRANSFEREE)

 

(ADDRESS)

ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF CREDIT UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS TRANSFER.

BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF CREDIT ARE TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS, WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS, AND WHETHER NOW EXISTING OR HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECTLY TO THE TRANSFEREE WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.

 

EXHIBIT 5 PAGE 4


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO EITHER (1) ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER, OR (2) ISSUE A REPLACEMENT LETTER OF CREDIT TO THE TRANSFEREE ON SUBSTANTIALLY THE SAME TERMS AND CONDITIONS AS THE TRANSFERRED LETTER OF CREDIT (IN WHICH EVENT THE TRANSFERRED LETTER OF CREDIT SHALL HAVE NO FURTHER EFFECT).

 

SINCERELY,

                        

SIGNATURE AUTHENTICATED

 

   

(BENEFICIARY’S NAME)

    The name(s), title(s), and signature(s) conform to that/those on file with us for the company and the signature(s) is/are authorized to execute this instrument.

 

   

 

(SIGNATURE OF BENEFICIARY)

   

 

–                                     (Name of Bank)

 

   

 

(NAME AND TITLE)

   

 

–                                   (Address of Bank)

   

 

   

 

–                                 (City, State, ZIP Code)

   

 

   

 

–                             (Authorized Name and Title)

   

 

   

 

–                                 (Authorized Signature)

   

 

   

 

–                               (Telephone number)

 

EXHIBIT 5, PAGE 5


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

EXHIBIT 6

LANDLORD’S SERVICES

Hot/cold water to restrooms

Electricity for Common Areas

Management services

Grounds maintenance (including snow and ice removal)

Removal of trash from the common dumpster

 

EXHIBIT 6, PAGE 1


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

EXHIBIT 7

TENANT’S HAZARDOUS MATERIALS

[***]

 

EXHIBIT 7, PAGE 1


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

EXHIBIT 8

RULES AND REGULATIONS

 

A.

General

 

1.

Tenant and its employees shall not in any way obstruct the sidewalks, halls, stairways, or exterior vestibules of the Building, and shall use the same only as a means of passage to and from their respective offices. At no time shall Tenants permit its employees, contractors, or other representatives to loiter in Common Areas or elsewhere in and about the Property.

 

2.

Corridor doors, when not in use, shall be kept closed.

 

3.

Areas used in common by tenants shall be subject to such regulations as are posted therein.

 

4.

Any Tenant or vendor sponsored activity or event in the Common Area must be approved and scheduled through Landlord’s representative, which approval shall not be unreasonably withheld.

 

5.

No animals, except Seeing Eye dogs, shall be brought into or kept in, on or about the Premises or Common Areas.

 

6.

Alcoholic beverages (without Landlord’s prior written consent), illegal drugs or other illegal controlled substances are not permitted in the Common Areas, nor will any person under the influence of the same be permitted in the Common Areas. Landlord reserves the right to exclude or expel from the Building any persons who, in the judgment of the Landlord, is under the influence of alcohol or drugs, or shall do any act in violation of the rules and regulations of the Building.

 

7.

No firearms or other weapons are permitted in the Common Areas.

 

8.

No fighting or “horseplay” will be tolerated at any time in the Common Areas.

 

9.

Tenant shall not cause any unnecessary janitorial labor or services in the Common Areas by reason of Tenant’s carelessness or indifference in the preservation of good order and cleanliness.

 

10.

Smoking and discarding of smoking materials by Tenant and/or any Tenant Party is permitted only in exterior locations designated by Landlord. Tenant will instruct and notify its employees and visitors of such policy.

 

11.

Bicycles and other vehicles are not permitted inside or on the walkways outside the Building, except in those areas specifically designated by Landlord for such purposes.

 

EXHIBIT 8, PAGE 1


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

 

12.

Tenant shall not operate or permit to be operated on the Premises any coin or token operated vending machine or similar device (including, without limitation, telephones, lockers, toilets, scales, amusement devices and machines for sale of beverages food, candy, cigarettes or other goods), except for those vending machines or similar devices which are for the sole and exclusive use of tenant’s employees.

 

13.

Canvassing, soliciting, and peddling in or about the Building is prohibited. Tenant, its employees, agents and contractors shall cooperate with said policy, and Tenant shall cooperate and use best efforts to prevent the same by Tenant’s invitees.

 

14.

Fire protection and prevention practices implemented by the Landlord from time to time in the Common Areas, including participation in fire drills, must be observed by Tenant at all times.

 

15.

Except as provided for in the Lease, no signs, advertisements or notices shall be painted or affixed on or to any windows, doors or other parts of the Building that are visible from the exterior of the Building unless approved in writing by the Landlord.

 

16.

The restroom fixtures shall be used only for the purpose for which they were constructed and no rubbish, ashes, or other substances of any kind shall be thrown into them. Tenant will bear the expense of any damage resulting from misuse.

 

17.

Tenant will not interfere with or obstruct any perimeter heating, air conditioning or ventilating units.

 

18.

Tenant shall utilize Waltham Pest Control Service or such other pest control service approved by Landlord (which approval shall not be unreasonably withheld) to control pests in the Premises.

 

19.

Except as included in Landlord’s Services, tenants shall bear the cost and expense of such pest control services.

 

20.

Tenant shall not install, operate or maintain in the Premises or in any other area of the Building, any electrical equipment which does not bear the U/L (Underwriters Laboratories) seal of approval (other than in connection with the development of electronic equipment which is part of the ordinary operations of the Tenant), or which would overload the electrical system or any part thereof beyond its capacity for proper, efficient and safe operation as determined by Landlord, taking into consideration the overall electrical system and the present and future requirements of the Building.

 

21.

Tenants shall not perform improvements or alterations within the Building or their Premises, if the work has the potential of disturbing the fireproofing which has been applied on the surfaces of structural steel members, without the prior written consent of Landlord.

 

EXHIBIT 8, PAGE 2


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

22.

Tenant shall manage its waste removal program, at its sole cost and expense, keeping any recyclables, garbage, trash, rubbish and refuse in vermin-proof containers for Tenant’s sole use within the Landlord designated area until removed.

 

23.

Lab operators who travel outside lab space must abide by the one glove rule and remove lab coats where predetermined.

 

24.

Chemical lists and MSDS sheets must be readily available at a centralized location of which Landlord has been provided prior notice. In the event of an emergency, first responders will require this information in order to properly evaluate the situation.

 

25.

Tenant shall provide Landlord, in writing, the names and contact information of two (2) representatives authorized by Tenant to request Landlord services, either billable or non-billable and to act as a liaison for matters related to the Premises.

 

B.

Access & Security

 

1.

Landlord reserves the right to close and keep locked all entrance and exit doors of the Building during the hours Landlord may deem advisable for the adequate protection of the Property. Use of the Building and the leased premises before 8 AM or after 6 PM, or any time during Saturdays, Sundays or legal holidays shall be allowed only to persons with a key/card key to the Building or guests accompanied by such persons. Any persons found in the Building after hours without such keys/card keys are subject to the surveillance of building staff.

 

2.

Tenant shall not place any additional lock or locks on any exterior door in the Premises or Building or on any door in the Building core within the Premises, including doors providing access to the telephone and electric closets and the slop sink, without Landlord’s prior written consent. A reasonable number of keys to the locks on the doors in the Premises shall be furnished by Landlord to Tenant at the cost of Tenant, and Tenant shall not have any duplicate keys made. All keys shall be returned to Landlord at the expiration or earlier termination of this Lease.

 

3.

Landlord may from time to time adopt appropriate systems and procedures for the security or safety of the Building, its occupants, entry and use, or its contents, provided that Tenant shall have access to the Building 24 hours per day, 7 days a week. Tenant, Tenant’s agents, employees, contractors, guests and invitees shall comply with Landlord’s reasonable requirements relative thereto.

 

4.

Tenant acknowledges that Property security problems may occur which may require the employment of extreme security measures in the day-to-day operation of the Common Areas. Accordingly, Tenant agrees to cooperate and cause its employees, contractors, and other representatives to cooperate fully with Landlord in the implementation of any reasonable security procedures concerning the Common Areas.

 

EXHIBIT 8, PAGE 3


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

5.

Tenant and its employees, agents, contractors, invitees and licensees are limited to the Premises and the Common Areas. Tenants and its employees, agents, contractors, invitees and licensees may not enter other areas of the Project (other than the Common Areas) except when accompanied by an escort from the Landlord.

 

C.

Shipping/Receiving

 

1.

Dock areas exterior to the Building shall not be used for storage or staging by Tenant.

 

2.

In no case shall any truck or trailer be permitted to remain in a loading dock area for more than forty-eight (48) hours.

 

3.

There shall not be used in any Common Area, either by Tenant or by delivery personnel or others, in the delivery or receipt of merchandise, any hand trucks, except those equipped with rubber tires and sole guards.

 

4.

Lab operators carrying any lab related materials may only travel within the Premises. At no time should any lab materials travel in the Common Areas.

 

5.

Any dry ice brought into the building must be delivered through the loading dock serving the Premises.

 

6.

All nitrogen tanks must travel through the loading dock serving the Premises and should never be left unattended outside of the Premises.

 

EXHIBIT 8, PAGE 4


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

EXHIBIT 9

INSURANCE REQUIREMENTS FOR TENANT’S CONTRACTORS

Tenant shall, at its own expense, maintain and keep in force, or cause to be maintained and kept in force by any general contractors, sub-contractors or other third party entities where required by contract, throughout any period of alterations to the Premises or the Building by Tenant, the following insurance coverages:

(1) Property Insurance. “All-Risk” or “Special” Form property insurance, and/or Builders Risk coverage for major renovation projects, including, without limitation, coverage for fire, earthquake and flood; boiler and machinery (if applicable); sprinkler damage; vandalism; malicious mischief coverage on all equipment, furniture, fixtures, fittings, tenants work, improvements and betterments, business income, extra expense, merchandise, inventory/stock, contents, and personal property located on or in the Premises. Such insurance shall be in an amount equal to the full replacement cost of the aggregate of the foregoing and shall provide coverage comparable to the coverage in the standard ISO “All-Risk” or “Special” form, when such coverage is supplemented with the coverages required above. Property policy shall also include coverage for Plate Glass, where required by written contract.

Builders Risk insurance coverage may be provided by the general contractor on a blanket builders risk policy with limits adequate for the project, and evidencing the additional insureds as required in the Lease.

(2) Liability Insurance. General Liability, Umbrella/Excess Liability, Workers Compensation and Auto Liability coverage as follows:

 

(a)    General Liability    $1,000,000   per occurrence
      $1,000,000   personal & advertising injury
      $2,000,000   products/completed operations aggregate
      $2,000,000   general aggregate

The General Contractor is required to maintain, during the construction period and up to 3 years after project completion, a General Liability insurance policy, covering bodily injury, personal injury, property damage, completed operations, with limits to include a $1,000,000 limit for blanket contractual liability coverage and adding Landlord as additional insured as respects the project during construction and for completed operations up to 3 years after the end of the project. Landlord requires a copy of the ISO 20 10 11 85 Additional Insured endorsement, showing Landlord as an additional insured to the GC’s policy.

 

(b)    Auto Liability      $1,000,000 combined single limit (Any Auto) for bodily injury and property damage, hired and non-owned cover.
(c)    Workers Compensation   Statutory Limits
   Employers Liability      $1,000,000 each accident

 

EXHIBIT 9, PAGE 1


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           $1,000,000   each employee
      $1,000,000   policy limit

General Contractor shall ensure that any and all sub-contractors shall maintain equal limits of coverage for Workers Compensation/EL and collect insurance certificates verifying same.

 

(d)    Umbrella/Excess Liability    $3,000,000   per occurrence
      $3,000,000   aggregate

(e) Environmental Insurance – To the extent required by Landlord Contractors’ commercial general liability/umbrella insurance policy(ies) shall include Landlord and Landlord’s designees as additional insureds’, and shall include a primary non-contributory provision. Liability policy shall contain a clause that the insurer may not cancel or materially change coverage without first giving Landlord thirty (30) days prior written notice, except cancellation for non-payment of premium, in which ten (10) days prior written notice shall be required.

(3) Deductibles. If any of the above insurances have deductibles or self insured retentions, the Tenant and/or contractor (policy Named Insured) shall be responsible for the deductible amount.

All of the insurance policies required in this Exhibit 9 shall be written by insurance companies which are licensed to do business in the State where the property is located, or obtained through a duly authorized surplus lines insurance agent or otherwise in conformity with the laws of such state, with an A.M. Best rating of at least A and a financial size category of not less than VII. Tenant shall provide Landlord with certificates of insurance upon request, prior to commencement of the Tenant/contractor work, or within thirty (30) days of coverage inception and subsequent renewals or rewrites/replacements of any cancelled/non-renewed policies.

 

EXHIBIT 9, PAGE 2


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EXHIBIT 10

PTDM

Parking and Transportation Demand Management

Report for The Hartwell Innovation Campus, Lexington, MA

Submitted to:

Town of Lexington

Planning Department

1625 Massachusetts Avenue

Lexington, MA 02420

Submitted by:

King 4 Hartwell Place LLC

King 101 Hartwell LLC

King 113 Hartwell LLC

King 115 Hartwell LLC

c/o Lincoln Property Company

200 CambridgePark Drive

Cambridge, Ma 02140

Submitted on:

September 1, 2017

 

EXHIBIT 10, PAGE 1


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Parking and Transportation Demand Management Update Report

September 1, 2017

OVERVIEW

As required by the Town of Lexington’s Planning Department, Minor Site Plan Reviews, dated November 2011, The Hartwell Innovation Campus is submitting this Parking and Transportation Demand Management (PTDM) Update Report for the following buildings:

 

   

4 Hartwell Place, Lexington, MA

 

   

101 Hartwell Avenue, Lexington, MA

 

   

113 Hartwell Avenue, Lexington, MA

 

   

115 Hartwell Avenue, Lexington, MA

4 Hartwell Place

This site is located behind 101 Hartwell Avenue and is a multi-tenant building with surface and garage parking. The 40,123 square foot building is currently occupied by three tenants: ReproCell USA Inc., occupying 10,724 square feet; Sekisui Diagnostics, LLC, occupying 18,707 square feet; and T2 BioSystems, Inc. occupying 10,692 square feet. There are approximately 107 employees in total at the site.

Parking

There is a surface parking lot along the front of the building, adjacent to the additional existing tenant entrances; this also leads to additional parking on the side of the building and on the first floor of the new garage, allowing for up to 171 approved parking spaces.

Of these 171 parking spots, 6 have been designated as high occupancy (HOV)/carpool vehicles and 6 as handicap,

Table 1a

Parking Inventory

 

Parking Type

   Number of Spaces

Compact/Full

   159

HOV/Carpool

   6

HP

   6

TOTAL

   171

 

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101 Hartwell Avenue

This site is a multi-tenant building with surface parking. The 41,335 square foot building is currently occupied by two tenants: Promedior Inc., occupying 7,700 square feet; and T2 BioSystems, Inc. occupying 33,635 square feet. There are approximately 85 employees in total at the site.

There is a surface parking lot along the front of the building, adjacent to the additional existing tenant entrances; this also leads to additional parking on the side of the building allowing for up to 133 approved parking spaces.

Of these 133 parking spots, 6 have been designated as high occupancy (HOV)/carpool vehicles and 6 as handicap.

Table 1a

Parking Inventory

 

Parking Type

   Number of Spaces

Full/Compact

   121

HOV/Carpool

   6

HP

   6

TOTAL

   133

113 Hartwell Avenue

This site is located directly adjacent to 101 Hartwell Avenue, and is also a multi-tenant building with surface and garage parking. The 103,800 square foot building is currently occupied by three tenants: Quanterix Corporation, occupying 30,655 square feet; Taris Corporation, occupying 19,802 square feet; and uniQure Corporation, occupying 53,343 square feet. The three tenants combined have approximately 278 employees on site.

115 Hartwell Avenue

This site is located directly adjacent to 113 Hartwell Avenue, and is a single tenant building with surface and garage parking. The 91,211 square foot building is currently occupied by WAVE Life Sciences USA, Inc. WAVE is occupying the building in phases and currently has 25 employees. WAVE is expected to grow to about 100 employees at 115 Hartwell.

113 Hartwell and 115 Hartwell Parking

There is a surface parking lot along the front of each building, adjacent to existing tenant entrances, an expansive surface parking area behind the buildings and a new parking garage adjacent to 4 Hartwell Place allowing for up to 369 approved parking spaces with 145 stalls in the garage provided at 4 Hartwell Place by Special Permit. Of the 514 spots, 7 have been designated as high occupancy (HOV)/carpool vehicles, 11 as handicap, and 8 designated for electric vehicle charging stations.

 

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[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Table 1b

Parking Inventory

 

Parking Type

   Number of Spaces

Compact/Full

   488

HOV/Carpool

   7

HP

   11

EV Charging

   8

TOTAL

   514

COMMUTING OPTIONS & METHODS

In 2017, onsite employees at The Hartwell Innovation Campus were surveyed to determine their commuting methods and preferences.

The origin for employees commuting to The Hartwell Innovation Campus is Lexington, Cambridge, Arlington, Boston and surrounding communities, as well as the North Shore, South Shore, Metro West, and Southern New Hampshire. Based on survey results, a relatively equal number of employees at the building are commuting short distances (<20 miles) and medium distances (20-40 Miles), while only 8% are commuting long distances (>40 miles).

 

EXHIBIT 10, PAGE 4


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Table 2

Commuting Distance (2017 data)

 

LOGO

Table 3

Commuting Methods (2017 data)

 

LOGO

As noted in the above chart, the majority of employees are commuting to work in SOV’s daily, while a small percentage are using alternative methods like carpooling, REV Shuttle, public transportation and bicycling. While SOV’s are still the primary mode of transportation at 91%, we are working toward a 10% decrease in SOV users from 2017 - 2018 as the growing population of employees use alternative transportation such as bicycles and the REV Shuttle. Additionally, we continue to encourage the public transportation options available to our tenants.

 

EXHIBIT 10, PAGE 5


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

MITIGATION PROGRAMS

The Hartwell Innovation Campus has developed and implemented an ongoing comprehensive Parking and Transportation Demand Management Plan designed to minimize the number of single occupancy vehicles (SOV) entering the site and encourage the use of alternate methods of transportation in an effort to reduce traffic volume on Hartwell Avenue.

We have implemented the following programs to encourage modes of alternative transportation such as bicycle/pedestrian trips, public transportation, ridesharing and shuttle services:

Membership to the 128 Business Council

The Hartwell Innovation Campus renewed the membership with the 128 Business Council in Spring of 2017. This partnership has provided our tenants with valuable resources provided by the 128 Business Council. Coupled with our on-site programs, we anticipate this mode of transportation will further reduce the percentage of employees commuting in SOV’s during the upcoming year.

Benefits Available to Employees Include:

 

   

Carpool matching Database

 

   

NuRide

 

   

Alewife/Hartwell Shuttle- THE REV

 

   

Guaranteed Ride Home

 

   

Individual transportation and route planning assistance

 

   

Bicycle route maps and route planning assistance

 

   

On-site commuter benefit events

 

   

On-line trip planning tools

The 128 Business Council is available to all Tenant employees, via on site events hosted by The Hartwell Innovation Campus or scheduled meetings for individual tenants, to promote the above programs.

Bike Share Program

To encourage bike trips, centrally located bike racks have been provided with the capacity for 62 bicycles. The quantity of bikes stored on the racks is monitored closely on a daily basis to ensure adequate space is available.

 

EXHIBIT 10, PAGE 6


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The Bikeshare program is designed to promote bike trips by providing tenants with a free and convenient opportunity to sign out a bicycle to pick-up lunch, do other local errands, or just enjoy a ride on the Minuteman Bikeway. To encourage use of the building’s shared bicycles, each building is equipped with an onsite shower. Each tenant also has the opportunity to request complimentary shower supplies through the Transportation Coordinator.

Public Transportation

The Hartwell Avenue area is currently serviced by 2 MBTA bus routes (#62, Bedford V.A. Hospital – Alewife Station & #76 Hanscom/Lincoln Lab – Alewife Station). Both bus routes are within walking or biking distance of The Hartwell Innovation Campus.

Information regarding public transportation options has been communicated to employees at The Hartwell Innovation Campus via email blasts and tenant meetings.

The Hartwell Innovation Campus recognizes the need for more public transportation options to and from Hartwell Avenue, and has been working closely with the Town and the Hartwell Association to establishing new amenities. The Hartwell Association holds meetings regularly throughout the year and gives the property owners on Hartwell Avenue an opportunity to gather and discuss common goals/purposes.

Shuttle Services

The Hartwell Innovation Campus co-hosted the first meeting of the Hartwell Association at 113 Hartwell Avenue, which marked the first time that property owners on Hartwell Avenue gathered with a common goal/purpose. Over the course of the last six years, a representative of the Hartwell Innovation Campus has attended numerous Hartwell Association meetings discussing the various commuting services available in hopes to collectively subsidize a commuter shuttle for workers commuting from Boston.

In spring of 2013, the Town of Lexington and the 128 Business Council applied for and were awarded a federal transportation grant to pilot a commuter shuttle that will provide direct service to Hartwell Avenue from the Alewife Red Line Station. The grant will cover 80% of the shuttle’s operation costs for the first year of operation, while 5 property owners and members of the Hartwell Association, agreed to subsidize 20% of the cost. This continues today, even though the grant is not available this year to the ownerships along Hartwell Avenue. The Hartwell Innovation Campus remains committed to the commuter shuttle and continues to contribute toward the cost.

Each Tenant has full access to this amenity at a nominal cost to the employee. The REV shuttle is fully equipped with wi-fi and runs Monday- Friday with three trips in the morning and three trips in the evening. The shuttle is operated and managed through the 128 Business Council which has a proven track record of successfully implementing shuttle services and is a leader in transportation policy development.

Benefits of REV Shuttle Trips

 

   

Less automobile traffic congestion

 

   

Reduced fuel consumption

 

   

Allows commuters to connect to the site through multiple modes of public transit including MBTA commuter rail from suburban locations

 

   

More relaxing because riders can read or catch up on work during the commute

 

EXHIBIT 10, PAGE 7


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Rideshare Program

The Hartwell Innovation Campus has established a Rideshare Program for each building. The Transportation Coordinator will be responsible for creating an electronic board, where tenants can post information and communicate with other commuters to arrange for transportation. Initially this program will focus on ride matching with other employees in the building, but if necessary could expand to include other tenants in the area.

Benefits of Rideshare Program

 

   

Less automobile traffic congestion

 

   

Reduced fuel consumption

 

   

Better air quality

 

   

Less expensive than SOV because of shared transportation costs

 

   

Less travel time if carpool/HOV lanes can be utilized

 

   

More relaxing because of shared driving responsibilities

Onsite Amenities

The Hartwell Innovation Campus will provide onsite amenities that will reduce the need for tenants to travel off site during the workday. These amenities include the construction of a Pavilion, central to 101, 113/115 Hartwell Avenue and 4 Hartwell Place, which will provide coffee and other refreshments. It will also serve as a gathering place for tenants to get out of their office environment and collaborate with others in the campus. Management will also continue to promote the Food Truck Program that provides a variety of lunch options to the campus. Onsite amenities will encourage the use of the REV Shuttle, the Rideshare Program, and other alternative means of transportation since tenants will not be dependent on SOV to access these conveniences.

We believe these services are crucial in attracting a younger workforce, most of whom are straight out of college, who would otherwise work in the Boston or Cambridge area without these essential amenities, in addition to decreasing single occupancy rides and transportation costs.

Communication

In a continuing effort to support alternative transportation, The Hartwell Innovation Campus is using several means to reach tenants and communicate information regarding alternative transportation programs.

Memorandums & Email Blasts

The Transportation Coordinator communicates with employees at each building through frequent emails and building memorandums announcing programs, incentives, reminders, and other useful information intended to decrease the use of SOV by those onsite.

 

EXHIBIT 10, PAGE 8


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Events

To incentivize employee participation in all programs, transportation management events are held throughout the year. The 128 Business Council was present to promote its programs and sign up employees on site. Complementary gift bags, including an MBTA map, a map of Eastern Massachusetts, and a Boston Bike map were provided to tenants.

Ongoing Management

The Hartwell Innovation Campus has continued to gain and improve its understanding of the building’s occupants and how to help change behaviors and attitudes toward commuting. Our message is clear; utilizing alternative methods of transportation not only to reduces traffic congestion in the area, but also reduces transportation costs and contributes to both a healthy lifestyle and environment.

Critical to ensuring the success of our PDTM Plan is the ongoing management of the programs. Management activities will include, but not be limited to the following:

*Appoint a Transportation Coordinator whose responsibilities will include the following:

*Coordinate Rideshare Board/Postings.

