Exhibit 3.1

 

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION OF

SPRINGWORKS THERAPEUTICS, INC.

 

(Pursuant to Sections 241 and 245 of the General Corporation Law of the State of Delaware)

 

SpringWorks Therapeutics, Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “General Corporation Law”),

 

DOES HEREBY CERTIFY:

 

1.          That the name of this corporation is SpringWorks Therapeutics, Inc., and that this corporation was originally incorporated pursuant to the General Corporation Law on March 20, 2019 under the name SpringWorks Therapeutics, Inc.

 

2.          That the corporation’s Board of Directors duly adopted this Amended and Restated Certificate of Incorporation.

 

3.          Pursuant to Sections 241 and 245 of the General Corporation Law, this Amended and Restated Certificate of Incorporation restates, integrates and further amends this corporation’s original certificate of incorporation, and this corporation has not received payment for any shares of its capital stock.

 

RESOLVED, that the Certificate of this corporation be amended and restated in its entirety to read as follows:

 

FIRST: The name of this corporation is SpringWorks Therapeutics, Inc. (the “Corporation”).

 

SECOND: The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, Zip Code 19801. The name of its registered agent at such address is The Corporation Trust Company.

 

THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law.

 

FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is (i) 232,193,269 shares of Common Stock, $0.0001 par value per share (“Common Stock”) and (ii) 196,076,779 shares of Preferred Stock, $0.0001 par value per share (the “Preferred Stock”), of which 6,437,500 shares are hereby designated as “Junior Series A Preferred Stock,” 103,000,000 shares are hereby designated as “Series A Preferred Stock” and 86,639,279 shares are hereby designated as “Series B Preferred Stock”.

 

 

The following is a statement of the designations and the powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation.

 

A.

COMMON STOCK

 

1.          General. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights, powers and preferences of the holders of the Preferred Stock set forth herein.

 

2.          Voting. The holders of the Common Stock are entitled to one vote for each share of Common Stock held at all meetings of stockholders (and written actions in lieu of meetings); provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of or pursuant to the General Corporation Law. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by (in addition to any vote of the holders of one or more series of Preferred Stock that may be required by the terms of the Certificate of Incorporation) the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes represented by all outstanding shares of capital stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law.

 

B.

PREFERRED STOCK

 

The Junior Series A Preferred Stock, Series A Preferred Stock and Series B Preferred Stock shall have the following rights, preferences, powers, privileges and restrictions, qualifications and limitations. Unless otherwise indicated, references to “sections” or “subsections” in this Part B of this Article Fourth refer to sections and subsections of Part B of this Article Fourth.

 

 

1.

Dividends.

 

1.1           Series B Dividends. From and after the date of the issuance of any shares of Series B Preferred Stock, dividends at the rate per annum of eight percent (8%) (non-compounding) times the Series B Original Issue Price (as defined below) shall accrue on such shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock) (the “Series B Dividends”). The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series B Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series B Preferred Stock in an amount at least equal to the greater of (i) the amount of the aggregate Series B Dividends then accrued on such share of Series B Preferred Stock and not previously paid and (ii) (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Series B Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series B Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Series B Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Series B Original Issue Price (as defined below); provided that if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series B Preferred Stock pursuant to this Section 1.1 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series B Preferred Stock dividend. The Series B Dividends shall accrue from day to day, whether or not declared, and shall be cumulative; provided, however, that except as otherwise set forth in this Section 1 or in Section 2, such Series B Dividends shall be payable only when, as, and if declared by the Board of Directors and the Corporation shall be under no obligation to pay such Series B Dividends.

 

1.2           Series A Dividends. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than the Series B Dividends as provided in Section 1.1 or dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Series A Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series A Preferred Stock in an amount at least equal to (i) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Series A Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series A Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (ii) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Series A Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Series A Original Issue Price (as defined below); provided that if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series A Preferred Stock pursuant to this Section 1.2 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series A Preferred Stock dividend.

 

 

1.3           Junior Series A Dividends. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation (other than the Series B Dividends and any dividends paid to the Series A Preferred Stock as provided in Sections 1.1 and 1.2 or dividends on shares of Common Stock payable in shares of Common Stock) unless (in addition to the obtaining of any consents required elsewhere in the Certificate of Incorporation) the holders of the Junior Series A Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Junior Series A Preferred Stock in an amount at least equal to (i) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Junior Series A Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Junior Series A Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (ii) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Junior Series A Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Junior Series A Original Issue Price (as defined below); provided that if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Junior Series A Preferred Stock pursuant to this Section 1.3 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Junior Series A Preferred Stock dividend.

 

1.4           The (a) “Series B Original Issue Price” shall mean $1.4428 per share, (b) “Series A Original Issue Price” shall mean $1.00 per share, and (c) “Junior Series A Original Issue Price” shall mean $1.00 per share; in each case, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock, Series A Preferred Stock, or Junior Series A Preferred Stock, as applicable.

 

2.

Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales.

 

2.1           Preferential Payments to Holders of Series B Preferred Stock, Series A Preferred Stock, Junior Series A Preferred Stock, and Distribution of Remaining Assets. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, subject to Subsection 2.2:

 

 

(a)          the holders of shares of Series B Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders before any payment shall be made to the holders of shares of any other class of stock, including the Series A Preferred Stock, Junior Series A Preferred Stock, and the Common Stock by reason of their ownership thereof, an amount per share equal to the Series B Original Issue Price, plus any Series B Dividends accrued but unpaid thereon, whether or not declared, together with any other dividends declared but unpaid thereon;

 

(b)          after the payment of all the amounts required to be paid to the holders of shares of Series B Preferred Stock under Subsection 2.1(a), the holders of shares of the Series A Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, and before any payment shall be made to the holders of Junior Series A Preferred Stock or Common Stock by reason of their ownership thereof, an amount per share equal to the Series A Original Issue Price, together with any other dividends declared but unpaid thereon; and

 

(c)          after the payment of all the amounts required to be paid to the holders of Series B Preferred Stock and Series A Preferred Stock pursuant to the Subsections 2.1(a) and (b), the holders of shares of the Junior Series A Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, before any payment shall be made to the holders of the Common Stock, an amount equal to the greater of (i) the Junior Series A Preferred Original Issue Price, plus any dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had each such share of Junior Series A Preferred Stock and all other Preferred Stock converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution or winding up; and

 

(d)          after the payment of all the amounts required to be paid to the holders of shares of Series B Preferred Stock, Series A Preferred Stock, and Junior Series A Preferred Stock, under Subsections 2.1(a), (b) and (c), the remaining assets of the Corporation available for distribution to its stockholders shall be distributed among the holders of the shares of Series B Preferred Stock, Series A Preferred Stock, and Common Stock, pro rata based on the number of shares held by each such holder, treating for this purpose all such securities as if they had been converted to Common Stock pursuant to the terms of the Certificate of Incorporation immediately prior to such liquidation, dissolution or winding up of the Corporation.

 

The aggregate amount which a holder of a share of Series B Preferred Stock, a holder of a share of Series A Preferred Stock, and a holder of a share of Junior Series A Preferred Stock, respectively, is entitled to receive under Subsections 2.1(a), (b) and (c), respectively, is hereinafter referred to as the “Series B Liquidation Amount,” the “Series A Liquidation Amount,” and the “Junior Series A Liquidation Amount”, respectively.

 

2.2

Deemed Liquidation Events.

 

2.2.1           Definition. Each of the following events shall be considered a “Deemed Liquidation Event” unless the holders of more than 50% of the then outstanding shares of Series B Preferred Stock and Series A Preferred Stock, voting together as a single class on an as-converted to Common Stock basis (the “Required Preferred Majority”), elect otherwise by written notice sent to the Corporation at least ten (10) days prior to the effective date of any such event:

 

 

(a)          a merger or consolidation in which:

 

(i)          the Corporation is a constituent party; or

 

(ii)         a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation,

 

except any such merger or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, or the holders of shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation otherwise hold, directly or indirectly, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock or other equity interests of (1) the surviving or resulting corporation; or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation; or

 

(b)          the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole, or the sale or disposition (whether by merger, consolidation or otherwise, and whether in a single transaction or series of transactions) of one or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Corporation.

 

2.2.2            Effecting a Deemed Liquidation Event.

 

(a)          The Corporation shall not have the power to effect a Deemed Liquidation Event referred to in Subsection 2.2.1 (a)(i) unless the agreement or plan of merger or consolidation for such transaction (the “Merger Agreement”) provides that the consideration payable to the stockholders of the Corporation in such Deemed Liquidation Event shall be allocated among the holders of capital stock of the Corporation in accordance with Subsection 2.1.

 

 

(b)          In the event of a Deemed Liquidation Event referred to in Subsection 2.2.1 (a)(ii) or 2.2.1 (b), if the Corporation does not effect a dissolution of the Corporation under the General Corporation Law within ninety (90) days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice to each holder of Preferred Stock no later than the ninetieth (90^th) day after the Deemed Liquidation Event advising such holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause; (ii) to require the redemption of such shares of Preferred Stock, and (iii) if the Required Preferred Majority so request in a written instrument delivered to the Corporation not later than one hundred twenty (120) days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, as determined in good faith by the Board of Directors), together with any other assets of the Corporation available for distribution to its stockholders, all to the extent permitted by Delaware law governing distributions to stockholders (the “Available Proceeds”), on the one hundred fiftieth (150th) day after such Deemed Liquidation Event, to redeem all outstanding shares of Series B Preferred Stock at a price per share equal to the Series B Liquidation Amount, the shares of Series A Preferred Stock at a price per share equal to the Series A Liquidation Amount and the shares of Junior Series A Preferred Stock at a price per share equal to the Junior Series A Liquidation Amount. Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all outstanding shares of Preferred Stock, the Corporation shall redeem a pro rata portion (i) first, each holder’s shares of Series B Preferred Stock to the fullest extent of such Available Proceeds (in payment of the Series B Liquidation Amount, ratably among the holders of the shares of Series B Preferred Stock) based on the respective amounts which would otherwise be payable in respect of the shares to be redeemed if the Available Proceeds were sufficient to redeem all such shares and shall redeem the remaining shares as soon as it may lawfully do so under Delaware law governing distributions to stockholders, (ii) second, each holder’s shares of Series A Preferred Stock to the fullest extent of any remaining Available Proceeds (in payment of the Series A Liquidation Amount, ratably among the holders of the shares of Series A Preferred Stock) based on the respective amounts which would otherwise be payable in respect of the shares to be redeemed if the Available Proceeds were sufficient to redeem all such shares and shall redeem the remaining shares as soon as it may lawfully do so under Delaware law governing distributions to stockholders and (iii) third, each holder’s shares of Junior Series A Preferred Stock to the fullest extent of any remaining Available Proceeds (in payment of the Junior Series A Liquidation Amount, ratably among the holders of the shares of Junior Series A Preferred Stock) based on the respective amounts which would otherwise be payable in respect of the shares to be redeemed if the Available Proceeds were sufficient to redeem all such shares and shall redeem the remaining shares as soon as it may lawfully do so under Delaware Law governing distributions to stockholders. Prior to the distribution or redemption provided for in this Subsection 2.2.2 (b), the Corporation shall not expend or dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in connection with such Deemed Liquidation Event, or as approved by the Board, including the Required Preferred Directors (as such term is defined in the Investors’ Rights Agreement, dated on or about the date of this Certificate of Incorporation, by and between the Corporation and certain of its stockholders that are parties thereto), in the ordinary course of business.

 

2.2.3           Amount Deemed Paid or Distributed. The amount deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity pursuant to the Deemed Liquidation Event. The value of such property, rights or securities shall be determined in good faith by the Board of Directors.

 

 

2.2.4           Allocation of Escrow and Contingent Consideration. In the event of a Deemed Liquidation Event pursuant to Subsection 2.2.1(a)(i), if any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies (the “Additional Consideration”), the Merger Agreement shall provide that (a) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated among the holders of capital stock of the Corporation in accordance with Subsection 2.1 as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event; and (b) any Additional Consideration which becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of capital stock of the Corporation in accordance with Subsection 2.1 after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Subsection 2.2.4, consideration placed into escrow or retained as holdback to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed to be Additional Consideration.

 

3.

Voting.

 

3.1           General. On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares of Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by the other provisions of the Certificate of Incorporation, holders of Preferred Stock shall vote together with the holders of Common Stock as a single class on an as-converted basis.

 

3.2

Election of Directors.

 

3.2.1           The holders of record of the shares of Series B Preferred Stock, exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation (the “Series B Director”) and the holders of record of the shares of Series A Preferred Stock exclusively and as a separate class, shall be entitled to elect four (4) directors of the Corporation (the “Series A Directors”). Any director elected as provided in the preceding sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. If the holders of shares of Series B Preferred Stock or Series A Preferred Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are respectively entitled to elect directors, voting exclusively and as a separate class, pursuant to the first sentence of this Subsection 3.2, then any directorship not so filled shall remain vacant until such time as the holders of the Series B Preferred Stock or Series A Preferred Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class.

 

 

3.2.2           The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Series B Preferred Stock, Series A Preferred Stock and Junior Series A Preferred Stock), exclusively and voting together as a single class, shall be entitled to elect the balance of the total number of directors of the Corporation.

 

3.2.3           At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director.

 

3.2.4           Except as otherwise provided in this Subsection 3.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 3.2.

 

3.3           Preferred Stock Protective Provisions. At any time when shares of Series A Preferred Stock or Series B Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following, or permit or cause any of its subsidiaries to do any of the following, without (in addition to any other vote required by law or the Certificate of Incorporation) the written consent or affirmative vote of the Required Preferred Majority, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect.

 

3.3.1           liquidate, dissolve or wind-up the business and affairs of the Corporation, effect any merger or consolidation or any other Deemed Liquidation Event or change of control of the Corporation, or public offering of the Corporation’s stock, or consent to any of the foregoing;

 

3.3.2           amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation;

 

3.3.3           create, or authorize the creation of, or issue or obligate itself to issue shares of, any additional class or series of capital stock (or any security convertible into or exchangeable for capital stock) unless the same ranks junior to the Series B Preferred Stock and Series A Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption, or increase the authorized number of shares of Preferred Stock or other class or series of Stock unless the same ranks junior to the Series B Preferred Stock and Series A Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption;

 

 

3.3.4           (i) reclassify, alter or amend any existing security of the Corporation that is pari passu with the Series A Preferred Stock and/or Series B Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Series B Preferred Stock and/or Series A Preferred Stock in respect of any such right, preference, or privilege or (ii) reclassify, alter or amend any existing security of the Corporation that is junior to the Series B Preferred Stock and/or Series A Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to or pari passu with the Series B Preferred Stock and/or Series A Preferred Stock in respect of any such right, preference or privilege;

 

3.3.5           purchase or redeem (or permit any subsidiary to purchase or redeem) or pay or declare any dividend or make any distribution on, any shares of capital stock of the Corporation prior to the Series B Preferred Stock (subject to all preferences and priorities of the Series B Preferred Stock in this Article Fourth), or following the Series B Preferred Stock, but prior to the Series A Preferred Stock (subject to all preferences and priorities of the Series A Preferred Stock in this Article Fourth) other than (i) redemptions of or dividends or distributions on the Preferred Stock as expressly authorized herein, (ii) dividends or other distributions payable on the Common Stock solely in the form of additional shares of Common Stock and (iii) repurchases of stock from former employees, officers, directors, consultants or other persons who performed services for the Corporation or any subsidiary in connection with the cessation of such employment or service at the lower of the original purchase price or the then-current fair market value thereof;

 

3.3.6           create, or authorize the creation of, or issue, or authorize the issuance of any debt security or create any lien or security interest (except for purchase money liens or statutory liens of landlords, mechanics, materialmen, workmen, warehousemen and other similar persons arising or incurred in the ordinary course of business) or incur other indebtedness for borrowed money, including but not limited to obligations and contingent obligations under guarantees, or permit any subsidiary to take any such action with respect to any debt security, lien, security interest or other indebtedness for borrowed money, if the aggregate indebtedness of the Corporation and its subsidiaries for borrowed money (other than equipment leases, bank lines of credit or trade payables incurred in the ordinary course of business) following such action would exceed $1,000,000;

 

3.3.7           create, or hold capital stock or other equity interests in, any subsidiary that is not wholly owned (either directly or through one or more other subsidiaries) by the Corporation, or permit any subsidiary to create, or authorize the creation of, or issue or obligate itself to issue, any shares of any class or series of capital stock or other equity interests, or sell, transfer or otherwise dispose of any capital stock or other equity interests of any direct or indirect subsidiary of the Corporation, or permit any direct or indirect subsidiary to sell, lease, transfer, exclusively license or otherwise dispose (in a single transaction or series of related transactions) of all or substantially all of the assets of such subsidiary;

 

 

3.3.8           increase or decrease the authorized number of directors constituting the Board of Directors;

 

3.3.9           enter into any transaction with any affiliate of the Company or any individual in the role of senior management of the Company, except for compensatory agreements entered into in the ordinary course of business; or

 

3.3.10         change the business in which the Company is presently engaged.

 

3.4           Series B Preferred Stock Protective Provisions. At any time when any shares of Series B Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without (in addition to any other vote required by law or the Certificate of Incorporation) the written consent or affirmative vote of the holders of more than 50% of the then outstanding shares of Series B Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect:

 

3.4.1           amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation in a manner that adversely affects the powers, preferences or rights of the Series B Preferred Stock; provided that the same does not also affect all of the Preferred Stock in substantially the same manner; or

 

3.4.2           increase or decrease the number of authorized shares of Series B Preferred Stock.

 

3.5           Series A Preferred Stock Protective Provisions. At any time when any shares of Series A Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without (in addition to any other vote required by law or the Certificate of Incorporation) the written consent or affirmative vote of the holders of at least 55% of the then outstanding shares of Series A Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect:

 

3.5.1           amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation in a manner that adversely affects the powers, preferences or rights of the Series A Preferred Stock; provided that the same does not also affect all of the Preferred Stock in substantially the same manner; or

 

3.5.2           increase or decrease the number of authorized shares of Series A Preferred Stock.

 

 

3.6           Junior Series A Preferred Stock Protective Provisions. At any time when any shares of Junior Series A Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without (in addition to any other vote required by law or the Certificate of Incorporation) the written consent or affirmative vote of the holders of more than 50% of the then outstanding shares of Junior Series A Preferred Stock, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect:

 

3.6.1           amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Corporation in a manner that adversely affects the powers, preferences or rights of the Junior Series A Preferred Stock; provided that the same does not also affect all of the Preferred Stock in substantially the same manner; or

 

3.6.2           increase or decrease the number of authorized shares of Junior Series A Preferred Stock.

 

4.

Optional Conversion.

 

4.1           Right to Convert. The holders of Preferred Stock shall have conversion rights as follows (the “Conversion Rights”):

 

4.1.1           Conversion Ratio. Each share of Series B Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and non-assessable shares of Common Stock as is determined by dividing the Series B Original Issue Price by the Series B Conversion Price (as defined in Section 4.4.1) in effect at the time of conversion.  Each share of Series A Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and non-assessable shares of Common Stock as is determined by dividing the Series A Original Issue Price by the Series A Conversion Price (as defined in Section 4.4.1) in effect at the time of conversion. Each share of Junior Series A Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and non-assessable shares of Common Stock as is determined by dividing the Junior Series A Original Issue Price by the Junior Series A Conversion Price (as defined in Section 4.4.1) in effect at the time of conversion.

 

4.1.2           Termination of Conversion Rights. In the event of a liquidation, dissolution or winding up of the Corporation or a Deemed Liquidation Event, the Conversion Rights shall terminate at the close of business on the last full day preceding the date fixed for the payment of any such amounts distributable on such event to the holders of Preferred Stock.

 

4.2           Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of Preferred Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the fair market value of a share of Common Stock as determined in good faith by the Board of Directors. Whether or not fractional shares would be issuable upon such conversion shall be determined on the basis of the total number of shares of Preferred Stock the holder is at the time converting into Common Stock and the aggregate number of shares of Common Stock issuable upon such conversion.

 

 

4.3

Mechanics of Conversion.

 

4.3.1           Notice of Conversion. In order for a holder of Preferred Stock to voluntarily convert shares of Preferred Stock into shares of Common Stock, such holder shall (a) provide written notice to the Corporation’s transfer agent at the office of the transfer agent for the Preferred Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent) that such holder elects to convert all or any number of such holder’s shares of Preferred Stock and, if applicable, any event on which such conversion is contingent and (b), if such holder’s shares are certificated, surrender the certificate or certificates for such shares of Preferred Stock (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Preferred Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent). Such notice shall state such holder’s name or the names of the nominees in which such holder wishes the shares of Common Stock to be issued. If required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing. The close of business on the date of receipt by the transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) of such notice and, if applicable, certificates (or lost certificate affidavit and agreement) shall be the time of conversion (the “Conversion Time”), and the shares of Common Stock issuable upon conversion of the specified shares shall be deemed to be outstanding of record as of such date. The Corporation shall, as soon as practicable after the Conversion Time, (i) issue and deliver to such holder of Preferred Stock, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable upon such conversion in accordance with the provisions hereof and a certificate for the number (if any) of the shares of Preferred Stock represented by the surrendered certificate that were not converted into Common Stock, (ii) pay in cash such amount as provided in Subsection 4.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and (iii) pay all declared but unpaid dividends on the shares of Preferred Stock converted.

 

4.3.2            Reservation of Shares. The Corporation shall at all times when the Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Preferred Stock, the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to the Certificate of Incorporation. Before taking any action which would cause an adjustment reducing the Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Preferred Stock, the Corporation will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation may validly and legally issue fully paid and non-assessable shares of Common Stock at such adjusted Conversion Price.

 

 

4.3.3           Effect of Conversion. All shares of Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the Conversion Time, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor, to receive payment in lieu of any fraction of a share otherwise issuable upon such conversion as provided in Subsection 4.2 and to receive payment of any dividends declared but unpaid thereon. Any shares of Preferred Stock so converted shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Preferred Stock accordingly.

 

4.3.4           No Further Adjustment. Upon any such conversion, no adjustment to the Conversion Price shall be made for any declared but unpaid dividends on the Preferred Stock surrendered for conversion or on the Common Stock delivered upon conversion.

 

4.3.5           Taxes. The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Preferred Stock pursuant to this Section 4. The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.

 

4.4           Adjustments to Series B Conversion Price, Series A Conversion Price, and Junior Series A Conversion Price for Diluting Issues.

 

4.4.1           Definitions. For the purposes of this Article Fourth, the following terms shall have the following meanings:

 

(a)          “Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Subsection 4.4.3 below, deemed to be issued) by the Corporation after the Series B Original Issue Date, other than (1) the following shares of Common Stock and (2) shares of Common Stock deemed issued pursuant to the following Options and Convertible Securities (clauses (1) and (2), collectively, “Exempted Securities”):

 

(i)          shares of Common Stock, Options or Convertible Securities issued as a dividend or distribution on Series B Preferred Stock, Series A Preferred Stock, or Junior Series A Preferred Stock;

 

 

 

(ii)         shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Subsection 4.5, 4.6, 4.7 or 4.8;

 

(iii)        shares of Common Stock or Options issued to employees or directors of, or consultants or advisors to, the Corporation or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors; shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock actually issued upon the conversion or exchange of Convertible Securities, in each case provided such issuance is pursuant to the terms of such Option or Convertible Security;

 

(iv)        shares of Common Stock, Options or Convertible Securities issued to suppliers or third party service providers in connection with the provision of goods or services pursuant to transactions approved by the Board of Directors; or

 

(v)         shares of Common Stock, Options or Convertible Securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board of Directors, including the Required Preferred Directors;

 

(vi)        shares of Common Stock, Options or Convertible Securities issued in connection with sponsored research, collaboration, technology license, development, marketing or other similar agreements or strategic partnerships approved by the Board of Directors; and

 

(vii)       shares of Common Stock, Options or Convertible Securities issued as acquisition consideration pursuant to the acquisition of another corporation by the Corporation by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, provided that such issuances are approved by the Board of Directors, including the Required Preferred Directors.

 

(b)          “Conversion Price” means the Series B Conversion Price, Series A Conversion Price or Junior Series A Conversion Price, as applicable.

 

(c)          “Convertible Securities” shall mean any evidence of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding Options.

 

(d)          “Junior Series A Conversion Price” shall initially be equal to $1.00. Such initial Junior Series A Conversion Price, and the rate at which shares of Junior Series A Preferred Stock may pursuant to this Section 4 or shall pursuant to Section 5 be converted into shares of Common Stock, shall be subject to adjustment as provided below.

 

 

(e)          “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.

 

(f)           “Series A Conversion Price” shall initially be equal to $1.00. Such initial Series A Conversion Price, and the rate at which shares of Series A Preferred Stock may pursuant to this Section 4 or shall pursuant to Section 5 be converted into shares of Common Stock, shall be subject to adjustment as provided below.

 

(g)          “Series B Conversion Price” shall initially be equal to $1.4428. Such initial Series B Conversion Price, and the rate at which shares of Series B Preferred Stock may pursuant to this Section 4 or shall pursuant to Section 5 be converted into shares of Common Stock, shall be subject to adjustment as provided below.

 

(h)          “Series B Original Issue Date” shall mean the date on which the first share of Series B Preferred Stock was issued.

 

4.4.2           No Adjustment of Conversion Price.

 

(a)          No adjustment in the Series B Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from the holders of more than 50% of the then outstanding shares of Series B Preferred Stock agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.

 

(b)          No adjustment in the Series A Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from the holders of at least 55% of the then outstanding shares of Series A Preferred Stock agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.

 

(c)          No adjustment in the Junior Series A Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from the holders of more than 50% of the then outstanding shares of Junior Series A Preferred Stock agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.

 

4.4.3           Deemed Issue of Additional Shares of Common Stock.

 

(a)          If the Corporation at any time or from time to time after the Series B Original Issue Date shall issue any Options or Convertible Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.

 

 

(b)          If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Conversion Price pursuant to the terms of Subsection 4.4.4, are revised as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease becoming effective, the Conversion Price computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted to such Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this clause (b) shall have the effect of increasing the Conversion Price to an amount which exceeds the lower of (i) the Conversion Price in effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security, or (ii) Conversion Price that would have resulted from any issuances of Additional Shares of Common Stock (other than deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option or Convertible Security) between the original adjustment date and such readjustment date.

 

(c)          If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted Securities), the issuance of which did not result in an adjustment to the Conversion Price pursuant to the terms of Subsection 4.4.4 (either because the consideration per share (determined pursuant to Subsection 4.4.5) of the Additional Shares of Common Stock subject thereto was equal to or greater than the Conversion Price then in effect, or because such Option or Convertible Security was issued before the Series B Original Issue Date), are revised after the Series B Original Issue Date as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any decrease in the consideration payable to the Corporation upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional Shares of Common Stock subject thereto (determined in the manner provided in Subsection 4.4.3 shall be deemed to have been issued effective upon such increase or decrease becoming effective.

 

 

(d)          Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Conversion Price pursuant to the terms of Subsection 4.4.4, the Conversion Price shall be readjusted to such Conversion Price as would have obtained had such Option or Convertible Security (or portion thereof) never been issued.

 

(e)          If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, is calculable at the time such Option or Convertible Security is issued or amended but is subject to adjustment based upon subsequent events, any adjustment to the Conversion Price provided for in this Subsection 4.4.3 shall be effected at the time of such issuance or amendment based on such number of shares or amount of consideration without regard to any provisions for subsequent adjustments (and any subsequent adjustments shall be treated as provided in clauses (b) and (c) of this Subsection 4.4.3). If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, cannot be calculated at all at the time such Option or Convertible Security is issued or amended, any adjustment to the Conversion Price that would result under the terms of this Subsection 4.4.3 at the time of such issuance or amendment shall instead be effected at the time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent adjustments), assuming for purposes of calculating such adjustment to the Conversion Price that such issuance or amendment took place at the time such calculation can first be made.

 

4.4.4           Adjustment of Conversion Price Upon Issuance of Additional Shares of Common Stock. In the event the Corporation shall at any time after the Series B Original Issue Date issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Subsection 4.4.3), without consideration or for a consideration per share less than the applicable Conversion Price of any series of Preferred Stock in effect immediately prior to such issue, then the applicable Conversion Price of such series of Preferred Stock shall be reduced, concurrently with such issue, to a price (calculated to the nearest one- hundredth of a cent) determined in accordance with the following formula:

 

CP2 = CP1* (A + B) ÷ (A + C).

 

For purposes of the foregoing formula, the following definitions shall apply:

 

(a)          “CP2” shall mean the Conversion Price in effect immediately after such issuance or deemed issuance of Additional Shares of Common Stock

 

(b)          “CP1” shall mean the Conversion Price in effect immediately prior to such issuance or deemed issuance of Additional Shares of Common Stock;

 

(c)          “A” shall mean the number of shares of Common Stock outstanding immediately prior to such issuance or deemed issuance of Additional Shares of Common Stock (treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of Options outstanding immediately prior to such issuance or deemed issuance or upon conversion or exchange of Convertible Securities (including the Preferred Stock) outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issue;

 

 

(d)          “B” shall mean the number of shares of Common Stock that would have been issued if such Additional Shares of Common Stock had been issued or deemed issued at a price per share equal to CP1 (determined by dividing the aggregate consideration received by the Corporation in respect of such issue by CP1); and

 

(e)          “C” shall mean the number of such Additional Shares of Common Stock issued in such transaction.

 

4.4.5           Determination of Consideration. For purposes of this Subsection 4.4, the consideration received by the Corporation for the issuance or deemed issuance of any Additional Shares of Common Stock shall be computed as follows:

 

(a)          Cash and Property: Such consideration shall:

 

(i)          insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest;

 

(ii)         insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board of Directors of the Corporation; and

 

(iii)        in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (i) and (ii) above, as determined in good faith by the Board of Directors of the Corporation.

 

(b)          Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Subsection 4.4.3, relating to Options and Convertible Securities, shall be determined by dividing:

 

(i)          the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities; by

 

(ii)         the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities.

 

 

4.4.6           Multiple Closing Dates. In the event the Corporation shall issue on more than one date Additional Shares of Common Stock that are a part of one transaction or a series of related transactions and that would result in an adjustment to any Conversion Price pursuant to the terms of Subsection 4.4.4, and such issuance dates occur within a period of no more than ninety (90) days from the first such issuance to the final such issuance, then, upon the final such issuance, the applicable Conversion Price(s) shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and without giving effect to any additional adjustments as a result of any such subsequent issuances within such period).

 

4.5           Adjustment for Stock Splits and Combinations. If the Corporation shall at any time or from time to time after the Series B Original Issue Date effect a subdivision of the outstanding Common Stock, the Conversion Prices in effect immediately before that subdivision shall be proportionately decreased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding. If the Corporation shall at any time or from time to time after the Series B Original Issue Date combine the outstanding shares of Common Stock, the Conversion Prices in effect immediately before the combination shall be proportionately increased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection shall become effective at the close of business on the date the subdivision or combination becomes effective.

 

4.6           Adjustment for Certain Dividends and Distributions. In the event the Corporation at any time or from time to time after the Series B Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable on the Common Stock in additional shares of Common Stock, then and in each such event the Conversion Prices in effect immediately before such event shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Conversion Prices then in effect by a fraction:

 

(i)          the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and

 

(ii)         the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution.

 

 

Notwithstanding the foregoing, (a) if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Conversion Prices shall be recomputed accordingly as of the close of business on such record date and thereafter the Conversion Prices shall be adjusted pursuant to this subsection as of the time of actual payment of such dividends or distributions; and (b) no such adjustment shall be made to the Series B Conversion Price, Series A Conversion Price or Junior Series A Conversion Price, as applicable, if the holders of Series B Preferred Stock, Series A Preferred Stock or Junior Series A Preferred Stock, as applicable, simultaneously receive a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as they would have received if all outstanding shares of such series of Preferred Stock had been converted into Common Stock on the date of such event.

 

4.7           Adjustments for Other Dividends and Distributions. In the event the Corporation at any time or from time to time after the Series B Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Corporation (other than a distribution of shares of Common Stock in respect of outstanding shares of Common Stock) or in other property and the provisions of Section 1 do not apply to such dividend or distribution, then in each such event the holders of Preferred Stock shall receive, simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution of such securities or other property in an amount equal to the amount of such securities or other property as they would have received if all outstanding shares of Preferred Stock had been converted into Common Stock on the date of such event.

 

4.8           Adjustment for Merger or Reorganization, etc. Subject to the provisions of Subsection 2.2, if there shall occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Corporation in which the Common Stock (but not the Series B Preferred Stock, Series A Preferred Stock, and/or Junior Series A Preferred Stock) is converted into or exchanged for securities, cash or other property (other than a transaction covered by Subsections 4.4, 4.6 or 4.7), then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each share of Preferred Stock shall thereafter be convertible in lieu of the Common Stock into which it was convertible prior to such event into the kind and amount of securities, cash or other property which a holder of the number of shares of Common Stock of the Corporation issuable upon conversion of one share of Series B Preferred Stock, Series A Preferred Stock or Junior Series A Preferred Stock (as applicable) immediately prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board of Directors of the Corporation) shall be made in the application of the provisions in this Section 4 with respect to the rights and interests thereafter of the holders of such Preferred Stock, to the end that the provisions set forth in this Section 4 (including provisions with respect to changes in and other adjustments of the applicable Conversion Price) shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the conversion of such Preferred Stock.

 

 

4.9           Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of any Conversion Price pursuant to this Section 5, the Corporation at its expense shall, as promptly as reasonably practicable but in any event not later than 10 days thereafter, compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of Preferred Stock a certificate setting forth such adjustment or readjustment (including the kind and amount of securities, cash or other property into which the Preferred Stock is convertible) and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, as promptly as reasonably practicable after the written request at any time of any holder of Preferred Stock (but in any event not later than 10 days thereafter), furnish or cause to be furnished to such holder a certificate setting forth (i) the applicable Conversion Price then in effect with respect to such series of Preferred Stock, and (ii) the number of shares of Common Stock and the amount, if any, of other securities, cash or property which then would be received upon the conversion of Preferred Stock.

 

4.10

Notice of Record Date. In the event:

 

(a)          the Corporation shall take a record of the holders of its Series B Preferred Stock, Series A Preferred Stock, Junior Series A Preferred Stock, and/or Common Stock (or other capital stock or securities at the time issuable upon conversion of any Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution, or to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive any other security; or

 

(b)          of any capital reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, or any Deemed Liquidation Event;

 

(c)          of the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation,

 

then, in each such case, the Corporation will send or cause to be sent to the holders of Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other capital stock or securities at the time issuable upon the conversion of the Preferred Stock) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable to the Preferred Stock and the Common Stock. Such notice shall be sent at least ten (10) days prior to the record date or effective date for the event specified in such notice.

 

 

5.

Mandatory Conversion.

 

5.1           Trigger Events. Upon either (a) the closing of the sale of shares of Common Stock to the public in a firm-commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, in which (1) the price of the Common Stock to the public in such offering, multiplied by the total number of shares of Common Stock outstanding at the time the registration statement for such offering becomes effective (including the shares of Common Stock issuable upon conversion or exercise of any Options or Convertible Securities then outstanding), is no less than $350,000,000, and (2) such offering results in at least $75,000,000 of gross proceeds to the Corporation, and in connection with such offering the Common Stock is listed for trading on the Nasdaq Stock Market's National Market, the New York Stock Exchange or another exchange or marketplace approved the Board of Directors, or (b) the date and time, or the occurrence of an event, specified by vote or written consent of the holders of (1) more than 50% of the then outstanding shares of Series B Preferred Stock and (2) at least 55% of the then outstanding shares of Series A Preferred Stock (the time of such closing or the date and time specified or the time of the event specified in such vote or written consent is referred to herein as the “Mandatory Conversion Time”), (i) all outstanding shares of Series B Preferred Stock, Series A Preferred Stock and Junior Series A Preferred Stock shall automatically be converted into shares of Common Stock, at the then effective conversion rate applicable thereto as calculated pursuant to Subsection 4.1.1 and (ii) such shares may not be reissued by the Corporation.

 

5.2           Procedural Requirements. All holders of record of shares of Preferred Stock shall be sent written notice of the Mandatory Conversion Time and the place designated for mandatory conversion of all such shares of Preferred Stock pursuant to this Section 5. Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time. Upon receipt of such notice, each holder of shares of Preferred Stock in certificated form shall surrender his, her or its certificate or certificates for all such shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in such notice. If so required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series B Preferred Stock, Series A Preferred Stock or Junior Series A Preferred Stock converted pursuant to Subsection 5.1, including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the holder or holders thereof to surrender any certificates at or prior to such time), except only the rights of the holders thereof, upon surrender of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Subsection 5.2. As soon as practicable after the Mandatory Conversion Time and, if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Series B Preferred Stock, Series A Preferred Stock or Junior Series A Preferred Stock, the Corporation shall (a) issue and deliver to such holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof and (b) pay cash as provided in Subsection 4.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and the payment of any declared but unpaid dividends on the shares of Series B Preferred Stock, Series A Preferred Stock or Junior Series A Preferred Stock converted. Such converted Series B Preferred Stock, Series A Preferred Stock and Junior Series A Preferred Stock shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Series B Preferred Stock, Series A Preferred Stock or Junior Series A Preferred Stock accordingly.

 

 

6.          Redeemed or Otherwise Acquired Shares. Any shares of Series B Preferred Stock, Series A Preferred Stock or Junior Series A Preferred Stock that are redeemed or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred. Neither the Corporation nor any of its subsidiaries may exercise any voting or other rights granted to the holders of Series B Preferred Stock, Series A Preferred Stock or Junior Series A Preferred Stock following redemption.

 

7.          Waiver. Except to the extent stated to the contrary in this Certificate of Incorporation, any of the rights, powers, preferences and other terms of the Preferred Stock set forth herein may be waived on behalf of all holders of Preferred Stock by the Required Preferred Majority, provided, however, that, unless such waiver applies to all series of Preferred Stock in the same fashion, the rights, powers, preferences and other terms of the Preferred Stock set forth herein may not be waived with respect to any series of Preferred Stock, without the written consent of the holders of as applicable, (1) more than 50% of the then outstanding shares of Series B Preferred Stock, with respect to the Series B Preferred Stock; (2) at least 55% of the then outstanding shares of Series A Preferred Stock, with respect to the Series A Preferred Stock; and (3) more than 50% of the then outstanding shares of Junior Series A Preferred Stock, with respect to the Junior Series A Preferred Stock.

 

8.          Notices. Any notice required or permitted by the provisions hereof to be given to a holder of shares of Series B Preferred Stock, Series A Preferred Stock or Junior Series A Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records of the Corporation, or given by electronic communication in compliance with the provisions of the General Corporation Law, and shall be deemed sent upon such mailing or electronic transmission.

 

FIFTH: Subject to any additional vote required by the Certificate of Incorporation or Bylaws, in furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend and rescind any or all of the Bylaws of the Corporation.

 

SIXTH: Subject to any additional vote required by the Certificate of Incorporation, the number of directors of the Corporation shall be determined in the manner set forth in the Bylaws of the Corporation.

 

SEVENTH: Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

 

 

EIGHTH: Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.

 

NINTH: To the fullest extent permitted by law, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the General Corporation Law or any other law of the State of Delaware is amended after approval by the stockholders of this Article Ninth to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended.

 

Any repeal or modification of the foregoing provisions of this Article Ninth by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director occurring prior to, such repeal or modification.

 

TENTH: To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of the Corporation (and any other persons to which General Corporation Law permits the Corporation to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the General Corporation Law.

 

Any amendment, repeal or modification of the foregoing provisions of this Article Tenth shall not adversely affect any right or protection of any director, officer or other agent of the Corporation existing at the time of such amendment, repeal or modification or increase the liability of any director of the Corporation with respect to any acts or omissions of such director occurring prior to, such amendment, repeal or modification.

 

ELEVENTH: The Corporation renounces, to the fullest extent permitted by law, any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any Excluded Opportunity. An “Excluded Opportunity” is any matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes into the possession of (i) any director of the Corporation who is not an employee of the Corporation or any of its subsidiaries, or (ii) any holder of Series A Preferred Stock or any partner, member, director, stockholder, employee, affiliate or agent of any such holder, other than someone who is an employee of the Corporation or any of its subsidiaries (collectively, “Covered Persons”), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a director of the Corporation while such Covered Person is performing services in such capacity. Any repeal or modification of this Article Eleventh will only be prospective and will not affect the rights under this Article Eleventh in effect at the time of the occurrence of any actions or omissions to act giving rise to liability.

 

*        *        *

 

 

 

IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer of this corporation on this 29^th day of March, 2019.

 

	By:	/s/ Saqib Islam
		Name: Saqib Islam
		Title: Chief Executive Officer

 

 

CERTIFICATE OF AMENDMENT TO
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SPRINGWORKS THERAPEUTICS, INC.

 

SpringWorks Therapeutics, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:

 

1.          Pursuant to Section 242 of the DGCL, this Certificate of Amendment to Amended and Restated Certificate of Incorporation (this “Amendment”) amends the provisions of the Amended and Restated Certificate of Incorporation of the Corporation, dated as of March 29, 2019 (the “Certificate”).

 

2.          This Amendment has been approved and duly adopted by the Corporation’s Board of Directors and written consent of the stockholders has been given in accordance with the provisions of Sections 228 and 242 of the DGCL, and the provisions of the Certificate.

 

3.          The Certificate is hereby amended as follows:

 

The first paragraph of Article FOURTH is hereby amended and restated in its entirety to read as set forth below:

 

“The total number of shares of all classes of stock which the Corporation shall have authority to issue is (i) 232,788,672 shares of Common Stock, $0.0001 par value per share (“Common Stock”) and (ii) 196,076,779 shares of Preferred Stock, $0.0001 par value per share (“Preferred Stock”), of which 6,437,500 shares are hereby designated as “Junior Series A Preferred Stock,” 103,000,000 shares are hereby designated as “Series A Preferred Stock” and 86,639,279 shares are hereby designated as “Series B Preferred Stock”.”

 

* - * - * - *

 

 

IN WITNESS WHEREOF, the undersigned authorized officer of the Corporation has executed this Certificate of Amendment to Amended and Restated Certificate of Incorporation as of June 4, 2019.

 

	SPRINGWORKS THERAPEUTICS,  INC.
	By:	/s/ Saqib Islam
		Saqib Islam
		Chief Executive Officer

 

 

 

AMENDMENT NO. 2 TO
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SPRINGWORKS THERAPEUTICS, INC.

 

SpringWorks Therapeutics, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:

 

1.          Pursuant to Section 242 of the DGCL, this Amendment No. 2 to Amended and Restated Certificate of Incorporation (this “Amendment”) amends the provisions of the Amended and Restated Certificate of Incorporation of the Corporation, dated as of March 29, 2019 (as such has been amended, the “Certificate”).

 

2.          This Amendment has been approved and duly adopted by the Corporation’s Board of Directors and written consent of the stockholders has been given in accordance with the provisions of Sections 228 and 242 of the DGCL, and the provisions of the Certificate.

 

3.          The Certificate is hereby amended as follows:

 

The first paragraph of Article FOURTH is hereby amended and restated in its entirety to read as set forth below:

 

“The total number of shares of all classes of stock which the Corporation shall have authority to issue is (i) 241,458,276 shares of Common Stock, $0.0001 par value per share (“Common Stock”) and (ii) 196,076,779 shares of Preferred Stock, $0.0001 par value per share (“Preferred Stock”), of which 6,437,500 shares are hereby designated as “Junior Series A Preferred Stock,” 103,000,000 shares are hereby designated as “Series A Preferred Stock” and 86,639,279 shares are hereby designated as “Series B Preferred Stock”.”

 

* - * - * - *

 

IN WITNESS WHEREOF, the undersigned authorized officer of the Corporation has executed this Certificate of Amendment to Amended and Restated Certificate of Incorporation as of July 29, 2019.

 

	SPRINGWORKS THERAPEUTICS,  INC.
	By:	/s/ Saqib Islam
		Saqib Islam
		Chief Executive Officer

 

 

 

Exhibit 3.2

 

SECOND AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION

 

OF

 

SPRINGWORKS THERAPEUTICS, INC.

 

SpringWorks Therapeutics, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:

 

1.          The name of the Corporation is SpringWorks Therapeutics, Inc. The date of the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 20, 2019 (the “Original Certificate”). The name under which the Corporation filed the Original Certificate was SpringWorks Therapeutics, Inc.

 

2.          This Second Amended and Restated Certificate of Incorporation (the “Certificate”) amends, restates and integrates the provisions of the Amended and Restated Certificate of Incorporation that was filed with the Secretary of State of the State of Delaware on March 29, 2019, as amended by the Certificates of Amendment filed with the Secretary of State of the State of Delaware on June 4, 2019 and July 29, 2019 (the “Amended and Restated Certificate”), and was duly adopted in accordance with the provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware (the “DGCL”).

 

3.          The text of the Amended and Restated Certificate is hereby amended and restated in its entirety to provide as herein set forth in full.

 

ARTICLE I

 

The name of the Corporation is SpringWorks Therapeutics, Inc.

 

ARTICLE II

 

The address of the Corporation’s registered office in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.

 

ARTICLE III

 

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

 

 

ARTICLE IV

 

Capital Stock

 

The total number of shares of capital stock which the Corporation shall have authority to issue is One Hundred Sixty Million (160,000,000) of which (i) One Hundred Fifty Million (150,000,000) shares shall be a class designated as common stock, par value $0.0001 per share (the “Common Stock”), and (ii) Ten Million (10,000,000) shares shall be a class designated as undesignated preferred stock, par value $0.0001 per share (the “Undesignated Preferred Stock”).

 

Except as otherwise provided in any certificate of designations of any series of Undesignated Preferred Stock, the number of authorized shares of the class of Common Stock or Undesignated Preferred Stock may from time to time be increased or decreased (but not below the number of shares of such class outstanding) by the affirmative vote of the holders of a majority in voting power of the outstanding shares of capital stock of the Corporation irrespective of the provisions of Section 242(b)(2) of the DGCL.

 

The powers, preferences and rights of, and the qualifications, limitations and restrictions upon, each class or series of stock shall be determined in accordance with, or as set forth below in, this Article IV.

 

A. Common Stock

 

Subject to all the rights, powers and preferences of the Undesignated Preferred Stock and except as provided by law or in this Certificate (or in any certificate of designations of any series of Undesignated Preferred Stock):

 

(a)          the holders of the Common Stock shall have the exclusive right to vote for the election of directors of the Corporation (the “Directors”) and on all other matters requiring stockholder action, each outstanding share entitling the holder thereof to one vote on each matter properly submitted to the stockholders of the Corporation for their vote; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate (or on any amendment to a certificate of designations of any series of Undesignated Preferred Stock) that alters or changes the powers, preferences, rights or other terms of one or more outstanding series of Undesignated Preferred Stock if the holders of such affected series of Undesignated Preferred Stock are entitled to vote, either separately or together with the holders of one or more other such series, on such amendment pursuant to this Certificate (or pursuant to a certificate of designations of any series of Undesignated Preferred Stock) or pursuant to the DGCL;

 

(b)          dividends may be declared and paid or set apart for payment upon the Common Stock out of any assets or funds of the Corporation legally available for the payment of dividends, but only when and as declared by the Board of Directors or any authorized committee thereof; and

 

(c)          upon the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the net assets of the Corporation shall be distributed pro rata to the holders of the Common Stock.

 

 

B. Undesignated Preferred Stock

 

The Board of Directors or any authorized committee thereof is expressly authorized, to the fullest extent permitted by law, to provide by resolution or resolutions for, out of the unissued shares of Undesignated Preferred Stock, the issuance of the shares of Undesignated Preferred Stock in one or more series of such stock, and by filing a certificate of designations pursuant to applicable law of the State of Delaware, to establish or change from time to time the number of shares of each such series, and to fix the designations, powers, including voting powers, full or limited, or no voting powers, preferences and the relative, participating, optional or other special rights of the shares of each series and any qualifications, limitations and restrictions thereof.

 

ARTICLE V

 

Stockholder Action

 

1.          Action without Meeting. Any action required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders and may not be taken or effected by a written consent of stockholders in lieu thereof. Notwithstanding anything herein to the contrary, the affirmative vote of not less than two thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of this Article V, Section 1.

 

2.          Special Meetings. Except as otherwise required by statute and subject to the rights, if any, of the holders of any series of Undesignated Preferred Stock, special meetings of the stockholders of the Corporation may be called only by the Board of Directors acting pursuant to a resolution approved by the affirmative vote of a majority of the Directors then in office, and special meetings of stockholders may not be called by any other person or persons. Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders of the Corporation.

 

ARTICLE VI

 

Directors

 

1.          General. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors except as otherwise provided herein or required by law.

 

2.          Election of Directors. Election of Directors need not be by written ballot unless the By-laws of the Corporation (the “By-laws”) shall so provide.

 

 

3.          Number of Directors; Term of Office. The number of Directors of the Corporation shall be fixed solely and exclusively by resolution duly adopted from time to time by the Board of Directors. The Directors, other than those who may be elected by the holders of any series of Undesignated Preferred Stock, shall be classified, with respect to the term for which they severally hold office, into three classes. The initial Class I Directors of the Corporation shall be [__]; the initial Class II Directors of the Corporation shall be [__]; and the initial Class III Directors of the Corporation shall be [__]. The initial Class I Directors shall serve for a term expiring at the annual meeting of stockholders to be held in 2020, the initial Class II Directors shall serve for a term expiring at the annual meeting of stockholders to be held in 2021, and the initial Class III Directors shall serve for a term expiring at the annual meeting of stockholders to be held in 2022. The mailing address of each person who is to serve initially as a director is c/o SpringWorks Therapeutics, Inc. 100 Washington Blvd, Stamford, CT 06902. At each annual meeting of stockholders, Directors elected to succeed those Directors whose terms expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election. Notwithstanding the foregoing, the Directors elected to each class shall hold office until their successors are duly elected and qualified or until their earlier resignation, death or removal.

 

Notwithstanding the foregoing, whenever, pursuant to the provisions of Article IV of this Certificate, the holders of any one or more series of Undesignated Preferred Stock shall have the right, voting separately as a series or together with holders of other such series, to elect Directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Certificate and any certificate of designations applicable to such series.

 

Notwithstanding anything herein to the contrary, the affirmative vote of not less than two thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of this Article VI, Section 3.

 

4.          Vacancies. Subject to the rights, if any, of the holders of any series of Undesignated Preferred Stock to elect Directors and to fill vacancies in the Board of Directors relating thereto, any and all vacancies in the Board of Directors, however occurring, including, without limitation, by reason of an increase in the size of the Board of Directors, or the death, resignation, disqualification or removal of a Director, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining Directors then in office, even if less than a quorum of the Board of Directors, and not by the stockholders. Any Director appointed in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director’s successor shall have been duly elected and qualified or until his or her earlier resignation, death or removal. Subject to the rights, if any, of the holders of any series of Undesignated Preferred Stock to elect Directors, when the number of Directors is increased or decreased, the Board of Directors shall, subject to Article VI, Section 3 hereof, determine the class or classes to which the increased or decreased number of Directors shall be apportioned; provided, however, that no decrease in the number of Directors shall shorten the term of any incumbent Director. In the event of a vacancy in the Board of Directors, the remaining Directors, except as otherwise provided by law, shall exercise the powers of the full Board of Directors until the vacancy is filled.

 

 

5.          Removal. Subject to the rights, if any, of any series of Undesignated Preferred Stock to elect Directors and to remove any Director whom the holders of any such series have the right to elect, any Director (including persons elected by Directors to fill vacancies in the Board of Directors) may be removed from office (i) only with cause and (ii) only by the affirmative vote of the holders of not less than two thirds (2/3) of the outstanding shares of capital stock then entitled to vote at an election of Directors. At least forty-five (45) days prior to any annual or special meeting of stockholders at which it is proposed that any Director be removed from office, written notice of such proposed removal and the alleged grounds thereof shall be sent to the Director whose removal will be considered at the meeting.

 

ARTICLE VII

 

Limitation Of Liability

 

A Director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of his or her fiduciary duty as a Director, except for liability (a) for any breach of the Director’s duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL or (d) for any transaction from which the Director derived an improper personal benefit. If the DGCL is amended after the effective date of this Certificate to authorize corporate action further eliminating or limiting the personal liability of Directors, then the liability of a Director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

 

Any amendment, repeal or modification of this Article VII by either of (i) the stockholders of the Corporation or (ii) an amendment to the DGCL, shall not adversely affect any right or protection existing at the time of such amendment, repeal or modification with respect to any acts or omissions occurring before such amendment, repeal or modification of a person serving as a Director at the time of such amendment, repeal or modification.

 

Notwithstanding anything herein to the contrary, the affirmative vote of not less than two thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of this Article VII.

 

ARTICLE VIII

 

Amendment Of By-Laws

 

1.        Amendment by Directors. Except as otherwise provided by law, the By-laws of the Corporation may be amended or repealed by the Board of Directors by the affirmative vote of a majority of the Directors then in office.

 

 

2.          Amendment by Stockholders. Except as otherwise provided therein, the By-laws of the Corporation may be amended or repealed at any annual meeting of stockholders, or special meeting of stockholders called for such purpose, by the affirmative vote of not less than two thirds (2/3) of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of the majority of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class.

 

ARTICLE IX

 

Amendment Of Certificate Of Incorporation

 

The Corporation reserves the right to amend or repeal this Certificate in the manner now or hereafter prescribed by statute and this Certificate, and all rights conferred upon stockholders herein are granted subject to this reservation. Except as otherwise required by this Certificate or by law, whenever any vote of the holders of capital stock of the Corporation is required to amend or repeal any provision of this Certificate, such amendment or repeal shall require the affirmative vote of the majority of the outstanding shares of capital stock entitled to vote on such amendment or repeal, and the affirmative vote of the majority of the outstanding shares of each class entitled to vote thereon as a class, at a duly constituted meeting of stockholders called expressly for such purpose.

 

[End of Text]

 

 

THIS SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION is executed as of this [_____] day of [______], [_____].

 

	SPRINGWORKS THERAPEUTICS, INC.
	By:
		Name: Saqib Islam
		Title: Chief Executive Officer

 

[Signature Page to SpringWorks Therapeutics, Inc. Second Amended and Restated Certificate of Incorporation]

 

 

 

Exhibit 3.3

 

BY-LAWS

 

of

 

SPRINGWORKS THERAPEUTICS, INC.

 

(the “Corporation”)

 

1.

Stockholders

 

(a)          Annual Meeting. The annual meeting of stockholders shall be held for the election of directors each year at such place, date and time as shall be designated by the Board of Directors. Any other proper business may be transacted at the annual meeting. If no date for the annual meeting is established or said meeting is not held on the date established as provided above, a special meeting in lieu thereof may be held or there may be action by written consent of the stockholders on matters to be voted on at the annual meeting, and such special meeting or written consent shall have for the purposes of these By-laws or otherwise all the force and effect of an annual meeting.

 

(b)          Special Meetings. Special meetings of stockholders may be called by the Chief Executive Officer, if one is elected, or, if there is no Chief Executive Officer, a President, or by the Board of Directors, but such special meetings may not be called by any other person or persons. The call for the meeting shall state the place, date, hour and purposes of the meeting. Only the purposes specified in the notice of special meeting shall be considered or dealt with at such special meeting.

 

(c)          Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present and vote at such meeting, and, in the case of a special meeting, the purpose or purposes of the meeting, shall be given by the Secretary (or other person authorized by these By-laws or by law) not less than ten (10) nor more than sixty (60) days before the meeting to each stockholder entitled to vote thereat and to each stockholder who, under the Certificate of Incorporation or under these By-laws is entitled to such notice. If mailed, notice is given when deposited in the mail, postage prepaid, directed to such stockholder at such stockholder’s address as it appears in the records of the Corporation. Without limiting the manner by which notice otherwise may be effectively given to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the Delaware General Corporation Law (the “DGCL”).

 

If a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place, if any, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken, except that if the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

 

(d)          Quorum. The holders of a majority in interest of all stock issued, outstanding and entitled to vote at a meeting, present in person or represented by proxy, shall constitute a quorum. Any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question, whether or not a quorum is present. The stockholders present at a duly constituted meeting may continue to transact business until adjournment notwithstanding the withdrawal of enough stockholders to reduce the voting shares below a quorum.

 

(e)          Voting and Proxies. Except as otherwise provided by the Certificate of Incorporation or by law, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by either written proxy or by a transmission permitted by Section 212(c) of the DGCL, but no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period or is irrevocable and coupled with an interest. Proxies shall be filed with the Secretary of the meeting, or of any adjournment thereof. Except as otherwise limited therein, proxies shall entitle the persons authorized thereby to vote at any adjournment of such meeting.

 

(f)          Action at Meeting. When a quorum is present, any matter before the meeting shall be decided by vote of the holders of a majority of the shares of stock voting on such matter except where a larger vote is required by law, by the Certificate of Incorporation or by these By-laws. Any election of directors by stockholders shall be determined by a plurality of the votes cast, except where a larger vote is required by law, by the Certificate of Incorporation or by these By-laws. The Corporation shall not directly or indirectly vote any share of its own stock; provided, however, that the Corporation may vote shares which it holds in a fiduciary capacity to the extent permitted by law.

 

(g)          Presiding Officer. Meetings of stockholders shall be presided over by the Chairman of the Board, if one is elected, or in his or her absence, the Vice Chairman of the Board, if one is elected, or if neither is elected or in their absence, a President. The Board of Directors shall have the authority to appoint a temporary presiding officer to serve at any meeting of the stockholders if the Chairman of the Board, the Vice Chairman of the Board or a President is unable to do so for any reason.

 

(h)          Conduct of Meetings. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the presiding officer of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding officer of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the presiding officer of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

 

(i)          Action without a Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted by law to be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office, by hand or by certified mail, return receipt requested, or to the Corporation's principal place of business or to the officer of the Corporation having custody of the minute book. Every written consent shall bear the date of signature and no written consent shall be effective unless, within sixty (60) days of the earliest dated consent delivered pursuant to these By-laws, written consents signed by a sufficient number of stockholders entitled to take action are delivered to the Corporation in the manner set forth in these By-laws. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

 

(j)          Stockholder Lists. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Nothing contained in this Section 1(j) shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least ten (10) days prior to the meeting in the manner provided by law. The list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law.

 

2.

Directors

 

(a)          Powers. The business of the Corporation shall be managed by or under the direction of a Board of Directors who may exercise all the powers of the Corporation except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled.

 

(b)          Number and Qualification. Unless otherwise provided in the Certificate of Incorporation or in these By-laws, the number of directors which shall constitute the whole board shall be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

 

(c)          Vacancies; Reduction of Board. A majority of the directors then in office, although less than a quorum, or a sole remaining Director, may fill vacancies in the Board of Directors occurring for any reason and newly created directorships resulting from any increase in the authorized number of directors. In lieu of filling any vacancy, the Board of Directors may reduce the number of directors.

 

(d)          Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws, directors shall hold office until their successors are elected and qualified or until their earlier resignation or removal. Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.

 

(e)          Removal. To the extent permitted by law, a director may be removed from office with or without cause by vote of the holders of a majority of the shares of stock entitled to vote in the election of directors.

 

(f)          Meetings. Regular meetings of the Board of Directors may be held without notice at such time, date and place as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called, orally or in writing, by the Chief Executive Officer, if one is elected, or, if there is no Chief Executive Officer, the President, or by two or more Directors, designating the time, date and place thereof. Directors may participate in meetings of the Board of Directors by means of conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each other, and participation in a meeting in accordance herewith shall constitute presence in person at such meeting.

 

(g)          Notice of Meetings. Notice of the time, date and place of all special meetings of the Board of Directors shall be given to each director by the Secretary, or Assistant Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the officer or one of the directors calling the meeting. Notice shall be given to each director in person, by telephone, or by facsimile, electronic mail or other form of electronic communications, sent to such director’s business or home address at least twenty-four (24) hours in advance of the meeting, or by written notice mailed to such director’s business or home address at least forty-eight (48) hours in advance of the meeting.

 

(h)          Quorum. At any meeting of the Board of Directors, a majority of the total number of directors shall constitute a quorum for the transaction of business. Less than a quorum may adjourn any meeting from time to time and the meeting may be held as adjourned without further notice.

 

(i)          Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, unless otherwise provided in the following sentence, a majority of the directors present may take any action on behalf of the Board of Directors, unless a larger number is required by law, by the Certificate of Incorporation or by these By-laws. So long as there are two (2) or fewer Directors, any action to be taken by the Board of Directors shall require the approval of all Directors.

 

 

(j)          Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the records of the meetings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

(k)          Committees. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, establish one or more committees, each committee to consist of one or more directors. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

 

Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to the following: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval or (ii) adopting, amending or repealing any provision of these By-laws.

 

Except as the Board of Directors may otherwise determine, any such committee may make rules for the conduct of its business, but in the absence of such rules its business shall be conducted so far as possible in the same manner as is provided in these By-laws for the Board of Directors. All members of such committees shall hold their committee offices at the pleasure of the Board of Directors, and the Board may abolish any committee at any time.

 

3.

Officers

 

(a)          Enumeration. The officers of the Corporation shall consist of one or more Presidents (who, if there is more than one, shall be referred to as Co-Presidents), a Treasurer, a Secretary, and such other officers, including, without limitation, a Chief Executive Officer and one or more Vice Presidents (including Executive Vice Presidents or Senior Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as the Board of Directors may determine. The Board of Directors may elect from among its members a Chairman of the Board and a Vice Chairman of the Board.

 

 

(b)          Election. The Presidents, Treasurer and Secretary shall be elected annually by the Board of Directors at their first meeting following the annual meeting of stockholders. Other officers may be chosen by the Board of Directors at such meeting or at any other meeting.

 

(c)          Qualification. No officer need be a stockholder or Director. Any two or more offices may be held by the same person. Any officer may be required by the Board of Directors to give bond for the faithful performance of such officer’s duties in such amount and with such sureties as the Board of Directors may determine.

 

(d)          Tenure. Except as otherwise provided by the Certificate of Incorporation or by these By-laws, each of the officers of the Corporation shall hold office until the first meeting of the Board of Directors following the next annual meeting of stockholders and until such officer’s successor is elected and qualified or until such officer’s earlier resignation or removal. Any officer may resign by delivering his or her written resignation to the Corporation, and such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.

 

(e)          Removal. The Board of Directors may remove any officer with or without cause by a vote of a majority of the directors then in office.

 

(f)          Vacancies. Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors.

 

(g)          Chairman of the Board and Vice Chairman. Unless otherwise provided by the Board of Directors, the Chairman of the Board of Directors, if one is elected, shall preside, when present, at all meetings of the stockholders and the Board of Directors. The Chairman of the Board shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.

 

Unless otherwise provided by the Board of Directors, in the absence of the Chairman of the Board, the Vice Chairman of the Board, if one is elected, shall preside, when present, at all meetings of the stockholders and the Board of Directors. The Vice Chairman of the Board shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.

 

(h)          Chief Executive Officer. The Chief Executive Officer, if one is elected, shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.

 

(i)          Presidents. The Presidents shall, subject to the direction of the Board of Directors, each have general supervision and control of the Corporation’s business and any action that would typically be taken by a President may be taken by any Co-President. If there is no Chairman of the Board or Vice Chairman of the Board, a President shall preside, when present, at all meetings of stockholders and the Board of Directors. The Presidents shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.

 

 

(j)          Vice Presidents and Assistant Vice Presidents. Any Vice President (including any Executive Vice President or Senior Vice President) and any Assistant Vice President shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.

 

(k)          Treasurer and Assistant Treasurers. The Treasurer shall, subject to the direction of the Board of Directors, have general charge of the financial affairs of the Corporation and shall cause to be kept accurate books of account. The Treasurer shall have custody of all funds, securities, and valuable documents of the Corporation, except as the Board of Directors may otherwise provide. The Treasurer shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.

 

Any Assistant Treasurer shall have such powers and perform such duties as the Board of Directors may from time to time designate.

 

(l)          Secretary and Assistant Secretaries. The Secretary shall record the proceedings of all meetings of the stockholders and the Board of Directors (including committees of the Board) in books kept for that purpose. In the absence of the Secretary from any such meeting an Assistant Secretary, or if such person is absent, a temporary secretary chosen at the meeting, shall record the proceedings thereof. The Secretary shall have charge of the stock ledger (which may, however, be kept by any transfer or other agent of the Corporation) and shall have such other duties and powers as may be designated from time to time by the Board of Directors.

 

Any Assistant Secretary shall have such powers and perform such duties as the Board of Directors may from time to time designate.

 

(m)          Other Powers and Duties. Subject to these By-laws, each officer of the Corporation shall have in addition to the duties and powers specifically set forth in these By-laws, such duties and powers as are customarily incident to such officer’s office, and such duties and powers as may be designated from time to time by the Board of Directors.

 

4.

Capital Stock

 

(a)          Certificates of Stock. Each stockholder shall be entitled to a certificate of the capital stock of the Corporation in such form as may from time to time be prescribed by the Board of Directors. Such certificate shall be signed by a President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary. Such signatures may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed on such certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the time of its issue. Every certificate for shares of stock which are subject to any restriction on transfer and every certificate issued when the Corporation is authorized to issue more than one class or series of stock shall contain such legend with respect thereto as is required by law. The Corporation shall be permitted to issue fractional shares.

 

 

(b)          Transfers. Subject to any restrictions on transfer, shares of stock may be transferred on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate therefor properly endorsed or accompanied by a written assignment or power of attorney properly executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of signature as the Corporation or its transfer agent may reasonably require.

 

(c)          Record Holders. Except as may otherwise be required by law, by the Certificate of Incorporation or by these By-laws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until the shares have been transferred on the books of the Corporation in accordance with the requirements of these By-laws.

 

It shall be the duty of each stockholder to notify the Corporation of such stockholder’s post office address.

 

(d)          Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not precede the date on which it is established, and which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, more than ten (10) days after the date on which the record date for stockholder consent without a meeting is established, nor more than sixty (60) days prior to any other action. In such case only stockholders of record on such record date shall be so entitled notwithstanding any transfer of stock on the books of the Corporation after the record date.

 

If no record date is fixed, (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, (ii) the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in this state, to its principal place of business, or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded, and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

(e)          Lost Certificates. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

 

5.

Indemnification

 

(a)

Definitions. For purposes of this Section 5:

 

(i)          “Corporate Status” describes the status of a person who is serving or has served (A) as a Director of the Corporation, (B) as an Officer of the Corporation, (C) as a Non-Officer Employee of the Corporation, or (D) as a director, partner, trustee, officer, employee or agent of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, foundation, association, organization or other legal entity for which such person is or was serving at the request of the Corporation. For purposes of this Section 5(a)(i), a Director, Officer or Non-Officer Employee of the Corporation who is serving or has served as a director, partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to be serving at the request of the Corporation. Notwithstanding the foregoing, “Corporate Status” shall not include the status of a person who is serving or has served as a director, officer, employee or agent of a constituent corporation absorbed in a merger or consolidation transaction with the Corporation with respect to such person’s activities prior to said transaction, unless specifically authorized by the Board of Directors or the stockholders of the Corporation;

 

(ii)         “Director” means any person who serves or has served the Corporation as a director on the Board of Directors of the Corporation;

 

(iii)        “Disinterested Director” means, with respect to each Proceeding in respect of which indemnification is sought hereunder, a Director of the Corporation who is not and was not a party to such Proceeding;

 

(iv)        “Expenses” means all reasonable attorneys fees, retainers, court costs, transcript costs, fees of expert witnesses, private investigators and professional advisors (including, without limitation, accountants and investment bankers), travel expenses, duplicating costs, printing and binding costs, costs of preparation of demonstrative evidence and other courtroom presentation aids and devices, costs incurred in connection with document review, organization, imaging and computerization, telephone charges, postage, delivery service fees, and all other disbursements, costs or expenses of the type customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or otherwise participating in, a Proceeding;

 

(v)         “Liabilities” means judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement;

 

(vi)        “Non-Officer Employee” means any person who serves or has served as an employee or agent of the Corporation, but who is not or was not a Director or Officer;

 

 

(vii)       “Officer” means any person who serves or has served the Corporation as an officer of the Corporation appointed by the Board of Directors of the Corporation;

 

(viii)      “Proceeding” means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative, arbitrative or investigative; and

 

(ix)         “Subsidiary” shall mean any corporation, partnership, limited liability company, joint venture, trust or other entity of which the Corporation owns (either directly or through or together with another Subsidiary of the Corporation) either (i) a general partner, managing member or other similar interest or (ii) (A) 50% or more of the voting power of the voting capital equity interests of such corporation, partnership, limited liability company, joint venture or other entity, or (B) 50% or more of the outstanding voting capital stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other entity.

 

(b)          Indemnification of Directors and Officers. Subject to the operation of Section 5(d) of these By-laws, each Director and Officer shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), and to the extent authorized in subsections (i) through (iv) of this Section 5(b).

 

(i)          Actions, Suits and Proceedings Other than By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses and Liabilities that are incurred or paid by such Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein (other than an action by or in the right of the Corporation), which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.

 

(ii)         Actions, Suits and Proceedings By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses that are incurred by such Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein by or in the right of the Corporation, which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation; provided, however, that no indemnification shall be made under this Section 5(b)(ii) in respect of any claim, issue or matter as to which such Director or Officer shall have been finally adjudged by a court of competent jurisdiction to be liable to the Corporation, unless, and only to the extent that, the Court of Chancery or another court in which such Proceeding was brought shall determine upon application that, despite adjudication of liability, but in view of all the circumstances of the case, such Director or Officer is fairly and reasonably entitled to indemnification for such Expenses that such court deems proper.

 

 

(iii)        Survival of Rights. The rights of indemnification provided by this Section 5(b) shall continue as to a Director or Officer after he or she has ceased to be a Director or Officer and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives.

 

(iv)        Actions by Directors or Officers. Notwithstanding the foregoing, the Corporation shall indemnify any Director or Officer seeking indemnification in connection with a Proceeding initiated by such Director or Officer only if such Proceeding (including any parts of such Proceeding not initiated by such Director or Officer) was authorized in advance by the Board of Directors of the Corporation, unless such Proceeding was brought to enforce such Officer’s or Director’s rights to indemnification or, in the case of Directors, advancement of Expenses under these By-laws in accordance with the provisions set forth herein.

 

(c)          Indemnification of Non-Officer Employees. Subject to the operation of Section 5(d) of these By-laws, each Non-Officer Employee may, in the discretion of the Board of Directors of the Corporation, be indemnified by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against any or all Expenses and Liabilities that are incurred by such Non-Officer Employee or on such Non-Officer Employee’s behalf in connection with any threatened, pending or completed Proceeding, or any claim, issue or matter therein, which such Non-Officer Employee is, or is threatened to be made, a party to or participant in by reason of such Non-Officer Employee’s Corporate Status, if such Non-Officer Employee acted in good faith and in a manner such Non-Officer Employee reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of indemnification provided by this Section 5(c) shall exist as to a Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs, personal representatives, executors and administrators. Notwithstanding the foregoing, the Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized in advance by the Board of Directors of the Corporation.

 

(d)          Determination. Unless ordered by a court, no indemnification shall be provided pursuant to this Section 5 to a Director, to an Officer or to a Non-Officer Employee unless a determination shall have been made that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal Proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. Such determination shall be made by (i) a majority vote of the Disinterested Directors, even though less than a quorum of the Board of Directors, (ii) a committee comprised of Disinterested Directors, such committee having been designated by a majority vote of the Disinterested Directors (even though less than a quorum), (iii) if there are no such Disinterested Directors, or if a majority of Disinterested Directors so directs, by independent legal counsel in a written opinion, or (iv) by the stockholders of the Corporation.

 

 

(e)

Advancement of Expenses to Directors Prior to Final Disposition.

 

(i)          The Corporation shall advance all Expenses incurred by or on behalf of any Director in connection with any Proceeding in which such Director is involved by reason of such Director’s Corporate Status within thirty (30) days after the receipt by the Corporation of a written statement from such Director requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Director and shall be preceded or accompanied by an undertaking by or on behalf of such Director to repay any Expenses so advanced if it shall ultimately be determined that such Director is not entitled to be indemnified against such Expenses. Notwithstanding the foregoing, the Corporation shall advance all Expenses incurred by or on behalf of any Director seeking advancement of expenses hereunder in connection with a Proceeding initiated by such Director only if such Proceeding (including any parts of such Proceeding not initiated by such Director) was (A) authorized by the Board of Directors of the Corporation, or (B) brought to enforce such Director’s rights to indemnification or advancement of Expenses under these By-laws.

 

(ii)         If a claim for advancement of Expenses hereunder by a Director is not paid in full by the Corporation within thirty (30) days after receipt by the Corporation of documentation of Expenses and the required undertaking, such Director may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and if successful in whole or in part, such Director shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such advancement of Expenses under this Section 5 shall not be a defense to an action brought by a Director for recovery of the unpaid amount of an advancement claim and shall not create a presumption that such advancement is not permissible. The burden of proving that a Director is not entitled to an advancement of expenses shall be on the Corporation.

 

(iii)        In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Director has not met any applicable standard for indemnification set forth in the DGCL.

 

 

(f)          Advancement of Expenses to Officers and Non-Officer Employees Prior to Final Disposition.

 

(i)          The Corporation may, at the discretion of the Board of Directors of the Corporation, advance any or all Expenses incurred by or on behalf of any Officer or any Non-Officer Employee in connection with any Proceeding in which such person is involved by reason of his or her Corporate Status as an Officer or Non-Officer Employee upon the receipt by the Corporation of a statement or statements from such Officer or Non-Officer Employee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Officer or Non-Officer Employee and shall be preceded or accompanied by an undertaking by or on behalf of such person to repay any Expenses so advanced if it shall ultimately be determined that such Officer or Non-Officer Employee is not entitled to be indemnified against such Expenses.

 

(ii)         In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Officer or Non-Officer Employee has not met any applicable standard for indemnification set forth in the DGCL.

 

(g)          Contractual Nature of Rights.