*Create a King Street Properties Hartwell Facebook Page (or similar on- line web site), which tenants can use to regarding rideshares.

*Provide tenants with updated information and options on alternative modes of transportation.

*Promote transportation options through events such as bicycle tune-up day, car wash for carpoolers, gas bucks for groups.

*Help in the creation of a place of residence database which will connect employees in the building who live in similar locations.

*Monitor and evaluate results of the PTDM Plan through tenant surveys.

*Ensure that specific language is included in all tenant leases which requires the tenant’s participation in the Hartwell Avenue Transportation Management Association.

*Take a leadership role in working with other landlords in the area to encourage cooperation and promotion of transportation options.

*Become active members in area transportation groups.

 

EXHIBIT 10, PAGE 9


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Over the next year we will continue to work towards this goal in the following ways:

Bikesharing

With a bike sharing program underway; we will continue to monitor the use of bikes to ensure the quantity of bikes meets tenant demand. To encourage growth of and participation in the program, over the next year, The Hartwell Innovation Campus will continue to:

*Perform maintenance to bicycles to ensure employees at the building feel safe signing them out to complete errands, go out to lunch, etc.

* Provide tenants with additional information regarding the program, the benefits of participating, and area businesses/activities that are within biking distance of the building.

* Continue to offer new incentives to keep employees at the building interested in participating.

* Continue to provide shared umbrellas and parkas for use in the inclement weather.

Ridesharing

While many commuters are hesitant of ridesharing for various reasons, the positive results (decreased commuting costs, decreased traffic congestion, improved environmental quality, etc.) make it an incredibly viable commuting alternative to SOV.

To help employees see the value in ridesharing and encourage them to participate, over the next year, The Hartwell Innovation Campus will continue to:

* Gather and present to employees data which will help them facilitate convenient ridesharing schedules through its partnership with the 128 Business Council.

* Host semi-annual tenant events with 128 Business Council to help promote benefits, answer questions, and spread the word of new programs.

* Continue to offer incentives for employees at the building participating in ridesharing opportunities such as free gas cards for ride sharing.

Public Transportation

Tenant surveying has confirmed that a large number of employees are commuting daily from the Cambridge area. As a member of the 128 Business Council and the Hartwell Association, The Hartwell Innovation Campus will continue to promote the shuttle from Alewife to Hartwell Avenue.

 

EXHIBIT 10, PAGE 10


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To increase the use of public transportation specifically, The Hartwell Innovation Campus will continue to:

* Provide MBTA maps to each building tenant for distribution to employees.

* Provide a free MBTA monthly pass for an employee with each building tenant who most regularly chooses public transportation as his/her commuting method.

*Provide a free Alewife/Hartwell Rev shuttle monthly pass for an employee who utilizes the service on a daily basis. This will be tracked by the Tenant Coordinator and the Landlord Representative from the company.

Parking Management/SOV Disincentives

The primary way in which SOV use will be discouraged for the entire site is through the reduction of parking spaces per s.f. of GFA. After the reconstruction of the parking lot, the parking ratio for all tenants was reduced to 3.0 spaces per 1000 s.f. GFA. 5% of the total parking spaces across the site will be dedicated for rideshare vehicles. Additionally, tenants who choose to commute in SOV’s will not be eligible for any incentive programs such as the “Gas Bucks for Groups” or “Car Wash for Carpoolers”.

The Hartwell Innovation Campus is committed to an increased awareness and participation in alternative methods of transportation and in the reduction of SOV at the Center. We look forward to the challenge of continuing to work with both tenants and neighbors to expand this knowledge and increase participation in programs that will benefit individuals, the site, and the growing Hartwell Avenue community.cv

 

EXHIBIT 10, PAGE 11


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EXHIBIT 11

FORM OF SNDA

SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT

THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (“Agreement”) is made and entered into as of this             day of                    , 2019, by and among CITIZENS BANK, NATIONAL ASSOCIATION, a national bank (“Lender”), CODIAK BIOSCIENCES, INC., a Delaware corporation (“Tenant”) and KING 4 HARTWELL PLACE LLC, a Delaware limited liability company (“Landlord”).

RECITALS

A. Lender has made a loan (the “Loan”) to Landlord which is secured in part by an Amended and Restated Mortgage, Financing Statement and Security Agreement made by Landlord in favor of Lender dated June 15, 2017 and filed with the Middlesex South Registry District of the Land Court (the “Registry District”), as Instrument No. 01762993 (as amended, from time to time, the “Mortgage”) and an Amended and Restated Assignment of Rents and Leases made by Landlord in favor of Lender dated June 15, 2017 and filed with the Registry District, as Instrument No. 01762994, covering certain property described on Exhibit A attached hereto (the “Property”), including the Premises (as hereafter defined).

B. Landlord is the obligor under the note which evidences the Loan (the “Note”).

C. Landlord and Tenant are parties to a lease dated as of                    , 2019 (the “Lease”), pursuant to which Tenant leases certain premises (the “Premises”) which constitutes or forms a portion of the Property covered by the Mortgage, all as more particularly described in the Lease.

D. The Lease is or may become (subject to this Agreement) subordinate in priority to the Mortgage.

E. Tenant wishes to obtain from Lender certain assurances that Tenant’s possession of the Premises will not (subject to this Agreement) be disturbed by reason of the enforcement of the Mortgage or a foreclosure of the lien thereunder.

F. Lender is willing to provide such assurances to Tenant upon and subject to the terms and conditions of this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the above, the reciprocal promises hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do mutually agree as follows:

 


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

1. Subordination. The Lease now is or shall become upon the mutual execution of this Agreement subject and subordinate in all respects to the Mortgage and to all renewals, modifications and extensions thereof, subject to the terms and conditions of this Agreement. Tenant hereby affirms that the Lease is in full force and effect and that the Lease has not been modified or amended. Lender acknowledges receipt of a copy of the Lease and hereby approves the same.

2. Landlord’s Default. From and after the date on which Tenant receives a fully executed copy of this Agreement, Tenant will not seek to terminate the Lease by reason of any act or omission of Landlord unless Tenant shall have given written notice of such act or omission to Lender (at Lender’s last address furnished to Tenant) and Lender shall not have remedied such act or omission within thirty (30) days following Lender’s receipt of such written notice or such longer period as may be provided to Lender in order to effect such remedy in accordance with this Paragraph 2. Lender shall have the right, but not the obligation, to remedy such act or omission, provided however that if the act or omission does not involve the payment of money from Landlord to Tenant and (i) is of such a nature that it could not be reasonably remedied within the thirty (30) day period aforesaid, or (ii) the nature of the act or omission or the requirements of local law require Lender to appoint a receiver or to foreclose on or commence legal proceedings to recover possession of the Property in order to effect such remedy and such legal proceedings and consequent remedy cannot reasonably be achieved within said thirty (30) days, then Lender shall have such further time as is reasonable under the circumstances to effect such remedy provided that Lender shall notify Tenant, within ten (10) days after receipt of Tenant’s notice, of Lender’s intention to effect such remedy and provided further that (a) in the case of (i) above, Lender commences such remedy within said thirty (30) day period or in the case of (ii) above, Lender promptly institutes legal proceedings to appoint a receiver for the Property or to foreclose on or recover possession of the Property within said thirty (30) day period and (b) thereafter prosecutes any such proceedings and/or remedy with due diligence to completion.

3. Non-Disturbance and Attornment. So long as Tenant is not in default under the Lease (beyond any period given Tenant to cure such default) as would entitle Landlord to terminate the Lease or would cause, without any further action of Landlord, the termination of the Lease or would entitle Landlord to dispossess Tenant thereunder, Lender will not disturb the peaceful and quiet possession or right of possession of the Premises by Tenant nor shall the Lease or its appurtenances be extinguished by reason of any Foreclosure (as hereinafter defined) or otherwise, nor join Tenant as a party in any action or proceeding brought pursuant to the Mortgage.

In the event that Lender or its successors or assigns, as defined in Paragraph 5 hereof (“Successor Landlord”) acquires the interest of Landlord or comes into the possession of or acquires title to the Premises (the “Succession”) by reason of the foreclosure (judicial or non-judicial) or enforcement of the Mortgage (including a private power of sale) or the obligations secured thereby or by a conveyance in lieu thereof or other conveyance or as a result of any other means (any or all of the foregoing hereinafter referred to as a “Foreclosure”), then the Lease and all appurtenances thereto shall remain in full force and effect and Tenant shall be bound to Successor Landlord under all of the provisions of the Lease for the balance of the term thereof (including any extensions or renewals thereof which may be effected in accordance with any

 

13


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

options contained in the Lease) with the same force and effect as if Successor Landlord was Landlord under the Lease, and Tenant shall attorn to Successor Landlord as its landlord, such attornment to be effective and self-operative, without the execution of any further instruments on the part of any of the parties hereto, immediately upon the Succession; and further, in such event, Successor Landlord shall be bound to Tenant under all of the provisions of the Lease, and Tenant shall, from and after such Succession, have the same remedies against Successor Landlord for the breach of any agreement contained in the Lease that Tenant might have had under the Lease against Landlord thereunder provided, however, that Successor Landlord shall not be:

3.2 liable for any act or omission of any prior landlord (including Landlord) unless Tenant shall have given notice (pursuant to Paragraph 2 hereof) of such act or omission to the party who was then holder of the Mortgage (whether or not such holder elected to cure or remedy such act or omission); or

3.3 subject to any claims or offsets (except those expressly permitted under the Lease) or defenses which Tenant might have against any prior landlord (including Landlord) unless Tenant shall have given notice (pursuant to Paragraph 2 hereof) of the state of facts or circumstances under which such offset or defense arose to the party who was the then holder of the Mortgage (whether or not such holder elected to cure or remedy such condition); or

3.4 bound by any rent or additional rent which Tenant might have paid to any prior landlord (including Landlord) more than thirty (30) days in advance of the due date under the Lease; or

3.5 bound by any security deposit which Tenant may have paid to any prior landlord (including Landlord), unless such deposit is available to the party who was the holder of the Mortgage at the time of a Foreclosure; or

3.6 bound by a modification or amendment to the Lease and made without its written consent unless subsequently affirmed by an intervening holder of the Mortgage.

Upon receipt by Tenant of written notice from Lender or Successor Landlord stating that Lender or Successor Landlord is entitled to receive the rents under the Lease directly from Tenant, Tenant shall pay all rents under the Lease directly to Lender or Successor Landlord, as the case may be. Landlord, by its execution hereof, hereby authorizes Tenant to accept such direction from Lender or Successor Landlord and to pay the rents directly to Lender or Successor Landlord and waives all claims against Tenant for any sums so paid at Lender’s or Successor Landlord’s direction. Tenant may conclusively rely upon any written notice Tenant receives from Lender or Successor Landlord notwithstanding any claims by Landlord contesting the validity of any term or condition of such notice, including any default claimed by Lender or Successor Landlord, and Tenant shall have no duty to inquire into the validity or appropriateness of any such notice.

4. Notices. All notices, demands, or requests, and responses thereto, required or permitted to be given pursuant to this Agreement shall be in writing and shall be sent postage prepaid by certified or registered mail return receipt requested, or may be forwarded by United States Express Mail Service, or by Federal Express or other private overnight delivery service provided that a receipt or proof of delivery thereof can be produced, addressed as follows:

 

14


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   To Lender:    Citizens Bank, National Association   
           25 Mall Road – Suite 203        
      Burlington, MA 01803   
      Attention: Sean T. Randall, Senior Vice President   
   To Tenant:    Prior to the Rent Commencement Date:   
      Codiak Biosciences, Inc.   
      500 Technology Square, 9th Floor   
      Cambridge, MA 02139   
      After the Rent Commencement Date:   
      Codiak Biosciences, Inc.   
      4 Hartwell Place   
      Lexington, MA 02421   
   To Landlord:    King 4 Hartwell Place LLC   
      c/o King Street Properties   
      800 Boylston Street, Suite 1570   
      Boston, MA 02199   

or to such other address as the parties may designate in writing. All such notices shall be deemed delivered when actually received or refused by the other party.

5. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns, it being understood that the obligations herein of Lender shall extend to it in its capacity as Lender under the Mortgage and to its successors and assigns, including anyone who shall have succeeded to its interest or to Landlord’s interest in the Premises or acquired possession thereof by Foreclosure or otherwise.

6. Interpretation; Governing Law. The interpretation, validity and enforcement of this Agreement shall be governed by and construed under the internal laws of the state where the Property is located, excluding its principles of conflict of laws.

7. Counterparts. To facilitate execution, this document may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document. It shall not be necessary in making proof of this document to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages.

[Signature Page Follows]

 

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Executed as a sealed instrument as of the date first above written.

 

LENDER:
CITIZENS BANK, NATIONAL ASSOCIATION
By:  

 

  Name:      
  Title:      
TENANT:

CODIAK BIOSCIENCES, INC.,

a Delaware corporation

By:  

 

  Name:      
  Title:      
LANDLORD:

KING 4 HARTWELL PLACE LLC,

a Delaware limited liability company

By:   King Maris LLC, its operating partner
          By:   King Street Properties Investments LLC, its manager
    By:  

 

      Name:  

 

 

16


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COMMONWEALTH OF MASSACHUSETTS

COUNTY OF                             

Before me, the undersigned notary public, on this                  day of                              , 2019, personally appeared                                                  , who is personally known to me or was proved to me through a current document issued by a federal or state government agency bearing a photographic image of the signatory’s face and signature, to be the person whose name is signed to the foregoing instrument and acknowledged to me that he/she signed it as his/her free act and deed and the free act and deed of CITIZENS BANK, NATIONAL ASSOCIATION, as                                  for Citizens Bank, National Association, for its stated purpose.

 

 

Notary Public

[notary seal]

 

STATE/COMMONWEALTH OF

COUNTY OF                             

Before me, the undersigned notary public, on this                  day of                         , 2019, personally appeared                                                  , who is personally known to me or was proved to me through a current document issued by a federal or state government agency bearing a photographic image of the signatory’s face and signature, to be the person whose name is signed to the foregoing instrument and acknowledged to me that he/she signed it as his/her free act and deed and the free act and deed of                                         , as                                      for                                          , for its stated purpose.

 

 

Notary Public

[notary seal]

 

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COMMONWEALTH OF MASSACHUSETTS

COUNTY OF                             

Before me, the undersigned notary public, on this                  day of                            , 2019, personally appeared                                         , who is personally known to me or was proved to me through a current document issued by a federal or state government agency bearing a photographic image of the signatory’s face and signature, to be the person whose name is signed to the foregoing instrument and acknowledged to me that he signed it as his/her free act and deed as Manager of King Street Properties Investments LLC and the free act and deed of KING STREET PROPERTIES INVESTMENTS LLC, the free act and deed of KING MARIS LLC, and the free act and deed of KING 4 HARTWELL PLACE LLC, for its stated purpose.

 

 

Notary Public

[notary seal]

 

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EXHIBIT A

Legal Description of 4 Hartwell Place – Lexington, Massachusetts

The land, together with the improvements thereon, located in the City of Lexington, Middlesex County, Massachusetts, commonly known and numbered as 4 Hartwell Place and being bounded and described as follows:

Northeasterly by Hartwell Place, being a curving line, two hundred feet;

Southeasterly by Lot 7 as shown on plan hereinafter mentioned, four hundred eighteen and 82/100 feet;

Southwesterly by Lot 5 on said plan, five hundred sixteen and 79/100 feet;

Northwesterly by land now or formerly of the United States of America, three hundred three and 58/100 feet; and

Northerly by Lot 10 on said plan, three hundred seventy four and 57/100 feet

Said parcel is shown as Lot 9 on said plan, (Plan No. 31330D).

All of said boundaries are determined by the Land Court to be located as shown on a subdivision plan, as approved by the Land Court filed in the Land Registration Office, a copy of which is filed in the Registry of Deeds for the South Registry District of Middlesex County in Registration Book 835, Page 146, with Certificate No. 141096.

The above described land is subject to and has the benefit of the ditches as approximately shown on said plan at date of original decree (May 17, 1963).

So much of the above described land as is included within the area marked “Avigation Easement A-130-1-2-3” is subject to the easement set forth in the declaration of taking by the United States of America dated February 12, 1954, duly recorded in Book 8219, Page 421.

There is appurtenant to the above described land the right to use Hartwell Place in common with all others lawfully entitled thereto, for all purposes for which streets and ways may be used in the Town of Lexington, set forth in Deed Document No. 511667.

There is appurtenant to the above described land the right to use the twenty (20) feet wide drainage easement over Lot 10, on said plan in common with others entitled thereto, set forth in Deed Document No. 511667.

The above described land has the benefit of the Grant of Easement for utilities and construction purposes more particularly set forth in Deed Document No. 511667.

Being the same premises conveyed by Deed of Hartwell Lexington Limited Partnership to King 4 Hartwell Place, LP dated October 28, 2011 and filed with the Middlesex South Registry District of the Land Court as Document No. 01580316 and noted on Certificate of Title No. 249867.

 

EXHIBIT 12, PAGE 1


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EXHIBIT 12

ADDITIONAL PROVISIONS

I. RIGHT OF FIRST OFFER:

A. Grant of Option. Subject to the provisions of this Section I, Tenant shall have a one-time right of first offer (the “ROFO”) to lease the ROFO Premises at the time that the ROFO Premises become available for lease, as hereinafter defined. On the conditions (which conditions Landlord may waive, at its election, by written notice to Tenant at any time) that Tenant is not in default of its covenants and obligations under the Lease and that Codiak Biosciences, Inc., itself, together with any Affiliated Entity(ies) or Successor, is occupying at least seventy-five percent (75%) of the Premises then demised to Tenant, both at the time that Landlord is required to give Landlord’s Notice, as hereinafter defined, and as of the Term Commencement Date in respect of the ROFO Premises, Tenant shall have the following one-time right to lease the ROFO Premises, as hereinafter defined, when the ROFO Premises become available for lease to Tenant, as hereinafter defined.

B. Definition of RFO Premises. The “ROFO Premises” shall be defined as any space in the Building, when such area becomes available for lease to Tenant, as hereinafter defined, during the Term of this Lease. For the purposes of this Section I.B., the ROFO Premises shall be deemed to be “available for lease to Tenant” if, during the Term of this Lease, Landlord, in its sole judgment, determines that such area will become available for leasing to Tenant (i.e. when Landlord determines that the then current tenant of such ROFO Premises will vacate such ROFO Premises, and all Superior Rights (as hereinafter defined) with respect to such ROFO Premises have either lapsed unexercised or have been irrevocably waived by the current tenant of such ROFO Premises, and when Landlord intends to offer such area for lease). “Superior Rights” shall be defined as: (i) the right of Bicycle Therapeutics Inc. to extend or renew the term of its lease pursuant to its extension option set forth in its lease, and (ii) the rights of any existing tenant (i.e. any tenant of the Building whose lease was executed prior to the Execution Date of this Lease) to lease the ROFO Premises.

C. Procedures for Exercising RFO. At such time as either ROFO Premises becomes available for lease to Tenant, Landlord shall, subject to the provisions of this Section I, give a written offer (the “Offer”) to Tenant of the terms under which Landlord is prepared to lease the ROFO Premises to Tenant, including the Base Rent (which shall be based upon Landlord’s good faith judgment of the fair market rental value of the RFO Premises in question, Tenant’s improvement allowance, if any, renewal term and all other terms. Tenant may lease the RFO Premises under such terms, by delivering written notice (the “Acceptance”) to Landlord accepting such Offer within ten (10) business days after Landlord gives such Offer to Tenant. If Tenant disputes the Base Rent set forth in the Offer, Tenant shall have the right, in its Acceptance, to submit such dispute to appraisal (Tenant hereby confirming and agreeing that Tenant shall be unconditionally bound by the result of such appraisal). In such event, the Base Rent applicable to such ROFO Premises shall be determined in accordance with the same procedure set forth in Section 1.2(c) of the Lease, the parties hereby agreeing that Tenant’s acceptance will, for the purposes of Section 1.2(c), be considered to be Tenant’s Response Notice. If Tenant does not dispute the Base Rent set forth in the Offer, then Tenant shall conclusively be deemed to have agreed to the terms set forth in the Offer.

 

EXHIBIT 12, PAGE 1


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

D. Conditions to ROFO. The ROFO is subject to the following conditions, and, without limiting the foregoing, Landlord shall have no obligation to give an Offer to Tenant with respect to either ROFO Premises, or any portion thereof, if any of the following conditions (“Conditions”) are not satisfied:

(i) an Event of Default by Tenant (as said term is defined in Section 20 of the Lease) exists at the time that Landlord would otherwise deliver the Offer; or

(ii) no more than seventy-five percent (75%) of the Premises is sublet (other than to an Affiliated Entity or Successor, as defined in Section 13.7 of the Lease) at the time Landlord would otherwise deliver the Offer; or

(iii) the Lease has been assigned (other than to an Affiliated Entity or Successor) prior to the date Landlord would otherwise deliver the Offer; or

(iv) less than three (3) years remain in the Term; provided, however, that if, at the time that Landlord would otherwise be required to give an Offer to Tenant, Tenant has a right, pursuant to Section 1.2 of the Lease, to extend the Term which has not been waived or lapsed unexercised, then Landlord shall nevertheless give the Offer and Tenant may elect to exercise the ROFO Premises provided that, simultaneously with giving the Notice of Exercise, Tenant gives Landlord an Extension Notice under Section 1.2 of this Lease).

E. Termination of Right of First Offer. Tenant’s right to lease either ROFO Premises pursuant to this Section I shall, upon the earlier to occur of: (i) Tenant’s failure to give a timely Acceptance with respect to such ROFO Premises within the ten-(10)-business-day period provided in Section D above; or (ii) the date Landlord would have provided Tenant an Offer with respect to such ROFO Premises if Tenant had not failed to satisfy one or more of the Conditions set forth in this Section I, terminate, and Tenant shall have no further right to lease such ROFO Premises.

If Landlord gives Tenant an Offer to lease only a portion of a ROFO Premises, then Tenant’s right to lease such portion of such ROFO Premises pursuant to this Section I shall, upon the earlier to occur of: (i) Tenant’s failure to give a timely Acceptance with respect to such portion of such ROFO Premises within the ten-(10)-business-day period provided in Section D above; or (ii) the date Landlord would have provided Tenant an Offer with respect to such portion of such ROFO Premises if Tenant had not failed to satisfy one or more of the Conditions set forth in this Section I, terminate, and Tenant shall have no further right to lease such portion of such ROFO Premises.

 

EXHIBIT 12, PAGE 2


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

F. Terms of Lease Applicable ROFO Premises. The terms applicable to Tenant’s demise of the ROFO Premises, or any portion thereof, shall be upon the terms set forth in the applicable Offer, and otherwise upon the terms and conditions of the Lease, to the extent that the provisions of the Lease are not inconsistent with such Offer, and as follows:

(i) The term for the ROFO Premises shall, subject to clause (iii) below, commence upon the commencement date stated in the Offer and expire on the Expiration Date of the Lease (as it may be extended pursuant to Section 1.2 above).

(ii) Tenant shall pay Base Rent and Additional Rent for such ROFO Premises, or portion thereof, in accordance with the terms and conditions of the Offer, unless Tenant, in its Acceptance, submits its dispute as to Base Rent for such ROFO Premises to appraisal, in which event such Base Rent shall be determined by appraisal, as set forth above.

(iii) Such ROFO Premises shall be accepted by Tenant in its condition (including improvements and personalty, if any) and as-built configuration existing on the earlier of the date Tenant takes possession of such ROFO Premises, of portion thereof, or as of the date the term for such ROFO Premises, or portion thereof, commences, and Landlord shall have no obligation to provide any Landlord Contribution or free rent with respect to such ROFO Premises, or portion thereof, unless otherwise provided in such Offer.

G. Offering Amendment. If Tenant exercises the ROFO with respect to the ROFO Premises Landlord shall prepare an amendment (the “Offering Amendment”) adding such ROFO Premises, or portion thereof, to the Premises on the terms set forth in the Offer and reflecting the changes in the Base Rent, Rentable Square Footage of the ROFO Premises, Parking Spaces, and other mutually agreeable appropriate terms. A copy of the Offering Amendment shall be sent to Tenant within a reasonable time after Landlord’s receipt of the Acceptance sent by Tenant to Landlord, and, if the terms and conditions of the Offering Amendment are reasonably acceptable to Tenant, then Tenant shall execute and return the Offering Amendment to Landlord within fifteen (15) days thereafter, but an otherwise valid exercise of the ROFO shall be fully effective whether or not the Offering Amendment is executed.

H. If Tenant does not give Landlord a written Acceptance on or before the date (“Last Acceptance Date”) which is ten (10) business days after Landlord gives the Offer to Tenant, Landlord shall have the right to enter into a lease the subject RFO Premises on any terms to any party.

II. EMERGENCY GENERATORS

A. Existing Generator. Reference is made to the fact the Building is served by a 100kW emergency generator (the “Existing Generator”). Tenant shall have the right, subject to obtaining Landlord’s prior written approval, which approval shall not be unreasonably withheld, to connect its equipment in the Premises to the Existing Generator, provided that the aggregate electrical demand of all equipment connected by Tenant to the Existing Generator at any time shall not exceed Tenant’s pro rata share of the capacity of the Existing Generator. Landlord’s sole obligation to Tenant with respect to the Existing Generator shall be to contract with a reputable third party (“Generator Servicer”) to maintain the Existing Generator as per the manufacturer’s standard maintenance guidelines. Landlord shall have no obligation to supervise, oversee or confirm that the Generator Servicer is maintaining the Existing Generator per the manufacturer’s standard guidelines or otherwise, and Landlord shall have no obligation or liability to Tenant in the event that the Existing Generator is not operational.

 

EXHIBIT 12, PAGE 3


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

B. Tenant’s Generator. In addition to Tenant’s right to connect its equipment to the Existing Generator, as set forth above, Tenant shall have the right, at Tenant’s written election to demise the Generator Area, as hereinafter defined. In such event, Landlord shall demise and lease the Generator Area, as hereinafter defined, to Tenant, and Tenant shall hire and take the Generator Area from Landlord. The “Generator Area” shall be defined as an area outside of the Building, which shall be mutually agreed upon by Landlord and Tenant. Tenant shall have the right to use the Generator Area solely for the purpose of installing a concrete pad and for the installation and use of Tenant’s own emergency generator (“Tenant’s Generator”) in accordance with the provisions of this Section B. The Term with respect to the Generator Area shall commence as of the date that Tenant first commences work installing said concrete pad (“Commencement Date in respect of Tenant’s Generator”) and shall terminate as of the Expiration Date of the Lease, as such date may be extended pursuant to Section 1.2 of this Lease (Tenant’s Generator and the Generator Area are deemed to be the “Generator Premises”). Said demise of Tenant’s Generator Area shall be upon all of the same terms and conditions of the Lease, except as set forth herein. Tenant shall not install or operate Tenant’s Generator until Tenant has obtained and submitted to Landlord copies of all required governmental permits, licenses, and authorizations necessary for the installation and operation of Tenant’s Generator. In addition, Tenant shall comply with all reasonable construction rules and regulations promulgated by Landlord in the maintenance and operation of Tenant’s Generator. Tenant shall be permitted to use Tenant’s Generator Area solely for the maintenance and operation of Tenant’s Generator, and Tenant’s Generator and Generator Area are solely for the benefit of Tenant. All electricity generated by Tenant’s Generator may only be consumed by Tenant in the Premises.

(i) Tenant shall, at Tenant’s cost, landscape or screen, as directed by Landlord, the area around Tenant’s Generator Area.

(ii) Tenant shall have no obligation to pay Base Rent, costs and expenses of the Common Areas, or Taxes in respect of Tenant’s Generator Area.

(iii) Landlord shall have no obligation to provide any services including, without limitation, electric current, to Tenant’s Generator Area; provided, however, that Tenant, at Tenant’s sole cost, shall, subject to the provisions of this Lease (including, without limitation, Section 11 hereof) shall have the right to install wiring in locations designated by Landlord in order to connect Tenant’s Generator to Tenant’s electrical system serving the Prime Premises.

(iv) Tenant shall have no right to make any changes, alterations, additions, decorations or other improvements (collectively “Installations”) to Tenant’s Generator Area without Landlord’s prior written consent, which consent Landlord may withhold in its sole but bona fide business judgment.

(v) Tenant may remove Tenant’s Generator and any Installations at any time during the Term upon prior written notice to Landlord, provided that Tenant restores Tenant’s Generator Area to the same condition as the area surrounding Tenant’s Generator at the time of such removal.

 

EXHIBIT 12, PAGE 4


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(vi) Tenant shall be responsible for the cost of repairing any damage to the Building caused by the installation of Tenant’s Generator and/or any Installations.

(vii) Tenant shall have no right to sublet Tenant’s Generator Area or to assign its interest hereunder, other than to an Affiliated Entity or Successor as defined in Section 13.7 of this Lease.

(viii) To the maximum extent permitted by law, Tenant’s Generator and all Installations in Tenant’s Generator Area shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant in the event that Tenant’s Generator or any Installations are damaged for any reason, except to the extent caused by the negligent acts, negligent omissions or willful misconduct of Landlord or any Landlord Parties.

(ix) Tenant shall take Tenant’s Generator Area “as-is” in the condition in which Tenant’s Generator Area is in as of the Commencement Date in respect of Tenant’s Generator, without any obligation on the part of Landlord to prepare or construct Tenant’s Generator Area for Tenant’s use or occupancy. Without limiting the foregoing, Landlord makes no warranties or representations to Tenant as to the suitability of Tenant’s Generator Area for the installation and operation of Tenant’s Generator. Notwithstanding the foregoing, at Tenant’s written election, Tenant may include the installation of Tenant’s Generator on Tenant’s Generator Area as part of Landlord’s Work, in which event, the costs incurred by Landlord in installing so installing Tenant’s Generator shall be included as part of the Cost of Landlord’s Work.

(x) In addition to and without limiting Tenant’s obligations under the Lease, Tenant shall comply with all applicable environmental and fire prevention laws, ordinances and regulations in Tenant’s use of Tenant’s Generator Area.

(xi) In addition to and without limiting Tenant’s obligations under the Lease, Tenant covenants and agrees that Tenant’s use of Tenant’s Generator and Installations shall not adversely affect the insurance coverage for the Building. If for any reason, the installation or use of Tenant’s Generator and/or the Installations shall result in an increase in the amount of the premiums for such coverage, then Tenant shall be liable for the full amount of any such increase.

(xii) Tenant shall, at Tenant’s sole cost and expense, repair and maintain Tenant’s Generator and Installations.

(xiii) In addition to and without limiting the insurance provisions of the Lease, Tenant shall procure, keep in force and pay for Commercial General Liability Insurance in respect of Tenant’s Generator Area of not less than One Million ($1,000,000.00) Dollars in the event of personal injury to any number of persons or damage to property, arising out of any one occurrence and such insurance shall name Landlord as an additional insured party. Tenant shall have the right to maintain the aforesaid insurance under umbrella coverages.

 

EXHIBIT 12, PAGE 5

EX-10.13

[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Exhibit 10.13

COLLABORATION AND

LICENSE AGREEMENT

by and between

CODIAK BIOSCIENCES, INC.

and

JAZZ PHARMACEUTICALS IRELAND LIMITED

 

 


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

TABLE OF CONTENTS

 

Article 1. DEFINITIONS AND INTERPRETATION

     1  

Section 1.1

 

Definitions

     1  

Section 1.2

 

Certain Rules of Interpretation in this Agreement and the Schedules

     17  

Article 2. RESEARCH PROGRAMS

     18  

Section 2.1

 

Objective and Conduct of the Research Programs

     18  

Section 2.2

 

Term of the Research Programs

     19  

Section 2.3

 

Work Plans; Records, Selection of Development Candidates

     19  

Section 2.4

 

Subcontracting; Performance by Affiliates

     21  

Section 2.5

 

Additional Collaboration Target, Replacement Target and Revived Collaboration Targets and Research Program

     22  

Section 2.6

 

Transition Plan

     24  

Section 2.7

 

Governance of Research Programs

     24  

Section 2.8

 

Use of Materials

     27  

Article 3. LICENSING

     28  

Section 3.1

 

Licenses

     28  

Section 3.2

 

Sublicensing

     28  

Section 3.3

 

Use and Licensing of Platform-Related Third Party Technologies

     29  

Section 3.4

 

Reciprocal Technology

     30  

Section 3.5

 

No License

     30  

Section 3.6

 

No Exploitation in China

     30  

Article 4. DEVELOPMENT

     31  

Section 4.1

 

Early Development Program

     31  

Section 4.2

 

Later Product Development

     32  

Section 4.3

 

Joint Development Program

     32  

Section 4.4

 

Development Diligence and Standards of Conduct

     33  

Section 4.5

 

Development Records and Reports

     33  

Section 4.6

 

(Sub)contracts

     34  

Article 5. REGULATORY MATTERS

     35  

Section 5.1

 

Regulatory Filings and Approvals

     35  

Section 5.2

 

Regulatory Costs

     35  

Section 5.3

 

Product Withdrawals and Recalls

     35  

Section 5.4

 

Cooperation with Governmental Authorities

     36  

Section 5.5

 

Standards of Conduct

     36  

Section 5.6

 

(Sub)contracts

     36  

Article 6. COMMERCIALIZATION

     36  

Section 6.1

 

Overview

     36  

Section 6.2

 

Commercialization in the Shared Territory after Development and Commercialization Option Exercise

     36  

Section 6.3

 

Commercialization Reports

     37  

Section 6.4

 

Sales and Distribution

     37  

Section 6.5

 

(Sub)contracts

     37  

 

i


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Article 7. MANUFACTURE AND SUPPLY

     38  

Section 7.1

 

Overview

     38  

Section 7.2

 

Manufacturing by Codiak for Jazz

     38  

Section 7.3

 

Manufacturing by Jazz

     39  

Section 7.4

 

Manufacturing Technology Transfer

     39  

Section 7.5

 

Manufacturing Records and Reports

     40  

Section 7.6

 

(Sub)contracts; Affiliates

     40  

Article 8. PAYMENTS AND RECORDS

     40  

Section 8.1

 

Upfront Fees

     40  

Section 8.2

 

Early Development Costs

     40  

Section 8.3

 

Codiak Clinical Development Costs

     40  

Section 8.4

 

Later Development Costs

     41  

Section 8.5

 

Reporting and Invoicing Development Costs and Shared Research Costs

     41  

Section 8.6

 

Budget Overages for JDPs

     41  

Section 8.7

 

Commercialization Costs; Net Profit/Net Loss

     42  

Section 8.8

 

Development Milestone Payments

     42  

Section 8.9

 

Sales Milestone Payments

     43  

Section 8.10

 

Royalties Payable

     44  

Section 8.11

 

Royalty Payment Terms

     45  

Section 8.12

 

Right to Credit or Offset

     45  

Section 8.13

 

Payment Method

     45  

Section 8.14

 

Invoices

     45  

Section 8.15

 

Late Payments

     45  

Section 8.16

 

Exchange Control

     46  

Section 8.17

 

Taxes

     46  

Section 8.18

 

Reports; Currency; Records

     46  

Section 8.19

 

Audits

     47  

Section 8.20

 

Confidential Financial Information

     47  

Article 9. CONFIDENTIALITY

     47  

Section 9.1

 

Non-Disclosure Obligations

     47  

Section 9.2

 

Permitted Disclosures

     48  

Section 9.3

 

Press Releases and Other Communications to Third Parties

     50  

Section 9.4

 

Publications and Presentations

     51  

Section 9.5

 

Use of Name

     51  

Section 9.6

 

Return of Confidential Information

     51  

Article 10. INTELLECTUAL PROPERTY

     52  

Section 10.1

 

Disclosure of Inventions

     52  

Section 10.2

 

Ownership of Intellectual Property

     52  

Section 10.3

 

Patent Prosecution and Maintenance

     53  

Section 10.4

 

Enforcement of Patent Rights

     56  

Section 10.5

 

Separate Representation

     57  

Section 10.6

 

Third Party Actions

     57  

Section 10.7

 

Invalidity or Unenforceability Defenses or Actions

     58  

Section 10.8

 

Trademarks; Domain Names

     58  

 

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Article 11. REPRESENTATIONS AND WARRANTIES; COVENANTS

     59  

Section 11.1

 

Mutual Representations, Warranties and Covenants

     59  

Section 11.2

 

Additional Representations and Warranties of Codiak

     62  

Section 11.3

 

Codiak’s Representations and Warranties Regarding Proposed Codiak Platform Additions

     65  

Section 11.4

 

Additional Covenants of Codiak

     65  

Section 11.5

 

DISCLAIMER OF WARRANTIES

     66  

Article 12. INDEMNITY; LIMITATION OF LIABILITY

     66  

Section 12.1

 

Indemnity

     66  

Section 12.2

 

Procedure

     67  

Section 12.3

 

Limitation of Liability

     68  

Section 12.4

 

Insurance

     68  

Article 13. TERM AND TERMINATION

     68  

Section 13.1

 

Term

     68  

Section 13.2

 

Termination by Jazz

     69  

Section 13.3

 

Termination for Cause

     69  

Section 13.4

 

License Survival Upon Insolvency

     70  

Section 13.5

 

Effects of Termination Specifically

     71  

Section 13.6

 

Survival

     72  

Article 14. MISCELLANEOUS

     73  

Section 14.1

 

Notices

     73  

Section 14.2

 

Dispute Resolution

     74  

Section 14.3

 

Governing Law; Jurisdiction; Venue and Service

     75  

Section 14.4

 

Service

     75  

Section 14.5

 

Entire Agreement

     75  

Section 14.6

 

Severability

     76  

Section 14.7

 

Force Majeure

     76  

Section 14.8

 

Assignment; Firewalls

     76  

Section 14.9

 

Relationship of the Parties

     78  

Section 14.10

 

Waiver and Non-Exclusion of Remedies

     78  

Section 14.11

 

Further Assurances

     78  

Section 14.12

 

No Benefit to Third Parties

     78  

Section 14.13

 

Equitable Relief

     78  

Section 14.14

 

Export Control

     79  

Section 14.15

 

Affiliates

     79  

Section 14.16

 

Counterparts

     79  

 

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List of Exhibits and Schedules:

 

Exhibits   

Exhibit A

  

Work Plans for Initial Collaboration Targets/Initial Research Programs

Exhibit B

  

Form of Work Plan

Exhibit C

  

Financial Exhibit

Exhibit D

  

Royalty Rate Reduction Methodology

Exhibit E

  

Royalty Report Format

Schedules   

Schedule 1.1.118

  

Initial Collaboration

Schedule 1.1.142

  

Targets [***]

Schedule 4.3.3

  

Additional Development Activities

Schedule 11.2

  

Codiak Schedule [***]

Schedule 11.2.5

  

Codiak Patent Rights

Schedule 11.2.6

  

Codiak In-Licenses

Schedule 11.2.10

  

Pre-Existing Excluded Targets

 

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COLLABORATION AND LICENSE AGREEMENT

This Collaboration and License Agreement (this “Agreement”) is entered into as of January 2, 2019 (the “Effective Date”), by and between Codiak BioSciences, Inc., a company incorporated under the laws of Delaware with offices at 500 Technology Square, 9th Floor, Cambridge, MA 02139 (“Codiak”), and Jazz Pharmaceuticals Ireland Limited, a limited liability company incorporated under the laws of Ireland, with a registered office at Fifth Floor, Waterloo Exchange, Waterloo Road, Dublin 4, Ireland (“Jazz”). Codiak and Jazz may sometimes individually be referred to hereafter as a “Party” or, collectively, as the “Parties”.

RECITALS

WHEREAS, Codiak owns or Controls certain intellectual property rights relating to the Codiak Platform (as defined below);

WHEREAS, Codiak and Jazz wish to collaborate on Research Programs (as defined below) to explore the potential of Payload (as defined below) delivery by Exosomes (as defined below) with or without Surface Targeting Molecules (as defined below), to modulate or otherwise affect the Collaboration Targets (as defined below) subject to the terms of this Agreement (such collaboration, the “Research Collaboration”); and

WHEREAS, Jazz wishes to acquire from Codiak, and Codiak wishes to grant to Jazz, certain licenses as set forth herein, including with regard to Licensed Compounds (as defined below) and Licensed Products (as defined below) as further described herein.

NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth herein, the Parties hereto, intending to be legally bound, agree as follows:

ARTICLE 1.

DEFINITIONS AND INTERPRETATION

Section 1.1    Definitions. For the purposes of this Agreement, the following capitalized words and phrases will have the following meanings:

1.1.1    “Accounting Standards” means, with respect to a Party or its Affiliate or Sublicensee, GAAP or IFRS, as such Party, Affiliate or Sublicensee uses for its financial reporting obligations, in each case, consistently applied.

1.1.2    “Acting Improperly” has the meaning set forth in Section 11.1.7(b)ii.

1.1.3    “Additional Collaboration Target” has the meaning set forth in Section 2.5.1.

1.1.4    “Affiliate” of a Party means any corporation or other business entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Party for so long as such Party controls, is controlled by or is under common control with such corporation or other business entity. As used herein, the term “control” means the direct or indirect ownership of 50% or more of the stock having the right to vote for directors thereof or the ability to otherwise control the management thereof.

 


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1.1.5    “Agreed Included Codiak Platform Addition” has the meaning set forth in Section 3.3.2.

1.1.6    “Agreement” has the meaning set forth in the introduction.

1.1.7    “Alliance Manager” has the meaning set forth in Section 2.7.2.

1.1.8    “Allowable Expenses” has the meaning set forth in Exhibit C.

1.1.9    “Allowed Overage” has the meaning set forth in Section 4.1.3.

1.1.10    “Anti-Corruption Laws” means the FCPA, as amended, the UK Bribery Act 2010, as amended, and any other applicable anti-corruption laws and laws for the prevention of fraud, racketeering, money laundering or terrorism.

1.1.11    “Applicable Law” means any law or statute, any rule or regulation (including written governmental interpretations thereof, the guidance related thereto, or the application thereof) issued by a Governmental Authority and any judicial, governmental, or administrative order, judgment, decree, or ruling, in each case as applicable to the subject matter and the parties at issue, and taking into account the countries or territories where a Party is to perform its activities and obligations hereunder and, in the case of Manufacturing activities, taking into account the requirements of the country(ies) in which the Manufactured Collaboration Candidate, Licensed Compound or Licensed Product is intended to be used.

1.1.12    “Asia/Western Pacific” [***].

1.1.13    “Backup Candidate” [***].

1.1.14    “Bankruptcy Code” has the meaning set forth in Section 13.4.

1.1.15    “Biosimilar/Generic Product” means, with respect to a Licensed Product in a country or jurisdiction, any product: (a) sold by a Third Party that has not obtained the rights to such product as a Sublicensee or distributor of, or through any other contractual relationship with, Jazz or any of its Affiliates or Sublicensees and that (b) has the same or substantially the same active pharmaceutical ingredient(s) or biological material as the Licensed Product and (c)(i) has been licensed as a biosimilar or interchangeable product by the U.S. FDA pursuant to Section 351(a) or 351(k) of the PHSA citing the Licensed Product as the reference product, (ii) has been licensed as a similar biological medicinal product by EMA pursuant to Directive 2001/83/EC, as may be amended, or any subsequent or superseding law, statute or regulation, referencing or relying on such Licensed Product, (iii) is authorized for sale in the United States pursuant to Section 505(j) of the FFDCA (21 U.S.C. 355(j), respectively), or (iv) has otherwise received Regulatory Approval as a generic, biosimilar or interchangeable product from another applicable Regulatory Authority in such country or jurisdiction, including by referencing Regulatory Approvals (or data therein) of

 

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such Licensed Product and (d) is approved for sale for at least one Indication that is the same as an Indication for which such Licensed Product is approved for sale in such country or jurisdiction. For the avoidance of doubt, no Authorized Biosimilar/Generic of a Licensed Product shall be deemed to be a Biosimilar/Generic Product for the purpose of this definition. For this purpose, the term “Authorized Generic/Biosimilar” means any biological product that is sold under an NDA or BLA filed by Jazz, its Affiliate or any Sublicensee for such Licensed Product.

1.1.16    “BLA” means Biologics License Application as described in 21 C.F.R § 601.2, or an equivalent FDA application.

1.1.17    “Breaching Party” has the meaning set forth in Section 13.3.1.

1.1.18    “Business Day” means a day on which national banks located in New York, New York are open for commercial banking business other than a Saturday or Sunday.

1.1.19    “Calendar Quarter” means any of the 3-month periods beginning on January 1, April 1, July 1 or October 1 of any Calendar Year, except that the first Calendar Quarter of the Term will commence on the Effective Date and end on March 31, 2019 and the last Calendar Quarter will end on the last day of the Term.

1.1.20    “Calendar Year” means (a) for the first Calendar Year, the period commencing on the Effective Date and ending on December 31 of the year during which the Effective Date occurs, (b) for the last Calendar Year, the period commencing on January 1 of the last year of the Term, and ending on the last day of the Term, and (c) each interim period of 12 months commencing on January 1 and ending on December 31.

1.1.21    “Change in Control” means with respect to a Party, (a) a merger or consolidation in which together with a Third Party (i) such Party is a constituent party, or (ii) an Affiliate of such Party is a constituent party, except in the case of either clause (i) or (ii) any such merger or consolidation involving such Party or such Affiliate of such Party in which the shares of capital stock of such entity outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or are exchanged for shares of capital stock which represent, immediately following such merger or consolidation, 50% or more by voting power of the capital stock of (A) the surviving or resulting corporation or (B) a parent corporation of such surviving or resulting corporation, whether direct or indirect; (b) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by such Party or an Affiliate of such Party to a Third Party of all or substantially all of the assets of such Party taken as a whole and whether owned directly or indirectly through Affiliates (except where such sale, lease, transfer, exclusive license or other disposition is to an Affiliate of such Party); or (c) any “person” or “group”, as such terms are defined in Sections 13(d) and 14(d) of the Exchange Act, in a single transaction or series of related transactions, becomes the beneficial owner as defined under the Exchange Act, directly or indirectly, whether by purchase or acquisition or agreement to act in concert or otherwise, of 50% or more by voting power of the then-outstanding capital stock or other equity interests of such Party or a subsidiary of such Party.

 

3


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1.1.22    “Claims” has the meaning set forth in Section 12.1.1.

1.1.23    “Clinical Trial” means any clinical investigation conducted on human subjects, as that term is defined in FDA regulations at 21 C.F.R. § 312.3. Without limiting the foregoing, Clinical Trials include any Phase I Clinical Trial, Phase II Clinical Trial, Phase I/II Clinical Trial, Phase III Clinical Trial, or Phase IV Clinical Trial.

1.1.24    “CMC Development” means the activities to enable Development of the Licensed Compounds and Licensed Products and design of the manufacturing process for the supply of clinical and commercial quantities of the Licensed Compounds and Licensed Products, which include manufacturing process development and scale-up, bulk production and fill/finish work associated with the supply of the Licensed Compounds and Licensed Products for Non-Clinical Studies and Clinical Trials, and related quality assurance technical support activities as well as validation and qualification of commercial manufacturing processes.

1.1.25    “CMO” means a Third Party contract manufacturing organization.

1.1.26    “Co-Promotion Agreement” has the meaning set forth in Section 6.2.1.

1.1.27     “Codiak” has the meaning set forth in the introduction.

1.1.28    “Codiak Collaboration IP” means the Codiak Collaboration Patent Rights and the Codiak Collaboration Know-How.

1.1.29    “Codiak Collaboration Know-How” means any (a) Collaboration Know-How that is first conceived, discovered, developed, or identified solely by or on behalf of Codiak and (b) any Collaboration Know-How that is Codiak Platform Know-How.

1.1.30    “Codiak Collaboration Patent Rights” means any Collaboration Patent Rights claiming any Codiak Collaboration Know-How.

1.1.31    “Codiak Executive” has the meaning set forth in Section 2.7.1(d).

1.1.32    “Codiak In-License IP” has the meaning set forth in Section 11.2.6.

1.1.33    “Codiak In-Licenses” has the meaning set forth in Section 11.2.6.

1.1.34    “Codiak Indemnitees” has the meaning set forth in Section 12.1.2.

1.1.35    “Codiak IP” means Codiak Know-How and Codiak Patent Rights, including the Codiak Collaboration IP and any other intellectual property owned or Controlled by Codiak or its Affiliates, but excluding the Joint Collaboration IP.

1.1.36    “Codiak Know-How” [***].

1.1.37    “Codiak Other Collaboration Know-How” [***].

 

4


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1.1.38    “Codiak Other Collaboration Patent Rights” [***].

1.1.39    “Codiak Patent Rights” [***].

1.1.40    “Codiak Platform” [***].

1.1.41    “Codiak Platform Addition” [***].

1.1.42    “Codiak Platform Addition Blocking IP” has the meaning set forth in Section 3.3.2.

1.1.43    “Codiak Platform Improvement” [***].

1.1.44    “Codiak Platform Know-How” [***].