 

(i)          The provisions of this Section 5 shall be deemed to be a contract between the Corporation and each Director and Officer entitled to the benefits hereof at any time while this Section 5 is in effect, in consideration of such person’s past or current and any future performance of services for the Corporation. Neither amendment, repeal or modification of any provision of this Section 5 nor the adoption of any provision of the Certificate of Incorporation inconsistent with this Section 5 shall eliminate or reduce any right conferred by this Section 5 in respect of any act or omission occurring, or any cause of action or claim that accrues or arises or any state of facts existing, at the time of or before such amendment, repeal, modification or adoption of an inconsistent provision (even in the case of a proceeding based on such a state of facts that is commenced after such time), and all rights to indemnification and advancement of Expenses granted herein or arising out of any act or omission shall vest at the time of the act or omission in question, regardless of when or if any proceeding with respect to such act or omission is commenced. The rights to indemnification and to advancement of expenses provided by, or granted pursuant to, this Section 5 shall continue notwithstanding that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such person.

 

(ii)         If a claim for indemnification hereunder by a Director or Officer is not paid in full by the Corporation within sixty (60) days after receipt by the Corporation of a written claim for indemnification, such Director or Officer may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such Director or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such indemnification under this Section 5 shall not be a defense to an action brought by a Director or Officer for recovery of the unpaid amount of an indemnification claim and shall not create a presumption that such indemnification is not permissible. The burden of proving that a Director or Officer is not entitled to indemnification shall be on the Corporation.

 

 

(iii)        In any suit brought by a Director or Officer to enforce a right to indemnification hereunder, it shall be a defense that such Director or Officer has not met any applicable standard for indemnification set forth in the DGCL.

 

(h)          Non-Exclusivity of Rights. The rights to indemnification and advancement of Expenses set forth in this Section 5 shall not be exclusive of any other right which any Director, Officer, or Non-Officer Employee may have or hereafter acquire under any statute, provision of the Certificate or these By-laws, agreement, vote of stockholders or Disinterested Directors or otherwise.

 

(i)          Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer or Non-Officer Employee against any liability of any character asserted against or incurred by the Corporation or any such Director, Officer or Non-Officer Employee, or arising out of any such person’s Corporate Status, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL or the provisions of this Section 5.

 

(j)          Other Indemnification. The Corporation’s obligation, if any, to indemnify or provide advancement of Expenses to any person under this Section 5 as a result of such person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount such person may collect as indemnification or advancement of Expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or enterprise (the “Primary Indemnitor”). Any indemnification or advancement of Expenses under this Section 5 owed by the Corporation as a result of a person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall only be in excess of, and shall be secondary to, the indemnification or advancement of Expenses available from the applicable Primary Indemnitor(s) and any applicable insurance policies.

 

6.

Miscellaneous Provisions

 

(a)          Fiscal Year. Except as otherwise determined by the Board of Directors, the fiscal year of the Corporation shall end on December 31 of each year.

 

(b)          Seal. The Board of Directors shall have power to adopt and alter the seal of the Corporation.

 

(c)          Execution of Instruments. Subject to any limitations which may be set forth in a resolution of the Board of Directors, all deeds, leases, transfers, contracts, bonds, notes and other obligations to be entered into by the Corporation in the ordinary course of its business without director action may be executed on behalf of the Corporation by, a President, or by any other officer, employee or agent of the Corporation as the Board of Directors may authorize.

 

(d)          Voting of Securities. Unless the Board of Directors otherwise provides, a President, any Vice President or the Treasurer may waive notice of and act on behalf of this Corporation, or appoint another person or persons to act as proxy or attorney in fact for this Corporation with or without discretionary power and/or power of substitution, at any meeting of stockholders or shareholders of any other corporation or organization, any of whose securities are held by this Corporation.

 

 

(e)          Resident Agent. The Board of Directors may appoint a resident agent upon whom legal process may be served in any action or proceeding against the Corporation.

 

(f)          Corporate Records. The original or attested copies of the Certificate of Incorporation, By-laws and records of all meetings of the incorporators, stockholders and the Board of Directors and the stock and transfer records, which shall contain the names of all stockholders, their record addresses and the amount of stock held by each, shall be kept at the principal office of the Corporation, at the office of its counsel, or at an office of its transfer agent.

 

(g)          Certificate of Incorporation. All references in these By-laws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and in effect from time to time.

 

(h)          Amendments. These By-laws may be altered, amended or repealed, and new By-laws may be adopted, by the stockholders or by the Board of Directors; provided, that (a) the Board of Directors may not alter, amend or repeal any provision of these By-laws which by law, by the Certificate of Incorporation or by these By-laws requires action by the stockholders and (b) any alteration, amendment or repeal of these By-laws by the Board of Directors and any new By-law adopted by the Board of Directors may be altered, amended or repealed by the stockholders.

 

(i)          Waiver of Notice. Whenever notice is required to be given under any provision of these By-laws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any meeting needs to be specified in any written waiver or any waiver by electronic transmission.

 

(j)          Mission Statement. The Corporation is a biotechnology company that was founded with the mission of turning promising science into useful medicines. The Corporation aspires to re-prioritize stagnated drugs, pursue new combination therapy approaches, and search for promising science to advance for unserved and underserved patients who are waiting. The Corporation aspires to work closely with its partners, and the Corporation believes it is strengthened by shared-value partnerships with patient groups and innovators in industry and academia.

 

Adopted: March 29, 2019

 

 

 

Exhibit 3.4

 

AMENDED AND RESTATED

 

BY-LAWS

 

OF

 

SPRINGWORKS THERAPEUTICS, INC.

 

(the “Corporation”)

 

ARTICLE I

 

Stockholders

 

SECTION 1.          Annual Meeting. The annual meeting of stockholders (any such meeting being referred to in these By-laws as an “Annual Meeting”) shall be held at the hour, date and place within or without the United States which is fixed by the Board of Directors, which time, date and place may subsequently be changed at any time by vote of the Board of Directors. If no Annual Meeting has been held for a period of thirteen (13) months after the Corporation’s last Annual Meeting, a special meeting in lieu thereof may be held, and such special meeting shall have, for the purposes of these By-laws or otherwise, all the force and effect of an Annual Meeting. Any and all references hereafter in these By-laws to an Annual Meeting or Annual Meetings also shall be deemed to refer to any special meeting(s) in lieu thereof.

 

SECTION 2.          Notice of Stockholder Business and Nominations.

 

(a)

Annual Meetings of Stockholders.

 

(1)         Nominations of persons for election to the Board of Directors of the Corporation and the proposal of other business to be considered by the stockholders may be brought before an Annual Meeting (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this By-law, who is entitled to vote at the meeting, who is present (in person or by proxy) at the meeting and who complies with the notice procedures set forth in this By-law as to such nomination or business. For the avoidance of doubt, the foregoing clause (ii) shall be the exclusive means for a stockholder to bring nominations or business properly before an Annual Meeting (other than matters properly brought under Rule 14a-8 (or any successor rule) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and such stockholder must comply with the notice and other procedures set forth in Article I, Section 2(a)(2) and (3) of this By-law to bring such nominations or business properly before an Annual Meeting. In addition to the other requirements set forth in this By-law, for any proposal of business to be considered at an Annual Meeting, it must be a proper subject for action by stockholders of the Corporation under Delaware law.

 

 

(2)         For nominations or other business to be properly brought before an Annual Meeting by a stockholder pursuant to clause (ii) of Article I, Section 2(a)(1) of this By-law, the stockholder must (i) have given Timely Notice (as defined below) thereof in writing to the Secretary of the Corporation, (ii) have provided any updates or supplements to such notice at the times and in the forms required by this By-law and (iii) together with the beneficial owner(s), if any, on whose behalf the nomination or business proposal is made, have acted in accordance with the representations set forth in the Solicitation Statement (as defined below) required by this By-law. To be timely, a stockholder’s written notice shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the one-year anniversary of the preceding year’s Annual Meeting; provided, however, that in the event the Annual Meeting is first convened more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if no Annual Meeting were held in the preceding year, notice by the stockholder to be timely must be received by the Secretary of the Corporation not later than the close of business on the later of the ninetieth (90th) day prior to the scheduled date of such Annual Meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made (such notice within such time periods shall be referred to as “Timely Notice”). Notwithstanding anything to the contrary provided herein, for the first Annual Meeting following the initial public offering of common stock of the Corporation, a stockholder’s notice shall be timely if received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the later of the ninetieth (90th) day prior to the scheduled date of such Annual Meeting or the tenth (10th) day following the day on which public announcement of the date of such Annual Meeting is first made or sent by the Corporation. Such stockholder’s Timely Notice shall set forth:

 

(A)         as to each person whom the stockholder proposes to nominate for election or reelection as a director, (i) the name, age, business address and residence address of the nominee, (ii) the principal occupation or employment of the nominee, (iii) the class and number of shares of the Corporation that are held of record or are beneficially owned by the nominee and any derivative positions held or beneficially held by the nominee, (iv) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of the nominee with respect to any securities of the Corporation, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit of share price changes for, or to increase or decrease the voting power of the nominee, (v) a description of all arrangements or understandings between or among the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder or concerning the nominee’s potential service on the Board of Directors, (vi) a written statement executed by the nominee acknowledging that as a director of the corporation, the nominee will owe fiduciary duties under Delaware law with respect to the Corporation and its stockholders, and (vii) all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected);

 

 

(B)         as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, the text, if any, of any resolutions or By-law amendment proposed for adoption, and any material interest in such business of each Proposing Person (as defined below);

 

(C)         (i) the name and address of the stockholder giving the notice, as they appear on the Corporation’s books, and the names and addresses of the other Proposing Persons (if any) and (ii) as to each Proposing Person, the following information: (a) the class or series and number of all shares of capital stock of the Corporation which are, directly or indirectly, owned beneficially or of record by such Proposing Person or any of its affiliates or associates (as such terms are defined in Rule 12b-2 promulgated under the Exchange Act), including any shares of any class or series of capital stock of the Corporation as to which such Proposing Person or any of its affiliates or associates has a right to acquire beneficial ownership at any time in the future, (b) all Synthetic Equity Interests (as defined below) in which such Proposing Person or any of its affiliates or associates, directly or indirectly, holds an interest including a description of the material terms of each such Synthetic Equity Interest, including without limitation, identification of the counterparty to each such Synthetic Equity Interest and disclosure, for each such Synthetic Equity Interest, as to (x) whether or not such Synthetic Equity Interest conveys any voting rights, directly or indirectly, in such shares to such Proposing Person, (y) whether or not such Synthetic Equity Interest is required to be, or is capable of being, settled through delivery of such shares and (z) whether or not such Proposing Person and/or, to the extent known, the counterparty to such Synthetic Equity Interest has entered into other transactions that hedge or mitigate the economic effect of such Synthetic Equity Interest, (c) any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, the Exchange Act), agreement, arrangement, understanding or relationship pursuant to which such Proposing Person has or shares a right to, directly or indirectly, vote any shares of any class or series of capital stock of the Corporation, (d) any rights to dividends or other distributions on the shares of any class or series of capital stock of the Corporation, directly or indirectly, owned beneficially by such Proposing Person that are separated or separable from the underlying shares of the Corporation, and (e) any performance-related fees (other than an asset based fee) that such Proposing Person, directly or indirectly, is entitled to based on any increase or decrease in the value of shares of any class or series of capital stock of the Corporation or any Synthetic Equity Interests (the disclosures to be made pursuant to the foregoing clauses (a) through (e) are referred to, collectively, as “Material Ownership Interests”) and (iii) a description of the material terms of all agreements, arrangements or understandings (whether or not in writing) entered into by any Proposing Person or any of its affiliates or associates with any other person for the purpose of acquiring, holding, disposing or voting of any shares of any class or series of capital stock of the Corporation;

 

 

(D)         (i) a description of all agreements, arrangements or understandings by and among any of the Proposing Persons, or by and among any Proposing Persons and any other person (including with any proposed nominee(s)), pertaining to the nomination(s), or other business proposed to be brought before the meeting of stockholders (which description shall identify the name of each other person who is party to such an agreement, arrangement or understanding), and (ii) identification of the names and addresses of other stockholders (including beneficial owners) known by any of the Proposing Persons to support such nominations or other business proposal(s), and to the extent known the class and number of all shares of the Corporation’s capital stock owned beneficially or of record by such other stockholder(s) or other beneficial owner(s); and

 

(E)         a statement whether or not the stockholder giving the notice and/or the other Proposing Person(s), if any, will deliver a proxy statement and form of proxy to holders of, in the case of a business proposal, at least the percentage of voting power of all of the shares of capital stock of the Corporation required under applicable law to approve the proposal or, in the case of a nomination or nominations, at least the percentage of voting power of all of the shares of capital stock of the Corporation reasonably believed by such Proposing Person to be sufficient to elect the nominee or nominees proposed to be nominated by such stockholder (such statement, the “Solicitation Statement”).

 

For purposes of this Article I of these By-laws, the term “Proposing Person” shall mean the following persons: (i) the stockholder of record providing the notice of nominations or business proposed to be brought before a stockholders’ meeting, and (ii) the beneficial owner(s), if different, on whose behalf the nominations or business proposed to be brought before a stockholders’ meeting is made. For purposes of this Section 2 of Article I of these By-laws, the term “Synthetic Equity Interest” shall mean any transaction, agreement or arrangement (or series of transactions, agreements or arrangements), including, without limitation, any derivative, swap, hedge, repurchase or so-called “stock borrowing” agreement or arrangement, the purpose or effect of which is to, directly or indirectly: (a) give a person or entity economic benefit and/or risk similar to ownership of shares of any class or series of capital stock of the Corporation, in whole or in part, including due to the fact that such transaction, agreement or arrangement provides, directly or indirectly, the opportunity to profit or avoid a loss from any increase or decrease in the value of any shares of any class or series of capital stock of the Corporation, (b) mitigate loss to, reduce the economic risk of or manage the risk of share price changes for, any person or entity with respect to any shares of any class or series of capital stock of the Corporation, (c) otherwise provide in any manner the opportunity to profit or avoid a loss from any decrease in the value of any shares of any class or series of capital stock of the Corporation, or (d) increase or decrease the voting power of any person or entity with respect to any shares of any class or series of capital stock of the Corporation.

 

 

(3)         A stockholder providing Timely Notice of nominations or business proposed to be brought before an Annual Meeting shall further update and supplement such notice, if necessary, so that the information (including, without limitation, the Material Ownership Interests information) provided or required to be provided in such notice pursuant to this By-law shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to such Annual Meeting, and such update and supplement shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the fifth (5th) business day after the record date for the Annual Meeting (in the case of the update and supplement required to be made as of the record date), and not later than the close of business on the eighth (8th) business day prior to the date of the Annual Meeting (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting).

 

(4)         Notwithstanding anything in the second sentence of Article I, Section 2(a)(2) of this By-law to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least ten (10) days before the last day a stockholder may deliver a notice of nomination in accordance with the second sentence of Article I, Section 2(a)(2), a stockholder’s notice required by this By-law shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be received by the Secretary of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.

 

(b)

General.

 

(1)         Only such persons who are nominated in accordance with the provisions of this By-law shall be eligible for election and to serve as directors and only such business shall be conducted at an Annual Meeting as shall have been brought before the meeting in accordance with the provisions of this By-law or in accordance with Rule 14a-8 under the Exchange Act. The Board of Directors or a designated committee thereof shall have the power to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the provisions of this By-law. If neither the Board of Directors nor such designated committee makes a determination as to whether any stockholder proposal or nomination was made in accordance with the provisions of this By-law, the presiding officer of the Annual Meeting shall have the power and duty to determine whether the stockholder proposal or nomination was made in accordance with the provisions of this By-law. If the Board of Directors or a designated committee thereof or the presiding officer, as applicable, determines that any stockholder proposal or nomination was not made in accordance with the provisions of this By-law, such proposal or nomination shall be disregarded and shall not be presented for action at the Annual Meeting.

 

(2)         Except as otherwise required by law, nothing in this Article I, Section 2 shall obligate the Corporation or the Board of Directors to include in any proxy statement or other stockholder communication distributed on behalf of the Corporation or the Board of Directors information with respect to any nominee for director or any other matter of business submitted by a stockholder.

 

 

(3)         Notwithstanding the foregoing provisions of this Article I, Section 2, if the nominating or proposing stockholder (or a qualified representative of the stockholder) does not appear at the Annual Meeting to present a nomination or any business, such nomination or business shall be disregarded, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Article I, Section 2, to be considered a qualified representative of the proposing stockholder, a person must be authorized by a written instrument executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such written instrument or electronic transmission, or a reliable reproduction of the written instrument or electronic transmission, to the presiding officer at the meeting of stockholders.

 

(4)         For purposes of this By-law, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

 

(5)         Notwithstanding the foregoing provisions of this By-law, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this By-law. Nothing in this By-law shall be deemed to affect any rights of (i) stockholders to have proposals included in the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor rule), as applicable, under the Exchange Act and, to the extent required by such rule, have such proposals considered and voted on at an Annual Meeting or (ii) the holders of any series of Undesignated Preferred Stock to elect directors under specified circumstances.

 

(c)          Notwithstanding anything herein to the contrary, the affirmative vote of not less than two thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of this Article I, Section 2; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of a majority of the outstanding shares entitled to vote on such amendment or repeal, voting together as a single class.

 

SECTION 3.          Special Meetings. Except as otherwise required by statute and subject to the rights, if any, of the holders of any series of Undesignated Preferred Stock, special meetings of the stockholders of the Corporation may be called only by the Board of Directors acting pursuant to a resolution approved by the affirmative vote of a majority of the Directors then in office. The Board of Directors may postpone or reschedule any previously scheduled special meeting of stockholders. Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders of the Corporation. Nominations of persons for election to the Board of Directors of the Corporation and stockholder proposals of other business shall not be brought before a special meeting of stockholders to be considered by the stockholders unless such special meeting is held in lieu of an annual meeting of stockholders in accordance with Article I, Section 1 of these By-laws, in which case such special meeting in lieu thereof shall be deemed an Annual Meeting for purposes of these By-laws and the provisions of Article I, Section 2 of these By-laws shall govern such special meeting.

 

 

Notwithstanding anything herein to the contrary, the affirmative vote of not less than two thirds (2/3) of the outstanding shares of capital stock entitled to vote thereon, and the affirmative vote of not less than two thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a class, shall be required to amend or repeal any provision of this Article I, Section 3; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of a majority of the outstanding shares entitled to vote on such amendment or repeal, voting together as a single class.

 

SECTION 4.          Notice of Meetings; Adjournments.

 

(a)          A notice of each Annual Meeting stating the hour, date and place, if any, of such Annual Meeting and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, shall be given not less than ten (10) days nor more than sixty (60) days before the Annual Meeting, to each stockholder entitled to vote thereat by delivering such notice to such stockholder or by mailing it, postage prepaid, addressed to such stockholder at the address of such stockholder as it appears on the Corporation’s stock transfer books. Without limiting the manner by which notice may otherwise be given to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the Delaware General Corporation Law (“DGCL”).

 

(b)          Unless otherwise required by the DGCL, notice of all special meetings of stockholders shall be given in the same manner as provided for Annual Meetings, except that the notice of all special meetings shall state the purpose or purposes for which the meeting has been called.

 

(c)          Notice of an Annual Meeting or special meeting of stockholders need not be given to a stockholder if a waiver of notice is executed, or waiver of notice by electronic transmission is provided, before or after such meeting by such stockholder or if such stockholder attends such meeting, unless such attendance is for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting was not lawfully called or convened.

 

(d)          The Board of Directors may postpone and reschedule any previously scheduled Annual Meeting or special meeting of stockholders and any record date with respect thereto, regardless of whether any notice or public disclosure with respect to any such meeting has been sent or made pursuant to Section 2 of this Article I of these By-laws or otherwise. In no event shall the public announcement of an adjournment, postponement or rescheduling of any previously scheduled meeting of stockholders commence a new time period for the giving of a stockholder’s notice under this Article I of these By-laws.

 

 

(e)          When any meeting is convened, the presiding officer may adjourn the meeting if (i) no quorum is present for the transaction of business, (ii) the Board of Directors determines that adjournment is necessary or appropriate to enable the stockholders to consider fully information which the Board of Directors determines has not been made sufficiently or timely available to stockholders, or (iii) the Board of Directors determines that adjournment is otherwise in the best interests of the Corporation. When any Annual Meeting or special meeting of stockholders is adjourned to another hour, date or place, notice need not be given of the adjourned meeting other than an announcement at the meeting at which the adjournment is taken of the hour, date and place, if any, to which the meeting is adjourned and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting; provided, however, that if the adjournment is for more than thirty (30) days from the meeting date, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting shall be given to each stockholder of record entitled to vote thereat and each stockholder who, by law or under the Certificate of Incorporation of the Corporation (as the same may hereafter be amended and/or restated, the “Certificate”) or these By-laws, is entitled to such notice.

 

SECTION 5.          Quorum. A majority of the outstanding shares entitled to vote, present in person or represented by proxy, shall constitute a quorum at any meeting of stockholders. If less than a quorum is present at a meeting, the holders of voting stock representing a majority of the voting power present at the meeting or the presiding officer may adjourn the meeting from time to time, and the meeting may be held as adjourned without further notice, except as provided in Section 4 of this Article I. At such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the original meeting. The stockholders present at a duly constituted meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.

 

SECTION 6.          Voting and Proxies. Stockholders shall have one vote for each share of stock entitled to vote owned by them of record according to the stock ledger of the Corporation as of the record date, unless otherwise provided by law or by the Certificate. Stockholders may vote either (i) in person, (ii) by written proxy or (iii) by a transmission permitted by Section 212(c) of the DGCL. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission permitted by Section 212(c) of the DGCL may be substituted for or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission. Proxies shall be filed in accordance with the procedures established for the meeting of stockholders. Except as otherwise limited therein or as otherwise provided by law, proxies authorizing a person to vote at a specific meeting shall entitle the persons authorized thereby to vote at any adjournment of such meeting, but they shall not be valid after final adjournment of such meeting. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by or on behalf of any one of them unless at or prior to the exercise of the proxy the Corporation receives a specific written notice to the contrary from any one of them.

 

 

SECTION 7.          Action at Meeting. When a quorum is present at any meeting of stockholders, any matter before any such meeting (other than an election of a director or directors) shall be decided by a majority of the votes properly cast for and against such matter, except where a larger vote is required by law, by the Certificate or by these By-laws. Any election of directors by stockholders shall be determined by a plurality of the votes properly cast on the election of directors.

 

SECTION 8.          Stockholder Lists. The Secretary or an Assistant Secretary (or the Corporation’s transfer agent or other person authorized by these By-laws or by law) shall prepare and make, at least ten (10) days before every Annual Meeting or special meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for a period of at least ten (10) days prior to the meeting as provided in the manner, and subject to the terms, set forth in Section 219 of the DGCL (or any successor provision). The list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law.

 

SECTION 9.          Presiding Officer. The Board of Directors shall designate a representative to preside over all Annual Meetings or special meetings of stockholders, provided that if the Board of Directors does not so designate such a presiding officer, then the Chairman of the Board, if one is elected, shall preside over such meetings. If the Board of Directors does not so designate such a presiding officer and there is no Chairman of the Board or the Chairman of the Board is unable to so preside or is absent, then the Chief Executive Officer, if one is elected, shall preside over such meetings, provided further that if there is no Chief Executive Officer or the Chief Executive Officer is unable to so preside or is absent, then the President shall preside over such meetings. The presiding officer at any Annual Meeting or special meeting of stockholders shall have the power, among other things, to adjourn such meeting at any time and from time to time, subject to Sections 4 and 5 of this Article I. The order of business and all other matters of procedure at any meeting of the stockholders shall be determined by the presiding officer.

 

SECTION 10.         Inspectors of Elections. The Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the presiding officer shall appoint one or more inspectors to act at the meeting. Any inspector may, but need not, be an officer, employee or agent of the Corporation. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall perform such duties as are required by the DGCL, including the counting of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors. The presiding officer may review all determinations made by the inspectors, and in so doing the presiding officer shall be entitled to exercise his or her sole judgment and discretion and he or she shall not be bound by any determinations made by the inspectors. All determinations by the inspectors and, if applicable, the presiding officer, shall be subject to further review by any court of competent jurisdiction.

 

 

ARTICLE II

 

Directors

 

SECTION 1.          Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors except as otherwise provided by the Certificate or required by law.

 

SECTION 2.          Number and Terms. The number of directors of the Corporation shall be fixed solely and exclusively by resolution duly adopted from time to time by the Board of Directors. The directors shall hold office in the manner provided in the Certificate.

 

SECTION 3.          Qualification. No director need be a stockholder of the Corporation.

 

SECTION 4.          Vacancies. Vacancies in the Board of Directors shall be filled in the manner provided in the Certificate.

 

SECTION 5.          Removal. Directors may be removed from office only in the manner provided in the Certificate.

 

SECTION 6.          Resignation. A director may resign at any time by electronic transmission or by giving written notice to the Chairman of the Board, if one is elected, the President or the Secretary. A resignation shall be effective upon receipt, unless the resignation otherwise provides.

 

SECTION 7.          Regular Meetings. The regular annual meeting of the Board of Directors shall be held, without notice other than this Section 7, on the same date and at the same place as the Annual Meeting following the close of such meeting of stockholders. Other regular meetings of the Board of Directors may be held at such hour, date and place as the Board of Directors may by resolution from time to time determine and publicize by means of reasonable notice given to any director who is not present at the meeting at which such resolution is adopted.

 

SECTION 8.          Special Meetings. Special meetings of the Board of Directors may be called, orally or in writing, by or at the request of a majority of the directors, the Chairman of the Board, if one is elected, or the President. The person calling any such special meeting of the Board of Directors may fix the hour, date and place thereof.

 

SECTION 9.          Notice of Meetings. Notice of the hour, date and place of all special meetings of the Board of Directors shall be given to each director by the Secretary or an Assistant Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the Chairman of the Board, if one is elected, or the President or such other officer designated by the Chairman of the Board, if one is elected, or the President. Notice of any special meeting of the Board of Directors shall be given to each director in person, by telephone, or by facsimile, electronic mail or other form of electronic communication, sent to his or her business or home address, at least twenty-four (24) hours in advance of the meeting, or by written notice mailed to his or her business or home address, at least forty-eight (48) hours in advance of the meeting. Such notice shall be deemed to be delivered when hand-delivered to such address, read to such director by telephone, deposited in the mail so addressed, with postage thereon prepaid if mailed, dispatched or transmitted if sent by facsimile transmission or by electronic mail or other form of electronic communications. A written waiver of notice signed or electronically transmitted before or after a meeting by a director and filed with the records of the meeting shall be deemed to be equivalent to notice of the meeting. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because such meeting is not lawfully called or convened. Except as otherwise required by law, by the Certificate or by these By-laws, neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.

 

 

SECTION 10.         Quorum. At any meeting of the Board of Directors, a majority of the total number of directors shall constitute a quorum for the transaction of business, but if less than a quorum is present at a meeting, a majority of the directors present may adjourn the meeting from time to time, and the meeting may be held as adjourned without further notice. Any business which might have been transacted at the meeting as originally noticed may be transacted at such adjourned meeting at which a quorum is present. For purposes of this section, the total number of directors includes any unfilled vacancies on the Board of Directors.

 

SECTION 11.         Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of the directors present shall constitute action by the Board of Directors, unless otherwise required by law, by the Certificate or by these By-laws.

 

SECTION 12.         Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the records of the meetings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Such consent shall be treated as a resolution of the Board of Directors for all purposes.

 

SECTION 13.         Manner of Participation. Directors may participate in meetings of the Board of Directors by means of conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each other, and participation in a meeting in accordance herewith shall constitute presence in person at such meeting for purposes of these By-laws.

 

SECTION 14.         Presiding Director. The Board of Directors shall designate a representative to preside over all meetings of the Board of Directors, provided that if the Board of Directors does not so designate such a presiding director or such designated presiding director is unable to so preside or is absent, then the Chairman of the Board, if one is elected, shall preside over all meetings of the Board of Directors. If both the designated presiding director, if one is so designated, and the Chairman of the Board, if one is elected, are unable to preside or are absent, the Board of Directors shall designate an alternate representative to preside over a meeting of the Board of Directors.

 

 

SECTION 15.         Committees. The Board of Directors, by vote of a majority of the directors then in office, may elect one or more committees, including, without limitation, a Compensation Committee, a Nominating & Corporate Governance Committee and an Audit Committee, and may delegate thereto some or all of its powers except those which by law, by the Certificate or by these By-laws may not be delegated. Except as the Board of Directors may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Board of Directors or in such rules, its business shall be conducted so far as possible in the same manner as is provided by these By-laws for the Board of Directors. All members of such committees shall hold such offices at the pleasure of the Board of Directors. The Board of Directors may abolish any such committee at any time. Any committee to which the Board of Directors delegates any of its powers or duties shall keep records of its meetings and shall report its action to the Board of Directors.

 

SECTION 16.         Compensation of Directors. Directors shall receive such compensation for their services as shall be determined by a majority of the Board of Directors, or a designated committee thereof, provided that directors who are serving the Corporation as employees and who receive compensation for their services as such, shall not receive any salary or other compensation for their services as directors of the Corporation.

 

ARTICLE III

 

Officers

 

SECTION 1.          Enumeration. The officers of the Corporation shall consist of a President, a Treasurer, a Secretary and such other officers, including, without limitation, a Chairman of the Board of Directors, a Chief Executive Officer and one or more Vice Presidents (including Executive Vice Presidents or Senior Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as the Board of Directors may determine.

 

SECTION 2.          Election. At the regular annual meeting of the Board of Directors following the Annual Meeting, the Board of Directors shall elect the President, the Treasurer and the Secretary. Other officers may be elected by the Board of Directors at such regular annual meeting of the Board of Directors or at any other regular or special meeting.

 

SECTION 3.          Qualification. No officer need be a stockholder or a director. Any person may occupy more than one office of the Corporation at any time.

 

SECTION 4.          Tenure. Except as otherwise provided by the Certificate or by these By-laws, each of the officers of the Corporation shall hold office until the regular annual meeting of the Board of Directors following the next Annual Meeting and until his or her successor is elected and qualified or until his or her earlier resignation or removal.

 

SECTION 5.          Resignation. Any officer may resign by delivering his or her written or electronically transmitted resignation to the Corporation addressed to the President or the Secretary, and such resignation shall be effective upon receipt, unless the resignation otherwise provides.

 

 

SECTION 6.          Removal. Except as otherwise provided by law or by resolution of the Board of Directors, the Board of Directors may remove any officer with or without cause by the affirmative vote of a majority of the directors then in office.

 

SECTION 7.          Absence or Disability. In the event of the absence or disability of any officer, the Board of Directors may designate another officer to act temporarily in place of such absent or disabled officer.

 

SECTION 8.          Vacancies. Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors.

 

SECTION 9.          President. The President shall, subject to the direction of the Board of Directors, have such powers and shall perform such duties as the Board of Directors may from time to time designate.

 

SECTION 10.         Chairman of the Board. The Chairman of the Board, if one is elected, shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.

 

SECTION 11.         Chief Executive Officer. The Chief Executive Officer, if one is elected, shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.

 

SECTION 12.         Vice Presidents and Assistant Vice Presidents. Any Vice President (including any Executive Vice President or Senior Vice President) and any Assistant Vice President shall have such powers and shall perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.

 

SECTION 13.         Treasurer and Assistant Treasurers. The Treasurer shall, subject to the direction of the Board of Directors and except as the Board of Directors or the Chief Executive Officer may otherwise provide, have general charge of the financial affairs of the Corporation and shall cause to be kept accurate books of account. The Treasurer shall have custody of all funds, securities, and valuable documents of the Corporation. He or she shall have such other duties and powers as may be designated from time to time by the Board of Directors or the Chief Executive Officer. Any Assistant Treasurer shall have such powers and perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.

 

SECTION 14.         Secretary and Assistant Secretaries. The Secretary shall record all the proceedings of the meetings of the stockholders and the Board of Directors (including committees of the Board of Directors) in books kept for that purpose. In his or her absence from any such meeting, a temporary secretary chosen at the meeting shall record the proceedings thereof. The Secretary shall have charge of the stock ledger (which may, however, be kept by any transfer or other agent of the Corporation). The Secretary shall have custody of the seal of the Corporation, and the Secretary, or an Assistant Secretary shall have authority to affix it to any instrument requiring it, and, when so affixed, the seal may be attested by his or her signature or that of an Assistant Secretary. The Secretary shall have such other duties and powers as may be designated from time to time by the Board of Directors or the Chief Executive Officer. In the absence of the Secretary, any Assistant Secretary may perform his or her duties and responsibilities. Any Assistant Secretary shall have such powers and perform such duties as the Board of Directors or the Chief Executive Officer may from time to time designate.

 

 

SECTION 15.         Other Powers and Duties. Subject to these By-laws and to such limitations as the Board of Directors may from time to time prescribe, the officers of the Corporation shall each have such powers and duties as generally pertain to their respective offices, as well as such powers and duties as from time to time may be conferred by the Board of Directors or the Chief Executive Officer.

 

ARTICLE IV

 

Capital Stock

 

SECTION 1.          Certificates of Stock. Each stockholder shall be entitled to a certificate of the capital stock of the Corporation in such form as may from time to time be prescribed by the Board of Directors. Such certificate shall be signed by any two authorized officers of the Corporation. The Corporation seal and the signatures by the Corporation’s officers, the transfer agent or the registrar may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed on such certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the time of its issue. Every certificate for shares of stock which are subject to any restriction on transfer and every certificate issued when the Corporation is authorized to issue more than one class or series of stock shall contain such legend with respect thereto as is required by law. Notwithstanding anything to the contrary provided in these Bylaws, the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares (except that the foregoing shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation), and by the approval and adoption of these Bylaws the Board of Directors has determined that all classes or series of the Corporation’s stock may be uncertificated, whether upon original issuance, re-issuance, or subsequent transfer.

 

SECTION 2.          Transfers. Subject to any restrictions on transfer and unless otherwise provided by the Board of Directors, shares of stock that are represented by a certificate may be transferred on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate theretofore properly endorsed or accompanied by a written assignment or power of attorney properly executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of signature as the Corporation or its transfer agent may reasonably require. Shares of stock that are not represented by a certificate may be transferred on the books of the Corporation by submitting to the Corporation or its transfer agent such evidence of transfer and following such other procedures as the Corporation or its transfer agent may require.

 

SECTION 3.          Record Holders. Except as may otherwise be required by law, by the Certificate or by these By-laws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until the shares have been transferred on the books of the Corporation in accordance with the requirements of these By-laws.

 

 

SECTION 4.          Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date: (a) in the case of determination of stockholders entitled to vote at any meeting of stockholders, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting and (b) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; and (ii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

SECTION 5.          Replacement of Certificates. In case of the alleged loss, destruction or mutilation of a certificate of stock of the Corporation, a duplicate certificate may be issued in place thereof, upon such terms as the Board of Directors may prescribe.

 

ARTICLE V

 

Indemnification

 

SECTION 1.          Definitions. For purposes of this Article:

 

(a)          “Corporate Status” describes the status of a person who is serving or has served (i) as a Director of the Corporation, (ii) as an Officer of the Corporation, (iii) as a Non-Officer Employee of the Corporation, or (iv) as a director, partner, trustee, officer, employee or agent of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, foundation, association, organization or other legal entity which such person is or was serving at the request of the Corporation. For purposes of this Section 1(a), a Director, Officer or Non-Officer Employee of the Corporation who is serving or has served as a director, partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to be serving at the request of the Corporation. Notwithstanding the foregoing, “Corporate Status” shall not include the status of a person who is serving or has served as a director, officer, employee or agent of a constituent corporation absorbed in a merger or consolidation transaction with the Corporation with respect to such person’s activities prior to said transaction, unless specifically authorized by the Board of Directors or the stockholders of the Corporation;

 

(b)          “Director” means any person who serves or has served the Corporation as a director on the Board of Directors of the Corporation;

 

 

(c)           “Disinterested Director” means, with respect to each Proceeding in respect of which indemnification is sought hereunder, a Director of the Corporation who is not and was not a party to such Proceeding;

 

(d)          “Expenses” means all attorneys’ fees, retainers, court costs, transcript costs, fees of expert witnesses, private investigators and professional advisors (including, without limitation, accountants and investment bankers), travel expenses, duplicating costs, printing and binding costs, costs of preparation of demonstrative evidence and other courtroom presentation aids and devices, costs incurred in connection with document review, organization, imaging and computerization, telephone charges, postage, delivery service fees, and all other disbursements, costs or expenses of the type customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or otherwise participating in, a Proceeding;

 

(e)          “Liabilities” means judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement;

 

(f)          “Non-Officer Employee” means any person who serves or has served as an employee or agent of the Corporation, but who is not or was not a Director or Officer;

 

(g)          “Officer” means any person who serves or has served the Corporation as an officer of the Corporation appointed by the Board of Directors of the Corporation;

 

(h)          “Proceeding” means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative, arbitrative or investigative; and

 

(i)          “Subsidiary” shall mean any corporation, partnership, limited liability company, joint venture, trust or other entity of which the Corporation owns (either directly or through or together with another Subsidiary of the Corporation) either (i) a general partner, managing member or other similar interest or (ii) (A) fifty percent (50%) or more of the voting power of the voting capital equity interests of such corporation, partnership, limited liability company, joint venture or other entity, or (B) fifty percent (50%) or more of the outstanding voting capital stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other entity.

 

SECTION 2.          Indemnification of Directors and Officers.

 

(a)          Subject to the operation of Section 4 of this Article V of these By-laws, each Director and Officer shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), and to the extent authorized in this Section 2.

 

 

(1)         Actions, Suits and Proceedings Other than By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses and Liabilities that are incurred or paid by such Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein (other than an action by or in the right of the Corporation), which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.

 

(2)         Actions, Suits and Proceedings By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses that are incurred by such Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein by or in the right of the Corporation, which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation; provided, however, that no indemnification shall be made under this Section 2(a)(2) in respect of any claim, issue or matter as to which such Director or Officer shall have been finally adjudged by a court of competent jurisdiction to be liable to the Corporation, unless, and only to the extent that, the Court of Chancery or another court in which such Proceeding was brought shall determine upon application that, despite adjudication of liability, but in view of all the circumstances of the case, such Director or Officer is fairly and reasonably entitled to indemnification for such Expenses that such court deems proper.

 

(3)         Survival of Rights. The rights of indemnification provided by this Section 2 shall continue as to a Director or Officer after he or she has ceased to be a Director or Officer and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives.

 

(4)         Actions by Directors or Officers. Notwithstanding the foregoing, the Corporation shall indemnify any Director or Officer seeking indemnification in connection with a Proceeding initiated by such Director or Officer only if such Proceeding (including any parts of such Proceeding not initiated by such Director or Officer) was authorized in advance by the Board of Directors of the Corporation, unless such Proceeding was brought to enforce such Officer’s or Director’s rights to indemnification or, in the case of Directors, advancement of Expenses under these By-laws in accordance with the provisions set forth herein.

 

 

SECTION 3.          Indemnification of Non-Officer Employees. Subject to the operation of Section 4 of this Article V of these By-laws, each Non-Officer Employee may, in the discretion of the Board of Directors of the Corporation, be indemnified by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against any or all Expenses and Liabilities that are incurred by such Non-Officer Employee or on such Non-Officer Employee’s behalf in connection with any threatened, pending or completed Proceeding, or any claim, issue or matter therein, which such Non-Officer Employee is, or is threatened to be made, a party to or participant in by reason of such Non-Officer Employee’s Corporate Status, if such Non-Officer Employee acted in good faith and in a manner such Non-Officer Employee reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of indemnification provided by this Section 3 shall exist as to a Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs, personal representatives, executors and administrators. Notwithstanding the foregoing, the Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized in advance by the Board of Directors of the Corporation.

 

SECTION 4.          Determination. Unless ordered by a court, no indemnification shall be provided pursuant to this Article V to a Director, to an Officer or to a Non-Officer Employee unless a determination shall have been made that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal Proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. Such determination shall be made by (a) a majority vote of the Disinterested Directors, even though less than a quorum of the Board of Directors, (b) a committee comprised of Disinterested Directors, such committee having been designated by a majority vote of the Disinterested Directors (even though less than a quorum), (c) if there are no such Disinterested Directors, or if a majority of Disinterested Directors so directs, by independent legal counsel in a written opinion, or (d) by the stockholders of the Corporation.

 

SECTION 5.          Advancement of Expenses to Directors Prior to Final Disposition.

 

(a)          The Corporation shall advance all Expenses incurred by or on behalf of any Director in connection with any Proceeding in which such Director is involved by reason of such Director’s Corporate Status within thirty (30) days after the receipt by the Corporation of a written statement from such Director requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Director and shall be preceded or accompanied by an undertaking by or on behalf of such Director to repay any Expenses so advanced if it shall ultimately be determined that such Director is not entitled to be indemnified against such Expenses. Notwithstanding the foregoing, the Corporation shall advance all Expenses incurred by or on behalf of any Director seeking advancement of expenses hereunder in connection with a Proceeding initiated by such Director only if such Proceeding (including any parts of such Proceeding not initiated by such Director) was (i) authorized by the Board of Directors of the Corporation, or (ii) brought to enforce such Director’s rights to indemnification or advancement of Expenses under these By-laws.

 

(b)          If a claim for advancement of Expenses hereunder by a Director is not paid in full by the Corporation within thirty (30) days after receipt by the Corporation of documentation of Expenses and the required undertaking, such Director may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and if successful in whole or in part, such Director shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such advancement of Expenses under this Article V shall not be a defense to an action brought by a Director for recovery of the unpaid amount of an advancement claim and shall not create a presumption that such advancement is not permissible. The burden of proving that a Director is not entitled to an advancement of expenses shall be on the Corporation.

 

 

(c)          In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Director has not met any applicable standard for indemnification set forth in the DGCL.

 

SECTION 6.          Advancement of Expenses to Officers and Non-Officer Employees Prior to Final Disposition.

 

(a)          The Corporation may, at the discretion of the Board of Directors of the Corporation, advance any or all Expenses incurred by or on behalf of any Officer or any Non-Officer Employee in connection with any Proceeding in which such person is involved by reason of his or her Corporate Status as an Officer or Non-Officer Employee upon the receipt by the Corporation of a statement or statements from such Officer or Non-Officer Employee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Officer or Non-Officer Employee and shall be preceded or accompanied by an undertaking by or on behalf of such person to repay any Expenses so advanced if it shall ultimately be determined that such Officer or Non-Officer Employee is not entitled to be indemnified against such Expenses.

 

(b)          In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the Officer or Non-Officer Employee has not met any applicable standard for indemnification set forth in the DGCL.

 

SECTION 7.          Contractual Nature of Rights.

 

(a)          The provisions of this Article V shall be deemed to be a contract between the Corporation and each Director and Officer entitled to the benefits hereof at any time while this Article V is in effect, in consideration of such person’s past or current and any future performance of services for the Corporation. Neither amendment, repeal or modification of any provision of this Article V nor the adoption of any provision of the Certificate of Incorporation inconsistent with this Article V shall eliminate or reduce any right conferred by this Article V in respect of any act or omission occurring, or any cause of action or claim that accrues or arises or any state of facts existing, at the time of or before such amendment, repeal, modification or adoption of an inconsistent provision (even in the case of a proceeding based on such a state of facts that is commenced after such time), and all rights to indemnification and advancement of Expenses granted herein or arising out of any act or omission shall vest at the time of the act or omission in question, regardless of when or if any proceeding with respect to such act or omission is commenced. The rights to indemnification and to advancement of expenses provided by, or granted pursuant to, this Article V shall continue notwithstanding that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributes of such person.

 

 

(b)          If a claim for indemnification hereunder by a Director or Officer is not paid in full by the Corporation within sixty (60) days after receipt by the Corporation of a written claim for indemnification, such Director or Officer may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such Director or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such indemnification under this Article V shall not be a defense to an action brought by a Director or Officer for recovery of the unpaid amount of an indemnification claim and shall not create a presumption that such indemnification is not permissible. The burden of proving that a Director or Officer is not entitled to indemnification shall be on the Corporation.

 

(c)          In any suit brought by a Director or Officer to enforce a right to indemnification hereunder, it shall be a defense that such Director or Officer has not met any applicable standard for indemnification set forth in the DGCL.

 

SECTION 8.          Non-Exclusivity of Rights. The rights to indemnification and to advancement of Expenses set forth in this Article V shall not be exclusive of any other right which any Director, Officer, or Non-Officer Employee may have or hereafter acquire under any statute, provision of the Certificate or these By-laws, agreement, vote of stockholders or Disinterested Directors or otherwise.

 

SECTION 9.          Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer or Non-Officer Employee against any liability of any character asserted against or incurred by the Corporation or any such Director, Officer or Non-Officer Employee, or arising out of any such person’s Corporate Status, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL or the provisions of this Article V.

 

SECTION 10.         Other Indemnification. The Corporation’s obligation, if any, to indemnify or provide advancement of Expenses to any person under this Article V as a result of such person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount such person may collect as indemnification or advancement of Expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or enterprise (the “Primary Indemnitor”). Any indemnification or advancement of Expenses under this Article V owed by the Corporation as a result of a person serving, at the request of the Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall only be in excess of, and shall be secondary to, the indemnification or advancement of Expenses available from the applicable Primary Indemnitor(s) and any applicable insurance policies.

 

 

 

ARTICLE VI

 

Miscellaneous Provisions

 

SECTION 1.          Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors.

 

SECTION 2.          Seal. The Board of Directors shall have power to adopt and alter the seal of the Corporation.

 

SECTION 3.          Execution of Instruments. All deeds, leases, transfers, contracts, bonds, notes and other obligations to be entered into by the Corporation in the ordinary course of its business without director action may be executed on behalf of the Corporation by the Chairman of the Board, if one is elected, the President or the Treasurer or any other officer, employee or agent of the Corporation as the Board of Directors or the executive committee of the Board may authorize.

 

SECTION 4.          Voting of Securities. Unless the Board of Directors otherwise provides, the Chairman of the Board, if one is elected, the President or the Treasurer may waive notice of and act on behalf of the Corporation (including with regard to voting and actions by written consent), or appoint another person or persons to act as proxy or attorney in fact for the Corporation with or without discretionary power and/or power of substitution, at any meeting of stockholders or shareholders of any other corporation or organization, any of whose securities are held by the Corporation.

 

SECTION 5.          Resident Agent. The Board of Directors may appoint a resident agent upon whom legal process may be served in any action or proceeding against the Corporation.

 

SECTION 6.          Corporate Records. The original or attested copies of the Certificate, By-laws and records of all meetings of the incorporators, stockholders and the Board of Directors and the stock transfer books, which shall contain the names of all stockholders, their record addresses and the amount of stock held by each, may be kept outside the State of Delaware and shall be kept at the principal office of the Corporation, at an office of its counsel, at an office of its transfer agent or at such other place or places as may be designated from time to time by the Board of Directors.

 

SECTION 7.          Certificate. All references in these By-laws to the Certificate shall be deemed to refer to the Amended and Restated Certificate of Incorporation of the Corporation, as amended and/or restated and in effect from time to time.

 

SECTION 8.          Exclusive Jurisdiction. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for state law claims for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law or the Certificate or By-laws, (iv) any action to interpret, apply, enforce or determine the validity of the Certificate or By-laws, or (v) any action asserting a claim against the Corporation governed by the internal affairs doctrine.  Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 8.

 

 

SECTION 9.          Amendment of By-laws.

 

(a)          Amendment by Directors. Except as provided otherwise by law, any section or portion of these By-laws may be amended or repealed by the Board of Directors by the affirmative vote of a majority of the directors then in office.

 

(b)          Amendment by Stockholders. Except as otherwise required by these By-laws or by law, these By-laws may be amended or repealed at any Annual Meeting, or special meeting of stockholders called for such purpose in accordance with these By-Laws, by the affirmative vote of a majority of the outstanding shares entitled to vote on such amendment or repeal, voting together as a single class. Notwithstanding the foregoing, stockholder approval shall not be required unless mandated by the Certificate, these By-laws, or other applicable law.

 

SECTION 10.         Notices. If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the DGCL.

 

SECTION 11.         Waivers. A written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such person. Neither the business to be transacted at, nor the purpose of, any meeting need be specified in such a waiver.

 

SECTION 12.         Mission Statement. The Corporation is a biotechnology company that was founded with the mission of turning promising science into useful medicines. The Corporation aspires to re-prioritize stagnated drugs, pursue new combination therapy approaches, and search for promising science to advance for unserved and underserved patients who are waiting. The Corporation aspires to work closely with its partners, and the Corporation believes it is strengthened by shared-value partnerships with patient groups and innovators in industry and academia.

 

Adopted August 7, 2019, subject to and effective upon the effectiveness of the Corporation’s Registration Statement on Form S-1 for its initial public offering.

 

 

 

Exhibit 4.1

ZQ|CERT#|COY|CLS|RGSTRY|ACCT#|TRANSTYPE|RUN#|TRANS# COMMON STOCK PAR VALUE $0.001 COMMON STOCK SPRINGWORKS THERAPEUTICS, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE Certificate Number ZQ00000000 Shares * * 000000* * * * * * * * * * * * * * * * * * * * * 000000* * * * * * * * * * * * * * * * * * * * * 000000* * * * * * * * * * * * * * * * * * * * * 000000* * * * * * * * * * * * * * * * * * * * * 000000* * * * * * * * * * * * * * THIS CERTIFIES THAT ** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Sample **** Mr. Sample SEE REVERSE FOR CERTAIN DEFINITIONS CUSIP XXXXXX XX X is the owner of **000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares*** *000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares**** 000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****0 00000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****00 0000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000 000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****0000 00**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****00000 0**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000 **Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000* *Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000** Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**S THIS CERTIFICATE IS TRANSFERABLE IN CITIES DESIGNATED BY THE TRANSFER AGENT, AVAILABLE ONLINE AT www.computershare.com FULLY-PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF SpringWorks Therapeutics, Inc. (hereinafter called the “Company”), transferable on the books of the Company in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby, are issued and shall be held subject to all of the provisions of the Certificate of Incorporation, as amended, and the By-Laws, as amended, of the Company (copies of which are on file with the Company and with the Transfer Agent), to all of which each holder, by acceptance hereof, assents. This Certificate is not valid unless countersigned and registered by the Transfer Agent and Registrar. Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers. FACSIMILE SIGNATURE TO COME President FACSIMILE SIGNATURE TO COME Secretary DATED DD-MMM-YYYY COUNTERSIGNED AND REGISTERED: COMPUTERSHARE TRUST COMPANY, N.A. TRANSFER AGENT AND REGISTRAR, By AUTHORIZED SIGNATURE PO BOX 43004, Providence, RI 02940-3004 MR A SAMPLE DESIGNATION (IF ANY) ADD 1 ADD 2 ADD 3 ADD 4 CUSIP/IDENTIFIER XXXXXX XX X Holder ID XXXXXXXXXX Insurance Value 1,000,000.00 Number of Shares 123456 DTC 12345678 123456789012345 Certificate Numbers 1234567890/1234567890 1234567890/1234567890 1234567890/1234567890 1234567890/1234567890 1234567890/1234567890 1234567890/1234567890 Total Transaction Num/No. 123456 Denom. 123456 Total 1234567

 

 

Exhibit 10.1

 

springworks therapeutics, inc.

 

2019 STOCK OPTION AND incentive PLAN

 

SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS

 

The name of the plan is the SpringWorks Therapeutics, Inc. 2019 Stock Option and Incentive Plan (the “Plan”). The purpose of the Plan is to encourage and enable the officers, employees, directors, Consultants and other key persons of SpringWorks Therapeutics, Inc., a Delaware corporation (including any successor entity, the “Company”), and its Subsidiaries, upon whose judgment, initiative and efforts the Company largely depends for the successful conduct of its business, to acquire a proprietary interest in the Company.

 

The following terms shall be defined as set forth below:

 

“Affiliate” of any Person means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with the first mentioned Person. A Person shall be deemed to control another Person if such first Person possesses directly or indirectly the power to direct, or cause the direction of, the management and policies of the second Person, whether through the ownership of voting securities, by contract or otherwise.

 

“Award” or “Awards,” except where referring to a particular category of grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock Options, Restricted Stock Awards, Unrestricted Stock Awards, Restricted Stock Units or any combination of the foregoing.

 

“Award Agreement” means a written or electronic agreement setting forth the terms and provisions applicable to an Award granted under the Plan. Each Award Agreement may contain terms and conditions in addition to those set forth in the Plan; provided, however, in the event of any conflict in the terms of the Plan and the Award Agreement, the terms of the Plan shall govern.

 

“Board” means the Board of Directors of the Company.

 

“Cause” shall have the meaning as set forth in the Award Agreement(s). In the case that any Award Agreement does not contain a definition of “Cause,” it shall mean (i) the grantee’s dishonest statements or acts with respect to the Company or any Affiliate of the Company, or any current or prospective customers, suppliers vendors or other third parties with which such entity does business; (ii) the grantee’s commission of (A) a felony or (B) any misdemeanor involving moral turpitude, deceit, dishonesty or fraud; (iii) the grantee’s failure to perform his assigned duties and responsibilities to the reasonable satisfaction of the Company which failure continues, in the reasonable judgment of the Company, after written notice given to the grantee by the Company; (iv) the grantee’s gross negligence, willful misconduct or insubordination with respect to the Company or any Affiliate of the Company; or (v) the grantee’s material violation of any provision of any agreement(s) between the grantee and the Company relating to noncompetition, nonsolicitation, nondisclosure and/or assignment of inventions.

 

 

“Code” means the Internal Revenue Code of 1986, as amended, and any successor Code, and related rules, regulations and interpretations.

 

“Committee” means the Committee of the Board referred to in Section 2.

 

“Consultant” means any natural person that provides bona fide services to the Company (including a Subsidiary), and such services are not in connection with the offer or sale of securities in a capital-raising transaction and do not directly or indirectly promote or maintain a market for the Company’s securities.

 

“Disability” means “disability” as defined in Section 422(c) of the Code.

 

“Effective Date” means the date on which the Plan is adopted as set forth on the final page of the Plan.

 

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

 

“Fair Market Value” of the Stock on any given date means the fair market value of the Stock determined in good faith by the Committee based on the reasonable application of a reasonable valuation method not inconsistent with Section 409A of the Code. If the Stock is admitted to trade on a national securities exchange, the determination shall be made by reference to the closing price reported on such exchange. If there is no closing price for such date, the determination shall be made by reference to the last date preceding such date for which there is a closing price. If the date for which Fair Market Value is determined is the first day when trading prices for the Stock are reported on a national securities exchange, the Fair Market Value shall be the “Price to the Public” (or equivalent) set forth on the cover page for the final prospectus relating to the Company’s Initial Public Offering.

 

“Grant Date” means the date that the Committee designates in its approval of an Award in accordance with applicable law as the date on which the Award is granted, which date may not precede the date of such Committee approval.

 

“Holder” means, with respect to an Award or any Shares, the Person holding such Award or Shares, including the initial recipient of the Award or any Permitted Transferee.

 

“Incentive Stock Option” means any Stock Option designated and qualified as an “incentive stock option” as defined in Section 422 of the Code.

 

“Initial Public Offering” means the consummation of the first firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act covering the offer and sale by the Company of its equity securities, as a result of or following which the Stock shall be publicly held.

 

“Non-Qualified Stock Option” means any Stock Option that is not an Incentive Stock Option.

 

 

“Option” or “Stock Option” means any option to purchase shares of Stock granted pursuant to Section 5.

 

“Permitted Transferees” shall mean any of the following to whom a Holder may transfer Shares hereunder (as set forth in Section 9(a)(ii)(A)): the Holder’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Holder’s household (other than a tenant or employee), a trust in which these persons have more than fifty percent of the beneficial interest, a foundation in which these persons control the management of assets, and any other entity in which these persons own more than fifty percent of the voting interests; provided, however, that any such trust does not require or permit distribution of any Shares during the term of the Award Agreement unless subject to its terms. Upon the death of the Holder, the term Permitted Transferees shall also include such deceased Holder’s estate, executors, administrators, personal representatives, heirs, legatees and distributees, as the case may be.

 

“Person” shall mean any individual, corporation, partnership (limited or general), limited liability company, limited liability partnership, association, trust, joint venture, unincorporated organization or any similar entity.

 

“Restricted Stock Award” means Awards granted pursuant to Section 6 and “Restricted Stock” means Shares issued pursuant to such Awards.

 

“Restricted Stock Unit” means an Award of phantom stock units to a grantee, which may be settled in cash or Shares as determined by the Committee, pursuant to Section 8.

 

“Sale Event” means the consummation of (i) the dissolution or liquidation of the Company, (ii) the sale of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, (iii) a merger, reorganization or consolidation pursuant to which the holders of the Company’s outstanding voting power immediately prior to such transaction do not own a majority of the outstanding voting power of the surviving or resulting entity (or its ultimate parent, if applicable), (iv) the acquisition of all or a majority of the outstanding voting stock of the Company in a single transaction or a series of related transactions by a Person or group of Persons, or (v) any other acquisition of the business of the Company, as determined by the Board; provided, however, that the Company’s Initial Public Offering, any subsequent public offering or another capital raising event, or a merger effected solely to change the Company’s domicile shall not constitute a “Sale Event.”

 

“Section 409A” means Section 409A of the Code and the regulations and other guidance promulgated thereunder.

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.

 

“Service Relationship” means any relationship as a full-time employee, part-time employee, director or Consultants of the Company or any Subsidiary or any successor entity (e.g., a Service Relationship shall be deemed to continue without interruption in the event an individual’s status changes from full-time employee to part-time employee or Consultant).

 

 

“Shares” means shares of Stock.

 

“Stock” means the Common Stock, par value $ 0.0001 per share, of the Company.

 

“Subsidiary” means any corporation or other entity (other than the Company) in which the Company has more than a 50 percent interest, either directly or indirectly.

 

“Ten Percent Owner” means an employee who owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than 10 percent of the combined voting power of all classes of stock of the Company or any parent of the Company or any Subsidiary.

 

“Termination Event” means the termination of the Award recipient’s Service Relationship with the Company and its Subsidiaries for any reason whatsoever, regardless of the circumstances thereof, and including, without limitation, upon death, disability, retirement, discharge or resignation for any reason, whether voluntarily or involuntarily. The following shall not constitute a Termination Event: (i) a transfer to the service of the Company from a Subsidiary or from the Company to a Subsidiary, or from one Subsidiary to another Subsidiary or (ii) an approved leave of absence for military service or sickness, or for any other purpose approved by the Committee, if the individual’s right to re-employment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was granted or if the Committee otherwise so provides in writing.

 

“Unrestricted Stock Award” means any Award granted pursuant to Section 7 and “Unrestricted Stock” means Shares issued pursuant to such Awards.

 

SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT GRANTEES AND DETERMINE AWARDS

 

(a)          Administration of Plan. The Plan shall be administered by the Board, or at the discretion of the Board, by a committee of the Board, comprised of not less than two directors. All references herein to the “Committee” shall be deemed to refer to the group then responsible for administration of the Plan at the relevant time (i.e., either the Board of Directors or a committee or committees of the Board, as applicable).

 

(b)          Powers of Committee. The Committee shall have the power and authority to grant Awards consistent with the terms of the Plan, including the power and authority:

 

(i)          to select the individuals to whom Awards may from time to time be granted;

 

(ii)         to determine the time or times of grant, and the amount, if any, of Incentive Stock Options, Non-Qualified Stock Options, Restricted Stock Awards, Unrestricted Stock Awards, Restricted Stock Units, or any combination of the foregoing, granted to any one or more grantees;

 

(iii)        to determine the number of Shares to be covered by any Award and, subject to the provisions of the Plan, the price, exercise price, conversion ratio or other price relating thereto;

 

 

(iv)        to determine and, subject to Section 12, to modify from time to time the terms and conditions, including restrictions, not inconsistent with the terms of the Plan, of any Award, which terms and conditions may differ among individual Awards and grantees, and to approve the form of Award Agreements;

 

(v)         to accelerate at any time the exercisability or vesting of all or any portion of any Award;

 

(vi)        to impose any limitations on Awards, including limitations on transfers, repurchase provisions and the like, and to exercise repurchase rights or obligations;

 

(vii)       subject to Section 5(a)(ii) and any restrictions imposed by Section 409A, to extend at any time the period in which Stock Options may be exercised; and

 

(viii)      at any time to adopt, alter and repeal such rules, guidelines and practices for administration of the Plan and for its own acts and proceedings as it shall deem advisable; to interpret the terms and provisions of the Plan and any Award (including Award Agreements); to make all determinations it deems advisable for the administration of the Plan; to decide all disputes arising in connection with the Plan; and to otherwise supervise the administration of the Plan.

 

All decisions and interpretations of the Committee shall be binding on all persons, including the Company and all Holders.

 

(c)          Delegation of Authority to Grant Awards. Subject to applicable law, the Committee, in its discretion, may delegate to any one or more members of the Board all or part of the Committee’s authority and duties with respect to the granting of Awards and may delegate to an officer of the Company the power to designate non-officer employees to be recipients of Options, and to determine the number of such Options to be received by such employees; provided, however, that the resolution so authorizing the officer shall specify the total number of Options the officer may so award and may not delegate to the officer the authority to set the exercise price or the vesting terms of such Options. Any such delegation by the Committee shall also provide that the officer may not grant Awards to himself or herself (or other officers) without the approval of the Committee. The Committee may revoke or amend the terms of a delegation at any time but such action shall not invalidate any prior actions of the Committee’s delegate or delegates that were consistent with the terms of the Plan.

 

(d)          Award Agreement. Awards under the Plan shall be evidenced by Award Agreements that set forth the terms, conditions and limitations for each Award.

 

(e)          Indemnification. Neither the Board nor the Committee, nor any member of either or any delegate thereof, shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with the Plan, and the members of the Board and the Committee (and any delegate thereof) shall be entitled in all cases to indemnification and reimbursement by the Company in respect of any claim, loss, damage or expense (including, without limitation, reasonable attorneys’ fees) arising or resulting therefrom to the fullest extent permitted by law and/or under the Company’s governing documents, including its certificate of incorporation or bylaws, or any directors’ and officers’ liability insurance coverage which may be in effect from time to time and/or any indemnification agreement between such individual and the Company.

 

 

(f)          Foreign Award Recipients. Notwithstanding any provision of the Plan to the contrary, in order to comply with the laws in other countries in which the Company and any Subsidiary operate or have employees or other individuals eligible for Awards, the Committee, in its sole discretion, shall have the power and authority to: (i) determine which Subsidiaries, if any, shall be covered by the Plan; (ii) determine which individuals, if any, outside the United States are eligible to participate in the Plan; (iii) modify the terms and conditions of any Award granted to individuals outside the United States to comply with applicable foreign laws; (iv) establish subplans and modify exercise procedures and other terms and procedures, to the extent the Committee determines such actions to be necessary or advisable (and such subplans and/or modifications shall be attached to the Plan as appendices); provided, however, that no such subplans and/or modifications shall increase the share limitation contained in Section 3(a) hereof; and (v) take any action, before or after an Award is made, that the Committee determines to be necessary or advisable to obtain approval or comply with any local governmental regulatory exemptions or approvals.

 

SECTION 3. STOCK ISSUABLE UNDER THE PLAN; MERGERS AND OTHER TRANSACTIONS; SUBSTITUTION

 

Stock Issuable.

 

(a)          The maximum number of Shares reserved and available for issuance under the Plan shall be 34,828,990 Shares, subject to adjustment as provided in Section 3(b) (the “Pool Limit”). Subject to such overall limitations, Shares may be issued up to such maximum number pursuant to any type or types of Award, and no more than the Pool Limit may be issued pursuant to Incentive Stock Options. The Shares available for issuance under the Plan may be authorized but unissued Shares or Shares reacquired by the Company. Beginning on the date that the Company becomes subject to Section 162(m) of the Code, Options with respect to no more than 10,000,000 Shares shall be granted to any one individual in any calendar year period. For purposes of the Pool Limit Shares underlying any awards under the Plan that are forfeited, canceled, held back upon exercise of an Option or settlement of an Award to cover the exercise price or tax withholding, reacquired by the Company prior to vesting, satisfied without the issuance of Stock or otherwise terminated (other than by exercise) shall be added back to the shares of Stock available for issuance under the Plan and, to the extent permitted under Section 422 of the Code and the regulations promulgated thereunder, the shares of Stock that may be issued as Incentive Stock Options.

 

(b)          Changes in Stock. Subject to Section 3(c) hereof, if, as a result of any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in the Company’s capital stock, the outstanding Shares are increased or decreased or are exchanged for a different number or kind of shares or other securities of the Company, or additional Shares or new or different shares or other securities of the Company or other non-cash assets are distributed with respect to such Shares or other securities, in each case, without the receipt of consideration by the Company, or, if, as a result of any merger or consolidation, or sale of all or substantially all of the assets of the Company, the outstanding Shares are converted into or exchanged for other securities of the Company or any successor entity (or a parent or subsidiary thereof), the Committee shall make an appropriate and proportionate adjustment in (i) the maximum number of Shares reserved for issuance under the Plan, (ii) the number and kind of Shares or other securities subject to any then outstanding Awards under the Plan, (iii) the repurchase price, if any, per Share subject to each outstanding Award, and (iv) the exercise price for each Share subject to any then outstanding Stock Options under the Plan, without changing the aggregate exercise price (i.e., the exercise price multiplied by the number of Stock Options) as to which such Stock Options remain exercisable. The Committee shall in any event make such adjustments as may be required by Section 25102(o) of the California Corporation Code and the rules and regulations promulgated thereunder. The adjustment by the Committee shall be final, binding and conclusive. No fractional Shares shall be issued under the Plan resulting from any such adjustment, but the Committee in its discretion may make a cash payment in lieu of fractional shares.

 

 

(c)          Sale Events.

 

(i)          Options. Subject to, in each case, the preferential rights of the holders of the Company’s Preferred Stock pursuant to the Company’s restated certificate of incorporation.

 

(A)         In the case of and subject to the consummation of a Sale Event, the Plan and all outstanding Options issued hereunder shall terminate upon the effective time of any such Sale Event unless assumed or continued by the successor entity, or new stock options or other awards of the successor entity or parent thereof are substituted therefor, with an equitable or proportionate adjustment as to the number and kind of shares and, if appropriate, the per share exercise prices, as such parties shall agree (after taking into account any acceleration hereunder and/or pursuant to the terms of any Award Agreement).

 

(B)         In the event of the termination of the Plan and all outstanding Options issued hereunder pursuant to Section 3(c), each Holder of Options shall be permitted, within a period of time prior to the consummation of the Sale Event as specified by the Committee, to exercise all such Options which are then exercisable or will become exercisable as of the effective time of the Sale Event; provided, however, that the exercise of Options not exercisable prior to the Sale Event shall be subject to the consummation of the Sale Event.

 

(C)         Notwithstanding anything to the contrary in Section 3(c)(i)(A), in the event of a Sale Event, the Company shall have the right, but not the obligation, to make or provide for a cash payment to the Holders of Options, without any consent of the Holders, in exchange for the cancellation thereof, in an amount equal to the difference between (A) the value as determined by the Committee of the consideration payable per share of Stock pursuant to the Sale Event (the “Sale Price”) times the number of Shares subject to outstanding Options being cancelled (to the extent then vested and exercisable, including by reason of acceleration in connection with such Sale Event, at prices not in excess of the Sale Price) and (B) the aggregate exercise price of all such outstanding vested and exercisable Options.

 

 

(ii)         Restricted Stock and Restricted Stock Unit Awards. Subject to, in each case, the preferential rights of the holders of the Company’s Preferred Stock pursuant to the Company’s restated certificate of incorporation.

 

(A)         In the case of and subject to the consummation of a Sale Event, all unvested Restricted Stock and unvested Restricted Stock Unit Awards (other than those becoming vested as a result of the Sale Event) issued hereunder shall be forfeited immediately prior to the effective time of any such Sale Event unless assumed or continued by the successor entity, or awards of the successor entity or parent thereof are substituted therefor, with an equitable or proportionate adjustment as to the number and kind of shares subject to such awards as such parties shall agree (after taking into account any acceleration hereunder and/or pursuant to the terms of any Award Agreement).

 

(B)         In the event of the forfeiture of Restricted Stock pursuant to Section 3(c)(ii)(A), such Restricted Stock shall be repurchased from the Holder thereof at a price per share equal to the original per share purchase price paid by the Holder (subject to adjustment as provided in Section 3(b)) for such Shares.

 

(C)         Notwithstanding anything to the contrary in Section 3(c)(ii)(A), in the event of a Sale Event, the Company shall have the right, but not the obligation, to make or provide for a cash payment to the Holders of Restricted Stock or Restricted Stock Unit Awards, without consent of the Holders, in exchange for the cancellation thereof, in an amount equal to the Sale Price times the number of Shares subject to such Awards, to be paid at the time of such Sale Event or upon the later vesting of such Awards.

 

SECTION 4. ELIGIBILITY

 

Grantees under the Plan will be such full or part-time officers and other employees, directors and Consultants of the Company and any Subsidiary who are selected from time to time by the Committee in its sole discretion; provided, however, that Awards shall be granted only to those individuals described in Rule 701(c) of the Securities Act.

 

SECTION 5. STOCK OPTIONS

 

Upon the grant of a Stock Option, the Company and the grantee shall enter into an Award Agreement. The terms and conditions of each such Award Agreement shall be determined by the Committee, and such terms and conditions may differ among individual Awards and grantees.

 

Stock Options granted under the Plan may be either Incentive Stock Options or Non-Qualified Stock Options. Incentive Stock Options may be granted only to employees of the Company or any Subsidiary that is a “subsidiary corporation” within the meaning of Section 424(f) of the Code. To the extent that any Option does not qualify as an Incentive Stock Option, it shall be deemed a Non-Qualified Stock Option.

 

(a)          Terms of Stock Options. The Committee in its discretion may grant Stock Options to those individuals who meet the eligibility requirements of Section 4. Stock Options shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee shall deem desirable.

 

 

(i)          Exercise Price. The exercise price per share for the Shares covered by a Stock Option shall be determined by the Committee at the time of grant but shall not be less than 100 percent of the Fair Market Value on the Grant Date. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the exercise price per share for the Shares covered by such Incentive Stock Option shall not be less than 110 percent of the Fair Market Value on the Grant Date.

 

(ii)         Option Term. The term of each Stock Option shall be fixed by the Committee, but no Stock Option shall be exercisable more than ten years from the Grant Date. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the term of such Stock Option shall be no more than five years from the Grant Date.

 

(iii)        Exercisability; Rights of a Stockholder. Stock Options shall become exercisable and/or vested at such time or times, whether or not in installments, as shall be determined by the Committee at or after the Grant Date. The Award Agreement may permit a grantee to exercise all or a portion of a Stock Option immediately at grant; provided that the Shares issued upon such exercise shall be subject to restrictions and a vesting schedule identical to the vesting schedule of the related Stock Option, such Shares shall be deemed to be Restricted Stock for purposes of the Plan, and the optionee may be required to enter into an additional or new Award Agreement as a condition to exercise of such Stock Option. An optionee shall have the rights of a stockholder only as to Shares acquired upon the exercise of a Stock Option and not as to unexercised Stock Options. An optionee shall not be deemed to have acquired any Shares unless and until a Stock Option shall have been exercised pursuant to the terms of the Award Agreement and this Plan and the optionee’s name has been entered on the books of the Company as a stockholder.

 

(iv)        Method of Exercise. Stock Options may be exercised by an optionee in whole or in part, by the optionee giving written or electronic notice of exercise to the Company, specifying the number of Shares to be purchased. Payment of the purchase price may be made by one or more of the following methods (or any combination thereof) to the extent provided in the Award Agreement:

 

(A)         In cash, by certified or bank check, by wire transfer of immediately available funds, or other instrument acceptable to the Committee;

 

(B)         If permitted by the Committee, by the optionee delivering to the Company a promissory note, if the Board has expressly authorized the loan of funds to the optionee for the purpose of enabling or assisting the optionee to effect the exercise of his or her Stock Option; provided, that at least so much of the exercise price as represents the par value of the Stock shall be paid in cash if required by state law;

 

 

(C)         If permitted by the Committee and the Initial Public Offering has occurred (or the Stock otherwise becomes publicly-traded), through the delivery (or attestation to the ownership) of Shares that have been purchased by the optionee on the open market or that are beneficially owned by the optionee and are not then subject to restrictions under any Company plan. To the extent required to avoid variable accounting treatment under ASC 718 or other applicable accounting rules, such surrendered Shares if originally purchased from the Company shall have been owned by the optionee for at least six months. Such surrendered Shares shall be valued at Fair Market Value on the exercise date;

 

(D)         If permitted by the Committee and the Initial Public Offering has occurred (or the Stock otherwise becomes publicly-traded), by the optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable to the Company for the purchase price; provided that in the event the optionee chooses to pay the purchase price as so provided, the optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Committee shall prescribe as a condition of such payment procedure; or

 

(E)         If permitted by the Committee, and only with respect to Stock Options that are not Incentive Stock Options, by a “net exercise” arrangement pursuant to which the Company will reduce the number of Shares issuable upon exercise by the largest whole number of Shares with a Fair Market Value that does not exceed the aggregate exercise price.

 

Payment instruments will be received subject to collection. No certificates for Shares so purchased will be issued to the optionee or, with respect to uncertificated Stock, no transfer to the optionee on the records of the Company will take place, until the Company has completed all steps it has deemed necessary to satisfy legal requirements relating to the issuance and sale of the Shares, which steps may include, without limitation, (i) receipt of a representation from the optionee at the time of exercise of the Option that the optionee is purchasing the Shares for the optionee’s own account and not with a view to any sale or distribution of the Shares or other representations relating to compliance with applicable law governing the issuance of securities, (ii) the legending of the certificate (or notation on any book entry) representing the Shares to evidence the foregoing restrictions, and (iii) obtaining from optionee payment or provision for all withholding taxes due as a result of the exercise of the Option. The delivery of certificates representing the shares of Stock (or the transfer to the optionee on the records of the Company with respect to uncertificated Stock) to be purchased pursuant to the exercise of a Stock Option will be contingent upon (A) receipt from the optionee (or a purchaser acting in his or her stead in accordance with the provisions of the Stock Option) by the Company of the full purchase price for such Shares and the fulfillment of any other requirements contained in the Award Agreement or applicable provisions of laws and (B) if required by the Company, the optionee shall have entered into any stockholders agreements or other agreements with the Company and/or certain other of the Company’s stockholders relating to the Stock. In the event an optionee chooses to pay the purchase price by previously-owned Shares through the attestation method, the number of Shares transferred to the optionee upon the exercise of the Stock Option shall be net of the number of Shares attested to.