1.1.45    “Codiak Platform Patent Rights” [***].

1.1.46    “Codiak Platform Pre-Existing Technology” [***].

1.1.47    “Codiak Product-Specific Collaboration Know-How” [***].

1.1.48    “Codiak Product-Specific Collaboration Patent Rights” [***].

1.1.49    “Codiak Program Activities” has the meaning set forth in Section 2.1.3.

1.1.50    “Codiak Program Records” has the meaning set forth in Section 2.3.4.

1.1.51    “Codiak Regulatory Documentation” means Regulatory Documentation owned or Controlled by Codiak or its Affiliates as of the Effective Date or during the Term that is necessary or useful to Exploit Licensed Compounds and Licensed Products.

1.1.52    “Collaboration Candidate” means an Exosome therapeutic that is the subject of Development under the Research Collaboration, that incorporates one or more Payloads to modulate or otherwise affect a Collaboration Target, that may incorporate one or more Surface Targeting Molecules to direct the Exosomes towards a particular cell type or target location, and that is selected by the JSC pursuant to Section 2.3.6 for further Development under the Research Collaboration.

1.1.53    “Collaboration IP” [***].

1.1.54    “Collaboration Know-How” [***].

1.1.55    “Collaboration Patent Rights” [***].

 

5


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1.1.56    “Collaboration Target Designation Notice” means a notice delivered by Jazz pursuant to Section 2.5.1 designating an Additional Collaboration Target, Replacement Target, or Revived Target, as applicable.

1.1.57    “Collaboration Targets” means the Initial Collaboration Targets and the Additional Collaboration Target, Replacement Target, and Revived Targets, if any.

1.1.58    “Combination Product” means any biopharmaceutical preparation in final form containing one or more Licensed Compound(s) in combination with (a) one or more other active ingredient(s) that are not Licensed Compounds, sold either as a fixed dose/unit or as separate doses/units in a single package or (b) one or more device(s), service(s) or other item(s) of value as a single package (such other active ingredients, devices or other items of value, “Other Items”).

1.1.59    “Commercial Budget” has the meaning set forth in Section 6.2.2.

1.1.60    “Commercialize” or “Commercializing” means to market, promote, distribute, use, have used, offer for sale, sell, have sold, import, have imported, export, have exported or otherwise exploit a compound or product other than for Development or Manufacturing purposes. When used as a noun, “Commercialization” means any and all activities involved in Commercializing.

1.1.61    “Commercially Reasonable Efforts” [***].

1.1.62    “Compound” has the meaning set forth in Section 2.1.1.

1.1.63    “Confidential Information” has the meaning set forth in Section 9.1.

1.1.64    “Control” means, with respect to any information, Regulatory Documentation, material, Know-How, Patent Rights, or other intellectual property rights, possession of the right, whether directly or indirectly, and whether by ownership, license or otherwise, to assign or grant a license, sublicense or other right to or under such information, Regulatory Documentation, material, Know-How, Patent Rights or other intellectual property rights to the extent that it does not violate the terms of any written agreement with any Third Party existing as of the date of such assignment or such grant, as applicable. “Controlled” and “Controlling” have corresponding meanings. For clarity, a Person may Control in-licensed intellectual property rights from a Third Party even if such Person’s (sub)license to such intellectual property rights is non-exclusive or otherwise more limited than the sublicenses, if any, granted by such Person hereunder in respect of such in-licensed intellectual property rights, provided that the sublicenses, if any, granted hereunder in respect of such in-licensed intellectual property rights will be limited to the extent and scope of the (sub)license granted by the licensor Third Party.

1.1.65    “Cover,” “Covering,” or “Covered” means, with respect to a product, technology, process or method and the relevant Patent Right, that, but for a license granted to a Person under a claim included in such Patent Right or ownership of such Patent Right, the Exploitation by such Person of such product, technology, process or method, would infringe such claim or, in the case of a Patent Right that is a patent application, would infringe a claim in such patent application if it were to issue as a patent.

 

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1.1.66    “Covered Results” has the meaning set forth in Section 9.4.

1.1.67    “Deemed Included Codiak Platform Addition” has the meaning set forth in Section 3.3.2.

1.1.68    “Designatable Target” has the meaning set forth in Section 2.5.1.

1.1.69    “Develop” or “Developing” means to discover, research or otherwise develop a process, compound or product, including conducting non-clinical and clinical research and development activities. When used as a noun, “Development” means any and all activities involved in Developing.

1.1.70    “Development and Commercialization License” has the meaning set forth in Section 3.1.1.

1.1.71    “Development and Commercialization Option” has the meaning set forth in Section 4.3.1.

1.1.72    “Development Budget” means the budget associated with the applicable EDP or JDP, as applicable, detailing the anticipated Development Costs and having been approved by the JSC.

1.1.73    “Development Candidate” means a Collaboration Candidate which has been designated by the JSC to advance to IND-Enabling Studies pursuant to Section 2.3.6.

1.1.74    “Development Candidate Decision Point” means, with respect to a Collaboration Candidate, the date of selection as a Development Candidate.

1.1.75    “Development Costs” [***].

1.1.76    “Development Information” has the meaning set forth in Section 9.3.

1.1.77    “Discontinued Target” has the meaning set forth in Section 2.2.

1.1.78    “Distributor” means any Third Party appointed by Jazz or any of its Affiliates or its or their Sublicensees to distribute, market and sell Licensed Product(s), with or without packaging rights, in one or more countries in the Territory.

1.1.79    “Drug Approval Application” means a BLA (or NDA, if applicable) or any corresponding foreign application, including, with respect to a country in Europe, a marketing authorization application filed with the EMA pursuant to the centralized approval procedure.

1.1.80    “Drug Approval Application Acceptance” means the receipt of notice from the relevant Regulatory Authority that a Drug Approval Application for a Licensed

 

7


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Product has been accepted for filing. In jurisdictions in which a notice of such acceptance is not provided by the Regulatory Authority in the normal course, Drug Approval Application Acceptance means such other reasonable indicia of acceptance by the relevant Regulatory Authority of a Drug Approval Application for a Licensed Product as are customarily relied upon by global pharmaceutical and biotechnology companies in respect of such Regulatory Authority.

1.1.81    “Drug Master File” means a voluntary submission to the FDA that may be used to provide confidential, detailed information about any aspect of the Manufacturing of any Licensed Compound or Licensed Product (including the facilities used therefor).

1.1.82    “Early Development Plan” or “EDP” has the meaning set forth in Section 4.1.1.

1.1.83    “Early Development Program” has the meaning set forth in Section 4.1.1.

1.1.84    “Effective Date” has the meaning set forth in the introduction.

1.1.85    “Electronic Data Room” has the meaning set forth in Section 2.3.5.

1.1.86    “EMA” means the European Medicines Agency, or any successor agency thereto.

1.1.87    “Employment Cost Index” [***].

1.1.88    “European Union” means the economic, scientific and political organization of member states as it is constituted as of the Effective Date, whether or not any such member state (including the United Kingdom) may leave the European Union following such date, and any member states that may be added to the European Union from time to time following such date.

1.1.89    “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules thereunder.

1.1.90    “Excluded Codiak Platform Addition” has the meaning set forth in Section 3.3.2.

1.1.91    “Excluded Target” [***].

1.1.92    “Exosome” means a biological vesicle that is produced by any cell, including any eukaryotic cell, and that is characterized by a lipid-rich membrane enclosing an inner volume. Exosomes are produced by cells via, for example, but not limited to, export from the multivesicular body or through direct budding of the plasma membrane. For the avoidance of doubt, Exosomes include vesicles that are naturally produced by cells or caused to be produced by cells through direct or indirect synthetic manipulation.

 

8


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

1.1.93    “Exploit” means make, have made, import, use, sell or offer for sale or otherwise exploit, including to Develop, Commercialize, register, Manufacture, have Manufactured, hold or keep (whether for disposal or otherwise), have used, export, transport, distribute, promote, market or have sold or otherwise dispose of. “Exploitation” means the act of Exploiting.

1.1.94    “Extensions” has the meaning set forth in Section 10.3.5(a).

1.1.95    “FCPA” means the U.S. Foreign Corrupt Practices Act (15 U.S.C. § 78dd-1, et seq.) as amended.

1.1.96    “FDA” means the United States Food and Drug Administration, and any successor agency thereto.

1.1.97    “FDA’s Positive Response” [***].

1.1.98    “FFDCA” means the United States Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301, et. seq., as it may be amended from time to time, and the rules, regulations, guidance, guidelines, and requirements promulgated or issued thereunder.

1.1.99    “Field” means all uses of the applicable Licensed Compounds or Licensed Products, including diagnostic, prophylactic, or therapeutic use in humans.

1.1.100    “First Commercial Sale” means, with respect to any Licensed Product and with respect to any country or jurisdiction in the Territory, the first commercial sale of a Licensed Product by Jazz, its Affiliates or Sublicensees to a Third Party in or for such country or jurisdiction for monetary value after Regulatory Approval for such Licensed Product has been obtained in such country or jurisdiction for use or consumption of such Licensed Product in such country or jurisdiction; provided that sales for clinical study purposes or compassionate, named patient or similar use will not constitute a First Commercial Sale if such Licensed Product is supplied without charge.

1.1.101    “First Sales Milestone” has the meaning set forth in Section 8.9.

1.1.102    “Force Majeure” has the meaning set forth in Section 14.7

1.1.103    “FTE” means a full time equivalent person year [***] of work performing Development or other activities under this Agreement. Indirect personnel (including support functions such as managerial, financial, legal or business development) will not constitute FTEs. Notwithstanding the foregoing, the time of a single individual will not account for more than one FTE for a given Calendar Year.

1.1.104    “FTE Costs” means for a given period, the product of (a) the total FTEs (proportionately, on a per-FTE basis) dedicated, actually applied and reported as being applied by personnel of a Party or its Affiliates in the particular period to the performance of the activities allocated to such Party under and in accordance with the applicable Work Plan and associated budget, and (b) the FTE Rate.

 

9


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

1.1.105    “FTE Rate” means, [***]. The reported actual time spent shall be substantiated by a time tracking system consistently applied.

1.1.106    “Future Acquirer” means a Third Party that is, or whose Affiliate is, a counterparty to a transaction or series of transactions effecting a Change in Control involving a Party.

1.1.107    “Government Official” means (a) any officer, de facto official, employee (including physician, hospital administrator, or other healthcare professional), agent, or representative of a department, agency, instrumentality or subdivision of any government, military or international organization, including any ministry or department of health or any state-owned or affiliated company or hospital, or (b) any candidate for political office, any political party or any official of a political party.

1.1.108    “Governmental Authority” means any applicable multinational, federal, state, local, municipal or other government authority of any nature (including any governmental division, prefecture, subdivision, department, agency, bureau, branch, office, commission, council, court or other tribunal).

1.1.109    “Included Codiak Platform Additions” [***].

1.1.110    “IND” means (a) in the United States, an Investigational New Drug Application, as defined in the FFDCA, that is required to be filed with the FDA before conducting a Clinical Trial (including all supplements and amendments that may be filed with respect to the foregoing); and (b) any foreign counterpart of the foregoing.

1.1.111    “IND Acceptance” means the earlier of (a) the day following the last day on which the applicable Regulatory Authority may object to an IND submission, provided that no clinical hold is then in place, or (b) the day on which the applicable Regulatory Authority affirmatively accepts an IND submission and notifies the applicable Party it may proceed with Clinical Trials pursuant to such IND. For example, in the United States, in the event that the FDA does not make any objection within 30 calendar days from the IND submission, then IND Acceptance of such IND would occur 31 calendar days from the date of the IND submission. For the avoidance of doubt, if the FDA objects to an IND submission within such 30 day period, then IND Acceptance of such IND shall occur only after such objection is overcome.

1.1.112    “IND-Enabling Studies” means, in respect of a Development Candidate, any and all studies that may be required for filing an IND with a Regulatory Authority, including ADME (absorption, distribution, metabolism, and excretion) studies and GLP (good laboratory practice) toxicology studies, or studies required for the preparation of the CMC (chemistry, manufacturing, and controls) section of such IND, including but not limited to studies relating to analytical methods and purity analysis, and formulation and Manufacturing development studies, all as necessary to obtain the permission of the Regulatory Authority in order to initiate first in human Clinical Trials for such Development Candidate.

 

10


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

1.1.113    “Indemnitee” has the meaning set forth in Section 12.2.1.

1.1.114    “Indemnitor” has the meaning set forth in Section 12.2.1.

1.1.115    “Indication” means a distinct disease state or medical condition. For the avoidance of doubt, all clinical variants of a single disease or condition, whether classified by sub-indication, sub-type, stage, severity or patient population, will be the same Indication.

1.1.116    “Infringement” has the meaning set forth in Section 10.4.1.

1.1.117    “Infringement Notice” has the meaning set forth in Section 10.4.1.

1.1.118    “Initial Collaboration Targets” means those first four Collaboration Targets set forth on Schedule 1.1.118.

1.1.119    “Initial Research Programs” means the Research Programs conducted with respect to the Initial Collaboration Targets pursuant to those Work Plans included in the Research Plan attached hereto as Exhibit A.

1.1.120    “Initiation” means, with respect to a Clinical Trial, the dosing of the first patient with a Licensed Product pursuant to the clinical protocol for the specified Clinical Trial.

1.1.121    “Jazz” has the meaning set forth in the introduction.

1.1.122    “Jazz Anti-Corruption Termination” means any termination by Jazz of this Agreement, in whole or in part, pursuant to Section 13.3, if Jazz’s right to so terminate arose in whole or in part due to a breach by Codiak of Section 11.1.7(b).

1.1.123    “Jazz Collaboration IP” [***].

1.1.124    “Jazz Collaboration Know-How” [***].

1.1.125    “Jazz Collaboration Patent Rights” [***].

1.1.126     “Jazz Executive” has the meaning set forth in Section 2.7.1(d).

1.1.127    “Jazz Indemnitees” has the meaning set forth in Section 12.1.1.

1.1.128    “[***]” has the meaning set forth in Section 3.3.1.

1.1.129    “Jazz IP” [***].

1.1.130    “Jazz Know-How” [***].

1.1.131    “Jazz Patent Rights” [***].

1.1.132    “Joint Collaboration IP” [***].

 

11


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

1.1.133    “Joint Collaboration Know-How” [***].

1.1.134    “Joint Collaboration Patent Rights” [***].

1.1.135    “Joint Development Planor JDP” has the meaning set forth in Section 4.3.3.

1.1.136    “Joint Development Program” has the meaning set forth in Section 4.3.3.

1.1.137    “Joint Steering Committee” or “JSC” has the meaning set forth in Section 2.7.1(a).

1.1.138    “Know-How” means any and all information and materials, including discoveries, inventory, information, regulatory filings, processes, formulae, data, inventions (whether patentable or not), invention disclosures, know-how and trade secrets (whether patentable or not), including all chemical, pharmaceutical, toxicological, biochemical, and biological, technical and non-technical data, and information relating to the results of tests, assays, methods, and processes, and specifications or other documents containing information and related data, and any preclinical, clinical, assay control, manufacturing, regulatory, and any other data or information.

1.1.139    “Lead Regulatory Party” has the meaning set forth in Section 5.1.1.

1.1.140    “Liabilities” has the meaning set forth in Section 12.1.1.

1.1.141    “Licensed Compound” means any Compound that is a Collaboration Candidate or that was generated using the Codiak Platform Know-How or Codiak Platform Patent Rights and is designed to modulate or otherwise affect a Collaboration Target.

1.1.142    “Licensed IP” [***].

1.1.143    “Licensed Product” means any product, including any Combination Product, that contains a Licensed Compound.

1.1.144    “Liens” means any lien, pledge, encumbrance, or claim of ownership (excluding any license rights granted as of the Effective Date under the Codiak In-Licenses).

1.1.145    “Major European Country” means [***].

1.1.146    “Manufacture” or “Manufacturing” means to make, have made, produce, manufacture, process, fill, finish, package, label, perform quality assurance testing, release, ship or store a compound or product or any intermediate or component thereof. When used as a noun, “Manufacture” or “Manufacturing” means any and all activities involved in Manufacturing a compound or product or any intermediate or component thereof, and “Manufacturer” means a Person engaged in Manufacturing activities.

 

12


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

1.1.147    “NDA” means a New Drug Application filed in accordance with section 505(b)(1) of the FFDCA and applicable regulations and requirements of the FDA as from time to time amended and in effect.

1.1.148    “Net Profits/Net Losses” has the meaning set forth in Exhibit C and shall be calculated in accordance with such Exhibit.

1.1.149    “Net Sales” means, with respect to a Licensed Product for any period, the gross amount billed or invoiced by Jazz, its Affiliates or its Sublicensees for the sale of a Licensed Product to Third Parties (including Distributors) commencing with the First Commercial Sale of such Licensed Product, less the following to the extent actually incurred, allowed, accrued or specifically allocated: [***].

1.1.150    “Non-Clinical Studies” means all non-human studies of Licensed Compounds and Licensed Products.

1.1.151    “Non-Optioned Product” means any Licensed Product that is not an Optioned Product.

1.1.152    “North America” means the United States, Canada and Mexico.

1.1.153    “Notice of Dispute” has the meaning set forth in Section 14.2.1.

1.1.154    “Notice Period” has the meaning set forth in Section 13.3.1.

1.1.155    “Optioned Product” means a Licensed Product for which Codiak has exercised its Development and Commercialization Option, and Jazz has not exercised its one-time veto with respect to the exercise of such option, all pursuant to Section 4.3.1.

1.1.156    “Other Items” has the meaning set forth in the definition of Combination Product.

1.1.157    “Parties” has the meaning set forth in the introduction.

1.1.158    “Party Representatives” has the meaning set forth in Section 11.1.7(b).

1.1.159    “Patent Right” means any and all national, regional and international (a) issued patents and pending patent applications (including provisional patent applications), (b) patent applications filed either from the foregoing or from an application claiming priority to the foregoing, including all provisional applications, converted provisionals, substitutions, continuations, continuations-in-part, divisions, renewals and continued prosecution applications, and all patents granted thereon, (c) patents-of-addition, revalidations, reissues, reexaminations and extensions or restorations by existing or future extension or restoration mechanisms, including patent term adjustments, patent term extensions, supplementary protection certificates or the equivalent thereof, (d) inventor’s certificates, utility models, petty patents, innovation patents and design patents, (e) other forms of government-issued rights

 

13


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

substantially similar to any of the foregoing, including so-called pipeline protection or any importation, revalidation, confirmation or introduction patent or registration patent or patent of additions to any of such foregoing and (f) United States and foreign counterparts of any of the foregoing.

1.1.160    “Payload” means any therapeutic molecule that may be delivered by an Exosome. For clarity, a Surface Targeting Molecule is not a Payload.

1.1.161    “Person” means any natural person, corporation, firm, business trust, joint venture, association, organization, company, partnership or other business entity, or any government or any agency or political subdivision thereof.

1.1.162    “Phase I Clinical Trial” means a Clinical Trial of a Licensed Product that generally provides for the first introduction into humans of such Licensed Product, with the primary purpose of determining metabolism and pharmacokinetic properties and side effects of such product, in a manner that is generally consistent with 21 C.F.R. § 312.21(a), as amended (or its successor regulation), excluding any investigator-initiated Clinical Trials.

1.1.163    “Phase I/II Clinical Trial” means a combined Clinical Trial that constitutes both a Phase I Clinical Trial and a Phase II Clinical Trial.

1.1.164    “Phase II Clinical Trial” means a Clinical Trial of a Licensed Product conducted on a sufficient number of subjects for evaluating (and the principal purpose of which is to evaluate) the effectiveness of a pharmaceutical product for its particular intended use and for obtaining (and to obtain) information about side effects and other risks associated with the drug, in a manner that is generally consistent with 21 C.F.R. § 312.21(b), as amended (or its successor regulation), or a similar clinical study prescribed by the Regulatory Authorities in a country or jurisdiction outside the United States, to permit the design of further clinical trials of such Licensed Product, excluding any investigator-initiated Clinical Trials.

1.1.165    “Phase III Clinical Trial” means a pivotal Clinical Trial of a Licensed Product with a defined dose or a set of defined doses of such Licensed Product and conducted by or on behalf of Jazz, its Affiliates or Sublicensees on a sufficient number of subjects for ascertaining (and that is designed to ascertain) the overall risk-benefit relationship of the Licensed Product for its intended use and for determining (and to determine) warnings, precautions, and adverse reactions that are associated with such Licensed Product in the dosage range to be prescribed, in a manner that is generally consistent with 21 C.F.R. § 312.21(c), as amended (or its successor regulation), or a similar clinical study prescribed by the Regulatory Authorities in a country or jurisdiction outside the United States, which trial is necessary to support Regulatory Approval of such Licensed Product, excluding any investigator-initiated Clinical Trials.

1.1.166    “Phase IV Clinical Trial” means a Clinical Trial of a Licensed Product that constitutes (a) a post-marketing requirement of a Regulatory Authority to, or a commitment to a Regulatory Authority that is required to, maintain any Regulatory Approval given by such Regulatory Authority for the Licensed Product, or (b) any other post-marketing studies undertaken in respect of the Licensed Product that may not be required by a Regulatory Authority.

 

14


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

1.1.167    “PHSA” means the United States Public Health Service Act, as may be amended, or any subsequent or superseding law, statute or regulation.

1.1.168    “PMDA” means the Pharmaceutical and Medical Devices Agency of Japan or any successor agency or authority thereto.

1.1.169    “Pre-Existing Excluded Target” has the meaning set forth in Section 11.2.10.

1.1.170    “Product Information” has the meaning set forth in Section 9.1.

1.1.171    “Product Trademarks” has the meaning set forth in Section 10.8.

1.1.172    “Profit Share Term” has the meaning set forth in Section 13.1.

1.1.173    “Proposed Codiak Platform Addition” has the meaning set forth in Section 3.3.2.

1.1.174    “Reciprocal Codiak Partner Technology” [***].

1.1.175    “Reciprocal Jazz Partner Technology” [***].

1.1.176    “Region” means each of the following: (a) North America, (b) the European Union (as it is constituted as of the effective date of termination, but excluding the United Kingdom), (c) the United Kingdom, (d) Asia/Western Pacific, and (e) all other countries in the Territory that are not included in the foregoing clauses (a), (b), (c), or (d).

1.1.177    “Regulatory Approval” means, with respect to a country or jurisdiction, any and all approvals (including Drug Approval Applications), licenses, registrations or authorizations of any Regulatory Authority necessary to commercially distribute, sell or market a Licensed Product in such country or jurisdiction.

1.1.178    “Regulatory Authority” means, with respect to a country or jurisdiction in the Territory, any national (e.g., the FDA), supra-national (e.g., the European Commission, the Council of the European Union, or the EMA), regional, state or local regulatory agency, department, bureau, commission, council or other Governmental Authority involved in the granting of a Regulatory Approval or otherwise exercising authority with respect to biopharmaceutical products in such country or jurisdiction.

1.1.179    “Regulatory Documentation” means all (a) applications (including all BLAs or INDs), registrations, licenses, authorizations and approvals (including Regulatory Approvals), (b) correspondence and reports submitted to or received from Regulatory Authorities (including minutes and official contact reports relating to any communications with any Regulatory Authority) and all supporting documents with respect thereto, including all adverse event files and complaint files, (c) clinical and other data contained, referenced or otherwise relied upon in any of the foregoing, and (d) any Drug Master File.

 

15


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

1.1.180    “Regulatory Materials” means regulatory applications, submissions, notifications, correspondences, registrations, Regulatory Approvals or other filings made to or with, or other approvals granted by, a Regulatory Authority that are necessary or reasonably desirable in order to Develop, Manufacture, or Commercialize a Licensed Compound or Licensed Product in a particular country or regulatory jurisdiction.

1.1.181    “Replacement Target” has the meaning set forth in Section 2.5.1(b).

1.1.182    “Research Collaboration” has the meaning set forth in the recitals.

1.1.183    “Research Collaboration Materials” means any materials needed or used for the Research Collaboration.

1.1.184    “Research Plan” collectively means all Work Plans.

1.1.185    “Research Program” means each research program, including the Initial Research Programs, conducted under ARTICLE II pursuant to a Work Plan.

1.1.186    “Research Program Materials” means any materials provided by one Party to the other Party in connection with the performance of a Work Plan.

1.1.187    “Research Program Term” has the meaning set forth in Section 2.2.

1.1.188    “Revived Target” has the meaning set forth in Section 2.5.1(c).

1.1.189    “ROW” means all countries of the world other than the Shared Territory.

1.1.190    “Royalty Report” has the meaning set forth in Section 8.18.1.

1.1.191    “Royalty Term” [***].