 

 

(b)          Annual Limit on Incentive Stock Options. To the extent required for “incentive stock option” treatment under Section 422 of the Code, the aggregate Fair Market Value (determined as of the Grant Date) of the Shares with respect to which Incentive Stock Options granted under the Plan and any other plan of the Company or its parent and any Subsidiary that become exercisable for the first time by an optionee during any calendar year shall not exceed $100,000 or such other limit as may be in effect from time to time under Section 422 of the Code. To the extent that any Stock Option exceeds this limit, it shall constitute a Non-Qualified Stock Option.

 

(c)          Termination. Any portion of a Stock Option that is not vested and exercisable on the date of termination of an optionee’s Service Relationship shall immediately expire and be null and void. Once any portion of the Stock Option becomes vested and exercisable, the optionee’s right to exercise such portion of the Stock Option (or the optionee’s representatives and legatees as applicable) in the event of a termination of the optionee’s Service Relationship shall continue until the earliest of: (i) the date which is: (A) 12 months following the date on which the optionee’s Service Relationship terminates due to death or Disability (or such longer period of time as determined by the Committee and set forth in the applicable Award Agreement), or (B) three months following the date on which the optionee’s Service Relationship terminates if the termination is due to any reason other than death or Disability (or such longer period of time as determined by the Committee and set forth in the applicable Award Agreement), or (ii) the Expiration Date set forth in the Award Agreement; provided that notwithstanding the foregoing, an Award Agreement may provide that if the optionee’s Service Relationship is terminated for Cause, the Stock Option shall terminate immediately and be null and void upon the date of the optionee’s termination and shall not thereafter be exercisable.

 

SECTION 6. RESTRICTED STOCK AWARDS

 

(a)          Nature of Restricted Stock Awards. The Committee may, in its sole discretion, grant (or sell at par value or such other purchase price determined by the Committee) to an eligible individual under Section 4 hereof a Restricted Stock Award under the Plan. The Committee shall determine the restrictions and conditions applicable to each Restricted Stock Award at the time of grant. Conditions may be based on continuing employment (or other Service Relationship), achievement of pre-established performance goals and objectives and/or such other criteria as the Committee may determine. Upon the grant of a Restricted Stock Award, the Company and the grantee shall enter into an Award Agreement. The terms and conditions of each such Award Agreement shall be determined by the Committee, and such terms and conditions may differ among individual Awards and grantees.

 

(b)          Rights as a Stockholder. Upon the grant of the Restricted Stock Award and payment of any applicable purchase price, a grantee of Restricted Stock shall be considered the record owner of and shall be entitled to vote the Restricted Stock if, and to the extent, such Shares are entitled to voting rights, subject to such conditions contained in the Award Agreement. The grantee shall be entitled to receive all dividends and any other distributions declared on the Shares; provided, however, that the Company is under no duty to declare any such dividends or to make any such distribution. Unless the Committee shall otherwise determine, certificates evidencing the Restricted Stock shall remain in the possession of the Company until such Restricted Stock is vested as provided in subsection (d) below of this Section, and the grantee shall be required, as a condition of the grant, to deliver to the Company a stock power endorsed in blank and such other instruments of transfer as the Committee may prescribe.

 

 

(c)          Restrictions. Restricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of except as specifically provided herein or in the Award Agreement. Except as may otherwise be provided by the Committee either in the Award Agreement or, subject to Section 12 below, in writing after the Award Agreement is issued, if a grantee’s Service Relationship with the Company and any Subsidiary terminates, the Company or its assigns shall have the right, as may be specified in the relevant instrument, to repurchase some or all of the Shares subject to the Award at such purchase price as is set forth in the Award Agreement.

 

(d)          Vesting of Restricted Stock. The Committee at the time of grant shall specify in the Award Agreement the date or dates and/or the attainment of pre-established performance goals, objectives and other conditions on which the substantial risk of forfeiture imposed shall lapse and the Restricted Stock shall become vested, subject to such further rights of the Company or its assigns as may be specified in the Award Agreement.

 

SECTION 7. UNRESTRICTED STOCK AWARDS

 

The Committee may, in its sole discretion, grant (or sell at par value or such other purchase price determined by the Committee) to an eligible person under Section 4 hereof an Unrestricted Stock Award under the Plan. Unrestricted Stock Awards may be granted in respect of past services or other valid consideration, or in lieu of cash compensation due to such grantee.

 

SECTION 8. RESTRICTED STOCK UNITS

 

(a)          Nature of Restricted Stock Units. The Committee may, in its sole discretion, grant to an eligible person under Section 4 hereof Restricted Stock Units under the Plan. The Committee shall determine the restrictions and conditions applicable to each Restricted Stock Unit at the time of grant. Vesting conditions may be based on continuing employment (or other Service Relationship), achievement of pre-established performance goals and objectives and/or other such criteria as the Committee may determine. Upon the grant of Restricted Stock Units, the grantee and the Company shall enter into an Award Agreement. The terms and conditions of each such Award Agreement shall be determined by the Committee and may differ among individual Awards and grantees. On or promptly following the vesting date or dates applicable to any Restricted Stock Unit, but in no event later than March 15 of the year following the year in which such vesting occurs, such Restricted Stock Unit(s) shall be settled in the form of cash or shares of Stock, as specified in the Award agreement. Restricted Stock Units may not be sold, assigned, transferred, pledged, or otherwise encumbered or disposed of.

 

(b)          Rights as a Stockholder. A grantee shall have the rights of a stockholder only as to Shares, if any, acquired upon settlement of Restricted Stock Units. A grantee shall not be deemed to have acquired any such Shares unless and until the Restricted Stock Units shall have been settled in Shares pursuant to the terms of the Plan and the Award Agreement, the Company shall have issued and delivered a certificate representing the Shares to the grantee (or transferred on the records of the Company with respect to uncertificated stock), and the grantee’s name has been entered in the books of the Company as a stockholder.

 

 

(c)          Termination. Except as may otherwise be provided by the Committee either in the Award Agreement or in writing after the Award Agreement is issued, a grantee’s right in all Restricted Stock Units that have not vested shall automatically terminate upon the grantee’s cessation of Service Relationship with the Company and any Subsidiary for any reason.

 

SECTION 9. transfer restrictions; company RIGHT OF FIRST REFUSAL; COMPANY repurchase rights

 

(a)          Restrictions on Transfer.

 

(i)          Non-Transferability of Stock Options. Stock Options and, prior to exercise, the Shares issuable upon exercise of such Stock Option, shall not be transferable by the optionee otherwise than by will, or by the laws of descent and distribution, and all Stock Options shall be exercisable, during the optionee’s lifetime, only by the optionee, or by the optionee’s legal representative or guardian in the event of the optionee’s incapacity. Notwithstanding the foregoing, the Committee, in its sole discretion, may provide in the Award Agreement regarding a given Stock Option that the optionee may transfer by gift, without consideration for the transfer, his or her Non-Qualified Stock Options to his or her family members (as defined in Rule 701 of the Securities Act), to trusts for the benefit of such family members, or to partnerships in which such family members are the only partners (to the extent such trusts or partnerships are considered “family members” for purposes of Rule 701 of the Securities Act), provided that the transferee agrees in writing with the Company to be bound by all of the terms and conditions of this Plan and the applicable Award Agreement, including the execution of a stock power upon the issuance of Shares. Stock Options, and the Shares issuable upon exercise of such Stock Options, shall be restricted as to any pledge, hypothecation, or other transfer, including any short position, any “put equivalent position” (as defined in the Exchange Act) or any “call equivalent position” (as defined in the Exchange Act) prior to exercise.

 

(ii)         Shares. No Shares shall be sold, assigned, transferred, pledged, hypothecated, given away or in any other manner disposed of or encumbered, whether voluntarily or by operation of law, unless (i) the transfer is in compliance with the terms of the applicable Award Agreement, all applicable securities laws (including, without limitation, the Securities Act), and with the terms and conditions of this Section 9, (ii) the transfer does not cause the Company to become subject to the reporting requirements of the Exchange Act, and (iii) the transferee consents in writing to be bound by the provisions of the Plan and the Award Agreement, including this Section 9. In connection with any proposed transfer, the Committee may require the transferor to provide at the transferor’s own expense an opinion of counsel to the transferor, satisfactory to the Committee, that such transfer is in compliance with all foreign, federal and state securities laws (including, without limitation, the Securities Act). Any attempted transfer of Shares not in accordance with the terms and conditions of this Section 9 shall be null and void, and the Company shall not reflect on its records any change in record ownership of any Shares as a result of any such transfer, shall otherwise refuse to recognize any such transfer and shall not in any way give effect to any such transfer of Shares. The Company shall be entitled to seek protective orders, injunctive relief and other remedies available at law or in equity including, without limitation, seeking specific performance or the rescission of any transfer not made in strict compliance with the provisions of this Section 9. Subject to the foregoing general provisions, and unless otherwise provided in the applicable Award Agreement, Shares may be transferred pursuant to the following specific terms and conditions (provided that with respect to any transfer of Restricted Stock, all vesting and forfeiture provisions shall continue to apply with respect to the original recipient):

 

 

(A)         Transfers to Permitted Transferees. The Holder may transfer any or all of the Shares to one or more Permitted Transferees; provided, however, that following such transfer, such Shares shall continue to be subject to the terms of this Plan (including this Section 9) and such Permitted Transferee(s) shall, as a condition to any such transfer, deliver a written acknowledgment to that effect to the Company and shall deliver a stock power to the Company with respect to the Shares. Notwithstanding the foregoing, the Holder may not transfer any of the Shares to a Person whom the Company reasonably determines is a direct competitor or a potential competitor of the Company or any of its Subsidiaries.

 

(B)         Transfers Upon Death. Upon the death of the Holder, any Shares then held by the Holder at the time of such death and any Shares acquired after the Holder’s death by the Holder’s legal representative shall be subject to the provisions of this Plan, and the Holder’s estate, executors, administrators, personal representatives, heirs, legatees and distributees shall be obligated to convey such Shares to the Company or its assigns under the terms contemplated by the Plan and the Award Agreement.

 

(b)          Right of First Refusal. In the event that a Holder desires at any time to sell or otherwise transfer all or any part of his or her Shares (other than shares of Restricted Stock which by their terms are not transferrable), the Holder first shall give written notice to the Company of the Holder’s intention to make such transfer. Such notice shall state the number of Shares that the Holder proposes to sell (the “Offered Shares”), the price and the terms at which the proposed sale is to be made and the name and address of the proposed transferee. At any time within 30 days after the receipt of such notice by the Company, the Company or its assigns may elect to purchase all or any portion of the Offered Shares at the price and on the terms offered by the proposed transferee and specified in the notice. The Company or its assigns shall exercise this right by mailing or delivering written notice to the Holder within the foregoing 30-day period. If the Company or its assigns elect to exercise its purchase rights under this Section 9(b), the closing for such purchase shall, in any event, take place within 45 days after the receipt by the Company of the initial notice from the Holder. In the event that the Company or its assigns do not elect to exercise such purchase right, or in the event that the Company or its assigns do not pay the full purchase price within such 45-day period, the Holder shall be required to pay a transaction processing fee of $10,000 to the Company (unless waived by the Committee) and then may, within 60 days thereafter, sell the Offered Shares to the proposed transferee and at the same price and on the same terms as specified in the Holder’s notice. Any Shares not sold to the proposed transferee shall remain subject to the Plan. If the Holder is a party to any stockholders agreements or other agreements with the Company and/or certain other of the Company’s stockholders relating to the Shares, (i) the transferring Holder shall comply with the requirements of such stockholders agreements or other agreements relating to any proposed transfer of the Offered Shares, and (ii) any proposed transferee that purchases Offered Shares shall enter into such stockholders agreements or other agreements with the Company and/or certain of the Company’s stockholders relating to the Offered Shares on the same terms and in the same capacity as the transferring Holder.

 

 

(c)          Company’s Right of Repurchase.

 

(i)          Right of Repurchase for Shares Issued Upon the Exercise of an Option. Upon a Termination Event, the Company or its assigns shall have the right and option to repurchase from a Holder of Shares acquired upon exercise of a Stock Option. Such repurchase rights may be exercised by the Company within the later of (A) six months following the date of such Termination Event or (B) seven months after the acquisition of Shares upon exercise of a Stock Option. The repurchase price for unvested Shares shall be equal to the lower of the original per share price paid by the Holder, subject to adjustment as provided in Section 3(b) of the Plan, or the current Fair Market Value of such Shares as of the date the Company elects to exercise its repurchase rights. The repurchase price for vested Shares shall be equal to (X) if the Holder’s Service Relationship is terminated for Cause, the lower of the original per share price paid by the Holder, subject to adjustment as provided in Section 3(b) of the Plan, or the current Fair Market Value of such Shares as of the date the Company elects to exercise its repurchase rights, or (Y) in the case of any other Termination Event, the current Fair Market Value of such Shares as of the date the Company elects to exercise its repurchase rights.

 

(ii)         Right of Repurchase With Respect to Shares Granted as Restricted Stock Awards. Upon a Termination Event, the Company or its assigns shall have the right and option to repurchase from a Holder of Shares received pursuant to a Restricted Stock Award any Shares. Such repurchase right may be exercised by the Company within six months following the date of such Termination Event. The repurchase price for unvested Shares shall be the lower of the original per share purchase price paid by the Holder, subject to adjustment as provided in Section 3(b) of the Plan, or the current Fair Market Value of such Shares as of the date the Company elects to exercise its repurchase rights. The repurchase price for vested Shares shall be equal to (X) if the Holder’s Service Relationship is terminated for Cause, the lower of the original per share price paid by the Holder, subject to adjustment as provided in Section 3(b) of the Plan, or the current Fair Market Value of such Shares as of the date the Company elects to exercise its repurchase rights, or (Y) in the case of any other Termination Event, the current Fair Market Value of such Shares as of the date the Company elects to exercise its repurchase rights.

 

(iii)        Procedure. Any repurchase right of the Company shall be exercised by the Company or its assigns by giving the Holder written notice on or before the last day of the repurchase period of its intention to exercise such repurchase right. Upon such notification, the Holder shall promptly surrender to the Company, free and clear of any liens or encumbrances, any certificates representing the Shares being purchased, together with a duly executed stock power for the transfer of such Shares to the Company or the Company’s assignee or assignees. Upon the Company’s or its assignee’s receipt of the certificates from the Holder, the Company or its assignee or assignees shall deliver to him, her or them a check for the applicable repurchase price; provided, however, that the Company may pay the repurchase price by offsetting and canceling any indebtedness then owed by the Holder to the Company.

 

(d)          Reserved.

 

 

(e)          Escrow Arrangement.

 

(i)          Escrow. In order to carry out the provisions of this Section 9 of this Plan more effectively, the Company shall hold any Shares issued pursuant to Awards granted under the Plan in escrow together with separate stock powers executed by the Holder in blank for transfer. The Company shall not dispose of the Shares except as otherwise provided in this Plan. In the event of any repurchase by the Company (or any of its assigns), the Company is hereby authorized by the Holder, as the Holder’s attorney-in-fact, to date and complete the stock powers necessary for the transfer of the Shares being purchased and to transfer such Shares in accordance with the terms hereof. At such time as any Shares are no longer subject to the Company’s repurchase and first refusal rights, the Company shall, at the written request of the Holder, deliver to the Holder a certificate representing such Shares with the balance of the Shares to be held in escrow pursuant to this Section.

 

(ii)         Remedy. Without limitation of any other provision of this Plan or other rights, in the event that a Holder or any other Person is required to sell a Holder’s Shares pursuant to the provisions of Sections 9(b) or (c) hereof and in the further event that he or she refuses or for any reason fails to deliver to the Company or its designated purchaser of such Shares the certificate or certificates evidencing such Shares together with a related stock power, the Company or such designated purchaser may deposit the applicable purchase price for such Shares with a bank designated by the Company, or with the Company’s independent public accounting firm, as agent or trustee, or in escrow, for such Holder or other Person, to be held by such bank or accounting firm for the benefit of and for delivery to him, her, them or it, and/or, in its discretion, pay such purchase price by offsetting any indebtedness then owed by such Holder as provided above. Upon any such deposit and/or offset by the Company or its designated purchaser of such amount and upon notice to the Person who was required to sell the Shares to be sold pursuant to the provisions of Sections 9(b) or (c), such Shares shall at such time be deemed to have been sold, assigned, transferred and conveyed to such purchaser, such Holder shall have no further rights thereto (other than the right to withdraw the payment thereof held in escrow, if applicable), and the Company shall record such transfer in its stock transfer book or in any appropriate manner.

 

(f)          Lockup Provision. If requested by the Company, a Holder shall not sell or otherwise transfer or dispose of any Shares (including, without limitation, pursuant to Rule 144 under the Securities Act) held by him or her for such period following the effective date of a public offering by the Company of Shares as the Company shall specify reasonably and in good faith. If requested by the underwriter engaged by the Company, each Holder shall execute a separate letter confirming his or her agreement to comply with this Section.

 

(g)          Adjustments for Changes in Capital Structure. If, as a result of any reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in the Common Stock, the outstanding Shares are increased or decreased or are exchanged for a different number or kind of securities of the Company, the restrictions contained in this Section 9 shall apply with equal force to additional and/or substitute securities, if any, received by Holder in exchange for, or by virtue of his or her ownership of, Shares.

 

 

(h)          Termination. The terms and provisions of Section 9(b) and Section 9(c) (except for the Company’s right to repurchase Shares still subject to a risk of forfeiture upon a Termination Event) shall terminate upon the closing of the Company’s Initial Public Offering or upon consummation of any Sale Event, in either case as a result of which Shares are registered under Section 12 of the Exchange Act and publicly-traded on any national security exchange.

 

SECTION 10. TAX WITHHOLDING

 

(a)          Payment by Grantee. Each grantee shall, no later than the date as of which the value of an Award or of any Shares or other amounts received thereunder first becomes includable in the gross income of the grantee for income tax purposes, pay to the Company, or make arrangements satisfactory to the Committee regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld by the Company with respect to such income. The Company and any Subsidiary shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the grantee. The Company’s obligation to deliver stock certificates (or evidence of book entry) to any grantee is subject to and conditioned on any such tax withholding obligations being satisfied by the grantee.

 

(b)          Payment in Stock. The Company’s minimum required tax withholding obligation may be satisfied, in whole or in part, by the Company withholding from Shares to be issued pursuant to an Award a number of Shares having an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the minimum withholding amount due.

 

SECTION 11. Section 409A AWARDS.

 

To the extent that any Award is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A (a “409A Award”), the Award shall be subject to such additional rules and requirements as may be specified by the Committee from time to time. In this regard, if any amount under a 409A Award is payable upon a “separation from service” (within the meaning of Section 409A) to a grantee who is considered a “specified employee” (within the meaning of Section 409A), then no such payment shall be made prior to the date that is the earlier of (i) six months and one day after the grantee’s separation from service, or (ii) the grantee’s death, but only to the extent such delay is necessary to prevent such payment from being subject to interest, penalties and/or additional tax imposed pursuant to Section 409A. The Company makes no representation or warranty and shall have no liability to any grantee under the Plan or any other Person with respect to any penalties or taxes under Section 409A that are, or may be, imposed with respect to any Award.

 

SECTION 12. AMENDMENTS AND TERMINATION

 

The Board may, at any time, amend or discontinue the Plan and the Committee may, at any time, amend or cancel any outstanding Award for the purpose of satisfying changes in law or for any other lawful purpose, but no such action shall adversely affect rights under any outstanding Award without the consent of the holder of the Award. The Committee may exercise its discretion to reduce the exercise price of outstanding Stock Options or effect repricing through cancellation of outstanding Stock Options and by granting such holders new Awards in replacement of the cancelled Stock Options. To the extent determined by the Committee to be required either by the Code to ensure that Incentive Stock Options granted under the Plan are qualified under Section 422 of the Code or otherwise, Plan amendments shall be subject to approval by the Company stockholders entitled to vote at a meeting of stockholders. Nothing in this Section 12 shall limit the Board’s or Committee’s authority to take any action permitted pursuant to Section 3(c). The Board reserves the right to amend the Plan and/or the terms of any outstanding Stock Options to the extent reasonably necessary to comply with the requirements of the exemption pursuant to paragraph (f)(4) of Rule 12h-1 of the Exchange Act.

 

 

SECTION 13. STATUS OF PLAN

 

With respect to the portion of any Award that has not been exercised and any payments in cash, Stock or other consideration not received by a grantee, a grantee shall have no rights greater than those of a general creditor of the Company unless the Committee shall otherwise expressly so determine in connection with any Award.

 

SECTION 14. GENERAL PROVISIONS

 

(a)          No Distribution; Compliance with Legal Requirements. The Committee may require each person acquiring Shares pursuant to an Award to represent to and agree with the Company in writing that such person is acquiring the Shares without a view to distribution thereof. No Shares shall be issued pursuant to an Award until all applicable securities law and other legal and stock exchange or similar requirements have been satisfied. The Committee may require the placing of such stop-orders and restrictive legends on certificates for Stock and Awards as it deems appropriate.

 

(b)          Delivery of Stock Certificates. Stock certificates to grantees under the Plan shall be deemed delivered for all purposes when the Company or a stock transfer agent of the Company shall have mailed such certificates in the United States mail, addressed to the grantee, at the grantee’s last known address on file with the Company; provided that stock certificates to be held in escrow pursuant to Section 9 of the Plan shall be deemed delivered when the Company shall have recorded the issuance in its records. Uncertificated Stock shall be deemed delivered for all purposes when the Company or a stock transfer agent of the Company shall have given to the grantee by electronic mail (with proof of receipt) or by United States mail, addressed to the grantee, at the grantee’s last known address on file with the Company, notice of issuance and recorded the issuance in its records (which may include electronic “book entry” records).

 

(c)          No Employment Rights. The adoption of the Plan and the grant of Awards do not confer upon any Person any right to continued employment or Service Relationship with the Company or any Subsidiary.

 

(d)          Trading Policy Restrictions. Option exercises and other Awards under the Plan shall be subject to the Company’s insider trading policy-related restrictions, terms and conditions as may be established by the Committee, or in accordance with policies set by the Committee, from time to time.

 

 

(e)          Legend. Any certificate(s) representing the Shares shall carry substantially the following legend (and with respect to uncertificated Stock, the book entries evidencing such shares shall contain the following notation):

 

The transferability of this certificate and the shares of stock represented hereby are subject to the restrictions, terms and conditions (including repurchase and restrictions against transfers) contained in the SpringWorks Therapeutics, Inc. 2019 Stock Option and Incentive Plan and any agreements entered into thereunder by and between the company and the holder of this certificate (a copy of which is available at the offices of the company for examination).

 

(f)          Information to Holders of Options. In the event the Company is relying on the exemption from the registration requirements of Section 12(g) of the Exchange Act contained in paragraph (f)(1) of Rule 12h-1 of the Exchange Act, the Company shall provide the information described in Rule 701(e)(3), (4) and (5) of the Securities Act to all holders of Options in accordance with the requirements thereunder. The foregoing notwithstanding, the Company shall not be required to provide such information unless the optionholder has agreed in writing, on a form prescribed by the Company, to keep such information confidential.

 

SECTION 15. EFFECTIVE DATE OF PLAN

 

The Plan shall become effective upon adoption by the Board and shall be approved by stockholders in accordance with applicable state law and the Company’s articles of incorporation and bylaws within 12 months thereafter. If the stockholders fail to approve the Plan within 12 months after its adoption by the Board of Directors, then any Awards granted or sold under the Plan shall be rescinded and no additional grants or sales shall thereafter be made under the Plan. Subject to such approval by stockholders and to the requirement that no Shares may be issued hereunder prior to such approval, Stock Options and other Awards may be granted hereunder on and after adoption of the Plan by the Board. No grants of Stock Options and other Awards may be made hereunder after the tenth anniversary of the date the Plan is adopted by the Board or the date the Plan is approved by the Company’s stockholders, whichever is earlier.

 

SECTION 16. GOVERNING LAW

 

This Plan, all Awards and any controversy arising out of or relating to this Plan and all Awards shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.

 

DATE ADOPTED BY THE BOARD OF DIRECTORS:	March 29, 2019
DATE APPROVED BY THE STOCKHOLDERS:	March 29, 2019

 

 

SPRINGWORKS THERAPEUTICS, INC.

AMENDMENT NO. 1 TO

2019 STOCK OPTION AND INCENTIVE PLAN

 

The SpringWorks Therapeutics, Inc. 2019 Stock Option and Incentive Plan, as amended (the “Plan”) is hereby amended by the Board of Directors as follows:

 

Section 3(a) of the Plan is hereby amended to increase the total number of Shares (as defined in the Plan) reserved and available for issuance under the Plan by 595,403 shares such that Section 3(a) of the Plan, as so amended, shall read in its entirety as follows:

 

SECTION 3. STOCK ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION

 

(a)           The maximum number of Shares reserved and available for issuance under the Plan shall be 35,424,393 Shares, subject to adjustment as provided in Section 3(b) (the “Pool Limit”). Subject to such overall limitations, Shares may be issued up to such maximum number pursuant to any type or types of Award, and no more than the Pool Limit may be issued pursuant to Incentive Stock Options. The Shares available for issuance under the Plan may be authorized but unissued Shares or Shares reacquired by the Company. Beginning on the date that the Company becomes subject to Section 162(m) of the Code, Options with respect to no more than 10,000,000 Shares shall be granted to any one individual in any calendar year period. For purposes of the Pool Limit Shares underlying any awards under the Plan that are forfeited, canceled, held back upon exercise of an Option or settlement of an Award to cover the exercise price or tax withholding, reacquired by the Company prior to vesting, satisfied without the issuance of Stock or otherwise terminated (other than by exercise) shall be added back to the shares of Stock available for issuance under the Plan and, to the extent permitted under Section 422 of the Code and the regulations promulgated thereunder, the shares of Stock that may be issued as Incentive Stock Options.

 

ADOPTED BY BOARD OF DIRECTORS: May 28, 2019

 

ADOPTED BY STOCKHOLDERS: June 4, 2019

 

 

SPRINGWORKS THERAPEUTICS, INC.

AMENDMENT NO. 2 TO

2019 STOCK OPTION AND INCENTIVE PLAN

 

The SpringWorks Therapeutics, Inc. 2019 Stock Option and Incentive Plan, as amended (the “Plan”) is hereby amended by the Board of Directors as follows:

 

Section 3(a) of the Plan is hereby amended to increase the total number of Shares (as defined in the Plan) reserved and available for issuance under the Plan by 8,669,604 shares such that Section 3(a) of the Plan, as so amended, shall read in its entirety as follows:

 

SECTION 3.    STOCK ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION

 

(a)           The maximum number of Shares reserved and available for issuance under the Plan shall be 44,093,997 Shares, subject to adjustment as provided in Section 3(b) (the “Pool Limit”). Subject to such overall limitations, Shares may be issued up to such maximum number pursuant to any type or types of Award, and no more than the Pool Limit may be issued pursuant to Incentive Stock Options. The Shares available for issuance under the Plan may be authorized but unissued Shares or Shares reacquired by the Company. Beginning on the date that the Company becomes subject to Section 162(m) of the Code, Options with respect to no more than 10,000,000 Shares shall be granted to any one individual in any calendar year period. For purposes of the Pool Limit Shares underlying any awards under the Plan that are forfeited, canceled, held back upon exercise of an Option or settlement of an Award to cover the exercise price or tax withholding, reacquired by the Company prior to vesting, satisfied without the issuance of Stock or otherwise terminated (other than by exercise) shall be added back to the shares of Stock available for issuance under the Plan and, to the extent permitted under Section 422 of the Code and the regulations promulgated thereunder, the shares of Stock that may be issued as Incentive Stock Options.

 

ADOPTED BY BOARD OF DIRECTORS: July 17, 2019

 

ADOPTED BY STOCKHOLDERS: July 26, 2019

 

 

INCENTIVE STOCK OPTION GRANT NOTICE

UNDER THE springworks therapeutics, inc.
2019 STOCK OPTION AND INCENTIVE PLAN

 

Pursuant to the SpringWorks Therapeutics, Inc. 2019 Stock Option and Incentive Plan (the “Plan”), SpringWorks Therapeutics, Inc., a Delaware corporation (together with any successor, the “Company”), has granted to the individual named below, an option (the “Stock Option”) to purchase on or prior to the Expiration Date, or such earlier date as is specified herein, all or any part of the number of shares of Common Stock, par value $0.0001 per share (“Common Stock”), of the Company indicated below (the “Shares”), at the Option Exercise Price per share, subject to the terms and conditions set forth in this Incentive Stock Option Grant Notice (the “Grant Notice”), the attached Incentive Stock Option Agreement (the “Agreement”) and the Plan. This Stock Option is intended to qualify as an “incentive stock option” as defined in Section 422(b) of the Internal Revenue Code of 1986, as amended from time to time (the “Code”). To the extent that any portion of the Stock Option does not so qualify, it shall be deemed a non-qualified stock option.

 

Name of Optionee:	[           ] (the “Optionee”)
No. of Shares:	[           ] Shares of Common Stock
Grant Date:	[           ]
Vesting Commencement Date:	[           ] (the “Vesting Commencement Date”)
Expiration Date:	[           ] (the “Expiration Date”)
Option Exercise Price/Share:	$[           ] (the “Option Exercise Price”)
Vesting Schedule:	Twenty-five percent (25%) of the Stock Options shall vest and become exercisable  on the first anniversary of the Vesting Commencement Date, provided that the Optionee continues to have a Service Relationship with the Company at such time. Thereafter, the remaining 75 percent of the Stock Options shall vest and become exercisable in 36 equal monthly installments following the first anniversary of the Vesting Commencement Date, provided the Optionee continues to have a Service Relationship with the Company on each vesting date. Notwithstanding anything in the Agreement to the contrary, in the case of a Sale Event, this Stock Option and the Shares shall be treated as provided in Section 3(c) of the Plan.

 

Attachments: Incentive Stock Option Agreement, 2019 Stock Option and Incentive Plan

 

 

INCENTIVE STOCK OPTION AGREEMENT
UNDER THE SPRINGWORKS therapeutics, inc. 2019 STOCK
OPTION AND INCENTIVE PLAN

 

All capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Grant Notice and the Plan.

 

1.          Vesting, Exercisability and Termination.

 

(a)          No portion of this Stock Option may be exercised until such portion shall have vested and become exercisable.

 

(b)          Except as set forth below, and subject to the determination of the Committee in its sole discretion to accelerate the vesting schedule hereunder, this Stock Option shall be vested and exercisable on the respective dates indicated below:

 

(i)          This Stock Option shall initially be unvested and unexercisable.

 

(ii)         This Stock Option shall vest and become exercisable in accordance with the Vesting Schedule set forth in the Grant Notice.

 

(c)          Termination. Except as may otherwise be provided by the Committee, if the Optionee’s Service Relationship is terminated, the period within which to exercise this Stock Option will be subject to earlier termination as set forth below (and if not exercised within such period, shall thereafter terminate subject, in each case, to Section 3(c) of the Plan):

 

(i)          Termination Due to Death or Disability. If the Optionee’s Service Relationship terminates by reason of such Optionee’s death or Disability, this Stock Option may be exercised, to the extent exercisable on the date of such termination, by the Optionee, the Optionee’s legal representative or legatee for a period of 12 months from the date of death or Disability or until the Expiration Date, if earlier.

 

(ii)         Other Termination. If the Optionee’s Service Relationship terminates for any reason other than death or Disability, and unless otherwise determined by the Committee, this Stock Option may be exercised, to the extent exercisable on the date of termination, for a period of 90 days from the date of termination or until the Expiration Date, if earlier; provided, however, if the Optionee’s Service Relationship is terminated for Cause, this Stock Option shall terminate immediately upon the date of such termination.

 

For purposes hereof, the Committee’s determination of the reason for termination of the Optionee’s Service Relationship shall be conclusive and binding on the Optionee and his or her representatives or legatees. Any portion of this Stock Option that is not vested and exercisable on the date of termination of the Service Relationship shall terminate immediately and be null and void.

 

 

(d)          It is understood and intended that this Stock Option is intended to qualify as an “incentive stock option” as defined in Section 422 of the Code to the extent permitted under applicable law. Accordingly, the Optionee understands that in order to obtain the benefits of an incentive stock option under Section 422 of the Code, no sale or other disposition may be made of Shares for which incentive stock option treatment is desired within the one-year period beginning on the day after the day of the transfer of such Shares to him or her, nor within the two-year period beginning on the day after Grant Date of this Stock Option and further that this Stock Option must be exercised within three months days after termination of employment as an employee (or 12 months in the case of death or Disability) to qualify as an incentive stock option. If the Optionee disposes (whether by sale, gift, transfer or otherwise) of any such Shares within either of these periods, he or she will notify the Company within 30 days after such disposition. The Optionee also agrees to provide the Company with any information concerning any such dispositions required by the Company for tax purposes. Further, to the extent this Stock Option and any other incentive stock options of the Optionee having an aggregate Fair Market Value in excess of $100,000 (determined as of the Grant Date) first become exercisable in any year, such options will not qualify as incentive stock options.

 

2.          Exercise of Stock Option.

 

(a)          The Optionee may exercise this Stock Option only in the following manner: Prior to the Expiration Date, the Optionee may deliver a Stock Option exercise notice (an “Exercise Notice”) in the form of Appendix A hereto indicating his or her election to purchase some or all of the Shares with respect to which this Stock Option is then exercisable. Such notice shall specify the number of Shares to be purchased. Payment of the purchase price may be made by one or more of the methods described in Section 5 of the Plan, subject to the limitations contained in such Section of the Plan, including the requirement that the Committee specifically approve in advance certain payment methods.

 

(b)          Notwithstanding any other provision hereof or of the Plan, no portion of this Stock Option shall be exercisable after the Expiration Date.

 

3.          Incorporation of Plan. Notwithstanding anything herein to the contrary, this Stock Option shall be subject to and governed by all the terms and conditions of the Plan.

 

4.          Transferability of Stock Option. This Stock Option is personal to the Optionee and is not transferable by the Optionee in any manner other than by will or by the laws of descent and distribution. The Stock Option may be exercised during the Optionee’s lifetime only by the Optionee (or by the Optionee’s guardian or personal representative in the event of the Optionee’s incapacity). Following the Optionee's death, this Stock Option may be exercised by the Optionee's legal representative or legatee for the period set forth in Section 1(c)(i) of this Agreement.

 

5.          Restrictions on Transfer of Shares. The Shares acquired upon exercise of the Stock Option shall be subject to certain transfer restrictions and other limitations including, without limitation, the provisions contained in Section 9 of the Plan.

 

 

6.          Miscellaneous Provisions.

 

(a)          Equitable Relief. The parties hereto agree and declare that legal remedies may be inadequate to enforce the provisions of this Agreement and that equitable relief, including specific performance and injunctive relief, may be used to enforce the provisions of this Agreement.

 

(b)          Adjustments for Changes in Capital Structure. If, as a result of any reorganization, recapitalization, reincorporation, reclassification, stock dividend, stock split, reverse stock split or other similar change in the Common Stock, the outstanding shares of Common Stock are increased or decreased or are exchanged for a different number or kind of securities of the Company, the restrictions contained in this Agreement shall apply with equal force to additional and/or substitute securities, if any, received by the Optionee in exchange for, or by virtue of his or her ownership of, this Stock Option or Shares acquired pursuant thereto.

 

(c)          Change and Modifications. This Agreement may not be orally changed, modified or terminated, nor shall any oral waiver of any of its terms be effective. This Agreement may be changed, modified or terminated only by an agreement in writing signed by the Company and the Optionee.

 

(d)          Governing Law. This Agreement shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.

 

(e)          Headings. The headings are intended only for convenience in finding the subject matter and do not constitute part of the text of this Agreement and shall not be considered in the interpretation of this Agreement.

 

(f)          Saving Clause. If any provision(s) of this Agreement shall be determined to be illegal or unenforceable, such determination shall in no manner affect the legality or enforceability of any other provision hereof.

 

(g)          Notices. All notices, requests, consents and other communications shall be in writing and be deemed given when delivered personally, by telex or facsimile transmission or when received if mailed by first class registered or certified mail, postage prepaid. Notices to the Company or the Optionee shall be addressed as set forth underneath their signatures below, or to such other address or addresses as may have been furnished by such party in writing to the other.

 

(h)          Benefit and Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their respective successors, assigns, and legal representatives. The Company has the right to assign this Agreement, and such assignee shall become entitled to all the rights of the Company hereunder to the extent of such assignment.

 

 

(i)          Counterparts. For the convenience of the parties and to facilitate execution, this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document.

 

(j)          Integration. This Agreement constitutes the entire agreement between the parties with respect to this Stock Option and supersedes all prior agreements and discussions between the parties concerning such subject matter.

 

7.          Dispute Resolution.

 

(a)          Except as provided below, any dispute arising out of or relating to the Plan or this Stock Option, this Agreement, or the breach, termination or validity of the Plan, this Stock Option or this Agreement, shall be finally settled by binding arbitration conducted expeditiously in accordance with the J.A.M.S./Endispute Comprehensive Arbitration Rules and Procedures (the “J.A.M.S. Rules”). The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Sections 1 16, and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be New York, New York.

 

(b)          The arbitration shall commence within 60 days of the date on which a written demand for arbitration is filed by any party hereto. In connection with the arbitration proceeding, the arbitrator shall have the power to order the production of documents by each party and any third-party witnesses. In addition, each party may take up to three depositions as of right, and the arbitrator may in his or her discretion allow additional depositions upon good cause shown by the moving party. However, the arbitrator shall not have the power to order the answering of interrogatories or the response to requests for admission. In connection with any arbitration, each party to the arbitration shall provide to the other, no later than seven business days before the date of the arbitration, the identity of all persons that may testify at the arbitration and a copy of all documents that may be introduced at the arbitration or considered or used by a party’s witness or expert. The arbitrator’s decision and award shall be made and delivered within six months of the selection of the arbitrator. The arbitrator’s decision shall set forth a reasoned basis for any award of damages or finding of liability. The arbitrator shall not have power to award damages in excess of actual compensatory damages and shall not multiply actual damages or award punitive damages, and each party hereby irrevocably waives any claim to such damages.

 

(c)          The Company, the Optionee, each party to the Agreement and any other holder of Shares issued pursuant to this Agreement (each, a “Party”) covenants and agrees that such party will participate in the arbitration in good faith. This Section 7 applies equally to requests for temporary, preliminary or permanent injunctive relief, except that in the case of temporary or preliminary injunctive relief any party may proceed in court without prior arbitration for the limited purpose of avoiding immediate and irreparable harm.

 

 

(d)          Each Party (i) hereby irrevocably submits to the jurisdiction of any United States District Court of competent jurisdiction for the purpose of enforcing the award or decision in any such proceeding, (ii) hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above named courts, that its property is exempt or immune from attachment or execution (except as protected by applicable law), that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court, and (iii) hereby waives and agrees not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such court. Each Party hereby consents to service of process by registered mail at the address to which notices are to be given. Each Party agrees that its, his or her submission to jurisdiction and its, his or her consent to service of process by mail is made for the express benefit of each other Party. Final judgment against any Party in any such action, suit or proceeding may be enforced in other jurisdictions by suit, action or proceeding on the judgment, or in any other manner provided by or pursuant to the laws of such other jurisdiction.

 

8.          Waiver of Statutory Information Rights. The Optionee understands and agrees that, but for the waiver made herein, the Optionee would be entitled, upon written demand under oath stating the purpose thereof, to inspect for any proper purpose, and to make copies and extracts from, the Company’s stock ledger, a list of its stockholders, and its other books and records, and the books and records of subsidiaries of the Company, if any, under the circumstances and in the manner provided in Section 220 of the General Corporation Law of Delaware (any and all such rights, and any and all such other rights of the Optionee as may be provided for in Section 220, the “Inspection Rights”). In light of the foregoing, until the first sale of Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act, the Optionee hereby unconditionally and irrevocably waives the Inspection Rights, whether such Inspection Rights would be exercised or pursued directly or indirectly pursuant to Section 220 or otherwise, and covenants and agrees never to directly or indirectly commence, voluntarily aid in any way, prosecute, assign, transfer, or cause to be commenced any claim, action, cause of action, or other proceeding to pursue or exercise the Inspection Rights. The foregoing waiver shall not affect any rights of a director, in his or her capacity as such, under Section 220. The foregoing waiver shall not apply to any contractual inspection rights of the Optionee under any other written agreement between the Optionee and the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

 

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned as of the date first above written.

 

	SPRINGWORKS THERAPEUTICS, INC.
	By:
		Name:
		Title:
	Address:
	100 Washington Blvd.
	Stamford, CT 06902

 

[Signature Page to SpringWorks Therapeutics, Inc. ISO Award]

 

 

The undersigned hereby acknowledges receiving and reviewing a copy of the Plan, including, without limitation, Section 9 thereof, and understands that this Stock Option is subject to the terms of the Plan and of this Agreement. This Agreement is hereby accepted, and the terms and conditions of the Plan, the Grant Notice and this Agreement, SPECIFICALLY INCLUDING THE ARBITRATION PROVISIONS SET FORTH IN SECTION 7 AND THE WAIVER OF STATUTORY INFORMATION RIGHTS SET FORTH IN SECTION 8 OF THIS AGREEMENT, are hereby agreed to, by the undersigned as of the date first above written.

 

	OPTIONEE:
	Name:
	Address:

 

SPOUSE’S CONSENT

I acknowledge that I have read the

foregoing Incentive Stock Option Agreement

and understand the contents thereof.

 

 

Appendix A

 

STOCK OPTION EXERCISE NOTICE

 

SpringWorks Therapeutics, Inc.

Attention: Michael Greco

100 Washington Blvd

Stamford, CT 06902

 

Pursuant to the terms of the grant notice and stock option agreement between the undersigned and SpringWorks Therapeutics, Inc. (the “Company”) dated [ ] (the “Agreement”) under the SpringWorks Therapeutics, Inc. 2019 Stock Option and Incentive Plan, I, [ ], hereby [Circle One] partially/fully exercise such option by including herein payment in the amount of $______ representing the purchase price for [Fill in number of Shares] _______ Shares. I have chosen the following form(s) of payment:

 

[Signature Page to SpringWorks Therapeutics, Inc. ISO Award]

 

 

[ ]	1.          Cash
[ ]	2.          Certified or bank check payable to SpringWorks Therapeutics, Inc.
[ ]	3.          Other (as referenced in the Agreement and described in the Plan (please describe))

 

In connection with my exercise of the option as set forth above, I hereby represent and warrant to the Company as follows:

 

(i)          I am purchasing the Shares for my own account for investment only, and not for resale or with a view to the distribution thereof.

 

(ii)         I have had such an opportunity as I have deemed adequate to obtain from the Company such information as is necessary to permit me to evaluate the merits and risks of my investment in the Company and have consulted with my own advisers with respect to my investment in the Company.

 

(iii)        I have sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the purchase of the Shares and to make an informed investment decision with respect to such purchase.

 

(iv)        I can afford a complete loss of the value of the Shares and am able to bear the economic risk of holding such Shares for an indefinite period of time.

 

(v)         I understand that the Shares may not be registered under the Securities Act of 1933 (it being understood that the Shares are being issued and sold in reliance on the exemption provided in Rule 701 thereunder) or any applicable state securities or “blue sky” laws and may not be sold or otherwise transferred or disposed of in the absence of an effective registration statement under the Securities Act of 1933 and under any applicable state securities or “blue sky” laws (or exemptions from the registration requirement thereof). I further acknowledge that certificates representing Shares will bear restrictive legends reflecting the foregoing and/or that book entries for uncertificated Shares will include similar restrictive notations.

 

(vi)        I have read and understand the Plan and acknowledge and agree that the Shares are subject to all of the relevant terms of the Plan, including without limitation, the transfer restrictions set forth in Section 9 of the Plan.

 

(vii)       I understand and agree that the Company has a right of first refusal with respect to the Shares pursuant to Section 9(b) of the Plan.

 

(viii)      I understand and agree that the Company has certain repurchase rights with respect to the Shares pursuant to Section 9(c) of the Plan.

 

 

(ix)         I understand and agree that I may not sell or otherwise transfer or dispose of the Shares for a period of time following the effective date of a public offering by the Company as described in Section 9(f) of the Plan.

 

(x)          I understand and agree to the waiver of statutory information rights as set forth in Section 8 of the Agreement.

 

(xi)         I understand and agree that, if requested by the Company at its sole discretion, as a condition to the issuance of the Shares hereunder, I will become a party to:

 

(A)         that certain Right of First Refusal and Co-Sale Agreement between the Company and certain of its stockholders dated as of March 29, 2019, for so long as such agreement is in effect and as the same may be amended or amended and restated from time to time (the “Right of First Refusal and Co-Sale Agreement”), and I shall thereby be bound by, and subject to, all the terms and provisions of the Right of First Refusal and Co-Sale Agreement applicable to a Key Holder thereunder, and that I will execute a counterpart signature page thereto, promptly upon such request; and

 

(B)         that certain Voting Agreement between the Company and certain of its stockholders dated as of March 29, 2019, for so long as such agreement is in effect and as the same may be amended or amended and restated from time to time (the “Voting Agreement”), and I shall thereby be bound by, and subject to, all the terms and provisions of the Voting Agreement applicable to a Key Holder thereunder, and that I will execute an Adoption Agreement thereto, promptly upon such request.

 

	Sincerely yours,
	Name:
	Address:
	Date:

 

 

NON-QUALIFIED STOCK OPTION GRANT NOTICE

UNDER THE SpringWorks Therapeutics, Inc.
2019 STOCK OPTION AND INCENTIVE PLAN

 

Pursuant to the SpringWorks Therapeutics, Inc. 2019 Stock Option and Incentive Plan (the “Plan”), SpringWorks Therapeutics, Inc., a Delaware corporation (together with any successor, the “Company”), has granted to the individual named below, an option (the “Stock Option”) to purchase on or prior to the Expiration Date, or such earlier date as is specified herein, all or any part of the number of shares of Common Stock, par value $0.0001 per share (“Common Stock”), of the Company indicated below (the “Shares”), at the Option Exercise Price per share, subject to the terms and conditions set forth in this Non-Qualified Stock Option Grant Notice (the “Grant Notice”), the attached Non-Qualified Stock Option Agreement (the “Agreement”) and the Plan. This Stock Option is not intended to qualify as an “incentive stock option” as defined in Section 422(b) of the Internal Revenue Code of 1986, as amended from time to time (the “Code”).

 

Name of Optionee:	__________________ (the “Optionee”)
No. of Shares:	__________ Shares of Common Stock
Grant Date:	__________________
Vesting Commencement Date:	__________________ (the “Vesting Commencement Date”)
Expiration Date:	__________________ (the “Expiration Date”)
Option Exercise Price/Share:	$_________________ (the “Option Exercise Price”)
Vesting Schedule:	Twenty-five percent (25%) of the Shares shall vest and become exercisable on the first anniversary of the Vesting Commencement Date; provided that the Optionee continues to have a Service Relationship with the Company at such time. Thereafter, the remaining 75 percent of the Shares shall vest and become exercisable in 36 equal monthly installments following the first anniversary of the Vesting Commencement Date, provided the Optionee continues to have a Service Relationship with the Company on each vesting date.  Notwithstanding anything in the Agreement to the contrary, in the case of a Sale Event, this Stock Option and the Shares shall be treated as provided in Section 3(c) of the Plan.

 

Attachments: Non-Qualified Stock Option Agreement, 2019 Stock Option and Incentive Plan

 

 

NON-QUALIFIED STOCK OPTION AGREEMENT
UNDER THE SpringWorks Therapeutics, Inc.
2019 STOCK OPTION AND INCENTIVE PLAN

 

All capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Grant Notice and the Plan.

 

1.          Vesting, Exercisability and Termination.

 

(a)          No portion of this Stock Option may be exercised until such portion shall have vested and become exercisable.

 

(b)          Except as set forth below, and subject to the determination of the Committee in its sole discretion to accelerate the vesting schedule hereunder, this Stock Option shall be vested and exercisable on the respective dates indicated below:

 

(i)          This Stock Option shall initially be unvested and unexercisable.

 

(ii)         This Stock Option shall vest and become exercisable in accordance with the Vesting Schedule set forth in the Grant Notice.

 

(c)          Termination. Except as may otherwise be provided by the Committee, if the Optionee’s Service Relationship is terminated, the period within which to exercise this Stock Option will be subject to earlier termination as set forth below (and if not exercised within such period, shall thereafter terminate subject, in each case, to Section 3(c) of the Plan):

 

(i)          Termination Due to Death or Disability. If the Optionee’s Service Relationship terminates by reason of such Optionee’s death or Disability, this Stock Option may be exercised, to the extent exercisable on the date of such termination, by the Optionee, the Optionee’s legal representative or legatee for a period of 12 months from the date of death or Disability or until the Expiration Date, if earlier.

 

(ii)         Other Termination. If the Optionee’s Service Relationship terminates for any reason other than death or Disability, and unless otherwise determined by the Committee, this Stock Option may be exercised, to the extent exercisable on the date of termination, for a period of 90 days from the date of termination or until the Expiration Date, if earlier; provided, however, if the Optionee’s Service Relationship is terminated for Cause, this Stock Option shall terminate immediately upon the date of such termination.

 

For purposes hereof, the Committee’s determination of the reason for termination of the Optionee’s Service Relationship shall be conclusive and binding on the Optionee and his or her representatives or legatees and any Permitted Transferee. Any portion of this Stock Option that is not vested and exercisable on the date of termination of the Service Relationship shall terminate immediately and be null and void.

 

 

2.          Exercise of Stock Option.

 

(a)          The Optionee may exercise this Stock Option only in the following manner: Prior to the Expiration Date, the Optionee may deliver a Stock Option exercise notice (an “Exercise Notice”) in the form of Appendix A hereto indicating his or her election to purchase some or all of the Shares with respect to which this Stock Option is then exercisable. Such notice shall specify the number of Shares to be purchased. Payment of the purchase price may be made by one or more of the methods described in Section 5 of the Plan, subject to the limitations contained in such Section of the Plan, including the requirement that the Committee specifically approve in advance certain payment methods.

 

(b)          Notwithstanding any other provision hereof or of the Plan, no portion of this Stock Option shall be exercisable after the Expiration Date.

 

3.          Incorporation of Plan. Notwithstanding anything herein to the contrary, this Stock Option shall be subject to and governed by all the terms and conditions of the Plan.

 

4.          Transferability of Stock Option. This Stock Option is personal to the Optionee and is not transferable by the Optionee in any manner other than by will or by the laws of descent and distribution. The Stock Option may be exercised during the Optionee’s lifetime only by the Optionee (or by the Optionee’s guardian or personal representative in the event of the Optionee’s incapacity). Following the Optionee's death, this Stock Option may be exercised by the Optionee's legal representative or legatee for the period set forth in Section 1(c)(i) of this Agreement.

 

5.          Restrictions on Transfer of Shares. The Shares acquired upon exercise of the Stock Option shall be subject to certain transfer restrictions and other limitations including, without limitation, the provisions contained in Section 9 of the Plan.

 

6.          Miscellaneous Provisions.

 

(a)          Equitable Relief. The parties hereto agree and declare that legal remedies may be inadequate to enforce the provisions of this Agreement and that equitable relief, including specific performance and injunctive relief, may be used to enforce the provisions of this Agreement.

 

(b)          Adjustments for Changes in Capital Structure. If, as a result of any reorganization, recapitalization, reincorporation, reclassification, stock dividend, stock split, reverse stock split or other similar change in the Common Stock, the outstanding shares of Common Stock are increased or decreased or are exchanged for a different number or kind of securities of the Company, the restrictions contained in this Agreement shall apply with equal force to additional and/or substitute securities, if any, received by the Optionee in exchange for, or by virtue of his or her ownership of, this Stock Option or Shares acquired pursuant thereto.

 

(c)          Change and Modifications. This Agreement may not be orally changed, modified or terminated, nor shall any oral waiver of any of its terms be effective. This Agreement may be changed, modified or terminated only by an agreement in writing signed by the Company and the Optionee.

 

 

(d)          Governing Law. This Agreement shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.

 

(e)          Headings. The headings are intended only for convenience in finding the subject matter and do not constitute part of the text of this Agreement and shall not be considered in the interpretation of this Agreement.

 

(f)          Saving Clause. If any provision(s) of this Agreement shall be determined to be illegal or unenforceable, such determination shall in no manner affect the legality or enforceability of any other provision hereof.

 

(g)          Notices. All notices, requests, consents and other communications shall be in writing and be deemed given when delivered personally, by telex or facsimile transmission or when received if mailed by first class registered or certified mail, postage prepaid. Notices to the Company or the Optionee shall be addressed as set forth underneath their signatures below, or to such other address or addresses as may have been furnished by such party in writing to the other.

 

(h)          Benefit and Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their respective successors, assigns, and legal representatives. The Company has the right to assign this Agreement, and such assignee shall become entitled to all the rights of the Company hereunder to the extent of such assignment.

 

(i)          Counterparts. For the convenience of the parties and to facilitate execution, this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document.

 

(j)          Integration. This Agreement constitutes the entire agreement between the parties with respect to this Stock Option and supersedes all prior agreements and discussions between the parties concerning such subject matter.

 

7.          Dispute Resolution.

 

(a)          Except as provided below, any dispute arising out of or relating to the Plan or this Stock Option, this Agreement, or the breach, termination or validity of the Plan, this Stock Option or this Agreement, shall be finally settled by binding arbitration conducted expeditiously in accordance with the J.A.M.S./Endispute Comprehensive Arbitration Rules and Procedures (the “J.A.M.S. Rules”). The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Sections 1-16, and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be New York, New York.

 

 

(b)          The arbitration shall commence within 60 days of the date on which a written demand for arbitration is filed by any party hereto. In connection with the arbitration proceeding, the arbitrator shall have the power to order the production of documents by each party and any third-party witnesses. In addition, each party may take up to three depositions as of right, and the arbitrator may in his or her discretion allow additional depositions upon good cause shown by the moving party. However, the arbitrator shall not have the power to order the answering of interrogatories or the response to requests for admission. In connection with any arbitration, each party to the arbitration shall provide to the other, no later than seven business days before the date of the arbitration, the identity of all persons that may testify at the arbitration and a copy of all documents that may be introduced at the arbitration or considered or used by a party’s witness or expert. The arbitrator’s decision and award shall be made and delivered within six months of the selection of the arbitrator. The arbitrator’s decision shall set forth a reasoned basis for any award of damages or finding of liability. The arbitrator shall not have power to award damages in excess of actual compensatory damages and shall not multiply actual damages or award punitive damages, and each party hereby irrevocably waives any claim to such damages.

 

(c)          The Company, the Optionee, each party to the Agreement and any other holder of Shares issued pursuant to this Agreement (each, a “Party”) covenants and agrees that such party will participate in the arbitration in good faith. This Section 7 applies equally to requests for temporary, preliminary or permanent injunctive relief, except that in the case of temporary or preliminary injunctive relief any party may proceed in court without prior arbitration for the limited purpose of avoiding immediate and irreparable harm.

 

(d)          Each Party (i) hereby irrevocably submits to the jurisdiction of any United States District Court of competent jurisdiction for the purpose of enforcing the award or decision in any such proceeding, (ii) hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above named courts, that its property is exempt or immune from attachment or execution (except as protected by applicable law), that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court, and (iii) hereby waives and agrees not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such court. Each Party hereby consents to service of process by registered mail at the address to which notices are to be given. Each Party agrees that its, his or her submission to jurisdiction and its, his or her consent to service of process by mail is made for the express benefit of each other Party. Final judgment against any Party in any such action, suit or proceeding may be enforced in other jurisdictions by suit, action or proceeding on the judgment, or in any other manner provided by or pursuant to the laws of such other jurisdiction.

 

8.          Waiver of Statutory Information Rights. The Optionee understands and agrees that, but for the waiver made herein, the Optionee would be entitled, upon written demand under oath stating the purpose thereof, to inspect for any proper purpose, and to make copies and extracts from, the Company’s stock ledger, a list of its stockholders, and its other books and records, and the books and records of subsidiaries of the Company, if any, under the circumstances and in the manner provided in Section 220 of the General Corporation Law of Delaware (any and all such rights, and any and all such other rights of the Optionee as may be provided for in Section 220, the “Inspection Rights”). In light of the foregoing, until the first sale of Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act, the Optionee hereby unconditionally and irrevocably waives the Inspection Rights, whether such Inspection Rights would be exercised or pursued directly or indirectly pursuant to Section 220 or otherwise, and covenants and agrees never to directly or indirectly commence, voluntarily aid in any way, prosecute, assign, transfer, or cause to be commenced any claim, action, cause of action, or other proceeding to pursue or exercise the Inspection Rights. The foregoing waiver shall not affect any rights of a director, in his or her capacity as such, under Section 220. The foregoing waiver shall not apply to any contractual inspection rights of the Optionee under any other written agreement between the Optionee and the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

 

The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned as of the date first above written.

 

	SpringWorks Therapeutics, Inc.
	By:
		Name:
		Title:
	Address:

 

The undersigned hereby acknowledges receiving and reviewing a copy of the Plan, including, without limitation, Section 9 thereof, and understands that this Stock Option is subject to the terms of the Plan and of this Agreement. This Agreement is hereby accepted, and the terms and conditions of the Plan, the Grant Notice and this Agreement, SPECIFICALLY INCLUDING THE ARBITRATION PROVISIONS SET FORTH IN SECTION 7 AND THE WAIVER OF STATUTORY INFORMATION RIGHTS SET FORTH IN SECTION 8 OF THIS AGREEMENT, are hereby agreed to, by the undersigned as of the date first above written.

 

	OPTIONEE:
	Name:
	Address:

 

 

[SPOUSE’S CONSENT¹

I acknowledge that I have read the

foregoing Non-Qualified Stock Option Agreement

and understand the contents thereof.

 

____________________________________]

 

 

¹ A spouse’s consent is recommended only if the Optionee’s state of residence is one of the following community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

 

 

 

	DESIGNATED BENEFICIARY:
	Beneficiary’s Address:

 

 

Appendix A

 

STOCK OPTION EXERCISE NOTICE

 

SpringWorks Therapeutics, Inc.

Attention: [____________________]

____________________________

____________________________

 

Pursuant to the terms of the grant notice and stock option agreement between the undersigned and SpringWorks Therapeutics, Inc. (the “Company”) dated __________ (the “Agreement”) under the SpringWorks Therapeutics, Inc. 2019 Stock Option and Incentive Plan, I, [Insert Name] ________________, hereby [Circle One] partially/fully exercise such option by including herein payment in the amount of $______ representing the purchase price for [Fill in number of Shares] _______ Shares. I have chosen the following form(s) of payment:

 

[ ]	1.	Cash
[ ]	2.	Certified or bank check payable to SpringWorks Therapeutics, Inc.
[ ]	3.	Other (as referenced in the Agreement and described in the Plan (please describe))

 

In connection with my exercise of the option as set forth above, I hereby represent and warrant to the Company as follows:

 

(i)          I am purchasing the Shares for my own account for investment only, and not for resale or with a view to the distribution thereof.

 

(ii)         I have had such an opportunity as I have deemed adequate to obtain from the Company such information as is necessary to permit me to evaluate the merits and risks of my investment in the Company and have consulted with my own advisers with respect to my investment in the Company.

 

(iii)        I have sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the purchase of the Shares and to make an informed investment decision with respect to such purchase.

 

(iv)        I can afford a complete loss of the value of the Shares and am able to bear the economic risk of holding such Shares for an indefinite period of time.

 

(v)         I understand that the Shares may not be registered under the Securities Act of 1933 (it being understood that the Shares are being issued and sold in reliance on the exemption provided in Rule 701 thereunder) or any applicable state securities or “blue sky” laws and may not be sold or otherwise transferred or disposed of in the absence of an effective registration statement under the Securities Act of 1933 and under any applicable state securities or “blue sky” laws (or exemptions from the registration requirement thereof). I further acknowledge that certificates representing Shares will bear restrictive legends reflecting the foregoing and/or that book entries for uncertificated Shares will include similar restrictive notations.

 

 

(vi)        I have read and understand the Plan and acknowledge and agree that the Shares are subject to all of the relevant terms of the Plan, including without limitation, the transfer restrictions set forth in Section 9 of the Plan.

 

(vii)       I understand and agree that the Company has a right of first refusal with respect to the Shares pursuant to Section 9(b) of the Plan.

 

(viii)      I understand and agree that the Company has certain repurchase rights with respect to the Shares pursuant to Section 9(c) of the Plan.

 

(ix)         I understand and agree that I may not sell or otherwise transfer or dispose of the Shares for a period of time following the effective date of a public offering by the Company as described in Section 9(f) of the Plan.

 

(x)          I understand and agree to the waiver of statutory information rights as set forth in Section 8 of the Agreement.

 

(xi)         I understand and agree that, if requested by the Company at its sole discretion, as a condition to the issuance of the Shares hereunder, I will become a party to:

 

(A)         that certain Right of First Refusal and Co-Sale Agreement between the Company and certain of its stockholders dated as of March 29, 2019, for so long as such agreement is in effect and as the same may be amended or amended and restated from time to time (the “Right of First Refusal and Co-Sale Agreement”), and I shall thereby be bound by, and subject to, all the terms and provisions of the Right of First Refusal and Co-Sale Agreement applicable to a Key Holder thereunder, and that I will execute a counterpart signature page thereto promptly upon such request; and

 

(B)         that certain Voting Agreement between the Company and certain of its stockholders dated as of March 29, 2019, for so long as such agreement is in effect and as the same may be amended or amended and restated from time to time (the “Voting Agreement”), and I shall thereby be bound by, and subject to, all the terms and provisions of the Voting Agreement applicable to a Key Holder thereunder, and that I will execute an Adoption Agreement thereto promptly upon such request.

 

 

	Sincerely yours,
	Name:
	Address:
	Date:

 

 

Restricted Stock AWARD NOTICE
UNDER THE SPRINGWORKS THERAPEUTICS, INC.
2019 Stock Option and Incentive Plan

 

Pursuant to the SpringWorks Therapeutics, Inc. 2019 Stock Option and Incentive Plan (the “Plan”), SpringWorks Therapeutics, Inc., a Delaware corporation (together with any successor, the “Company”), hereby grants and issues to the individual named below, the Shares (as defined below), subject to the terms and conditions set forth in this Restricted Stock Award Notice (the “Award Notice”), the attached Restricted Stock Agreement (the “Agreement”) and the Plan. The Grantee agrees to the provisions set forth herein and acknowledges that each such provision is a material condition of the Company’s agreement to issue the Shares to him or her. All references to share prices and amounts herein shall be equitably adjusted to reflect stock splits, stock dividends, recapitalizations, mergers, reorganizations and similar changes affecting the capital stock of the Company, and any shares of capital stock of the Company received on or in respect of Shares in connection with any such event (including any shares of capital stock or any right, option or warrant to receive the same or any security convertible into or exchangeable for any such shares or received upon conversion of any such shares) shall be subject to this Agreement on the same basis and extent at the relevant time as the Shares in respect of which they were issued, and shall be deemed Shares as if and to the same extent they were issued at the date hereof.

 

Name of Grantee:	_________  (the “Grantee”)
No. of Shares:	_________ Shares of Common Stock (the “Shares”)
Grant Date:	____________,
Date of Receipt of Shares:	____________,
Vesting Commencement Date:	__________ (the “Vesting Commencement Date”)
Vesting Schedule:	Twenty-five percent (25%) of the Shares shall vest on the first anniversary of the Vesting Commencement Date; provided that the Grantee continues to have a Service Relationship with the Company at such time.  Thereafter, the remaining 75 percent of the Shares shall vest in 36 equal monthly installments following the first anniversary of the Vesting Commencement Date, provided the Grantee continues to have a Service Relationship with the Company at such time.  Notwithstanding anything in the Agreement to the contrary in the case of a Sale Event, the Shares of Restricted Stock shall be treated as provided in Section 3(c) of the Plan.

 

Attachments: Restricted Stock Agreement, 2019 Stock Option and Incentive Plan

 

 

Restricted Stock Agreement
under the springworks THERAPEUTICS, inc.
2019 Stock Option and Incentive Plan

 

All capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Award Notice and the Plan.

 

1.           Vesting; Investment Representations.

 

(a)          Issuance. The Company hereby issues to the Grantee, and the Grantee hereby accepts from the Company, the number of Shares set forth in the Award Notice.

 

(b)          Vesting. Initially, all of the Shares are non-transferable and subject to a substantial risk of forfeiture and are Shares of Restricted Stock. The risk of forfeiture shall lapse with respect to the Shares on the respective dates indicated on the Vesting Schedule set forth in the Award Notice.

 

(c)          Investment Representations. In connection with the receipt of the Shares contemplated by Section 1(a) above, the Grantee hereby represents and warrants to the Company as follows:

 

(i)          The Grantee is receiving the Shares for the Grantee’s own account for investment only, and not for resale or with a view to the distribution thereof.

 

(ii)         The Grantee has had such an opportunity as he or she has deemed adequate to obtain from the Company such information as is necessary to permit him or her to evaluate the merits and risks of the Grantee’s investment in the Company and has consulted with the Grantee’s own advisers with respect to the Grantee’s investment in the Company.

 

(iii)        The Grantee has sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the receipt of the Shares and to make an informed investment decision with respect to such Shares.

 

(iv)        The Grantee can afford a complete loss of the value of the Shares and is able to bear the economic risk of holding such Shares for an indefinite period.

 

(v)         The Grantee understands that the Shares are not registered under the Act (it being understood that the Shares are being issued and sold in reliance on the exemption provided in Rule 701 thereunder) or any applicable state securities or “blue sky” laws and may not be sold or otherwise transferred or disposed of in the absence of an effective registration statement under the Act and under any applicable state securities or “blue sky” laws (or exemptions from the registration requirements thereof). The Grantee further acknowledges that certificates representing the Shares will bear restrictive legends reflecting the foregoing and/or that book entries for uncertificated Shares will include similar restrictive notations.

 

 

(vi)        The Grantee has read and understands the Plan and acknowledges and agrees that the Shares are subject to all of the relevant terms of the Plan, including without limitation, the transfer restrictions set forth in Section 9 of the Plan.

 

(vii)       The Grantee understands and agrees that the Company has a right of first refusal with respect to the Shares pursuant to Section 9(b) of the Plan.

 

(viii)      The Grantee understands and agree that the Company has certain repurchase rights with respect to the Shares pursuant to Section 9(c) of the Plan.

 

(ix)         The Grantee understands and agrees that the Grantee may not sell or otherwise transfer or dispose of the Shares for a period of time following the effective date of a public offering by the Company as described in Section 9(f) of the Plan.

 

2.          Repurchase Right. Upon a Termination Event, the Company shall have the right to repurchase Shares of Restricted Stock that are unvested as of the date of such Termination Event as set forth in Section 9(c) of the Plan.

 

3.          Restrictions on Transfer of Shares. The Shares (whether or not vested) shall be subject to certain transfer restrictions and other limitations including, without limitation, the provisions contained in Section 9 of the Plan. The Grantee acknowledges and agrees that, if requested by the Company in its sole discretion, as a condition to the issuance of the Shares hereunder, the Grantee will become a party to:

 

(a)          That certain Right of First Refusal and Co-Sale Agreement between the Company and certain of its stockholders dated as of March 29, 2019, for so long as such agreement is in effect and shall thereby be bound by, and subject to, all the terms and provisions of such Right of First Refusal and Co-Sale Agreement applicable to a Key Holder thereunder, and that the Grantee will execute a counterpart signature page thereto, promptly upon such request; and

 

(b)          That certain Voting Agreement between the Company and certain of its stockholders dated as of March 29, 2019, for so long as such agreement is in effect and shall thereby be bound by, and subject to, all the terms and provisions of such Voting Agreement applicable to a Key Holder thereunder, and that the Grantee will execute an Adoption Agreement thereto, promptly upon such request.

 

4.          Incorporation of Plan. Notwithstanding anything herein to the contrary, this Restricted Stock Award shall be subject to and governed by all the terms and conditions of the Plan.

 

5.          Miscellaneous Provisions.

 

(a)          Record Owner; Dividends. The Grantee and any Permitted Transferees, during the duration of this Agreement, shall be considered the record owners of and shall be entitled to vote the Shares if and to the extent the Shares are entitled to voting rights. The Grantee and any Permitted Transferees shall be entitled to receive all dividends and any other distributions declared on the Shares; provided, however, that the Company is under no duty to declare any such dividends or to make any such distribution.

 

 

(b)          Section 83(b) Election. The Grantee shall consult with the Grantee’s tax advisor to determine whether it would be appropriate for the Grantee to make an election under Section 83(b) of the Code with respect to this Award. Any such election must be filed with the Internal Revenue Service within 30 days of the date of this Award. If the Grantee makes an election under Section 83(b) of the Code, the Grantee shall give prompt notice to the Company (and provide a copy of such election to the Company). A sample Section 83(b) election is attached to this Agreement as Exhibit A.

 

(c)          Equitable Relief. The parties hereto agree and declare that legal remedies may be inadequate to enforce the provisions of this Agreement and that equitable relief, including specific performance and injunctive relief, may be used to enforce the provisions of this Agreement.

 

(d)          Change and Modifications. This Agreement may not be orally changed, modified or terminated, nor shall any oral waiver of any of its terms be effective. This Agreement may be changed, modified or terminated only by an agreement in writing signed by the Company and the Grantee.

 

(e)          Governing Law. This Agreement shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.

 

(f)          Headings. The headings are intended only for convenience in finding the subject matter and do not constitute part of the text of this Agreement and shall not be considered in the interpretation of this Agreement.

 

(g)          Saving Clause. If any provision(s) of this Agreement shall be determined to be illegal or unenforceable, such determination shall in no manner affect the legality or enforceability of any other provision hereof.

 

(h)          Notices. All notices, requests, consents and other communications shall be in writing and be deemed given when delivered personally, by telex or facsimile transmission or when received if mailed by first class registered or certified mail, postage prepaid. Notices to the Company or the Grantee shall be addressed as set forth underneath their signatures below, or to such other address or addresses as may have been furnished by such party in writing to the other.

 

(i)          Benefit and Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their respective successors, assigns, and legal representatives. The Company has the right to assign this Agreement, and such assignee shall become entitled to all the rights of the Company hereunder to the extent of such assignment.

 

 

(j)          Counterparts. For the convenience of the parties and to facilitate execution, this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document.

 

(k)          Integration. This Agreement constitutes the entire agreement between the parties with respect to this Award and supersedes all prior agreements and discussions between the parties concerning such subject matter.

 

6.          Dispute Resolution.

 

(a)          Except as provided below, any dispute arising out of or relating to the Plan or the Shares, this Agreement, or the breach, termination or validity of the Plan, the Shares or this Agreement, shall be finally settled by binding arbitration conducted expeditiously in accordance with the J.A.M.S./Endispute Comprehensive Arbitration Rules and Procedures (the “J.A.M.S. Rules”). The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Sections 1 - 16, and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration shall be New York, New York.

 

(b)          The arbitration shall commence within 60 days of the date on which a written demand for arbitration is filed by any party hereto. In connection with the arbitration proceeding, the arbitrator shall have the power to order the production of documents by each party and any third-party witnesses. In addition, each party may take up to three depositions as of right, and the arbitrator may in his or her discretion allow additional depositions upon good cause shown by the moving party. However, the arbitrator shall not have the power to order the answering of interrogatories or the response to requests for admission. In connection with any arbitration, each party to the arbitration shall provide to the other, no later than seven business days before the date of the arbitration, the identity of all persons that may testify at the arbitration and a copy of all documents that may be introduced at the arbitration or considered or used by a party’s witness or expert. The arbitrator’s decision and award shall be made and delivered within six months of the selection of the arbitrator. The arbitrator’s decision shall set forth a reasoned basis for any award of damages or finding of liability. The arbitrator shall not have power to award damages in excess of actual compensatory damages and shall not multiply actual damages or award punitive damages, and each party hereby irrevocably waives any claim to such damages.

 

(c)          The Company, the Grantee, each party to the Agreement and any other holder of Shares issued pursuant to this Agreement (each, a “Party”) covenants and agrees that such party will participate in the arbitration in good faith. This Section 6 applies equally to requests for temporary, preliminary or permanent injunctive relief, except that in the case of temporary or preliminary injunctive relief any party may proceed in court without prior arbitration for the limited purpose of avoiding immediate and irreparable harm.

 

 

(d)          Each Party (i) hereby irrevocably submits to the jurisdiction of any United States District Court of competent jurisdiction for the purpose of enforcing the award or decision in any such proceeding, (ii) hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above named courts, that its property is exempt or immune from attachment or execution (except as protected by applicable law), that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court, and (iii) hereby waives and agrees not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such court. Each Party hereby consents to service of process by registered mail at the address to which notices are to be given. Each Party agrees that its, his or her submission to jurisdiction and its, his or her consent to service of process by mail is made for the express benefit of each other Party. Final judgment against any Party in any such action, suit or proceeding may be enforced in other jurisdictions by suit, action or proceeding on the judgment, or in any other manner provided by or pursuant to the laws of such other jurisdiction.