1.1.192    “SDEA” has the meaning set forth in Section 11.1.8.

1.1.193    “Second Sales Milestone” has the meaning set forth in Section 8.9.

1.1.194    “Shared Required Development” has the meaning set forth in Schedule 4.3.3.

1.1.195    “Shared Research Costs” has the meaning set forth in Section 2.1.3.

1.1.196    “Shared Territory” means the United States and Canada.

1.1.197    “Shared Territory Commercialization Plan” has the meaning set forth in Section 6.2.2.

 

16


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

1.1.198    “Sublicensee” means any Third Party that is granted a sublicense (whether directly or through multiple tiers) under Section 3.1.1 by Jazz or its Affiliate in accordance with the terms of this Agreement to Commercialize one or more Licensed Products.

1.1.199    “Successful Ph 1/2 POC” [***].

1.1.200    “Surface Targeting Molecule” means any molecule that has the primary purpose of directing an Exosome to a particular location or cell type.

1.1.201    “Target” means any protein, peptide, polypeptide, nucleotide, polynucleotide, ribonucleotide, polyribonucleotide, carbohydrate, lipid, or combination or association of the foregoing, including any such molecules that are secreted, membrane-associated, extracellular, or intracellular, of any species.

1.1.202    “Term” has the meaning set forth in Section 13.1.

1.1.203    “Territory” means all countries and jurisdictions in the world.

1.1.204    “Third Party” means any person or entity other than the Parties and their respective Affiliates, officers, directors, employees, agents or subcontractors.

1.1.205    “Third Party Action” has the meaning set forth in Section 10.6.1.

1.1.206    “United States” means the United States of America, including Puerto Rico and its other territories and possessions.

1.1.207    “Valid Claim” means a composition of matter or use or method of manufacture claim contained in (a) an issued and unexpired Codiak Patent Right or Joint Collaboration Patent Right that Covers the manufacture, use, sale or importation in or into the relevant country of the applicable Licensed Product, which claim has not been held unenforceable, unpatentable or invalid by a decision of a court or other governmental agency of competent jurisdiction, unappealable or unappealed within the time allowed for appeal, and which has not been admitted to be invalid or unenforceable through abandonment, reissue, disclaimer or otherwise; or (b) [***] from the earliest applicable priority date and that, if issued, would Cover the manufacture, use, sale or importation in or into the relevant country of the applicable Licensed Product; provided that, if a claim ceases to be a Valid Claim by reason of the foregoing subclause (b), then such claim shall again be deemed a Valid Claim in the event such claim subsequently issues.

1.1.208    “Work Plan” means, with respect to any Research Program, the written work plan for conducting such Research Program as further described in Section 2.3.

Section 1.2    Certain Rules of Interpretation in this Agreement and the Schedules.

1.2.1    Except where the context otherwise requires, wherever used, the singular will include the plural, the plural the singular, the use of any gender will be

 

17


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

applicable to all genders and the word “or” is used in the inclusive sense (and/or). The words “include” and “including” have the inclusive meaning frequently identified with the phrases “without limitation” and “but not limited to”. The words “shall” and “will” have the same meaning. Whenever this Agreement refers to a number of days, unless otherwise specified, such number refers to calendar days. Unless otherwise specified, deadlines within which any payment is to be made or act is to be done within or following a specified time period after a date will be calculated by excluding the day or Business Day of such date, as applicable, and including the day or Business Day, as applicable, of the date on which the period ends. Whenever any payment is to be made or action to be taken under this Agreement is required to be made or taken on a day other than a Business Day, such payment will be made or action taken on the next Business Day following such day to make such payment or do such act.

1.2.2    The preamble to this Agreement and the descriptive headings of Articles and Sections are inserted solely for convenience of reference and are not intended as complete or accurate descriptions of the content of this Agreement or of such Articles or Sections. Unless otherwise specified, references in this Agreement to any Article, Section, Exhibit or Schedule are references to such Article, Section, Exhibit or Schedule of this Agreement.

ARTICLE 2.

RESEARCH PROGRAMS

Section 2.1    Objective and Conduct of the Research Programs.

2.1.1    Objective. The purpose of each Research Program will be to identify and evaluate Exosome therapeutics that incorporate one or more Payloads to modulate or otherwise affect a Collaboration Target, and that may incorporate one or more Surface Targeting Molecules to direct the Exosomes towards a particular cell type or target location (a “Compound”). Such Compounds may be selected as Collaboration Candidates for further Development, Manufacture, Commercialization and other Exploitation under this Agreement.

2.1.2    Standards of Conduct. Codiak will, and will cause its Affiliates to, conduct its activities under the Research Programs in accordance with the applicable Work Plan(s), the terms of this Agreement and Applicable Law, and according to current scientific standards in the biopharmaceutical industry.

2.1.3    Activities; Research Program Materials; Costs. During each of the Research Program Terms, Codiak will, and will cause its Affiliates to, (a) make available to Jazz and its Affiliates, for the purposes of the relevant Research Program, and perform each Work Plan using, related Codiak Know-How, (b) make available to Jazz and its Affiliates, and use for the purposes of the applicable Research Program, the Collaboration Candidates and other Research Program Materials that are specified in the applicable Work Plan or reasonably requested by Jazz, and (c) use Commercially Reasonable Efforts to conduct such activities as are assigned to Codiak under the relevant Work Plans within the timelines contained therein (such activities, “Codiak Program Activities”). Codiak will bear the costs and expenses in connection with its performance of the Codiak Program Activities for the first [***] Collaboration Targets and for a Replacement Target selected in accordance with

 

18


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Section 2.5.1. Subsequent to the first [***] Collaboration Targets, in the case of a Revived Target, each Party will be responsible for [***] of the Development Costs, including [***] (the “Shared Research Costs”), subject to a mutually determined budget.

2.1.4    Codiak IP Updates. On a Research Program-by-Research Program basis, during the applicable Research Program Term, Codiak will, and will cause its Affiliates to, through the JSC, as practicable, keep Jazz apprised of any Codiak IP that comes under the Control of Codiak or its Affiliates and that could reasonably be necessary or useful in the conduct of the relevant Research Program or the Development of Collaboration Candidates or Licensed Products arising out of such Research Program.

Section 2.2    Term of the Research Programs. The term of each Initial Research Program will commence on the Effective Date, and the term of each subsequent Research Program will commence on the date of delivery of the applicable Collaboration Target Designation Notice (or, in the case of a new Research Program initiated pursuant to Section 2.5.2, on the date of such initiation), as applicable, and the term of each Research Program will continue, on a Research Program-by-Research Program basis, until the earliest of (a) unless otherwise agreed by the Parties in writing, the Development Candidate Decision Point for a Collaboration Candidate in respect of the applicable Collaboration Target, (b) the termination of this Agreement with respect to the applicable Collaboration Target or Research Program, or (c) the termination of the Research Program by mutual agreement of the Parties pursuant to this Section 2.2 (each such period, a “Research Program Term”). In the case of clause (c) of the previous sentence, the applicable Collaboration Target shall be deemed to be a “Discontinued Target” for all purposes hereunder. In respect of a Research Program for which Jazz is not obligated pursuant to Section 2.1.3 to reimburse Codiak for any Shared Research Costs, in the event that Codiak reasonably believes that, based on reasonable scientific judgment, such Research Program will not succeed, then Codiak will discuss with Jazz, including the feasibility of Jazz continuing such Research Program. If the Parties agree to terminate such Research Program, with Jazz’s consent not to be unreasonably withheld, such Research Program will be terminated, and the applicable Collaboration Target will, unless such Target becomes a Revived Target, be considered a failed Target for purposes of determining whether Jazz is entitled to name a Replacement Target pursuant to Section 2.5.1(b). In respect of a Research Program for which Jazz is obligated pursuant to Section 2.1.3 to reimburse Codiak for any Shared Research Costs, in the event that either Party reasonably believes that, based on reasonable scientific judgment, such Research Program will not succeed, then such Party will discuss with the other Party, including the feasibility of the other Party continuing such Research Program. If the Parties agree to terminate such Research Program, with neither Party’s consent to be unreasonably withheld, such Research Program will be terminated, and the applicable Collaboration Target will, unless such Target becomes a Revived Target, be considered a failed Target for purposes of determining whether Jazz is entitled to name a Replacement Target pursuant to Section 2.5.1(b).

Section 2.3    Work Plans; Records, Selection of Development Candidates.

2.3.1    Work Plans. The Work Plans for each Initial Research Program are attached hereto as Exhibit A. The Work Plans for the other Research Programs for the

 

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Additional Collaboration Target, Replacement Target and Revived Targets, if applicable, will be substantially in the form of the form of Work Plan attached hereto as Exhibit B, or as otherwise agreed in writing by the Parties.

2.3.2    Work Plan Contents. Each Work Plan will (a) provide a framework for the applicable Research Program and (b) set forth (i) the objectives of the Research Program, which will be consistent with the objectives of the Research Collaboration as set forth in the recitals and Section 2.1, (ii) the specific Codiak Program Activities to be undertaken to achieve those objectives, (iii) an estimated timeline for the completion of each such Codiak Program Activity, (iv) any Codiak Platform Know-How or Codiak Platform Patent Rights (A) to be used by Codiak or its Affiliates under such Work Plan, or (B) to be transferred to Jazz or its Affiliates in connection with the Work Plan, (v) if the applicable Collaboration Target is not one of the first [***] Collaboration Targets, an itemized budget for the estimated internal FTE Costs and out-of-pocket external costs and expenses expected to be incurred by Codiak and its Affiliates with respect to such Work Plan in the form of (and showing the level of detail as set forth in) the budget included in Exhibit B, including any Codiak Program Activities specified therein that are anticipated to be conducted by (sub)contractors, (vi) the Research Program Materials to be used or made available during the Research Program Term, (vii) any Jazz Know-How to be transferred to Codiak because it is necessary for Codiak to perform the Codiak Program Activities, and (viii) such further terms and conditions that the Parties may agree to be applicable to the Research Program (including their rights and obligations with respect thereto).

2.3.3    Approval of Work Plan(s) for Additional Target(s); Work Plan Amendments. Upon Jazz’s delivery of a Collaboration Target Designation Notice, the JSC will approve a mutually agreed upon new Work Plan, which will be added to the Research Plan and be deemed to be a Work Plan hereunder. The JSC will review and may approve modifications to each Work Plan from time to time, provided that (a) any reduction in the activities specified in the Work Plan or the scope of the Work Plan may be made only by mutual agreement between the Parties, with Jazz’s consent not to be unreasonably withheld, and with Codiak’s consent not to be unreasonably withheld if Jazz is obligated pursuant to Section 2.1.3 to reimburse Codiak for any Shared Research Costs in respect of the Work Plan, and (b) Codiak may expand the activities under the Work Plan or the scope of the Work Plan without Jazz’s consent, provided that such expansion does not result in additional financial obligations for Jazz, including, for clarity, in connection with reimbursement of Codiak for Shared Research Costs in respect of the Work Plan pursuant to Section 2.1.3.

2.3.4    Records and Reports. Codiak will, and will cause its Affiliates to, maintain, in good scientific manner and in a format which complies with Applicable Law and regulatory requirements, complete and accurate books and records (which may be kept in an electronic or digital format which is essentially the same as the format Codiak uses for its own research data) pertaining to its activities under each Work Plan, in sufficient detail to verify compliance with its obligations under this Agreement and which books and records will (a) be appropriate for patent and regulatory purposes, (b) be kept and maintained in compliance with Applicable Law, (c) properly reflect all work done and results achieved in the performance of its activities hereunder and (d) record only such activities and not include or be commingled

 

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with records of activities outside the scope of this Agreement (such books and records, “Codiak Program Records”). As part of keeping the Codiak Program Records, Codiak will ensure that all of the personnel and agents of Codiak and its Affiliates that are involved in any Research Program will keep accurate laboratory notebooks, which laboratory notebooks will be duly signed and dated. Such Codiak Program Records will be retained by Codiak and its Affiliates for at least [***] after the expiration or termination of this Agreement in its entirety or for such longer period as may be required by Applicable Law. During the Term, Jazz will have the right, during normal business hours and upon reasonable notice, to inspect and copy all Codiak Program Records. Codiak will provide the Joint Steering Committee with detailed reports relating to the activities of Codiak and its Affiliates under each Research Program each Calendar Quarter of the applicable Research Program Term.

2.3.5    Electronic Data Room. As of the start of each Research Program Term, on a Research Program-by-Research Program basis, Codiak will host an electronic data room or SharePoint Web site onto which Codiak and its Affiliates will upload certain relevant information and documentation relating to the Research Program (the “Electronic Data Room”). The Electronic Data Room will contain information reasonably calculated to keep Jazz apprised of the progress of the Research Program and will consist of the following: (a) all reports describing material results generated by Codiak or its Affiliates during the Research Program Term, taking into account Codiak’s usual procedures for processing, validating and ensuring quality control of raw research data (with the intention being that any such reports containing processed, validated and quality controlled data will be made available within the Electronic Data Room essentially at the same time as they become available to Codiak or its Affiliates or as soon as possible thereafter), (b) material research protocols, (c) material manufacturing assays and analytics, (d) material agreements with Third Parties relevant to the Research Program (subject to confidentiality provisions therein), and (e) other material information as mutually agreed upon by the Parties. For clarity, raw research data not contained in research reports will not be uploaded into the Electronic Data Room. Jazz and its Affiliates will be entitled, but not required, to upload information or documentation relating to the Research Program to the Electronic Data Room and to download information or documentation uploaded by Codiak or its Affiliates. Unless otherwise agreed, such data room will be fully accessible by Jazz and its Affiliates during the Term. In the event that, during the applicable Research Program Term, Codiak intends to shut down such dataroom for any period of time or permanently, it shall notify Jazz in advance and provide to Jazz and its Affiliates a copy of the contents of the Electronic Data Room prior to shutting down such data room.

2.3.6    Selection of Collaboration Candidates; Designation of Development Candidates. The JSC will select Collaboration Candidates for further Development under the Research Collaboration. The JSC will designate [***] Development Candidate for each Collaboration Target for further Development, Commercialization or other Exploitation pursuant to the terms of this Agreement and, subject to Section 4.1.2, Jazz may designate [***] Backup Candidates for such Collaboration Target.

Section 2.4    Subcontracting; Performance by Affiliates. Codiak will have the right to subcontract any of the activities assigned to it under any Work Plan (a) to any Third Party that

 

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has been pre-approved by Jazz and is designated in such Work Plan as an authorized (sub)contractor and (b) to any other Third Party only with the consent and written approval of the JSC (such consent not to be unreasonably withheld, conditioned or delayed). Unless the JSC has decided that the applicable type of subcontracting pursuant to this Section 2.4 by Codiak is exempt from the review requirements imposed by this Section 2.4, if Codiak desires to subcontract any of the activities assigned to it under any Work Plan to a Third Party, Codiak will notify Jazz regarding the identity of the Third Party and the nature of the contemplated subcontracting. Jazz will then have up to [***] to notify Codiak whether Jazz will review the applicable subcontracting and related agreements. If Jazz so notifies Codiak, Codiak will then provide the draft(s) of such agreement(s) to Jazz, and Jazz will have up to [***] to review and comment on such draft(s) from the date that Codiak provides such draft(s). Codiak will consider such comments in good faith but will have no obligation to implement them. Without limiting the foregoing, Codiak will promptly disclose to Jazz the executed versions of any agreements with such Third Party. Jazz and its Affiliates will have the right to subcontract any of its or their activities assigned to it or them under any Work Plan to a Third Party only with the consent and written approval of the JSC (such consent not to be unreasonably withheld, conditioned or delayed). Unless the JSC has decided that the applicable type of subcontracting pursuant to this Section 2.4 by Jazz is exempt from the review requirements imposed by this Section 2.4, if Jazz desires to subcontract any of the activities assigned to it under any Work Plan to a Third Party, Jazz will notify Codiak regarding the identity of the Third Party and the nature of the contemplated subcontracting. Codiak will then have up to [***] to notify Jazz whether Codiak will review the applicable subcontracting and related agreements. If Codiak so notifies Jazz, Jazz will then provide the draft(s) of such agreement(s) to Codiak, and Codiak will have up to [***] to review and comment on such draft(s) from the date that Jazz provides such draft(s). Jazz will consider such comments in good faith but will have no obligation to implement them. Without limiting the foregoing, Jazz will promptly disclose to Codiak the executed versions of any agreements with such Third Party. In each case, no such permitted subcontracting will relieve the subcontracting Party of any obligation hereunder. Each Party agrees that the other Party may perform some or all of its obligations under this Agreement through Affiliates (other than, in the case of Codiak, a Future Acquirer unless Jazz provides its prior written consent) for so long as they remain Affiliates of such other Party; provided that each Party will remain responsible and be a guarantor of the performance by its Affiliates and will cause its Affiliates to comply with the provisions of this Agreement in connection with such performance. Any breach by a Party’s Affiliate of any of such Party’s obligations under this Agreement shall be deemed a breach by such Party and the other Party may proceed directly against such Party without any obligation to first proceed against such Affiliate.

Section 2.5    Additional Collaboration Target, Replacement Target and Revived Collaboration Targets and Research Program. For so long as Jazz has the right to designate an Additional Collaboration Target or Replacement Target, upon Jazz’s reasonable request (such requests not to exceed [***] times per Calendar Year), Codiak shall disclose to Jazz those Targets that are Excluded Targets on the basis that Codiak has an active internal research program.

 

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2.5.1    Additional Collaboration Targets.

(a)    Jazz shall nominate one additional Target as a Collaboration Target by delivering a Collaboration Target Designation Notice within [***] of the Effective Date. If, (i) in the case of a nomination occurring within one year after the Effective Date, such nominated Target is neither a Pre-Existing Excluded Target nor qualifies for clause (b) of the definition of “Excluded Target”, or (ii) in the case of any other nomination, such nominated Target is a Designatable Target, in each case ((i) and (ii)), Codiak shall so notify Jazz and such nominated Target shall automatically become an additional Collaboration Target (an “Additional Collaboration Target”). If (x) in the case of a nomination occurring within [***] after the Effective Date, such nominated Target is either a Pre-Existing Excluded Target or qualifies for clause (b) of the definition of “Excluded Target”, or (y) in the case of any other nomination, such nominated Target is an Excluded Target other than any Excluded Target listed on the most-recently-provided list of Excluded Targets provided by Codiak to Jazz pursuant to Section 2.5, then, in each case ((x) and (y)), Codiak shall promptly notify Jazz, and Jazz shall have the right to repeat the nomination process provided by this Section 2.5.1(a) within [***] after Jazz’s receipt of such notification, at which point in time such right shall expire if not already exercised, provided that Jazz shall have the right to repeat such nomination process until a Target is successfully nominated.

(b)    Jazz may nominate [***] replacement Target as a Collaboration Target if [***] Collaboration Targets fail prior to IND Acceptance, by delivering a Collaboration Target Designation Notice within [***] following the failure of the second of such two Collaboration Targets. If such nominated Target is a Designatable Target, Codiak shall so notify Jazz and such nominated Target shall automatically become a replacement Collaboration Target (a “Replacement Target”). If such nominated Target is an Excluded Target other than any Excluded Target listed on the most-recently-provided list of Excluded Targets provided by Codiak to Jazz pursuant to Section 2.5, then Codiak shall promptly notify Jazz, and Jazz shall have the right to repeat the nomination process provided by this Section 2.5.1(b) within [***] after Jazz’s receipt of such notification, at which point in time such right shall expire if not already exercised, provided that Jazz shall have the right to repeat such nomination process until a Target is successfully nominated.

(c)    Jazz may re-designate any Discontinued Target as a Collaboration Target (each, a “Revived Target”) by delivering a Collaboration Target Designation Notice within [***] after the termination of the Research Program for such Discontinued Target pursuant to clause (c) of Section 2.2 in the event that (i) Jazz or Codiak has received additional data indicating that such Discontinued Target may be a viable Collaboration Target or (ii) Codiak notifies Jazz pursuant to this Section 2.5.1(c) that it has re-initiated an active internal research program with respect to the applicable Discontinued Target. Codiak shall notify Jazz if Codiak initiates an active internal research program with respect to any Discontinued Target.

In each case (a), (b), and (c) the Parties will agree in good faith upon a Work Plan for such newly designated Additional Collaboration Target, Replacement Target, or Revived Target, as applicable, using the form of Work Plan attached hereto as Exhibit B. For purposes of this Section 2.5.1, “Designatable Target” means any oncology Target that is not an Excluded Target.

 

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2.5.2    Additional Research Program. Unless and until Jazz designates an Additional Collaboration Target pursuant to clause (a) of Section 2.5.1, Jazz has the one-time right to initiate a [***] Research Program for any [***] Initial Collaboration Target. If Jazz does so, the Parties will agree in good faith upon a Work Plan for such new Research Program, and such new Research Program shall be a Research Program for all purposes hereunder.

Section 2.6    Transition Plan. Promptly after the first JSC meeting, Codiak and its Affiliates will begin a process of transferring the Codiak Know-How to Jazz and its Affiliates in accordance with the procedures and timelines to be agreed upon at the first JSC meeting.

Section 2.7    Governance of Research Programs.

2.7.1    Joint Steering Committee.

(a)    Formation and Composition. Within [***] after the Effective Date, (i) the Parties shall establish a joint steering committee (the “Joint Steering Committee” or “JSC”) that includes as its representatives up to [***] senior executives of each Party with appropriate experience and authority to discharge their responsibilities, and (ii) each Party shall notify the other of its designated senior executives. Each Party may change its JSC representatives from time to time by written notice to the other Party; provided that the new JSC representatives are senior executives with such experience and authority. Each Party will designate one of its JSC members as a co-chair. Each Party may allow additional employees to attend meetings of the JSC subject to the confidentiality provisions of ARTICLE IX.

(b)    Functions and Authority. The JSC will be responsible for overseeing the Research Collaboration and the Research Programs, Phase I Clinical Trials, Phase I/II Clinical Trials, and Phase II Clinical Trials (for so long as Codiak or its Affiliates are conducting such trials), and any Development after the exercise by Codiak of its Development and Commercialization Option, and will oversee the activities under the Co-Promotion Agreement(s), if applicable, as set forth below. Its functions (which may be delegated to any subcommittees) include:

i.    Oversee the conduct of the Research Programs, the EDPs and the JDPs, including reviewing any expected or actual delays in the conduct of the activities thereunder;

ii.    Oversee the commencement of IND-Enabling Studies and designation of Development Candidates;

iii.    Oversee development of regulatory strategies for the Licensed Compounds and Licensed Products;

 

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iv.    Review and approve Work Plans (subject to Section 2.3), EDPs, JDPs, and Shared Territory Commercialization Plans and, to the extent applicable, corresponding budgets and amendments to any of the foregoing, including in connection with Schedule 4.3.3;

v.    As contemplated in Section 2.4 and Section 4.6, approve subcontractors, decide which types of subcontractor agreements do not require review, and otherwise consider ways to streamline review of subcontracting;

vi.    Coordinate the Manufacturing activities and technology transfer activities of Codiak and its Affiliates and Jazz and its Affiliates hereunder and under any supply agreement entered into by the Parties or their respective Affiliates;

vii.    Facilitate the flow of information between the Parties regarding Development, and the transfer of Codiak Know-How and Research Program Materials in accordance with the applicable Work Plan;

viii.    Resolve issues referred to the JSC by the Alliance Managers or any subcommittee created by the JSC;

ix.    Review reports received from either Party as contemplated herein;

x.    Coordinate the logistics of the Parties’ financial reporting obligations;

xi.    Following exercise of the Development and Commercialization Option, review and discuss Jazz’s reports and updates to the JSC regarding its Commercialization activities and plans for Licensed Products in the Shared Territory;

xii.    Following exercise of the Development and Commercialization Option, (1) review and update financial forecasts at least quarterly to ensure actual and anticipated spend is within the approved Commercial Budget; and (2) to the extent that any Commercialization costs and expenses apply to both the Shared Territory and the ROW, reasonably allocate such costs between the Shared Territory and the ROW based on the expected benefit in the Shared Territory and the ROW as determined by the composition of the expected target audience or any other reasonable criteria determined by the JSC;

xiii.    Discuss and attempt to resolve financial disputes and accounting issues, including the interpretation of relevant defined financial terms, in order to achieve the proper allocation of Development Costs and the sharing of Net Profit/Net Losses in the manner set forth in this Agreement; and

xiv.    Such other matters as the Parties may mutually agree in writing or as are assigned to the JSC herein.

 

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(c)    JSC - Meetings. During the Term, the JSC will meet in person or by teleconference or videoconference at least [***] a year until it is disbanded, and otherwise as frequently as needed. The presence of at least two representatives of each of Jazz and Codiak at a meeting will constitute a quorum.