 

7.          Waiver of Statutory Information Rights. The Grantee understands and agrees that, but for the waiver made herein, the Grantee would be entitled, upon written demand under oath stating the purpose thereof, to inspect for any proper purpose, and to make copies and extracts from, the Company’s stock ledger, a list of its stockholders, and its other books and records, and the books and records of subsidiaries of the Company, if any, under the circumstances and in the manner provided in Section 220 of the General Corporation Law of Delaware (any and all such rights, and any and all such other rights of the Grantee as may be provided for in Section 220, the “Inspection Rights”). In light of the foregoing, until the first sale of Stock of the Company to the general public pursuant to a registration statement filed with and declared effective by the Securities and Exchange Commission under the Securities Act, the Grantee hereby unconditionally and irrevocably waives the Inspection Rights, whether such Inspection Rights would be exercised or pursued directly or indirectly pursuant to Section 220 or otherwise, and covenants and agrees never to directly or indirectly commence, voluntarily aid in any way, prosecute, assign, transfer, or cause to be commenced any claim, action, cause of action, or other proceeding to pursue or exercise the Inspection Rights. The foregoing waiver shall not affect any rights of a director, in his or her capacity as such, under Section 220. The foregoing waiver shall not apply to any contractual inspection rights of the Grantee under any other written agreement between the Grantee and the Company.

 

[SIGNATURE PAGE FOLLOWS]

 

 

The foregoing Restricted Stock Agreement is hereby accepted and the terms and conditions thereof are hereby agreed to by the undersigned as of the date first set forth above.

 

	SpringWorks Therapeutics, Inc.
	By:
		Name:
		Title:
	Address:
	100 Washington Blvd.
	Stamford, CT 06902

 

The undersigned hereby acknowledges receiving and reviewing a copy of the Plan, including, without limitation, Section 9 thereof and understands that the Shares granted hereby are subject to the terms of the Plan and of this Agreement. This Agreement is hereby accepted, and the terms and conditions of the Plan, the Award Notice and this Agreement, SPECIFICALLY INCLUDING THE ARBITRATION PROVISIONS SET FORTH IN SECTION 6 AND THE WAIVER OF STATUTORY INFORMATION RIGHTS SET FORTH IN SECTION 7 OF THIS AGREEMENT, are hereby agreed to, by the undersigned as of the date first above written.

 

	GRANTEE:
	Name:
	Address:

 

 

SPOUSE’S CONSENT
I acknowledge that I have read the
foregoing Restricted Stock Agreement
and understand the contents thereof.

 

 

EXHIBIT A

 

Protective Election to Include in Gross Income in Year of Transfer of Property
Pursuant to Section 83(b) of the Internal Revenue Code

 

The undersigned hereby makes an election pursuant to Section 83(b) of the Internal Revenue Code, as amended, Treasury Regulations Section 1.83-2 promulgated thereunder, and Rev. Proc. 2012-29, 2012-28 IRB, 06/26/2012, to include in gross income as compensation for services the excess (if any) of the fair market value of the property described below over the amount paid for such property.

 

1.

The name, address and taxpayer identification number of the undersigned, and the taxable year of which this election is being made are:

 

Name:
Address:	[                 ]
	[                 ]

 

Taxpayer Identification Number:

[                 ]

 

The taxable year to which this election relates:  Calendar year 2019

 

2.

Description of property to which the election is being made:

 

The election is being made with respect to [___] shares of Common Stock of SpringWorks Therapeutics, Inc., a Delaware corporation (the “Shares”).

 

3.

Date on which property was transferred: [                 ].

 

4.

Nature of restrictions to which the property is subject:

 

The Shares will be subject to certain restrictions on transfer and a vesting schedule that will require forfeiture of all or a part of that interest in the property upon the occurrence of certain events.

 

5.

Fair market value of the property at time of transfer equals the value of the partnership interests of SpringWorks Therapeutics, LLC, a Delaware limited liability company, contributed to SpringWorks Therapeutics, Inc., a Delaware corporation, in a transaction governed by section 351 of the code.

 

6.

For the property transferred, the undersigned paid partnership interests of SpringWorks Therapeutics, LLC, a Delaware limited liability company,, equal in value to the fair market value of the Shares.

 

7.

The amount to include in gross income is $0.

 

 

The undersigned taxpayer will file this election with the Internal Revenue Service office with which taxpayer files his or her annual income tax return not later than 30 days after the date of transfer of the property. A copy of the election also will be furnished to the person for whom the services were performed. The undersigned is the person performing the services in connection with which the property was transferred.

 

Date:_______

 

 

Exhibit 10.4

 

SPRINGWORKS THERAPEUTICS, INC.
SENIOR EXECUTIVE CASH INCENTIVE BONUS PLAN

 

1.          Purpose

 

This Senior Executive Cash Incentive Bonus Plan (the “Incentive Plan”) is intended to provide an incentive for superior work and to motivate eligible executives of SpringWorks Therapeutics, Inc. (the “Company”) and its subsidiaries toward even higher achievement and business results, to tie their goals and interests to those of the Company and its stockholders and to enable the Company to attract and retain highly qualified executives. The Incentive Plan is for the benefit of Covered Executives (as defined below).

 

2.          Covered Executives

 

From time to time, the Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”) may select certain key executives (the “Covered Executives”) to be eligible to receive bonuses hereunder. Participation in this Plan does not change the “at will” nature of a Covered Executive’s employment with the Company.

 

3.          Administration

 

The Compensation Committee shall have the sole discretion and authority to administer and interpret the Incentive Plan.

 

4.          Bonus Determinations

 

(a)          Corporate Performance Goals. A Covered Executive may receive a bonus payment under the Incentive Plan based upon the attainment of one or more performance objectives that are established by the Compensation Committee and relate to financial and operational metrics with respect to the Company or any of its subsidiaries (the “Corporate Performance Goals”), including the following: developmental, clinical or regulatory milestones; cash flow (including, but not limited to, operating cash flow and free cash flow); revenue; corporate revenue; earnings before interest, taxes, depreciation and amortization; net income (loss) (either before or after interest, taxes, depreciation and/or amortization); changes in the market price of the Company’s common stock; economic value-added; acquisitions or strategic transactions; operating income (loss); return on capital, assets, equity, or investment; stockholder returns; return on sales; gross or net profit levels; productivity; expense efficiency; margins; operating efficiency; customer satisfaction; working capital; earnings (loss) per share of the Company’s common stock; bookings, new bookings or renewals; sales or market shares; number of customers, number of new customers or customer references; operating income and/or net annual recurring revenue, any of which may be (A) measured in absolute terms or compared to any incremental increase, (B) measured in terms of growth, (C) compared to another company or companies or to results of a peer group, (D) measured against the market as a whole and/or as compared to applicable market indices and/or (E) measured on a pre-tax or post-tax basis (if applicable). Further, any Corporate Performance Goals may be used to measure the performance of the Company as a whole or a business unit or other segment of the Company, or one or more product lines or specific markets.  The Corporate Performance Goals may differ from Covered Executive to Covered Executive.

 

 

(b)          Calculation of Corporate Performance Goals. At the beginning of each applicable performance period, the Compensation Committee will determine whether any significant element(s) will be included in or excluded from the calculation of any Corporate Performance Goal with respect to any Covered Executive.  In all other respects, Corporate Performance Goals will be calculated in accordance with the Company’s financial statements, generally accepted accounting principles, or under a methodology established by the Compensation Committee at the beginning of the performance period and which is consistently applied with respect to a Corporate Performance Goal in the relevant performance period.

 

(c)          Target; Minimum; Maximum. Each Corporate Performance Goal shall have a “target” (100 percent attainment of the Corporate Performance Goal) and may also have a “minimum” hurdle and/or a “maximum” amount.

 

(d)          Bonus Requirements; Individual Goals. Except as otherwise set forth in this Section 4(d): (i) any bonuses paid to Covered Executives under the Incentive Plan shall be based upon objectively determinable bonus formulas that tie such bonuses to one or more performance targets relating to the Corporate Performance Goals, (ii) bonus formulas for Covered Executives shall be adopted in each performance period by the Compensation Committee and communicated to each Covered Executive at the beginning of each performance period and (iii) no bonuses shall be paid to Covered Executives unless and until the Compensation Committee makes a determination with respect to the attainment of the performance targets relating to the Corporate Performance Goals. Notwithstanding the foregoing, the Compensation Committee may adjust bonuses payable under the Incentive Plan based on achievement of one or more individual performance objectives or pay bonuses (including, without limitation, discretionary bonuses) to Covered Executives under the Incentive Plan based on individual performance goals and/or upon such other terms and conditions as the Compensation Committee may in its discretion determine.

 

(e)          Individual Target Bonuses. The Compensation Committee shall establish a target bonus opportunity for each Covered Executive for each performance period. For each Covered Executive, the Compensation Committee shall have the authority to apportion the target award so that a portion of the target award shall be tied to attainment of Corporate Performance Goals and a portion of the target award shall be tied to attainment of individual performance objectives.

 

(f)          Employment Requirement. Subject to any additional terms contained in a written agreement between the Covered Executive and the Company, the payment of a bonus to a Covered Executive with respect to a performance period shall be conditioned upon the Covered Executive’s employment by the Company on the bonus payment date. If a Covered Executive was not employed for an entire performance period, the Compensation Committee may pro rate the bonus based on the number of days employed during such period.

 

5.          Timing of Payment

 

(a)          With respect to Corporate Performance Goals established and measured on a basis more frequently than annually (e.g., quarterly or semi-annually), the Corporate Performance Goals will be measured at the end of each performance period after the Company’s financial reports with respect to such period(s) have been published. If the Corporate Performance Goals and/or individual goals for such period are met, payments will be made as soon as practicable following the end of such period, but not later 74 days after the end of the fiscal year in which such performance period ends.

 

 

(b)          With respect to Corporate Performance Goals established and measured on an annual or multi-year basis, Corporate Performance Goals will be measured as of the end of each such performance period (e.g., the end of each fiscal year) after the Company’s financial reports with respect to such period(s) have been published. If the Corporate Performance Goals and/or individual goals for any such period are met, bonus payments will be made as soon as practicable, but not later than 74 days after the end of the relevant fiscal year.

 

(c)          For the avoidance of doubt, bonuses earned at any time in a fiscal year must be paid no later than 74 days after the last day of such fiscal year.

 

6.          Amendment and Termination

 

The Company reserves the right to amend or terminate the Incentive Plan at any time in its sole discretion.

 

 

 

Exhibit 10.5

 

SPRINGWORKS THERAPEUTICS, INC.
NON-EMPLOYEE DIRECTOR COMPENSATION POLICY

 

The purpose of this Non-Employee Director Compensation Policy (the “Policy”) of SpringWorks Therapeutics, Inc., a Delaware corporation (the “Company”), is to provide a total compensation package that enables the Company to attract and retain, on a long-term basis, high-caliber directors who are not employees or officers of the Company. This Policy will become effective as of the effective time of the registration statement for the Company’s initial firm commitment underwritten public offering of equity securities (the “Effective Date”) and will apply to all non-employee directors of the Board (such directors, the “Eligible Directors”) of the Company (the “Board”). In furtherance of this purpose, except as otherwise provided in any written agreement between the Company and an Eligible Director, all Eligible Directors shall be paid compensation for services provided to the Company as set forth below:

 

Cash Retainers

 

Annual Retainer for Board Membership: $35,000 for general availability and participation in meetings and conference calls of our Board. No additional compensation for attending individual Board meetings.

 

Additional Annual Retainer for Non-Executive Chair of the Board: $65,000

 

Additional Annual Retainers for Committee Membership:

 

Audit Committee Chairperson:		$	15,000
Audit Committee member:		$	7,500
Compensation Committee Chairperson:		$	10,000
Compensation Committee member:		$	5,000
Nominating and Corporate Governance Committee Chairperson:		$	8,000
Nominating and Corporate Governance Committee member:		$	4,000

 

Note: Chair and committee member retainers are in addition to retainers for members of the Board of Directors.

 

All cash retainers will be paid quarterly, in arrears, or upon the earlier of resignation or removal of the Eligible Director. Cash retainers owing to Eligible Directors shall be annualized, meaning that with respect to Eligible Directors who join the Board during the calendar year, and with respect to all Eligible Directors for 2019, such amounts shall be pro-rated based on the number of calendar days served by such Eligible Director following the Effective Date.

 

For purposes of this Policy, “Value” means with respect to any award of stock options the grant date fair value of the option (i.e., Black-Scholes Value) determined in accordance with the reasonable assumptions and methodologies employed by the Company for calculating the fair value of options under ASC 718.

 

 

Equity Retainers

 

Initial Equity Grant: Upon the Effective Date, each Eligible Director serving as of such date shall receive a one-time equity grant of an option to purchase that number of shares of Common Stock that has a Value equivalent to $336,819. Such initial equity grant shall vest in equal quarterly installments during the twelve quarters following the grant date, subject to the Eligible Director’s continued service on the Board through each such date. For each Eligible Director joining the Board after the Effective Date, upon his or her initial appointment to the Board, each such Eligible Director shall receive a one-time equity grant of an option to purchase that number of shares of Common Stock that has a Value equivalent to $336,819. Such initial equity grant shall vest in equal quarterly installments during the twelve quarters following the grant date, subject to the Eligible Director’s continued service on the Board through each such date.

 

Annual Equity Grant: Immediately following each annual meeting of the Company’s stockholders, each continuing Eligible Director will receive an annual equity grant of an option to purchase that number of shares of Common Stock that has a Value equivalent to $168,410. Such annual equity grant shall vest on the earlier of the one-year anniversary of the grant date and the Company’s next annual meeting of stockholders, subject to the Eligible Director’s continued service on the Board through such date.

 

All of the foregoing option grants will become immediately exercisable upon the death, disability of an Eligible Director or upon a Sale Event (as defined in the Company’s 2019 Stock Option and Incentive Plan). In addition, Eligible Directors will have until the earlier of one year following cessation of service as a director or the original expiration date of the option to exercise the option (to the extent vested at the date of such cessation), provided that the Eligible Director has not been removed for cause.

 

Any stock option granted to an Eligible Director pursuant to this Policy will be granted at an exercise price equal to the Fair Market Value of a share of Common Stock on the date of grant (as defined in the Company’s 2019 Stock Option and Incentive Plan).

 

Expenses

 

The Company shall reimburse all reasonable out-of-pocket expenses incurred by Eligible Directors in attending Board and committee meetings.

 

ADOPTED: August 7, 2019, subject to effectiveness of the Company’s Registration Statement on Form S-1.

 

 

 

Exhibit 10.6

 

SPRINGWORKS THERAPEUTICS, INC.

 

[FORM OF] DIRECTOR INDEMNIFICATION AGREEMENT

 

This Indemnification Agreement (“Agreement”) is made as of [________] by and between SpringWorks Therapeutics, Inc., a Delaware corporation (the “Company”), and [Director] (“Indemnitee”).

 

RECITALS

 

WHEREAS, the Company desires to attract and retain the services of highly qualified individuals, such as Indemnitee, to serve the Company;

 

WHEREAS, in order to induce Indemnitee to provide or continue to provide services to the Company, the Company wishes to provide for the indemnification of, and advancement of expenses to, Indemnitee to the maximum extent permitted by law;

 

WHEREAS, the Amended and Restated Certificate of Incorporation (as amended and in effect from time to time, the “Charter”) and the Amended and Restated Bylaws (as amended and in effect from time to time, the “Bylaws”) of the Company require indemnification of the officers and directors of the Company, and Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the “DGCL”);

 

WHEREAS, the Charter, the Bylaws and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification;

 

WHEREAS, the Board of Directors of the Company (the “Board”) has determined that the increased difficulty in attracting and retaining highly qualified persons such as Indemnitee is detrimental to the best interests of the Company’s stockholders;

 

WHEREAS, it is reasonable and prudent for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law, regardless of any amendment or revocation of the Charter or the Bylaws, so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified;

 

WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided in the Charter, the Bylaws and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and

 

[WHEREAS, Indemnitee has certain rights to indemnification and/or insurance provided by [Affiliated Entity] (“[Affiliated Entity]”) which Indemnitee and [Affiliated Entity ] intend to be secondary to the primary obligation of the Company to indemnify Indemnitee as provided in this Agreement, with the Company’s acknowledgment and agreement to the foregoing being a material condition to Indemnitee’s willingness to serve or continue to serve on the Board.]

 

 

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:

 

Section 1.             Services to the Company. Indemnitee agrees to [continue to] serve as a director of the Company. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.

 

Section 2.             Definitions.

 

As used in this Agreement:

 

(a)          “Change in Control” shall mean (i) the sale of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, (ii) a merger, reorganization or consolidation pursuant to which the holders of the Company’s outstanding voting power and outstanding stock immediately prior to such transaction do not own a majority of the outstanding voting power and outstanding stock or other equity interests of the resulting or successor entity (or its ultimate parent, if applicable) immediately upon completion of such transaction, (iii) the sale of all of the Stock of the Company to an unrelated person, entity or group thereof acting in concert, or (iv) any other transaction in which the owners of the Company’s outstanding voting power immediately prior to such transaction do not own at least a majority of the outstanding voting power of the Company or any successor entity immediately upon completion of the transaction other than as a result of the acquisition of securities directly from the Company.

 

(b)          “Corporate Status” describes the status of a person as a current or former director of the Company or current or former director, manager, partner, officer, employee, agent or trustee of any other Enterprise which such person is or was serving at the request of the Company.

 

(c)          “Enforcement Expenses” shall include all reasonable attorneys’ fees, court costs, transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other out-of-pocket disbursements or expenses of the types customarily incurred in connection with an action to enforce indemnification or advancement rights, or an appeal from such action. Expenses, however, shall not include fees, salaries, wages or benefits owed to Indemnitee.

 

(d)          “Enterprise” shall mean any corporation (other than the Company), partnership, joint venture, trust, employee benefit plan, limited liability company, or other legal entity of which Indemnitee is or was serving at the request of the Company as a director, manager, partner, officer, employee, agent or trustee.

 

 

(e)          “Expenses” shall include all reasonable attorneys’ fees, court costs, transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other out-of-pocket disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding or an appeal resulting from a Proceeding. Expenses, however, shall not include amounts paid in settlement by Indemnitee, the amount of judgments or fines against Indemnitee or fees, salaries, wages or benefits owed to Indemnitee.

 

(f)          “Independent Counsel” means a law firm, or a partner (or, if applicable, member or shareholder) of such a law firm, that is experienced in matters of Delaware corporation law and neither presently is, nor in the past five (5) years has been, retained to represent: (i) the Company, any subsidiary of the Company, any Enterprise or Indemnitee in any matter material to any such party; or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of the Independent Counsel referred to above and to fully indemnify such counsel against any and all expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

 

(g)          The term “Proceeding” shall include any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, regulatory or investigative nature, and whether formal or informal, in which Indemnitee was, is or will be involved as a party or otherwise by reason of the fact that Indemnitee is or was a director of the Company or is or was serving at the request of the Company as a director, manager, partner, officer, employee, agent or trustee of any Enterprise or by reason of any action taken by Indemnitee or of any action taken on his or her part while acting as a director of the Company or while serving at the request of the Company as a director, manager, partner, officer, employee, agent or trustee of any Enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement or advancement of expenses can be provided under this Agreement; provided, however, that the term “Proceeding” shall not include any action, suit or arbitration, or part thereof, initiated by Indemnitee to enforce Indemnitee’s rights under this Agreement as provided for in Section 12(a) of this Agreement.

 

Section 3.             Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee to the extent set forth in this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified against all Expenses, judgments, fines, penalties, excise taxes, and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal proceeding, had no reasonable cause to believe that his or her conduct was unlawful.

 

 

Section 4.             Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify Indemnitee to the extent set forth in this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by a court to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery (the “Delaware Court”) shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as the Delaware Court shall deem proper.

 

Section 5.             Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement and except as provided in Section 7, to the extent that Indemnitee is a party to or a participant in any Proceeding and is successful in such Proceeding or in defense of any claim, issue or matter therein, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on his or her behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

 

Section 6.             Reimbursement for Expenses of a Witness or in Response to a Subpoena. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee, by reason of his or her Corporate Status, (i) is a witness in any Proceeding to which Indemnitee is not a party and is not threatened to be made a party or (ii) receives a subpoena with respect to any Proceeding to which Indemnitee is not a party and is not threatened to be made a party, the Company shall reimburse Indemnitee for all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection therewith.

 

Section 7.             Exclusions. Notwithstanding any provision in this Agreement to the contrary, the Company shall not be obligated under this Agreement:

 

(a)          to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not affect the rights of Indemnitee or the Secondary Indemnitors as set forth in Section 13(c);

 

 

(b)          to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law, or from the purchase or sale by Indemnitee of such securities in violation of Section 306 of the Sarbanes Oxley Act of 2002, as amended (“SOX”);

 

(c)          to indemnify with respect to any Proceeding, or part thereof, brought by Indemnitee against the Company, any legal entity which it controls, any director or officer thereof or any third party, unless (i) the Board has consented to the initiation of such Proceeding or part thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; provided, however, that this Section 7(c) shall not apply to (A) counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is being sought as described in Section 12; or

 

(d)          to provide any indemnification or advancement of expenses that is prohibited by applicable law (as such law exists at the time payment would otherwise be required pursuant to this Agreement).

 

Section 8.             Advancement of Expenses. Subject to Section 9(b), the Company shall advance, to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding, and such advancement shall be made as incurred, and such advancement shall be made within thirty (30) days after the receipt by the Company of a statement or statements requesting such advances (including any invoices received by Indemnitee, which such invoices may be redacted as necessary to avoid the waiver of any privilege accorded by applicable law) from time to time, whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s (i) ability to repay the expenses, (ii) ultimate entitlement to indemnification under the other provisions of this Agreement, and (iii) entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses of covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)). Indemnitee shall qualify for advances upon the execution and delivery to the Company of this Agreement which shall constitute an undertaking providing that Indemnitee undertakes to the fullest extent required by law to repay the advance if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by the Company. The right to advances under this paragraph shall in all events continue until final disposition of any Proceeding, including any appeal therein. Nothing in this Section 8 shall limit Indemnitee’s right to advancement pursuant to Section 12(e) of this Agreement.

 

 

Section 9.             Procedure for Notification and Defense of Claim.

 

(a)          To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request therefor specifying the basis for the claim, the amounts for which Indemnitee is seeking payment under this Agreement, and all documentation related thereto as reasonably requested by the Company.

 

(b)          In the event that the Company shall be obligated hereunder to provide indemnification for or make any advancement of Expenses with respect to any Proceeding, the Company shall be entitled to assume the defense of such Proceeding, or any claim, issue or matter therein, with counsel approved by Indemnitee (which approval shall not be unreasonably withheld or delayed) upon the delivery to Indemnitee of written notice of the Company’s election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses of separate counsel subsequently employed by or on behalf of Indemnitee with respect to the same Proceeding; provided that (i) Indemnitee shall have the right to employ separate counsel in any such Proceeding at Indemnitee’s expense and (ii) if (A) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of such defense, or (C) the Company shall not continue to retain such counsel to defend such Proceeding, then the fees and expenses actually and reasonably incurred by Indemnitee with respect to his or her separate counsel shall be Expenses hereunder.

 

(c)          In the event that the Company does not assume the defense in a Proceeding pursuant to paragraph (b) above, then the Company will be entitled to participate in the Proceeding at its own expense.

 

(d)          The Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its prior written consent (which consent shall not be unreasonably withheld or delayed). The Company shall not, without the prior written consent of Indemnitee (which consent shall not be unreasonably withheld or delayed), enter into any settlement which (i) includes an admission of fault of Indemnitee, any non-monetary remedy imposed on Indemnitee or any monetary damages for which Indemnitee is not wholly and actually indemnified hereunder or (ii) with respect to any Proceeding with respect to which Indemnitee may be or is made a party or may be otherwise entitled to seek indemnification hereunder, does not include the full release of Indemnitee from all liability in respect of such Proceeding.

 

 

Section 10.           Procedure Upon Application for Indemnification.

 

(a)          Upon written request by Indemnitee for indemnification pursuant to Section 9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement to indemnification hereunder shall be made in the specific case by one of the following methods: (x) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Board; or (y) if a Change in Control shall not have occurred: (i) by a majority vote of the disinterested directors, even though less than a quorum; (ii) by a committee of disinterested directors designated by a majority vote of the disinterested directors, even though less than a quorum; or (iii) if there are no disinterested directors or if the disinterested directors so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of Independent Counsel’s written opinion shall be delivered to Indemnitee and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within thirty (30) days after such determination. Indemnitee shall cooperate with the Independent Counsel or the Company, as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such counsel or the Company, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any out-of-pocket costs or expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the Independent Counsel or the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.

 

(b)          If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 10(a), the Independent Counsel shall be selected by the Board if a Change in Control shall not have occurred or, if a Change in Control shall have occurred, by Indemnitee. Indemnitee or the Company, as the case may be, may, within ten (10) days after written notice of such selection, deliver to the Company or Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such objection is without merit. If, within twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 9(a), and (ii) the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected without objection, either Indemnitee or the Company may petition the Delaware Court for resolution of any objection which shall have been made by Indemnitee or the Company to the selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate. The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

 

 

Section 11.           Presumptions and Effect of Certain Proceedings.

 

(a)          To the extent permitted by applicable law, in making a determination with respect to entitlement to indemnification hereunder, it shall be presumed that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making of any determination contrary to that presumption. Neither (i) the failure of the Company or of Independent Counsel to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor (ii) an actual determination by the Company or by Independent Counsel that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

 

(b)          The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of guilty, nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.

 

(c)          The knowledge and/or actions, or failure to act, of any director, manager, partner, officer, employee, agent or trustee of the Company, any subsidiary of the Company, or any Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

 

Section 12.           Remedies of Indemnitee.

 

(a)          Subject to Section 12(f), in the event that (i) a determination is made pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 10(a) of this Agreement within sixty (60) days after receipt by the Company of the request for indemnification for which a determination is to be made other than by Independent Counsel, (iv) payment of indemnification or reimbursement of expenses is not made pursuant to Section 5 or 6 or the last sentence of Section 10(a) of this Agreement within thirty (30) days after receipt by the Company of a written request therefor (including any invoices received by Indemnitee, which such invoices may be redacted as necessary to avoid the waiver of any privilege accorded by applicable law) or (v) payment of indemnification pursuant to Section 3 or 4 of this Agreement is not made within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication by the Delaware Court of his or her entitlement to such indemnification or advancement. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing time limitation shall not apply in respect of a proceeding brought by Indemnitee to enforce his or her rights under Section 5 of this Agreement. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.

 

 

(b)          In the event that a determination shall have been made pursuant to Section 10(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 12, the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement, as the case may be.

 

(c)          If a determination shall have been made pursuant to Section 10(a) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.

 

(d)          The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.

 

(e)          The Company shall indemnify Indemnitee to the fullest extent permitted by law against any and all Enforcement Expenses and, if requested by Indemnitee, shall (within thirty (30) days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law, such Enforcement Expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advancement from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is being sought. Such written request for advancement shall include invoices received by Indemnitee in connection with such Enforcement Expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditures made that would cause Indemnitee to waive any privilege accorded by applicable law need not be included with the invoice.

 

(f)          Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding, including any appeal therein.

 

 

Section 13.           Non-exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.

 

(a)          The rights of indemnification and to receive advancement as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter, the Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement than would be afforded currently under the Charter, Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

 

(b)          To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, managers, partners, officers, employees, agents or trustees of the Company or of any other Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, manager, partner, officer, employee, agent or trustee under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.

 

(c)          [The Company hereby acknowledges that Indemnitee has certain rights to indemnification, advancement of expenses and/or insurance provided by [Affiliated Entity] and certain of its affiliates (collectively, the “Secondary Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Secondary Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement and the Charter and/or Bylaws (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Secondary Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Secondary Indemnitors from any and all claims against the Secondary Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Secondary Indemnitors on behalf of Indemnitee with respect to any claim for which Indemnitee has sought indemnification from the Company shall affect the foregoing and the Secondary Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company. The Company and Indemnitee agree that the Secondary Indemnitors are express third party beneficiaries of the terms of this Section 13(c).]

 

 

(d)          [Except as provided in paragraph (c) above,] in the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee [(other than against the Secondary Indemnitors)], who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

 

(e)          [Except as provided in paragraph (c) above,] the Company’s obligation to provide indemnification or advancement hereunder to Indemnitee who is or was serving at the request of the Company as a director, manager, partner, officer, employee, agent or trustee of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement from such other Enterprise.

 

Section 14.            Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as a director of the Company or (b) one (1) year after the final termination of any Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights of indemnification or advancement hereunder and of any proceeding commenced by Indemnitee pursuant to Section 12 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and shall inure to the benefit of Indemnitee and his or her heirs, executors and administrators. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

 

Section 15.           Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

 

 

Section 16.           Enforcement.

 

(a)          The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve or continue to serve as a director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director of the Company.

 

(b)          This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Charter, the Bylaws and applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

 

Section 17.           Modification and Waiver. No supplement, modification or amendment, or waiver of any provision, of this Agreement shall be binding unless executed in writing by the parties thereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver. No supplement, modification or amendment of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee prior to such supplement, modification or amendment.

 

Section 18.           Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification, reimbursement or advancement as provided hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise.

 

Section 19.           Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (iii) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been directed or (iv) sent by facsimile transmission, with receipt of oral confirmation that such transmission has been received:

 

(a)          If to Indemnitee, at such address as Indemnitee shall provide to the Company.

 

(b)          If to the Company to:

 

SpringWorks Therapeutics, Inc.

100 Washington Blvd
Stamford, CT 06902

Attention: Chief Executive Officer

 

or to any other address as may have been furnished to Indemnitee by the Company.

 

 

Section 20.           Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding in such proportion as is deemed fair and reasonable in light of all of the circumstances in order to reflect (i) the relative benefits received by the Company and Indemnitee in connection with the event(s) and/or transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transactions.

 

Section 21.           Internal Revenue Code Section 409A. The Company intends for this Agreement to comply with the Indemnification exception under Section 1.409A-1(b)(10) of the regulations promulgated under the Internal Revenue Code of 1986, as amended (the “Code”), which provides that indemnification of, or the purchase of an insurance policy providing for payments of, all or part of the expenses incurred or damages paid or payable by Indemnitee with respect to a bona fide claim against Indemnitee or the Company do not provide for a deferral of compensation, subject to Section 409A of the Code, where such claim is based on actions or failures to act by Indemnitee in his or her capacity as a service provider of the Company. The parties intend that this Agreement be interpreted and construed with such intent.

 

Section 22.           Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court, and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) consent to service of process at the address set forth in Section 19 of this Agreement with the same legal force and validity as if served upon such party personally within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.

 

Section 23.           Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

 

Section 24.           Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

 

[Remainder of Page Intentionally Left Blank]

 

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.

 

	SPRINGWORKS THERAPEUTICS, INC.
	By:
	Name:
	Title:
		[Indemnitee]

 

 

Exhibit 10.7

 

SPRINGWORKS THERAPEUTICS, INC.

 

[FORM OF] OFFICER INDEMNIFICATION AGREEMENT

 

This Indemnification Agreement (“Agreement”) is made as of [________________] by and between SpringWorks Therapeutics, Inc., a Delaware corporation (the “Company”), and [Officer] (“Indemnitee”).¹

 

RECITALS

 

WHEREAS, the Company desires to attract and retain the services of highly qualified individuals, such as Indemnitee, to serve the Company;

 

WHEREAS, in order to induce Indemnitee to provide or continue to provide services to the Company, the Company wishes to provide for the indemnification of, and advancement of expenses to, Indemnitee to the maximum extent permitted by law;

 

WHEREAS, the Amended and Restated Certificate of Incorporation (as amended and in effect from time to time, the “Charter”) and the Amended and Restated Bylaws (as amended and in effect from time to time, the “Bylaws”) of the Company require indemnification of the officers and directors of the Company, and Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the “DGCL”);

 

WHEREAS, the Charter, the Bylaws and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification;

 

WHEREAS, the Board of Directors of the Company (the “Board”) has determined that the increased difficulty in attracting and retaining highly qualified persons such as Indemnitee is detrimental to the best interests of the Company’s stockholders;

 

WHEREAS, it is reasonable and prudent for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law, regardless of any amendment or revocation of the Charter or the Bylaws, so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and

 

WHEREAS, this Agreement is a supplement to and in furtherance of the indemnification provided in the Charter, the Bylaws and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

 

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:

 

¹ To be entered into with all C-level officers and Section 16 officers.

 

 

Section 1.             Services to the Company. Indemnitee agrees to [continue to] serve as [a director and] an officer of the Company. Indemnitee may at any time and for any reason resign from [any] such position (subject to any other contractual obligation or any obligation imposed by law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position. This Agreement shall not be deemed an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.

 

Section 2.             Definitions.

 

As used in this Agreement:

 

(a)          “Change in Control” shall mean (i) the sale of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, (ii) a merger, reorganization or consolidation pursuant to which the holders of the Company’s outstanding voting power and outstanding stock immediately prior to such transaction do not own a majority of the outstanding voting power and outstanding stock or other equity interests of the resulting or successor entity (or its ultimate parent, if applicable) immediately upon completion of such transaction, (iii) the sale of all of the Stock of the Company to an unrelated person, entity or group thereof acting in concert, or (iv) any other transaction in which the owners of the Company’s outstanding voting power immediately prior to such transaction do not own at least a majority of the outstanding voting power of the Company or any successor entity immediately upon completion of the transaction other than as a result of the acquisition of securities directly from the Company.

 

(b)          “Corporate Status” describes the status of a person as a current or former [director or] officer of the Company or current or former director, manager, partner, officer, employee, agent or trustee of any other Enterprise which such person is or was serving at the request of the Company.

 

(c)          “Enforcement Expenses” shall include all reasonable attorneys’ fees, court costs, transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other out-of-pocket disbursements or expenses of the types customarily incurred in connection with an action to enforce indemnification or advancement rights, or an appeal from such action. Expenses, however, shall not include fees, salaries, wages or benefits owed to Indemnitee.

 

(d)          “Enterprise” shall mean any corporation (other than the Company), partnership, joint venture, trust, employee benefit plan, limited liability company, or other legal entity of which Indemnitee is or was serving at the request of the Company as a director, manager, partner, officer, employee, agent or trustee.

 

(e)          “Expenses” shall include all reasonable attorneys’ fees, court costs, transcript costs, fees of experts, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other out-of-pocket disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding or an appeal resulting from a Proceeding. Expenses, however, shall not include amounts paid in settlement by Indemnitee, the amount of judgments or fines against Indemnitee or fees, salaries, wages or benefits owed to Indemnitee.

 

 

(f)          “Independent Counsel” means a law firm, or a partner (or, if applicable, member or shareholder) of such a law firm, that is experienced in matters of Delaware corporation law and neither presently is, nor in the past five (5) years has been, retained to represent: (i) the Company, any subsidiary of the Company, any Enterprise or Indemnitee in any matter material to any such party; or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of the Independent Counsel referred to above and to fully indemnify such counsel against any and all expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

 

(g)          The term “Proceeding” shall include any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, regulatory or investigative nature, and whether formal or informal, in which Indemnitee was, is or will be involved as a party or otherwise by reason of the fact that Indemnitee is or was [a director or] an officer of the Company or is or was serving at the request of the Company as a director, manager, partner, officer, employee, agent or trustee of any Enterprise or by reason of any action taken by Indemnitee or of any action taken on his or her part while acting as [a director or] an officer of the Company or while serving at the request of the Company as a director, manager, partner, officer, employee, agent or trustee of any Enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement or advancement of expenses can be provided under this Agreement; provided, however, that the term “Proceeding” shall not include any action, suit or arbitration, or part thereof, initiated by Indemnitee to enforce Indemnitee’s rights under this Agreement as provided for in Section 12(a) of this Agreement.

 

Section 3.             Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee to the extent set forth in this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified against all Expenses, judgments, fines, penalties, excise taxes, and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal proceeding, had no reasonable cause to believe that his or her conduct was unlawful.

 

 

Section 4.             Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify Indemnitee to the extent set forth in this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by a court to be liable to the Company, unless and only to the extent that the Delaware Court of Chancery (the “Delaware Court”) shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as the Delaware Court shall deem proper.

 

Section 5.             Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement and except as provided in Section 7, to the extent that Indemnitee is a party to or a participant in any Proceeding and is successful in such Proceeding or in defense of any claim, issue or matter therein, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on his or her behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

 

Section 6.             Reimbursement for Expenses of a Witness or in Response to a Subpoena. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee, by reason of his or her Corporate Status, (i) is a witness in any Proceeding to which Indemnitee is not a party and is not threatened to be made a party or (ii) receives a subpoena with respect to any Proceeding to which Indemnitee is not a party and is not threatened to be made a party, the Company shall reimburse Indemnitee for all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection therewith.

 

Section 7.             Exclusions. Notwithstanding any provision in this Agreement to the contrary, the Company shall not be obligated under this Agreement:

 

(a)          to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise;

 

(b)          to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law, or from the purchase or sale by Indemnitee of such securities in violation of Section 306 of the Sarbanes-Oxley Act of 2002, as amended (“SOX”);

 

 

(c)          to indemnify for any reimbursement of, or payment to, the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company pursuant to Section 304 of SOX or any formal policy of the Company adopted by the Board (or a committee thereof), or any other remuneration paid to Indemnitee if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;

 

(d)          to indemnify with respect to any Proceeding, or part thereof, brought by Indemnitee against the Company, any legal entity which it controls, any director or officer thereof or any third party, unless (i) the Board has consented to the initiation of such Proceeding or part thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; provided, however, that this Section 7(d) shall not apply to (A) counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is being sought as described in Section 12; or

 

(e)          to provide any indemnification or advancement of expenses that is prohibited by applicable law (as such law exists at the time payment would otherwise be required pursuant to this Agreement).

 

Section 8.             Advancement of Expenses. Subject to Section 9(b), the Company shall advance, to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding, and such advancement shall be made as incurred, and such advancement shall be made within thirty (30) days after the receipt by the Company of a statement or statements requesting such advances (including any invoices received by Indemnitee, which such invoices may be redacted as necessary to avoid the waiver of any privilege accorded by applicable law) from time to time, whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s (i) ability to repay the expenses, (ii) ultimate entitlement to indemnification under the other provisions of this Agreement, and (iii) entitlement to and availability of insurance coverage, including advancement, payment or reimbursement of defense costs, expenses of covered loss under the provisions of any applicable insurance policy (including, without limitation, whether such advancement, payment or reimbursement is withheld, conditioned or delayed by the insurer(s)). Indemnitee shall qualify for advances upon the execution and delivery to the Company of this Agreement which shall constitute an undertaking providing that Indemnitee undertakes to the fullest extent required by law to repay the advance if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by the Company. The right to advances under this paragraph shall in all events continue until final disposition of any Proceeding, including any appeal therein. Nothing in this Section 8 shall limit Indemnitee’s right to advancement pursuant to Section 12(e) of this Agreement.

 

 

Section 9.             Procedure for Notification and Defense of Claim.

 

(a)          To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request therefor specifying the basis for the claim, the amounts for which Indemnitee is seeking payment under this Agreement, and all documentation related thereto as reasonably requested by the Company.

 

(b)          In the event that the Company shall be obligated hereunder to provide indemnification for or make any advancement of Expenses with respect to any Proceeding, the Company shall be entitled to assume the defense of such Proceeding, or any claim, issue or matter therein, with counsel approved by Indemnitee (which approval shall not be unreasonably withheld or delayed) upon the delivery to Indemnitee of written notice of the Company’s election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses of separate counsel subsequently employed by or on behalf of Indemnitee with respect to the same Proceeding; provided that (i) Indemnitee shall have the right to employ separate counsel in any such Proceeding at Indemnitee’s expense and (ii) if (A) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of such defense, or (C) the Company shall not continue to retain such counsel to defend such Proceeding, then the fees and expenses actually and reasonably incurred by Indemnitee with respect to his or her separate counsel shall be Expenses hereunder.

 

(c)          In the event that the Company does not assume the defense in a Proceeding pursuant to paragraph (b) above, then the Company will be entitled to participate in the Proceeding at its own expense.

 

(d)          The Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without its prior written consent (which consent shall not be unreasonably withheld or delayed). The Company shall not, without the prior written consent of Indemnitee (which consent shall not be unreasonably withheld or delayed), enter into any settlement which (i) includes an admission of fault of Indemnitee, any non-monetary remedy imposed on Indemnitee or any monetary damages for which Indemnitee is not wholly and actually indemnified hereunder or (ii) with respect to any Proceeding with respect to which Indemnitee may be or is made a party or may be otherwise entitled to seek indemnification hereunder, does not include the full release of Indemnitee from all liability in respect of such Proceeding.

 

 

Section 10.           Procedure Upon Application for Indemnification.²

 

(a)          Upon written request by Indemnitee for indemnification pursuant to Section 9(a), a determination, if such determination is required by applicable law, with respect to Indemnitee’s entitlement to indemnification hereunder shall be made in the specific case by one of the following methods: [(x) if a Change in Control shall have occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, by Independent Counsel in a written opinion to the Board; or (y) in any other case,] (i) by a majority vote of the disinterested directors, even though less than a quorum; (ii) by a committee of disinterested directors designated by a majority vote of the disinterested directors, even though less than a quorum; or (iii) if there are no disinterested directors or if the disinterested directors so direct, by Independent Counsel in a written opinion to the Board. For purposes hereof, disinterested directors are those members of the Board who are not parties to the action, suit or proceeding in respect of which indemnification is sought. In the case that such determination is made by Independent Counsel, a copy of Independent Counsel’s written opinion shall be delivered to Indemnitee and, if it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within thirty (30) days after such determination. Indemnitee shall cooperate with the Independent Counsel or the Company, as applicable, in making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such counsel or the Company, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any out-of-pocket costs or expenses (including reasonable attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the Independent Counsel or the Company shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.

 

(b)          If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 10(a), the Independent Counsel shall be selected by the Board[; provided that, if a Change in Control shall have occurred and indemnification is being requested by Indemnitee hereunder in his or her capacity as a director of the Company, the Independent Counsel shall be selected by Indemnitee]. Indemnitee [or the Company, as the case may be,] may, within ten (10) days after written notice of such selection, deliver to the Company [or Indemnitee, as the case may be,] a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such objection is without merit. If, within twenty (20) days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 9(a), and (ii) the final disposition of the Proceeding, including any appeal therein, no Independent Counsel shall have been selected without objection, either Indemnitee or the Company may petition the Delaware Court for resolution of any objection which shall have been made by Indemnitee or the Company to the selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate. The person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 10(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 12(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

 

² Bracketed portions for CEO Director version only

 

 

Section 11.           Presumptions and Effect of Certain Proceedings.

 

(a)          To the extent permitted by applicable law, in making a determination with respect to entitlement to indemnification hereunder, it shall be presumed that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 9(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making of any determination contrary to that presumption. Neither (i) the failure of the Company or of Independent Counsel to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor (ii) an actual determination by the Company or by Independent Counsel that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

 

(b)          The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of guilty, nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.

 

(c)          The knowledge and/or actions, or failure to act, of any director, manager, partner, officer, employee, agent or trustee of the Company, any subsidiary of the Company, or any Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

 

Section 12.           Remedies of Indemnitee.

 

(a)          Subject to Section 12(f), in the event that (i) a determination is made pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 8 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 10(a) of this Agreement within sixty (60) days after receipt by the Company of the request for indemnification for which a determination is to be made other than by Independent Counsel, (iv) payment of indemnification or reimbursement of expenses is not made pursuant to Section 5 or 6 or the last sentence of Section 10(a) of this Agreement within thirty (30) days after receipt by the Company of a written request therefor (including any invoices received by Indemnitee, which such invoices may be redacted as necessary to avoid the waiver of any privilege accorded by applicable law) or (v) payment of indemnification pursuant to Section 3 or 4 of this Agreement is not made within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication by the Delaware Court of his or her entitlement to such indemnification or advancement. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 12(a); provided, however, that the foregoing time limitation shall not apply in respect of a proceeding brought by Indemnitee to enforce his or her rights under Section 5 of this Agreement. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.

 

 

(b)          In the event that a determination shall have been made pursuant to Section 10(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 12, the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement, as the case may be.

 

(c)          If a determination shall have been made pursuant to Section 10(a) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.

 

(d)          The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.

 

(e)          The Company shall indemnify Indemnitee to the fullest extent permitted by law against any and all Enforcement Expenses and, if requested by Indemnitee, shall (within thirty (30) days after receipt by the Company of a written request therefor) advance, to the extent not prohibited by law, such Enforcement Expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advancement from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is being sought. Such written request for advancement shall include invoices received by Indemnitee in connection with such Enforcement Expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditures made that would cause Indemnitee to waive any privilege accorded by applicable law need not be included with the invoice.

 

(f)          Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding, including any appeal therein.

 

 

Section 13.           Non-exclusivity; Survival of Rights; Insurance; Subrogation.

 

(a)          The rights of indemnification and to receive advancement as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter, the Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement than would be afforded currently under the Charter, Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

 

(b)          To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, managers, partners, officers, employees, agents or trustees of the Company or of any other Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, manager, partner, officer, employee, agent or trustee under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.

 

(c)          In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

 

(d)          The Company’s obligation to provide indemnification or advancement hereunder to Indemnitee who is or was serving at the request of the Company as a director, manager, partner, officer, employee, agent or trustee of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement from such other Enterprise.

 

 

Section 14.            Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a) ten (10) years after the date that Indemnitee shall have ceased to serve as [both a director and] an officer of the Company or (b) one (1) year after the final termination of any Proceeding, including any appeal, then pending in respect of which Indemnitee is granted rights of indemnification or advancement hereunder and of any proceeding commenced by Indemnitee pursuant to Section 12 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and shall inure to the benefit of Indemnitee and his or her heirs, executors and administrators. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

 

Section 15.           Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

 

Section 16.           Enforcement.

 

(a)          The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve or continue to serve as [a director and] an officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as [a director and] an officer of the Company.

 

(b)          This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Charter, the Bylaws and applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

 

Section 17.           Modification and Waiver. No supplement, modification or amendment, or waiver of any provision, of this Agreement shall be binding unless executed in writing by the parties thereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver. No supplement, modification or amendment of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee prior to such supplement, modification or amendment.

 

 

Section 18.           Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification, reimbursement or advancement as provided hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise.

 

Section 19.           Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (iii) mailed by reputable overnight courier and receipted for by the party to whom said notice or other communication shall have been directed or (iv) sent by facsimile transmission, with receipt of oral confirmation that such transmission has been received:

 

(a)          If to Indemnitee, at such address as Indemnitee shall provide to the Company.

 

(b)          If to the Company to:

 

SpringWorks Therapeutics, Inc.

100 Washington Blvd
Stamford, CT 06902

Attention: Chief Executive Officer           

or to any other address as may have been furnished to Indemnitee by the Company.

 

Section 20.           Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding in such proportion as is deemed fair and reasonable in light of all of the circumstances in order to reflect (i) the relative benefits received by the Company and Indemnitee in connection with the event(s) and/or transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transactions.

 

Section 21.           Internal Revenue Code Section 409A. The Company intends for this Agreement to comply with the Indemnification exception under Section 1.409A-1(b)(10) of the regulations promulgated under the Internal Revenue Code of 1986, as amended (the “Code”), which provides that indemnification of, or the purchase of an insurance policy providing for payments of, all or part of the expenses incurred or damages paid or payable by Indemnitee with respect to a bona fide claim against Indemnitee or the Company do not provide for a deferral of compensation, subject to Section 409A of the Code, where such claim is based on actions or failures to act by Indemnitee in his or her capacity as a service provider of the Company. The parties intend that this Agreement be interpreted and construed with such intent.

 

 

Section 22.           Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court, and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) consent to service of process at the address set forth in Section 19 of this Agreement with the same legal force and validity as if served upon such party personally within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.

 

Section 23.           Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

 

Section 24.           Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

 

[Remainder of Page Intentionally Left Blank]

 

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.

 

	SPRINGWORKS THERAPEUTICS, inc.
	By:
	Name:
	Title:
		[Name of Indemnitee]

 

 

Exhibit 10.8

 

EXECUTION VERSION
CONFIDENTIAL

 

AMENDED AND RESTATED LICENSE AGREEMENT

 

by and among

 

SpringWorks Subsidiary 2, Inc.,

 

Pfizer Inc.,

 

Pfizer Products Inc.

 

and, solely for purposes of Article 11 and Sections 3.2 and 3.3 hereof,

 

SpringWorks Therapeutics, Inc.,

 

as of July 31, 2019

 

 

TABLE OF CONTENTS

 

1.	Definitions.		1
	1.1	Definitions.	1
	1.2	Interpretation.	14
2.	License Grant.		15
	2.1	License Grants.	15
	2.2	Sublicense Rights.	15
	2.3	Retained Rights.	16
	2.4	Residuals.	16
	2.5	No Additional Rights.	17
	2.6	Right of First Negotiation.	17
	2.7	365(n) Rights.	18
	2.8	Exclusivity.	19
3.	Transfer Activities.		19
	3.1	Transfer Activities Schedules.	19
	3.2	Compassionate Use and IIRs.	19
	3.3	Transition and Assignment Agreements.	20
	3.4	Terminated Agreements and MTAs.	20
4.	Development; Commercialization; Manufacturing.		20
	4.1	General.	20
	4.2	Diligence.	20
	4.3	Regulatory Filings.	21
	4.4	Progress Reporting.	21
	4.5	CROs and CMOs.	21
	4.6	Development Plan.	21
	4.7	Pharmacovigilance Agreement.	22
	4.8	Joint Development Committee.	22
5.	Payment Terms.		23
	5.1	Transfer Activities Payments.	23
	5.2	Development Milestone Payments.	23
	5.3	Sales Milestone Payments.	24
	5.4	Royalty Payments.	25
	5.5	Royalty Deductions.	26
	5.6	Transaction Completion Payment.	27
	5.7	Other Payments.	27
	5.8	Late Payments.	27
	5.9	Currency.	28
	5.10	Method of Payment.	28
	5.11	Taxes.	28
	5.12	Royalty Reconciliation.	29
6.	Records; Audit Rights.		29
	6.1	Relevant Records.	29
	6.2	Audit Request.	30
	6.3	Audit Fees and Expenses.	30
	6.4	Payment of Deficiency.	30
7.	Intellectual Property Rights.		30

 

 

	7.1	Pre-existing IP.	30
	7.2	Developed IP.	30
	7.3	Inactive Patents.	31
	7.4	Patent Prosecution of Licensed Patent Rights.	31
	7.5	Listing in Orange Book.	32
8.	Infringement; Misappropriation.		32
	8.1	Notification.	32
	8.2	Infringement Action.	33
9.	Confidentiality.		34
	9.1	Definition.	34
	9.2	Obligations.	34
	9.3	Exceptions.	34
	9.4	Right to Injunctive Relief.	35
	9.5	Ongoing Obligation for Confidentiality.	35
10.	Representations, Warranties and Covenants.		35
	10.1	Representations and Warranties by Each Party.	35
	10.2	Representations and Warranties by Pfizer.	36
	10.3	Representations, Warranties and Covenants by Licensee.	38
	10.4	Representations, Warranties and Covenants related to Compliance Laws.	38
	10.5	No Action Required Which Would Violate Law.	39
	10.6	No Other Warranties.	39
11.	Indemnification.		39
	11.1	Indemnification by Licensee.	39
	11.2	Indemnification by Pfizer.	40
	11.3	Indemnification Procedure.	40
12.	Limitation of Liability.		41
	12.1	Consequential Damages Waiver.	41
	12.2	Liability Cap.	41
13.	Term; Termination.		41
	13.1	Term.	41
	13.2	Termination for Cause.	41
	13.3	Termination for a Bankruptcy Event.	42
	13.4	Termination for Convenience.	42
	13.5	Effects of Termination.	42
	13.6	Survival.	45
14.	Publicity; Publications.		46
	14.1	Use of Names.	46
	14.2	Press Releases.	46
	14.3	Publications.	46
15.	Licensee Insurance.		47
	15.1	Insurance Requirements.	47
	15.2	Policy Notification.	47
16.	Dispute Resolution.		47
	16.1	Arbitration.	47
	16.2	No Trial By Jury.	48
17.	General Provisions.		48

 

 

	17.1	Assignment.	48
	17.2	Severability.	49
	17.3	Governing Law.	49
	17.4	Force Majeure.	49
	17.5	Waivers and Amendments.	49
	17.6	Relationship of the Parties.	50
	17.7	Successors and Assigns.	50
	17.8	Notices.	50
	17.9	Further Assurances.	51
	17.10	No Third Party Beneficiary Rights.	51
	17.11	Entire Agreement.	52
	17.12	Counterparts.	52
	17.13	Cumulative Remedies.	52
	17.14	Waiver of Rule of Construction.	52

 

List of Schedules

 

Schedule A - Compound

 

Schedule B - Knowledge

 

Schedule C - Licensed Know How

 

Schedule D - Transfer Activities

 

Schedule E - Licensed Patent Rights

 

Schedule F - Initial Development Plan

 

Schedule G - Exceptions

 

Schedule H - GMP Compound

 

Schedule I - IIRs

 

Schedule J - Wire Instructions

 

Schedule K - Schedule K Licensed Know-How

 

 

AMENDED AND RESTATED LICENSE AGREEMENT

 

THIS AMENDED AND RESTATED LICENSE AGREEMENT (“Agreement”) is made effective as of the 31^ST day of July, 2019 (the “Amendment Effective Date”), by and among SpringWorks Subsidiary 2, Inc., a corporation organized and existing under the laws of Delaware with offices at 100 Washington Blvd., 5^th Floor, Stamford, CT 06902 (“Licensee”), Pfizer Inc., a corporation organized and existing under the laws of Delaware with offices at 235 East 42nd Street, New York, NY 10017 (“Pfizer Inc.”), Pfizer Products Inc., a corporation organized and existing under the laws of Delaware with offices at 235 East 42nd Street, New York, NY 10017 (“PPI” and, collectively with Pfizer Inc., “Pfizer”) and , solely with respect to Article 11 and Sections 3.2 and 3.3, SpringWorks Therapeutics, Inc., a Delaware corporation (“SpringWorks”). Licensee and Pfizer may, from time-to-time, be individually referred to as a “Party” and collectively referred to as the “Parties”.

 

RECITALS

 

WHEREAS, Pfizer, Licensee and SpringWorks (as successor in interest to SpringWorks Therapeutics, LLC) previously entered into a License Agreement, dated as of August 18, 2017 (the “Original Agreement”), in connection with the formation and capitalization of SpringWorks;

 

WHEREAS, the Parties desire to amend the Original Agreement to clarify their respective rights and obligations with respect to certain Patent Rights that comprise or claim Know-How relevant to the Development, Manufacture or use of the Compound or any Product, including without limitation, Arising Patent Rights (as defined below) and jointly-owned Developed IP; and

 

WHEREAS, Licensee desires to obtain an exclusive license to the Arising Patent Rights under Section 2.1.1 of the Original Agreement and to clarify their respective rights and obligations with respect to jointly-owned Developed IP.

 

NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties, intending to be legally bound hereby, agree to amend and restate the Original Agreement as follows:

 

1.          Definitions.

 

1.1           Definitions.

 

“Accounting Standards” means, as applicable, United States Generally Accepted Accounting Principles or International Financial Reporting Standards, in each case consistently applied.

 

“Acquisition Program” is defined in Section 2.8.2.

 

“Active Cases” is defined in Section 10.2.1.

 

 

“Affiliate” means, with respect to a Party, any Person that, on the Effective Date or during the Term, controls, is controlled by (which Person is hereby defined to be a “Subsidiary” of such Party), or is under common control with that Party. For the purpose of this definition, “control” shall refer to: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities or other ownership interest, by contract or otherwise, or (b) the ownership, directly or indirectly, of fifty percent (50%) or more of the voting securities or other ownership interest of such entity. Notwithstanding the foregoing, Pfizer and its Affiliates (other than Licensee-Related Persons) shall not be considered Affiliates of any Licensee-Related Person for purposes of this Agreement, and Licensee-Related Persons shall not be considered Affiliates of Pfizer and its Affiliates (other than Licensee-Related Persons) for purposes of this Agreement, where “Licensee-Related Persons” means Licensee, Licensee’s Subsidiaries, Licensee’s Parent, Licensee’s Parent’s Subsidiaries and any Person that becomes an Affiliate of Licensee after the Effective Date as a result of or following a Change of Control of Licensee or Licensee’s Parent.

 

“Agreement” is defined in the introduction to this Agreement.

 

“Amendment Effective Date” is defined in the introduction to this Agreement.

 

“Applicable Law” means any applicable law, statute, rule, regulation, order, judgment, or ordinance of any Governmental Authority.

 

“Arising Patent Rights” means any Patent Rights that claim Know-How that is within the Licensed Know-How, which Know-How is described in Schedule K (which may be amended from time to time by agreement of the Parties), but which Patent Rights are, as of the Effective Date, not included within the Licensed Patent Rights. For avoidance of doubt: (i) Arising Patent Rights must claim Know-How that is within the Licensed Know-How but may also describe or claim other Know-How and (ii) Patent Rights that are included within Arising Patent Rights and also describe or claim Developed IP shall be, for all purposes under the Agreement, Arising Patent Rights and not Developed IP.

 

“Bankruptcy Code” is defined in Section 13.3.

 

“Bankruptcy Event” is defined in Section 13.3.

 

“Business Day” means any day other than (a) a Saturday, (b) a Sunday or (c) a day on which commercial banks located in New York, New York are authorized or required by Applicable Law to remain closed.

 

“Calendar Quarter” means the respective periods of three (3) consecutive calendar months ending on March 31, June 30, September 30, and December 31.

 

“Calendar Year” means each calendar year.

 

“Cell-Based Use” [***] .

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

“Change of Control” means, with respect to a Party (or, where expressly set forth in this Agreement, the Parent of such Party), whether effected in a single transaction or a series of related transactions: (a) (i) the acquisition of beneficial ownership, directly or indirectly, by any Person (other than such Party or an Affiliate of such Party) of securities or other voting interest of such Party representing a majority or more of the combined voting power of such Party’s then- outstanding securities or other voting interests or (ii) any merger, reorganization, consolidation, share exchange, business combination or similar transaction involving such Party (or, if applicable, the Parent of such Party) pursuant to which more than fifty percent (50%) of the outstanding voting securities of such Party (or, if applicable, the Parent of such Party) would be converted into cash or securities of any other Person, that, in either case (i) or (ii), results in the holders of beneficial ownership of the voting securities or other voting interests of such Party (or, if applicable, the Parent of such Party) immediately prior to such acquisition, merger, reorganization, consolidation or business combination ceasing to hold beneficial ownership of at least fifty percent (50%) of the combined voting power of the surviving entity immediately after such acquisition, merger, reorganization, consolidation, share exchange, business combination or similar transaction; (c) any sale, lease, exchange, contribution or other transfer (other than the granting of a license or sublicense) of all or substantially all of the assets of such Party and its Subsidiaries taken as a whole, other than the sale or disposition of such assets to an Affiliate of such Party; or (d) any sale, lease, exchange, contribution or other transfer (other than the granting of a license or sublicense) of all or substantially all the assets of such Party and its Subsidiaries taken as a whole to which this Agreement relates, other than the sale or disposition of such assets to an Affiliate of such Party.

 

“Claims” is defined in Section 11.1.

 

“Clinical Trial” means any experiment in which a drug is administered or dispensed to one or more human subjects, including any Phase I Clinical Trial, Phase II Clinical Trial, Phase III Clinical Trial, Phase IV Clinical Trial, bioequivalence study or bioavailability study.

 

“CMO” means a contract manufacturing organization.

 

“Co-Development Period” is defined in Section 4.8.1.

 

“Combination Product” means a product that includes or incorporates the Compound or any Product in combination with one (1) or more Other Active Ingredients (as defined in the definition of Net Sales), whether the Compound or Product(s), on the one hand, and such Other Active Ingredients, on the other hand, are formulated or packaged together.

 

“Commercialize” or “Commercialization” means to market, promote, distribute, offer for sale, sell, have sold, import, have imported, export, have exported or otherwise commercialize a compound or product, or have any of the foregoing done on the relevant Person’s behalf. When used as a noun, “Commercialization” means any and all activities involved in Commercializing.

 

“Commercially Reasonable Efforts” means, with respect to the Development or Commercialization of a Product in or for a particular country, that level of efforts and resources commonly dedicated by a similarly situated company (whether or not a public benefit corporation) in the research-based pharmaceutical industry to the Development or Commercialization, as the case may be, of a product of similar commercial potential at a similar stage in its lifecycle in or for such country, in each case taking into account issues of access to reasonably necessary Know-How (as identified in Schedule C), safety and efficacy, product profile, the proprietary position, the then- current competitive environment for such product, the likely timing of such product’s entry into the market, the regulatory environment and the status of such product, the reimbursement and pricing environment, and other relevant scientific, technical and commercial factors.

 

 

“Compliance Laws” is defined in Section 10.4.

 

“Compound” means Pfizer’s proprietary gamma secretase inhibitor known as “PF03084014,” with the chemical structure set forth on Schedule A, and any salt, solvate, hydrate, stereoisomer, prodrug, metabolite, isomer (including optical, enantiomeric, diastereoisomeric, geometric or tautomeric), polymorph, crystalline form, or any other form thereof.

 

“Confidential Information” is defined in Section 9.1.

 

“Continuation Product” means any Product that, as of the date of termination of this Agreement, is in a Clinical Trial, is the subject of an NDA filing or has been sold in a First Commercial Sale, mutatis mutandis, as described in the table set forth in Section 13.5.2(b).

 

“Continuation Product Royalty Term” means, with respect to a Continuation Product in a country in the Territory, the period commencing on the First Commercial Sale, mutatis mutandis, of such Continuation Product in such country, and expiring upon the latest to occur of: (a) ten (10) years following the date of such First Commercial Sale of such Continuation Product in such country; (b) the expiration of all regulatory or data exclusivity granted by an applicable Governmental Authority for such Continuation Product in such country; or (c) the date upon which the Manufacture, use, sale, offer for sale or importation of such Continuation Product in such country would no longer infringe, but for the license granted herein, a Valid Claim, mutatis mutandis, of a Licensed Patent Right or Patent Right in Developed IP that is licensed to Pfizer pursuant to Section 13.5.2(b)(ii).

 

“Control” or “Controlled” means, with respect to any Intellectual Property Rights or other rights to provide data or other information, the legal authority or right (whether by ownership, license (other than any license granted pursuant to this Agreement) or otherwise) of a Party (or, as set forth herein, any of its Affiliates) to grant a license or a sublicense of or under such Intellectual Property Rights to the other Party or provide such data or other information to such other Party, in each case without breaching the terms of any agreement with a Third Party.

 

“CRO” means a contract research organization.

 

“Develop” or “Development” means to conduct any research or development activities with respect to a compound or product (including activities to import a compound or product for such purpose or to obtain Regulatory Approval for such compound or product), or to have any of the foregoing done on the relevant Person’s behalf.

 

“Developed IP” means any Intellectual Property Rights that are conceived or reduced to practice, or otherwise created or developed, by or on behalf of a Party, its Affiliates or sublicensees, alone or together with one or more Third Parties, during the Term in connection with the Development, Manufacture, or use of the Compound or any Product.

 

“Development Exclusion” is defined in Section 2.3.

 

 

“Development Milestone” is defined in Section 5.2.

 

“Development Milestone Payment” is defined in Section 5.2.

 

“Development Plan” is defined in Section 4.6.

 

“Disputes” is defined in Section 16.1.1.

 

“Effective Date” is August 18, 2017, the effective date of the Original Agreement.

 

“Election Notice” is defined in Section 7.4.3.

 

“Enabling Know-How” means any Know-How, other than the Licensed Know-How, that (a) is Controlled by Pfizer or any Existing Pfizer Affiliates as of the Effective Date that is necessary for Licensee to (i) Exploit the Compound, and any Product, in the form in which it existed as of the Effective Date, in Field 1 within the Territory and (ii) use, have used, research, Develop, have Developed, Manufacture, have Manufactured, distribute, have distributed, import, have imported, export or have exported, in each case, for purposes other than the commercialization of the Compound or any Product, (but, for clarity, not to Manufacture, have Manufactured, market, have marketed, promote, have promoted, distribute, have distributed, import, have imported, export, have exported, offer for sale, have offered for sale, sell or have sold for the commercialization of the Compound or any Product) the Compound, or any Product, in the form which it existed as of the Effective Date, in Field 2 within the Territory, and (b) is provided to Licensee or any of its Affiliates by Pfizer or any of its Affiliates.

 

“Enabling Patent Rights” means any Patent Rights, other than the Licensed Patent Rights and Patent Rights in Developed IP, that are Controlled by Pfizer or any Existing Pfizer Affiliates as of the Effective Date that are necessary for Licensee to (a) Exploit the Compound, or any Product, in the form in which it existed as of the Effective Date, in Field 1 within the Territory and (a) use, have used, research, Develop, have Developed, Manufacture, have Manufactured, distribute, have distributed, import, have imported, export or have exported, in each case, for purposes other than the commercialization of the Compound or any Product, (but, for clarity, not to Manufacture, have Manufactured, market, have marketed, promote, have promoted, distribute, have distributed, import, have imported, export, have exported, offer for sale, have offered for sale, sell or have sold for the commercialization of the Compound or any Product) the Compound, or any Product, in the form which it existed as of the Effective Date, in Field 2 within the Territory. For clarity, the Enabling Patent Rights are not considered Licensed Patent Rights for purposes of the prosecution, enforcement or Royalty provisions of this Agreement.

 

“EU” means the member states of the European Union, as constituted from time to time.

 

“Existing Pfizer Affiliates” means the Affiliates of Pfizer existing as of the Effective Date.

 

“Exploit” means to use, have used, research, Develop, have Developed, Manufacture, have Manufactured, Commercialize, have Commercialized or otherwise exploit.

 

“FD&C Act” means the United States Federal Food, Drug and Cosmetic Act, as amended.

 

 

“FDA” means the United States Food and Drug Administration, or a successor federal agency thereto.

 

“Field 1” means the treatment, diagnosis, or prevention of disease in humans or animals for all purposes other than Field 2 and [***].

 

“Field 2” means the treatment, diagnosis, or prevention of Alzheimer’s Disease, breast cancer and prostate cancer. For clarity, Field 2 does not include [***].

 

“Fields” means Field 1 and Field 2.

 

“Final Royalty Payment” is defined in Section 5.12.

 

“Final Royalty Report” is defined in Section 5.12.

 

“First Commercial Sale” means, with respect to a Product and a country in the Territory, the first sale of such Product by Licensee or Licensee’s Affiliate or sublicensee to a Third Party in such country following receipt of Regulatory Approval for such Product in such country.

 

“Force Majeure Event” is defined in Section 17.4.

 

“Generic Competition” means, with respect to a particular country in the Territory, when the Generic Products have, in the aggregate, achieved more than [***] of the market share in such country by unit volume of combined unit sales of all Products and all Generic Products.

 

“Generic Product” means, with respect to a particular country in the Territory, any pharmaceutical product that (a) is marketed for sale by a Third Party not authorized by Licensee, (b) receives Regulatory Approval (with or without pricing or reimbursement approval) in such country in full or partial reliance on the Regulatory Approval (but not necessarily pricing or reimbursement approval) of a Product, and (c) is determined by a Regulatory Authority to be therapeutically equivalent to and substitutable with a Product, it being acknowledged that the foregoing standard is intended to be consistent with the standard set forth in the introduction to the “Orange Book,” as amended from time to time, or any analogous or comparable standard in any country outside of the United States. For avoidance of doubt, in the United States, a “Generic Product” as defined herein includes one approved under Section 505(j) of the Federal Food Drug and Cosmetic Act, as supplemented or amended.

 

“Good Manufacturing Practice” or “GMP” means the regulatory requirements for current good manufacturing practices for pharmaceuticals promulgated by the FDA, as the same may be amended from time to time, and such standards of good manufacturing practice as are required by the Regulatory Authorities of the EU and other organizations and Governmental Authorities in countries in which any Product is intended to be manufactured or sold, to the extent such standards are not less stringent than United States GMP; provided that a Party shall not be held to any standards required by countries outside the United States and EU unless such standards have been specifically identified and approved for implementation by the mutual written agreement of the Parties.

 

“Government Official” is defined in Section 10.4.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

“Governmental Authority” means any United States federal, state or local organization or authority, or any foreign government or any political subdivision thereof, or any multinational organization or authority, or any authority, agency or commission entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, or any court or tribunal (or any department, bureau or division thereof), or any governmental arbitrator or arbitral body. For clarity, any Regulatory Authority shall be a Governmental Authority.

 

“IIRs” means the Investigator Initiated Research Agreements for the Product in effect as of the Effective Date, set forth on Schedule I.

 

“Inactive Case” is defined in Section 7.3.

 

“IND” means: (a) an investigational new drug application filed with the FDA for authorization for the investigation of any Product, and (b) any of its foreign equivalents as filed with the applicable Regulatory Authorities in other countries or regulatory jurisdictions in the Territory, as applicable.

 

“Indemnitee” is defined in Section 11.3.

 

“Indemnitor” is defined in Section 11.3.

 

“Initial Period” is defined in Section 7.4.1.

 

“Intellectual Property Rights” means all trade secrets, copyrights, Patent Rights, trademarks, moral rights, Know-How and any and all other intellectual property or proprietary rights now known or hereafter recognized in any jurisdiction.

 

“IPO” means an initial public offering of stock.

 

“Joint Development Committee” or “JDC” is defined in Section 4.8.1.

 

“Know-How” means any invention, discovery, development, data, information, process, method, tangible material, technique, or other know-how, whether or not patentable.

 

“Knowledge” means the actual knowledge of the individuals listed on Schedule B, but is not meant to require or imply that any inquiry or investigation has been undertaken or that any type of search (independent of that performed by the actual Governmental Authority during the normal course of patent prosecution, as applicable, in a jurisdiction) has been conducted or opinion of counsel obtained.

 

“License Agreements” means, collectively, (a) this Agreement, (b) the License Agreement by and among SpringWorks Subsidiary 3, Inc., Warner-Lambert Company LLC, Pfizer Inc. and SpringWorks, dated as of the Effective Date, (c) the License Agreement by and among SpringWorks Subsidiary 1, Inc. (“FAAH Subsidiary”), Pfizer Inc., PPI and SpringWorks, dated as of October 3, 2017 (the “FAAH Agreement) and (d) the License Agreement by and among SpringWorks Subsidiary 4, Inc. (“Senicapoc Subsidiary”), Pfizer Inc., Pfizer Research (NC) and SpringWorks, dated as of October 3, 2017 (the “Senicapoc Agreement”).

 

 

“License Request” is defined in Section 13.5.2(b)(ii).

 

“Licensed Know-How” means all Know-How that is (a) Controlled by Pfizer or any Existing Pfizer Affiliates as of the Effective Date and (i) listed in Schedule C, or (ii) required to be transferred by Pfizer to Licensee in accordance with Schedule D or (b) Controlled by Pfizer or any of its Affiliates as of the Effective Date or during the Term and is otherwise provided or made available to Licensee by Pfizer’s Strategic Operations team via Pfizer’s secure file sharing. For avoidance of doubt, Licensed Know-How also includes the Know-How Controlled by Pfizer or any Existing Pfizer Affiliate as of the Effective Date described in Schedule K.

 

“Licensed Patent Rights” means (a) the Patent Rights listed on Schedule E, (b) all divisionals, continuations, and continuations-in-part that claim priority to the patent applications described in subsection (a) or the patent applications from which the patents described in subsection (a) issued, (c) all patents that have issued or in the future issue from any of the foregoing patent applications in subsections (a) and (b), including utility, model and design patents and certificates of invention, (d) any patents-of-addition, re-examinations, reissues, renewals, extensions or restorations of any of the foregoing, and (e) any foreign counterparts or equivalents of any of the foregoing. For clarity, each Inactive Case that is included in Schedule E shall be included in the Licensed Patent Rights to the extent they are in force as of the Effective Date or can be and are revived and maintained by Licensee in accordance with this Agreement. All Arising Patent Rights are hereby deemed to constitute part of the Licensed Patent Rights for all purposes under this Agreement, including the licenses granted in Section 2.1 and the payment obligations in Article 5, but excluding for purposes of the representations and warranties made under Article 10. Schedule E shall be updated from time-to-time during the Term by Licensee to include patent applications within the Arising Patent Rights.

 

“Licensed Technology” means, collectively, the Licensed Patent Rights and Licensed Know-How.

 

“Licensee” is defined in the introduction to this Agreement.

 

“Licensee Developed IP” means Developed IP Controlled by Licensee during the Term (other than the Pfizer Developed IP that is licensed to Licensee under Section 2.1).

 

“Licensee Indemnitees” is defined in Section 11.2.

 

“Major Market” means each of the following countries: [***].

 

“Manufacture” or “Manufacturing” means to make, produce, manufacture, process, fill, finish, package, label, perform quality assurance testing with respect to, release, ship or store a compound or product or any component thereof, or have any of the foregoing done on the relevant Person’s behalf. When used as a noun, “Manufacture” or “Manufacturing” means any and all activities involved in Manufacturing a compound or product or any component thereof.

 

“Marginal Royalty Rate” means the tiered royalty rates set forth in Section 5.4.

 

“Material New Information” means any statistically significant or material data or information relating to an applicable Product and resulting from the completion of a Clinical Trial in the Fields, that would increase the probability that such Product would be further Developed or receive Regulatory Approval.

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

“Milestone Payments” means, collectively, the Development Milestone Payments and Sales Milestone Payments.

 

“NDA” means, with respect to a pharmaceutical product, a New Drug Application submitted to the FDA in accordance with the United States Federal Food, Drug and Cosmetic Act, as amended, and the rules and regulations promulgated thereunder, or any analogous application or submission with any Regulatory Authority outside of the United States.

 

“Negotiation Period” is defined in Section 2.6.3.