(d)    JSC - Decisions. Each Party’s representatives on the JSC will have one collective vote in all decisions, and, for clarity, no decision will be a decision of the JSC or have any effect unless each Party, through its representatives on the JSC, voted in favor of, or provided its written consent to, such decision. The JSC will strive to make decisions by consensus, either as discussed and decided during JSC meetings or by written consent, provided, however, that (i) if the JSC cannot reach agreement by consensus within [***] Days (or such longer period of time as the Parties may agree) for an issue being brought to a vote, then such matter will be referred by the Alliance Managers to a senior executive to be designated by Jazz (the “Jazz Executive”) and a senior executive to be designated by Codiak (the “Codiak Executive”), and (ii) in the event the matter remains unresolved [***] after being referred to the Parties’ executives pursuant to clause (i) then the status quo shall prevail unless one Party has final decision-making authority as set forth below: [***].

(e)    JSC - Subcommittees. The JSC will be entitled to form subcommittees to which it may delegate responsibilities, such as a joint research committee, a joint development committee, a joint manufacturing committee, a joint finance committee, a joint patent committee, or, in the case of the exercise of the Development and Commercialization Option by Codiak, a joint commercialization committee. Any such subcommittees will be governed by rules established by the JSC and may make such decisions in lieu of the JSC as delegated by the JSC.

(f)    JSC - Minutes and Reports. The Joint Steering Committee will maintain accurate minutes of its meetings, including all proposed decisions and recommended actions or decisions taken. The Alliance Managers will alternate preparing the draft minutes. Such minutes will record accurately all proposed decisions, recommendations, and final decisions of the JSC. The Alliance Managers will in good faith use their best efforts to agree on draft minutes of each meeting promptly following the meeting but in no event later than [***] after the meeting, and the draft minutes will be distributed by the Alliance Managers to the members of the JSC within [***] after each meeting. Such draft minutes will be deemed final and approved by the Parties [***] after such distribution. A presentation utilized during the JSC meeting will include a summary of (i) the status of the Research Programs, (ii) any issues requiring decisions or resolution by the JSC, and (iii) any proposed decisions or resolutions with respect thereto as prepared by the JSC and consolidated by the Alliance Managers. This presentation will be filed together with the JSC meeting agenda and minutes in the Electronic Data Room.

(g)    JSC - Duration. The Joint Steering Committee will be in existence until its disbandment. Jazz may disband the Joint Steering Committee at any time if (i) all Work Plans are completed or terminated, (ii) Codiak has completed its obligations to conduct Phase I Clinical Trials, Phase I/II Clinical Trials, and Phase II Clinical Trials, (iii) Codiak has not exercised its Development and Commercialization Options and has no further

 

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right to exercise such an option and (iv) the Manufacturing of all Licensed Products has been transferred to Jazz or its Affiliates. In such a case, all subcommittees thereto shall be disbanded and the Parties shall resolve any disputes pursuant to the escalation and dispute resolution provisions of this Agreement.

2.7.2    Alliance Managers.

(a)    Within [***] following the Effective Date, each Party will designate an individual to act as the primary point of contact between the Parties (each such individual, an “Alliance Manager) to facilitate the effective exchange of information between the Parties, discuss the Parties’ respective performance under this Agreement, assist with governance activities and serve as the initial point of contact to resolve any disputes between the Parties. The Alliance Manager will be responsible for (i) the launch of the Research Collaboration and (ii) coordinating the activities of the JSC, facilitating the scheduling and conduct of the JSC meetings, being responsible for the preparation and circulation of the JSC meeting agenda and minutes and ensuring that relevant action items from JSC meetings are addressed. A Party may replace its designated Alliance Manager at any time by written notice to the other Party.

(b)    After the disbanding of the JSC, the Alliance Managers will remain as the primary point of contact for the exchange of information under this Agreement but excluding day-to-day scientific exchanges between the Parties or where notice is required to be given by the terms of this Agreement.

Section 2.8    Use of Materials. Each Party acknowledges and agrees that (a) it will not use any Research Program Materials of the other Party for any purpose other than (i) activities set forth in a Work Plan or (ii) with respect to Jazz or its Affiliates as the receiving Party, other than within the scope of the licenses granted to it or them hereunder, (b) it will only use Research Program Materials in compliance with all Applicable Laws, and (c) except as otherwise provided hereunder or in a Work Plan, it (i) will not reverse engineer, deconstruct or analyze (for the purpose of reverse engineering or deconstruction) any of the Research Program Materials of the other Party but may perform any such activities with respect to any Collaboration Candidate, and (ii) will not transfer or make available any Research Program Materials to any Third Party without the express prior written consent of the other Party (which consent once given for a Third Party shall remain in effect unless and until revoked by the consenting Party), except that Jazz or its Affiliates may, without such consent, transfer any Research Program Materials to its or their sublicensees and (sub)contractors for use within the scope of the licenses granted to it hereunder. At the end of the applicable Research Program Term, each Party will return to the other Party any Research Program Materials of the other Party as to which such Party does not have continuing rights to use as specified hereunder. Each Party receiving any Research Program Materials understands and agrees that such Research Program Materials (w) may be experimental in nature or may not have been fully researched, (x) are provided “as is”, (y) may have hazardous properties, and (z) are used by it at its own risk and sole liability. Each Party receiving any Research Program Materials further agrees that such Party’s (or its Affiliate’s, sublicensee’s or (sub)contractor’s) use of any received Research Program Materials will be limited to its (or its Affiliate’s or (sub)contractor’s) premises, and that such Research Program

 

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Materials will be handled and, where applicable, disposed of (1) with the highest degree of care with regard to the toxicological and environmental dangers associated therewith, (2) in accordance with all Applicable Laws, including all health and safety at work requirements and all applicable regulations relating to work with recombinant materials, and (3) by personnel that are fully trained in relevant procedures.

ARTICLE 3.

LICENSING

Section 3.1    Licenses.

3.1.1    Development and Commercialization License. Codiak and its Affiliates will, and do hereby, grant to Jazz an exclusive (including with respect to Codiak and its Affiliates, provided that Codiak retains the right to perform its obligations hereunder and, if applicable, under any Co-Promotion Agreement), perpetual and irrevocable (except as set forth in ARTICLE XIII) license, with the right to sublicense through multiple tiers (subject to Section 3.2), to and under the Licensed IP to Develop, Manufacture (including have made rights), Commercialize, and otherwise Exploit Licensed Compounds and Licensed Products in the Field in the Territory (such license, the “Development and Commercialization License”). For the avoidance of doubt, all Codiak Platform Improvements, Included Codiak Platform Additions, and Codiak Platform Addition Blocking IP is included in the Licensed IP to the extent that such Codiak Platform Improvements, Included Codiak Platform Additions, and Codiak Platform Addition Blocking IP is owned or Controlled by Codiak.

3.1.2    Codiak Trademark License. Effective as of the Effective Date, Codiak and its Affiliates will, and do hereby, grant to Jazz a non-exclusive, perpetual and irrevocable (except as set forth in ARTICLE XIII) license in the Field in the Territory, with the right to sublicense through multiple tiers, to and under its and their corporate names and logos as necessary in connection with Jazz’s Exploitation of the Licensed Products.

Section 3.2    Sublicensing. Jazz shall have the right to sublicense the rights and licenses granted by Codiak to Jazz under Section 3.1 to (a) subject to Section 4.6, subcontractors, (b) Sublicensees (including collaborators), and (c) Affiliates, in each case without the consent of Codiak, but subject, in each case ((a), (b), and (c)), to the terms and conditions of this Agreement; provided that, in each case, (i) such sublicense shall be in writing and consistent with the terms and conditions of this Agreement, and (ii) Jazz shall (A) require each such sublicensee to comply with the applicable terms and conditions of this Agreement and (B) remain responsible and liable for all acts and omissions of any such sublicensee in connection with this Agreement, including any such acts or omissions as relate to Jazz’s reporting and inspection obligations hereunder. Jazz will notify Codiak of any sublicenses that Jazz or its Affiliates grant to Sublicensees pursuant to Section 3.1 within [***] after execution of such sublicense and shall provide a copy of any such executed sublicense agreement (which copy may be redacted to remove information that is not necessary to confirm compliance with the applicable terms and conditions of this Agreement) to Codiak within [***] of any request therefor by Codiak.

 

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Section 3.3    Use and Licensing of Platform-Related Third Party Technologies.

3.3.1    Codiak First Right. If, in connection with its activities hereunder, Jazz becomes aware of any Third Party intellectual property that Jazz [***], then Jazz will notify Codiak of the existence of such [***] and any details regarding such [***], including the identity of the Third Party that owns or Controls the rights to such [***], that are available to Jazz and to the extent Jazz can make such disclosure without breaching any Third Party agreements or Applicable Law. Upon receipt of such notice, if Codiak notifies Jazz [***], then Jazz will defer pursuing rights with respect to such [***] for a mutually agreed reasonable period of time after such notice so that Codiak [***]; provided that such deferral period shall cease immediately if such [***] pertains to [***]. If Codiak obtains a license or similar rights to such [***], such rights shall be made available to Jazz in accordance with the terms of this Agreement, including this Section 3.3.

3.3.2    Codiak Disclosure Obligation. [***].

3.3.3    Responsibility for Payments for Codiak Platform Improvements and Codiak Platform Additions. Except as expressly set forth in this Section 3.3.3, Codiak will be responsible for all payment obligations owing to Third Parties under licenses or other agreements to which Codiak or any of its Affiliates is a party, including any licenses obtained for the purpose of using any Codiak Platform Pre-Existing Technology, Codiak Platform Improvement, or Deemed Included Codiak Platform Addition (including any Excluded Codiak Platform Addition if and when such Excluded Codiak Platform Addition becomes a Deemed Included Codiak Platform Addition). [***].

3.3.4    Notice Regarding Excluded Codiak Platform Additions. In the event that [***], Codiak hereby covenants to Jazz that Codiak, its Affiliates, and (sub)licensees will provide notice [***] in respect thereof that may be infringed or misappropriated [***].

3.3.5    Jazz Veto; Codiak Reimbursement for Certain Jazz Licenses.

(a)    Jazz Veto. Without limiting the foregoing, if Codiak or its Affiliates intend to use in any Research Program, EDP or JDP any technology that Codiak knows or should reasonably expect would (i) require Jazz or its Affiliates to obtain a license to any Third Party intellectual property in order to avoid infringing a patent or a pending patent application that, if issued, would be infringed or (ii) misappropriate any Third Party intellectual property in the course of Exploiting Licensed Compounds or Licensed Products as contemplated hereunder, then Codiak will notify Jazz of such intended use and will not proceed with such intended use without Jazz’s prior written consent.

(b)    Codiak Reimbursement for Certain Jazz Licenses. If (i) the Exploitation by Jazz of any Codiak Platform Pre-Existing Technology, Codiak Platform Improvement, or Deemed Included Codiak Platform Addition in connection with the Exploitation of Licensed Compounds or Licensed Products as contemplated hereunder would infringe or misappropriate any intellectual property that is owned or Controlled by a Third Party, and (ii) the Parties agree, with Codiak’s agreement not to be unreasonably withheld, that Jazz will obtain a license or other similar rights from such Third Party on terms and conditions to be negotiated in good faith in order to avoid such infringement or misappropriation, then Codiak

 

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shall reimburse Jazz for [***] made by Jazz to such Third Party in connection with obtaining and maintaining such license or rights as and to the extent pertaining to the Exploitation of Licensed Compounds or Licensed Products as contemplated hereunder.

Section 3.4    Reciprocal Technology.

3.4.1    Reciprocal Codiak Partner Technology. Codiak and its Affiliates will ensure that each (sub)licensee of Codiak or its Affiliates with respect to the Codiak Platform Know-How or Codiak Platform Patent Rights has agreed to (a) promptly disclose in writing to Codiak or its Affiliates any Reciprocal Codiak Partner Technology, including all relevant information and materials with respect thereto, and (b) assign, for clarity, at no cost to Jazz, such Third Party’s rights and interests in such Reciprocal Codiak Partner Technology to Codiak or its Affiliates or grant to Codiak or its Affiliates the irrevocable and royalty-free right and license to Exploit such Reciprocal Codiak Partner Technology, including a right to sublicense (through multiple tiers) to Third Parties or Jazz to at least the same extent as Jazz is permitted to Exploit the Licensed Compounds and Licensed Products pursuant to Section 3.1.1.

3.4.2    Reciprocal Jazz Partner Technology.

(a)    Jazz and its Affiliates will ensure that each sublicensee of Jazz or its Affiliates with respect to the Codiak Platform Know-How or Codiak Platform Patent Rights has agreed to (a) promptly disclose in writing to Jazz or its Affiliates any Reciprocal Jazz Partner Technology, including all relevant information and materials with respect thereto, and (b) assign, for clarity, at no cost to Codiak, such Third Party’s rights and interests in such Reciprocal Jazz Partner Technology to Jazz or its Affiliates or grant to Jazz or its Affiliates the irrevocable and royalty-free right and license to Exploit such Reciprocal Jazz Partner Technology, including a right to sublicense (through multiple tiers) to Codiak, to at least the same extent as Codiak is permitted to Exploit Reciprocal Jazz Partner Technology pursuant to Section 3.4.2(b).

(b)    Jazz will, and does hereby, grant to Codiak an exclusive, perpetual, irrevocable, and royalty-free (subject to Section 13.5.3(b)) license, with the right to sublicense through multiple tiers (subject to Section 3.2), to and under the Reciprocal Jazz Partner Technology to Exploit any compound or product in any field in any territory, other than to Develop, Manufacture (including have made rights), Commercialize, or otherwise Exploit Licensed Compounds or Licensed Products in the Field in the Territory.

Section 3.5    No License. Other than as explicitly provided for in this Agreement, nothing in this Agreement grants or will be construed to grant to either Party (a) any right or license to any intellectual property right or application therefor (including patent applications or patents) that are held by or that are in the name of the other Party or to any Confidential Information of the other Party; or (b) any claim or option to any such right or license.

Section 3.6.    [***]

 

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ARTICLE 4.

DEVELOPMENT

Section 4.1    Early Development Program.

4.1.1    Responsibilities. Once the JSC has designated a Development Candidate, Codiak and its Affiliates will conduct the IND-Enabling Studies, Phase I Clinical Trials, Phase I/II Clinical Trials, and Phase II Clinical Trials and related activities in respect of such Development Candidate (each such program, an “Early Development Program”) in accordance with the terms of this Section 4.1.1. Each Early Development Program conducted by Codiak and its Affiliates shall be conducted pursuant to an early Development plan approved by the JSC (each, an “Early Development Plan” or “EDP”) that describes in each case with respect to the applicable Development Candidate: (a) any Non-Clinical Studies, IND-Enabling Studies, toxicology, CMC Development, Phase I Clinical Trials, Phase I/II Clinical Trials and Phase II Clinical Trials, and associated timelines and priorities, (b) the anticipated tasks and responsibilities and resource allocation of each Party, if applicable, (c) a Development Budget for all such activities, and (d) the non-GLP toxicology studies that are to be conducted for any corresponding Backup Candidates selected by Jazz. In the event of any inconsistency between the EDP and this Agreement, the terms of this Agreement shall prevail. Any changes to any EDP shall require the mutual agreement of the Parties.

4.1.2    Backup Candidates. The Parties agree that each EDP will cover the conduct of non-GLP toxicology studies of Backup Candidates selected by Jazz for the applicable Development Candidate. Codiak will only be responsible for the Development Costs of [***] Backup Candidate for each of the first [***] Development Candidates up to and including any non-GLP toxicology studies performed with respect to such Backup Candidate. For clarity, except to the extent that the applicable Development Cost in respect of a Backup Candidate arises out of a breach of this Agreement by Codiak, including due to a material deviation from the applicable EDP made without approval of the JSC, and except to the extent that the applicable Development Cost in respect of a Backup Candidate is reimbursed by a Third Party to Codiak, Jazz will be responsible for all other Development Costs with respect to the Development of Backup Candidates, including all Development Costs with respect to (a) more than [***] Backup Candidate for each of the first [***] Development Candidates, (b) any and all Backup Candidates for all other Development Candidates subsequent to the first [***] Development Candidates, and (c) IND-Enabling Studies under GLP.

4.1.3    Early Development Costs. Subject to Section 4.1.2, if applicable, Codiak will be responsible for the Development Costs it or its Affiliates incur in connection with the Early Development Programs for the first [***] Development Candidates up to and including IND Acceptance for the corresponding INDs. Thereafter, Codiak shall be responsible for the first [***] dollars [***] of Development Costs incurred by Codiak or its Affiliates with respect to the Phase I Clinical Trials, Phase I/II Clinical Trials and Phase II Clinical Trials and other related activities set forth in the applicable EDP for each of the first two Development Candidates to commence Clinical Trials. Jazz shall reimburse Codiak for any Development Costs incurred by Codiak or its Affiliates for such Clinical Trial activities in

 

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excess of [***] per each of such Development Candidates, except to the extent that such excess arises out of a breach of this Agreement by Codiak, including due to a deviation from the applicable EDP, and except to the extent that such excess is reimbursed by a Third Party to Codiak (such excess as is reimbursable by Jazz to Codiak, the “Allowed Overage”). Subject to Section 8.2 and Section 8.3, Jazz will be responsible for all other Development Costs incurred by the Parties in connection with any Early Development Program through the end of Phase II Clinical Trials. Invoicing of Jazz for any Development Costs as to which it has a reimbursement obligation hereunder shall be according to Section 8.5. If Codiak reasonably believes that it will incur Development Costs in excess of [***] dollars [***] for Clinical Trial activities for a Development Candidate for which Jazz is obligated to reimburse Codiak pursuant to this Section 4.1.3, Codiak shall promptly notify Jazz regarding the expected amount of such excess and shall promptly notify Jazz again if such expected amount materially changes. If Jazz has refused to pay, or has not paid, the invoices pursuant to Section 8.5 for all Allowed Overages for an Early Development Program, then Codiak will have no obligation to complete, and may discontinue, such Early Development Program.

Section 4.2    Later Product Development. Except for the activities of Codiak or its Affiliates pursuant to the Research Programs and the EDPs, Jazz and its Affiliates shall have the sole right to conduct, at its sole cost and expense, all Development of Licensed Compounds and Licensed Products, including all Phase III Clinical Trials and any Phase IV Clinical Trials, in its sole discretion (but subject to its diligence obligations under Section 4.4), subject to Codiak’s exercise of its Development and Commercialization Option, which, if exercised, would require the Parties to conduct the Joint Development Program in accordance with Section 4.3.

Section 4.3    Joint Development Program.

4.3.1    Development and Commercialization Option. For up to two of the Licensed Products, on a Licensed Product-by-Licensed Product basis, Codiak is hereby granted the option (the “Development and Commercialization Option”), exercisable by written notice to Jazz at any time on or before the [***] after the FDA’s Positive Response with respect to such Licensed Product, to elect to participate in the further Development of such Licensed Product for the Shared Territory as set forth herein. Notwithstanding the foregoing, Codiak’s Development and Commercialization Option shall be deemed not exercised in respect of a Licensed Product if Jazz notifies Codiak within [***] of receipt of such notice from Codiak that Jazz is exercising its veto right with respect to such Licensed Product, which right may be exercised by Jazz with respect to only one Licensed Product. If (a) Codiak exercises a Development and Commercialization Option in respect of a Licensed Product and (b) Jazz does not exercise its veto right with respect to such Licensed Product, then such Licensed Product shall be an “Optioned Product” for all purposes hereunder.

4.3.2    Codiak Rights and Responsibilities for Optioned Products. For each Optioned Product, Codiak shall be responsible for Development Costs as and to the extent set forth in Section 8.4, including any start-up costs associated therewith whether occurring prior to or after the exercise of the applicable Development and Commercialization Option. In exchange, Codiak shall have (a) the right and obligation to share Net Profits/Net Losses for such Optioned Product in the Shared Territory as set forth in ARTICLE VIII, (b)

 

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certain joint decision making rights for such Joint Development Program, and (c) the right to participate in certain Commercialization activities for such Optioned Product, in each case as further described in this Agreement, including ARTICLE VI.

4.3.3    Joint Development Program and Joint Development Plan. All Development hereunder for an Optioned Product for the Shared Territory shall be referred to as the “Joint Development Program” for such Optioned Product. The Joint Development Program for each Optioned Product shall, subject to Schedule 4.3.3, be conducted pursuant to a detailed Development plan compiled by and approved by the JSC, with Jazz having final decision-making authority (each, a “Joint Development Plan” or “JDP”), that describes in each case for the applicable Optioned Product in the Shared Territory: (a) the proposed overall Joint Development Program, including costs of Manufacture of clinical supplies of such Optioned Product, (b) regulatory plans, and (c) the Development Budget for the Joint Development Program. In the event of any inconsistency between the JDP and this Agreement, the terms of this Agreement shall prevail.

4.3.4    Amendments to the JDP. On an annual basis, or more often as Jazz deems appropriate, including to the extent permitted by Schedule 4.3.3, Jazz shall prepare and submit to the JSC for approval amendments to the then-current JDP(s), including the Development Budget(s). Once approved by the JSC, the amended JDP(s) and Development Budget(s) shall become effective for the applicable period on the date approved by the JSC (or such other date as the JSC may specify). Any JSC-approved amended JDP or Development Budget shall supersede the previous JDP or Development Budget, as applicable, for the applicable period.

4.3.5    Lead Development Party. Jazz and its Affiliates will have operational responsibility for leading the conduct of and executing all studies under each JDP as then in effect, subject to the right of Codiak and its Affiliates to participate in any such activities as are allocated to it or them under such JDP, and to provide input, which Jazz and its Affiliates will consider in good faith. In the event the Parties through the JSC disagree with respect to any operational aspects of any Non-Clinical Studies or Clinical Trials in the JDP, Jazz will have the final say with respect to such aspect.

Section 4.4    Development Diligence and Standards of Conduct. Following successful completion of each EDP, Jazz shall use Commercially Reasonable Efforts to Develop the applicable Licensed Product. Each Party shall use Commercially Reasonable Efforts to carry out the tasks assigned to it under each JDP. Each Party shall conduct its Development activities hereunder in a good scientific manner and in compliance with all Applicable Laws.

Section 4.5    Development Records and Reports. Each Party shall maintain complete and accurate records (in the form of technical notebooks or electronic files where appropriate) of all Development work conducted by it hereunder and all information resulting from such work. Such records, including any electronic files where such information may also be contained, shall fully and properly reflect all work done and results achieved in sufficient detail and in good scientific manner appropriate for patent and regulatory purposes. Each Party shall have the right to review and copy such records maintained by the other Party at reasonable times and to obtain access to originals to the extent needed for patent or regulatory purposes or for other legal proceedings.

 

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4.5.1    Development Reports.

(a)    Codiak and its Affiliates and Jazz and its Affiliates each shall provide updates to the JSC of its and their activities and results under each EDP and each JDP, if any.

(b)    Following the completion of activities under an EDP, and prior to the lapse or exercise by Codiak of the Development and Commercialization Option in respect of all corresponding Licensed Product(s), Jazz and its Affiliates will be responsible for further Development of such Licensed Product(s) and will keep Codiak reasonably informed regarding material Development activities in respect thereof.

Section 4.6    (Sub)contracts. Jazz and its Affiliates may engage one or more (sub)contractors or consultants to perform its and their Development activities hereunder. Unless the JSC has decided that the applicable type of subcontracting pursuant to this Section 4.6 by Jazz is exempt from the review requirements imposed by this Section 4.6, if Jazz desires to subcontract any of the activities assigned to it under any EDP or JDP to a Third Party, Jazz will notify Codiak regarding the identity of the Third Party and the nature of the contemplated subcontracting. Codiak will then have up to [***] to notify Jazz whether Codiak will review the applicable subcontracting and related agreements. If Codiak so notifies Jazz, Jazz will then provide the draft(s) of such agreement(s) to Codiak, and Codiak will have up to [***] to review and comment on such draft(s) from the date that Jazz provides such draft(s). Jazz will consider such comments in good faith but will have no obligation to implement them. Without limiting the foregoing, Jazz will promptly disclose to Codiak the executed versions of any agreements with such Third Party. Codiak may engage one or more (sub)contractors or consultants to perform its Development obligations hereunder; provided that such (sub)contractor must first be designated in the applicable EDP or JDP, as applicable, as an authorized (sub)contractor for the performance of such Development activities, and provided further that, unless the JSC has decided that the applicable type of subcontracting pursuant to this Section 4.6 by Codiak is exempt from the review requirements imposed by this Section 4.6, if Codiak desires to subcontract any of its Development obligations hereunder to a Third Party, Codiak will notify Jazz regarding the identity of the Third Party and the nature of the contemplated subcontracting. Jazz will then have up to [***] to notify Codiak whether Jazz will review the applicable subcontracting and related agreements. If Jazz so notifies Codiak, Codiak will then provide the draft(s) of such agreement(s) to Jazz, and Jazz will have up to [***] to review and comment on such draft(s) from the date that Codiak provides such draft(s). Codiak will consider such comments in good faith but will have no obligation to implement them. Without limiting the foregoing, Codiak will promptly disclose to Jazz the executed versions of any agreements with such Third Party.