 

“Net Sales” means, with respect to all Products distributed or sold in the Territory to Third Parties by Licensee, its Affiliates and sublicensees, the gross amount invoiced for sales of such Products in the Territory, less in each case (a) sales returns, credits or allowances actually paid, granted or accrued, including trade, quantity and cash discounts, other adjustments, including those granted on account of price adjustments, returns, rebates, chargebacks (including for spoiled, damaged, outdated, rejected or returned Product) or similar payments granted or given to wholesalers or other institutions; (b) adjustments arising from consumer discount programs or other similar programs; (c) customs or excise duties, value-added taxes, sales taxes, consumption taxes, or other taxes (except taxes on net income) or duties relating to sales, or any payment in respect of sales provided such duties or taxes are recorded in gross sales; (d) any payment in respect of sales to the United States government, any state government or any foreign government or to any other Governmental Authority, or with respect to any government subsidized program or managed- care organization, including that portion of the annual fee paid under Section 9008 of the United States Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 11-48) that Licensee or its Affiliates or sublicensees reasonably allocate on a pro rata basis to the sales of Products in accordance with the standard practices of Licensee or its applicable Affiliate or sublicensee as consistently applied across its respective products; (e) actual freight, shipping, handling and insurance costs up to [***] of Net Sales; (f) discounts or rebates or other payments required by Applicable Law, including any governmental special medical assistance programs; (g) fee for service wholesaler fees and inventory management fees paid to Third Party wholesalers, including hospital buying group/group purchasing organization administration fees; and (h) amounts that are written off as uncollectible in accordance with the accounting procedures of Licensee or its applicable Affiliate or sublicensee, consistently applied, provided that Licensee, its Affiliate or sublicensee (as applicable) has made reasonable efforts to collect on such receivable, and provided, further, (1) that if such receivable shall thereafter be paid or otherwise satisfied, the amount thereof shall be added to Net Sales for the Calendar Quarter in which so paid or satisfied and (2) such deduction for uncollectible accounts does not exceed [***] of Net Sales. Net Sales shall be determined from the Licensee’s, or its applicable Affiliate’s or sublicensee’s, books and records maintained in accordance with Accounting Standards consistently applied.

 

Resales or sales of a Product made in good faith between or among Licensee, any of its Affiliates or any of its sublicensees shall not be included in the calculation of Net Sales, but the first sale thereafter to a Third Party (other than a sublicensee) shall be included the calculation of Net Sales.

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

If the Compound contained in a Combination Product is sold separately as a Product (a “Compound Product”) in such country and the other therapeutically active ingredients contained in the Combination Product (“Other Active Ingredient(s)”) are also sold separately in such country, Net Sales will be calculated by multiplying the total Net Sales (as described above) of the Combination Product by the fraction A/(A+B), where A is the average gross selling price in such country of the Compound Product sold separately in the same formulation and dosage, and B is the average gross selling price in such country of such Other Active Ingredient(s) during the applicable Calendar Year.

 

If the Compound Product contained in the Combination Product is sold independently of the Other Active Ingredient(s) contained in the Combination Product in such country, but the average gross selling price of such Other Active Ingredient(s) in such country cannot be determined, Net Sales will be calculated by multiplying the total Net Sales (as described above) of the Combination Product by the fraction A/C where A is the average gross selling price in such country of such Compound Product sold independently and C is the average gross selling price in such country of the entire Combination Product, during the applicable Calendar Year.

 

If the Other Active Ingredient(s) contained in the Combination Product are sold independently in such country, but there is no applicable Compound Product in such country (i.e., the Compound contained in the Combination Product is not sold separately as a Product in such country) or the average gross selling price of the applicable Compound Product in such country cannot be determined, Net Sales will be calculated by multiplying the total Net Sales (as described above) of the Combination Product by the fraction (1-(B/C)), where B is the average gross selling price in such country of such Other Active Ingredient(s) and C is the average gross selling price in such country of the entire Combination Product, during the applicable Calendar Year.

 

If there is no applicable Compound Product contained in the Combination Product and the Other Active Ingredient(s) contained in the Combination Product are not sold separately in such country, or the average gross selling price of neither such Compound Product nor such Other Active Ingredient(s) can be determined in such country, then Net Sales of the Combination Product in such country will be calculated by mutual agreement of the Parties; provided, that if the Parties cannot reach mutual agreement prior to the end of an applicable accounting period, such matter shall be resolved in accordance with Section 16.1

 

“Parent” means (a) with respect to Licensee, any Person that, during the Term, ultimately controls Licensee (which, as of the Effective Date, is SpringWorks), and (b) with respect to Pfizer, any Person that, during the Term, ultimately controls Pfizer. For the purpose of this definition, “control” shall refer to: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of Licensee or Pfizer, as applicable, whether through the ownership of voting securities or other ownership interest, by contract or otherwise, or (b) the ownership, directly or indirectly, of fifty percent (50%) or more of the voting securities or other ownership interest of Licensee or Pfizer, as applicable, and, “ultimately control” means that the relevant Person itself is not controlled by another Person.

 

“Party” and “Parties” is defined in the introduction to this Agreement.

 

 

“Patent Rights” means any and all (a) issued patents, (b) pending patent applications, including all provisional applications, divisions, continuations, substitutions, continuations-inpart and renewals, and all patents granted thereon, (c) patents-of-addition, re-examinations, reissues 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, (e) other forms of government-issued rights substantially similar to any of the foregoing and (f) United States and foreign counterparts of any of the foregoing.

 

“Permitted Third Party Partner” means any academic or non-profit research institution, hospital, CRO, contract manufacturer, contract employee, consultant or any Third-Party performing services on behalf of Licensee.

 

“Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, Governmental Authority, or any other form of entity not specifically listed herein.

 

“Pfizer” is defined in the introduction to this Agreement.

 

“Pfizer Cap” is defined in Section 12.2.

 

“Pfizer Developed IP” means Developed IP Controlled by Pfizer or any of its Affiliates during the Term. For clarity, any Patent Rights included in the Pfizer Developed IP are not considered Licensed Patent Rights for purposes of the prosecution, enforcement or Royalty provisions of this Agreement.

 

“Pfizer Exercise Period” is defined in Section 2.6.2.

 

“Pfizer Inc.” is defined in the introduction to this Agreement.

 

“Pfizer Indemnitees” is defined in Section 11.1.

 

“Pfizer Notice of Exercise” is defined in Section 2.6.2.

 

“Pharmacovigilance Agreement” is defined in Section 4.7.

 

“Phase I Clinical Trial” means a clinical trial that generally provides for the first introduction into humans of a pharmaceutical product with the primary purpose of determining safety, metabolism and pharmacokinetic properties and clinical pharmacology of such product, in a manner that is generally consistent with 21 C.F.R. § 312.21(a), as amended (or its successor regulation).

 

“Phase II Clinical Trial” means a clinical trial, the principal purpose of which is to make a preliminary determination as to whether a pharmaceutical product is safe for its intended use and to obtain sufficient information about such product’s efficacy, in a manner that is generally consistent with 21 C.F.R. § 312.21(b), as amended (or its successor regulation), to permit the design of further clinical trials.

 

 

“Phase III Clinical Trial” means a pivotal clinical trial with a defined dose or a set of defined doses of a pharmaceutical product designed to ascertain efficacy and safety of such product, in a manner that is generally consistent with 21 C.F.R. § 312.21(c), as amended (or its successor regulation), for the purpose of enabling the preparation and submission of an NDA.

 

“Phase IV Clinical Trial” means a clinical trial to delineate additional information about a pharmaceutical product’s risks, benefits, and optimal use, in a manner that is generally consistent with 21 C.F.R. § 312.85.

 

“PPI” is defined in the introduction to this Agreement.

 

“Product” means a product that includes or incorporates the Compound, alone or in combination with one (1) or more other active agents. For clarity, multiple formulations (or combinations) that contain the same Compound would be deemed one (1) Product for purposes of any Royalty calculation under Section 5.4 or Section 13.5.2.

 

“Recipients” is defined in Section 9.2.

 

“Regulatory Approval” means, with respect to any Product in any country or jurisdiction, any approval, registration, license or authorization that is required by the applicable Regulatory Authority to market and sell such Product in such country or jurisdiction.

 

“Regulatory Authority” means any Governmental Authority responsible for granting Regulatory Approvals for any Product in the Territory.

 

“Regulatory Filings” means, with respect to any Product, any submission to a Regulatory Authority of any appropriate regulatory application, including, without limitation, any IND, NDA, any submission to a regulatory advisory board, any marketing authorization application, and any supplement or amendment thereto.

 

“Relevant Records” is defined in Section 6.1.

 

“Residuals” is defined in Section 2.4.

 

“Review Period” is defined in Section 14.3.

 

“Royalties” is defined in Section 5.4.

 

“Royalty Term” means, with respect to a Product in a country in the Territory, the period commencing on the First Commercial Sale of such Product in such country and expiring upon the latest to occur of: (a) ten (10) years following the date of First Commercial Sale of such Product in such country; (b) the expiration of all regulatory or data exclusivity granted by an applicable Governmental Authority for such Product in such country; or (c) the date upon which the Manufacture, use, sale, offer for sale or importation of such Product in such country would no longer infringe, but for the license granted herein, a Valid Claim of a Licensed Patent Right.

 

“Sales Milestone” is defined in Section 5.3.

 

 

“Sales Milestone Payment” is defined in Section 5.3.

 

“Significant Transaction” means an exclusive license, an exclusive distribution arrangement, an assignment, a sale, an exclusive promotion or co-promotion arrangement, or other transfer of all commercial rights to a Product in a Major Market. For the avoidance of doubt, a research and/or Development license without commercial rights (including rights granted to a Third Party CRO conducting Product-related research or Development services), the granting of license(s) to Manufacture any Product, and a non-exclusive distribution or promotional arrangement, or any other activity with an Affiliate or Permitted Third Party Partner, shall not be considered a Significant Transaction.

 

“Significant Transaction Offer Notice” is defined in Section 2.6.1.

 

“Tax Action” is defined in Section 5.11.2.

 

“Term” is defined in Section 13.1.

 

“Terminated Agreements and MTAs” is defined in Section 10.2.9.

 

“Territory” means anywhere in the world.

 

“Third Party” means any Person other than a Party or an Affiliate of a Party. For the avoidance of doubt, Licensee’s Parent is an Affiliate of Licensee.

 

“Third Party Acquirer” means a Third Party (a) that has purchased or otherwise controls the rights held by Licensee to the Licensed Technology, or (b) that acquires all or substantially all of the assets of Licensee.

 

“Third Party Infringement” is defined in Section 8.1.

 

“Third Party License” is defined in Section 5.5.2.

 

“Transaction” means (a) a Change of Control of Licensee, or (b) a transaction to (i) sublicense to a Third Party Acquirer the worldwide right to (A) Develop and Commercialize the Compound in Field 1 or (B) Develop the Compound in Field 2 or (ii) divest to a Third Party Acquirer all or substantially all of the assets of Licensee; provided, however, that any Change of Control of Licensee’s Parent shall not be considered a Transaction.

 

“Transaction Completion Payment” is defined in Section 5.6.1.

 

“TSA” is defined in Section 3.3.

 

“United States”, “US” or “U.S.” means the United States of America, including its districts, territories and possessions.

 

 

“Valid Claim” means with respect to a particular country, a claim of a Patent Right within the Licensed Patent Rights that (a) with respect to an issued and unexpired patent, (i) has not been held permanently revoked, unenforceable or invalid by a decision of a court or other Governmental Authority of competent jurisdiction, which decision is unappealable or has not been appealed within the time allowed for appeal and (ii) has not expired or been cancelled, withdrawn, abandoned, disclaimed or admitted to be invalid or unenforceable through reissue, disclaimer or otherwise and (b) with respect to a pending patent application, (i) has not been abandoned or finally disallowed without the possibility of appeal or refiling of such application and (ii) with respect to any patent application for which Licensee has provided Pfizer an Election Notice pursuant to Section 7.4.3 and which Pfizer has elected to continue prosecuting, is not pending more than five (5) years after receipt by Pfizer of such Election Notice.

 

“VAT” is defined in Section 5.11.1.

 

1.2           Interpretation.

 

Except where the context requires otherwise, (a) the use of any gender herein shall be deemed to encompass references to any gender, and the use of the singular shall be deemed to include the plural (and vice versa), (b) the words “include”, “includes”, “including” and “e.g.” shall be deemed to be followed by the phrase “without limitation”, (c) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (d) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or therein), (e) any reference herein to any Person shall be construed to include the Person’s successors and permitted assigns, (f) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (g) all references herein to Sections, Exhibits or Schedules shall be construed to refer to Sections, Exhibits or Schedules of this Agreement, and references to this Agreement include all Exhibits and Schedules hereto, (h) the word “notice” means notice in writing (whether or not specifically stated) and shall include notices, consents, approvals and other written communications contemplated under this Agreement, (i) provisions that require that a Party, the Parties or any committee hereunder “agree,” “consent” or “approve” or the like shall require that such agreement, consent or approval be specific and in writing, whether by written agreement, letter, approved minutes or otherwise (but excluding e-mail and instant messaging), (j) references to any specific law, rule or regulation, or article, section or other division thereof, shall be deemed to include the then current amendments thereto or any replacement or successor law, rule or regulation thereof, and (k) the term “or” shall be interpreted in the inclusive sense commonly associated with the term “and/or.”

 

 

2.          License Grant.

 

2.1         License Grants.

 

2.1.1 To Licensee.

 

(a)          Licensed Technology, Enabling Patent Rights, Enabling Know-How and Pfizer Developed IP. Subject to the terms and conditions of this Agreement, including Pfizer’s retained rights set forth in Section 2.3, Pfizer hereby grants to Licensee (a) an exclusive (even as to Pfizer and its Affiliates), sublicensable (subject to Section 2.2), royalty-bearing license under the Licensed Technology to (i) Exploit the Compound and Products in Field 1 within the Territory and (ii) use, have used, research, Develop, have Developed, Manufacture, have Manufactured, distribute, have distributed, import, have imported, export and have exported, in each case for purposes other than the commercialization of the Compound or any Product, (but, for clarity, not to Manufacture, have Manufactured, market, promote, distribute, have distributed, import, have imported, export, have exported, offer for sale, have offered for sale, sell or have sold for the commercialization of the Compound or any Product) the Compound and Products in Field 2 within the Territory, and (b) a non-exclusive, sublicensable (subject to Section 2.2), royalty-free, fully paid-up license under the Enabling Patent Rights, Enabling Know-How and Pfizer Developed IP to (i) Exploit the Compound and Products in Field 1 within the Territory and (ii) use, have used, research, Develop, have Developed, Manufacture, have Manufactured, distribute, have distributed, import, have imported, export and have exported, in each case for purposes other than the commercialization of the Compound or any Product (but, for clarity, not to Manufacture, have Manufactured, market, promote, distribute, have distributed, import, have imported, export, have exported, offer for sale, have offered for sale, sell or have sold for the commercialization of the Compound or any Product) the Compound and Products in Field 2 within the Territory.

 

(b)          Affiliates. To the extent any of the Licensed Technology, the Enabling Patent Rights, the Enabling Know-How or the Pfizer Developed IP are Controlled by an Affiliate of Pfizer, then promptly following the Effective Date, Pfizer shall cause such Affiliate to take all necessary actions to give effect to the licenses granted under this Section 2.1.

 

2.1.2 To Pfizer. Subject to the terms and conditions of this Agreement, Licensee hereby grants to Pfizer a non-exclusive, sublicensable, royalty-free license under the Licensee Developed IP to [***] within the Territory. To the extent that any of the Licensee Developed IP is Controlled by an Affiliate of Licensee, then Licensee shall cause such Affiliate to take all necessary actions to give effect to the license granted under this Section 2.1.2.

 

2.2         Sublicense Rights.

 

2.2.1 Subject to this Section 2.2 and Section 2.6, Licensee may sublicense (directly or to authorize sublicenses through multiple tiers) or divest the rights granted to it by Pfizer under this Agreement during the Term to any of its Affiliates or to any Third Party without Pfizer’s approval.

 

2.2.2 All sublicenses shall be subject to and consistent with the terms and conditions of this Agreement.

 

2.2.3 In no event shall any sublicense relieve Licensee of any of its obligations under this Agreement.

 

2.2.4 Licensee shall furnish to Pfizer a true and complete copy of each sublicense agreement entered into by Licensee with respect to the Licensed Technology and each amendment thereto, within thirty (30) days after the sublicense or amendment has been executed.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

2.3           Retained Rights.

 

Subject to Section 2.8, Licensee acknowledges and agrees that (a) Pfizer retains (i) the right to Commercialize (including to Manufacture or have Manufactured for commercialization) the Compound or any Product in Field 2 in any jurisdiction within the Territory if Licensee or any of its Affiliates or sublicensees receives Regulatory Approval for the Compound or such Product, respectively, in Field 2 in such jurisdiction and (ii) the exclusive right to [***] within the Territory, and, in the case of (i) and (ii), including the right to sublicense or otherwise partner the foregoing retained rights to or with Third Parties, including fee-for-services services providers such as CROs, CMOs, and contract sales representatives to perform activities on Pfizer’s and its sublicensees’ and partners’ behalf, (b) Pfizer retains the right to make, have made, use and import the Compound and Products for Pfizer’s internal research purposes in the Fields; provided, that Pfizer shall not have the right to conduct any Clinical Trial administering the Compound or any Product in the Fields unless the applicable Product is commercially available and Pfizer conducts the applicable Clinical Trial using Product purchased through normal commercial channels (the “Development Exclusion”), (c) Pfizer is free to use the Licensed Patent Rights and Licensed Know-How for purposes other than those exclusively licensed to Licensee under this Agreement, and (d) Pfizer retains the right to permit Sigma Aldrich Co. or Pfizer’s other existing reagent suppliers to sell the Compound to any noncommercial entity (which would have the right to use such Compound), in each case in the form of non-GMP samples of the Compound in mg quantities solely as a research reagent.

 

Notwithstanding anything to the contrary in this Agreement, except for the Development Exclusion and except as set forth in Section 2.8, nothing in this Agreement shall be deemed to prevent or restrict in any way the ability of Pfizer or its Affiliates to conduct any activities in the Territory which would be permitted under any safe harbor, research exemption, government or executive declaration of urgent public health need, or any similar right available in law or in equity, if such activity were conducted by a Third Party (i.e., based on publicly available information, other than any such information that became public due to any breach by Pfizer of this Agreement, including any breach of Article 9). For the avoidance of doubt, except to the extent permitted in this Section 2.3, following the Effective Date, in no event shall Pfizer or any of its Affiliates enter into any agreement with any Third Party regarding, or otherwise permit the initiation of, any investigator- initiated Clinical Trial administering the Compound or any Product (other than for Cell-Based Use), unless Licensee has approved such activities in advance in writing. For the avoidance of doubt, Pfizer may conduct Clinical Trials to Develop or otherwise Exploit the Compound or any Product for Cell-Based Uses.

 

2.4           Residuals.

 

Subject to Section 2.8, Pfizer may use the Residuals resulting from Pfizer’s access to or work with the Product for any purpose other than (a) Exploiting the Compound or any Product in Field 1 (for the avoidance of doubt, excluding [***]) in the Territory during the Term and (b) Exploiting the Compound or any Product in Field 2 (for the avoidance of doubt, excluding Cell-Based Use) in the Territory during the Term in any manner other than that set forth in Section 2.3(a)(i); provided, however, that nothing in this Section 2.4 grants Pfizer any rights in or licenses to any Patent Rights Controlled by Licensee or any of its Affiliates or sublicensees. Licensee may use the Residuals for any purpose; provided, however, that nothing in this Section 2.4 grants Licensee any rights in or licenses to any Patent Rights Controlled by Pfizer or any of its Affiliates. As used herein, “Residuals” means information in non-tangible form which may be retained in the memories of the relevant Party’s employees or consultants who have had access to the Products or Licensed Know-How, including such information in the form of ideas, concepts, know-how or techniques.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

2.5          No Additional Rights.

 

Nothing in this Agreement shall be construed to confer any rights upon any Party by implication, estoppel, or otherwise as to any technology or Intellectual Property Rights of the other Party or its Affiliates, other than the rights in Licensed Technology, the Enabling Patent Rights, the Enabling Know-How, the Pfizer Developed IP and the Residuals expressly granted to Licensee herein, regardless of whether such technology or Intellectual Property Rights shall be dominant or subordinate to any Licensed Technology, Enabling Patent Rights, Enabling Know-How and Pfizer Developed IP.

 

2.6          Right of First Negotiation.

 

Subject to the terms and conditions of this Agreement, Licensee hereby grants to Pfizer an exclusive right of first offer to negotiate and enter into an agreement for a Significant Transaction, subject to the terms and conditions set forth in this Section 2.6, including Section 2.6.6.

 

2.6.1 Prior to entering into negotiations with a Third Party for a Significant Transaction for a Product in a Major Market, Licensee shall provide Pfizer with (a) written notice of the nature of the proposed Significant Transaction, (b) the Product and the Major Market (or Major Markets) for which the Significant Transaction is sought, and (c) a summary of the most recent material clinical data for the relevant Product within Licensee’s possession and control (such notice together with the related information, the “Significant Transaction Offer Notice”).

 

2.6.2 If Pfizer has a good faith desire to obtain rights to the Product in the Major Market (or Major Markets) as set forth in the Significant Transaction Offer Notice, then Pfizer may notify Licensee within twenty (20) days of the receipt of the Significant Transaction Offer Notice (the “Pfizer Exercise Period”) that it desires to enter into negotiations with respect to such Significant Transaction (the “Pfizer Notice of Exercise”).

 

2.6.3 If Pfizer provides the Pfizer Notice of Exercise to Licensee in accordance with Section 2.6.2, then (a) from and after the receipt of the Pfizer Notice of Exercise and for a continuous period of [***] thereafter (the “Negotiation Period”), the Parties will negotiate exclusively with each other with respect to such Significant Transaction in good faith and with the intent of entering into a mutually acceptable definitive, written agreement with respect to the Significant Transaction, and (b) if the Parties do not enter into a Significant Transaction within the Negotiation Period, then Licensee may negotiate and enter into a Significant Transaction with a Third Party for the Product and the Major Market (or Major Markets) set forth in the Significant Transaction Offer Notice; provided, that, for a period of nine (9) months from the expiration of the Negotiation Period, Licensee shall not enter into an agreement with a Third Party with respect to the applicable Product in the Major Market (or Major Markets) set forth in the Significant Transaction Offer Notice on economic terms and conditions that, when viewed as a whole, are less favorable to Licensee as compared to the terms and conditions in the last proposal submitted by Pfizer to Licensee with respect thereto during the Negotiation Period.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

2.6.4 If Pfizer does not provide the Pfizer Notice of Exercise to Licensee in accordance with Section 2.6.2, then Licensee may negotiate and enter into a Significant Transaction with a Third Party for the Product and the Major Market (or Major Markets) set forth in the Significant Transaction Offer Notice; provided, that, (a) if Licensee fails to enter into a Significant Transaction with a Third Party with respect to the applicable Product in one (1) or more of the applicable Major Markets within [***] after the expiration of the Pfizer Exercise Period, then Pfizer’s right of first negotiation pursuant to this Section 2.6 shall be reinstated with respect to a Significant Transaction for such Product for those applicable Major Markets for which Licensee had not entered into a Significant Transaction with a Third Party, or (b) if Material New Information becomes available relating to the applicable Product before Licensee enters into a Significant Transaction for such Product with a Third Party covering one or more of the Major Markets described in the Significant Transaction Offer Notice, then Pfizer’s right of first negotiation pursuant to this Section 2.6 shall be reinstated with respect to a Significant Transaction for such Product for those applicable Major Markets for which Licensee had not entered into a Significant Transaction with a Third Party.

 

2.6.5 The rights granted to Pfizer under this Section 2.6 shall terminate (a) in their entirety on the earliest of (i) an IPO of Licensee or its Parent, (ii) a sale of all or substantially all of the assets of Licensee that relate to the Products, (iii) a Change of Control of Licensee, or (iv) the first filing of an NDA for any Product in any Major Market, and (b) with respect to any Product in any Major Market, upon Licensee granting a Third Party a sublicense to Commercialize such Product in such Major Market in accordance with this Section 2.6.

 

2.6.6 For clarity, (a) nothing shall prevent Licensee or any of its Affiliates from negotiating or executing any confidentiality agreement or participating in general discussions (not focused on a Significant Transaction) with any prospective partner, investor, licensor, licensee or other Third Party, (b) Licensee shall have no obligation to provide Pfizer with (i) the identity of any Third Party or (ii) except (A) as required to be set forth in a Significant Transaction Offer Notice or (B) as required in discovery in the event of a dispute between the Parties as to whether Pfizer’s rights under this Section 2.6 have been triggered, any terms of any transaction negotiated with a Third Party, and (c) if Pfizer provides the Pfizer Notice of Exercise with respect to a Product and a Major Market, Pfizer shall have no more than one (1) opportunity to negotiate a Significant Transaction for such Product in such Major Market.

 

For the purposes of this Section 2.6 only, “Third Party” shall mean any Person other than (a) a Party or an Affiliate of a Party, or (b) a Permitted Third Party Partner.

 

2.7           365(n) Rights.

 

All rights granted under this Agreement by Pfizer are, for the purposes of Article 365(n) of the Bankruptcy Code, licenses of rights to “intellectual property” as defined under Article 101 of the Bankruptcy Code. The Parties agree that Licensee will retain, and may fully exercise, all of its rights and elections as a licensee under the Bankruptcy Code.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

2.8          Exclusivity.

 

2.8.1 Subject to Section 2.8.2 and Section 2.8.3, for ten (10) years following the Effective Date, neither Pfizer nor any of its Affiliates shall, without the prior written consent of Licensee, conduct Clinical Trial of any compound that is a gamma secretase inhibitor, or any product that includes or incorporates a gamma secretase inhibitor, for the treatment, diagnosis or prevention of desmoid tumors.

 

2.8.2 If a Change of Control occurs with respect to Pfizer and a Third Party, or if Pfizer or any Existing Pfizer Affiliates acquires or merges with a Third Party, and such Third Party is, at the time of such Change in Control or acquisition or merger, conducting activities that would, if conducted by Pfizer or any of its Affiliates, cause Pfizer or one of its Affiliates to violate Section 2.8.1 or conducting studies in desmoid tumor animal models for the treatment, diagnosis or prevention of desmoid tumors with any compound that is a gamma secretase inhibitor (such activities, an “Acquisition Program”), then Pfizer and/or such Third Party once it is an Affiliate of Pfizer will be permitted to continue such Acquisition Program and such continuation will not constitute a violation of Section 2.8.1; provided that (a) no Licensed Technology is used in such Acquisition Program, (b) no Confidential Information of Licensee is used in such Acquisition Program and (c) neither the Compound nor any Product is used in such Acquisition Program. For purposes of this Section 2.8.2, the term “acquires” shall include an acquisition of the assets of a Third Party; provided, that the Acquisition Program does not constitute more than ten percent (10%) of the value of the assets acquired from the Third Party, and the assets acquired by Pfizer or its Existing Pfizer Affiliates from such Third Party constitute all the assets of such Third Party related to the Acquisition Program.

 

2.8.3 From and after the date on which a Change of Control occurs with respect to Licensee, if any, the obligations set forth in Section 2.8.1 shall no longer apply to Pfizer or its Affiliates.

 

3.          Transfer Activities.

 

3.1           Transfer Activities Schedules.

 

Schedule C and Schedule D sets forth the documentation, materials and other Know-How that Pfizer will transfer to Licensee, and Schedule D sets forth the personnel support to be provided by Pfizer, and related activities to be performed by the Parties with respect thereto.

 

3.2           Compassionate Use and IIRs.

 

Following the Effective Date until the execution of the TSA, the Parties agree that Pfizer and/or its Existing Pfizer Affiliates will be responsible for (a) administering the compassionate use program, including without limitation ensuring appropriate clinical supply of the Compound and/or Products for the program and using the current protocol therefor to determine whether or not to accept new compassionate use requests, for all compassionate use patients receiving the Product during such period, and (b) supporting and maintaining all IIRs in effect as of the Effective Date.

 

 

3.3           Transition and Assignment Agreements.

 

Within thirty (30) days after the Effective Date, the Parties shall negotiate in good faith and execute (a) an assignment agreement between Pfizer (and/or one of its Existing Pfizer Affiliates), pursuant to which Pfizer and/or one of its Existing Pfizer Affiliates will assign to Licensee and Licensee will assume all agreements listed therein; (b) a transitional services agreement between Pfizer Inc. and SpringWorks, pursuant to which Pfizer Inc. will, consistent with its past practices, support the IIRs and administer the program of compassionate use as described therein (the “TSA”); and (c) a quality agreement between Pfizer and Licensee, which will govern the roles and responsibilities of the Parties with respect to GMP materials transferred to Licensee by Pfizer.

 

3.4           Terminated Agreements and MTAs.

 

Within sixty (60) days after the Effective Date, Pfizer shall use commercially reasonable efforts to identify and provide to Licensee all Terminated Agreements and MTAs that might limit any license right granted to Licensee or its Affiliates under this Agreement, including any nonexclusive rights granted that would impact the exclusive rights granted to Licensee hereunder.

 

4.          Development; Commercialization; Manufacturing.

 

4.1           General.

 

Subject to the terms of this Agreement, including Sections 2.3 and 4.2 and Article 3, Licensee shall have sole responsibility for the cost and expense of, and the sole authority over and control of, (a) the Development, Manufacture (except for any existing supply of the Compound transferred as part of the transfer activities set forth on Schedule D) and Regulatory Approval of the Compound and Products in the Fields (for the avoidance of doubt, excluding Cell Based Uses) in the Territory, and (b) the Commercialization of the Compound and Products in Field 1 in the Territory.

 

4.2           Diligence.

 

4.2.1 Development and Commercialization in the United States. Licensee shall, itself or through its Affiliates or sublicensees, use Commercially Reasonable Efforts to (a) pursuant to the Development Plan, Develop and seek Regulatory Approval, including, as applicable, pricing and reimbursement approval, for at least one (1) Product in Field 1 in the United States, and (b) Commercialize each Product in Field 1 in the United States for which Licensee or its designated Affiliates or sublicensees have received Regulatory Approval, including pricing and reimbursement approval.

 

4.2.2 Development and Commercialization in Other Major Markets. If Licensee reasonably anticipates that a Product that has received Regulatory Approval in the United States in Field 1, including, as applicable, pricing and reimbursement approval, will receive reimbursement in any other Maj or Market in Field 1 at [***] or more of the United States price for such Product, then Licensee shall, itself or through its Affiliates or sublicensees, use Commercially Reasonable Efforts to (a) pursuant to the Development Plan, Develop and seek Regulatory Approval, including pricing and reimbursement approval, for one (1) such Product in Field 1 in one (1) such other Major Market, and (b) if Licensee or its designated Affiliates or sublicensees have received Regulatory Approval, including pricing and reimbursement approval, for such Product in Field 1 in any such other Major Market, Commercialize such Product in Field 1 in any such other Major Market.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

4.3           Regulatory Filings.

 

In connection with its efforts to Develop the Product, Licensee shall bear all responsibility and expense for submitting Regulatory Filings and obtaining Regulatory Approval for the Products. Upon the effective date of transfer of the Regulatory Filings, Licensee shall be responsible for maintaining at its sole expense such Regulatory Filings transferred to Licensee pursuant to Schedule D.

 

4.4           Progress Reporting.

 

During the Term, (a) at least ninety (90) days after the start of each Calendar Year, Licensee shall provide to Pfizer a report including (i) an update on the progress of Licensee’s Development and Commercialization activities, including key achievements and milestones reached (as reasonably determined by Licensee), in the prior Calendar Year and Clinical Trials that were conducted or in progress in such prior Calendar Year, and (ii) a summary of the planned Development and Commercialization activities for the current Calendar Year, including key achievements and milestones that are expected and studies planned; and (b) at least ninety (90) days prior to the start of each Calendar Year, Licensee shall provide to Pfizer a non-binding three (3) year forecast of payments that are anticipated to be made to Pfizer pursuant to Sections 5.2 and 5.3, which forecast shall be reported on a Calendar Quarter basis for the first year of such forecast and on a Calendar Year basis for the second and third years of such forecast.

 

4.5           CROs and CMOs.

 

Licensee may contract with Third Party CROs or CMOs to handle certain clinical Development or Manufacturing activities, in Licensee’s reasonable discretion, consistent with the then-current Development Plan. As between the Parties, all costs of such CROs or CMOs will be borne solely by Licensee. For clarity, Licensee shall not be required to obtain Pfizer’s consent for a sublicense to a CRO or CMO.

 

4.6           Development Plan.

 

Licensee will, itself or through its Affiliates or sublicensees, Develop and Commercialize the Compound and Products in Field 1, consistent with the terms and conditions set forth in this Section 4.6 and the development plan as set forth in Schedule F, as amended by Licensee pursuant to this Section 4.6 (the “Development Plan”). Each updated Development Plan shall include all Development and Commercialization activities, in a similar amount of detail as in the draft of the Development Plan set forth in Schedule F as of the Effective Date, that are reasonably anticipated to be undertaken by Licensee to advance the Compound or a Product. Licensee will provide Pfizer with an updated Development Plan once per Calendar Year. To the extent Licensee substantively changes the Development Plan, Licensee will provide Pfizer with such changed Development Plan within thirty (30) days of the occurrence of such substantive change. For purposes of this Section 4.6, a “substantive change” means only the following: (a) an increase or decrease of more than twenty percent (20%) in Licensee’s then-current Development or Commercialization activities budget; (b) an anticipated delay of more than three (3) months in any Development Milestone, as compared with the timeline set forth in the most recent version of the Development Plan received by Pfizer; (c) elimination of any country(ies) in which the Development or Commercialization activities are planned; and (d) the addition or deletion of an indication in the Fields that is being pursued under the Development Plan. The obligations set forth in this Section 4.6 shall expire on the First Commercial Sale of any Product in the U.S.; provided, however, that, if Licensee is required to obtain Regulatory Approval of such Product in a Major Market in accordance with Section 4.2.2, the obligations set forth in this Section 4.6 shall expire (other than with respect to the U.S.) with respect to such Product on the First Commercial Sale of such Product in the first Major Market (other than the U.S.).

 

 

4.7          Pharmacovigilance Agreement.

 

Within three (3) months after the Effective Date, the Parties will in good faith negotiate and finalize a separate pharmacovigilance agreement (the “Pharmacovigilance Agreement”), the terms of which shall set forth the obligations, procedures and timelines for exchanging information pertaining to safety reporting obligations observed in connection with the Compound and each Product.

 

4.8          Joint Development Committee.

 

4.8.1 Responsibilities. If, at any time during the Term, Pfizer desires to conduct Development activities with respect to the Compound or Product for [***] (any time when such Development activities are being conducted, the “Co-Development Period”), the Parties shall establish a committee (the “Joint Development Committee” or “JDC”) to provide a forum for the Parties to discuss the Development of the Compound and Products both inside and outside the Fields, including (a) Clinical Trials planned by either Party, and (b) the exchange of information relating to adverse events and safety issues that may arise during the course of such Development. The JDC shall continue to exist and meet in accordance with this Section 4.8 during the Co-Development Period.

 

4.8.2 Membership. The JDC shall be comprised of two (2) representatives (or such other number of representatives as the Parties may agree in writing) from each of Pfizer and Licensee. Each Party may replace any or all of its representatives on the JDC at any time upon written notice to the other Party. Any member of the JDC may designate a substitute representative to attend and perform the functions of that member at any meeting of the JDC. Each Party may invite non-member representatives of such Party to attend meetings of the JDC; provided that there is a reasonable need for such non-member representative to attend a meeting based on the expected agenda for the meeting. Each Party shall subject its member and nonmember representatives to confidentiality obligations no less restrictive than the confidentiality obligations set forth in Article 9.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

4.8.3 Meetings. During the Co-Development Period, the JDC shall meet at least once each Calendar Quarter, and more or less frequently as the Parties mutually deem appropriate, on such dates, and at such places and times, as the Parties shall agree. Meetings of the JDC may occur in person, by telephone or by video conference. Each Party shall bear all expenses it incurs in regards to participating in all meetings of the JDC.

 

4.8.4 Minutes. Unless otherwise agreed, the Parties will alternate responsibility for preparing and circulating draft minutes of each meeting of the JDC, including a summary description of the discussions at the meeting.

 

4.8.5 Decision-Making Authority. The Parties acknowledge and agree that the JDC is solely a forum for discussion between the Parties and that (a) Licensee retains sole decision-making authority with respect to the Compound and Products in the Fields in the Territory, in each case consistent with the license granted to Licensee in Section 2.1, and (b) Pfizer retains sole decision-making authority with respect to the Compound and Products for [***] and for any other uses for which Pfizer has retained rights as set forth in Section 2.3.

 

5.          Payment Terms.

 

5.1           Transfer Activities Payments.

 

In consideration of the transfer activities to be performed by Pfizer pursuant to Schedule D, Licensee shall pay to Pfizer the amounts set forth in Schedule D.

 

5.2           Development Milestone Payments.

 

In consideration of the licenses and rights granted to Licensee hereunder, Licensee shall pay to Pfizer the amounts set forth below following the first occurrence of each event described in the first column below by, as applicable, Licensee, any Affiliate of Licensee, any sublicensee of Licensee or any Third Party Acquirer (each such event, a “Development Milestone” and each payment, a “Development Milestone Payment”).

 

DEVELOPMENT MILESTONE (IN EACH CASE APPLICABLE ONLY TO THE FIRST PRODUCT TO ACHIEVE SUCH EVENT IN THE FIRST INDICATION IN THE FIELDS)		DEVELOPMENT MILESTONE PAYMENT IF THE RELEVANT DEVELOPMENT MILESTONE IS ACHIEVED BY LICENSEE’S PARENT, LICENSEE, OR ANY AFFILIATE OF LICENSEE		DEVELOPMENT MILESTONE PAYMENT IF THE RELEVANT DEVELOPMENT MILESTONE IS ACHIEVED BY A THIRD PARTY SUBLICENSEE OR BY A THIRD PARTY ACQUIRER (OTHER THAN SPRINGWORKS)
(1) [***]		U.S. $[***]		U.S. $[***]*
(2) First Commercial Sale of a Product [***] in the Fields **		U.S. $[***]***
(3) First Commercial Sale of a Product [***] in the Fields **		U.S. $[***]
(4) First Commercial Sale of a Product [***] in the Fields **		U.S. $[***]
(5) First Commercial Sale of a Product in [***] in the Fields **		U.S. $[***]

 

For the avoidance of doubt, each Development Milestone Payment shall be payable only once upon the first achievement of the applicable Development Milestone, regardless of the number of Products that achieve such Development Milestone or the number of indications for which such Development Milestone is achieved. The total amount payable with respect to these Development Milestones shall not exceed U.S. $22,500,000, or U.S. $28,000,000 if the Development Milestone in clause (1) above is achieved by a Third Party sublicensee or a Third Party Acquirer.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

* Such Development Milestone Payment shall only be payable if, prior to achieving this Development Milestone, a Third Party Acquirer sublicenses rights to Develop and, to the extent permissible under the license granted to Licensee in Section 2.1, Commercialize the Compound worldwide in the Fields or acquires all or substantially all of the assets of Licensee and (a) subsequently achieves this Development Milestone or (b) achieves the first to occur of a Development Milestone in row (2), (3), (4) or (5) above prior to (i) Licensee, any of its Affiliates, any of its sublicensees or any Third Party Acquirer dosing any patient in any Phase III Clinical Trial for a Product or (ii) Licensee filing the first NDA with respect to the first Product.

 

** The Development Milestone Payment corresponding to this Development Milestone shall be due on the one hundred eighty-first (181st) day after the First Commercial Sale of the applicable Product in the applicable jurisdiction.

 

*** Up to U.S. $5,000,000 of such Development Milestone Payment may be paid by Licensee in equity of Licensee, subject to mutual agreement of the Parties on the terms and conditions of the issuance of such equity to Pfizer.

 

Except as set forth above, each Development Milestone Payment shall be payable by Licensee within sixty (60) days after the achievement of the corresponding Development Milestone, and such payment shall be accompanied by a report identifying the amount payable to Pfizer under this Section 5.2.

 

5.3           Sales Milestone Payments.

 

In consideration of the licenses and rights granted to Licensee hereunder, Licensee shall pay to Pfizer the following one-time payments when aggregate Net Sales of Products in the Territory during a Calendar Year first reach the respective thresholds indicated below (each event in the first column below, a “Sales Milestone” and each payment, a “Sales Milestone Payment”).

 

SALES MILESTONE		SALES MILESTONE PAYMENT
Aggregate Net Sales during a Calendar Year first exceed U.S. $[***]		U.S. $[***]
Aggregate Net Sales during a Calendar Year first exceed U.S. $[***]		U.S. $[***]
Aggregate Net Sales during a Calendar Year first exceed U.S. $[***]		U.S. $[***]
Aggregate Net Sales during a Calendar Year first exceed U.S. $[***]		U.S. $[***]
Aggregate Net Sales during a Calendar Year first exceed U.S. $[***]		U.S. $[***]
Aggregate Net Sales during a Calendar Year first exceed U.S. $[***]		U.S. $[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

For the avoidance of doubt, each Sales Milestone Payment shall be paid only once upon the first achievement of the applicable Sales Milestone. The total amount payable with respect to these Sales Milestones shall not exceed U.S. $210,000,000.

 

If more than one (1) Sales Milestone is first achieved in a particular Calendar Year (e.g., aggregate Net Sales of Products in the Calendar Year after the First Commercial Sale of the first Product exceed U.S. $[***]), then all unpaid Sales Milestone Payments first achieved in such Calendar Year shall become payable.

 

Each Sales Milestone Payment shall be payable by Licensee within sixty (60) days after the end of the applicable Calendar Quarter in which cumulative Net Sales reach the applicable threshold, and such payment shall be accompanied by a report identifying the amount payable to Pfizer under this Section 5.3.

 

5.4           Royalty Payments.

 

Subject to Section 5.5, in consideration of the licenses and rights granted to Licensee hereunder, Licensee shall pay to Pfizer royalties in the amount of the Marginal Royalty Rates set forth below (each, a “Marginal Royalty Rate”) on the aggregate Net Sales resulting from the sale of Products in the Territory during each Calendar Year (collectively, “Royalties”).

 

NET SALES			MARGINAL ROYALTY RATE
Net Sales up to and including U.S. $[***] per Calendar Year			[***]	%
Net Sales above U.S. $[***] up to and including U.S. $[***] per Calendar Year			[***]	%
Net Sales above U.S. $[***] up to and including U.S. $[***] per Calendar Year			[***]	%
Net Sales above U.S. $[***] up to and including U.S. $[***] per Calendar Year			[***]	%
Net Sales above U.S. $[***] per Calendar Year			[***]	%

 

Each Marginal Royalty Rate set forth in the table above shall apply only to that portion of the Net Sales of all Products in the Territory during a given Calendar Year that falls within the indicated range. For example, if, during a Calendar Year, aggregate Net Sales of a Product were equal to U.S. $[***], then the royalties payable by Licensee would be calculated by adding (a) the royalties with respect to the first $[***] at the first-tier percentage of [***] percent ([***]%), equal to U.S. $[***], and (b) the royalties with respect to the next U.S. $[***] at the second- tier percentage of [***] percent ([***]%), equal to U.S. $[***], for a total royalty of U.S. $[***].

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Subject to Section 5.12, Licensee shall pay to Pfizer the applicable Royalties within sixty (60) days following the expiration of each Calendar Quarter after the date of the First Commercial Sale of the relevant Product in any country in the Territory. Royalties will be payable on a Product-by-Product and country-by-country basis during the Royalty Term for such Product in such country until the expiration of the Royalty Term for such Product in such country. All Royalty payments shall be accompanied by a report that includes reasonably detailed information regarding the calculation of Net Sales of the applicable Products (including all deductions), calculation of any deductions applicable under Section 5.5, and all Royalties payable to Pfizer for the applicable Calendar Quarter (including any foreign exchange rates employed).

 

5.5          Royalty Deductions.

 

5.5.1 Expiration of Valid Claims and Exclusivity. If, on a country-by-country and Product-by-Product basis, the Royalty Term for such Product in such country is only being calculated under subsection (a) of the definition of Royalty Term (i.e., all regulatory and data exclusivity granted by an applicable Governmental Authority for such Product in such country has expired and the Manufacture, use, sale, offer for sale or importation of such Product in such country would no longer infringe, but for the license granted herein, a Valid Claim of a Licensed Patent Right), then the Marginal Royalty Rates used to calculate Royalties with respect to such Product in such country shall by reduced by [***].

 

5.5.2 Third Party Licenses. Licensee, its Affiliates and sublicensees shall have the right to obtain a license under any Third Party Intellectual Property Rights that Licensee, or any of its Affiliates or sublicensees, deems reasonably necessary or useful in order to research, Develop, Manufacture, Commercialize (to the extent permissible under the license granted to Licensee in Section 2.1) or use any Product in any Field in the Territory (each such license, a “Third Party License”). Licensee, or its applicable Affiliate or sublicensee, shall pay all amounts due under Third Party Licenses; provided, that Licensee shall be entitled to reduce the Royalties due to Pfizer upon Net Sales of a Product by up to [***] of the total royalties paid by Licensee, or any of its Affiliates or sublicensees, to a Third Party with respect to such Product under any Third Party License.

 

5.5.3 Generic Competition. If at any time during the Royalty Term Generic Competition exists in a given country with respect to a Product, then the Marginal Royalty Rates used to calculate Royalties for such Product in such country shall be reduced by [***] for so long as such Generic Competition exists.

 

5.5.4 Maximum Deductions. Notwithstanding Sections 5.5.1, 5.5.2 and 5.5.3 to the contrary, under no circumstances shall the reductions set forth in this Section 5.5 cause (a) the total Royalties payable to Pfizer in any Calendar Quarter to be reduced by more than [***] ([***]%) of the amount that would otherwise be due without giving effect to this Section 5.5, or (b) the Marginal Royalty Rates used to calculate Royalties in any Calendar Quarter to be reduced by more than [***] ([***]%) of the rates set forth in Section 5.4 (i.e., [***]%, [***]%, [***]%, [***]% and [***]%, respectively).

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

5.6          Transaction Completion Payment.

 

5.6.1 If, at any time prior to eighteen (18) months after the Effective Date, Licensee completes a Transaction, Licensee shall pay to Pfizer a one-time, non-refundable and non- creditable payment in the amount of the lesser of (a) [***] of the total consideration received by Licensee or its Affiliates with respect to the relevant Transaction, or (b) [***] U.S. Dollars (U.S. $[***]) (the “Transaction Completion Payment”).

 

5.6.2 For clarity, (a) should Licensee complete its IPO prior to the occurrence of the Change of Control of Licensee, no Transaction Completion Payment would be owed upon completion of such Change of Control or thereafter, and (b) the Transaction Completion Payment shall be payable no more than once.

 

5.6.3 Any Transaction Completion Payment shall be accompanied by a copy of any relevant documents necessary to allow Pfizer to confirm the accuracy of such payment.

 

5.6.4 For a Transaction Completion Payment due as a result of a Transaction covered by subsection (a) of the Transaction definition, Licensee or its Affiliate shall make such Transaction Completion Payment within sixty (60) days following the closing of Licensee’s Change of Control.

 

5.6.5 For a Transaction Completion Payment due as a result of a Transaction covered by subsection (b) of the Transaction definition, Licensee or its Affiliate shall make such Transaction Completion Payment within sixty (60) days following the receipt of the consideration payable in connection with such Transaction.

 

5.6.6 Licensee may credit against any Transaction Completion Payment [***] of any Development Milestone Payments or Sales Milestone Payments previously paid to Pfizer pursuant to Sections 5.2 and 5.3, up to [***] of the total of such Transaction Completion Payment.

 

5.7          Other Payments.

 

Except as otherwise set forth in this Agreement, each Party shall pay to the other Party any amounts due under this Agreement within sixty (60) days following receipt of an undisputed invoice.

 

5.8          Late Payments.

 

Any amount required to be paid by a Party hereunder which is not paid on the date due shall bear interest, to the extent permitted by law, at (a) for the first three (3) incidents, three percent (3%) above the thirty (30) day U.S. Dollar LIBOR rate effective for the date such payment was due, as reported in the Wall Street Journal and (b) for all incidents after the first three (3) incidents, five percent (5%) above the thirty (30) day U.S. Dollar LIBOR rate effective for the date such payment was due, as reported in the Wall Street Journal. Such interest shall be computed on the basis of a year of three hundred sixty (360) days for the actual number of days payment is delinquent.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

5.9          Currency.

 

Any payments under this Article 5 that are recorded in currencies other than the U.S. Dollar shall be converted into U.S. Dollars using the exchange rate mechanism generally applied by Licensee or its applicable Affiliate or sublicensee in preparing its audited financial statements for the applicable Calendar Quarter, provided that such mechanism is in compliance with Accounting Standards and verifiable from publicly available information.

 

5.10        Method of Payment.

 

All payments from Licensee to Pfizer shall be made by wire transfer via immediately available funds in U.S. dollars to credit the bank account set forth on Schedule J or such other bank account as designated by Pfizer in writing to Licensee at least thirty (30) days before payment is due. Any payment which falls due on a date which is not a Business Day may be made on the next succeeding Business Day.

 

5.11        Taxes.

 

5.11.1 General. It is understood and agreed between the Parties that any payments made under this Agreement are exclusive of any value added or similar tax (“VAT”), which shall be added thereon as applicable. In the event any payments made by Licensee to Pfizer pursuant to this Agreement become subject to withholding taxes under the laws or regulation of any jurisdiction, Licensee shall deduct and withhold the amount of such taxes for the account of Pfizer to the extent required by Applicable Law and such amounts payable to Pfizer shall be reduced by the amount of taxes deducted and withheld, which shall be treated as paid to Pfizer in accordance with this Agreement. To the extent that Licensee is required to deduct and withhold taxes on any payments under this Agreement, Licensee shall pay the amounts of such taxes to the proper Governmental Authority in a timely manner and promptly transmit to the payee an official tax certificate or other evidence of such withholding sufficient to enable Pfizer to claim such payments of taxes. Pfizer shall provide any tax forms to Licensee that may be reasonably necessary in order for Licensee not to withhold tax or to withhold tax at a reduced rate under an applicable bilateral income tax treaty. Each Party shall provide the other with reasonable assistance to enable the recovery, as permitted by Applicable Law, of withholding taxes, VAT, or similar obligations resulting from payments made under this Agreement, such recovery to be for the benefit of the Party bearing such withholding tax or VAT.

 

5.11.2 Tax Actions. Notwithstanding anything in this Agreement to the contrary, if an action, including but not limited to any assignment or sublicense of its rights or obligations under this Agreement, or any failure to comply with Applicable Laws or filing or record retention requirements (a “Tax Action”) by a Party leads to the imposition of withholding tax liability or VAT on the other Party that would not have been imposed in the absence of a Tax Action or in an increase in such liability above the liability that would have been imposed in the absence of such Tax Action, then (i) the sum payable by the Party that caused the Tax Action (in respect of which such deduction or withholding is required to be made) shall be increased to the extent necessary to ensure that the other Party receives a sum equal to the sum which it would have received had no Tax Action occurred and (ii) the sum payable by the Party that caused a Tax Action (in respect of which such deduction or withholding is required to be made) shall be made to the other Party after deduction of the amount required to be so deducted or withheld, which deducted or withheld amount shall be remitted in accordance with Applicable Law. For the avoidance of doubt, a Party shall only be liable for increased payments pursuant to this Section 5.11.2 to the extent such Party engaged in a Tax Action that created or increased a withholding tax or VAT on the other Party.

 

 

5.11.3 Cooperation. The Parties agree to cooperate and produce on a timely basis any tax forms or reports, including IRS Forms W-9 and W-8BEN, reasonably requested by the other Party in connection with any payment made by Licensee to Pfizer under this Agreement.

 

5.12        Royalty Reconciliation.

 

On a Product-by-Product and country-by-country basis, with respect to Net Sales of such Product in such country in the final Calendar Quarter of the Royalty Term for such Product in such country, Licensee shall pay any royalties owed to Pfizer pursuant to Section 5.4, as adjusted by Section 5.5, for such Net Sales (each, a “Final Royalty Payment”) within one hundred twenty (120) days (such one hundred twenty (120) days inclusive of the sixty (60) days set forth in Section 5.4) after the end of the Royalty Term for such Product in such country, along with a final written report setting forth Licensee’s final calculation of Net Sales of such Product in such country during each of the final eight (8) Calendar Quarters of such Royalty Term (each, a “Final Royalty Report”). If such Final Royalty Report contains any corrections to the Net Sales previously reported by Licensee in any of such eight (8) Calendar Quarters then, to the extent that such corrections have not been previously addressed by Licensee or Pfizer, (a) if such corrections have, taken together, increased the reported Net Sales of such Product in such country, Licensee shall, simultaneously with providing such Final Royalty Report and Final Royalty Payment, pay to Pfizer the additional royalties that are due for such additional Net Sales pursuant to Section 5.4, as adjusted by Section 5.5, and (b) if such corrections have, taken together, decreased the reported Net Sales of such Product in such country, Licensee shall reduce such Final Royalty Payment by an amount equal to the excess royalties paid by Licensee to Pfizer for such excess Net Sales.

 

6.          Records; Audit Rights.

 

6.1          Relevant Records.

 

Licensee shall maintain accurate financial books and records created or received by Licensee pertaining to sale of the Products by Licensee, its Affiliates or sublicensees or any Transaction Completion Payment (collectively, “Relevant Records”). Licensee shall maintain the Relevant Records for the longer of: (a) the period of time required by Applicable Law, or (b) seven (7) years following the date on which the relevant amounts were received or incurred.

 

 

6.2           Audit Request.

 

Pfizer shall have the right during the Term and for twelve (12) months thereafter to engage, at its own expense, an independent auditor that is reasonably acceptable to Licensee and subject to a reasonable and customary confidentiality agreement with Licensee, to examine the Relevant Records from time-to-time, but no more frequently than once every twelve (12) months, as may be necessary to verify Licensee’s compliance with the provisions of Article 5 or any other payments described in this Agreement. Such audit shall be requested in writing at least ten (10) Business Days in advance, and shall be conducted during Licensee’s normal business hours, in the location where such Relevant Records are normally kept, and otherwise in a manner that minimizes any interference to Licensee’s business operations. No Relevant Record may be audited more than once nor more than seven (7) years following the date on which the relevant amounts were received or incurred. Pfizer shall provide to Licensee a copy of each audit report promptly following Pfizer’s receipt thereof.

 

6.3           Audit Fees and Expenses.

 

Pfizer shall bear any and all fees and expenses it may incur in connection with any such audit of the Relevant Records; provided, however, in the event an audit reveals an underpayment by Licensee of more than [***] as to the period subject to the audit, Licensee shall reimburse Pfizer for its reasonable and documented out-of-pocket costs and expenses of the audit within sixty (60) days after receiving invoices therefor.

 

6.4           Payment of Deficiency.

 

If any such audit establishes that Licensee underpaid any amounts due to Pfizer under this Agreement, then Licensee shall pay Pfizer any such deficiency within sixty (60) days after receipt of written notice thereof and the relevant audit report. For the avoidance of doubt, such underpayment will be considered a late payment, subject to Section 5.8. If any audit, whether or not conducted by Pfizer, establishes that Licensee overpaid any amounts due to Pfizer under this Agreement, then Licensee shall immediately offset all such excess payments against any outstanding or future amounts payable by Licensee to Pfizer under this Agreement until Licensee has received full credit for all such overpayments.

 

7.          Intellectual Property Rights.

 

7.1           Pre-existing IP.

 

Subject only to the rights expressly granted to the other Party under this Agreement, each Party shall retain all rights, title and interests in and to any Intellectual Property Rights that are owned by, or licensed or sublicensed to, such Party prior to or independent of this Agreement.

 

7.2           Developed IP.

 

Ownership of any Developed IP shall be determined in accordance with Applicable Laws relating to inventorship set forth in U.S. patent laws. Each Party and its Affiliates retains the sole right to prepare, prosecute, and maintain Patent Rights included within any Developed IP owned by or licensed to such Party or its Affiliates; provided, however, that the Parties shall coordinate in good faith with respect to the preparation, prosecution and maintenance of Patent Rights included within any Developed IP owned jointly by Pfizer or any of its Affiliates, on the one hand, and Licensee or any of its Affiliates, on the other hand, and neither Party nor any of its Affiliates may prepare, prosecute or maintain any such Patent Right without the prior written consent of the other Party. Subject to the rights and licenses granted herein, each Party is entitled to practice jointly- owned Developed IP for all purposes on a worldwide basis, and to grant licenses and similar rights under and to its rights in such jointly-owned Developed IP without consent of and without a duty of accounting to the other Party. Each Party will grant and hereby does grant all permissions, consents and waivers with respect to, and all licenses under, such jointly-owned Developed IP, throughout the world, necessary to provide the other Party with such rights of use and exploitation of such jointly-owned Developed IP, and will execute documents as necessary to accomplish the foregoing and as reasonably requested by the other Party.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

7.3          Inactive Patents.

 

With respect to any cases that are designated by Pfizer as “Inactive” in the column labeled “Status” in Schedule E (each, an “Inactive Case”): (a) such Inactive Cases may or may not be still in force or, if lapsed, may or may not be revivable, (b) notwithstanding anything herein to the contrary, Pfizer makes no representation or warranty with respect to the continued existence, status, revivability, validity or enforceability of such Inactive Cases and (c) Pfizer shall have no obligation to maintain or revive any such Inactive Case or expend any funds or substantial effort in connection therewith.

 

7.4          Patent Prosecution of Licensed Patent Rights.

 

7.4.1 Patent Prosecution and Maintenance. Subject to Pfizer’s rights set forth in Section 7.4.3 below, (a) until the earlier of (i) the six (6) month anniversary of the Effective Date and (ii) such time as Licensee provides Pfizer written notice that it desires to assume the activities under Section 7.4.1(b) (the “Initial Period”), Pfizer will continue to file, prosecute (including in connection with any reexaminations, oppositions, inter partes reviews and the like) and maintain the Active Cases in the Licensed Patent Rights in the Territory, in Pfizer’s name on behalf of Licensee and Licensee shall bear all of Pfizer’s reasonable and documented out-of-pocket expenses with respect to such filing, prosecution and maintenance, and (b) upon expiration of the Initial Period, (i) Licensee will control the filing, prosecuting (including in connection with any reexaminations, oppositions, inter partes reviews and the like) and maintaining of the Licensed Patent Rights (including, for avoidance of doubt, any Arising Patent Rights) in the Territory, in Pfizer’s name, at Licensee’s own cost and expense using qualified patent counsel, foreign agents and annuity service providers as necessary, in each case reasonably acceptable to Pfizer and (ii) Pfizer shall, and shall ensure that its patent counsel, foreign agents and annuity service providers promptly transfer all documentation related to the Licensed Patent Rights to Licensee or its applicable designee(s). Following the Initial Period and during the Term, Licensee will provide notice of any substitution of such counsel, foreign agents, or annuity service providers within thirty (30) days after such substitution. During the Initial Period, Pfizer will (y) promptly provide Licensee with a copy of all substantive communications relating to such Licensed Patent Rights that are received from any patent office or patent counsel of record or foreign associate and (z) allow Licensee a reasonable opportunity and reasonable time to review and comment on any proposed submissions to any patent office and implement any reasonable comments provided by Licensee to Pfizer. After the Initial Period, (A) before each patent application or other submission is filed, Licensee will provide Pfizer a reasonable opportunity to review and comment thereon and will reasonably consider any comments provided by Pfizer to Licensee, and (B) Licensee will keep Pfizer reasonably informed of the status of the Licensed Patent Rights by timely providing Pfizer copies of significant communications relating to such Licensed Patent Rights that are received from any patent office or patent counsel of record or foreign associate.

 

 

7.4.2 Assistance. As reasonably requested by Licensee in writing, Pfizer shall cooperate, at Licensee’s expense for Pfizer’s reasonable and documented out-of-pocket expenses, (a) with Licensee’s activities in Section 7.4.1 and (b) in obtaining patent term adjustment, patent term restoration (whether or not under the Drug Price Competition and Patent Term Restoration Act), supplementary protection certificates, patent term extensions or any equivalent to the foregoing, with respect to the Licensed Patent Rights. For clarity, Licensee shall have the exclusive right, but not the obligation, to seek, in Pfizer’s name if so required, or require Pfizer to seek, any patent term adjustments, patent term restorations, patent term extensions, supplemental protection certificates and the like in any country in the Territory in relation to the Licensed Patent Rights and Pfizer shall cooperate in connection with all such activities.

 

7.4.3 Failure to Prosecute or Maintain. In the event Licensee elects to forego filing, prosecution, or maintenance of any of the Licensed Patent Rights in any country or region, Licensee shall notify Pfizer of such election at least forty-five (45) days prior to any filing or payment due date, or any other due date that requires action (“Election Notice”). Upon receipt of an Election Notice, Pfizer shall be entitled, upon written notice to Licensee, at its sole discretion and expense, to file or to continue the prosecution or maintenance of such Patent Right in such country or region in Pfizer’s name using counsel of its own choice and at its own expense, in which case the license granted in Section 2.1 with respect to such Patent Rights in such country or region shall continue as a non-exclusive license, subject to Licensee’s obligation to pay Royalties in accordance with Section 5.4.

 

7.4.4 Liability. To the extent Pfizer is obtaining, prosecuting or maintaining a Patent Right included in the Licensed Patent Rights, Pfizer, its Affiliates, employees, agents or representatives, shall not be liable to Licensee in respect of any act, omission, default or neglect on the part of Pfizer, or its Affiliates, employees, agents or representatives, in connection with such activities undertaken in good faith.

 

7.4.5 Patent Prosecution of Enabling Patent Rights. Pfizer retains the sole right to prepare, prosecute, and maintain the Enabling Patent Rights.

 

7.5          Listing in Orange Book.

 

Licensee shall have the right, in its sole discretion, to make all filings with Regulatory Authorities in the Territory for each Product in the FDA’s Orange Book, and under any similar or equivalent laws in other countries or jurisdictions; provided, however, that the Parties shall collaborate in good faith to determine whether any Enabling Patent Rights or Patent Rights included in the Pfizer Developed IP are required to be included in any such filings.

 

8.          Infringement; Misappropriation.

 

8.1           Notification.

 

Each Party will promptly notify the other Party in writing of any (a) actual or threatened infringement, misappropriation or other violation by a Third Party of any Licensed Technology in the Fields and in the Territory of which it becomes aware, including the filing of an Abbreviated New Drug Application under Section 505(j) of the FD&C Act or an application under Section 505(b)(2) of the FD&C Act naming a Product as a reference listed drug and including a certification under Section 505(j)(2)(A)(vii)(IV) or 505(b)(2)(A)(IV), respectively, or (b) declaratory judgment action against, or any other action claiming invalidity or unenforceability of, any Licensed Patent Right in the Territory, whether or not in connection with any infringement described in clause (a) (any of (a) or (b) constituting a “Third Party Infringement”).

 

 

8.2          Infringement Action.

 

8.2.1 Right of First Enforcement.

 

(a)          Licensee, itself or through any of its Affiliates or sublicensees, shall have the first right (but not the obligation), at its own expense, to control enforcement of the Licensed Technology against any Third Party Infringement within the scope of its exclusive license (i.e., its license within the Fields) and may name Pfizer as a party for standing purposes. Pfizer shall cooperate with and join, at Licensee’s request and expense, any such action and has the right to join any such action, including retaining separate counsel, at Pfizer’s own expense. Prior to commencing any such action, Licensee shall consult with Pfizer and shall give due consideration to Pfizer’s timely recommendations regarding the proposed action. Licensee shall give Pfizer timely notice of any proposed settlement of any such action instituted by Licensee and shall not, without the prior written consent of Pfizer, enter into any settlement that would: (i) adversely affect the validity, enforceability or scope of any of the Licensed Patent Rights; (ii) give rise to liability of Pfizer or its Affiliates; (iii) admit non-infringement of any Licensed Patent Rights; or (iv) otherwise impair Pfizer’s rights in any Licensed Technology or this Agreement.

 

(b)          If Licensee does not, with respect to its first right of enforcement under Section 8.2.1(a), either (i) obtain agreement from the alleged infringer to desist or (ii) confirm to Pfizer in writing, by the earlier of (A) sixty (60) days following Licensee’s receipt of notice of the alleged infringement or (B) fifteen (15) days before the expiration date for filing an infringement action, that Licensee, or any of its Affiliates or sublicensees, will initiate an infringement action, then Pfizer shall have the right, at its sole discretion, to control such enforcement of the Licensed Technology at its sole expense.

 

8.2.2 Recoveries. Any recoveries resulting from an action relating to a claim of Third Party Infringement shall first be applied to reimburse each Party’s (and Licensee’s Affiliates’ and sublicensees’, as applicable) costs and expenses incurred in connection therewith. Any remaining recoveries shall be retained by (or if received by Pfizer, paid to) Licensee; provided, however, that (a) if Licensee’s negligence or intentional misconduct caused the applicable Third Party Infringement, then Pfizer shall be entitled to receive [***] of such remaining recoveries and (b) otherwise, Pfizer shall be entitled to a royalty on such remaining recoveries in accordance with Section 5.4 as if the amount of such remaining recoveries were Net Sales of Licensee in the Calendar Year in which the recoveries were received by Licensee. If Licensee fails to institute an action or proceeding and Pfizer exercises its right to prosecute such infringement pursuant to Section 8.2.1(b), any remaining recoveries shall be retained by Pfizer.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

9.          Confidentiality.

 

9.1           Definition.

 

“Confidential Information” of a Party means the terms and provisions of this Agreement and all other proprietary information and data of a financial, commercial or technical nature that the disclosing Party or any of its Affiliates has supplied or otherwise made available to the other Party or its Affiliates in connection with this Agreement, which are disclosed in writing or, if disclosed orally or visually, summarized in writing and provided to the receiving Party after disclosure. All Licensed Know-How and any other Know-How generated before or during the Term by Pfizer or any of its Affiliates with respect to the Compound or a Product shall be considered Pfizer’s and Licensee’s Confidential Information, with each of Pfizer and Licensee considered a disclosing Party and a receiving Party with respect thereto, and Pfizer may not rely on clause (b) or (d) with respect thereto. Confidential Information shall not include information that: (a) is, as of the Effective Date, or becomes, after the Effective Date, known to the public or part of the public domain through no breach of this Agreement by the receiving Party or any of its Recipients; (b) was known to, or was otherwise in the possession of, the receiving Party prior to the time of disclosure by the disclosing Party to the receiving Party; (c) is disclosed to the receiving Party on a non-confidential basis by a Third Party who is entitled to disclose it without breaching any confidentiality obligation to the disclosing Party; or (d) is independently developed by or on behalf of the receiving Party or any of its Affiliates, as evidenced by its written records, without use or access to the Confidential Information of the disclosing Party.

 

9.2           Obligations.

 

The receiving Party may use the disclosing Party’s Confidential Information only to exercise the receiving Party’s rights under this Agreement or perform the receiving Party’s obligations under this Agreement, or as necessary for an acquisition, investment or financing of the receiving Party or any of its Affiliates. The receiving Party will protect all of the disclosing Party’s Confidential Information against unauthorized disclosure to Third Parties with the same degree of care as the receiving Party uses for its own similar information, but in no event less than a reasonable degree of care. The receiving Party may disclose the disclosing Party’s Confidential Information to its Affiliates, and its and their respective directors, officers, employees, subcontractors, agents and current and prospective sublicensees, permitted assignees, acquirers, financing sources, consultants, attorneys, accountants, banks and investors (collectively, “Recipients”) who have a need to know such information for purposes related to this Agreement, or, with respect to acquirers, the applicable acquisition, or, with respect to investors or financing sources, the applicable investment or financing, provided such Recipients are bound by obligations of confidentiality and non-use of Confidential Information at least as restrictive as those set forth in this Agreement. All obligations of confidentiality and non-use under this Agreement shall survive expiration or termination of this Agreement for a period of five (5) years.

 

9.3           Exceptions.

 

9.3.1 Disclosure Required by Law. The receiving Party may disclose the disclosing Party’s Confidential Information as required under Applicable Laws, including any court order or other order of a Governmental Authority, provided that the receiving Party: (a) provides the disclosing Party with prompt notice of such disclosure requirement if legally permitted; (b) affords the disclosing Party an opportunity to oppose, limit or secure confidential treatment for such required disclosure; and (c) if the disclosing Party is unsuccessful in its efforts pursuant to subsection (b), discloses only that portion of the disclosing Party’s Confidential Information that the receiving Party is legally required to disclose as advised by the receiving Party’ s legal counsel.

 

 

9.3.2 Disclosure to Assignee of Payments. In the event that Pfizer wishes to assign, pledge or otherwise transfer to a Third Party its rights to receive some or all of the Milestone Payments, Royalties or Transaction Completion Payment payable hereunder, Pfizer may, in connection with any such proposed assignment, disclose to such Third Party such Confidential Information of Licensee that is reasonably relevant to such assigned Milestone Payments, Royalties or Transaction Completion Payment, as applicable, provided that Pfizer shall hold such Third Party to written obligations of confidentiality and non-use with terms and conditions at least as restrictive as those set forth in this Agreement.

 

9.4           Right to Injunctive Relief.

 

Each Party agrees that breaches of this Article 9 may cause irreparable harm to the other Party and shall entitle such other Party, in addition to any other remedies available to it (subject to the terms of this Agreement), the right to seek injunctive relief enjoining such action.

 

9.5           Ongoing Obligation for Confidentiality.

 

Upon expiration or termination of this Agreement, the receiving Party shall, and shall cause its Recipients to, destroy or return (as requested by the disclosing Party) any Confidential Information of the disclosing Party, except that the receiving Party (a) may retain a single copy of the disclosing Party’ s Confidential Information for the sole purpose of (i) ascertaining its rights and responsibilities in respect of such information and (ii) exercising its rights that expressly survive the expiration or termination of this Agreement, and (b) shall not be required to destroy any computer files stored securely by the receiving Party that are created by automatic system back up.

 

10.         Representations, Warranties and Covenants.

 

10.1        Representations and Warranties by Each Party.

 

Each Party represents and warrants to the other Party as of the Effective Date that:

 

10.1.1 it is a corporation duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation;

 

10.1.2 it has full corporate power and authority to execute, deliver, and perform under this Agreement, and has taken all corporate action required by Applicable Law and its organizational documents to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement;

 

10.1.3 this Agreement constitutes a valid and binding agreement enforceable against it in accordance with its terms;

 

 

10.1.4 all consents, approvals and authorizations from all Governmental Authorities or other Third Parties required to be obtained by such Party in connection with this Agreement have been obtained; and

 

10.1.5 the execution and delivery of this Agreement and all other instruments and documents required to be executed pursuant to this Agreement, and the consummation of the transactions contemplated hereby do not and shall not: (a) conflict with or result in a breach of any provision of its organizational documents; (b) result in a breach of any agreement to which it is a party that would impair the performance of its obligations hereunder; or (c) violate any Applicable Law.

 

10.2        Representations and Warranties by Pfizer.

 

With the exception of the claims described in Schedule G, Pfizer represents and warrants to Licensee as of the Effective Date that:

 

10.2.1 Pfizer or its Affiliates own all of the Licensed Patent Rights (with respect to each Inactive Case listed on Schedule E, solely to the extent such Inactive Case is determined by Licensee to be in force as of the Effective Date). All Active Cases in the Licensed Patent Rights in the Major Markets have been assigned to Pfizer or its Affiliates and assignment documents with respect to the U.S. Patent Rights have been executed and recorded in the relevant U.S. patent offices; as used herein, “Active Cases” means cases that are not designated by Pfizer as “Inactive” in the column labeled “Status” in Schedule E;

 

10.2.2 to Pfizer’s Knowledge, Pfizer or its Affiliates own all of the Licensed Know-how set forth on Schedule C;

 

10.2.3 to Pfizer’s Knowledge, Pfizer has the right to grant the licenses and other rights granted to Licensee under this Agreement with respect to the Licensed Patent Rights (with respect to any Inactive Case listed on Schedule E, solely to the extent such Inactive Case is determined by Licensee to be in force as of the Effective Date) and to the Know-How listed in Schedule C or required to be transferred by Pfizer to Licensee in accordance with Schedule D, including all applicable rights of its Affiliates in such Intellectual Property Rights, in each case free and clear of any rights of any Third Party that would be in conflict with the licenses and other rights granted to Licensee under this Agreement;

 

10.2.4 to Pfizer’s Knowledge, there is no ongoing, or threatened (in writing to Pfizer), litigation, opposition, reexamination, interference, reissue, revocation, nullification, post-grant review, nullity action or inter partes review involving any of the Active Cases in the Licensed Patent Rights in the Major Markets;

 

10.2.5 to Pfizer’s Knowledge, the Licensed Know-How, Licensed Patent Rights, Enabling Know-How and Enabling Patent Rights comprise all Know-How and Patent Rights owned by or licensed to Pfizer or any of its Affiliates that are necessary for Licensee to Exploit the Compound, and each Product, in the form in which it existed as of the Effective Date, in each Major Market, in the same manner that Pfizer Exploited such Compound or such Product prior to the Effective Date in such Major Market;

 

 

10.2.6 to Pfizer’s Knowledge, there is no claim pending, or threatened (in writing to Pfizer), against Pfizer alleging that the Manufacture of the Compound in the Fields, or Commercialization of the Compound in Field 1, in the Territory infringes or misappropriates any Know-How or Patent Rights of any Third Party;

 

10.2.7 to Pfizer’s Knowledge, there is no claim pending or threatened by Pfizer alleging that a Third Party is or was infringing, misappropriating or otherwise violating any of the Licensed Patent Rights in the Fields in any country within the Territory;

 

10.2.8 to Pfizer’s Knowledge, no Third Party has challenged the extent, validity or enforceability of any of the Licensed Patent Rights in any Major Market;

 

10.2.9 to Pfizer’s Knowledge, other than (a) agreements that have been terminated or have expired by their terms, in each case prior to the Effective Date and (b) materials transfer agreements and compound transfer agreements (collectively, the “Terminated Agreements and MTAs”), neither Pfizer nor any of its Affiliates is a party to any agreement with a Third Party as of the Effective Date that would limit any license right granted to Licensee or its Affiliates under this Agreement, in each case, that would, but for such agreement, be included in the rights licensed to Licensee and its Affiliates pursuant to this Agreement;

 

10.2.10 to Pfizer’s Knowledge, all Compound transferred from Pfizer to Licensee that are set forth in Schedule H were, as of the date of such manufacture, manufactured in accordance with GMP;

 

10.2.11 to Pfizer’s Knowledge, each Regulatory Filing filed by Pfizer with respect to the Compound or any Product prior to the Effective Date was true, complete and accurate in all material respects and timely filed;

 

10.2.12 to Pfizer’s Knowledge, Pfizer and its Affiliates have complied with all Applicable Laws with respect to the Exploitation of the Compound prior to the Effective Date, except to the extent that failure to so comply would not materially and adversely affect the Exploitation of the Compound or any Product by or on behalf of Licensee;

 

10.2.13 to Pfizer’s Knowledge, Pfizer and its Affiliates have not received any written notice that indicates that (a) any of the Regulatory Filings are not in good standing with the relevant Regulatory Authorities or (b) any “clinical hold” or similar regulatory action is in effect with respect to the Compound or any Product; and

 

10.2.14 neither Pfizer nor, to its Knowledge, any of its members, officers, directors, employees, independent contractors, consultants, suppliers, agents or clinical investigators who performed Compound- or Product-related work on behalf of Pfizer: (a) has been charged with or convicted of any crime relating to the delivery of an item or service under any federal health care program, (b) is or has been debarred under 21 U.S.C. §335a, (c) is or has been debarred, excluded or suspended from participation in any federal health care program, (d) is or has been debarred by any other federal or international agency, or (e) has engaged in any conduct that has resulted, or would reasonably be expected to result, in debarment under applicable laws, including 21 U.S.C. §335a, or exclusion from participation in government programs under 42 U.S.C. § 1320a-7 or another applicable law. No actions that would reasonably be expected to result in such a debarment or exclusion are pending or, to Pfizer’s Knowledge, threatened against Pfizer or any such officers, directors, employees, independent contractors, consultants, suppliers, agents or clinical investigators, and, to Pfizer’s Knowledge, there are no facts that would reasonably give rise to such an action.

 

 

10.3        Representations, Warranties and Covenants by Licensee.

 

10.3.1 Licensee covenants to Pfizer that it shall comply with all Applicable Law with respect to the performance of its obligations hereunder.

 

10.3.2 Licensee covenants to Pfizer that it will not use any units of Compound transferred by Pfizer under Article 3 in humans, except and to the extent that Licensee subsequently processes such units of Compound in accordance with Applicable Law, and provided that such units of Compound have met the requirements of any Regulatory Authority; and

 

10.3.3 Licensee covenants to Pfizer that Licensee shall use its Commercially Reasonable Efforts to execute the Development Plan on the timeline set forth therein; provided, however, that each Party acknowledges and agrees that the Development Plan and timelines therein may be updated pursuant to Section 4.6 and that the initial version of the Development Plan (including the timeline therein) does not reflect certain vital information that is not yet available, including input from the FDA, but that each updated Development Plan shall include the same amount of detail as in the draft of the Development Plan set forth in Schedule F as of the Effective Date.

 

10.4         Representations, Warranties and Covenants related to Compliance Laws.

 

Without limiting the generality of Section 10.3.1, Licensee shall comply with the U.S. Foreign Corrupt Practices Act and any other applicable anti-bribery or anti-corruption laws (“Compliance Laws”). Licensee represents and warrants that neither Licensee, nor its Affiliates, nor, to Licensee’s knowledge, any director, officer, employee, consultant, agent or representative or other person acting on its behalf has taken or will take any action, directly or indirectly, to pay, offer, promise or authorize the payment, or giving of anything of value to any Government Official, or to any person, and has not accepted and will not accept a payment for any item of value: (a) for the purpose of (i) influencing any act or decision of such Government Official(s) in their official capacity, including the failure to perform an official function, in order to assist Licensee or its Affiliates or any beneficiary of Licensee in obtaining or retaining business, or directing business to any third party, (ii) securing an improper advantage, (iii) inducing such Government Official(s) to use their influence to affect or influence any act or decision of a government entity in order to assist Licensee, its Affiliates or any beneficiary of Licensee in obtaining or retaining business, or directing business to any third party, or (iv) providing an unlawful personal gain or benefit, of financial or other value, to such Government Official(s); or (b) otherwise for the benefit of Licensee, or any of its Affiliates, in violation of any federal, state, local, municipal, foreign, international, multinational or other administrative law. As used herein, “Government Official” means: (A) any elected or appointed government official (e.g., a member of a ministry of health), (B) any employee or person acting for or on behalf of a government official, agency, or enterprise performing a governmental function, (C) any political party officer, employee, or person acting for or on behalf of a political party or candidate for public office, (D) an employee or person acting for or on behalf of a public international organization, or (E) any person otherwise categorized as a government official under local law. As used in this Section 10.4, “government” is meant to include all levels and subdivisions of non-U.S. governments (i.e., local, regional, or national and administrative, legislative, or executive).

 

 

10.5         No Action Required Which Would Violate Law.

 

In no event shall either Party be obligated under this Agreement to take any action or omit to take any action that such Party believes, in good faith, would cause such Party to violate any Applicable Law, including the Compliance Laws.

 

10.6         No Other Warranties.

 

EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 10, NEITHER PARTY MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, VALIDITY, ENFORCEABILITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 10, ANY INFORMATION OR MATERIALS PROVIDED BY PFIZER OR ITS AFFILIATES IS MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTY WITH RESPECT TO COMPLETENESS, COMPLIANCE WITH REGULATORY STANDARDS OR REGULATIONS OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER KIND OF WARRANTY WHETHER EXPRESS OR IMPLIED.

 

11.         Indemnification.

 

11.1        Indemnification by Licensee.

 

Licensee and SpringWorks agree to indemnify, hold harmless and defend Pfizer and its Affiliates, and their respective officers, directors, employees, contractors, agents and assigns (collectively, “Pfizer Indemnitees”), from and against any Third Party’s Claims to the extent arising or resulting from (a) the Exploitation or any other use of a Compound or Product by Licensee, its Affiliates, subcontractors or sublicensees, (b) the negligence, recklessness or wrongful intentional acts or omissions of Licensee, its Affiliates, subcontractors or sublicensees under this Agreement, (c) breach by Licensee of any representation, warranty or covenant as set forth in this Agreement, or (d) breach by Licensee of the scope of the license set forth in Section 2.1, except, in each instance, to the extent that such Claim arose or resulted from the gross negligence or willful misconduct by any Pfizer Indemnitee; provided, however, that, if SpringWorks ceases to be Licensee’s Parent and it has assigned its obligations under this Article 11 to the Third Party involved in a Change of Control of Licensee or one of such Third Party’s Affiliates (mutatis mutandis), then SpringWorks shall no longer have any obligations under this Article 11. As used herein, “Claims” means collectively, any and all demands, claims, actions and proceedings (whether criminal or civil, in contract, tort or otherwise) for losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees sought by the relevant Third Party in connection with such demand, claim, action or proceeding or incurred by the relevant Indemnitee).

 

 

11.2         Indemnification by Pfizer.

 

Pfizer agrees to indemnify, hold harmless and defend Licensee and its Affiliates, and their respective officers, directors, employees, contractors, agents and assigns (collectively, “Licensee Indemnitees”), from and against any Third Party’s Claims to the extent arising or resulting from

 

(a)          product liability arising from any Development, Manufacture or use of the Compound or Products by or on behalf of Pfizer or its Affiliates, subcontractors or licensees prior to the Effective Date, (b) the Development, Manufacture, Commercialization or use of the Compound or any Product by Pfizer or its Affiliates, subcontractors, assignors or licensees (other than Licensee and its Affiliates and sublicensees) (i) in accordance with Pfizer’s retained rights in Section 2.3 or (ii) after the expiration or termination of this Agreement to the extent such Claim arose after the effective date of such termination or expiration, (c) the negligence, recklessness or wrongful intentional acts or omissions of Pfizer or its Affiliates (other than Licensee and its Affiliates and sublicensees) under this Agreement, (d) breach by Pfizer of any representation, warranty or covenant as set forth in this Agreement, (e) the Terminated Agreements and MTAs to the extent that any of the Terminated Agreements and MTAs limit any license right granted to Licensee or its Affiliates under this Agreement, or (f) any breach by Pfizer of any agreement assigned by Licensee to Pfizer in accordance with Section 13.5.2(c)(v) or 13.5.2(c)(vi), to the extent such breach first arose after the agreement was assigned to Pfizer and was not due to Pfizer’s (or its Affiliate’s) acts or omissions, except, in each instance, to the extent that such Claim arose or resulted from the gross negligence or willful misconduct by any Licensee Indemnitee.

 

11.3         Indemnification Procedure.

 

In connection with any Claim for which a Pfizer Indemnitee or a Licensee Indemnitee (the relevant “Indemnitee”) seeks indemnification from Licensee or SpringWorks or Pfizer, respectively, (the “Indemnitor”) pursuant to this Agreement, Pfizer or Licensee, respectively, shall: (a) give the Indemnitor prompt written notice of the Claim; provided, however, that failure to provide such notice shall not relieve the Indemnitor from its liability or obligation hereunder, except to the extent of any material prejudice as a direct result of such failure; (b) cooperate with the Indemnitor, at the Indemnitor’s request and expense, in connection with the defense and settlement of the Claim; and (c) permit the Indemnitor to control the defense and settlement of the Claim; provided, however, that the Indemnitor may not settle the Claim without Pfizer’s or Licensee’s, respectively, prior written consent, which shall not be unreasonably withheld or delayed, in the event that such settlement materially adversely impacts any relevant Indemnitee’s rights or obligations. Further, Pfizer or Licensee, respectively, shall have the right to participate (but not control) and be represented in any suit or action by advisory counsel of its selection and at its own expense. The Indemnitor shall not have any indemnity obligation with respect to any claim settled by an Indemnitee without the Indemnitor’s prior written consent, such consent not to be unreasonably withheld or delayed.

 

 

12.         Limitation of Liability.

 

12.1         Consequential Damages Waiver.

 

EXCEPT FOR A BREACH OF ARTICLE 9 OR OBLIGATIONS ARISING UNDER ARTICLE 11 OR PFIZER’S BREACH OF THE EXCLUSIVE LICENSE GRANTED TO LICENSEE PURSUANT TO SECTION 2.1, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR LOST REVENUES REGARDLESS OF WHETHER IT HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR THE TYPE OF CLAIM, CONTRACT OR TORT (INCLUDING NEGLIGENCE).

 

12.2         Liability Cap.

 

IN NO EVENT SHALL PFIZER’S AGGREGATE LIABILITY FOR DAMAGES IN CONNECTION WITH ANY OR ALL OF THE LICENSE AGREEMENTS EXCEED THE PFIZER CAP IN EFFECT AT THE TIME OF SUCH CLAIM FOR DAMAGES, REGARDLESS OF WHETHER PFIZER HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR THE TYPE OF CLAIM, CONTRACT OR TORT (INCLUDING NEGLIGENCE); PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL LIMIT PFIZER’S LIABILITY FOR DAMAGES RESULTING FROM ANY FRAUD OF PFIZER.

 

“Pfizer Cap” means an amount equal to (a) [***] U.S. Dollars ($[***]) plus (b) [***] U.S. Dollars ($[***]) plus (c) [***] U.S. Dollars ($[***]); provided, however, that (i) if the event described in clause (b) of this Section 12.2 has occurred and thereafter [***], then the Pfizer Cap applicable at the time of such termination shall immediately be decreased by [***] U.S. Dollars ($[***]) and/or (ii) if the event described in clause (c) of this Section 12.2 has occurred and thereafter [***], then the Pfizer Cap applicable at the time of such termination shall immediately be decreased by [***] U.S. Dollars ($[***]).

 

13.         Term; Termination.

 

13.1         Term.

 

The term of this Agreement (“Term”) shall commence as of the Effective Date and shall expire upon the last-to-expire Royalty Term, unless earlier terminated as provided herein. Upon expiration of the Royalty Term with respect to a Product in a country, the licenses granted to Licensee under this Agreement shall convert to perpetual, irrevocable, non-exclusive, fully paid up, non-royalty-bearing licenses with respect to such Product in such country and no other amounts shall be due by Licensee with respect to such Product in such country hereunder.

 

13.2         Termination for Cause.

 

Each Party shall have the right, without prejudice to any other remedies available to it at law or in equity, to terminate this Agreement in the event such other Party materially breaches any of its obligations hereunder and fails to cure such breach within sixty (60) days of receiving a notice describing such breach; provided, however, if such breach is capable of being cured, but cannot be cured within such sixty (60) day period, and the breaching Party initiates actions to cure such breach within such period and thereafter diligently pursues such actions, the breaching Party shall have such additional period as is reasonable to cure such breach, but in no event will such additional period exceed sixty (60) days. All timeframes in this Section 13.2 shall be tolled until the resolution pursuant to Article 16 of any good faith dispute over the existence or nature of the breach, or over the adequacy of the cure thereof. Any termination by a Party under this Section 13.2 shall be without prejudice to any damages or other legal or equitable remedies to which it may be entitled from the other Party.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

13.3        Termination for a Bankruptcy Event.

 

Pfizer shall have the right to terminate this Agreement in the event of a Bankruptcy Event with respect to Licensee. “Bankruptcy Event” means the occurrence of any of the following: (a) the institution of any bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against Licensee under any bankruptcy, insolvency, or other similar law now or hereinafter in effect, including any section or chapter of the United States Bankruptcy Code, as amended or under any similar laws or statutes of the United States or any state thereof (any of the laws described in this clause (a), the “Bankruptcy Code”), where such proceedings have not been dismissed or discharged within ninety (90) days after they are instituted, (b) Licensee assigns all or a substantial portion of its assets for the benefit of creditors, (c) a receiver or custodian is appointed for Licensee’s business and remains so appointed for at least ninety (90) days, (d) a substantial portion of Licensee’s business is subject to attachment or similar process for at least ninety (90) days, or (e) anything analogous to any of the events described in the foregoing clauses (a) through (d) occurs under the laws of any applicable jurisdiction.

 

13.4        Termination for Convenience.

 

At any time on or after the first (1st) anniversary of the Effective Date, Licensee shall have the right to terminate this Agreement for convenience upon thirty (30) days’ prior written notice to Pfizer.

 

13.5        Effects of Termination.

 

13.5.1 Termination by Licensee for Cause. If Licensee has the right to terminate this Agreement pursuant to Section 13.2 or Section 17.4, then Licensee may, by written notice to Pfizer sent on, before, or reasonably after the applicable cure period, elect to continue this Agreement or terminate this Agreement, with the consequences set forth in either Section 13.5.1(a) or Section 13.5.1(b), as applicable:

 

(a)          Continuation. In the event that Licensee elects to continue this Agreement, then all provisions of this Agreement shall remain in full force and effect without change.

 

(b)          Termination. In the event that Licensee terminates this Agreement pursuant to Section 13.2 or Section 17.4, the following shall apply:

 

(i)          Rights and Obligations. Except as otherwise provided herein, all rights and obligations of each Party hereunder shall cease, including, subject to Section 13.5.1(b)(ii), the licenses granted to Licensee pursuant to Section 2.1; and

 

(ii)         Licensee Inventory. Licensee shall have the right to sell its remaining inventory of any Product so long as Licensee has fully paid, and continues to pay when due, all Royalties, Milestone Payments, and Transaction Completion Payments, as applicable, and Licensee is otherwise not in material breach of this Agreement.

 

 

13.5.2 Termination by Pfizer for Cause, Bankruptcy Event; Termination by Licensee for Convenience. In the event that Pfizer terminates this Agreement pursuant to Section 13.2, Section 13.3 or Section 17.4, or Licensee terminates this Agreement pursuant to Section 13.4, the following shall apply:

 

(a)          Rights and Obligations. Except as otherwise provided herein, all rights and obligations of each Party hereunder shall cease; and

 

(b)          Licenses.

 

(i)          Pfizer shall have a perpetual, irrevocable, worldwide, fully- paid up, royalty-free, exclusive right and license, with the right to grant sublicenses, under the Developed IP Controlled by Licensee, as it exists as of the effective date of termination, to use, Develop, Commercialize and Manufacture the Compound and Products, excluding Continuation Products.

 

(ii)         If requested by Pfizer during the notice period provided in Section 13.2 or Section 13.4, or at the time of termination pursuant to Section 13.3 or Section 17.4, (the “License Request”) Pfizer shall have a worldwide, royalty-bearing, exclusive right and license, with the right to grant sublicenses, under the Developed IP Controlled by Licensee, as it exists as of the effective date of termination, to use, Develop, Commercialize and Manufacture Continuation Products. From and after such termination, in the event Pfizer timely provided the License Request, to the extent that Pfizer or any of its Affiliates or sublicensees further Develops or Commercializes any Continuation Product in the Field for which the Development Stage was achieved for such Continuation Product pursuant to the table below,

 

Pfizer shall pay Licensee the royalties on Net Sales, mutatis mutandis, with respect to such Continuation Product at the applicable rate set forth in the following table, determined based on a Continuation Product-by-Continuation Product basis:

 

Development Stage of Continuation Product as of Effective Date of Termination			Royalty Rate
Full enrollment has been achieved with respect to the first Phase III Clinical Trial of the Continuation Product			[***]	%
An NDA has been filed with respect to the Continuation Product			[***]	%
A First Commercial Sale has occurred with respect to the Continuation Product			[***]	%

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

For avoidance of doubt, the royalties set forth above in this Section 13.5.2(b)(ii) are not incremental to the royalties set forth in Section 5.4, and the royalties set forth above in this Section 13.5.2(b)(ii) shall only apply to the Continuation Product(s) and no other product or Product that Pfizer may Develop, nor shall the royalties apply to Products that are outside of the Field of the Development

 

Stage achieved by such Continuation Product. For example, if an NDA had been filed for a Continuation Product in Field 1, but no Development Stage was achieved for any Products in Field 2, then [***], but royalties of [***] would be due to Licensee on Net Sales of such Products in Field 1. Such royalties shall be paid for the Continuation Product Royalty Term in accordance with the provisions of Sections 5.4, 5.5, 5.8, 5.9, 5.10 (to a bank account provided by Licensee) and 5.11, mutatis mutandis.

 

(c)          Transition. If Pfizer timely makes a License Request, then, within a reasonable period of time, at Pfizer’s sole option, the Parties shall negotiate in good faith a transition plan on commercially reasonable terms that will include, at a minimum, a plan for accomplishing the activities described in this Section 13.5.2(c).

 

(i)          Continued Development. At Pfizer’s request, Licensee shall continue on-going Development of the Products in the Fields for a mutually agreed-upon period following termination of this Agreement, which period shall not be less than three (3) months unless otherwise agreed to by the Parties; provided, however, that if Pfizer chooses not to continue a Clinical Trial initiated by Licensee or if, for the safety of any subject, any Clinical Trial with respect to a Product should not be continued, Licensee shall be solely responsible for the cost of winding down such trial, including any costs arising from compliance with any ethical or other requirements imposed by an applicable Regulatory Authority.

 

(ii)         Technology Transfer. At Pfizer’s request, Licensee shall make available to Pfizer all currently available records and data which exist and are Controlled by Licensee as of the effective date of termination and are necessary or reasonably useful for Pfizer to continue using, Developing, Commercializing and Manufacturing the Products.

 

(iii)        Regulatory Matters. At Pfizer’s request, Licensee shall transfer and assign to Pfizer (or its designee) all Regulatory Approvals (including pricing approvals) and Regulatory Filings held by Licensee with respect to the Products, provided that if such transfer and assignment is not permitted by the applicable Regulatory Authority, Licensee shall permit Pfizer to cross-reference and rely upon such Regulatory Approvals (including pricing approvals) and Regulatory Filings for the purpose of using, Developing, Commercializing and Manufacturing the Products. Licensee shall make available to Pfizer copies of all regulatory documentation and records related to the Products, including information contained in the regulatory and safety databases. The Parties shall cooperate to ensure the prompt transition of regulatory responsibilities for the Products from Licensee to Pfizer.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

(iv)        Trademarks. (A) Pfizer shall have an exclusive, fully paid- up, royalty-free, worldwide, transferable, sublicensable, perpetual and irrevocable license to use the trademarks Controlled by Licensee and associated with the Compound or Products solely for the purpose of using, Developing, Commercializing and Manufacturing the Products; (B) Pfizer shall also have a non-exclusive, fully paid-up, royalty-free, worldwide, transferable, sublicensable, perpetual and irrevocable license to use any trademarks or part thereof that use or incorporate Licensee or its Affiliate’s names solely to the extent required by a Regulatory Authority to be displayed to indicate manufacturing source or other identifying information with respect to the inventory described in clause (v) hereof; and (C) Pfizer and its Affiliates and sublicensees shall comply with Licensee’s reasonable trademark guidelines and quality control procedures negotiated between the Parties in good faith with respect to each of (A) and (B).

 

(v)         Inventory and Supply. At Pfizer’s request and expense, Licensee shall transfer to Pfizer (or its designee) all Products, and all components and in-process inventory with respect thereto, produced or held by Licensee as of the effective date of termination with respect to the Manufacture of Products, except as necessary to perform its obligations under Section 13.5.2(c)(i). At Pfizer’s request and expense, (A) if Licensee has sublicensed to a Third Party CMO the right to Manufacture the Products, Licensee shall, to the extent permitted by the applicable sublicense agreement, promptly assign such sublicense to Pfizer; provided, however, that (A) in no event shall Licensee be required to pay any fee in order to assign any contract under this Section 13.5.2(c)(v); and (B) if Licensee has not sublicensed the right to Manufacture the Products, Licensee shall continue to Manufacture or have Manufactured the Products for a period of not less than twelve (12) months, including, at Pfizer’s request, a reasonable stock build. Pfizer shall pay to Licensee the actual cost of Manufacturing associated with inventory and Products received by Pfizer pursuant to this Section 13.5.2(c)(v), plus ten percent (10%).

 

(vi)        Third Party Agreements. At Pfizer’s request, to the extent Licensee is able to do so, Licensee shall assign to Pfizer (or its designee) any agreements with Third Parties with respect to the Development, Commercialization and Manufacture of the Products; provided, however, that in no event shall Licensee be required to pay any fee in order to assign any contract under this Section 13.5.2(c)(vi). With respect to Third Party agreements that Licensee is not able to assign to Pfizer, Licensee shall cooperate to give Pfizer the benefit of such contracts for a reasonable transitional period.

 

(d)          Licensee Inventory. In the event that Licensee terminates this Agreement pursuant to Section 13.4 and Pfizer elects not to initiate transition activities pursuant to Section 13.5.2(c), Licensee shall have the right to sell its remaining inventory of Products so long as Licensee has fully paid, and continues to pay when due, all Royalties, Milestone Payments, or Transaction Completion Payments owed to Pfizer, and Licensee is otherwise not in material breach of this Agreement.

 

13.6         Survival.

 

Expiration or termination of this Agreement shall not relieve the Parties of any obligation accruing hereunder prior to such expiration or termination. Without limiting the foregoing, the provisions of Articles 1, 6, 9, 11, 12, 15, 16 and 17 and Sections 2.4, 2.5, 2.7, 5.12, 7.1, 7.2, 10.5, 10.6, 13.1, 13.5 and 13.6 shall survive expiration or termination of this Agreement.

 

 

14.         Publicity; Publications.

 

14.1         Use of Names.

 

Subject to Pfizer’s rights pursuant to Section 13.5.2(c)(iv), and except as required by Applicable Law or permitted under any other agreement between Licensee or any of its Affiliates or investors, on the one hand, and Pfizer or any of its Affiliates, on the other hand, neither Party (nor any of its Affiliates or agents) shall use the registered or unregistered trademarks, service marks, trade dress, trade names, logos, insignia, domain names, symbols or designs of the other Party or its Affiliates in any press release, publication or other form of promotional disclosure without the prior written consent of the other Party in each instance; provided, however, that Licensee, and any of its Affiliates or sublicensees, may state publicly that Licensee has received, or been sublicensed under, a license from Pfizer to Exploit the Compound and Products.

 

14.2         Press Releases.

 

The Parties acknowledge that one or both Parties, either singly or jointly, may desire to publish one or more press releases relating to this Agreement, the rights granted hereunder, and developments made thereto. However, each Party agrees not to issue any press release or other public statement, whether written, electronic, oral or otherwise, disclosing the terms of this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. Neither Party will be prevented from (a) complying with any duty of disclosure it may have pursuant to Applicable Law or the rules of any recognized stock exchange, so long as the disclosing Party provides the other Party at least seven (7) Business Days prior written notice to the extent practicable and only discloses information to the extent required by Applicable Law or the rules of any recognized stock exchange, or (b) making any disclosure permitted under any other agreement between Licensee or any of its Affiliates or investors, on the one hand, and Pfizer or any of its Affiliates, on the other hand.

 

14.3         Publications.

 

During the Term, each Party shall submit to the other Party for review and approval any proposed academic, scientific or medical publication or public presentation that contains the other Party’s Confidential Information. Such review and approval will be conducted for the purposes of preserving the value of the Licensed Technology and Licensee’s commercial interests in the Compound and Products and determining whether any portion of the proposed publication or presentation containing such other Party’s Confidential Information should be modified or deleted. Written copies of such proposed publication or presentation required to be submitted hereunder shall be submitted to the reviewing Party no later than thirty (30) days before submission for publication or presentation (the “Review Period”). The reviewing Party shall provide its comments with respect to such publications and presentations within twenty (20) days of its receipt of such written copy, which comments the other Party shall reasonably consider. The Review Period may be extended for an additional thirty (30) days in the event the reviewing Party can, within twenty (20) days of receipt of the written copy, demonstrate reasonable need for such extension, including for the preparation and filing of patent applications. Each Party will comply with standard academic practice regarding authorship of scientific publications and recognition of contribution of other parties in any publication governed by this Section 14.3, including International Committee of Medical Journal Editors standards regarding authorship and contributions.

 

 

15.         Licensee Insurance.

 

15.1         Insurance Requirements.

 

As soon as practicable following the Effective Date (and in any event within twenty (20) Business Days after the Effective Date), Licensee will obtain and thereafter during the Term will maintain until the later of: (a) three (3) years after termination or expiration of this Agreement, or

 

(a)          the date that all statutes of limitation covering claims or suits that may be instituted for personal injury based on the sale or use of the Products by Licensee or any of its Affiliates or sublicensees have expired, commercial general liability insurance from a minimum “A-” AM Best rated insurance company, including contractual liability and product liability or clinical trials, if applicable, with coverage limits of not less than five (5) million U.S. Dollars per occurrence and five (5) million U.S. Dollars in the aggregate. Licensee has the right to provide the total limits required by any combination of primary and umbrella/excess coverage. The minimum level of insurance set forth herein shall not be construed to create a limit on Licensee’s liability hereunder. Such policies shall name Pfizer and its Affiliates as additional insured (usually for US, Canada, and Puerto Rico exposures) or indemnify Pfizer and its Affiliates, as principal (usually for rest of world exposures) and provide a waiver of subrogation in favor of Pfizer and its Affiliates. Such insurance policies shall be primary and non-contributing with respect to any other similar insurance policies available to Pfizer or its Affiliates. Any deductibles for such insurance shall be assumed by Licensee.

 

15.2         Policy Notification.

 

Licensee shall provide Pfizer with certified copies of such policies or original certificates of insurance evidencing such insurance: (a) within twenty (20) Business Days after the execution by both Parties of this Agreement, and (b) prior to expiration of any one coverage. Licensee shall provide that Pfizer shall be given at least thirty (30) days written notice prior to cancellation, termination, or any material change to restrict the coverage or reduce the limits afforded.

 

16.         Dispute Resolution.

 

16.1         Arbitration.

 

16.1.1 General. Any disputes, controversies or other claims arising out of this Agreement, its interpretation, validity, performance, enforceability, breach or termination (“Disputes”) that are not settled amicably shall be referred by sending written notice of the Dispute to the other Party for final and binding arbitration with the office of the American Arbitration Association in New York County, New York in accordance with the then-prevailing commercial arbitration rules of the American Arbitration Association.

 

16.1.2 Number of Arbitrators. The arbitration shall be settled by one (1) arbitrator who is neutral to the Parties, and the Parties shall endeavor to jointly appoint the arbitrator. If the Parties fail to jointly appoint the arbitrator within (15) fifteen days of the arbitration being initiated, the appointment shall be made by the American Arbitration Association.

 

 

16.1.3 Powers of the Arbitrator.

 

(a)          The arbitrator is authorized to award to the prevailing Party, if a prevailing party is determined by the arbitrator, such Party’s costs and expenses, including attorneys’ fees.

 

(b)          Except as set forth in Article 12, the arbitrator may not award punitive, exemplary, or consequential damages, nor may the arbitrator apply any multiplier to any award of actual damages, except as may be required by statute;

 

(c)          Any award by the arbitrator shall be subject to the limitations in Section 12.2;

 

(d)          The arbitrator shall have the discretion to hear and determine at any stage of the arbitration any issue asserted by any Party to be dispositive of any claim or counterclaim, in whole or part, in accordance with such procedure as the arbitrator may deem appropriate, and the arbitrator may render an award on such issue.

 

(e)          In addition to the authority conferred on the arbitrator by the rules designated in this Agreement, and without prejudice to any provisional measures that may be available from a court of competent jurisdiction, the arbitrator shall have the power to grant any provisional measures that the arbitrator deems appropriate, including but not limited to provisional injunctive relief, and any provisional measures ordered by the arbitrator may, to the extent permitted by Applicable Law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such.

 

16.1.4 Confidentiality. Upon any initiation of an arbitration in accordance with this Article 16, the Parties shall negotiate in good faith a separate agreement governing the confidentiality of all information used or disclosed in such arbitration.

 

16.2        No Trial By Jury.

 

THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO TRIAL BY JURY.

 

17.         General Provisions.

 

17.1        Assignment.

 

Neither Party may assign its rights and obligations under this Agreement without the other Party’s prior written consent, except that: (a) Pfizer may assign to a Third Party its rights to receive some or all of the payments payable hereunder, (b) each Party may assign its rights and obligations under this Agreement or any part hereof to one or more of its Affiliates without the consent of the other Party; and (c) either Party may assign this Agreement in the event of a Change of Control of such Party. The assigning Party shall provide the other Party with prompt written notice of any such assignment. Any permitted assignee pursuant to clauses (b) and (c) above shall assume all obligations of its assignor under this Agreement, and no permitted assignment shall relieve the assignor of liability for its obligations hereunder. Any attempted assignment in contravention of the foregoing shall be void.

 

 

17.2         Severability.

 

Should one or more of the provisions of this Agreement become void or unenforceable as a matter of law, then such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement, and the Parties agree to substitute a valid and enforceable provision therefor which, as nearly as possible, achieves the desired economic effect and mutual understanding of the Parties under this Agreement.

 

17.3         Governing Law.

 

This Agreement shall be governed by and construed under the laws in effect in the State of New York, U.S. without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result. Article 16 does not intend to deprive any court of competent jurisdiction with respect to its power to issue a pre-arbitral injunction, pre-arbitral attachment or other order in aid of arbitration proceedings or the enforcement of any judgment or award. In any such action, the courts located in the Southern District of New York shall have exclusive jurisdiction over any action brought to enforce this Agreement, and each of the Parties irrevocably: (a) submits to such exclusive jurisdiction for such purpose; (b) waives any objection which it may have at any time to the laying of venue of any proceedings brought in such courts;

 

(a)          waives any claim that such proceedings have been brought in an inconvenient forum; and (d) further waives the right to object with respect to such proceedings that any such court does not have jurisdiction over such Party; and (e) consents to service of process in the manner provided by Section 17.8 or by first class certified mail, return receipt requested, postage prepaid.

 

17.4         Force Majeure.

 

Except with respect to delays or nonperformance caused by the negligent or intentional act or omission of a Party, any delay or nonperformance by such Party (other than payment obligations under this Agreement) will not be considered a breach of this Agreement to the extent such delay or nonperformance is caused by acts of God, natural disasters, acts of any Government Authority or civil or military authority, fire, floods, epidemics, quarantine, energy crises, war or riots or any other cause outside of the reasonable control of such Party (each, a “Force Majeure Event”), provided that the Party affected by such Force Majeure Event will promptly begin or resume performance as soon as reasonably practicable after the event has abated. If the Force Majeure Event prevents a Party from performing any of its obligations under this Agreement for two hundred seventy (270) days or more, then the other Party may terminate this Agreement immediately upon written notice to the non-performing Party.

 

17.5         Waivers and Amendments.

 

The failure of any Party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other Party. No waiver shall be effective unless it has been given in writing and signed by the Party giving such waiver. No provision of this Agreement may be amended or modified other than by a written document signed by authorized representatives of each Party.

 

 

17.6         Relationship of the Parties.

 

Nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture, or legal entity of any type between Pfizer and Licensee, or to constitute one Party as the agent of the other. Moreover, each Party agrees not to construe this Agreement, or any of the transactions contemplated hereby, as a partnership for any tax purposes. Each Party shall act solely as an independent contractor, and nothing in this Agreement shall be construed to give any Party the power or authority to act for, bind, or commit the other Party.

 

17.7         Successors and Assigns.

 

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

 

17.8         Notices.

 

All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when: (a) delivered by hand (with written confirmation of receipt), (b) sent by fax (with written confirmation of receipt), provided that a copy is sent by an internationally recognized overnight delivery service (receipt requested), or (c) when received by the addressee, if sent by an internationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and fax numbers set forth below (or to such other addresses and fax numbers as a Party may designate by written notice):

 

If to Pfizer Inc.:

 

Pfizer Inc.
235 East 42nd Street
New York, NY 10017
Fax: 646-348-8157
Attention: Senior Vice President, Business Development

 

With a copy (which shall not constitute notice) to:

 

Pfizer Inc.
New York, NY 10017
Fax: 646-348-8157
Attn: General Counsel

 

If to PPI:

 

Pfizer Products Inc.
235 East 42nd Street
New York, NY 10017
Fax: 646-348-8157
Attention: Senior Vice President, Business Development

 

 

With a copy (which shall not constitute notice) to:

 

Pfizer Products Inc.
235 East 42nd Street
New York, NY 10017
Fax: 646-348-8157
Attention: General Counsel

 

If to Licensee:

 

SpringWorks Subsidiary 2, Inc.
100 Washington Blvd., 5^th Floor
Stamford, CT 06902
Attn: Chief Executive Officer

 

With a copy (which shall not constitute notice) to:

 

SpringWorks Subsidiary 2, Inc.
100 Washington Blvd., 5^th Floor
Stamford, CT 06902
Attn: General Counsel

 

If to SpringWorks:

 

SpringWorks Therapeutics, Inc.
100 Washington Blvd., 5^th Floor
Stamford, CT 06902
Attn: Chief Executive Officer

 

With a copy (which shall not constitute notice) to:

 

SpringWorks Therapeutics, Inc.
100 Washington Blvd., 5^th Floor
Stamford, CT 06902
Attn: General Counsel

 

17.9         Further Assurances.

 

Licensee and Pfizer hereby covenant and agree without the necessity of any further consideration, to execute, acknowledge and deliver any and all such other documents and take any such other action as may be reasonably necessary or appropriate to carry out the intent and purposes of this Agreement.

 

17.10         No Third Party Beneficiary Rights.

 

This Agreement is not intended to and shall not be construed to give any Third Party any third party beneficiary rights or other rights to enforce this Agreement or any provision contained herein or contemplated hereby.

 

 

17.11        Entire Agreement.

 

17.11.1 This Agreement, together with its Schedules, sets forth the entire agreement and understanding of the Parties as to the subject matter hereof and supersedes all proposals, oral or written, and all other prior communications between the Parties with respect to such subject matter.

 

17.11.2 In the event of any conflict between a material provision of this Agreement and any Schedule hereto, the Agreement shall control.

 

17.12        Counterparts.

 

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

17.13        Cumulative Remedies.

 

No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to in this Agreement or otherwise available under law.

 

17.14        Waiver of Rule of Construction.

 

Each Party has had the opportunity to consult with counsel in connection with the review, drafting, and negotiation of this Agreement. Accordingly, any rule of construction that any ambiguity in this Agreement shall be construed against the drafting Party shall not apply.

 

[Signature page to follow]

 

 

IN WITNESS WHEREOF, the Parties intending to be bound have caused this Agreement to be executed by their duly authorized representatives as of the Amendment Effective Date.

 

SPRINGWORKS SUBSIDIARY 2, INC.

 

By:	/s/ Saqib Islam
Name:	Saqib Islam
Title:	Chief Executive Officer

 

SIGNATURE PAGE TO AMENDED AND RESTATED LICENSE AGREEMENT

 

 

 

IN WITNESS WHEREOF, the Parties intending to be bound have caused this Agreement to be executed by their duly authorized representatives as of the Amendment Effective Date.

 

PFIZER INC.

 

By:	/s/ Doug Giordano
Name:	Doug Giordano
Title:	Senior Vice President, Worldwide Business Development

 

SIGNATURE PAGE TO AMENDED AND RESTATED LICENSE AGREEMENT

 

 

 

IN WITNESS WHEREOF, the Parties intending to be bound have caused this Agreement to be executed by their duly authorized representatives as of the Amendment Effective Date.

 

PFIZER PRODUCTS INC.

 

By:	/s/ Tiffany Trunko
Name:	Tiffany Trunko
Title:	Vice President and Assistant General Counsel

 

SIGNATURE PAGE TO AMENDED AND RESTATED LICENSE AGREEMENT

 

 

 

IN WITNESS WHEREOF, the Parties intending to be bound have caused this Agreement to be executed by their duly authorized representatives as of the Amendment Effective Date.

 

SPRINGWORKS THERAPEUTICS, INC.

 

(Solely for purposes of Article 11 and Sections 3.2 and 3.3)

 

By:	/s/ Saqib Islam
Name:	Saqib Islam
Title:	Chief Executive Officer

 

SIGNATURE PAGE TO AMENDED AND RESTATED LICENSE AGREEMENT

 

 

SCHEDULE A

 

[***]

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

SCHEDULE B

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE C

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE D

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE E

 

[***]

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

SCHEDULE F

[***]

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

SCHEDULE G

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE H

[***]

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

SCHEDULE I

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE J

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE K

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

 

Exhibit 10.9

 

EXECUTION VERSION
CONFIDENTIAL

 

AMENDED AND RESTATED LICENSE AGREEMENT

 

by and among

 

SpringWorks Subsidiary 3, Inc.,

 

Pfizer Inc.,

 

Warner-Lambert Company LLC,

 

and, solely for purposes of Article 11 and Sections 3.2 and 3.3 hereof,

 

SpringWorks Therapeutics, Inc.

 

as of August 7, 2019

 

 

Table of Contents

 

			Page
1.	Definitions		1
	1.1	Definitions.	1
	1.2	Interpretation.	14
2.	License Grant.		14
	2.1	License Grant.	14
	2.2	Sublicense Rights.	14
	2.3	Retained Rights.	15
	2.4	Residuals.	15
	2.5	No Additional Rights.	15
	2.6	Right of First Negotiation.	16
	2.7	365(n) Rights.	17
	2.8	Exclusivity.	17
3.	Transfer Activities.		18
	3.1	Transfer Activities Schedules.	18
	3.2	Compassionate Use and IIRs.	18
	3.3	Transition and Assignment Agreements.	18
	3.4	Terminated Agreements and MTAs.	19
4.	Development; Commercialization; Manufacturing.		19
	4.1	General.	19
	4.2	Diligence.	19
	4.3	Regulatory Filings.	19
	4.4	Progress Reporting.	20
	4.5	CROs and CMOs.	20
	4.6	Development Plan.	20
	4.7	Pharmacovigilance Agreement.	21
5.	Payment Terms.		21
	5.1	Transfer Activities Payments.	21
	5.2	Development Milestone Payments.	21
	5.3	Sales Milestone Payments.	22
	5.4	Royalty Payments.	23
	5.5	Royalty Deductions.	23
	5.6	Transaction Completion Payment.	24
	5.7	Other Payments.	25
	5.8	Late Payments.	25
	5.9	Currency.	25
	5.10	Method of Payment.	25
	5.11	Taxes.	26
	5.12	Royalty Reconciliation.	26

 

  

6.	Records; Audit Rights.		27
	6.1	Relevant Records.	27
	6.2	Audit Request.	27
	6.3	Audit Fees and Expenses.	27
	6.4	Payment of Deficiency.	27
7.	Intellectual Property Rights.		28
	7.1	Pre-existing IP.	28
	7.2	Developed IP.	28
	7.3	Inactive Patents.	28
	7.4	Patent Prosecution of Licensed Patent Rights.	29
	7.5	Listing in Orange Book.	30
8.	Infringement; Misappropriation.		30
	8.1	Notification.	30
	8.2	Infringement Action.	30
9.		Confidentiality.	31
	9.1	Definition.	31
	9.2	Obligations.	32
	9.3	Exceptions.	32
	9.4	Right to Injunctive Relief.	33
	9.5	Ongoing Obligation for Confidentiality.	33
10.	Representations, Warranties and Covenants.		33
	10.1	Representations and Warranties by Each Party.	33
	10.2	Representations and Warranties by Pfizer.	33
	10.3	Representations, Warranties and Covenants by Licensee.	35
	10.4	Representations, Warranties and Covenants related to Compliance Laws.	36
	10.5	No Action Required Which Would Violate Law.	36
	10.6	No Other Warranties.	36
11.	Indemnification.		37
	11.1	Indemnification by Licensee.	37
	11.2	Indemnification by Pfizer.	37
	11.3	Indemnification Procedure.	38
12.	Limitation of Liability.		38
	12.1	Consequential Damages Waiver.	38
	12.2	Liability Cap.	38
13.	Term; Termination.		39
	13.1	Term.	39
	13.2	Termination for Cause.	39
	13.3	Termination for a Bankruptcy Event.	39
	13.4	Termination for Convenience.	39
	13.5	Effects of Termination.	39

 

 

	13.6	Survival.	42
14.	Publicity; Publications.		43
	14.1	Use of Names.	43
	14.2	Press Releases.	43
	14.3	Publications.	43
15.	Licensee Insurance.		44
	15.1	Insurance Requirements.	44
	15.2	Policy Notification.	45
16.	Dispute Resolution.		44
	16.1	Arbitration.	44
	16.2	No Trial By Jury.	45
17.	General Provisions.		45
	17.1	Assignment.	45
	17.2	Severability.	46
	17.3	Governing Law.	46
	17.4	Force Majeure.	46
	17.5	Waivers and Amendments.	46
	17.6	Relationship of the Parties.	47
	17.7	Successors and Assigns.	47
	17.8	Notices.	47
	17.9	Further Assurances.	48
	17.10	No Third Party Beneficiary Rights.	48
	17.11	Entire Agreement.	49
	17.12	Counterparts.	49
	17.13	Cumulative Remedies.	49
	17.14	Waiver of Rule of Construction.	49

 

List of Schedules

 

Schedule A – Compound
Schedule B – Knowledge
Schedule C - Licensed Know How
Schedule D - Transfer Activities
Schedule E - Licensed Patent Rights
Schedule F - Initial Development Plan
Schedule G – Exceptions
Schedule H - GMP Compound
Schedule I – IIRs
Schedule J - Wire Instructions
Schedule K - Licensed Know-How

 

 

AMENDED AND RESTATED LICENSE AGREEMENT

 

THIS AMENDED AND RESTATED LICENSE AGREEMENT (“Agreement”) is made effective as of the 7^th day of August, 2019 (the “Amendment Effective Date”), by and among SpringWorks Subsidiary 3, Inc., a corporation organized and existing under the laws of Delaware with offices at 100 Washington Blvd., 5^th Floor, Stamford, CT 06902 (“Licensee”), Pfizer Inc., a corporation organized and existing under the laws of Delaware with offices at 235 East 42nd Street, New York, NY 10017 (“Pfizer Inc.”), Warner-Lambert Company LLC, a limited liability company organized and existing under the laws of Delaware with offices at 235 East 42nd Street, New York, NY 10017 (“Warner-Lambert” and, collectively with “Pfizer Inc.”, “Pfizer”) and, solely with respect to Article 11 and Sections 3.2 and 3.3, SpringWorks Therapeutics, Inc., a corporation organized and existing under the laws of Delaware (“SpringWorks”). Licensee and Pfizer may, from time-to-time, be individually referred to as a “Party” and collectively referred to as the “Parties”.

 

RECITALS

 

WHEREAS, Pfizer, Licensee and SpringWorks (as successor in interest to SpringWorks Therapeutics, LLC) previously entered into a License Agreement, dated as of August 18, 2017 (the “Original Agreement”), in connection with the formation and capitalization of SpringWorks;

 

WHEREAS, the Parties desire to amend the Original Agreement to clarify their respective rights and obligations with respect to certain Patent Rights that comprise or claim Know-How relevant to the Development, Manufacture or use of the Compound or any Product, including without limitation, Arising Patent Rights (as defined below) and jointly-owned Developed IP; and

 

WHEREAS, Licensee desires to obtain an exclusive license to the Arising Patent Rights under Section 2.1.1 of the Original Agreement and to clarify their respective rights and obligations with respect to jointly-owned Developed IP.

 

NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties, intending to be legally bound hereby, agree to amend and restate the Original Agreement as follows:

 

1.           Definitions.

 

1.1           Definitions.

 

“Accounting Standards” means, as applicable, United States Generally Accepted Accounting Principles or International Financial Reporting Standards, in each case consistently applied.

 

“Acquisition Program” is defined in Section 2.8.2.

 

“Active Cases” is defined in Section 10.2.1.

 

 

“Affiliate” means, with respect to a Party, any Person that, on the Effective Date or during the Term, controls, is controlled by (which Person is hereby defined to be a “Subsidiary” of such Party), or is under common control with that Party. For the purpose of this definition, “control” shall refer to: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities or other ownership interest, by contract or otherwise, or (b) the ownership, directly or indirectly, of fifty percent (50%) or more of the voting securities or other ownership interest of such entity. Notwithstanding the foregoing, Pfizer and its Affiliates (other than Licensee-Related Persons) shall not be considered Affiliates of any Licensee-Related Person for purposes of this Agreement, and Licensee-Related Persons shall not be considered Affiliates of Pfizer and its Affiliates (other than Licensee-Related Persons) for purposes of this Agreement, where “Licensee-Related Persons” means Licensee, Licensee’s Subsidiaries, Licensee’s Parent, Licensee’s Parent’s Subsidiaries and any Person that becomes an Affiliate of Licensee after the Effective Date as a result of or following a Change of Control of Licensee or Licensee’s Parent.

 

“Agreement” is defined in the introduction to this Agreement.

 

“Amendment Effective Date” is defined in the introduction to this Agreement.

 

“Applicable Law” means any applicable law, statute, rule, regulation, order, judgment, or ordinance of any Governmental Authority.

 

“Arising Patent Rights” means any Patent Rights that claim Know-How that is within the Licensed Know-How, which Know-How is described in Schedule K (which may be amended from time to time by agreement of the Parties), but which Patent Rights are, as of the Effective Date, not included within the Licensed Patent Rights. For avoidance of doubt: (i) Arising Patent Rights must claim Know-How that is within the Licensed Know-How but may also describe or claim other Know-How and (ii) Patent Rights that are included within Arising Patent Rights and also describe or claim Developed IP shall be, for all purposes under the Agreement, Arising Patent Rights and not Developed IP.

 

“Bankruptcy Code” is defined in Section 13.3.

 

“Bankruptcy Event” is defined in Section 13.3.

 

“Business Day” means any day other than (a) a Saturday, (b) a Sunday or (c) a day on which commercial banks located in New York, New York are authorized or required by Applicable Law to remain closed.

 

“Calendar Quarter” means the respective periods of three (3) consecutive calendar months ending on March 31, June 30, September 30, and December 31.

 

“Calendar Year” means each calendar year.

 

 

“Change of Control” means, with respect to a Party (or, where expressly set forth in this Agreement, the Parent of such Party), whether effected in a single transaction or a series of related transactions: (a) (i) the acquisition of beneficial ownership, directly or indirectly, by any Person (other than such Party or an Affiliate of such Party) of securities or other voting interest of such Party representing a majority or more of the combined voting power of such Party’s then- outstanding securities or other voting interests or (ii) any merger, reorganization, consolidation, share exchange, business combination or similar transaction involving such Party (or, if applicable, the Parent of such Party) pursuant to which more than fifty percent (50%) of the outstanding voting securities of such Party (or, if applicable, the Parent of such Party) would be converted into cash or securities of any other Person, that, in either case (i) or (ii), results in the holders of beneficial ownership of the voting securities or other voting interests of such Party (or, if applicable, the Parent of such Party) immediately prior to such acquisition, merger, reorganization, consolidation or business combination ceasing to hold beneficial ownership of at least fifty percent (50%) of the combined voting power of the surviving entity immediately after such acquisition, merger, reorganization, consolidation, share exchange, business combination or similar transaction; (c) any sale, lease, exchange, contribution or other transfer (other than the granting of a license or sublicense) of all or substantially all of the assets of such Party and its Subsidiaries taken as a whole, other than the sale or disposition of such assets to an Affiliate of such Party; or (d) any sale, lease, exchange, contribution or other transfer (other than the granting of a license or sublicense) of all or substantially all the assets of such Party and its Subsidiaries taken as a whole to which this Agreement relates, other than the sale or disposition of such assets to an Affiliate of such Party.

 

“Claims” is defined in Section 11.1.

 

“Clinical Trial” means any experiment in which a drug is administered or dispensed to one or more human subjects, including any Phase I Clinical Trial, Phase II Clinical Trial, Phase III Clinical Trial, Phase IV Clinical Trial, bioequivalence study or bioavailability study.

 

“CMO” means a contract manufacturing organization.

 

“Combination Product” means a product that includes or incorporates the Compound or any Product in combination with one (1) or more Other Active Ingredients (as defined in the definition of Net Sales), whether the Compound or Product(s), on the one hand, and such Other Active Ingredients, on the other hand, are formulated or packaged together.

 

“Commercialize” or “Commercialization” means to market, promote, distribute, offer for sale, sell, have sold, import, have imported, export, have exported or otherwise commercialize a compound or product, or have any of the foregoing done on the relevant Person’s behalf. When used as a noun, “Commercialization” means any and all activities involved in Commercializing.

 

“Commercially Reasonable Efforts” means, with respect to the Development or Commercialization of a Product in or for a particular country, that level of efforts and resources commonly dedicated by a similarly situated company (whether or not a public benefit corporation) in the research-based pharmaceutical industry to the Development or Commercialization, as the case may be, of a product of similar commercial potential at a similar stage in its lifecycle in or for such country, in each case taking into account issues of access to reasonably necessary Know-How (as identified in Schedule C), safety and efficacy, product profile, the proprietary position, the then-current competitive environment for such product, the likely timing of such product’s entry into the market, the regulatory environment and the status of such product, the reimbursement and pricing environment, and other relevant scientific, technical and commercial factors.

 

 

“Compliance Laws” is defined in Section 10.4.

 

“Compound” means Pfizer’s proprietary MEK inhibitor known as “PF-00192513,” with the chemical structure set forth on Schedule A, and any salt, solvate, hydrate, stereoisomer, prodrug, metabolite, isomer (including optical, enantiomeric, diastereoisomeric, geometric or tautomeric), polymorph, crystalline form, or any other form thereof.

 

“Confidential Information” is defined in Section 9.1.

 

“Continuation Product” means any Product that, as of the date of termination of this Agreement, is in a Clinical Trial, is the subject of an NDA filing or has been sold in a First Commercial Sale, mutatis mutandis, as described in the table set forth in Section 13.5.2(b).

 

“Continuation Product Royalty Term” means, with respect to a Continuation Product in a country in the Territory, the period commencing on the First Commercial Sale, mutatis mutandis, of such Continuation Product in such country, and expiring upon the latest to occur of: (a) ten (10) years following the date of such First Commercial Sale of such Continuation Product in such country; (b) the expiration of all regulatory or data exclusivity granted by an applicable Governmental Authority for such Continuation Product in such country; or (c) the date upon which the Manufacture, use, sale, offer for sale or importation of such Continuation Product in such country would no longer infringe, but for the license granted herein, a Valid Claim, mutatis mutandis, of a Licensed Patent Right or Patent Right in Developed IP that is licensed to Pfizer pursuant to Section 13.5.2(b)(ii).

 

“Control” or “Controlled” means, with respect to any Intellectual Property Rights or other rights to provide data or other information, the legal authority or right (whether by ownership, license (other than any license granted pursuant to this Agreement) or otherwise) of a Party (or, as set forth herein, any of its Affiliates) to grant a license or a sublicense of or under such Intellectual Property Rights to the other Party or provide such data or other information to such other Party, in each case without breaching the terms of any agreement with a Third Party.

 

“CRO” means a contract research organization.

 

“Develop” or “Development” means to conduct any research or development activities with respect to a compound or product (including activities to import a compound or product for such purpose or to obtain Regulatory Approval for such compound or product), or to have any of the foregoing done on the relevant Person’s behalf.

 

“Developed IP” means any Intellectual Property Rights that are conceived or reduced to practice, or otherwise created or developed, by or on behalf of a Party, its Affiliates or sublicensees, alone or together with one or more Third Parties, during the Term in connection with the Development, Manufacture, or use of the Compound or any Product.

 

“Development Exclusion” is defined in Section 2.3.

 

“Development Milestone” is defined in Section 5.2.

 

“Development Milestone Payment” is defined in Section 5.2.

 

 

“Development Plan” is defined in Section 4.6.

 

“Disputes” is defined in Section 16.1.1.

 

“Effective Date” is August 18, 2017, the effective date of the Original Agreement.

 

“Election Notice” is defined in Section 7.4.3.

 

“Enabling Know-How” means any Know-How, other than the Licensed Know-How, that is Controlled by Pfizer or any Existing Pfizer Affiliates as of the Effective Date that is necessary for Licensee to Exploit the Compound, or any Product, in the form in which it existed as of the Effective Date, that is provided to Licensee or any of its Affiliates by Pfizer or any of its Affiliates.

 

“Enabling Patent Rights” means any Patent Rights, other than the Licensed Patent Rights and Patent Rights in Developed IP, that are Controlled by Pfizer or any Existing Pfizer Affiliates as of the Effective Date that are necessary for Licensee to Exploit the Compound, or any Product, in the form in which it existed as of the Effective Date, in the Field within the Territory. For clarity, the Enabling Patent Rights are not considered Licensed Patent Rights for purposes of the prosecution, enforcement or Royalty provisions of this Agreement.

 

“EU” means the member states of the European Union, as constituted from time to time.

 

“Existing Pfizer Affiliates” means the Affiliates of Pfizer existing as of the Effective Date.

 

“Exploit” means to use, have used, research, Develop, have Developed, Manufacture, have Manufactured, Commercialize, have Commercialized or otherwise exploit.

 

“FD&C Act” means the United States Federal Food, Drug and Cosmetic Act, as amended.

 

“FDA” means the United States Food and Drug Administration, or a successor federal agency thereto.

 

“Field” means the treatment, diagnosis, or prevention of disease in humans or animals for all purposes.

 

“Final Royalty Payment” is defined in Section 5.12.

 

“Final Royalty Report” is defined in Section 5.12.

 

“First Commercial Sale” means, with respect to a Product and a country in the Territory, the first sale of such Product by Licensee or Licensee’s Affiliate or sublicensee to a Third Party in such country following receipt of Regulatory Approval for such Product in such country.

 

“Force Majeure Event” is defined in Section 17.4.

 

“Generic Competition” means, with respect to a particular country in the Territory, when the Generic Products have, in the aggregate, achieved more than [***] of the market share in such country by unit volume of combined unit sales of all Products and all Generic Products.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

“Generic Product” means, with respect to a particular country in the Territory, any pharmaceutical product that (a) is marketed for sale by a Third Party not authorized by Licensee, (b) receives Regulatory Approval (with or without pricing or reimbursement approval) in such country in full or partial reliance on the Regulatory Approval (but not necessarily pricing or reimbursement approval) of a Product, and (c) is determined by a Regulatory Authority to be therapeutically equivalent to and substitutable with a Product, it being acknowledged that the foregoing standard is intended to be consistent with the standard set forth in the introduction to the “Orange Book,” as amended from time to time, or any analogous or comparable standard in any country outside of the United States. For avoidance of doubt, in the United States, a “Generic Product” as defined herein includes one approved under Section 505(j) of the Federal Food Drug and Cosmetic Act, as supplemented or amended.

 

“Good Manufacturing Practice” or “GMP” means the regulatory requirements for current good manufacturing practices for pharmaceuticals promulgated by the FDA, as the same may be amended from time to time, and such standards of good manufacturing practice as are required by the Regulatory Authorities of the EU and other organizations and Governmental Authorities in countries in which any Product is intended to be manufactured or sold, to the extent such standards are not less stringent than United States GMP; provided that a Party shall not be held to any standards required by countries outside the United States and EU unless such standards have been specifically identified and approved for implementation by the mutual written agreement of the Parties.

 

“Government Official” is defined in Section 10.4.

 

“Governmental Authority” means any United States federal, state or local organization or authority, or any foreign government or any political subdivision thereof, or any multinational organization or authority, or any authority, agency or commission entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, or any court or tribunal (or any department, bureau or division thereof), or any governmental arbitrator or arbitral body. For clarity, any Regulatory Authority shall be a Governmental Authority.

 

“IIRs” means the Investigator Initiated Research Agreements for the Product in effect as of the Effective Date, set forth on Schedule I.

 

“Inactive Case” is defined in Section 7.3.

 

“IND” means: (a) an investigational new drug application filed with the FDA for authorization for the investigation of any Product, and (b) any of its foreign equivalents as filed with the applicable Regulatory Authorities in other countries or regulatory jurisdictions in the Territory, as applicable.

 

“Indemnitee” is defined in Section 11.3.

 

“Indemnitor” is defined in Section 11.3.

 

“Initial Period” is defined in Section 7.4.1.

 

 

“Intellectual Property Rights” means all trade secrets, copyrights, Patent Rights, trademarks, moral rights, Know-How and any and all other intellectual property or proprietary rights now known or hereafter recognized in any jurisdiction.

 

“IPO” means an initial public offering of stock.

 

“Know-How” means any invention, discovery, development, data, information, process, method, tangible material, technique, or other know-how, whether or not patentable.

 

“Knowledge” means the actual knowledge of the individuals listed on Schedule B, but is not meant to require or imply that any inquiry or investigation has been undertaken or that any type of search (independent of that performed by the actual Governmental Authority during the normal course of patent prosecution, as applicable, in a jurisdiction) has been conducted or opinion of counsel obtained.

 

“License Agreements” means, collectively, (a) this Agreement, (b) the License Agreement by and among SpringWorks Subsidiary 2, Inc., Pfizer Inc., Pfizer Products Inc. and SpringWorks, dated as of the Effective Date, (c) the License Agreement by and among SpringWorks Subsidiary 1, Inc. (“FAAH Subsidiary”), Pfizer Inc. (and/or one or more of its Affiliates) and SpringWorks, dated as of October 3, 2017 (the “FAAH Agreement”) and (d) the License Agreement by and among SpringWorks Subsidiary 4, Inc. (“Senicapoc Subsidiary”), Pfizer Inc. (and/or one or more of its Affiliates) and SpringWorks, dated as of October 3, 2017 (the “Senicapoc Agreement”).

 

“License Request” is defined in Section 13.5.2(b)(ii).

 

“Licensed Know-How” means all Know-How that is (a) Controlled by Pfizer or any Existing Pfizer Affiliates as of the Effective Date and (i) listed in Schedule C, or (ii) required to be transferred by Pfizer to Licensee in accordance with Schedule D or (b) Controlled by Pfizer or any of its Affiliates as of the Effective Date or during the Term and is otherwise provided or made available to Licensee by Pfizer’s Strategic Operations team via Pfizer’s secure file sharing. For avoidance of doubt, Licensed Know-How also includes the Know-How Controlled by Pfizer or any Existing Pfizer Affiliate as of the Effective Date described in Schedule K.

 

“Licensed Patent Rights” means (a) the Patent Rights listed on Schedule E, (b) all divisionals, continuations, and continuations-in-part that claim priority to the patent applications described in subsection (a) or the patent applications from which the patents described in subsection (a) issued, (c) all patents that have issued or in the future issue from any of the foregoing patent applications in subsections (a) and (b), including utility, model and design patents and certificates of invention, (d) any patents-of-addition, re-examinations, reissues, renewals, extensions or restorations of any of the foregoing, and (e) any foreign counterparts or equivalents of any of the foregoing. For clarity, each Inactive Case that is included in Schedule E shall be included in the Licensed Patent Rights to the extent they are in force as of the Effective Date or can be and are revived and maintained by Licensee in accordance with this Agreement. All Arising Patent Rights are hereby deemed to constitute part of the Licensed Patent Rights for all purposes under this Agreement, including the licenses granted in Section 2.1 and the payment obligations in Article 5, but excluding for purposes of the representations and warranties made under Article 10. Schedule E shall be updated from time-to-time during the Term by Licensee to include patent applications within the Arising Patent Rights.

 

 

“Licensed Technology” means, collectively, the Licensed Patent Rights and Licensed Know-How.

 

“Licensee” is defined in the introduction to this Agreement.

 

“Licensee Indemnitees” is defined in Section 11.2.

 

“Major Market” means each of the following countries: [***].

 

“Manufacture” or “Manufacturing” means to make, produce, manufacture, process, fill, finish, package, label, perform quality assurance testing with respect to, release, ship or store a compound or product or any component thereof, or have any of the foregoing done on the relevant Person’s behalf. When used as a noun, “Manufacture” or “Manufacturing” means any and all activities involved in Manufacturing a compound or product or any component thereof.

 

“Marginal Royalty Rate” means the tiered royalty rates set forth in Section 5.4.

 

“Material New Information” means any statistically significant or material data or information relating to an applicable Product, and resulting from the completion of a Clinical Trial in the Field, that would increase the probability that such Product would be further Developed or receive Regulatory Approval.

 

“Milestone Payments” means, collectively, the Development Milestone Payments and Sales Milestone Payments.

 

“NDA” means, with respect to a pharmaceutical product, a New Drug Application submitted to the FDA in accordance with the United States Federal Food, Drug and Cosmetic Act, as amended, and the rules and regulations promulgated thereunder, or any analogous application or submission with any Regulatory Authority outside of the United States.

 

“Negotiation Period” is defined in Section 2.6.3.

 

“Net Sales” means, with respect to all Products distributed or sold in the Territory to Third Parties by Licensee, its Affiliates and sublicensees, the gross amount invoiced for sales of such Products in the Territory, less in each case (a) sales returns, credits or allowances actually paid, granted or accrued, including trade, quantity and cash discounts, other adjustments, including those granted on account of price adjustments, returns, rebates, chargebacks (including for spoiled, damaged, out-dated, rejected or returned Product) or similar payments granted or given to wholesalers or other institutions; (b) adjustments arising from consumer discount programs or other similar programs; (c) customs or excise duties, value-added taxes, sales taxes, consumption taxes, or other taxes (except taxes on net income) or duties relating to sales, or any payment in respect of sales provided such duties or taxes are recorded in gross sales; (d) any payment in respect of sales to the United States government, any state government or any foreign government or to any other Governmental Authority, or with respect to any government- subsidized program or managed- care organization, including that portion of the annual fee paid under Section 9008 of the United States Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 11-48) that Licensee or its Affiliates or sublicensees reasonably allocate on a pro rata basis to the sales of Products in accordance with the standard practices of Licensee or its applicable Affiliate or sublicensee as consistently applied across its respective products; (e) actual freight, shipping, handling and insurance costs up to [***] percent ([***]) of Net Sales; (f) discounts or rebates or other payments required by Applicable Law, including any governmental special medical assistance programs; (g) fee for service wholesaler fees and inventory management fees paid to Third Party wholesalers, including hospital buying group/group purchasing organization administration fees; and (h) amounts that are written off as uncollectible in accordance with the accounting procedures of Licensee or its applicable Affiliate or sublicensee, consistently applied, provided that Licensee, its Affiliate or sublicensee (as applicable) has made reasonable efforts to collect on such receivable, and provided, further, (1) that if such receivable shall thereafter be paid or otherwise satisfied, the amount thereof shall be added to Net Sales for the Calendar Quarter in which so paid or satisfied and (2) such deduction for uncollectible accounts does not exceed [***] percent ([***]) of Net Sales. Net Sales shall be determined from the Licensee’s, or its applicable Affiliate’s or sublicensee’s, books and records maintained in accordance with Accounting Standards consistently applied.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Resales or sales of a Product made in good faith between or among Licensee, any of its Affiliates or any of its sublicensees shall not be included in the calculation of Net Sales, but the first sale thereafter to a Third Party (other than a sublicensee) shall be included the calculation of Net Sales.

 

If the Compound contained in a Combination Product is sold separately as a Product (a “Compound Product”) in such country and the other therapeutically active ingredients contained in the Combination Product (“Other Active Ingredient(s)”) are also sold separately in such country, Net Sales will be calculated by multiplying the total Net Sales (as described above) of the Combination Product by the fraction A/(A+B), where A is the average gross selling price in such country of the Compound Product sold separately in the same formulation and dosage, and B is the average gross selling price in such country of such Other Active Ingredient(s) during the applicable Calendar Year.

 

If the Compound Product contained in the Combination Product is sold independently of the Other Active Ingredient(s) contained in the Combination Product in such country, but the average gross selling price of such Other Active Ingredient(s) in such country cannot be determined, Net Sales will be calculated by multiplying the total Net Sales (as described above) of the Combination Product by the fraction A/C where A is the average gross selling price in such country of such Compound Product sold independently and C is the average gross selling price in such country of the entire Combination Product, during the applicable Calendar Year.

 

If the Other Active Ingredient(s) contained in the Combination Product are sold independently in such country, but there is no applicable Compound Product in such country (i.e., the Compound contained in the Combination Product is not sold separately as a Product in such country) or the average gross selling price of the applicable Compound Product in such country cannot be determined, Net Sales will be calculated by multiplying the total Net Sales (as described above) of the Combination Product by the fraction (1-(B/C)), where B is the average gross selling price in such country of such Other Active Ingredient(s) and C is the average gross selling price in such country of the entire Combination Product, during the applicable Calendar Year.

 

 

If there is no applicable Compound Product contained in the Combination Product and the Other Active Ingredient(s) contained in the Combination Product are not sold separately in such country, or the average gross selling price of neither such Compound Product nor such Other Active Ingredient(s) can be determined in such country, then Net Sales of the Combination Product in such country will be calculated by mutual agreement of the Parties; provided, that if the Parties cannot reach mutual agreement prior to the end of an applicable accounting period, such matter shall be resolved in accordance with Section 16.1.

 

“Parent” means (a) with respect to Licensee, any Person that, during the Term, ultimately controls Licensee (which, as of the Effective Date, is SpringWorks), and (b) with respect to Pfizer, any Person that, during the Term, ultimately controls Pfizer. For the purpose of this definition, “control” shall refer to: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of Licensee or Pfizer, as applicable, whether through the ownership of voting securities or other ownership interest, by contract or otherwise, or (b) the ownership, directly or indirectly, of fifty percent (50%) or more of the voting securities or other ownership interest of Licensee or Pfizer, as applicable, and, “ultimately control” means that the relevant Person itself is not controlled by another Person.

 

“Party” and “Parties” is defined in the introduction to this Agreement.

 

“Patent Rights” means any and all (a) issued patents, (b) pending patent applications, including all provisional applications, divisions, continuations, substitutions, continuations-in- part and renewals, and all patents granted thereon, (c) patents-of-addition, re-examinations, reissues 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, (e) other forms of government-issued rights substantially similar to any of the foregoing and (f) United States and foreign counterparts of any of the foregoing.

 

“Permitted Third Party Partner” means any academic or non-profit research institution, hospital, CRO, contract manufacturer, contract employee, consultant or any Third Party performing services on behalf of Licensee.

 

“Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, Governmental Authority, or any other form of entity not specifically listed herein.

 

“Pfizer” is defined in the introduction to this Agreement.

 

“Pfizer Cap” is defined in Section 12.2.

 

“Pfizer Developed IP” means Developed IP Controlled by Pfizer or any of its Affiliates during the Term. For clarity, any Patent Rights included in the Pfizer Developed IP are not considered Licensed Patent Rights for purposes of the prosecution, enforcement or Royalty provisions of this Agreement.

 

 

“Pfizer Exercise Period” is defined in Section 2.6.2.

 

“Pfizer Inc.” is defined in the introduction to this Agreement.

 

“Pfizer Indemnitees” is defined in Section 11.1.

 

“Pfizer Notice of Exercise” is defined in Section 2.6.2.

 

“Pharmacovigilance Agreement” is defined in Section 4.7.

 

“Phase I Clinical Trial” means a clinical trial that generally provides for the first introduction into humans of a pharmaceutical product with the primary purpose of determining safety, metabolism and pharmacokinetic properties and clinical pharmacology of such product, in a manner that is generally consistent with 21 C.F.R. § 312.21(a), as amended (or its successor regulation).

 

“Phase II Clinical Trial” means a clinical trial, the principal purpose of which is to make a preliminary determination as to whether a pharmaceutical product is safe for its intended use and to obtain sufficient information about such product’s efficacy, in a manner that is generally consistent with 21 C.F.R. § 312.21(b), as amended (or its successor regulation), to permit the design of further clinical trials.

 

“Phase III Clinical Trial” means a pivotal clinical trial with a defined dose or a set of defined doses of a pharmaceutical product designed to ascertain efficacy and safety of such product, in a manner that is generally consistent with 21 C.F.R. § 312.21(c), as amended (or its successor regulation), for the purpose of enabling the preparation and submission of an NDA.

 

“Phase IV Clinical Trial” means a clinical trial to delineate additional information about a pharmaceutical product’s risks, benefits, and optimal use, in a manner that is generally consistent with 21 C.F.R. § 312.85.

 

“Product” means a product that includes or incorporates the Compound, alone or in combination with one (1) or more other active agents. For clarity, multiple formulations (or combinations) that contain the same Compound would be deemed one (1) Product for purposes of any Royalty calculation under Section 5.4 or Section 13.5.2.

 

“Recipients” is defined in Section 9.2.

 

“Regulatory Approval” means, with respect to any Product in any country or jurisdiction, any approval, registration, license or authorization that is required by the applicable Regulatory Authority to market and sell such Product in such country or jurisdiction.

 

“Regulatory Authority” means any Governmental Authority responsible for granting Regulatory Approvals for any Product in the Territory.

 

 

“Regulatory Filings” means, with respect to any Product, any submission to a Regulatory Authority of any appropriate regulatory application, including, without limitation, any IND, NDA, any submission to a regulatory advisory board, any marketing authorization application, and any supplement or amendment thereto.

 

“Relevant Records” is defined in Section 6.1.

 

“Residuals” is defined in Section 2.4.

 

“Review Period” is defined in Section 14.3.

 

“Royalties” is defined in Section 5.4.

 

“Royalty Term” means, with respect to a Product in a country in the Territory, the period commencing on the First Commercial Sale of such Product in such country and expiring upon the latest to occur of: (a) ten (10) years following the date of First Commercial Sale of such Product in such country; (b) the expiration of all regulatory or data exclusivity granted by an applicable Governmental Authority for such Product in such country; or (c) the date upon which the Manufacture, use, sale, offer for sale or importation of such Product in such country would no longer infringe, but for the license granted herein, a Valid Claim of a Licensed Patent Right.

 

“Sales Milestone” is defined in Section 5.3.

 

“Sales Milestone Payment” is defined in Section 5.3.

 

“Significant Transaction” means an exclusive license, an exclusive distribution arrangement, an assignment, a sale, an exclusive promotion or co-promotion arrangement, or other transfer of all commercial rights to a Product in a Major Market. For the avoidance of doubt, a research and/or Development license without commercial rights (including rights granted to a Third Party CRO conducting Product-related research or Development services), the granting of license(s) to Manufacture any Product, and a non-exclusive distribution or promotional arrangement, or any other activity with an Affiliate or Permitted Third Party Partner, shall not be considered a Significant Transaction.

 

“Significant Transaction Offer Notice” is defined in Section 2.6.1.

 

“Tax Action” is defined in Section 5.11.2.

 

“Term” is defined in Section 13.1.

 

“Terminated Agreements and MTAs” is defined in Section 10.2.9.

 

“Territory” means anywhere in the world.

 

“Third Party” means any Person other than a Party or an Affiliate of a Party. For the avoidance of doubt, Licensee’s Parent is an Affiliate of Licensee.

 

 

“Third Party Acquirer” means a Third Party (a) that has purchased or otherwise controls the rights held by Licensee to the Licensed Technology, or (b) that acquires all or substantially all of the assets of Licensee.

 

“Third Party Infringement” is defined in Section 8.1.

 

“Third Party License” is defined in Section 5.5.2.

 

“Transaction” means (a) a Change of Control of Licensee, or (b) a transaction to (i) sublicense to a Third Party Acquirer the worldwide right to Develop and Commercialize the Compound in the Field or (ii) divest to a Third Party Acquirer all or substantially all of the assets of Licensee; provided, however, that any Change of Control of Licensee’s Parent shall not be considered a Transaction.

 

“Transaction Completion Payment” is defined in Section 5.6.1.

 

“TSA” is defined in Section 3.3.

 

“United States”, “US” or “U.S.” means the United States of America, including its districts, territories and possessions.

 

“Valid Claim” means with respect to a particular country, a claim of a Patent Right within the Licensed Patent Rights that (a) with respect to an issued and unexpired patent, (i) has not been held permanently revoked, unenforceable or invalid by a decision of a court or other Governmental Authority of competent jurisdiction, which decision is unappealable or has not been appealed within the time allowed for appeal and (ii) has not expired or been cancelled, withdrawn, abandoned, disclaimed or admitted to be invalid or unenforceable through reissue, disclaimer or otherwise and (b) with respect to a pending patent application, (i) has not been abandoned or finally disallowed without the possibility of appeal or refiling of such application and (ii) with respect to any patent application for which Licensee has provided Pfizer an Election Notice pursuant to Section 7.4.3 and which Pfizer has elected to continue prosecuting, is not pending more than five (5) years after receipt by Pfizer of such Election Notice.