 

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ARTICLE 5.

REGULATORY MATTERS

Section 5.1    Regulatory Filings and Approvals.

5.1.1    In General. Subject to the remaining provisions of this Section 5.1.1, with respect to each Licensed Compound or Licensed Product, the Party leading the Development activities for such Licensed Compound or Licensed Product shall be the “Lead Regulatory Party” with respect to corresponding regulatory activities. Upon request of Jazz at any time after filing of the IND for a Licensed Compound or Licensed Product, Codiak and its Affiliates will transfer such IND to Jazz or its designated Affiliate(s) and will provide reasonable support to Jazz and such Affiliate(s) in respect of such transfer. Upon such transfer Jazz shall become the Lead Regulatory Party for such Licensed Compound or Licensed Product. Subject to JSC oversight, the Lead Regulatory Party will be responsible for developing and implementing the regulatory strategy for the applicable Licensed Compound or Licensed Product and shall have full decision-making authority with respect thereto; provided, however, that such authority shall be exercised in a manner consistent with the EDP, and provided further that, in the case of Codiak as Lead Regulatory Party, Jazz and its Affiliates shall have first had the opportunity, pursuant to Section 5.1.1(b), to provide input on corresponding Regulatory Materials.

(a)    Regulatory Responsibilities. The Lead Regulatory Party shall be responsible for preparing and filing all applicable Regulatory Materials, shall be the holder of all applicable Regulatory Materials and will have primary operational responsibility for interactions with the applicable Regulatory Authorities, including taking the lead role at all meetings with such Regulatory Authorities, subject to the right of (i) Jazz and its Affiliates, in the case in which Codiak is the Lead Regulatory Party, to participate in such activities and to provide input, which Codiak and its Affiliates will consider in good faith, and to have any IND transferred to Jazz or its Affiliates as set forth above and (ii) Codiak, if it has exercised the Development and Commercialization Option, to provide input relating to the Development of Optioned Product(s) for the Shared Territory under the applicable JDP(s), which Jazz and its Affiliates will consider in good faith.

(b)    Reporting and Review. The JSC shall develop and implement procedures for drafting and reviewing Regulatory Materials for the Licensed Products that allow (i) Jazz and its Affiliates to provide input prior to the filing of such Regulatory Materials by Codiak or its Affiliates or (sub)contractor and (ii) Codiak to provide substantive input prior to the filing of such Regulatory Materials by Jazz and its Affiliates to the extent relating to any CMC information or the Codiak Platform, or to any Non-Clinical Studies, IND-Enabling Studies, Phase I Clinical Trials, Phase I/II Clinical Trials, or Phase II Clinical Trials that Codiak or its Affiliates are conducting or relating to the filing of Regulatory Materials for any Optioned Product in the Shared Territory.

Section 5.2    Regulatory Costs. All regulatory costs incurred by or on behalf of either Party hereunder will be allocated and treated as Development Costs and included in the applicable Development Budget, if any.

Section 5.3    Product Withdrawals and Recalls. Any decision to initiate a recall or withdrawal of a Licensed Product shall be made by Jazz or its applicable Affiliate. In the event of any such recall or withdrawal, Jazz shall take any and all necessary action to implement such recall or withdrawal in accordance with Applicable Laws, with assistance from Codiak and its

 

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Affiliates as reasonably requested by Jazz. The costs of any such recall or withdrawal shall be borne solely by Jazz, except where Codiak has exercised a Development and Commercialization Option, in which case any recall expenses with respect to the applicable Licensed Product within the Shared Territory shall be treated as Development Costs prior to First Commercial Sale of the applicable Licensed Product and thereafter as Allowable Expenses. Notwithstanding the foregoing, to the extent there is any conflict between this Section 5.3 and any supply agreement (or associated quality agreement or SDEA) entered into by the Parties regarding the Licensed Products, such supply agreement (or associated quality agreement or SDEA) will control regarding the conduct and costs of any recalls or withdrawals of a Licensed Product.

Section 5.4    Cooperation with Governmental Authorities. Upon request by Jazz or its Affiliates, Codiak and its Affiliates will (a) provide the FDA and other applicable Governmental Authorities full access to all Codiak Regulatory Documentation and Licensed IP, (b) deploy appropriate personnel to attend meetings with such Governmental Authorities, or (c) provide any other assistance to Jazz or its Affiliates, in each case ((a), (b), and (c)), in respect of the applicable Development Candidate and to the extent necessary or useful for the FDA and other applicable Governmental Authorities (i) to consider and approve Jazz, its Affiliate, its (sub)licensee or a Third Party designated by Jazz as a Manufacturer of the Licensed Products corresponding to such Development Candidate, or (ii) to consider and act upon any filings with such Governmental Authorities with respect to such Licensed Products, including for Regulatory Approvals thereof.

Section 5.5    Standards of Conduct. Each Party shall make regulatory filings, seek Regulatory Approvals and conduct all other regulatory activities under this ARTICLE V in compliance with all Applicable Laws, including any applicable Anti-Corruption Laws.

Section 5.6    (Sub)contracts. The Parties acknowledge that Section 4.6 applies to the activities to be carried out under this ARTICLE V.

ARTICLE 6.

COMMERCIALIZATION

Section 6.1    Overview. Subject to the remainder of this ARTICLE VI and any applicable Co-Promotion Agreement, Jazz and its Affiliates shall have the sole right and responsibility for Commercializing all Licensed Products in the Field in the Territory. On a Collaboration Target-by-Collaboration Target basis, Jazz, by itself or through its Affiliates or Sublicensees, will, following the receipt of Regulatory Approval for the applicable Licensed Product(s) in the applicable jurisdiction, use Commercially Reasonable Efforts to Commercialize one or more Licensed Product(s) in (a) the United States, (b) Japan and (c) [***]. Jazz shall perform, and shall use reasonable efforts to ensure that its Affiliates, Sublicensees and Third Party contractors perform, its Commercialization activities with respect to the Licensed Products under this ARTICLE VI in compliance with all Applicable Laws, including any applicable Anti-Corruption Laws.

Section 6.2    Commercialization in the Shared Territory after Development and Commercialization Option Exercise. This Section 6.2 shall apply to each Optioned Product.

 

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6.2.1    Co-Promotion Election. In connection with the exercise of its Development and Commercialization Option with respect to a Licensed Product, by inclusion in the written exercise notice delivered by Codiak to Jazz, Codiak shall indicate whether it desires to co-promote such Optioned Product or not and if so, then it shall indicate what percentage (not to exceed [***]) of all sales representative activities for such Optioned Product it desires to conduct. If Codiak provides this notice, then the Parties shall promptly negotiate and enter into a reasonable, mutually agreed co-promotion agreement in respect of the applicable Optioned Product (a “Co-Promotion Agreement”) consistent with such requested percentage. Codiak and its Affiliates shall market and promote the Optioned Product solely pursuant to and in accordance with the Co-Promotion Agreement and shall otherwise not Commercialize the Optioned Product.

6.2.2    Shared Territory Commercialization Plan. As further described in this Section 6.2, the strategy for the pre-launch, commercial launch, and subsequent Commercialization of the applicable Optioned Product in the Shared Territory shall be described in a comprehensive plan (each such plan, a “Shared Territory Commercialization Plan”) that describes at a high level the Commercialization activities anticipated to be conducted for such Optioned Product in the Shared Territory and includes an estimate of corresponding Allowable Expenses (each a “Commercial Budget”).

6.2.3    Amendments to the Shared Territory Commercialization Plans and Commercial Budgets. On an annual basis, Jazz shall prepare and submit to the JSC, and the JSC shall approve, an updated Shared Territory Commercialization Plan and corresponding Commercial Budget for each Optioned Product. In addition, Jazz may from time to time prepare amendments to the Shared Territory Commercialization Plan(s) and corresponding Commercial Budget(s) and submit them to the JSC for approval. Any amended or updated Shared Territory Commercialization Plan(s) and Commercial Budget(s) shall become effective on the date approved by the JSC.

Section 6.3    Commercialization Reports. Jazz shall provide a written report to Codiak describing material Commercialization activities with respect to Licensed Products on an annual basis. [***].

Section 6.4    Sales and Distribution. Jazz and its Affiliates shall be solely responsible for handling all returns, recalls, order processing, invoicing and collection, distribution, and receivables for Licensed Products in the Territory. Jazz and its Affiliates shall book all sales of Licensed Products in the Territory and shall have the sole right to determine pricing and discounts for the Licensed Products in the Territory. Codiak and its Affiliates shall not accept orders for Licensed Products or sell Licensed Products for its or their own account or for Jazz’s or its Affiliate’s account, and if Codiak or its Affiliates receive any order for Licensed Products in the Territory, they shall refer such orders to Jazz or its designated Affiliate(s) for acceptance or rejection.

Section 6.5    (Sub)contracts. Jazz and its Affiliates may engage Sublicensees or one or more (sub)contractors or consultants, including co-promotion partners, to Commercialize the Licensed Products. Codiak may engage one or more (sub)contractors or consultants to perform its activities under a Co-Promotion Agreement to the extent permitted by the Co-Promotion Agreement.

 

37


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

ARTICLE 7.

MANUFACTURE AND SUPPLY

Section 7.1    Overview.

7.1.1    Codiak, or its Affiliate or contract Manufacturer under Codiak’s direction, will be responsible for the Manufacture and supply of all Research Collaboration Materials and all clinical supplies needed for each EDP, in each case at Codiak’s cost and expense (subject to any reimbursement of Development Costs by Jazz as required hereunder). Except as otherwise set forth herein or agreed by the Parties in writing, Jazz and its Affiliates shall have the sole right to Manufacture (including have made rights) and supply Compounds, Collaboration Candidates, Licensed Compounds and Licensed Products for Development and Commercial use throughout the Territory under this Agreement.

7.1.2    Unless and until the technology transfer contemplated under Section 7.4 is completed with respect to a Licensed Product, Codiak will update Jazz or its designated Affiliate(s) regarding Codiak’s progress on CMC development, scale-up and selection or interactions with CMOs in respect of such Licensed Product by way of in person technical reviews as requested by Jazz or such Affiliate(s) from time to time and shall notify Jazz or such Affiliate(s) of any material events relating to such matters. Such technical reviews will cover the CMC development program activities for such Licensed Product, with particular focus on potential issues regarding technical, Development, or regulatory risks, particularly with respect to scale-related risks and required bridging studies, production limits or Third Party commitments that may impact the viability, cost or timelines for Jazz to exercise its technology transfer rights under Section 7.4. The Parties agree to review such items with the aim of producing a robust and readily scalable Manufacturing process for such Licensed Product at CMO(s), which process is to present minimal regulatory and technology risks, and developing, in good faith, remedial actions as needed. In particular, if Jazz believes a particular action or intended CMO choice by Codiak presents an unreasonable risk to the applicable Research Program or EDP that will impair Jazz’s ability to obtain the benefit of Section 7.4 and Codiak is unable or unwilling to develop a viable remediation of this risk, this issue will be escalated to the JSC for resolution.

7.1.3    Jazz may request that Codiak obtain permission from its contract Manufacturers and other Manufacturing (sub)contractors for Jazz or its designated Affiliate(s) to visit the applicable sites to assess the competence and compliance of such Manufacturers and Manufacturing (sub)contractors and in such case Codiak shall use its best efforts to obtain such permission.

Section 7.2    Manufacturing by Codiak for Jazz. For any Phase I Clinical Trials, Phase I/II Clinical Trials, and Phase II Clinical Trials and any other EDP activities conducted by Jazz or its Affiliates, unless and until the successful completion of applicable technology transfer(s) pursuant to Section 7.4, Codiak and its Affiliates will, at Jazz’s cost, supply such quantities of Licensed Compounds and Licensed Products to Jazz and its Affiliates as are

 

38


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

necessary for the performance of such activities by Jazz and its Affiliates, pursuant to a reasonable and customary clinical trial supply agreement and related quality agreement to be agreed by the Parties no later than 30 days prior to the anticipated date of the first IND filing for the applicable Licensed Product.

Section 7.3    Manufacturing by Jazz. Upon completion of a technology transfer pursuant to Section 7.4 for a Licensed Product, Jazz or its Affiliates will assume responsibility, at Jazz’s cost and sole discretion, for the Manufacturing of such Licensed Product (but subject to sharing Net Profit/Net Loss for such Licensed Product in the Shared Territory if such Licensed Product is an Optioned Product).

Section 7.4    Manufacturing Technology Transfer.

7.4.1    In anticipation of transferring Manufacturing to Jazz or its Affiliates as contemplated hereunder, upon request of Jazz by written notice at any time, Codiak and its Affiliates shall commence and conduct a customary technology transfer of the Manufacturing process for each Licensed Compound and Licensed Product that is the subject of a Research Program or an EDP to Jazz or its designated Affiliate(s) or a Third Party Manufacturer designated by Jazz.

7.4.2    Upon receipt of such a written notice by Codiak, the Parties will hold a technical review described in Section 7.1.2 that is dedicated to planning the applicable technology transfer in detail sufficient for each Party to clearly define the cost and resource requirements, timelines, and criteria for deeming the transfer to be complete.

7.4.3    Any technology transfer conducted under this Section 7.4 will comply with the following provisions:

(a)    Codiak will secure the cooperation and support of its current contract Manufacturers and other (sub)contractors, including allowing site visits by technical personnel of Jazz or its Affiliates, so that the technology transfer will meet the jointly agreed acceptance criteria.

(b)    The transfer will include disclosure of all Codiak Know-How used by Codiak or its Affiliates or its contract Manufacturer or other (sub)contractors in the Manufacture of the applicable Licensed Compound or Licensed Product so that Jazz or its Affiliate(s) or Third Party Manufacturer (as appropriate) can replicate the process employed by or on behalf of Codiak as of the date of such request to Manufacture such Licensed Compound or Licensed Product. The reasonable costs and expenses incurred by Codiak or its Affiliates, including any FTE costs at the FTE Rate, in carrying out such transfer shall be (i) deemed to be Development Costs, if such transfer relates to an Optioned Product, or (ii) reimbursed by Jazz, otherwise. Jazz acknowledges and agrees that Codiak may condition its agreement to transfer any Codiak Know-How to a Third Party Manufacturer on the execution of a reasonable and customary confidentiality agreement between such Third Party Manufacturer and Codiak or its Affiliates.

 

39


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Section 7.5    Manufacturing Records and Reports. Codiak and its Affiliates shall maintain complete and accurate records (in the form of technical notebooks or electronic files where appropriate) of all Manufacturing activities conducted by it or them or by Codiak’s Third Party (sub)contractors under this ARTICLE VII and all information resulting from such work. Such records, including any electronic files where such information may also be contained, shall fully and properly reflect all work done and results achieved in the performance of such activities in sufficient detail and in good scientific manner appropriate for regulatory purposes. Jazz and its Affiliates shall have the right to review and copy such records maintained by Codiak and its Affiliates at reasonable times and to obtain access to originals to the extent needed for patent or regulatory purposes or for other legal proceedings. Codiak and its Affiliates shall provide the JSC with such reports detailing its Manufacturing activities under this ARTICLE VII and the results of such activities as the JSC requests.

Section 7.6    (Sub)contracts; Affiliates. Codiak may perform any of its Manufacturing and supply obligations under this ARTICLE VII through its Affiliates or one or more Third Party Manufacturers reasonably acceptable to Jazz and consistent with any relevant supply or quality agreements between the Parties or their respective Affiliates.

ARTICLE 8.

PAYMENTS AND RECORDS

Section 8.1    Upfront Fees. In partial consideration of the licenses, rights and privileges granted by Codiak and its Affiliates to Jazz and its Affiliates hereunder and subject to the terms and conditions of this Agreement, Codiak will invoice and Jazz will pay to Codiak a non-refundable, non-creditable upfront fee of fifty-six million Dollars ($56,000,000) no later than [***] following receipt of an invoice for such amount, which invoice may be sent on or after the Effective Date.

Section 8.2    Early Development Costs. Subject to Section 2.1.3, Codiak will be responsible for all Development Costs incurred for each Collaboration Target until the Development Candidate Decision Point for a Collaboration Candidate in respect of such Collaboration Target and shall be responsible for Development Costs incurred thereafter with respect to the first two Development Candidates up to and including IND Acceptance for the corresponding INDs. Subject to Section 4.3.2, Section 8.3, Section 8.4 and Section 8.7, if applicable, Jazz will be responsible for all other Development Costs, including for any additional Development Candidates. Development Costs incurred in connection with each Early Development Plan will be calculated based on the FTE Rate.

Section 8.3    Codiak Clinical Development Costs. For the first two Development Candidates to advance to a Phase I Clinical Trial, Phase I/II Clinical Trial, or Phase II Clinical Trial, subject to Section 4.1.3, Codiak will be responsible for the Development Costs of such Clinical Trials, including the cost of clinical supplies, up to the limit of [***] Dollars [***] per Development Candidate. Jazz shall reimburse Codiak for any other Development Costs incurred by Codiak or its Affiliates under an EDP above such limit in respect of the applicable Phase I Clinical Trials, Phase I/II Clinical Trials, or Phase II Clinical Trials, including the cost of clinical supplies, as and to the extent required by Section 4.1.3.

 

40


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Section 8.4    Later Development Costs. The Development Costs for all Development activities for a Licensed Product incurred after the completion of the EDP for such Licensed Product shall be borne by Jazz, except in the case of the exercise of the Development and Commercialization Option for a given Licensed Product, in which case (a) with respect to all Development Costs incurred with respect to such Licensed Product solely for the ROW, Jazz will be solely responsible for such Development Costs, and (b) with respect to all Development Costs incurred with respect to such Licensed Product that are, in whole or in part, for the Shared Territory and that, subject to Schedule 4.3.3 and Section 8.6, are incurred in accordance with the applicable Joint Development Plan and applicable Development Budget, Jazz will be responsible for 50% of such Development Costs and Codiak will be responsible for 50% of such Development Costs.

Section 8.5    Reporting and Invoicing Development Costs and Shared Research Costs. [***] before the end of each Calendar Quarter during which either Party incurs any Development Costs or Shared Research Costs that are reimbursable in whole or in part by the other Party, each Party shall submit a report setting forth a good faith estimate of the Development Costs or Shared Research Costs it incurred in such Calendar Quarter and an estimate of the amount of such Development Costs or Shared Research Costs that the other Party is required to reimburse. Within [***] following the end of such Calendar Quarter, each Party shall update such report to reflect the final amount of Development Costs or Shared Research Costs incurred by such Party in such Calendar Quarter and the final amount of the Development Costs or Shared Research Costs incurred that the other Party is required to reimburse. If there are any Development Costs or Shared Research Costs incurred in such Calendar Quarter that a Party is unable to timely include in such financial report, such amount shall be included and reconciled in the financial report for a future Calendar Quarter. Each such report shall specify in reasonable detail all applicable Development Costs or Shared Research Costs incurred by the Party providing the report and shall include reasonably detailed supporting documentation, and, if requested by the other Party, any invoices or other supporting documentation for any payments to a Third Party that individually [***]; any other documentation that is reasonably requested by the other Party shall be promptly provided by such other Party. Each Party will invoice the other Party for amounts of Development Costs or Shared Research Costs owed to the invoicing Party in respect of a Calendar Quarter within [***] following the end of such Calendar Quarter so that the Parties share the Development Costs or Shared Research Costs in accordance with Section 2.1.3, Section 8.2, Section 8.3 or Section 8.4, as applicable. Each such invoice shall be paid within 30 days after receipt of such invoice. In addition, following the Effective Date, each Party shall consider in good faith other reasonable procedures proposed by the other Party for sharing financial information relating to the amounts due hereunder in order to permit each Party to close its books periodically in a timely manner. For the avoidance of doubt, no cost or expense shall be counted more than once in calculating Development Costs, even if such costs or expense falls into more than one of the cost categories that comprise Development Costs.

Section 8.6    Budget Overages for JDPs. Subject to Schedule 4.3.3, neither Jazz nor Codiak shall be permitted to recover any portion of Development Costs such Party or its Affiliates incur in respect of a JDP that are in excess of [***] of the amount allocated for such Party for the applicable Calendar Year under the applicable Development Budget, without the prior approval of the other Party through the JSC.

 

41


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Section 8.7    Commercialization Costs; Net Profit/Net Loss.

8.7.1    Shared Territory; Profit and Loss. For any Licensed Product for which Codiak has exercised its Development and Commercialization Option, Codiak and Jazz shall share the Net Profit/Net Losses (including, for clarity, Allowable Expenses) of the Licensed Product in the Shared Territory [***].

8.7.2    Other Commercialization Costs. In all other cases, Jazz shall be solely entitled to and responsible for all Net Profit/Net Losses (including, for clarity, Allowable Expenses) for all Licensed Products (other than any indemnification obligations of Codiak and subject to the milestones and royalties that may be due to Codiak).

Section 8.8    Development Milestone Payments. Upon first achievement of each of milestones #1 and #2 below, Codiak will issue to Jazz an invoice for the corresponding milestone payment amount, which Jazz will pay only once, regardless of the total number of Collaboration Targets for which IND-enabling toxicology studies are commenced. Upon first achievement of a milestone event other than milestones #1 and #2 for a Licensed Product described in this Section 8.8 by Jazz or any of its Affiliates or Sublicensees, Jazz will notify Codiak of such achievement within [***] after the occurrence of such milestone event and Codiak will issue to Jazz an invoice for the corresponding milestone payment amount, which Jazz will pay only once per Licensed Product. Subject to the terms and conditions of this Agreement, for any milestone in this Section 8.8 that comes due, Jazz will pay to Codiak the following corresponding milestone payment within [***] after receipt of such invoice therefor, as follows:

 

No.

  

Development Milestone Event

  

Milestone Payments

1    Upon the [***].    [***]
2    Upon the [***]    [***]
    

Maximum Possible Pre-IND Milestones in

the Aggregate

  

Twenty million Dollars ($20,000,000)

3    IND Acceptance per Licensed Product   

[***] for the [***] Licensed Product for which Codiak funded the IND-Enabling Studies

 

[***] in all other cases

    

 

  

Optioned Product

  

Non-Optioned

Product

4    [***]    [***]    [***]
5    [***]    [***]    [***]
6    [***]    [***]    [***]
7    [***]    [***]    [***]
8    [***]    [***]    [***]
9    [***]    [***]    [***]
10    [***]    [***]    [***]
11    [***]    [***]    [***]
12    [***]    [***]    [***]

No.

  

Development Milestone Event

  

Milestone Payments

13    [***]    [***]    [***]
   Maximum possible IND Acceptance, clinical and regulatory milestones (i.e., milestones 3 through 13) per Licensed Product    [***]    [***]

 

42


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Section 8.9    Sales Milestone Payments. After the end of a Calendar Year, if based on the Royalty Reports submitted under this Agreement, Jazz has for the first time achieved a sales milestone specified below in such Calendar Year for a Licensed Product, which milestone shall be based on Net Sales in the Territory but, in the case of an Optioned Product, excluding Net Sales in the Shared Territory, then Codiak will issue an invoice to Jazz for the applicable amount and, subject to the terms and conditions of this Agreement, Jazz will pay to Codiak the invoiced amount within [***] after receipt of such invoice:

 

Calendar Year Net Sales

Milestone

  

Milestone Payments

    

Optioned Product

  

Non-Optioned Product

First occurrence of Calendar Year Net Sales in the Territory (but excluding the Shared Territory in the case of an Optioned Product), per Licensed Product (total of Net Sales in all Indications): [***] (the “First Sales Milestone”)    [***]    [***]
First occurrence of Calendar Year Net Sales in the Territory (but excluding the Shared Territory in the case of an Optioned Product), per Licensed Product (total of Net Sales in all Indications): [***] (the “Second Sales Milestone”)    [***]    [***]
Maximum Possible Total Sales Milestones Per Licensed Product    [***]    [***]

Each sales milestone payment is on a Licensed Product-by-Licensed Product basis and may only be earned once for each Licensed Product. Payments made under this Section 8.9 will be non-refundable (except in case of material error).