 

“VAT” is defined in Section 5.11.1.

 

“Warner-Lambert” is defined in the introduction to this Agreement.

 

 

1.2           Interpretation.

 

Except where the context requires otherwise, (a) the use of any gender herein shall be deemed to encompass references to any gender, and the use of the singular shall be deemed to include the plural (and vice versa), (b) the words “include”, “includes”, “including” and “e.g.” shall be deemed to be followed by the phrase “without limitation”, (c) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (d) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or therein), (e) any reference herein to any Person shall be construed to include the Person’s successors and permitted assigns, (f) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (g) all references herein to Sections, Exhibits or Schedules shall be construed to refer to Sections, Exhibits or Schedules of this Agreement, and references to this Agreement include all Exhibits and Schedules hereto, (h) the word “notice” means notice in writing (whether or not specifically stated) and shall include notices, consents, approvals and other written communications contemplated under this Agreement, (i) provisions that require that a Party, the Parties or any committee hereunder “agree,” “consent” or “approve” or the like shall require that such agreement, consent or approval be specific and in writing, whether by written agreement, letter, approved minutes or otherwise (but excluding e-mail and instant messaging), (j) references to any specific law, rule or regulation, or article, section or other division thereof, shall be deemed to include the then- current amendments thereto or any replacement or successor law, rule or regulation thereof, and (k) the term “or” shall be interpreted in the inclusive sense commonly associated with the term “and/or.”

 

2.           License Grant.

 

2.1          License Grant.

 

2.1.1           Licensed Technology, Enabling Patent Rights, Enabling Know-How and Pfizer Developed IP. Subject to the terms and conditions of this Agreement, including Pfizer’s retained rights set forth in Section 2.3, Pfizer hereby grants to Licensee (a) an exclusive (even as to Pfizer and its Affiliates), sublicensable (subject to Section 2.2), royalty-bearing license under the Licensed Technology to Exploit the Compound and Products in the Field within the Territory, and (b) a non-exclusive, sublicensable (subject to Section 2.2), royalty-free, fully paid- up license under the Enabling Patent Rights, Enabling Know-How and Pfizer Developed IP to Exploit the Compound and Products in the Field within the Territory.

 

2.1.2           Affiliates. To the extent any of the Licensed Technology, the Enabling Patent Rights, the Enabling Know-How or the Pfizer Developed IP are Controlled by an Affiliate of Pfizer, then promptly following the Effective Date, Pfizer shall cause such Affiliate to take all necessary actions to give effect to the licenses granted under this Section 2.1.

 

2.2          Sublicense Rights.

 

2.2.1           Subject to this Section 2.2 and Section 2.6, Licensee may sublicense (directly or to authorize sublicenses through multiple tiers) or divest the rights granted to it by Pfizer under this Agreement during the Term to any of its Affiliates or to any Third Party without Pfizer’s approval.

 

2.2.2           All sublicenses shall be subject to and consistent with the terms and conditions of this Agreement.

 

2.2.3           In no event shall any sublicense relieve Licensee of any of its obligations under this Agreement.

 

 

2.2.4           Licensee shall furnish to Pfizer a true and complete copy of each sublicense agreement entered into by Licensee with respect to the Licensed Technology and each amendment thereto, within thirty (30) days after the sublicense or amendment has been executed.

 

2.3          Retained Rights.

 

Subject to Section 2.8, Licensee acknowledges and agrees that (a) Pfizer retains the right to make, have made, use and import the Compound and Products for Pfizer’s internal research purposes in the Field; provided, that Pfizer shall not have the right to conduct any Clinical Trial administering the Compound or any Product in the Field unless the applicable Product is commercially available and Pfizer conducts the applicable Clinical Trial using Product purchased through normal commercial channels (the “Development Exclusion”), (b) Pfizer is free to use the Licensed Patent Rights and Licensed Know-How for purposes other than those exclusively licensed to Licensee under this Agreement, and (c) Pfizer retains the right to permit Sigma Aldrich Co. or Pfizer’s other existing reagent suppliers to sell the Compound to any non-commercial entity (which would have the right to use such Compound), in each case in the form of non-GMP samples of the Compound in mg quantities solely as a research reagent. Notwithstanding anything to the contrary in this Agreement, except for the Development Exclusion and except as set forth in Section 2.8, nothing in this Agreement shall be deemed to prevent or restrict in any way the ability of Pfizer or its Affiliates to conduct any activities in the Territory which would be permitted under any safe harbor, research exemption, government or executive declaration of urgent public health need, or any similar right available in law or in equity, if such activity were conducted by a Third Party (i.e., based on publicly available information, other than any such information that became public due to any breach by Pfizer of this Agreement, including any breach of Article 9). For the avoidance of doubt, except to the extent permitted in this Section 2.3, following the Effective Date, in no event shall Pfizer or any of its Affiliates enter into any agreement with any Third Party regarding, or otherwise permit the initiation of, any investigator- initiated Clinical Trial administering the Compound or any Product, unless Licensee has approved such activities in advance in writing.

 

2.4          Residuals.

 

Subject to Section 2.8, Pfizer may use the Residuals resulting from Pfizer’s access to or work with the Product for any purpose other than Developing, Commercializing or Manufacturing the Compound or any Product in the Field in the Territory during the Term; provided, however, that nothing in this Section 2.4 grants Pfizer any rights in or licenses to any Patent Rights Controlled by Licensee or any of its Affiliates or sublicensees. Licensee may use the Residuals for any purpose; provided, however, that nothing in this Section 2.4 grants Licensee any rights in or licenses to any Patent Rights Controlled by Pfizer or any of its Affiliates. As used herein, “Residuals” means information in non-tangible form which may be retained in the memories of the relevant Party’s employees or consultants who have had access to the Products or Licensed Know-How, including such information in the form of ideas, concepts, know-how or techniques.

 

2.5          No Additional Rights.

 

Nothing in this Agreement shall be construed to confer any rights upon any Party by implication, estoppel, or otherwise as to any technology or Intellectual Property Rights of the other Party or its Affiliates, other than the rights in Licensed Technology, the Enabling Patent Rights, the Enabling Know-How, the Pfizer Developed IP and the Residuals expressly granted to Licensee herein, regardless of whether such technology or Intellectual Property Rights shall be dominant or subordinate to any Licensed Technology, Enabling Patent Rights, Enabling Know- How and Pfizer Developed IP.

 

 

2.6          Right of First Negotiation.

 

Subject to the terms and conditions of this Agreement, Licensee hereby grants to Pfizer an exclusive right of first offer to negotiate and enter into an agreement for a Significant Transaction, subject to the terms and conditions set forth in this Section 2.6, including Section 2.6.6.

 

2.6.1           Prior to entering into negotiations with a Third Party for a Significant Transaction for a Product in a Major Market, Licensee shall provide Pfizer with (a) written notice of the nature of the proposed Significant Transaction, (b) the Product and the Major Market (or Major Markets) for which the Significant Transaction is sought, and (c) a summary of the most recent material clinical data for the relevant Product within Licensee’s possession and control (such notice together with the related information, the “Significant Transaction Offer Notice”).

 

2.6.2           If Pfizer has a good faith desire to obtain rights to the Product in the Major Market (or Major Markets) as set forth in the Significant Transaction Offer Notice, then Pfizer may notify Licensee within [***] days of the receipt of the Significant Transaction Offer Notice (the “Pfizer Exercise Period”) that it desires to enter into negotiations with respect to such Significant Transaction (the “Pfizer Notice of Exercise”).

 

2.6.3           If Pfizer provides the Pfizer Notice of Exercise to Licensee in accordance with Section 2.6.2, then (a) from and after the receipt of the Pfizer Notice of Exercise and for a continuous period of [***] days thereafter (the “Negotiation Period”), the Parties will negotiate exclusively with each other with respect to such Significant Transaction in good faith and with the intent of entering into a mutually acceptable definitive, written agreement with respect to the Significant Transaction, and (b) if the Parties do not enter into a Significant Transaction within the Negotiation Period, then Licensee may negotiate and enter into a Significant Transaction with a Third Party for the Product and the Major Market (or Major Markets) set forth in the Significant Transaction Offer Notice; provided, that, for a period of [***] months from the expiration of the Negotiation Period, Licensee shall not enter into an agreement with a Third Party with respect to the applicable Product in the Major Market (or Major Markets) set forth in the Significant Transaction Offer Notice on economic terms and conditions that, when viewed as a whole, are less favorable to Licensee as compared to the terms and conditions in the last proposal submitted by Pfizer to Licensee with respect thereto during the Negotiation Period.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

2.6.4           If Pfizer does not provide the Pfizer Notice of Exercise to Licensee in accordance with Section 2.6.2, then Licensee may negotiate and enter into a Significant Transaction with a Third Party for the Product and the Major Market (or Major Markets) set forth in the Significant Transaction Offer Notice; provided, that, (a) if Licensee fails to enter into a Significant Transaction with a Third Party with respect to the applicable Product in one (1) or more of the applicable Major Markets within [***] after the expiration of the Pfizer Exercise Period, then Pfizer’s right of first negotiation pursuant to this Section 2.6 shall be reinstated with respect to a Significant Transaction for such Product for those applicable Major Markets for which Licensee had not entered into a Significant Transaction with a Third Party, or (b) if Material New Information becomes available relating to the applicable Product before Licensee enters into a Significant Transaction for such Product with a Third Party covering one or more of the Major Markets described in the Significant Transaction Offer Notice, then Pfizer’s right of first negotiation pursuant to this Section 2.6 shall be reinstated with respect to a Significant Transaction for such Product for those applicable Major Markets for which Licensee had not entered into a Significant Transaction with a Third Party.

 

2.6.5           The rights granted to Pfizer under this Section 2.6 shall terminate (a) in their entirety on the earliest of (i) an IPO of Licensee or its Parent, (ii) a sale of all or substantially all of the assets of Licensee that relate to the Products, (iii) a Change of Control of Licensee, or (iv) the first filing of an NDA for any Product in any Major Market, and (b) with respect to any Product in any Major Market, upon Licensee granting a Third Party a sublicense to Commercialize such Product in such Major Market in accordance with this Section 2.6.

 

2.6.6           For clarity, (a) nothing shall prevent Licensee or any of its Affiliates from negotiating or executing any confidentiality agreement or participating in general discussions (not focused on a Significant Transaction) with any prospective partner, investor, licensor, licensee or other Third Party, (b) Licensee shall have no obligation to provide Pfizer with (i) the identity of any Third Party or (ii) except (A) as required to be set forth in a Significant Transaction Offer Notice or (B) as required in discovery in the event of a dispute between the Parties as to whether Pfizer’s rights under this Section 2.6 have been triggered, any terms of any transaction negotiated with a Third Party, and (c) if Pfizer provides the Pfizer Notice of Exercise with respect to a Product and a Major Market, Pfizer shall have no more than one (1) opportunity to negotiate a Significant Transaction for such Product in such Major Market.

 

For the purposes of this Section 2.6 only, “Third Party” shall mean any Person other than (a) a Party or an Affiliate of a Party, or (b) a Permitted Third Party Partner.

 

2.7          365(n) Rights.

 

All rights granted under this Agreement by Pfizer are, for the purposes of Article 365(n) of the Bankruptcy Code, licenses of rights to “intellectual property” as defined under Article 101 of the Bankruptcy Code. The Parties agree that Licensee will retain, and may fully exercise, all of its rights and elections as a licensee under the Bankruptcy Code.

 

2.8          Exclusivity.

 

2.8.1           Subject to Section 2.8.2 and Section 2.8.3, for ten (10) years following the Effective Date, neither Pfizer nor any of its Affiliates shall, without the prior written consent of Licensee, conduct any Clinical Trial of any compound that is a MEK inhibitor, or any product that includes or incorporates a MEK inhibitor, for the treatment, diagnosis or prevention of neurofibromatosis type 1.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

2.8.2           If a Change of Control occurs with respect to Pfizer and a Third Party, or if Pfizer or any Existing Pfizer Affiliates acquires or merges with a Third Party, and such Third Party is, at the time of such Change in Control or acquisition or merger, conducting activities that would, if conducted by Pfizer or any of its Affiliates, cause Pfizer or one of its Affiliates to violate Section 2.8.1 or conducting studies in neurofibromatosis type 1 animal models for the treatment, diagnosis or prevention of neurofibromatosis type 1 with any compound that is a MEK inhibitor (such activities, an “Acquisition Program”), then Pfizer and/or such Third Party once it is an Affiliate of Pfizer will be permitted to continue such Acquisition Program and such continuation will not constitute a violation of Section 2.8.1; provided that (a) no Licensed Technology is used in such Acquisition Program, (b) no Confidential Information of Licensee is used in such Acquisition Program and (c) neither the Compound nor any Product is used in such Acquisition Program. For purposes of this Section 2.8.2, the term “acquires” shall include an acquisition of the assets of a Third Party; provided, that the Acquisition Program does not constitute more than ten percent (10%) of the value of the assets acquired from the Third Party, and the assets acquired by Pfizer or its Existing Pfizer Affiliates from such Third Party constitute all the assets of such Third Party related to the Acquisition Program.

 

2.8.3           From and after the date on which a Change of Control occurs with respect to Licensee, if any, the obligations set forth in Section 2.8.1 shall no longer apply to Pfizer or its Affiliates.

 

3.           Transfer Activities.

 

3.1          Transfer Activities Schedules.

 

Schedule C and Schedule D sets forth the documentation, materials and other Know-How that Pfizer will transfer to Licensee, and Schedule D sets forth the personnel support to be provided by Pfizer, and related activities to be performed by the Parties with respect thereto.

 

3.2          Compassionate Use and IIRs.

 

Following the Effective Date until the execution of the TSA, the Parties agree that Pfizer and/or its Existing Pfizer Affiliates will be responsible for (a) administering the compassionate use program, including without limitation ensuring appropriate clinical supply of the Compound and/or Products for the program and using the current protocol therefor to determine whether or not to accept new compassionate use requests, for all compassionate use patients receiving the Product during such period, and (b) supporting and maintaining all IIRs in effect as of the Effective Date.

 

3.3          Transition and Assignment Agreements.

 

Within thirty (30) days after the Effective Date, the Parties shall negotiate in good faith and execute (a) an assignment agreement between Pfizer (and/or one of its Existing Pfizer Affiliates), pursuant to which Pfizer and/or one of its Existing Pfizer Affiliates will assign to Licensee and Licensee will assume all agreements listed therein; (b) a transitional services agreement between Pfizer Inc. and SpringWorks, pursuant to which Pfizer Inc. will, consistent with its past practices, support the IIRs and administer the program of compassionate use as described therein (the “TSA”); and (c) a quality agreement between Pfizer and Licensee, which will govern the roles and responsibilities of the Parties with respect to GMP materials transferred to Licensee by Pfizer.

 

 

3.4          Terminated Agreements and MTAs.

 

Within sixty (60) days after the Effective Date, Pfizer shall use commercially reasonable efforts to identify and provide to Licensee all Terminated Agreements and MTAs that might limit any license right granted to Licensee or its Affiliates under this Agreement, including any nonexclusive rights granted that would impact the exclusive rights granted to Licensee hereunder.

 

4.           Development; Commercialization; Manufacturing.

 

4.1          General.

 

Subject to the terms of this Agreement, including Sections 2.3 and 4.2 and Article 3, Licensee shall have sole responsibility for the cost and expense of, and the sole authority over and control of, the Development, Manufacture (except for any existing supply of the Compound transferred as part of the transfer activities set forth on Schedule D), Regulatory Approval, and Commercialization of the Compound and Products in the Field in the Territory.

 

4.2          Diligence.

 

4.2.1           Development and Commercialization in the United States. Licensee shall, itself or through its Affiliates or sublicensees, use Commercially Reasonable Efforts to (a) pursuant to the Development Plan, Develop and seek Regulatory Approval, including, as applicable, pricing and reimbursement approval, for at least one (1) Product in the Field in the United States, and (b) Commercialize each Product in the Field in the United States for which Licensee or its designated Affiliates or sublicensees have received Regulatory Approval, including pricing and reimbursement approval.

 

4.2.2           Development and Commercialization in Other Major Markets. If Licensee reasonably anticipates that a Product that has received Regulatory Approval in the United States, including, as applicable, pricing and reimbursement approval, will receive reimbursement in any other Major Market [***] or more of the United States price for such Product, then Licensee shall, itself or through its Affiliates or sublicensees, use Commercially Reasonable Efforts to (a) pursuant to the Development Plan, Develop and seek Regulatory Approval, including pricing and reimbursement approval, for one (1) such Product in the Field in one (1) such other Major Market, and (b) if Licensee or its designated Affiliates or sublicensees have received Regulatory Approval, including pricing and reimbursement approval, for such Product in the Field in any such other Major Market, Commercialize such Product in the Field in any such other Major Market.

 

4.3          Regulatory Filings.

 

In connection with its efforts to Develop the Product, Licensee shall bear all responsibility and expense for submitting Regulatory Filings and obtaining Regulatory Approval for the Products. Upon the effective date of transfer of the Regulatory Filings, Licensee shall be responsible for maintaining at its sole expense such Regulatory Filings transferred to Licensee pursuant to Schedule D.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

4.4          Progress Reporting.

 

During the Term, (a) at least ninety (90) days after the start of each Calendar Year, Licensee shall provide to Pfizer a report including (i) an update on the progress of Licensee’s Development and Commercialization activities, including key achievements and milestones reached (as reasonably determined by Licensee), in the prior Calendar Year and Clinical Trials that were conducted or in progress in such prior Calendar Year, and (ii) a summary of the planned Development and Commercialization activities for the current Calendar Year, including key achievements and milestones that are expected and studies planned; and (b) at least ninety (90) days prior to the start of each Calendar Year, Licensee shall provide to Pfizer a non-binding three (3) year forecast of payments that are anticipated to be made to Pfizer pursuant to Sections 5.2 and 5.3, which forecast shall be reported on a Calendar Quarter basis for the first year of such forecast and on a Calendar Year basis for the second and third years of such forecast.

 

4.5          CROs and CMOs.

 

Licensee may contract with Third Party CROs or CMOs to handle certain clinical Development or Manufacturing activities, in Licensee’s reasonable discretion, consistent with the then-current Development Plan. As between the Parties, all costs of such CROs or CMOs will be borne solely by Licensee. For clarity, Licensee shall not be required to obtain Pfizer’s consent for a sublicense to a CRO or CMO.

 

4.6          Development Plan.

 

Licensee will, itself or through its Affiliates or sublicensees, Develop and Commercialize the Compound and Products consistent with the terms and conditions set forth in this Section 4.6 and the development plan as set forth in Schedule F, as amended by Licensee pursuant to this Section 4.6 (the “Development Plan”). Each updated Development Plan shall include all Development and Commercialization activities, in a similar amount of detail as in the draft of the Development Plan set forth in Schedule F as of the Effective Date, that are reasonably anticipated to be undertaken by Licensee to advance the Compound or a Product. Licensee will provide Pfizer with an updated Development Plan once per Calendar Year. To the extent Licensee substantively changes the Development Plan, Licensee will provide Pfizer with such changed Development Plan within thirty (30) days of the occurrence of such substantive change. For purposes of this Section 4.6, a “substantive change” means only the following: (a) an increase or decrease of more than twenty percent (20%) in Licensee’s then-current Development or Commercialization activities budget; (b) an anticipated delay of more than three (3) months in any Development Milestone, as compared with the timeline set forth in the most recent version of the Development Plan received by Pfizer; (c) elimination of any country(ies) in which the Development or Commercialization activities are planned; and (d) the addition or deletion of an indication in the Field that is being pursued under the Development Plan. The obligations set forth in this Section 4.6 shall expire on the First Commercial Sale of any Product in the U.S.; provided, however, that, if Licensee is required to obtain Regulatory Approval of such Product in a Major Market in accordance with Section 4.2.2, the obligations set forth in this Section 4.6 shall expire (other than with respect to the U.S.) with respect to such Product on the First Commercial Sale of such Product in the first Major Market (other than the U.S.).

 

 

4.7          Pharmacovigilance Agreement.

 

Within three (3) months after the Effective Date, the Parties will in good faith negotiate and finalize a separate pharmacovigilance agreement (the “Pharmacovigilance Agreement”), the terms of which shall set forth the obligations, procedures and timelines for exchanging information pertaining to safety reporting obligations observed in connection with the Compound and each Product.

 

5.           Payment Terms.

 

5.1          Transfer Activities Payments.

 

In consideration of the transfer activities to be performed by Pfizer pursuant to Schedule D, Licensee shall pay to Pfizer the amounts set forth in Schedule D.

 

5.2          Development Milestone Payments.

 

In consideration of the licenses and rights granted to Licensee hereunder, Licensee shall pay to Pfizer the amounts set forth below following the first occurrence of each event described in the first column below by, as applicable, Licensee, any Affiliate of Licensee, any sublicensee of Licensee or any Third Party Acquirer (each such event, a “Development Milestone” and each payment, a “Development Milestone Payment”).

 

DEVELOPMENT MILESTONE (IN EACH CASE APPLICABLE ONLY TO THE FIRST PRODUCT TO ACHIEVE SUCH EVENT IN THE FIRST INDICATION IN THE FIELD)		DEVELOPMENT MILESTONE PAYMENT IF THE RELEVANT DEVELOPMENT MILESTONE IS ACHIEVED BY LICENSEE’S PARENT, LICENSEE, OR ANY AFFILIATE OF LICENSEE		DEVELOPMENT MILESTONE PAYMENT IF THE RELEVANT DEVELOPMENT MILESTONE IS ACHIEVED BY A THIRD PARTY SUBLICENSEE OR BY A THIRD PARTY ACQUIRER (OTHER THAN SPRINGWORKS)
(1) [***]		US$[***]		US$[***]*
(2) First Commercial Sale of a Product in [***]**		US$[***]
(3) First Commercial Sale of a Product in [***]**		US$[***]
(4) First Commercial Sale of a Product in [***]**		US$[***]
(5) First Commercial Sale of a Product in [***]**		US$[***]

 

For the avoidance of doubt, each Development Milestone Payment shall be payable only once upon the first achievement of the applicable Development Milestone, regardless of the number of Products that achieve such Development Milestone or the number of indications for which such Development Milestone is achieved. The total amount payable with respect to these Development Milestones shall not exceed US$13,750,000, or US$17,750,000 if the Development Milestone in clause (1) above is achieved by a Third Party sublicensee or a Third Party Acquirer.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

* Such Development Milestone Payment shall only be payable if, prior to achieving this Development Milestone, a Third Party Acquirer sublicenses rights to Develop and Commercialize the Compound worldwide in the Field or acquires all or substantially all of the assets of Licensee and (a) subsequently achieves this Development Milestone or (b) achieves the first to occur of a Development Milestone in row (2), (3), (4) or (5) above prior to (i) Licensee, any of its Affiliates, any of its sublicensees or any Third Party Acquirer dosing any patient in any Phase III Clinical Trial for a Product or (ii) Licensee filing the first NDA with respect to the first Product.

 

** The Development Milestone Payment corresponding to this Development Milestone shall be due on the one hundred eighty-first (181st) day after the First Commercial Sale of the applicable Product in the applicable jurisdiction.

 

Except as set forth above, each Development Milestone Payment shall be payable by Licensee within sixty (60) days after the achievement of the corresponding Development Milestone, and such payment shall be accompanied by a report identifying the amount payable to Pfizer under this Section 5.2.

 

5.3          Sales Milestone Payments.

 

In consideration of the licenses and rights granted to Licensee hereunder, Licensee shall pay to Pfizer the following one-time payments when aggregate Net Sales of Products in the Territory during a Calendar Year first reach the respective thresholds indicated below (each event in the first column below, a “Sales Milestone” and each payment, a “Sales Milestone Payment”).

 

SALES MILESTONE		SALES MILESTONE PAYMENT
Aggregate Net Sales during a Calendar Year first exceed US$[***]		US$[***]
Aggregate Net Sales during a Calendar Year first exceed US$[***]		US$[***]
Aggregate Net Sales during a Calendar Year first exceed US$[***]		US$[***]
Aggregate Net Sales during a Calendar Year first exceed US$[***]		US$[***]
Aggregate Net Sales during a Calendar Year first exceed US$[***]		US$[***]
Aggregate Net Sales during a Calendar Year first exceed US$[***]		US$[***]
Aggregate Net Sales during a Calendar Year first exceed US$[***]		US$[***]

 

For the avoidance of doubt, each Sales Milestone Payment shall be paid only once upon the first achievement of the applicable Sales Milestone. The total amount payable with respect to these Sales Milestones shall not exceed US$216,000,000.

 

If more than one (1) Sales Milestone is first achieved in a particular Calendar Year (e.g., aggregate Net Sales of Products in the Calendar Year after the First Commercial Sale of the first Product exceed US[***]), then all unpaid Sales Milestone Payments first achieved in such Calendar Year shall become payable.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Each Sales Milestone Payment shall be payable by Licensee within sixty (60) days after the end of the applicable Calendar Quarter in which cumulative Net Sales reach the applicable threshold, and such payment shall be accompanied by a report identifying the amount payable to Pfizer under this Section 5.3.

 

5.4          Royalty Payments.

 

Subject to Section 5.5, in consideration of the licenses and rights granted to Licensee hereunder, Licensee shall pay to Pfizer royalties in the amount of the Marginal Royalty Rates set forth below (each, a “Marginal Royalty Rate”) on the aggregate Net Sales resulting from the sale of Products in the Territory during each Calendar Year (collectively, “Royalties”).

 

NET SALES		MARGINAL ROYALTY RATE
Net Sales up to and including US[***] per Calendar Year		[***]%
Net Sales above US[***] up to and including US[***] per Calendar Year		[***]%
Net Sales above US[***] up to and including US[***]per Calendar Year		[***]%
Net Sales above US[***] up to and including US[***]per Calendar Year		[***]%
Net Sales above US[***] per Calendar Year		[***]%

 

Each Marginal Royalty Rate set forth in the table above shall apply only to that portion of the Net Sales of all Products in the Territory during a given Calendar Year that falls within the indicated range. For example, if, during a Calendar Year, aggregate Net Sales of a Product were equal to US[***], then the royalties payable by Licensee would be calculated by adding (a) the royalties with respect to the first [***] at the first-tier percentage of [***] percent [***], equal to US[***], and (b) the royalties with respect to the next US[***]at the second-tier percentage of [***]percent [***], equal to US[***], for a total royalty of US[***].

 

Subject to Section 5.12, Licensee shall pay to Pfizer the applicable Royalties within sixty (60) days following the expiration of each Calendar Quarter after the date of the First Commercial Sale of the relevant Product in any country in the Territory. Royalties will be payable on a Product-by-Product and country-by-country basis during the Royalty Term for such Product in such country until the expiration of the Royalty Term for such Product in such country. All Royalty payments shall be accompanied by a report that includes reasonably detailed information regarding the calculation of Net Sales of the applicable Products (including all deductions), calculation of any deductions applicable under Section 5.5, and all Royalties payable to Pfizer for the applicable Calendar Quarter (including any foreign exchange rates employed).

 

5.5          Royalty Deductions.

 

5.5.1           Expiration of Valid Claims and Exclusivity. If, on a country-by-country and Product-by-Product basis, the Royalty Term for such Product in such country is only being calculated under subsection (a) of the definition of Royalty Term (i.e., all regulatory and data exclusivity granted by an applicable Governmental Authority for such Product in such country has expired and the Manufacture, use, sale, offer for sale or importation of such Product in such country would no longer infringe, but for the license granted herein, a Valid Claim of a Licensed Patent Right), then the Marginal Royalty Rates used to calculate Royalties with respect to such Product in such country shall by reduced by [***].

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

5.5.2           Third Party Licenses. Licensee, its Affiliates and sublicensees shall have the right to obtain a license under any Third Party Intellectual Property Rights that Licensee, or any of its Affiliates or sublicensees, deems reasonably necessary or useful in order to research, Develop, Manufacture, Commercialize or use any Product in the Field in the Territory (each such license, a “Third Party License”). Licensee, or its applicable Affiliate or sublicensee, shall pay all amounts due under Third Party Licenses; provided, that Licensee shall be entitled to reduce the Royalties due to Pfizer upon Net Sales of a Product by up to [***] of the total royalties paid by Licensee, or any of its Affiliates or sublicensees, to a Third Party with respect to such Product under any Third Party License.

 

5.5.3           Generic Competition. If at any time during the Royalty Term Generic Competition exists in a given country with respect to a Product, then the Marginal Royalty Rates used to calculate Royalties for such Product in such country shall be reduced by [***] for so long as such Generic Competition exists.

 

5.5.4           Maximum Deductions. Notwithstanding Sections 5.5.1, 5.5.2 and 5.5.3 to the contrary, under no circumstances shall the reductions set forth in this Section 5.5 cause (a) the total Royalties payable to Pfizer in any Calendar Quarter to be reduced by more than [***] of the amount that would otherwise be due without giving effect to this Section 5.5, or (b) the Marginal Royalty Rates used to calculate Royalties in any Calendar Quarter to be reduced by more than [***] of the rates set forth in Section 5.4 (i.e., [***], [***], [***], [***] and [***], respectively).

 

5.6          Transaction Completion Payment.

 

5.6.1           If, at any time prior to eighteen (18) months after the Effective Date, Licensee completes a Transaction, Licensee shall pay to Pfizer a one-time, non-refundable and non-creditable payment in the amount of the lesser of (a) [***] of the total consideration received by Licensee or its Affiliates with respect to the relevant Transaction, or (b) [***] (the “Transaction Completion Payment”).

 

5.6.2           For clarity, (a) should Licensee complete its IPO prior to the occurrence of the Change of Control of Licensee, no Transaction Completion Payment would be owed upon completion of such Change of Control or thereafter, and (b) the Transaction Completion Payment shall be payable no more than once.

 

5.6.3           Any Transaction Completion Payment shall be accompanied by a copy of any relevant documents necessary to allow Pfizer to confirm the accuracy of such payment.

 

5.6.4           For a Transaction Completion Payment due as a result of a Transaction covered by subsection (a) of the Transaction definition, Licensee or its Affiliate shall make such Transaction Completion Payment within sixty (60) days following the closing of Licensee’s Change of Control.

 

5.6.5           For a Transaction Completion Payment due as a result of a Transaction covered by subsection (b) of the Transaction definition, Licensee or its Affiliate shall make such Transaction Completion Payment within sixty (60) days following the receipt of the consideration payable in connection with such Transaction.

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

5.6.6           Licensee may credit against any Transaction Completion Payment [***] of any Development Milestone Payments or Sales Milestone Payments previously paid to Pfizer pursuant to Sections 5.2 and 5.3, up to [***] of the total of such Transaction Completion Payment.

 

5.7          Other Payments.

 

Except as otherwise set forth in this Agreement, each Party shall pay to the other Party any amounts due under this Agreement within sixty (60) days following receipt of an undisputed invoice.

 

5.8          Late Payments.

 

Any amount required to be paid by a Party hereunder which is not paid on the date due shall bear interest, to the extent permitted by law, at (a) for the first three (3) incidents, three percent (3%) above the thirty (30) day U.S. Dollar LIBOR rate effective for the date such payment was due, as reported in the Wall Street Journal and (b) for all incidents after the first three (3) incidents, five percent (5%) above the thirty (30) day U.S. Dollar LIBOR rate effective for the date such payment was due, as reported in the Wall Street Journal. Such interest shall be computed on the basis of a year of three hundred sixty (360) days for the actual number of days payment is delinquent.

 

5.9          Currency.

 

Any payments under this Article 5 that are recorded in currencies other than the U.S. Dollar shall be converted into U.S. Dollars using the exchange rate mechanism generally applied by Licensee or its applicable Affiliate or sublicensee in preparing its audited financial statements for the applicable Calendar Quarter, provided that such mechanism is in compliance with Accounting Standards and verifiable from publicly available information.

 

5.10        Method of Payment.

 

All payments from Licensee to Pfizer shall be made by wire transfer via immediately available funds in U.S. dollars to credit the bank account set forth on Schedule J or such other bank account as designated by Pfizer in writing to Licensee at least thirty (30) days before payment is due. Any payment which falls due on a date which is not a Business Day may be made on the next succeeding Business Day.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

5.11        Taxes.

 

5.11.1         General. It is understood and agreed between the Parties that any payments made under this Agreement are exclusive of any value added or similar tax (“VAT”), which shall be added thereon as applicable. In the event any payments made by Licensee to Pfizer pursuant to this Agreement become subject to withholding taxes under the laws or regulation of any jurisdiction, Licensee shall deduct and withhold the amount of such taxes for the account of Pfizer to the extent required by Applicable Law and such amounts payable to Pfizer shall be reduced by the amount of taxes deducted and withheld, which shall be treated as paid to Pfizer in accordance with this Agreement. To the extent that Licensee is required to deduct and withhold taxes on any payments under this Agreement, Licensee shall pay the amounts of such taxes to the proper Governmental Authority in a timely manner and promptly transmit to the payee an official tax certificate or other evidence of such withholding sufficient to enable Pfizer to claim such payments of taxes. Pfizer shall provide any tax forms to Licensee that may be reasonably necessary in order for Licensee not to withhold tax or to withhold tax at a reduced rate under an applicable bilateral income tax treaty. Each Party shall provide the other with reasonable assistance to enable the recovery, as permitted by Applicable Law, of withholding taxes, VAT, or similar obligations resulting from payments made under this Agreement, such recovery to be for the benefit of the Party bearing such withholding tax or VAT.

 

5.11.2         Tax Actions. Notwithstanding anything in this Agreement to the contrary, if an action, including but not limited to any assignment or sublicense of its rights or obligations under this Agreement, or any failure to comply with Applicable Laws or filing or record retention requirements (a “Tax Action”) by a Party leads to the imposition of withholding tax liability or VAT on the other Party that would not have been imposed in the absence of a Tax Action or in an increase in such liability above the liability that would have been imposed in the absence of such Tax Action, then (i) the sum payable by the Party that caused the Tax Action (in respect of which such deduction or withholding is required to be made) shall be increased to the extent necessary to ensure that the other Party receives a sum equal to the sum which it would have received had no Tax Action occurred and (ii) the sum payable by the Party that caused a Tax Action (in respect of which such deduction or withholding is required to be made) shall be made to the other Party after deduction of the amount required to be so deducted or withheld, which deducted or withheld amount shall be remitted in accordance with Applicable Law. For the avoidance of doubt, a Party shall only be liable for increased payments pursuant to this Section 5.11.2 to the extent such Party engaged in a Tax Action that created or increased a withholding tax or VAT on the other Party.

 

5.11.3         Cooperation. The Parties agree to cooperate and produce on a timely basis any tax forms or reports, including IRS Forms W-9 and W-8BEN, reasonably requested by the other Party in connection with any payment made by Licensee to Pfizer under this Agreement.

 

5.12        Royalty Reconciliation.

 

On a Product-by-Product and country-by-country basis, with respect to Net Sales of such Product in such country in the final Calendar Quarter of the Royalty Term for such Product in such country, Licensee shall pay any royalties owed to Pfizer pursuant to Section 5.4, as adjusted by Section 5.5, for such Net Sales (each, a “Final Royalty Payment”) within one hundred twenty (120) days (such one hundred twenty (120) days inclusive of the sixty (60) days set forth in Section 5.4) after the end of the Royalty Term for such Product in such country, along with a final written report setting forth Licensee’s final calculation of Net Sales of such Product in such country during each of the final eight (8) Calendar Quarters of such Royalty Term (each, a “Final Royalty Report”). If such Final Royalty Report contains any corrections to the Net Sales previously reported by Licensee in any of such eight (8) Calendar Quarters then, to the extent that such corrections have not been previously addressed by Licensee or Pfizer, (a) if such corrections have, taken together, increased the reported Net Sales of such Product in such country, Licensee shall, simultaneously with providing such Final Royalty Report and Final Royalty Payment, pay to Pfizer the additional royalties that are due for such additional Net Sales pursuant to Section 5.4, as adjusted by Section 5.5, and (b) if such corrections have, taken together, decreased the reported Net Sales of such Product in such country, Licensee shall reduce such Final Royalty Payment by an amount equal to the excess royalties paid by Licensee to Pfizer for such excess Net Sales.

 

 

6.          Records; Audit Rights.

 

6.1          Relevant Records.

 

Licensee shall maintain accurate financial books and records created or received by Licensee pertaining to sale of the Products by Licensee, its Affiliates or sublicensees or any Transaction Completion Payment (collectively, “Relevant Records”). Licensee shall maintain the Relevant Records for the longer of: (a) the period of time required by Applicable Law, or (b) seven (7) years following the date on which the relevant amounts were received or incurred.

 

6.2          Audit Request.

 

Pfizer shall have the right during the Term and for twelve (12) months thereafter to engage, at its own expense, an independent auditor that is reasonably acceptable to Licensee and subject to a reasonable and customary confidentiality agreement with Licensee, to examine the Relevant Records from time-to-time, but no more frequently than once every twelve (12) months, as may be necessary to verify Licensee’s compliance with the provisions of Article 5 or any other payments described in this Agreement. Such audit shall be requested in writing at least ten (10) Business Days in advance, and shall be conducted during Licensee’s normal business hours, in the location where such Relevant Records are normally kept, and otherwise in a manner that minimizes any interference to Licensee’s business operations. No Relevant Record may be audited more than once nor more than seven (7) years following the date on which the relevant amounts were received or incurred. Pfizer shall provide to Licensee a copy of each audit report promptly following Pfizer’s receipt thereof.

 

6.3          Audit Fees and Expenses.

 

Pfizer shall bear any and all fees and expenses it may incur in connection with any such audit of the Relevant Records; provided, however, in the event an audit reveals an underpayment by Licensee of more than [***] as to the period subject to the audit, Licensee shall reimburse Pfizer for its reasonable and documented out-of-pocket costs and expenses of the audit within [***] after receiving invoices therefor.

 

6.4          Payment of Deficiency.

 

If any such audit establishes that Licensee underpaid any amounts due to Pfizer under this Agreement, then Licensee shall pay Pfizer any such deficiency within sixty (60) days after receipt of written notice thereof and the relevant audit report. For the avoidance of doubt, such underpayment will be considered a late payment, subject to Section 5.8. If any audit, whether or not conducted by Pfizer, establishes that Licensee overpaid any amounts due to Pfizer under this Agreement, then Licensee shall immediately offset all such excess payments against any outstanding or future amounts payable by Licensee to Pfizer under this Agreement until Licensee has received full credit for all such overpayments.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

7.          Intellectual Property Rights.

 

7.1          Pre-existing IP.

 

Subject only to the rights expressly granted to the other Party under this Agreement, each Party shall retain all rights, title and interests in and to any Intellectual Property Rights that are owned by, or licensed or sublicensed to, such Party prior to or independent of this Agreement.

 

7.2          Developed IP.

 

Ownership of any Developed IP shall be determined in accordance with Applicable Laws relating to inventorship set forth in U.S. patent laws. Each Party and its Affiliates retains the sole right to prepare, prosecute, and maintain Patent Rights included within any Developed IP owned by or licensed to such Party or its Affiliates; provided, however, that the Parties shall coordinate in good faith with respect to the preparation, prosecution and maintenance of Patent Rights included within any Developed IP owned jointly by Pfizer or any of its Affiliates, on the one hand, and Licensee or any of its Affiliates, on the other hand, and neither Party nor any of its Affiliates may prepare, prosecute or maintain any such Patent Right without the prior written consent of the other Party. Subject to the rights and licenses granted herein, each Party is entitled to practice jointly-owned Developed IP for all purposes on a worldwide basis, and to grant licenses and similar rights under and to its rights in such jointly-owned Developed IP without consent of and without a duty of accounting to the other Party. Each Party will grant and hereby does grant all permissions, consents and waivers with respect to, and all licenses under, such jointly-owned Developed IP, throughout the world, necessary to provide the other Party with such rights of use and exploitation of such jointly-owned Developed IP, and will execute documents as necessary to accomplish the foregoing and as reasonably requested by the other Party.

 

7.3          Inactive Patents.

 

With respect to any cases that are designated by Pfizer as “Inactive” in the column labeled “Status” in Schedule E (each, an “Inactive Case”): (a) such Inactive Cases may or may not be still in force or, if lapsed, may or may not be revivable, (b) notwithstanding anything herein to the contrary, Pfizer makes no representation or warranty with respect to the continued existence, status, revivability, validity or enforceability of such Inactive Cases and (c) Pfizer shall have no obligation to maintain or revive any such Inactive Case or expend any funds or substantial effort in connection therewith.

 

 

7.4          Patent Prosecution of Licensed Patent Rights.

 

7.4.1           Patent Prosecution and Maintenance. Subject to Pfizer’s rights set forth in Section 7.4.3 below, (a) until the earlier of (i) the six (6) month anniversary of the Effective Date and (ii) such time as Licensee provides Pfizer written notice that it desires to assume the activities under Section 7.4.1(b) (the “Initial Period”), Pfizer will continue to file, prosecute (including in connection with any reexaminations, oppositions, inter partes reviews and the like) and maintain the Active Cases in the Licensed Patent Rights in the Territory, in Pfizer’s name on behalf of Licensee and Licensee shall bear all of Pfizer’s reasonable and documented out-of- pocket expenses with respect to such filing, prosecution and maintenance, and (b) upon expiration of the Initial Period, (i) Licensee will control the filing, prosecuting (including in connection with any reexaminations, oppositions, inter partes reviews and the like) and maintaining of the Licensed Patent Rights (including, for avoidance of doubt, any Arising Patent Rights) in the Territory, in Pfizer’s name, at Licensee’s own cost and expense using qualified patent counsel, foreign agents and annuity service providers as necessary, in each case reasonably acceptable to Pfizer and (ii) Pfizer shall, and shall ensure that its patent counsel, foreign agents and annuity service providers promptly transfer all documentation related to the Licensed Patent Rights to Licensee or its applicable designee(s). Following the Initial Period and during the Term, Licensee will provide notice of any substitution of such counsel, foreign agents, or annuity service providers within thirty (30) days after such substitution. During the Initial Period, Pfizer will (y) promptly provide Licensee with a copy of all substantive communications relating to such Licensed Patent Rights that are received from any patent office or patent counsel of record or foreign associate and (z) allow Licensee a reasonable opportunity and reasonable time to review and comment on any proposed submissions to any patent office and implement any reasonable comments provided by Licensee to Pfizer. After the Initial Period, (A) before each patent application or other submission is filed, Licensee will provide Pfizer a reasonable opportunity to review and comment thereon and will reasonably consider any comments provided by Pfizer to Licensee, and (B) Licensee will keep Pfizer reasonably informed of the status of the Licensed Patent Rights by timely providing Pfizer copies of significant communications relating to such Licensed Patent Rights that are received from any patent office or patent counsel of record or foreign associate.

 

7.4.2           Assistance. As reasonably requested by Licensee in writing, Pfizer shall cooperate, at Licensee’s expense for Pfizer’s reasonable and documented out-of-pocket expenses, (a) with Licensee’s activities in Section 7.4.1 and (b) in obtaining patent term adjustment, patent term restoration (whether or not under the Drug Price Competition and Patent Term Restoration Act), supplementary protection certificates, patent term extensions or any equivalent to the foregoing, with respect to the Licensed Patent Rights. For clarity, Licensee shall have the exclusive right, but not the obligation, to seek, in Pfizer’s name if so required, or require Pfizer to seek, any patent term adjustments, patent term restorations, patent term extensions, supplemental protection certificates and the like in any country in the Territory in relation to the Licensed Patent Rights and Pfizer shall cooperate in connection with all such activities.

 

7.4.3           Failure to Prosecute or Maintain. In the event Licensee elects to forego filing, prosecution, or maintenance of any of the Licensed Patent Rights in any country or region, Licensee shall notify Pfizer of such election at least forty-five (45) days prior to any filing or payment due date, or any other due date that requires action (“Election Notice”). Upon receipt of an Election Notice, Pfizer shall be entitled, upon written notice to Licensee, at its sole discretion and expense, to file or to continue the prosecution or maintenance of such Patent Right in such country or region in Pfizer’s name using counsel of its own choice and at its own expense, in which case the license granted in Section 2.1 with respect to such Patent Rights in such country or region shall continue as a non-exclusive license, subject to Licensee’s obligation to pay Royalties in accordance with Section 5.4.

 

7.4.4           Liability. To the extent Pfizer is obtaining, prosecuting or maintaining a Patent Right included in the Licensed Patent Rights, Pfizer, its Affiliates, employees, agents or representatives, shall not be liable to Licensee in respect of any act, omission, default or neglect on the part of Pfizer, or its Affiliates, employees, agents or representatives, in connection with such activities undertaken in good faith.

 

 

7.4.5           Patent Prosecution of Enabling Patent Rights.

 

Pfizer retains the sole right to prepare, prosecute, and maintain the Enabling Patent Rights.

 

7.5          Listing in Orange Book.

 

Licensee shall have the right, in its sole discretion, to make all filings with Regulatory Authorities in the Territory for each Product in the FDA’s Orange Book, and under any similar or equivalent laws in other countries or jurisdictions; provided, however, that the Parties shall collaborate in good faith to determine whether any Enabling Patent Rights or Patent Rights included in the Pfizer Developed IP are required to be included in any such filings.

 

8.           Infringement; Misappropriation.

 

8.1          Notification.

 

Each Party will promptly notify the other Party in writing of any (a) actual or threatened infringement, misappropriation or other violation by a Third Party of any Licensed Technology in the Field and in the Territory of which it becomes aware, including the filing of an Abbreviated New Drug Application under Section 505(j) of the FD&C Act or an application under Section 505(b)(2) of the FD&C Act naming a Product as a reference listed drug and including a certification under Section 505(j)(2)(A)(vii)(IV) or 505(b)(2)(A)(IV), respectively, or (b) declaratory judgment action against, or any other action claiming invalidity or unenforceability of, any Licensed Patent Right in the Territory, whether or not in connection with any infringement described in clause (a) (any of (a) or (b) constituting a “Third Party Infringement”).

 

8.2          Infringement Action.

 

8.2.1       Right of First Enforcement.

 

(a)          Licensee, itself or through any of its Affiliates or sublicensees, shall have the first right (but not the obligation), at its own expense, to control enforcement of the Licensed Technology against any Third Party Infringement within the scope of its exclusive license and may name Pfizer as a party for standing purposes. Pfizer shall cooperate with and join, at Licensee’s request and expense, any such action and has the right to join any such action, including retaining separate counsel, at Pfizer’s own expense. Prior to commencing any such action, Licensee shall consult with Pfizer and shall give due consideration to Pfizer’s timely recommendations regarding the proposed action. Licensee shall give Pfizer timely notice of any proposed settlement of any such action instituted by Licensee and shall not, without the prior written consent of Pfizer, enter into any settlement that would: (i) adversely affect the validity, enforceability or scope of any of the Licensed Patent Rights; (ii) give rise to liability of Pfizer or its Affiliates; (iii) admit non-infringement of any Licensed Patent Rights; or (iv) otherwise impair Pfizer’s rights in any Licensed Technology or this Agreement.

 

(b)          If Licensee does not, with respect to its first right of enforcement under Section 8.2.1(a), either (i) obtain agreement from the alleged infringer to desist or (ii) confirm to Pfizer in writing, by the earlier of (A) sixty (60) days following Licensee’s receipt of notice of the alleged infringement or (B) fifteen (15) days before the expiration date for filing an infringement action, that Licensee, or any of its Affiliates or sublicensees, will initiate an infringement action, then Pfizer shall have the right, at its sole discretion, to control such enforcement of the Licensed Technology at its sole expense.

 

 

8.2.2           Recoveries. Any recoveries resulting from an action relating to a claim of Third Party Infringement shall first be applied to reimburse each Party’s (and Licensee’s Affiliates’ and sublicensees’, as applicable) costs and expenses incurred in connection therewith. Any remaining recoveries shall be retained by (or if received by Pfizer, paid to) Licensee; provided, however, that (a) if Licensee’s negligence or intentional misconduct caused the applicable Third Party Infringement, then Pfizer shall be entitled to receive [***] of such remaining recoveries and (b) otherwise, Pfizer shall be entitled to a royalty on such remaining recoveries in accordance with Section 5.4 as if the amount of such remaining recoveries were Net Sales of Licensee in the Calendar Year in which the recoveries were received by Licensee. If Licensee fails to institute an action or proceeding and Pfizer exercises its right to prosecute such infringement pursuant to Section 8.2.1(b), any remaining recoveries shall be retained by Pfizer.

 

9.           Confidentiality.

 

9.1          Definition.

 

“Confidential Information” of a Party means the terms and provisions of this Agreement and all other proprietary information and data of a financial, commercial or technical nature that the disclosing Party or any of its Affiliates has supplied or otherwise made available to the other Party or its Affiliates in connection with this Agreement, which are disclosed in writing or, if disclosed orally or visually, summarized in writing and provided to the receiving Party after disclosure. All Licensed Know-How and any other Know-How generated before or during the Term by Pfizer or any of its Affiliates with respect to the Compound or a Product shall be considered Pfizer’s and Licensee’s Confidential Information, with each of Pfizer and Licensee considered a disclosing Party and a receiving Party with respect thereto, and Pfizer may not rely on clause (b) or (d) with respect thereto. Confidential Information shall not include information that: (a) is, as of the Effective Date, or becomes, after the Effective Date, known to the public or part of the public domain through no breach of this Agreement by the receiving Party or any of its Recipients; (b) was known to, or was otherwise in the possession of, the receiving Party prior to the time of disclosure by the disclosing Party to the receiving Party; (c) is disclosed to the receiving Party on a non-confidential basis by a Third Party who is entitled to disclose it without breaching any confidentiality obligation to the disclosing Party; or (d) is independently developed by or on behalf of the receiving Party or any of its Affiliates, as evidenced by its written records, without use or access to the Confidential Information of the disclosing Party.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

9.2          Obligations.

 

The receiving Party may use the disclosing Party’s Confidential Information only to exercise the receiving Party’s rights under this Agreement or perform the receiving Party’s obligations under this Agreement, or as necessary for an acquisition, investment or financing of the receiving Party or any of its Affiliates. The receiving Party will protect all of the disclosing Party’s Confidential Information against unauthorized disclosure to Third Parties with the same degree of care as the receiving Party uses for its own similar information, but in no event less than a reasonable degree of care. The receiving Party may disclose the disclosing Party’s Confidential Information to its Affiliates, and its and their respective directors, officers, employees, subcontractors, agents and current and prospective sublicensees, permitted assignees, acquirers, financing sources, consultants, attorneys, accountants, banks and investors (collectively, “Recipients”) who have a need to know such information for purposes related to this Agreement, or, with respect to acquirers, the applicable acquisition, or, with respect to investors or financing sources, the applicable investment or financing, provided such Recipients are bound by obligations of confidentiality and non-use of Confidential Information at least as restrictive as those set forth in this Agreement. All obligations of confidentiality and non-use under this Agreement shall survive expiration or termination of this Agreement for a period of five (5) years.

 

9.3          Exceptions.

 

9.3.1           Disclosure Required by Law. The receiving Party may disclose the disclosing Party’s Confidential Information as required under Applicable Laws, including any court order or other order of a Governmental Authority, provided that the receiving Party: (a) provides the disclosing Party with prompt notice of such disclosure requirement if legally permitted; (b) affords the disclosing Party an opportunity to oppose, limit or secure confidential treatment for such required disclosure; and (c) if the disclosing Party is unsuccessful in its efforts pursuant to subsection (b), discloses only that portion of the disclosing Party’s Confidential Information that the receiving Party is legally required to disclose as advised by the receiving Party’s legal counsel.

 

9.3.2           Disclosure to Assignee of Payments. In the event that Pfizer wishes to assign, pledge or otherwise transfer to a Third Party its rights to receive some or all of the Milestone Payments, Royalties or Transaction Completion Payment payable hereunder, Pfizer may, in connection with any such proposed assignment, disclose to such Third Party such Confidential Information of Licensee that is reasonably relevant to such assigned Milestone Payments, Royalties or Transaction Completion Payment, as applicable, provided that Pfizer shall hold such Third Party to written obligations of confidentiality and non-use with terms and conditions at least as restrictive as those set forth in this Agreement.

 

9.4          Right to Injunctive Relief.

 

Each Party agrees that breaches of this Article 9 may cause irreparable harm to the other Party and shall entitle such other Party, in addition to any other remedies available to it (subject to the terms of this Agreement), the right to seek injunctive relief enjoining such action.

 

9.5           Ongoing Obligation for Confidentiality.

 

Upon expiration or termination of this Agreement, the receiving Party shall, and shall cause its Recipients to, destroy or return (as requested by the disclosing Party) any Confidential Information of the disclosing Party, except that the receiving Party (a) may retain a single copy of the disclosing Party’s Confidential Information for the sole purpose of (i) ascertaining its rights and responsibilities in respect of such information and (ii) exercising its rights that expressly survive the expiration or termination of this Agreement, and (b) shall not be required to destroy any computer files stored securely by the receiving Party that are created by automatic system back up.

 

 

10.         Representations, Warranties and Covenants.

 

10.1        Representations and Warranties by Each Party.

 

Each Party represents and warrants to the other Party as of the Effective Date that:

 

10.1.1          it is a corporation duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation;

 

10.1.2           it has full corporate power and authority to execute, deliver, and perform under this Agreement, and has taken all corporate action required by Applicable Law and its organizational documents to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement;

 

10.1.3           this Agreement constitutes a valid and binding agreement enforceable against it in accordance with its terms;

 

10.1.4           all consents, approvals and authorizations from all Governmental Authorities or other Third Parties required to be obtained by such Party in connection with this Agreement have been obtained; and

 

10.1.5           the execution and delivery of this Agreement and all other instruments and documents required to be executed pursuant to this Agreement, and the consummation of the transactions contemplated hereby do not and shall not: (a) conflict with or result in a breach of any provision of its organizational documents; (b) result in a breach of any agreement to which it is a party that would impair the performance of its obligations hereunder; or (c) violate any Applicable Law.

 

10.2        Representations and Warranties by Pfizer.

 

With the exception of the claims described in Schedule G, Pfizer represents and warrants to Licensee as of the Effective Date that:

 

10.2.1           Pfizer or its Affiliates own all of the Licensed Patent Rights (with respect to each Inactive Case listed on Schedule E, solely to the extent such Inactive Case is determined by Licensee to be in force as of the Effective Date). All Active Cases in the Licensed Patent Rights in the Major Markets have been assigned to Pfizer or its Affiliates and assignment documents with respect to the U.S. Patent Rights have been executed and recorded in the relevant U.S. patent offices; as used herein, “Active Cases” means cases that are not designated by Pfizer as “Inactive” in the column labeled “Status” in Schedule E;

 

10.2.2          to Pfizer’s Knowledge, Pfizer or its Affiliates own all of the Licensed Know-How set forth on Schedule C;

 

 

10.2.3         to Pfizer’s Knowledge, Pfizer has the right to grant the licenses and other rights granted to Licensee under this Agreement with respect to the Licensed Patent Rights (with respect to any Inactive Case listed on Schedule E, solely to the extent such Inactive Case is determined by Licensee to be in force as of the Effective Date) and to the Know-How listed in Schedule C or required to be transferred by Pfizer to Licensee in accordance with Schedule D, including all applicable rights of its Affiliates in such Intellectual Property Rights, in each case free and clear of any rights of any Third Party that would be in conflict with the licenses and other rights granted to Licensee under this Agreement;

 

10.2.4         to Pfizer’s Knowledge, there is no ongoing, or threatened (in writing to Pfizer), litigation, opposition, reexamination, interference, reissue, revocation, nullification, post-grant review, nullity action or inter partes review involving any of the Active Cases in the Licensed Patent Rights in the Major Markets;

 

10.2.5         to Pfizer’s Knowledge, the Licensed Know-How, Licensed Patent Rights, Enabling Know-How and Enabling Patent Rights comprise all Know-How and Patent Rights owned by or licensed to Pfizer or any of its Affiliates that are necessary for Licensee to Exploit the Compound, and each Product, in the form in which it existed as of the Effective Date, in each Major Market, in the same manner that Pfizer Exploited such Compound or such Product prior to the Effective Date in such Major Market;

 

10.2.6         to Pfizer’s Knowledge, there is no claim pending, or threatened (in writing to Pfizer), against Pfizer alleging that the Manufacture or Commercialization of the Compound in the Field in the Territory infringes or misappropriates any Know-How or Patent Rights of any Third Party;

 

10.2.7         to Pfizer’s Knowledge, there is no claim pending or threatened by Pfizer alleging that a Third Party is or was infringing, misappropriating or otherwise violating any of the Licensed Patent Rights in the Field in any country within the Territory;

 

10.2.8         to Pfizer’s Knowledge, no Third Party has challenged the extent, validity or enforceability of any of the Licensed Patent Rights in any Major Market;

 

10.2.9         to Pfizer’s Knowledge, other than (a) agreements that have been terminated or have expired by their terms, in each case prior to the Effective Date and (b) materials transfer agreements and compound transfer agreements (collectively, the “Terminated Agreements and MTAs”), neither Pfizer nor any of its Affiliates is a party to any agreement with a Third Party as of the Effective Date that would limit any license right granted to Licensee or its Affiliates under this Agreement, in each case, that would, but for such agreement, be included in the rights licensed to Licensee and its Affiliates pursuant to this Agreement;

 

10.2.10       to Pfizer’s Knowledge, all Compound transferred from Pfizer to Licensee that are set forth in Schedule H were, as of the date of such manufacture, manufactured in accordance with GMP;

 

10.2.11       to Pfizer’s Knowledge, each Regulatory Filing filed by Pfizer with respect to the Compound or any Product prior to the Effective Date was true, complete and accurate in all material respects and timely filed;

 

 

10.2.12        to Pfizer’s Knowledge, Pfizer and its Affiliates have complied with all Applicable Laws with respect to the Exploitation of the Compound prior to the Effective Date, except to the extent that failure to so comply would not materially and adversely affect the Exploitation of the Compound or any Product by or on behalf of Licensee;

 

10.2.13        to Pfizer’s Knowledge, Pfizer and its Affiliates have not received any written notice that indicates that (a) any of the Regulatory Filings are not in good standing with the relevant Regulatory Authorities or (b) any “clinical hold” or similar regulatory action is in effect with respect to the Compound or any Product; and

 

10.2.14        neither Pfizer nor, to its Knowledge, any of its members, officers, directors, employees, independent contractors, consultants, suppliers, agents or clinical investigators who performed Compound- or Product-related work on behalf of Pfizer: (a) has been charged with or convicted of any crime relating to the delivery of an item or service under any federal health care program, (b) is or has been debarred under 21 U.S.C. §335a, (c) is or has been debarred, excluded or suspended from participation in any federal health care program, (d) is or has been debarred by any other federal or international agency, or (e) has engaged in any conduct that has resulted, or would reasonably be expected to result, in debarment under applicable laws, including 21 U.S.C. §335a, or exclusion from participation in government programs under 42 U.S.C. § 1320a-7 or another applicable law. No actions that would reasonably be expected to result in such a debarment or exclusion are pending or, to Pfizer’s Knowledge, threatened against Pfizer or any such officers, directors, employees, independent contractors, consultants, suppliers, agents or clinical investigators, and, to Pfizer’s Knowledge, there are no facts that would reasonably give rise to such an action.

 

10.3        Representations, Warranties and Covenants by Licensee.

 

10.3.1          Licensee covenants to Pfizer that it shall comply with all Applicable Law with respect to the performance of its obligations hereunder.

 

10.3.2          Licensee covenants to Pfizer that it will not use any units of Compound transferred by Pfizer under Article 3 in humans, except and to the extent that Licensee subsequently processes such units of Compound in accordance with Applicable Law, and provided that such units of Compound have met the requirements of any Regulatory Authority; and

 

10.3.3         Licensee covenants to Pfizer that Licensee shall use its Commercially Reasonable Efforts to execute the Development Plan on the timeline set forth therein; provided, however, that each Party acknowledges and agrees that the Development Plan and timelines therein may be updated pursuant to Section 4.6 and that the initial version of the Development Plan (including the timeline therein) does not reflect certain vital information that is not yet available, including input from the FDA, but that each updated Development Plan shall include the same amount of detail as in the draft of the Development Plan set forth in Schedule F as of the Effective Date.

 

 

10.4        Representations, Warranties and Covenants related to Compliance Laws.

 

Without limiting the generality of Section 10.3.1, Licensee shall comply with the U.S. Foreign Corrupt Practices Act and any other applicable anti-bribery or anti-corruption laws (“Compliance Laws”). Licensee represents and warrants that neither Licensee, nor its Affiliates, nor, to Licensee’s knowledge, any director, officer, employee, consultant, agent or representative or other person acting on its behalf has taken or will take any action, directly or indirectly, to pay, offer, promise or authorize the payment, or giving of anything of value to any Government Official, or to any person, and has not accepted and will not accept a payment for any item of value: (a) for the purpose of (i) influencing any act or decision of such Government Official(s) in their official capacity, including the failure to perform an official function, in order to assist Licensee or its Affiliates or any beneficiary of Licensee in obtaining or retaining business, or directing business to any third party, (ii) securing an improper advantage, (iii) inducing such Government Official(s) to use their influence to affect or influence any act or decision of a government entity in order to assist Licensee, its Affiliates or any beneficiary of Licensee in obtaining or retaining business, or directing business to any third party, or (iv) providing an unlawful personal gain or benefit, of financial or other value, to such Government Official(s); or (b) otherwise for the benefit of Licensee, or any of its Affiliates, in violation of any federal, state, local, municipal, foreign, international, multinational or other administrative law. As used herein, “Government Official” means: (A) any elected or appointed government official (e.g., a member of a ministry of health), (B) any employee or person acting for or on behalf of a government official, agency, or enterprise performing a governmental function, (C) any political party officer, employee, or person acting for or on behalf of a political party or candidate for public office, (D) an employee or person acting for or on behalf of a public international organization, or (E) any person otherwise categorized as a government official under local law. As used in this Section 10.4, “government” is meant to include all levels and subdivisions of non-U.S. governments (i.e., local, regional, or national and administrative, legislative, or executive).

 

10.5        No Action Required Which Would Violate Law.

 

In no event shall either Party be obligated under this Agreement to take any action or omit to take any action that such Party believes, in good faith, would cause such Party to violate any Applicable Law, including the Compliance Laws.

 

10.6        No Other Warranties.

 

EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 10, NEITHER PARTY MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, VALIDITY, ENFORCEABILITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 10, ANY INFORMATION OR MATERIALS PROVIDED BY PFIZER OR ITS AFFILIATES IS MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTY WITH RESPECT TO COMPLETENESS, COMPLIANCE WITH REGULATORY STANDARDS OR REGULATIONS OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER KIND OF WARRANTY WHETHER EXPRESS OR IMPLIED.

 

 

11.         Indemnification.

 

11.1        Indemnification by Licensee.

 

Licensee and SpringWorks agree to indemnify, hold harmless and defend Pfizer and its Affiliates, and their respective officers, directors, employees, contractors, agents and assigns (collectively, “Pfizer Indemnitees”), from and against any Third Party’s Claims to the extent arising or resulting from (a) the Exploitation or any other use of a Compound or Product by Licensee, its Affiliates, subcontractors or sublicensees, (b) the negligence, recklessness or wrongful intentional acts or omissions of Licensee, its Affiliates, subcontractors or sublicensees under this Agreement, (c) breach by Licensee of any representation, warranty or covenant as set forth in this Agreement, or (d) breach by Licensee of the scope of the license set forth in Section 2.1, except, in each instance, to the extent that such Claim arose or resulted from the gross negligence or willful misconduct by any Pfizer Indemnitee; provided, however, that, if SpringWorks ceases to be Licensee’s Parent and it has assigned its obligations under this Article 11 to the Third Party involved in a Change of Control of Licensee or one of such Third Party’s Affiliates (mutatis mutandis), then SpringWorks shall no longer have any obligations under this Article 11. As used herein, “Claims” means collectively, any and all demands, claims, actions and proceedings (whether criminal or civil, in contract, tort or otherwise) for losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees sought by the relevant Third Party in connection with such demand, claim, action or proceeding or incurred by the relevant Indemnitee).

 

11.2        Indemnification by Pfizer.

 

Pfizer agrees to indemnify, hold harmless and defend Licensee and its Affiliates, and their respective officers, directors, employees, contractors, agents and assigns (collectively, “Licensee Indemnitees”), from and against any Third Party’s Claims to the extent arising or resulting from (a) product liability arising from any Development, Manufacture or use of the Compound or Products by or on behalf of Pfizer or its Affiliates, subcontractors or licensees prior to the Effective Date, (b) the Development, Manufacture, Commercialization or use of the Compound or any Product by Pfizer or its Affiliates, subcontractors, assignors or licensees (other than Licensee and its Affiliates and sublicensees) (i) in accordance with Pfizer’s retained rights in Section 2.3 or (ii) after the expiration or termination of this Agreement to the extent such Claim arose after the effective date of such termination or expiration, (c) the negligence, recklessness or wrongful intentional acts or omissions of Pfizer or its Affiliates (other than Licensee and its Affiliates and sublicensees) under this Agreement, (d) breach by Pfizer of any representation, warranty or covenant as set forth in this Agreement, (e) the Terminated Agreements and MTAs to the extent that any of the Terminated Agreements and MTAs limit any license right granted to Licensee or its Affiliates under this Agreement, or (f) any breach by Pfizer of any agreement assigned by Licensee to Pfizer in accordance with Section 13.5.2(c)(v) or 13.5.2(c)(vi), to the extent such breach first arose after the agreement was assigned to Pfizer and was not due to Pfizer’s (or its Affiliate’s) acts or omissions, except, in each instance, to the extent that such Claim arose or resulted from the gross negligence or willful misconduct by any Licensee Indemnitee.

 

 

11.3        Indemnification Procedure.

 

In connection with any Claim for which a Pfizer Indemnitee or a Licensee Indemnitee (the relevant “Indemnitee”) seeks indemnification from Licensee or SpringWorks or Pfizer, respectively, (the “Indemnitor”) pursuant to this Agreement, Pfizer or Licensee, respectively, shall: (a) give the Indemnitor prompt written notice of the Claim; provided, however, that failure to provide such notice shall not relieve the Indemnitor from its liability or obligation hereunder, except to the extent of any material prejudice as a direct result of such failure; (b) cooperate with the Indemnitor, at the Indemnitor’s request and expense, in connection with the defense and settlement of the Claim; and (c) permit the Indemnitor to control the defense and settlement of the Claim; provided, however, that the Indemnitor may not settle the Claim without Pfizer’s or Licensee’s, respectively, prior written consent, which shall not be unreasonably withheld or delayed, in the event that such settlement materially adversely impacts any relevant Indemnitee’s rights or obligations. Further, Pfizer or Licensee, respectively, shall have the right to participate (but not control) and be represented in any suit or action by advisory counsel of its selection and at its own expense. The Indemnitor shall not have any indemnity obligation with respect to any claim settled by an Indemnitee without the Indemnitor’s prior written consent, such consent not to be unreasonably withheld or delayed.

 

12.         Limitation of Liability.

 

12.1        Consequential Damages Waiver.

 

EXCEPT FOR A BREACH OF ARTICLE 9 OR OBLIGATIONS ARISING UNDER ARTICLE 11 OR PFIZER’S BREACH OF THE EXCLUSIVE LICENSE GRANTED TO LICENSEE PURSUANT TO SECTION 2.1, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR LOST REVENUES REGARDLESS OF WHETHER IT HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR THE TYPE OF CLAIM, CONTRACT OR TORT (INCLUDING NEGLIGENCE).

 

12.2        Liability Cap.

 

IN NO EVENT SHALL PFIZER’S AGGREGATE LIABILITY FOR DAMAGES IN CONNECTION WITH ANY OR ALL OF THE LICENSE AGREEMENTS EXCEED THE PFIZER CAP IN EFFECT AT THE TIME OF SUCH CLAIM FOR DAMAGES, REGARDLESS OF WHETHER PFIZER HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR THE TYPE OF CLAIM, CONTRACT OR TORT (INCLUDING NEGLIGENCE); PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL LIMIT PFIZER’S LIABILITY FOR DAMAGES RESULTING FROM ANY FRAUD OF PFIZER. “Pfizer Cap” means an amount equal to (a) [***] plus (b) [***] plus (c) [***]; provided, however, that (i) if the event described in clause (b) of this Section 12.2 has occurred and thereafter [***], then the Pfizer Cap applicable at the time of such termination shall immediately be decreased by [***] and/or (ii) if the event described in clause (c) of this Section 12.2 has occurred and thereafter [***], then the Pfizer Cap applicable at the time of such termination shall immediately be decreased by [***].

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

13.         Term; Termination.

 

13.1        Term.

 

The term of this Agreement (“Term”) shall commence as of the Effective Date and shall expire upon the last-to-expire Royalty Term, unless earlier terminated as provided herein. Upon expiration of the Royalty Term with respect to a Product in a country, the licenses granted to Licensee under this Agreement shall convert to perpetual, irrevocable, non-exclusive, fully paid- up, non-royalty-bearing licenses with respect to such Product in such country and no other amounts shall be due by Licensee with respect to such Product in such country hereunder.

 

13.2        Termination for Cause.

 

Each Party shall have the right, without prejudice to any other remedies available to it at law or in equity, to terminate this Agreement in the event such other Party materially breaches any of its obligations hereunder and fails to cure such breach within sixty (60) days of receiving a notice describing such breach; provided, however, if such breach is capable of being cured, but cannot be cured within such sixty (60) day period, and the breaching Party initiates actions to cure such breach within such period and thereafter diligently pursues such actions, the breaching Party shall have such additional period as is reasonable to cure such breach, but in no event will such additional period exceed sixty (60) days. All timeframes in this Section 13.2 shall be tolled until the resolution pursuant to Article 16 of any good faith dispute over the existence or nature of the breach, or over the adequacy of the cure thereof. Any termination by a Party under this Section 13.2 shall be without prejudice to any damages or other legal or equitable remedies to which it may be entitled from the other Party.

 

13.3        Termination for a Bankruptcy Event.

 

Pfizer shall have the right to terminate this Agreement in the event of a Bankruptcy Event with respect to Licensee. “Bankruptcy Event” means the occurrence of any of the following: (a) the institution of any bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against Licensee under any bankruptcy, insolvency, or other similar law now or hereinafter in effect, including any section or chapter of the United States Bankruptcy Code, as amended or under any similar laws or statutes of the United States or any state thereof (any of the laws described in this clause (a), the “Bankruptcy Code”), where such proceedings have not been dismissed or discharged within ninety (90) days after they are instituted, (b) Licensee assigns all or a substantial portion of its assets for the benefit of creditors, (c) a receiver or custodian is appointed for Licensee’s business and remains so appointed for at least ninety (90) days, (d) a substantial portion of Licensee’s business is subject to attachment or similar process for at least ninety (90) days, or (e) anything analogous to any of the events described in the foregoing clauses (a) through (d) occurs under the laws of any applicable jurisdiction.

 

13.4        Termination for Convenience.

 

At any time on or after the first (1st) anniversary of the Effective Date, Licensee shall have the right to terminate this Agreement for convenience upon thirty (30) days’ prior written notice to Pfizer.

 

13.5        Effects of Termination.

 

13.5.1         Termination by Licensee for Cause. If Licensee has the right to terminate this Agreement pursuant to Section 13.2 or Section 17.4, then Licensee may, by written notice to Pfizer sent on, before, or reasonably after the applicable cure period, elect to continue this Agreement or terminate this Agreement, with the consequences set forth in either Section 13.5.1(a) or Section 13.5.1(b), as applicable:

 

 

(a)          Continuation. In the event that Licensee elects to continue this Agreement, then all provisions of this Agreement shall remain in full force and effect without change.

 

(b)          Termination. In the event that Licensee terminates this Agreement pursuant to Section 13.2 or Section 17.4, the following shall apply:

 

(i)          Rights and Obligations. Except as otherwise provided herein, all rights and obligations of each Party hereunder shall cease, including, subject to Section 13.5.1(b)(ii), the licenses granted to Licensee pursuant to Section 2.1; and

 

(ii)         Licensee Inventory. Licensee shall have the right to sell its remaining inventory of any Product so long as Licensee has fully paid, and continues to pay when due, all Royalties, Milestone Payments, and Transaction Completion Payments, as applicable, and Licensee is otherwise not in material breach of this Agreement.

 

13.5.2      Termination by Pfizer for Cause, Bankruptcy Event; Termination by Licensee for Convenience. In the event that Pfizer terminates this Agreement pursuant to Section 13.2, Section 13.3 or Section 17.4, or Licensee terminates this Agreement pursuant to Section 13.4, the following shall apply:

 

(a)          Rights and Obligations. Except as otherwise provided herein, all rights and obligations of each Party hereunder shall cease; and

 

(b)          Licenses.

 

(i)          Pfizer shall have a perpetual, irrevocable, worldwide, fully- paid up, royalty-free, exclusive right and license, with the right to grant sublicenses, under the Developed IP Controlled by Licensee, as it exists as of the effective date of termination, to use, Develop, Commercialize and Manufacture the Compound and Products, excluding Continuation Products.

 

(ii)         If requested by Pfizer during the notice period provided in Section 13.2 or Section 13.4, or at the time of termination pursuant to Section 13.3 or Section 17.4, (the “License Request”) Pfizer shall have a worldwide, royalty-bearing, exclusive right and license, with the right to grant sublicenses, under the Developed IP Controlled by Licensee, as it exists as of the effective date of termination, to use, Develop, Commercialize and Manufacture Continuation Products. From and after such termination, in the event Pfizer timely provided the License Request, to the extent that Pfizer or any of its Affiliates or sublicensees further Develops or Commercializes any Continuation Product in the Field, Pfizer shall pay Licensee the royalties on Net Sales, mutatis mutandis, with respect to such Continuation Product at the applicable rate set forth in the following table, determined based on a Continuation Product-by-Continuation Product basis:

 

 

 

Development Stage of Continuation Product as of Effective Date of Termination		Royalty Rate
Full enrollment has been achieved with respect to the first Phase III Clinical Trial of the Continuation Product		[***]
An NDA has been filed with respect to the Continuation Product		[***]
A First Commercial Sale has occurred with respect to the Continuation Product		[***]

 

For avoidance of doubt, the royalties set forth above in this Section 13.5.2(b)(ii) are not incremental to the royalties set forth in Section 5.4, and the royalties set forth above in this Section 13.5.2(b)(ii) shall only apply to the Continuation Product(s) and no other product or Product that Pfizer may Develop. Such royalties shall be paid for the Continuation Product Royalty Term in accordance with the provisions of Sections 5.4, 5.5, 5.8, 5.9, 5.10 (to a bank account provided by Licensee) and 5.11, mutatis mutandis.