 

43


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Section 8.10    Royalties Payable.

8.10.1    For each Licensed Product, in partial consideration for the licenses and other rights granted to Jazz and its Affiliates herein, and subject to the terms and conditions of this Agreement, during the applicable Royalty Term for each country in the Territory, excluding the Shared Territory if Codiak has exercised its Development and Commercialization Option, Jazz will pay royalties to Codiak on Net Sales in the Territory by Jazz, its Affiliates or its Sublicensees on a Licensed Product-by-Licensed Product basis as follows:

 

Calendar Year Net Sales of the Applicable Licensed Product in the

Territory (excluding the Shared Territory in the case of exercise of

the Development and Commercialization Option)

  

Royalty Rate

For the portion of Net Sales of such Licensed Product in all Indications in any given Calendar Year less than or equal [***]    [***]
For the portion of Net Sales of such Licensed Product in all Indications in any given Calendar Year greater than [***] and less than or equal to [***]    [***]
For the portion of Net Sales of such Licensed Product in all Indications in any given Calendar Year greater than [***] and less than or equal to [***]    [***]
For the portion of Net Sales of such Licensed Product in all Indications in any given Calendar Year greater than [***]    [***]

The obligation to pay royalties applies only once with respect to the same unit of Licensed Product sold by Jazz, its Affiliate or Sublicensee.

8.10.2    Royalty Reductions.

(a)    In the event that, during the Royalty Term for a Licensed Product and a country, (i) at the time of the First Commercial Sale of such Licensed Product in such country there is no Valid Claim that is infringed by the sale of such Licensed Product in such country for so long as there is no such Valid Claim, or (ii) if any such Valid Claim did exist as of such First Commercial Sale or thereafter but such Valid Claim has expired or otherwise no longer meets the definition of Valid Claim, then for any royalty payments made during the period when the condition set forth in (i) or (ii) exists with respect to such Licensed Product and such country, the royalties payable with respect to Net Sales of such Licensed Product sold by Jazz, its Affiliates and its Sublicensees in such country shall be reduced by [***] of the royalties otherwise owed to Codiak pursuant to this Section 8.10. In addition, if in any country in the Territory during the Royalty Term for a Licensed Product for such country, a Biosimilar/Generic Product is sold in such country and, according to a reasonable information source or reasonable proxy mutually agreed by the Parties, the units sold of all Biosimilar/Generic Products, collectively, exceed [***] or more of the unit sales of such Licensed Product in such country, then thereafter, the royalties payable with respect to Net Sales of such Licensed Product sold by Jazz, its Affiliates and its Sublicensees in such country shall be reduced by [***] of the royalties otherwise owed to Codiak pursuant to this Section 8.10. The reductions provided for by this Section 8.10.2(a) shall be calculated using the methodology outlined in Exhibit D.

 

44


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

(b)    Codiak will be responsible for all payment obligations owing to Third Parties under licenses to which Codiak or any of its Affiliates is a party as of the Effective Date or thereafter as set forth in Section 3.3. Other than any licenses or similar rights obtained by Jazz from a Third Party as contemplated in Section 3.3.5(b), if (i) the Exploitation of Licensed Compounds or Licensed Products as contemplated hereunder, including, for clarity, the use of any Agreed Included Codiak Platform Addition in connection with such Exploitation, would infringe or misappropriate any intellectual property that is owned or Controlled by a Third Party, and (ii) Jazz decides to obtain a license or other similar rights from such Third Party in order to avoid such infringement or misappropriation, then [***] of any payments made to such Third Party in connection with obtaining and maintaining such licenses may be deducted from the royalties otherwise payable by Jazz to Codiak hereunder; provided that in no event shall the aggregate royalties payable by Jazz to Codiak for any Calendar Quarter be reduced as a result of such deduction by more than [***] of the royalty that would otherwise have been due under Section 8.10.1, as such royalty amount is determined prior to the application of any reductions provided in this Section 8.10.2. If Jazz is unable to deduct the full amount of the payments to Third Parties contemplated by this Section 8.10.2(b) for a Calendar Quarter, Jazz will be entitled to carry forward such amounts and deduct them in future Calendar Quarters until such time as Jazz has been able to fully deduct such amounts from the royalties payable under Section 8.10.1. Notwithstanding the foregoing, in the case of payments due to a Third Party on sales in the Shared Territory for a Licensed Product for which Codiak exercised its Development and Commercialization Option, no deduction under this Section 8.10.2(b) shall be permitted but Jazz may include such payments in Allowable Expenses.

Section 8.11    Royalty Payment Terms. Royalties shown to have accrued by each Royalty Report provided for under this ARTICLE VIII will be due and payable [***] after the end of the applicable Calendar Quarter.

Section 8.12    Right to Credit or Offset. Upon notice by Jazz, Jazz will have the right, exercisable 3 Business Days following such notice, to offset any amount owed by Codiak to Jazz under or in connection with this Agreement and not being contested by Codiak in good faith in accordance with Section 14.2, including in connection with any breach or indemnification obligation by Codiak pursuant to ARTICLE XII, against any payments owed by Jazz to Codiak under this Agreement. Such credits or offsets will be in addition to any other rights or remedies available under this Agreement and Applicable Law.

Section 8.13    Payment Method. All payments by Jazz to Codiak under this Agreement will be paid in Dollars, and all such payments will be made by bank wire transfer in immediately available funds to the bank account designated by Codiak in writing; provided that such account information is provided to Jazz at least [***] prior to any such payment becoming due hereunder.

Section 8.14    Invoices. Except as may be otherwise provided in this Agreement, Jazz will not be responsible for any payment in respect of any invoice provided by Codiak hereunder until 30 days after the date on which Codiak delivers such invoice to Jazz.

Section 8.15    Late Payments. If a Party does not receive payment of any sum due to it on or before the due date therefor, simple interest will thereafter accrue on the sum due to such Party from the due date until the date of payment at an annual rate of the lower of (a) [***] (as reported in The Wall Street Journal (Eastern U.S. Edition)) or (b) the maximum rate allowed by Applicable Law.

 

45


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Section 8.16    Exchange Control. If at any time legal restrictions prevent the prompt remittance of part or all royalties with respect to any country in the Territory where any Licensed Product is sold, payment will be made through such lawful means or method as the Parties reasonably will determine.

Section 8.17    Taxes. Codiak will bear any and all taxes levied on account of any payment received under this Agreement. In the event that Jazz is required, under Applicable Law, to withhold any deduction or tax from any payment due to Codiak under this Agreement, such amount will be deducted from the payment to be made by Jazz and will be paid by Jazz to the proper taxing authority, and Jazz will notify Codiak and upon Codiak’s request promptly provide Codiak with copies of any tax certificate or other documentation evidencing such withholding (provided that such other documentation is in sufficient detail to allow Codiak to determine whether such withholding has been correctly applied or not). Each Party agrees to cooperate with the other Party in claiming exemptions from such deductions or withholdings under any agreement or treaty from time to time in effect.

Section 8.18    Reports; Currency; Records.

8.18.1    Royalty Reports. Commencing as of the First Commercial Sale for a Licensed Product, for so long as any Royalty Term remains in effect for such Licensed Product, Jazz will, with respect to each Calendar Quarter (or portion thereof), provide a written report showing (a) aggregate Net Sales of such Licensed Product which Jazz considers royalty bearing and the royalties due thereon for such Calendar Quarter, (b) the withholding taxes, if any, required by Applicable Law to be deducted in respect of such royalties, (c) the exchange rates (as determined pursuant to Section 8.16 herein) used in determining the royalty amount expressed in Dollars, and (d) any royalty reductions applied by Jazz pursuant to Section 8.10.2 (each, a “Royalty Report”). Such Royalty Report will be in the format set forth in Exhibit E. Royalty Reports will be due within [***] following the end of the Calendar Quarter to which such Royalty Report relates.

8.18.2    Currency. All Net Sales and royalties payable will be expressed in Dollars. With respect to sales of Licensed Products invoiced in a currency other than Dollars, Net Sales and the royalties will be expressed in the Dollars equivalent, calculated using Jazz’s (or its Affiliate’s or Sublicensee’s) then-current internal currency conversion methodology used to prepare its audited financial statements for external reporting purposes, which uses a widely accepted source of published exchange rates.

8.18.3    Records. For three years after the end of each Calendar Year, Jazz will keep (and will ensure that its Affiliates and Sublicensees will keep) complete and accurate records of Net Sales of Licensed Products in such Calendar Year and the calculation of royalties payable to Codiak in respect of such Net Sales in sufficient detail to allow an auditor to confirm the accuracy of relevant Royalty Report(s) during the course of an audit as referred to in Section 8.19.

 

46


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED

 

Section 8.19    Audits.

8.19.1    Upon the written request of a Party and with at least 10 days’ prior written notice, but not more than once in any Calendar Year and not more than once for a given period (unless there has been a discrepancy or variance, in which case further audits may be performed solely relating to, and as reasonably necessary to resolve, such discrepancy or variance), the other Party will permit an independent certified public accounting firm of internationally recognized standing, selected by the auditing Party and reasonably acceptable to the audited Party, at the auditing Party’s sole cost and expense (except as set forth in Section 8.19.2), to have access during normal business hours to such of the records of the audited Party as required to be maintained under this Agreement to verify the accuracy of (a) the Royalty Reports due hereunder, (b) any costs or expenses reimbursable by the auditing Party to the audited Party hereunder, and (c) any Allowable Expenses claimed to have been incurred by the audited Party. Such records will be made available at a centralized location in Europe or the United States to be mutually agreed in good faith between the Parties. Such accountants may only audit records relating to amounts paid or payable, or costs or expenses (including Allowable Expenses) incurred, in the prior three Calendar Years. The accounting firm will disclose to the auditing Party only whether the amounts reported by the audited Party were correct or not and the specific details concerning any discrepancies, and such information will be shared at the same time with the audited Party. No other information obtained by such accountants will be shared with the auditing Party. In the event there was an error in any such amounts, the auditor will have the right, at its sole discretion, to document such error with the auditor’s summary description thereof.

8.19.2    If such accounting firm concludes that any amounts are owed to the auditing Party, the audited Party will pay such amounts within 30 days following the date the audited Party is notified of the completion of such accounting firm’ s written report so concluding. The fees charged by such accounting firm will be paid by the auditing Party, except that if the audit discloses that there is a 5% variance (with respect to royalties, an underpayment and with respect to expenses, an overpayment) in the amounts actually owed hereunder for such Calendar Quarter, then the audited Party will pay the reasonable fees and expenses charged by such accounting firm.

Section 8.20    Confidential Financial Information. The Parties will treat all financial information subject to review under this ARTICLE VIII or under any sublicense agreement as Confidential Information of such Party as set forth in ARTICLE IX, and will cause its accounting firm to retain all such financial information in confidence under terms substantially similar to those set forth in ARTICLE IX and with respect to each inspection, the independent accounting firm will be obliged to execute for each Party’s benefit a reasonable confidentiality agreement prior to commencing any such inspection.

ARTICLE 9.

CONFIDENTIALITY

Section 9.1    Non-Disclosure Obligations. Except as otherwise provided in this ARTICLE IX, during the Term and for a period of [***] thereafter, each Party and its Affiliates

 

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will maintain in confidence, and use only for purposes as expressly authorized and contemplated by this Agreement, all Confidential Information of the other Party. “Confidential Information” means all confidential or proprietary Know-How (including the terms of this Agreement and information relating to such Party’s research programs, development, marketing and other business practices and finances), data, documents or other materials supplied by the other Party or its respective Affiliates under this Agreement, including such information as is marked or otherwise identified as “Confidential”; provided that notwithstanding anything to the contrary herein, (a) Confidential Information constituting Codiak Product-Specific Collaboration Know-How, Codiak Other Collaboration Know-How or Joint Collaboration Know-How (“Product Information”) shall be deemed the Confidential Information of both Codiak and Jazz (and each Party shall be deemed both the disclosing Party and the receiving Party with respect thereto), and (b) Confidential Information constituting Codiak Platform Know-How or, in respect of an Excluded Target, the fact that Codiak is researching such Excluded Target, shall be deemed the Confidential Information of Codiak (and Codiak shall be deemed the disclosing Party and Jazz shall be deemed the receiving Party with respect thereto). Without limiting the foregoing, each Party will use at least the same standard of care as it uses to protect its own Confidential Information to ensure that its and its Affiliates’ employees, agents, consultants, clinical investigators, (sub)licensees and (sub)contractors only make use of the other Party’s Confidential Information for purposes as expressly authorized and contemplated by this Agreement and do not disclose or make any unauthorized use of such Confidential Information.

Section 9.2    Permitted Disclosures.

9.2.1    Notwithstanding the foregoing, but subject to the last sentence of this Section 9.2, the provisions of Section 9.1 will not apply to information that the receiving Party can conclusively establish:

(a)    was published or otherwise entered the public domain or became generally available to the public other than by breach of this Agreement by the receiving Party or its Affiliates;

(b)    is permitted to be disclosed by prior consent of the disclosing Party;

(c)    was disclosed to the receiving Party or its Affiliates by a Third Party, provided that such information was not obtained by such Third Party directly or indirectly from the disclosing Party or its Affiliates on a confidential basis;

(d)    was already in the possession of the receiving Party, its Affiliates or (sub)licensees prior to disclosure by the disclosing Party under this Agreement, provided that this clause (d) shall not apply with respect to any Confidential Information that is deemed to be the Confidential Information of the other Party or of both Parties pursuant to clauses (a) or (b) of Section 9.1; or

(e)    was independently developed by or for the receiving Party or its Affiliates or (sub)licensees without reference to the disclosing Party’s Confidential Information, outside the Research Programs, EDPs, and JDPs, and not in connection with the receiving Party’s activities hereunder.

 

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Specific aspects or details of Confidential Information shall not be deemed to be within the public domain or in the possession of the receiving Party merely because the Confidential Information is embraced by more general information in the public domain or in the possession of the receiving Party. Further, any combination of Confidential Information shall not be considered in the public domain or in the possession of the receiving Party merely because individual elements of such Confidential Information are in the public domain or in the possession of the receiving Party unless the combination and its principles are in the public domain or in the possession of the receiving Party.

9.2.2    Notwithstanding the disclosures permitted under this Section 9.2.2 as set forth below, any Confidential Information so disclosed will remain subject to the confidentiality obligations of Section 9.1 unless and until any exceptions described in Section 9.2.1 apply. Either Party may disclose Confidential Information to the extent such disclosure is made:

(a)    in response to a valid order of a court of competent jurisdiction or other Governmental Authority or Regulatory Authority or if, in the reasonable opinion of the receiving Party’s legal counsel, such disclosure is otherwise required by Applicable Law, including by reason of filing with the United States Securities and Exchange Commission or any national securities exchange, stock exchange or other securities trading institution; provided, however, that the receiving Party shall first have given notice to the disclosing Party and given the disclosing Party a reasonable opportunity to quash such order or to obtain a protective order or to seek, or request that the receiving Party seek, confidential treatment requiring that the Confidential Information and documents that are the subject of such order or required to be disclosed be held in confidence by such court or Governmental Authority or Regulatory Authority or, if disclosed, be used only for the purposes for which the order was issued or such disclosure was required by Applicable Law; and provided, further, that the Confidential Information so disclosed shall be limited to the information that is legally required to be disclosed in response to such order or by such Applicable Law;

(b)    by either Party, solely to the extent reasonably necessary to exercise such Party’s rights under Article X to prepare, file, prosecute, maintain and extend Jazz Patent Rights, Codiak Product-Specific Collaboration Patent Rights, Codiak Platform Patent Rights, Codiak Other Collaboration Patent Rights, and Joint Collaboration Patent Rights, as applicable; provided that such Party will provide the other Party with at least 30 days’ prior written notice of any such disclosure and take reasonable and lawful actions to avoid or minimize the degree of disclosure;

(c)    by the Lead Regulatory Party, to a Regulatory Authority, as reasonably required or useful in connection with any filing, submission or communication with respect to any Licensed Compound or Licensed Product as permitted hereunder; provided that reasonable measures will be taken to assure confidential treatment of such information, to the extent such protection is available;

 

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(d)    by either Party, to a sublicensee of any of the rights and licenses granted to such Party pursuant to Section 3.1 or Section 3.4.2(b), as reasonably necessary or useful to allow the sublicensee to conduct the activities it is permitted to conduct under the sublicense; provided that such sublicensee is then subject to obligations of confidentiality and limitations on use of such Confidential Information substantially similar to those contained herein;

(e)    by either Party, its Affiliates or its or their (sub)licensees to an actual or potential Third Party Manufacturing, Development or Commercialization collaborator, contractor or partner or otherwise as may be necessary or useful in connection with the exercise of rights and licenses or performance of obligations hereunder provided that such Third Party recipient is, if practicable, then subject to a customary written confidentiality agreement; or

(f)    by either Party to an actual or potential investor in or acquirer of the Party’s business to which this Agreement relates; provided that such Third Party recipient is then subject to customary written confidentiality obligations.

Section 9.3    Press Releases and Other Communications to Third Parties. Jazz will be responsible for, and control all, communications to Third Parties (subject to the remainder of this Section 9.3) or public communications regarding the Research Programs and other Exploitation of Licensed Compounds or Licensed Products. Other than as required by Applicable Law (including applicable requirements of a Regulatory Authority or of any stock exchange or other securities trading institution), Codiak and its Affiliates will not make any public announcement concerning this Agreement, any Collaboration Target, Licensed Compound, or Licensed Product, the achievement of any clinical, regulatory or Development milestones in respect of the Research Program, any Clinical Trials in respect of any Licensed Product, or any other subject matter reasonably related to this Agreement (collectively, the “Development Information”), in each case without the prior written consent of Jazz (such consent not to be unreasonably withheld or delayed). Subject to the foregoing, in the event of any required or proposed disclosure of Development Information by Codiak or its Affiliate, (a) the Parties will consult with each other in good faith regarding the timing thereof, and (b) Codiak or its Affiliate will provide Jazz with a copy of the proposed disclosure sufficiently in advance of its release to afford Jazz a reasonable opportunity to review and comment upon such proposed disclosure. In the event of any required or proposed disclosure of Development Information by Jazz or its Affiliates relating to a Research Program or any other activities conducted by Codiak, its Affiliates or (sub)contractors in connection with this Agreement, (i) the Parties will consult with each other in good faith regarding the timing thereof, and (ii) Jazz or its Affiliate will provide Codiak with a copy of the proposed disclosure sufficiently in advance of its release to afford Codiak a reasonable opportunity to review and comment upon such disclosure. Without limiting the foregoing, [***], except for (x) an initial press release to be mutually agreed upon by the Parties within [***] after the Effective Date, (y) disclosures made in compliance with Section 9.1, Section 9.2 and Section 9.5, and (z) disclosures made to attorneys, consultants, and accountants retained to represent such Party in connection with the negotiation and consummation of the transactions contemplated hereby, including in connection with enabling such Party’s performance of its obligations or exercise of its rights hereunder. Without limiting the foregoing, in the event that Codiak anticipates that its receipt of payment in respect of any

 

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sales milestone pursuant to Section 8.9 will be required to be disclosed in any publicly-available financial statement or report of Codiak or any of its Affiliates, Codiak will notify Jazz as far in advance of such disclosure as is reasonably possible in order to enable Jazz to coordinate its own disclosure of related information (e.g., information about the level of sales that resulted in the payment of such sales milestone).

Section 9.4    Publications and Presentations. Jazz and its Affiliates may publish or present, or permit to be published or presented, the design (including clinical design, but excluding any Codiak Platform Know-How) or results of the Development, Manufacture, Commercialization, or other Exploitation of the Collaboration Targets, Licensed Compounds, or Licensed Products (the “Covered Results”). Codiak agrees that, except as required by Applicable Laws, it and its Affiliates shall not publish or present, or permit to be published or presented, the Covered Results without the prior review by and approval of Jazz, which approval shall not be unreasonably withheld, conditioned or delayed; provided, that it shall be deemed reasonable for Jazz to withhold its consent to any request by Codiak to publish or present any Covered Results prior to the planned publication or dissemination of such Covered Results by Jazz or its Affiliates. Each Party shall provide to the other Party the opportunity to review each of the submitting Party’s proposed (a) abstracts and manuscripts for scientific journals or conferences that relate to the Covered Results at least [***] prior to intended submission for publication, and (b) presentations at scientific conferences (including information to be presented verbally) that relate to the Covered Results at least [***] prior to its intended presentation. Upon written request from a Party given within such applicable review period, the other Party shall (i) not submit such abstract or manuscript for publication or make such presentation until appropriate patent applications are filed to protect any unpatented Know-How disclosed in such publication or presentation that such Party reasonably believes may be patentable and (ii) remove any Confidential Information of such Party that is disclosed in any such proposed publication or presentation prior to such publication or presentation. Once such abstracts, manuscripts or presentations (or the information contained therein) have been reviewed and, if applicable, modified for publication or presentation pursuant to this Section 9.4, the same abstracts, manuscripts or presentations (and the information contained therein) do not have to be provided again by one Party to the other Party for review for a later submission for publication. In any permitted publication or presentation by a Party, the other Party’s contribution shall be duly recognized, and co-authorship shall be determined in accordance with customary industry standards.

Section 9.5    Use of Name. [***]. The restrictions imposed by this Section 9.5 will not prohibit (a) Jazz or its Affiliates from making any disclosure identifying Codiak or its Affiliates to the extent required in connection with its exercise of its rights or obligations under this Agreement or (b) either Party from making any disclosure identifying the other Party that is required by Applicable Law or the rules of a stock exchange on which the securities of the such Party are listed (or to which an application for listing has been submitted).

Section 9.6    Return of Confidential Information. Upon the effective date of the termination of this Agreement for any reason, but subject to ARTICLE XIII, with respect to Confidential Information to which a Party does not retain rights under the surviving provisions of this Agreement, upon and in accordance with the other Party’s request in writing, the non-

 

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requesting Party will, at the requesting Party’s election, either: (a) promptly destroy all copies of such Confidential Information in the possession or control of the non-requesting Party and confirm such destruction in writing to the requesting Party; or (b) promptly deliver to the requesting Party, at the non-requesting Party’s sole cost and expense, all copies of such Confidential Information in the possession or control of the non-requesting Party. Notwithstanding the foregoing, the non-requesting Party will be permitted to retain such Confidential Information (x) to the extent necessary or useful for purposes of performing any continuing obligations or exercising any ongoing rights hereunder and, in any event, a single copy of such Confidential Information for archival purposes and (y) any computer records or files containing such Confidential Information that have been created solely by such non-requesting Party’s automatic archiving and back-up procedures, to the extent created and retained in a manner consistent with such non-requesting Party’s standard archiving and back-up procedures, but not for any other uses or purposes. All Confidential Information will continue to be subject to the terms of this Agreement for the period set forth in Section 9.1.

ARTICLE 10.

INTELLECTUAL PROPERTY

Section 10.1    Disclosure of Inventions.

10.1.1    By Codiak. Codiak and its Affiliates will promptly disclose to Jazz (a) any Joint Collaboration Know-How, Codiak Product-Specific Collaboration Know-How, or Codiak Other Collaboration Know-How that is conceived, discovered, developed or generated by or on behalf of Codiak, (b) other than Codiak Platform Know-How, any Know-How in the Reciprocal Codiak Partner Technology, and (c) any Codiak Platform Know-How, in all cases (clauses (a), (b) and (c) other than Joint Collaboration Know-How), as and to the extent necessary for Jazz to perform its obligations or exercise its rights or licenses hereunder.

10.1.2    By Jazz. Jazz and its Affiliates will promptly disclose to Codiak (a) any Joint Collaboration Know-How or Codiak Platform Know-How that is conceived, discovered, developed or generated by or on behalf of Jazz and (b) any Know-How in the Reciprocal Jazz Partner Technology.

Section 10.2    Ownership of Intellectual Property.

10.2.1    Collaboration IP. Subject to the licenses granted in ARTICLE III, as between the Parties:

(a)    Jazz will own all right, title and interest in and to any Jazz Collaboration IP.

(b)    Codiak will own all right, title and interest in and to any Codiak Collaboration IP.

(c)    Jazz and Codiak will jointly own, with each having an undivided one-half interest, all right, title and interest in and to any Joint Collaboration IP. Subject to the exclusive licenses to Jazz and its Affiliates under Section 3.1, each Party will have the right to

 

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Exploit the Joint Collaboration IP for all purposes, and to grant licenses and other rights to Affiliates and Third Parties to Exploit the Joint Collaboration IP for all purposes, provided that neither Party or its Affiliates shall grant any such license or other rights to Third Parties without prior written consent from the other Party.

(d)    United States Law. The determination of whethe