 

(c)          Transition. If Pfizer timely makes a License Request, then, within a reasonable period of time, at Pfizer’s sole option, the Parties shall negotiate in good faith a transition plan on commercially reasonable terms that will include, at a minimum, a plan for accomplishing the activities described in this Section 13.5.2(c).

 

(i)          Continued Development. At Pfizer’s request, Licensee shall continue on-going Development of the Products for a mutually agreed-upon period following termination of this Agreement, which period shall not be less than three (3) months unless otherwise agreed to by the Parties; provided, however, that if Pfizer chooses not to continue a Clinical Trial initiated by Licensee or if, for the safety of any subject, any Clinical Trial with respect to a Product should not be continued, Licensee shall be solely responsible for the cost of winding down such trial, including any costs arising from compliance with any ethical or other requirements imposed by an applicable Regulatory Authority.

 

(ii)         Technology Transfer. At Pfizer’s request, Licensee shall make available to Pfizer all currently available records and data which exist and are Controlled by Licensee as of the effective date of termination and are necessary or reasonably useful for Pfizer to continue using, Developing, Commercializing and Manufacturing the Products.

 

(iii)        Regulatory Matters. At Pfizer’s request, Licensee shall transfer and assign to Pfizer (or its designee) all Regulatory Approvals (including pricing approvals) and Regulatory Filings held by Licensee with respect to the Products, provided that if such transfer and assignment is not permitted by the applicable Regulatory Authority, Licensee shall permit Pfizer to cross-reference and rely upon such Regulatory Approvals (including pricing approvals) and Regulatory Filings for the purpose of using, Developing, Commercializing and Manufacturing the Products. Licensee shall make available to Pfizer copies of all regulatory documentation and records related to the Products, including information contained in the regulatory and safety databases. The Parties shall cooperate to ensure the prompt transition of regulatory responsibilities for the Products from Licensee to Pfizer.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

(iv)        Trademarks. (A) Pfizer shall have an exclusive, fully paid- up, royalty-free, worldwide, transferable, sublicensable, perpetual and irrevocable license to use the trademarks Controlled by Licensee and associated with the Compound or Products solely for the purpose of using, Developing, Commercializing and Manufacturing the Products; (B) Pfizer shall also have a non-exclusive, fully paid-up, royalty-free, worldwide, transferable, sublicensable, perpetual and irrevocable license to use any trademarks or part thereof that use or incorporate Licensee or its Affiliate’s names solely to the extent required by a Regulatory Authority to be displayed to indicate manufacturing source or other identifying information with respect to the inventory described in clause (v) hereof; and (C) Pfizer and its Affiliates and sublicensees shall comply with Licensee’s reasonable trademark guidelines and quality control procedures negotiated between the Parties in good faith with respect to each of (A) and (B).

 

(v)         Inventory and Supply. At Pfizer’s request and expense, Licensee shall transfer to Pfizer (or its designee) all Products, and all components and in-process inventory with respect thereto, produced or held by Licensee as of the effective date of termination with respect to the Manufacture of Products, except as necessary to perform its obligations under Section 13.5.2(c)(i). At Pfizer’s request and expense, (A) if Licensee has sublicensed to a Third Party CMO the right to Manufacture the Products, Licensee shall, to the extent permitted by the applicable sublicense agreement, promptly assign such sublicense to Pfizer; provided, however, that (A) in no event shall Licensee be required to pay any fee in order to assign any contract under this Section 13.5.2(c)(v); and (B) if Licensee has not sublicensed the right to Manufacture the Products, Licensee shall continue to Manufacture or have Manufactured the Products for a period of not less than twelve (12) months, including, at Pfizer’s request, a reasonable stock build. Pfizer shall pay to Licensee the actual cost of Manufacturing associated with inventory and Products received by Pfizer pursuant to this Section 13.5.2(c)(v), plus ten percent (10%).

 

(vi)        Third Party Agreements. At Pfizer’s request, to the extent Licensee is able to do so, Licensee shall assign to Pfizer (or its designee) any agreements with Third Parties with respect to the Development, Commercialization and Manufacture of the Products; provided, however, that in no event shall Licensee be required to pay any fee in order to assign any contract under this Section 13.5.2(c)(vi). With respect to Third Party agreements that Licensee is not able to assign to Pfizer, Licensee shall cooperate to give Pfizer the benefit of such contracts for a reasonable transitional period.

 

(d)          Licensee Inventory. In the event that Licensee terminates this Agreement pursuant to Section 13.4 and Pfizer elects not to initiate transition activities pursuant to Section 13.5.2(c), Licensee shall have the right to sell its remaining inventory of Products so long as Licensee has fully paid, and continues to pay when due, all Royalties, Milestone Payments, or Transaction Completion Payments owed to Pfizer, and Licensee is otherwise not in material breach of this Agreement.

 

13.6        Survival.

 

Expiration or termination of this Agreement shall not relieve the Parties of any obligation accruing hereunder prior to such expiration or termination. Without limiting the foregoing, the provisions of Articles 1, 6, 9, 11, 12, 15, 16 and 17 and Sections 2.4, 2.5, 2.7, 5.12, 7.1, 7.2, 10.5, 10.6, 13.1, 13.5 and 13.6 shall survive expiration or termination of this Agreement.

 

 

14.        Publicity; Publications.

 

14.1        Use of Names.

 

Subject to Pfizer’s rights pursuant to Section 13.5.2(c)(iv), and except as required by Applicable Law or permitted under any other agreement between Licensee or any of its Affiliates or investors, on the one hand, and Pfizer or any of its Affiliates, on the other hand, neither Party (nor any of its Affiliates or agents) shall use the registered or unregistered trademarks, service marks, trade dress, trade names, logos, insignia, domain names, symbols or designs of the other Party or its Affiliates in any press release, publication or other form of promotional disclosure without the prior written consent of the other Party in each instance; provided, however, that Licensee, and any of its Affiliates or sublicensees, may state publicly that Licensee has received, or been sublicensed under, a license from Pfizer to Exploit the Compound and Products.

 

14.2        Press Releases.

 

The Parties acknowledge that one or both Parties, either singly or jointly, may desire to publish one or more press releases relating to this Agreement, the rights granted hereunder, and developments made thereto. However, each Party agrees not to issue any press release or other public statement, whether written, electronic, oral or otherwise, disclosing the terms of this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. Neither Party will be prevented from (a) complying with any duty of disclosure it may have pursuant to Applicable Law or the rules of any recognized stock exchange, so long as the disclosing Party provides the other Party at least seven (7) Business Days prior written notice to the extent practicable and only discloses information to the extent required by Applicable Law or the rules of any recognized stock exchange, or (b) making any disclosure permitted under any other agreement between Licensee or any of its Affiliates or investors, on the one hand, and Pfizer or any of its Affiliates, on the other hand.

 

14.3        Publications.

 

During the Term, each Party shall submit to the other Party for review and approval any proposed academic, scientific or medical publication or public presentation that contains the other Party’s Confidential Information. Such review and approval will be conducted for the purposes of preserving the value of the Licensed Technology and Licensee’s commercial interests in the Compound and Products and determining whether any portion of the proposed publication or presentation containing such other Party’s Confidential Information should be modified or deleted. Written copies of such proposed publication or presentation required to be submitted hereunder shall be submitted to the reviewing Party no later than thirty (30) days before submission for publication or presentation (the “Review Period”). The reviewing Party shall provide its comments with respect to such publications and presentations within twenty (20) days of its receipt of such written copy, which comments the other Party shall reasonably consider. The Review Period may be extended for an additional thirty (30) days in the event the reviewing Party can, within twenty (20) days of receipt of the written copy, demonstrate reasonable need for such extension, including for the preparation and filing of patent applications. Each Party will comply with standard academic practice regarding authorship of scientific publications and recognition of contribution of other parties in any publication governed by this Section 14.3, including International Committee of Medical Journal Editors standards regarding authorship and contributions.

 

 

15.        Licensee Insurance.

 

15.1        Insurance Requirements.

 

As soon as practicable following the Effective Date (and in any event within twenty (20) Business Days after the Effective Date), Licensee will obtain and thereafter during the Term will maintain until the later of: (a) three (3) years after termination or expiration of this Agreement, or (b) the date that all statutes of limitation covering claims or suits that may be instituted for personal injury based on the sale or use of the Products by Licensee or any of its Affiliates or sublicensees have expired, commercial general liability insurance from a minimum “A-” AM Best rated insurance company, including contractual liability and product liability or clinical trials, if applicable, with coverage limits of not less than five (5) million U.S. Dollars per occurrence and five (5) million U.S. Dollars in the aggregate. Licensee has the right to provide the total limits required by any combination of primary and umbrella/excess coverage. The minimum level of insurance set forth herein shall not be construed to create a limit on Licensee’s liability hereunder. Such policies shall name Pfizer and its Affiliates as additional insured (usually for US, Canada, and Puerto Rico exposures) or indemnify Pfizer and its Affiliates, as principal (usually for rest of world exposures) and provide a waiver of subrogation in favor of Pfizer and its Affiliates. Such insurance policies shall be primary and non-contributing with respect to any other similar insurance policies available to Pfizer or its Affiliates. Any deductibles for such insurance shall be assumed by Licensee.

 

15.2        Policy Notification.

 

Licensee shall provide Pfizer with certified copies of such policies or original certificates of insurance evidencing such insurance: (a) within twenty (20) Business Days after the execution by both Parties of this Agreement, and (b) prior to expiration of any one coverage. Licensee shall provide that Pfizer shall be given at least thirty (30) days written notice prior to cancellation, termination, or any material change to restrict the coverage or reduce the limits afforded.

 

16.        Dispute Resolution.

 

16.1        Arbitration.

 

16.1.1         General. Any disputes, controversies or other claims arising out of this Agreement, its interpretation, validity, performance, enforceability, breach or termination (“Disputes”) that are not settled amicably shall be referred by sending written notice of the Dispute to the other Party for final and binding arbitration with the office of the American Arbitration Association in New York County, New York in accordance with the then-prevailing commercial arbitration rules of the American Arbitration Association.

 

16.1.2         Number of Arbitrators. The arbitration shall be settled by one (1) arbitrator who is neutral to the Parties, and the Parties shall endeavor to jointly appoint the arbitrator. If the Parties fail to jointly appoint the arbitrator within (15) fifteen days of the arbitration being initiated, the appointment shall be made by the American Arbitration Association.

 

 

16.1.3      Powers of the Arbitrator.

 

(a)          The arbitrator is authorized to award to the prevailing Party, if a prevailing party is determined by the arbitrator, such Party’s costs and expenses, including attorneys’ fees.

 

(b)          Except as set forth in Article 12, the arbitrator may not award punitive, exemplary, or consequential damages, nor may the arbitrator apply any multiplier to any award of actual damages, except as may be required by statute;

 

(c)          Any award by the arbitrator shall be subject to the limitations in Section 12.2;

 

(d)          The arbitrator shall have the discretion to hear and determine at any stage of the arbitration any issue asserted by any Party to be dispositive of any claim or counterclaim, in whole or part, in accordance with such procedure as the arbitrator may deem appropriate, and the arbitrator may render an award on such issue.

 

(e)          In addition to the authority conferred on the arbitrator by the rules designated in this Agreement, and without prejudice to any provisional measures that may be available from a court of competent jurisdiction, the arbitrator shall have the power to grant any provisional measures that the arbitrator deems appropriate, including but not limited to provisional injunctive relief, and any provisional measures ordered by the arbitrator may, to the extent permitted by Applicable Law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such.

 

16.1.4      Confidentiality. Upon any initiation of an arbitration in accordance with this Article 16, the Parties shall negotiate in good faith a separate agreement governing the confidentiality of all information used or disclosed in such arbitration.

 

16.2        No Trial By Jury.

 

THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO TRIAL BY JURY.

 

17.         General Provisions.

 

17.1        Assignment.

 

Neither Party may assign its rights and obligations under this Agreement without the other Party’s prior written consent, except that: (a) Pfizer may assign to a Third Party its rights to receive some or all of the payments payable hereunder, (b) each Party may assign its rights and obligations under this Agreement or any part hereof to one or more of its Affiliates without the consent of the other Party; and (c) either Party may assign this Agreement in the event of a Change of Control of such Party. The assigning Party shall provide the other Party with prompt written notice of any such assignment. Any permitted assignee pursuant to clauses (b) and (c) above shall assume all obligations of its assignor under this Agreement, and no permitted assignment shall relieve the assignor of liability for its obligations hereunder. Any attempted assignment in contravention of the foregoing shall be void.

 

 

17.2        Severability.

 

Should one or more of the provisions of this Agreement become void or unenforceable as a matter of law, then such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement, and the Parties agree to substitute a valid and enforceable provision therefor which, as nearly as possible, achieves the desired economic effect and mutual understanding of the Parties under this Agreement.

 

17.3        Governing Law.

 

This Agreement shall be governed by and construed under the laws in effect in the State of New York, U.S. without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result. Article 16 does not intend to deprive any court of competent jurisdiction with respect to its power to issue a pre-arbitral injunction, pre- arbitral attachment or other order in aid of arbitration proceedings or the enforcement of any judgment or award. In any such action, the courts located in the Southern District of New York shall have exclusive jurisdiction over any action brought to enforce this Agreement, and each of the Parties irrevocably: (a) submits to such exclusive jurisdiction for such purpose; (b) waives any objection which it may have at any time to the laying of venue of any proceedings brought in such courts; (c) waives any claim that such proceedings have been brought in an inconvenient forum; and (d) further waives the right to object with respect to such proceedings that any such court does not have jurisdiction over such Party; and (e) consents to service of process in the manner provided by Section 17.8 or by first class certified mail, return receipt requested, postage prepaid.

 

17.4        Force Majeure.

 

Except with respect to delays or nonperformance caused by the negligent or intentional act or omission of a Party, any delay or nonperformance by such Party (other than payment obligations under this Agreement) will not be considered a breach of this Agreement to the extent such delay or nonperformance is caused by acts of God, natural disasters, acts of any Government Authority or civil or military authority, fire, floods, epidemics, quarantine, energy crises, war or riots or any other cause outside of the reasonable control of such Party (each, a “Force Majeure Event”), provided that the Party affected by such Force Majeure Event will promptly begin or resume performance as soon as reasonably practicable after the event has abated. If the Force Majeure Event prevents a Party from performing any of its obligations under this Agreement for two hundred seventy (270) days or more, then the other Party may terminate this Agreement immediately upon written notice to the non-performing Party.

 

17.5        Waivers and Amendments.

 

The failure of any Party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other Party. No waiver shall be effective unless it has been given in writing and signed by the Party giving such waiver. No provision of this Agreement may be amended or modified other than by a written document signed by authorized representatives of each Party.

 

 

17.6        Relationship of the Parties.

 

Nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture, or legal entity of any type between Pfizer and Licensee, or to constitute one Party as the agent of the other. Moreover, each Party agrees not to construe this Agreement, or any of the transactions contemplated hereby, as a partnership for any tax purposes. Each Party shall act solely as an independent contractor, and nothing in this Agreement shall be construed to give any Party the power or authority to act for, bind, or commit the other Party.

 

17.7        Successors and Assigns.

 

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

 

17.8        Notices.

 

All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when: (a) delivered by hand (with written confirmation of receipt), (b) sent by fax (with written confirmation of receipt), provided that a copy is sent by an internationally recognized overnight delivery service (receipt requested), or (c) when received by the addressee, if sent by an internationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and fax numbers set forth below (or to such other addresses and fax numbers as a Party may designate by written notice):

 

If to Warner-Lambert:

 

Warner-Lambert Company LLC
235 East 42nd Street
New York, NY 10017
Fax: 646-348-8157
Attention: Senior Vice President, Business Development

 

With a copy (which shall not constitute notice) to:
Warner-Lambert Company LLC
New York, NY 10017
Fax: 646-348-8157
Attn: General Counsel

 

If to Licensee:

 

SpringWorks Subsidiary 3, Inc.
100 Washington Blvd., 5^th Floor
Stamford, CT 06902
Attn: Chief Executive Officer

 

 

With a copy (which shall not constitute notice) to:
SpringWorks Subsidiary 3, Inc.
100 Washington Blvd., 5^th Floor
Stamford, CT 06902
Attn: General Counsel

 

If to SpringWorks:

 

SpringWorks Therapeutics, Inc.
100 Washington Blvd., 5^th Floor
Stamford, CT 06902
Attn: Chief Executive Officer

 

With a copy (which shall not constitute notice) to:
SpringWorks Therapeutics, Inc.
100 Washington Blvd., 5^th Floor
Stamford, CT 06902
Attn: General Counsel

 

If to Pfizer Inc.:

 

Pfizer Inc.
235 East 42nd Street
New York, NY 10017
Fax: 646-348-8157
Attention: Senior Vice President, Business Development

 

With a copy (which shall not constitute notice) to:
Pfizer Inc.
New York, NY 10017
Fax: 646-348-8157
Attn: General Counsel

 

17.9        Further Assurances.

 

Licensee and Pfizer hereby covenant and agree without the necessity of any further consideration, to execute, acknowledge and deliver any and all such other documents and take any such other action as may be reasonably necessary or appropriate to carry out the intent and purposes of this Agreement.

 

17.10      No Third Party Beneficiary Rights.

 

This Agreement is not intended to and shall not be construed to give any Third Party any third party beneficiary rights or other rights to enforce this Agreement or any provision contained herein or contemplated hereby.

 

 

17.11      Entire Agreement.

 

17.11.1       This Agreement, together with its Schedules, sets forth the entire agreement and understanding of the Parties as to the subject matter hereof and supersedes all proposals, oral or written, and all other prior communications between the Parties with respect to such subject matter.

 

17.11.2       In the event of any conflict between a material provision of this Agreement and any Schedule hereto, the Agreement shall control.

 

17.12      Counterparts.

 

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

17.13      Cumulative Remedies.

 

No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to in this Agreement or otherwise available under law.

 

17.14      Waiver of Rule of Construction.

 

Each Party has had the opportunity to consult with counsel in connection with the review, drafting, and negotiation of this Agreement. Accordingly, any rule of construction that any ambiguity in this Agreement shall be construed against the drafting Party shall not apply.

 

[Signature page to follow]

 

 

IN WITNESS WHEREOF, the Parties intending to be bound have caused this Agreement to be executed by their duly authorized representatives as of the Amendment Effective Date.

 

SPRINGWORKS SUBSIDIARY 3, INC.
By:	/s/ Saqib Islam
Name: Saqib Islam
Title: Chief Executive Officer

 

SIGNATURE PAGE TO LICENSE AGREEMENT

 

 

IN WITNESS WHEREOF, the Parties intending to be bound have caused this Agreement to be executed by their duly authorized representatives as of the Amendment Effective Date.

 

PFIZER INC.
By:	/s/ Doug Giordano
Name:  Doug Giordano
Title:  Senior Vice President Worldwide Business Development

 

SIGNATURE PAGE TO LICENSE AGREEMENT

 

 

IN WITNESS WHEREOF, the Parties intending to be bound have caused this Agreement to be executed by their duly authorized representatives as of the Amendment Effective Date.

 

WARNER-LAMBERT COMPANY LLC
By:	/s/ Andrew Muratore
Name:  Andrew Muratore
Title:  Vice President

 

SIGNATURE PAGE TO LICENSE AGREEMENT

 

 

IN WITNESS WHEREOF, the Parties intending to be bound have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.

 

SPRINGWORKS THERAPEUTICS, INC.
(Solely for purposes of Sections 3.2 and 3.3 and Article 11)
By:	/s/ Saqib Islam
Name: Saqib Islam
Title: Chief Executive Officer

 

SIGNATURE PAGE TO LICENSE AGREEMENT

 

 

SCHEDULE A

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE B

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE C

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE D

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE E

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE F

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE G

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE H

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE I

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE J

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

SCHEDULE K

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

 

Exhibit 10.10

 

CONFIDENTIAL

 

CLINICAL COLLABORATION AGREEMENT

 

This Clinical Collaboration Agreement (this “Agreement”), made as of August 16, 2018 (the “Effective Date”), is by and between SpringWorks Subsidiary 3, PBC, a public benefit corporation organized under the laws of Delaware (“SpringWorks”), and BeiGene, Ltd., a corporation organized under the laws of the Cayman Islands having its principal address at Mourant Ozannes Corporate Services (Cayman) Limited, 94 Solaris Avenue, Camana Bay, Grand Cayman, Cayman Islands KY1-1108 (“BeiGene”). BeiGene and SpringWorks are each referred to herein as a “Party” and are collectively referred to as the “Parties”.

 

RECITALS

 

WHEREAS, SpringWorks is developing its proprietary compound designated as PD-0325901 as further described in Part I of Exhibit A (the “SpringWorks Compound”);

 

WHEREAS, BeiGene is developing the proprietary compound designated as BGB-283 as further described in Part II of Exhibit A (the “BeiGene Compound,” with the BeiGene Compound and the SpringWorks Compound referred to generically as a “Compound”);

 

WHEREAS, the Parties initially desire for BeiGene to conduct a clinical study of the combination of the BeiGene Compound and the SpringWorks Compound, which study will be a single arm of the clinical trial described on Exhibit B (such combination study, the “Study”); and

 

WHEREAS, the Parties will share equally the costs associated with the Study, and BeiGene will supply the BeiGene Compound and SpringWorks will supply the SpringWorks Compound for purposes of the Study, in accordance with the terms of this Agreement.

 

NOW, THEREFORE, in consideration of the following mutual promises, covenants and conditions and any sums to be paid, the Parties hereto agree as follows:

 

1.          Governance and Protocol.

 

(a)          Joint Steering Committee. The Parties shall form a joint steering committee (the “JSC”), made up of an equal number (not more than two (2)) of representatives of each of SpringWorks and BeiGene, which shall have responsibility for reviewing and approving, and coordinating, all activities with respect to the Study, including reviewing and reconciling all Shared Costs and approving all Budgets. The JSC shall meet as soon as practicable after the Effective Date and then no less than each calendar quarter, and more often as reasonably considered necessary at the request of either Party. The JSC may meet in person or by means of teleconference, videoconference or other agreed manner. For those matters identified in this Agreement, or otherwise agreed in writing between the Parties, to require JSC approval, such approval requires unanimous agreement among all of the members, and the Parties shall use good faith efforts to reach a unanimous decision as expeditiously as possible; neither Party shall have any tie-breaking vote but instead will be subject to Article 15. It is understood and agreed that all decisions regarding the Study and Protocol and performance thereof shall be made by mutual agreement of the Parties acting jointly through the JSC; without limiting the generality of the foregoing, absent a JSC decision to the contrary and other than for supply of the Compounds, all documents, all third party contracts, and all regulatory submissions and interactions, in each case pertaining to the Study or Protocol, shall be prepared jointly by, or engaged in jointly, by the Parties and shall require approval by the JSC.

 

 

(b)          Protocol. BeiGene shall hold the Investigational New Drug Application (as described in Title 21 of the U.S. Code of Federal Regulations, Part 312, and the equivalent application in the jurisdictions outside the United States, “IND”) relating to the Study and shall act as the sponsor of the Study. BeiGene shall not transfer the IND (except in connection with the assignment of this Agreement pursuant to Section 13) to any Affiliate or third party without SpringWorks prior written consent (which, solely as necessary for performance of the Study, will not be unreasonably withheld, delayed or conditioned). BeiGene and SpringWorks shall jointly prepare a protocol for the Study that is consistent with the description on Exhibit B (“Protocol”), and the final draft of the Protocol shall be submitted to the JSC for its review and approval. Any material changes to the Protocol will be provided to the JSC 30 days in advance (in electronic form) of submitting such changes to any applicable regulatory agency or institutional review board (“IRB”), or if not available 30 days in advance, as soon as reasonably available so that the JSC may approve any such material change, including any cohort expansion or adjustment to dosing regiments. Neither Party may use or perform the Protocol, or submit the Protocol (or any change thereto), unless previously approved by the JSC. The Parties acknowledge that the Protocol and all amendments shall be (i) considered the Confidential Information of each Party subject to Article 7 and (ii) subject to the input of, and amendments by, any applicable regulatory authority or IRB and the terms and conditions of the clinical trial agreement(s) under which the Study is being performed, all of which under this clause (ii) will require to be accepted by the JSC to be included as part of the Protocol. No Compound of the other Party, nor any Confidential Information of the other Party, nor any Study Results or Joint Inventions, in each case shall be used or disclosed by a Party (or any of their Affiliates or subcontractors, licensees or sublicensees) except for the performance of the Study or as otherwise expressly permitted hereunder. In the event of a conflict between the Protocol and this Agreement, the terms of this Agreement shall govern, except in the case of matters related directly to Study procedures themselves, with respect to which the terms of the Protocol (as approved in accordance with this Section 1(b)) shall govern.

 

2.          Conduct of the Study; Costs; Fixed Dose Formulation Work.

 

(a)          Conduct of the Study. BeiGene will perform (or have performed on its behalf through its Affiliate(s) or permitted subcontractor(s)) the Study in accordance with the Protocol and this Agreement; provided, that, the Parties may elect by mutual agreement to have SpringWorks perform some parts of the Study. Each Party shall comply with all applicable laws, rules and regulations in connection with the conduct of its obligations under the Protocol and its portion of the Study. Information disclosed to either Party regarding the Study in meetings or other updates shall be the Confidential Information of each Party subject to Article 7. Each Party will use commercially reasonable efforts to perform its obligations under the Protocol and its portion of the Study. The Parties acknowledge that, due to the adaptive design of the Study, Exhibit B and the corresponding Budget may need to be modified to reflect expansion or extension of the Study (e.g., in success scenarios (to be mutually agreed by the Parties) or due to potential compounding toxicity resulting in extended dose escalation). In such event, the Parties shall jointly prepare a proposed modification to Exhibit B and corresponding Budget for submission to the JSC, and the JSC shall promptly meet to review and consider such modifications.

 

 

(b)          Shared Costs.

 

(i)          Subject to this Section 2(b), each Party will be solely responsible for its costs associated with manufacturing and supplying its Compound for the Study. All Shared Costs (as defined below) will be shared equally between the Parties subject to the budgeting process described below (with the understanding that any other costs accrued by a Party will be the sole responsibility of such Party).

 

(ii)         For purposes of this Agreement, the following terms shall have the following meanings:

 

“Shared Costs” means (i) those out-of-pocket costs and expenses paid to any third party in accordance any agreement between a Party and such third party pursuant to which such third party agrees to conduct a portion of, or provide services with respect to, the Study and solely to the extent such costs and expenses are approved by the JSC and do not exceed the amounts included in the Budget for that period; and (ii) the FTE Cost for the number of FTEs actually used in the conduct of the Study in the specified period, solely to the extent such FTE Cost does not exceed the amount specified in the Budget for that period.

 

“FTE” means a full-time person, or in the case of less than a full-time person, a full-time equivalent scientific or technical person year, carried out by an appropriately qualified employee or consultant of a Party or its Affiliates, based on one thousand eight hundred (1,800) person-hours per year. Overtime, and work on weekends, holidays, and the like will not be counted with any multiplier (e.g., time-and-a-half or double time) toward the number of hours that are used to calculate the FTE contribution. Indirect personnel (including support functions such as managerial, financial, legal, or business development) will not constitute FTEs. In no event will one person be counted as greater than one (1) FTE.

 

FTE Rate” means the rate specified on Exhibit C per one (1) full FTE per full twelve (12) month calendar year, [***] , including personnel and travel expenses. Starting January 1, 2019, the foregoing rate will adjust on January 1 of each calendar year by an amount equal to the change, if any, in the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average, calculated by the Bureau of Labor Statistics during the immediately preceding calendar year.

 

“FTE Cost” means, for any period, the FTE Rate multiplied by the number of FTEs used in such period.

 

(iii)        Within twenty (20) days following the end of each calendar quarter commencing with the first full calendar quarter following the Effective Date, each Party shall submit to the JSC a written report setting forth in reasonable detail all Shared Costs incurred by each such Party over such calendar quarter. Within twenty (20) days following the receipt by the JSC of such written reports, the JSC shall prepare and submit to each Party a written report setting forth in reasonable detail (A) the calculation of all such Shared Costs incurred by both Parties over such calendar quarter and (B) the calculation of the net amount owed by SpringWorks to BeiGene or BeiGene to SpringWorks in order to ensure the appropriate sharing of such Shared Costs in accordance with this Section 2(b). The Party that is due for reimbursement of Shared Costs in the preceding calendar quarter shall invoice the other Party. Such payments by one Party to reimburse the other Party’s Shared Costs for the purposes of cost sharing under this Agreement shall be paid within thirty (30) days of receipt of the invoice. In the event that a Party disputes in good faith the amount of the reported Shared Costs, that Party shall first pay the disputed amount and, subject to the foregoing, submit the disputed matter to the JSC for resolution.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

(iv)        Subject to subsection (iii), if any amounts payable by one Party to the other Party under this Agreement are not paid when due, such outstanding amounts shall accrue interest (from the date such amounts were due through and including the date upon which full payment is made) at the prime rate as reported by the Wall Street Journal (U.S., Western Edition) on the date such payment is due, plus an additional 1%, or the maximum rate permitted by applicable law, whichever is less.

 

(c)          Budget and Audit Right. At least ninety (90) days before each January 1 during the Term, the Parties will prepare, and the JSC will approve, a budget that sets out the estimated aggregate Shared Costs to be incurred, and the estimated quantity of each Compound required for the succeeding calendar year, on a calendar quarter-by-calendar quarter basis (the “Budget”). The initial Budget for the Study is attached as Exhibit D. No costs will be shared by the Parties unless included as an estimated Shared Cost in the applicable Budget, as described above. Either Party shall have the right to request a modification of the Budget at any time during the Term and the JSC will promptly meet to review and consider such modification. Each Party will keep complete, true, and accurate books and records in relation to all Shared Costs. Each Party will keep such books and records for at least three (3) years following the calendar year to which they pertain. Each Party (the “Auditing Party”) may, upon written request, cause an internationally-recognized independent accounting firm (the “Auditor”) that is reasonably acceptable to the other Party (the “Audited Party”) to inspect the relevant records of such Audited Party and its Affiliates to verify the Shared Costs of the Audited Party and the related reports, statements and books of accounts, as applicable. Before beginning its audit, the Auditor will execute an undertaking acceptable to the Audited Party by which the Auditor agrees to keep confidential all information reviewed during the audit. Each Party and its Affiliates will make their records available for inspection by the Auditor during regular business hours at such place or places where such records are customarily kept, upon receipt of reasonable advance notice from the Auditing Party. The Auditor will review the records solely to verify the accuracy of the Audited Party’s Shared Costs and its compliance with the financial terms of this Agreement. Such inspection right will not be exercised more than once in any calendar year and not more frequently than once with respect to records covering any specific period of time. In addition, the Auditing Party will only be entitled to audit the books and records of the Audited Party from the three (3) calendar years prior to the calendar year in which the audit request is made. The Auditing Party agrees to hold in strict confidence all information received and all information learned in the course of any audit or inspection, except to the extent necessary to enforce its rights under this Agreement or to the extent required to comply with any law, regulation or judicial order. The Auditor will provide its audit report and basis for any determination to the Audited Party at the time such report is provided to the Auditing Party before it is considered final. In the event that the final result of the inspection reveals an error in the amount of Shared Costs reported by the Audited Party, (i) if the effect of the error resulted in an underpayment by the Auditing Party, the Auditing Party shall promptly pay the Audited Party the underpayment amount and (ii) if the effect of the error resulted in an overpayment by the Auditing Party, the Audited Party shall promptly pay the Auditing Party the overpayment amount. The Auditing Party will pay for such inspections, as well as its expenses associated with enforcing its rights with respect to any payments hereunder. In addition, if the audit discloses an error by the Audited Party of at least [***] of the aggregate amount of the Shared Costs in any calendar year subject to that audit, then the fees and expenses charged by the Auditor will be paid by the Audited Party.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

(d)          BeiGene Compound Supply for Fixed Dose Formulation Work. During the Term, BeiGene will supply to SpringWorks the quantities of BeiGene Compound specified on Exhibit E for use in the conduct of fixed-dose combination activities to be performed by or on behalf of SpringWorks in connection with the Study (such activities, the “Fixed Dose Formulation Work”). All BeiGene Compound supplied by BeiGene under this Section 2(d) shall (i) meet the specifications set forth on Exhibit E, and otherwise comply with those provisions of Section 6 applicable thereto, including, Sections 6(c), (d), (e) and (f) applied mutatis mutandis, and (ii) be supplied at BeiGene’s cost and expense other than the Purchased BeiGene Compound (as defined in Exhibit E) which shall be supplied at the corresponding Transfer Price as set forth in Exhibit E. SpringWorks shall only use such BeiGene Compound for the conduct of the Fixed Dose Formulation Work.

 

(e)          Exclusivity.

 

(i)          During the Exclusivity Term (as defined below), (A) SpringWorks and its Affiliates shall not (either alone, or in collaboration or by subcontract, license or sublicense with any others), clinically develop or commercialize the BeiGene Compound (in any form), except as expressly permitted by this Agreement or another written agreement between the Parties and (B) BeiGene and its Affiliates shall not (either alone, or in collaboration or by subcontract, license or sublicense with any others) clinically develop or commercialize the SpringWorks Compound (in any form), except as expressly permitted by this Agreement or another written agreement between the Parties. For purposes of this Agreement, “Exclusivity Term” means the longer of (i) [***] from the Effective Date or (ii) [***] after the end of the Term. This Section 2(e) shall survive any termination (for any reason) or expiration of this Agreement.

 

(ii)         Without limiting Section 2(e)(i) above, during the period commencing on the Effective Date and continuing until the earlier of (A) [***] after the date of [***] and (B) [***], neither Party nor its Affiliates shall (either alone, or in collaboration or by subcontract, license or sublicense with any others), clinically develop (or prepare to clinically develop) or commercialize the combination of any selective [***] in any form, or any products comprising, incorporating or containing any such combination, except as expressly permitted by this Agreement or another written agreement between the Parties.

 

3.          Expansion. In the event that the Parties reasonably agree that the Study achieved the expansion criteria set forth in Exhibit F, the Parties will negotiate in good faith for a period of up to [***] a definitive agreement to provide for an expansion of the clinical collaboration and commercial relationship between the Parties based on the following principles: (a) [***], (b) [***], (c) decisions on [***] will be made on a joint basis, (d) the exclusivity between the Parties contemplated by Section 2(e) would continue for the longer of the Exclusivity Term or duration of the term of the definitive agreement, and (e) the Parties’ commercial operations will be subject to any applicable license agreements structured in a mutually agreeable manner based on the scope of the Parties’ respective fields, technology and territories. In the event the Parties are unable to reach agreement on such definitive agreement on or before such [***] period, then, to the extent that either Party wishes to clinically develop or commercialize the combination of the Compounds and the other Party does not, such other Party will [***].

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

4.          Regulatory, Quality and Pharmacovigilance.

 

(a)          Regulatory. As promptly as reasonably practicable following the Effective Date, SpringWorks shall submit a letter to the U.S. Food and Drug Administration (“FDA”) with respect to SpringWorks’ IND for the SpringWorks Compound permitting the FDA to access such IND for information about the SpringWorks Compound solely to the extent required for the performance of the Study. SpringWorks will provide a copy of such letter to BeiGene for BeiGene to submit with respect to the IND for the Study. SpringWorks will inform BeiGene in a timely manner of any changes to the SpringWorks Compound-related IND, or any guidance provided to investigators by the FDA relating to the SpringWorks Compound, to the extent regarding: (i) the safety of the SpringWorks Compound; (ii) pharmacology and non- clinical study results; (iii) updated investigator’s brochure(s); (iv) expedited safety reports; or (v) material manufacturing changes or issues that would reasonably be expected to affect the SpringWorks Compound supply or quality. BeiGene will inform SpringWorks in a timely manner of any changes to the BeiGene Compound-related IND, or any guidance provided to investigators by the FDA relating to the BeiGene Compound, to the extent regarding: (i) the safety of the BeiGene Compound; (ii) pharmacology and non-clinical study results; (iii) updated investigator’s brochure(s); (iv) expedited safety reports; or (v) material manufacturing changes or issues that would reasonably be expected to affect the BeiGene Compound supply or quality.

 

(b)          Quality Agreement. Within forty five (45) days from the Effective Date, the Parties shall enter into a quality agreement that shall address and govern issues related to the quality of SpringWorks Compound and BeiGene Compound supplied for use in the Study (“Quality Agreement”). The Quality Agreement shall, among other things: (i) describe each Party’s responsibilities to comply with cGMP (as cGMP/current good manufacturing practices are defined by applicable national and international regulatory authorities and advisory boards); (ii) include criteria for release and related certificates and documentation; (iii) include criteria and timeframes for acceptance of SpringWorks Compound and BeiGene Compound; (iv) detail classification of any non-conformance; (v) include procedures for the resolution of disputes regarding any SpringWorks Compounds and BeiGene Compounds found to have a non-conformance; and (vi) include provisions governing the recall of SpringWorks Compound or BeiGene Compound. In the event of any inconsistency between this Agreement and the Quality Agreement pertaining to quality matters, the Quality Agreement shall control and in all other circumstances this Agreement shall control. For clarity, where an issue is addressed in either this Agreement or the Quality Agreement and not addressed in the other, there is no inconsistency.

 

(c)          Pharmacovigilance Plan. The Parties shall meet to discuss in

 

good faith, as soon as practical following the Effective Date, and mutually agree upon (no later than sixty (60) days following the Effective Date) a detailed pharmacovigilance plan relating to the Compounds, which shall set forth standard operating procedures governing the collection, investigation, reporting, and exchange of information concerning adverse drug reactions/adverse events sufficient to permit each Party to comply with its regulatory and other legal obligations within applicable timeframes.

 

5.          Commencement and Termination.

 

(a)          Term. This Agreement begins on the Effective Date and shall continue in force until the earlier of (i) the date of termination of this Agreement by either Party in accordance with Section 5(b), (ii) the one-year anniversary of the date that BeiGene provides the final clinical study report for the Study to SpringWorks or (iii) the date of termination of the Study (the “Term”).

 

(b)          Termination. Either Party (the “Terminating Party”) may terminate this Agreement as follows: (i) upon thirty (30) days written notice to the other Party if the Terminating Party entirely ceases all development of its Compound; (ii) upon written notice to the other Party if the Terminating Party reasonably concludes that there is a patient safety issue with continuing the Study and has first raised such issue at the JSC; (iii) upon written notice to the other Party if a regulatory authority withdraws approval for a Compound or the Study; or (iv) upon written notice to the other Party in the event that such other Party is in material breach of this Agreement and has not cured such breach within thirty (30) days of receipt of a written notice from the Terminating Party regarding such breach and describing such breach in reasonable detail, subject to final resolution of any breach pursuant to Article 16.

 

(c)          Effects of Termination. Upon the early termination of this Agreement in accordance with Section 5(b), (i) except as expressly set forth in this Section (c), each Party’s use of the other Party’s Compound shall immediately terminate; (ii) BeiGene will immediately stop enrolling subjects into the Study and wind-down the Study, including to cease administering Compounds to Study subjects and conducting Study procedures on Study subjects, to the extent medically advisable, but in all cases in accordance with applicable laws, rules and regulations; (iii) the Parties shall submit a final reconciliation of all unpaid Shared Costs as provided in Section 2(b) and reconcile such unpaid Shared Costs; and (iv) each Party will return all unused Compound of the other Party to the other Party or destroy such Compound on the other Party’s written request. Notwithstanding the foregoing, in the event the Term ends pursuant to Section 5(a)(iii), this Agreement shall survive solely with respect to the Fixed Dose Formulation Work, including, BeiGene’s obligation to supply BeiGene Compound for such purposes, until completion or termination of such Fixed Dose Formulation Work by SpringWorks; provided, that, such supply shall be provided for a transfer price equal to [***] of BeiGene’s COGS (as defined in Exhibit E).

 

(d)          Survival. Notwithstanding the early termination or expiration of this Agreement, Articles 7, 8, 10, 12, 14, 16 and 19 and Sections 2(c), 2(e), the final sentence of Section 3 (until the termination or conclusion of any clinical trial involving the combination of the Compounds described in Section 3 initiated within one (1) year of such termination or expiration), 5(c), 5(d), 9(b) and 9(c) and Section 2(d) of Exhibit E shall survive the expiration or termination of this Agreement.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

6.          Supply and Use of Compounds.

 

(a)          Generally.

 

(i)          Supply by SpringWorks. SpringWorks shall provide BeiGene with the SpringWorks Compound in the form and amounts as set forth in the Protocol; provided, that, the Protocol has been approved by the JSC, and is being followed by BeiGene (as such Protocol is approved by any applicable IRB). SpringWorks hereby represents and warrants to BeiGene that, at the time of Delivery (as defined below) of the SpringWorks Compound, such SpringWorks Compound shall have been manufactured and supplied in compliance with: (A) the specifications for the SpringWorks Compound (as set forth in applicable regulatory approvals); (B) the Quality Agreement; and (C) all applicable laws, rules and regulations, including cGMP (as cGMP/current good manufacturing practices are defined by applicable national and international regulatory authorities and advisory boards) and health, safety and environmental protections. Without limiting the foregoing, SpringWorks is responsible for obtaining all regulatory approvals (including facility licenses) that are required to manufacture the SpringWorks Compound in accordance with applicable laws, rules and regulations (provided that, for clarity, BeiGene shall be responsible for obtaining regulatory approvals for the Study).

 

(ii)         Supply by BeiGene. BeiGene shall supply the BeiGene Compound in the form and amounts as set forth in the Protocol; provided, that, the Protocol has been approved by the JSC, and is being followed by BeiGene (as such Protocol is approved by any applicable IRB). BeiGene hereby represents and warrants to SpringWorks that, at the time the BeiGene Compound is included in the Study, such BeiGene Compound shall have been manufactured and supplied in compliance with: (A) the specifications for the BeiGene Compound (as set forth in applicable regulatory approvals); (B) the Quality Agreement; and (C) all applicable laws, rules and regulations, including cGMP (as cGMP/current good manufacturing practices are defined by applicable national and international regulatory authorities and advisory boards) and health, safety and environmental protections. Without limiting the foregoing, BeiGene is responsible for obtaining all regulatory approvals (including facility licenses) that are required to manufacture the BeiGene Compound in accordance with applicable laws, rules and regulations.

 

(b)          Shelf Life. SpringWorks shall supply the SpringWorks Compound hereunder (pursuant to one or more Deliveries as contemplated by Section 6(f)) with an adequate remaining shelf life at the time of such Delivery to meet applicable Study requirements for the portion of the Study for which such SpringWorks Compound is supplied. BeiGene shall supply the BeiGene Compound hereunder (pursuant to one or more Deliveries as contemplated by Section 6(f)) with an adequate remaining shelf life at the time of Delivery to meet applicable Study requirements and Fixed Dose Formulation Work requirements for the Fixed Dose Formulation Work or the portion of the Study for which such BeiGene Compound is supplied.

 

(c)          Delivery. SpringWorks will deliver the SpringWorks Compound [***] (INCOTERMS 2010) to BeiGene’s, or its designee’s, location as specified by BeiGene (“Delivery”) with respect to such SpringWorks Compound. BeiGene will: (i) take delivery of the SpringWorks Compound supplied hereunder; (ii) perform the acceptance procedures allocated to it under the Quality Agreement; and

 

(i)          subsequently label and pack the SpringWorks Compound for use at the Study sites. BeiGene will ensure that BeiGene has BeiGene Compound supply when required at BeiGene’s, or its designee’s, location, to meet applicable Study requirements.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(d)          Storage. BeiGene agrees to store (or to use commercially reasonable efforts to cause its contract service organization(s) to store) (i) the SpringWorks Compound supplied by SpringWorks in accordance with any reasonable storage requirements provided to BeiGene by SpringWorks and (ii) the BeiGene Compound as may be required to meet Study requirements.

 

(e)          Customs. Consistent with the [***] (INCOTERMS 2010) delivery terms specified in Section 6(c)), SpringWorks will ensure proper storage conditions for the SpringWorks Compound through customs. Customs documents shall be prepared in due time to secure a smooth transmission through customs which does not have a material impact on the SpringWorks Compound’s shelf-life.

 

(f)          Logistics. The Parties will agree on amounts of the SpringWorks Compound needed, on the procedures to be used for labeling, quality control and testing, and on the time schedules for supply of the SpringWorks Compound, and the Parties will agree on amounts of the BeiGene Compound needed, on the procedures to be used for labeling, quality control and testing, and on the time schedules for supply of the BeiGene Compound; provided, that, in any event, such amounts and timing will be adequate for the performance of the Protocol and Study.

 

(i)          The SpringWorks Compound shall be supplied in the form and with the documentation as follows:

 

(A)         SpringWorks Compound packed in [***].

 

(B)         Without limiting the requirements of the Quality Agreement, documentation for all SpringWorks Compound Delivered hereunder will include: (1) information on allowable temperature excursions; (2) batch confirmation; (3) TSE certification or TSE statement confirming no material from animal origin; (4) MSDS sheet (or equivalent) for safe handling information; (5) letter of cross-reference; (6) documentation to enable release of clinical trial material (e.g. certificate of compliance, certificate of analysis); and (7) an import license if required.

 

(ii)         The BeiGene Compound shall be supplied in the form and with the documentation as follows:

 

(A)         BeiGene Compound packed in [***].

 

(B)         Without limiting the requirements of the Quality Agreement, documentation for all BeiGene Compound Delivered hereunder will include: (1) information on allowable temperature excursions; (2) batch confirmation; (3) TSE certification or TSE statement confirming no material from animal origin; (4) MSDS sheet (or equivalent) for safe handling information; (5) letter of cross-reference;

 

(6) documentation to enable release of clinical trial material (e.g. certificate of compliance, certificate of analysis); and (7) an import license if required.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

(iii)        BeiGene will provide SpringWorks with an IND number (for shipments of clinical material to the United States) and CTN number (for shipments of clinical material to Australia). BeiGene will obtain and maintain the documentation provided by SpringWorks as described in the foregoing clause (i)(B), and the IND and CTN numbers for BeiGene Compound.

 

(g)          Deviations. Subject to the terms and conditions of the Quality Agreement,

 

(i)          SpringWorks will notify BeiGene of any deviations, nonconformance, out of specification result or quality incident which has the potential to impact product quality or safety of the SpringWorks Compound or which otherwise indicates that the SpringWorks Compound may not meet the agreed upon quality standards and SpringWorks shall replace any such non-conforming SpringWorks Compound as soon as possible following provision of such notice to BeiGene.

 

(ii)         BeiGene will notify SpringWorks of any deviations or quality incident which it observes after the SpringWorks Compound has been Delivered to BeiGene which indicates that the SpringWorks Compound may not meet the agreed upon quality standards and SpringWorks shall replace any such non-conforming SpringWorks Compound as soon as possible following receipt of such notice from BeiGene, unless the deviation, non-conformance, out of specification result or quality incident is due to BeiGene.

 

(iii)        BeiGene will notify SpringWorks of any deviations, nonconformance, out of specification result or quality incident which has the potential to impact product quality or safety of any BeiGene Compound t or which otherwise indicates that the BeiGene Compound may not meet the agreed upon quality standards and BeiGene shall replace any such non-conforming BeiGene Compound as soon as possible following provision of such notice to SpringWorks.

 

(iv)        BeiGene will notify SpringWorks of any deviations or quality incident which it observes after the BeiGene Compound has been committed to the Study which indicates that the BeiGene Compound may not meet the agreed upon quality standards and BeiGene shall replace any such non-conforming BeiGene Compound as soon as possible following delivery of such notice to SpringWorks.

 

(v)         SpringWorks will notify BeiGene of any deviations or quality incident which it observes after the BeiGene Compound has been delivered to SpringWorks which indicates that the BeiGene Compound may not meet the agreed upon quality standards and BeiGene shall replace any such non-conforming BeiGene Compound as soon as possible following receipt of such notice from SpringWorks, unless the deviation, non-conformance, out of specification result or quality incident is due to SpringWorks.

 

 

(h)          Recalls. The decision to initiate a recall or withdrawal of the SpringWorks Compound will be, as between the Parties, the responsibility of SpringWorks at its sole cost and expense. The decision to initiate a recall or withdrawal of the BeiGene Compound will be, as between the Parties, the responsibility of BeiGene at its sole cost and expense. The responsibility for the actual stock recovery will be BeiGene’s. If a potential recall or withdrawal situation arises due to reasons associated with the SpringWorks Compound not as a result of any subsequent actions carried out by BeiGene, then SpringWorks will contact BeiGene as soon as possible to begin the recall or withdrawal process. If a potential recall or withdrawal situation arises due to reasons associated with the BeiGene Compound, then BeiGene will contact SpringWorks as soon as possible and begin the recall or withdrawal process immediately thereafter. If a situation arises that BeiGene reasonably determines necessitates a recall or withdrawal of SpringWorks Compound supplies from the Study sites, SpringWorks shall review the situation with BeiGene prior to initiating the retrieval. In the event that any recall or withdrawal of a SpringWorks Compound is undertaken for reasons relating to SpringWorks’ failure to manufacture or deliver such SpringWorks Compound in accordance with its specifications, this Agreement or the Quality Agreement, SpringWorks shall be responsible for the reasonable costs (both internal and external) that BeiGene incurs in connection with undertaking such recall or withdrawal. If a situation arises that BeiGene reasonably determines necessitates a recall or withdrawal of BeiGene Compound supplies from the Study sites, BeiGene shall review the situation with SpringWorks prior to initiating the retrieval. In the event that any recall or withdrawal of a BeiGene Compound is undertaken for reasons relating to BeiGene’s failure to manufacture or deliver such BeiGene Compound in accordance with its specifications, this Agreement or the Quality Agreement, BeiGene shall be responsible for the costs (both internal and external) that BeiGene incurs in connection with undertaking such recall or withdrawal.

 

7.          Confidentiality.

 

(a)          Obligations. BeiGene and SpringWorks each agrees to hold in

 

confidence any Confidential Information (as defined below) provided by the other Party or its respective Affiliates (“Disclosing Party”) to each such Party (“Receiving Party”) and the Receiving Party shall not use Confidential Information of the Disclosing Party except for purposes of conducting the Study and performing such Party’s obligations, and exercising such Party’s rights, under this Agreement. The Receiving Party shall not, without the prior written permission of the Disclosing Party, disclose any Confidential Information to any third party except to the extent disclosure may be required by applicable law or as necessary for the conduct of the Study and provided that the Disclosing Party shall, to the extent reasonably practicable, provide reasonable advance notice to the other Party before making such disclosure, and provided, further, that such necessary disclosures to a third party will be under a written confidentiality agreement consistent with this Article 7. An “Affiliate” of a Party shall mean: (i) organizations, which directly or indirectly control such Party; (ii) organizations, which are directly or indirectly controlled by such Party; and (iii) organizations, which are controlled, directly or indirectly, by the ultimate parent company of such Party and “control” as used in the foregoing clauses (i) through (iii) is defined as owning more than 50% of the voting stock of a company or having otherwise the power to govern the financial and the operating policies or to appoint the management of an organization.

 

 

(b)          Confidential Information.         “Confidential Information” means any information of a Party that is not presently in the public domain, and is disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement. The Study Results and Joint Inventions, and the terms of this Agreement, will be treated as Confidential Information of each Party (and only clause (ii) below will apply to the Study Results and Joint Inventions). The obligations of a Receiving Party as set forth in this Article 6 shall not extend to any portion of the Disclosing Party’s Confidential Information which: (i) is disclosed to the Receiving Party by a third party who has no obligation of confidentiality to the Disclosing Party with respect thereto; or (ii) is or becomes lawfully part of the public domain or otherwise available to the public by reason of acts not attributable to the Receiving Party; or (iii) is developed independently by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; or (iv) is in the Receiving Party’s possession prior to disclosure by the Disclosing Party as evidenced by the Receiving Party’s written records.

 

(c)          Limited Disclosure. Each Receiving Party shall only share the other Party’s Confidential Information (including, for clarity, any Confidential Information that is Confidential Information of both Parties) (i) within its organization to those individuals who need to know such information for purposes of performing its obligations under this Agreement and who are bound by written obligations of confidentiality and non-use no less restrictive than those contained herein, and (ii) to any bona fide actual or prospective acquirers, underwriters, investors, lenders or other financing sources, and any bona fide actual or prospective subcontractors, collaborators, licensors, sublicensees, licensees, or strategic partners, and to employees, directors, agents, consultants, and advisers of any such third parties, in each case, and who are bound by written obligations of confidentiality and non-use no less restrictive than those contained herein (but for this clause (ii) of duration customary in confidentiality agreements entered into for a similar purpose).

 

(d)          Duration. The confidentiality, non-use and non-disclosure obligations of this Agreement shall remain effective for a period of seven (7) years after termination or expiration of this Agreement; provided, that, any Confidential Information which constitutes a trade secret of a Party shall remain subject to this Section for as long as such Confidential Information continues to qualify as a trade secret under applicable law.

 

(e)          Personal Identifiable Data. All Confidential Information containing personal identifiable data shall be handled in accordance with all data protection and privacy laws, rules and regulations applicable to such data.

 

(f)          Prior CDAs. All Confidential Information disclosed by either Party or their Affiliates under that certain Mutual Confidentiality Agreement dated October 10, 2017 (the “CDA”) pertaining to subject matter within the scope of this Agreement will be treated as “Confidential Information” hereunder. The CDA will continue in full force and effect as applied to a Party and its Affiliates with respect to subject matter outside the scope of this Agreement.

 

8.          Intellectual Property and Patents.

 

(a)          Data and Results. All data and results generated in or otherwise arising from performing the Study or the Fixed Dose Formulation Work, including all analyses prepared with respect thereto (collectively, “Study Results”) shall be jointly owned by the Parties and shall be deemed “Joint Inventions” for purposes of this Agreement. BeiGene agrees to provide SpringWorks with the Study Results via electronic data transfer in SAS format or as otherwise agreed by the Parties on a monthly basis. The Parties, working through the JSC shall prepare a draft clinical study report and “Tables, Figures and Listings” in connection with the Study and a copy of the final report for the Study. Neither Party will disclose any of the foregoing, or any of the Study Results or Joint Inventions, under confidentiality or otherwise, before disclosing same to the other Party at least thirty (30) days before any disclosure to any others (but in all events subject to any disclosure required by applicable law). Further, neither Party nor its Affiliates will disclose to any others, practice or otherwise use (including filing with any regulatory agency or IRB) any of the Study Results or Joint Inventions (even if public) except with the prior, written consent of the other Party (in its sole discretion), or as follows: (i) as expressly permitted under Article 9 or the remainder of this Article 8, (ii) to perform the Study or Fixed Dose Formulation Work, (ii) for its and its Affiliates’ own internal evaluations with respect to the Compounds and their use, (iii) to the extent required by applicable law, including in connection with any regulatory or other governmental filing to support such Party’s Compound (including in combination with any other therapeutic agents, but in all events without the other Compound), or (iv) if confidential, under confidentiality as required by Article 6 (including to third parties as provided in such Article). Without limiting the generality of the foregoing, absent further written agreement between the Parties, neither Party (nor any of their Affiliates or subcontractors, licensees or sublicensees) shall file or use any of the Study Results or Joint Inventions to support the clinical development or approval of any drug candidate, other than such Party’s Compound (including in combination with any other therapeutic agents, but in all events, (x) other than as set forth in Section 2(e) and (y) without the other Compound), unless required by law.

 

(b)          Joint Inventions.

 

(i)          BeiGene and SpringWorks agree that all rights to all (1) Study Results and (2) inventions and discoveries made or conceived in the course of the Study relating to the combination of, or the use together of, the BeiGene Compound and SpringWorks Compound shall belong jointly to BeiGene and SpringWorks (each of (1) and (2), “Joint Inventions”). BeiGene hereby assigns (and if such assignment cannot now be made hereby agrees to assign) to SpringWorks an undivided one-half interest in, to and under the Joint Inventions (and patent and other intellectual property rights arising therefrom) that are invented or created solely or jointly by BeiGene or by persons having an obligation to assign such rights to BeiGene or who otherwise worked on behalf of BeiGene under this Agreement. SpringWorks hereby assigns (and if such assignment cannot now be made hereby agrees to assign) to BeiGene an undivided one- half interest in, to and under any Joint Inventions (and patent and other intellectual property rights arising therefrom) that are invented or created solely or jointly by SpringWorks or by persons having an obligation to assign such rights to SpringWorks or who otherwise worked on behalf of SpringWorks under this Agreement.

 

(ii)         If both Parties desire to file a patent application in respect of any Joint Invention (a “Joint Patent”), the Parties will do so at their joint expense and assist each other in the preparation, filing and prosecution of such Joint Patent application shall be discussed in good faith between the Parties and no patent application in respect of such Joint Invention may be filed without the agreement of the Parties; provided, that, if one Party does not desire to file a patent covering any such Joint Invention, then no such patent may be pursued without the other Party’s prior written consent (which may be withheld in its sole discretion). Subject to the foregoing proviso, the terms of this Agreement, and any other agreement between the Parties, BeiGene and SpringWorks shall each be entitled to use said Joint Inventions and Joint Patent without accounting to the other Party and without the consent of the other Party. Without limiting the foregoing, in the event that the Parties cannot agree regarding which Party should be responsible for filing for, and maintaining, a Joint Patent, neither Party shall have any tie-breaking vote but such matter will instead be subject to Article 16.

 

 

(iii)        The enforcement and defense of any Joint Patent will be subject to further agreement between the Parties; absent agreement, the following shall apply: BeiGene shall have the first right to initiate legal action to enforce all Joint Patents against infringement or misappropriation by any third party that is marketing, or seeking to market, a compound in the same class as the BeiGene Compound, or to defend any declaratory judgment action relating thereto, at its sole expense. In the event that BeiGene fails to initiate or defend such action within thirty (30) days after being first notified of such infringement, SpringWorks shall have the right to do so at its sole expense. Similarly, SpringWorks shall have the first right to initiate legal action to enforce all Joint Patents against infringement or misappropriation by any third party that is marketing, or seeking to market, a compound in the same class as the SpringWorks Compound or to defend any declaratory judgment action relating thereto, at its sole expense. In the event that SpringWorks fails to initiate or defend such action within thirty (30) days after being first notified of such infringement, BeiGene shall have the right to do so at its sole expense.

 

(c)          Sole Inventions. The Parties agree that all rights, title and interest in and to inventions and discoveries relating solely to the BeiGene Compound (and its use) that are made or conceived in the course of the Study (by or on behalf of BeiGene, SpringWorks, or jointly) (“BeiGene Compound Inventions”), will be the exclusive property of BeiGene and BeiGene shall be entitled to file in its own name relevant patent applications and to own resultant patent rights for such inventions, and, no license is granted to SpringWorks with respect thereto. The Parties agree that all rights, title and interest in and to inventions and discoveries relating solely to the SpringWorks Compound (and its use) that are made or conceived in the course of the Study (by or on behalf of BeiGene, SpringWorks, or jointly) (“SpringWorks Compound Inventions”), will be the exclusive property of SpringWorks and SpringWorks shall be entitled to file in its own name relevant patent applications and to own resultant patent rights for such inventions, and, no license is granted to BeiGene with respect thereto.

 

(d)          Assistance. To the extent that any right, title or interest in or to any inventions and discoveries discovered, invented, created or otherwise generated under this Agreement (including Joint Inventions and Joint Patents) vests in a Party or its Affiliate, by operation of law or otherwise, in a manner contrary to the agreed upon ownership as set forth in this Agreement (including under Section 8(a), 8(b)(i)and 8(c)), such Party (or its Affiliate) shall, and hereby does, and agrees to if not now possible, irrevocably assigns to the other Party any and all such right (including all intellectual property rights), title and interest in, to and under such inventions or discoveries to the other Party without the need for any further action by any Party. All of the employees, officers and consultants of each Party that are engaged in the performance of its obligations or exercise of its rights under this Agreement (and any other third parties engaged by such Party) shall have executed agreements assigning to such Party all inventions and other inventions and discoveries discovered, invented, created or otherwise generated during the course of and as the result of their association with such Party, obligating the individual upon request to sign any documents to confirm or perfect such assignment and to cooperate in the preparation and prosecution of any patent applications disclosing or claiming such inventions. When a Party is prosecuting and maintaining any patent or patent application in accordance with the foregoing Section 8(a), (b) or (c), as applicable, or is enforcing a patent right or defending an action as described in Section 8(b) with respect to any Joint Patent, then upon reasonable request by such Party, the other Party shall reasonably assist in such prosecution, maintenance, defense, or enforcement, as applicable, at the requesting Party’s reasonable costs, including if required or desirable, furnishing documents and information, and executing all necessary documents as the requesting Party may reasonably request or joining any such enforcement action as a party plaintiff.

 

 

(e)          Limitations on use of Confidential Information. BeiGene agrees to make no patent application based on SpringWorks Confidential Information, and SpringWorks agrees to make no patent application based on BeiGene Confidential Information, absent further written agreement between the Parties.

 

(f)           No Implied License. Except for the rights expressly granted under this Agreement (including the right for SpringWorks to use the BeiGene Compound solely for purposes of performing the Fixed Dose Formulation Work and performing its obligations with respect to the Study, for BeiGene to use the SpringWorks Compound solely for purposes of performing the Study or for a Party to use Compound supplied pursuant to Section 3), no right or license is granted by either Party to the other Party hereunder whether by implication, estoppel, or otherwise to any know-how, patent or other intellectual property right owned or controlled by such Party or its Affiliates, including the BeiGene IP and SpringWorks IP. All rights with respect to technology, know-how or intellectual property rights that are not specifically granted herein are reserved to the owner of such technology, know-how or intellectual property rights.

 

(g)          Effect of Compound Spin-Out Transaction. [***].

 

9.          Registration; Publicity; Securities Filings and Publications.

 

(a)          Registration. BeiGene will register the Study with the FDA’s Clinical Trials Registry (www.clinicaltrials.gov) and is committed to timely publication of the results of the Study following its completion.

 

(b)          Publicity. Except as required by applicable laws and except for the joint press release in the form to be mutually agreed and issued by the Parties within thirty (30) days of the Effective Date, (i) each Party agrees not to issue any press release or other public statement, whether oral or written, disclosing the existence of this Agreement, the terms hereof or any information relating to this Agreement without the prior written consent of the other Party and (ii) neither Party shall use the name, insignia, symbol, trademark, trade name or logotype of the other Party or its Affiliates in any publication, press release, promotional material or other form of publicity without the prior written consent of the other Party, in each case ((i) and (ii) which shall not be unreasonably withheld or delayed, except for those disclosures for which consent has previously been obtained or as otherwise provided herein.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

(c)          Securities Filings. Each Party acknowledges and agrees that the other Party may submit a copy of this Agreement to, and/or include a description of the material terms of this Agreement in any filing with, the U.S. Securities and Exchange Commission or any national securities exchange in any jurisdiction, or to such other persons as may be required by applicable laws; provided, that, (i) if such Party intends to submit a copy of this Agreement, such Party shall (A) reasonably consult and coordinate with the other Party with respect to the preparation and submission of a confidential treatment request for this Agreement and (B) if the other Party provides any comments to the proposed confidential treatment request, in good faith consider incorporating such comments and (ii) if such Party intends to include a disclosure of the material terms of this Agreement in any such filing or other submission, such Party shall (A) provide copies of the proposed disclosure to the other Party reasonably in advance of such filing or other submission and (B) if the other Party provides any comments to the proposed disclosure, in good faith consider incorporating such comments. Notwithstanding the foregoing, neither Party shall disclose Confidential Information of the other Party (other than this Agreement, including the terms hereof, as provided above) in any such submission or filing without the prior written consent of such other Party, which shall not be unreasonably withheld or delayed.

 

(d)          Publications. The Parties agree that prior to submission of the results of the Study or other Study Results for publication or presentation or any other dissemination of results including oral dissemination, the Party desiring to make such publication or presentation (the “Publishing Party”) shall inform the other Party (the “Reviewing Party”) regarding the content of the material to be published or presented, and the Reviewing Party’s prior written consent (in the Reviewing Party’s sole discretion) shall be required before any such publication or presentation, unless otherwise required by law. Without limiting the generality of the foregoing, the Publishing Party agrees not to include Confidential Information disclosed by the Reviewing Party to the Publishing Party pursuant to this Agreement in any publication without the prior written consent of the Reviewing Party (in the Reviewing Party’s sole discretion). If the Reviewing Party does not otherwise notify the Publishing Party of any objection to the publication or presentation within forty-five (45) days of being informed thereof by the Publishing Party, then the Reviewing Party shall be deemed to have granted such approval upon expiration of such period.

 

(i)          The Publishing Party agrees to include in all press releases, presentations and publications it makes related to a Study, specific mention, if applicable of the BeiGene Compound, when SpringWorks is the Publishing Party, or the SpringWorks Compound, when BeiGene is the Publishing Party. Even after any publication of any of the Study Results, each Party and its Affiliates will continue to be subject to the restrictions set forth in Section 8(a), to the extent applicable.

 

(e)          Required Disclosures. The Receiving Party may disclose the Disclosing Party’s Confidential Information, and each Party may disclose this Agreement, to the extent required by law or court order; provided, however, that the Party subject to such requirement promptly provides to the other Party prior written notice of such disclosure and provides reasonable assistance in obtaining an order or other remedy protecting the other Party’s Confidential Information, or this Agreement, from public disclosure or limiting the other Party’s Confidential Information, or the portions of this Agreement, so disclosed.

 

 

10.         Indemnification; Insurance.

 

(a)          By SpringWorks. SpringWorks agrees to defend, indemnify and hold BeiGene and its Affiliates and their respective officers, employees, consultants or agents, harmless from and against all third party loss, damages, reasonable costs and expenses (including reasonable attorney’s fees and expenses) incurred in connection with any claim, proceeding, or investigation arising out of (i) the breach of this Agreement; (ii) any gross negligence or willful misconduct of SpringWorks; (iii) the manufacturing, packaging or labeling of the SpringWorks Compound by or on behalf of SpringWorks; or (iv) the use of the SpringWorks Compound separate and apart from the BeiGene Compound; provided, however, that such indemnification, defense, and hold harmless obligations shall not extend to claims, proceedings or investigations subject to indemnification by BeiGene under Section 10(b).

 

(b)          By BeiGene. BeiGene agrees to defend, indemnify and hold SpringWorks and its Affiliates and their respective officers, employees, consultants or agents, harmless from and against all third party loss, damages, reasonable costs and expenses (including reasonable attorney’s fees and expenses) incurred in connection with any claim, proceeding, or investigation brought by any third party and arising out of (i) the breach of this Agreement; (ii) any gross negligence or willful misconduct of BeiGene; (iii) the manufacturing, packaging or labeling of the BeiGene Compound; or

 

(i)          the use of the BeiGene Compound separate and apart from the SpringWorks Compound; provided, however, that such indemnification, defense, and hold harmless obligations shall not extend to claims, proceedings or investigations subject to indemnification by SpringWorks under Section 10(a).

 

(c)          Limitations. Notwithstanding Sections 10(a) and 10(b), each Party’s indemnification, defense and hold harmless obligations: (i) are subject to the compliance by all indemnified parties with applicable law; and (ii) do not apply to cover any liabilities resulting from a grossly negligent or wrongful act or failure to act on the part of any indemnified Party.

 

(d)          Procedures. A Party seeking indemnification shall promptly inform the other Party in writing of any claim or lawsuit which comes to the attention of the Party seeking indemnification and which could potentially give rise to a claim for indemnity against the other Party, shall not settle or compromise any claim without the written consent of the other Party, and shall assist and cooperate with the other Party in the investigation and defense of any claim. The indemnifying Party shall assume control of the defense and settlement of the claim, provided that the indemnified Party shall have the right to participate in such defense and any settlement negotiations with counsel of its own selection, at its sole expense.

 

(e)          Insurance. Prior to commencement of (i) the Study or (ii) Fixed Dose Formulation Work, whichever of (i) or (ii) shall first occur, each Party shall procure and maintain insurance, including product liability insurance, or shall self-insure, in each case in a manner adequate to cover its obligations under this Agreement and consistent with normal business practices of prudent companies similarly situated at all times during the Term and for a period of five (5) years thereafter.

 

 

(f)          Disclaimers. WITH RESPECT TO MATTERS PERTAINING TO THIS AGREEMENT, NEITHER PARTY NOR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES WILL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL INDIRECT OR PUNITIVE DAMAGES OR AMOUNTS FOR LOSS OF INCOME, PROFITS OR SAVINGS, LOSS OF CONTRACTS OR OPPORTUNITY, OR COST OF CAPITAL REGARDLESS OF THE BASIS ON WHICH A PARTY IS ENTITLED TO CLAIM DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. LIMITATIONS OR EXCLUSIONS OF LIABILITY HEREUNDER DO NOT APPLY TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND CONFIDENTIALITY AND NON-USE OBLIGATIONS AND OBLIGATIONS UNDER SECTIONS 2(e), 8(a)(ii), AND 8(e).

 

NEITHER PARTY REPRESENTS THAT THE STUDY SHALL LEAD TO ANY PARTICULAR RESULT, NOR IS THE SUCCESS OF THE STUDY GUARANTEED. NEITHER PARTY SHALL BE LIABLE FOR ANY USE THAT THE OTHER PARTY MAY MAKE OF THE CLINICAL DATA OR STUDY RESULTS NOR FOR ADVICE OR INFORMATION GIVEN IN CONNECTION THEREWITH.

 

11.         Force Majeure. If the performance of this Agreement by one of the Parties is prevented, hindered or delayed by reason of any cause beyond this Party’s control (war, riots, fire, strike, governmental laws), this Party shall be excused from performance to the extent that is necessarily prevented, hindered or delayed.

 

12.         Complete Agreement; Modification. The Parties agree to the full and complete performance of the mutual covenants contained in this Agreement. This Agreement constitutes the sole, full and complete Agreement by and between the Parties with respect to the subject matter of this Agreement. No amendments, changes, additions, deletions or modifications to or of this Agreement shall be valid unless reduced to writing, signed by the Parties and attached hereto.

 

13.         Assignment. Neither Party shall assign or transfer this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, (a) all rights and obligations of either Party may be exercised or performed by its Affiliates, provided the contracting Party hereto remains primarily responsible for the performance of such Affiliate in accordance with the terms and conditions of this Agreement, the contracting Party waives any right that the other Party pursue any claims against any such Affiliate prior to pursuing a claim against the contracting Party, and the contracting Party shall have the sole right to pursue a claim against the other Party on behalf of itself or its Affiliates, and (b) either Party shall have the right, without the prior consent of the other Party, to assign this Agreement in full to (i) any Affiliate, provided the contracting Party hereto remains primarily responsible for the performance of such Affiliate in accordance with the terms and conditions of this Agreement and the contracting Party waives any right that the other Party pursue any claims against any such Affiliate prior to pursuing a claim against the contracting Party (ii) any third party in connection with a sale of all or substantially all of the assigning Party’s assets, or in connection with a merger, transfer of a going concern, sale of stock or other similar transaction (including by operation of law), in each case upon notice to the other Party or (iii) to any Affiliate or third party as part of a Compound Spin-Out Transaction pursuant to Section 8(g).

 

14.         Invalid Provision or Gaps. If single provisions of this Agreement are or become invalid or if there is a gap in the Agreement, the validity of the other provisions shall not be affected. In lieu of the invalid provision or in order to eliminate the gap, the Parties shall negotiate in good faith to agree upon a reasonable provision to carry out as nearly as practicable the original intention of the entire Agreement.

 

 

15.         Representations. Each of BeiGene and SpringWorks warrant and represent to the other that: (a) it has the corporate power and authority and the legal right to enter into this Agreement and perform its obligations hereunder; (b) it has taken all necessary corporate action on its part required to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; (c) this Agreement has been duly executed and delivered on behalf of such Party and constitutes a legal, valid and binding obligation of such Party that is enforceable against it in accordance with its terms; and (d) it has not been, and its principals have not been, debarred under the provisions of the Generic Drug Enforcement Act of 1992, 21 U.S.C. §335a(a) and (b), or sanctioned by a U.S. Federal Health Care Program (as defined in 42 U.S.C. Sec. 1320 a-7b(f)), including the U.S. federal Medicare or a U.S. state Medicaid program, or debarred, suspended, excluded or otherwise declared ineligible from any U.S. federal agency or program. In the event that during the Term, either Party (i) becomes debarred, suspended, excluded, sanctioned, or otherwise declared ineligible; or (ii) receives notice of an action or threat of an action with respect to any such debarment, suspension, exclusion, sanction, or ineligibility, such Party shall immediately notify the other Party. Either Party also agrees that, in the event that either it or its principals becomes debarred, suspended, excluded, sanctioned, or otherwise declared ineligible, it shall immediately notify the other Party and the other Party shall have the right to terminate this Agreement pursuant to Section 4(b)(iv) without providing an additional cure period.

 

16.         Governing Law and Jurisdiction. The validity, construction and performance of this Agreement will be governed by and construed for all purposes in accordance with the laws of the State of New York without regard to conflict of laws principles. The Parties shall attempt to settle all disputes arising out of or in connection with the present Agreement in an amicable way. Each of the Parties hereby irrevocably and unconditionally waives any objection to the laying of venue of any matter arising out of this Agreement or the transactions contemplated hereby in the state courts located in the Borough of Manhattan, New York and to the United States District Court for the Southern District of New York as the initial filing court and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such matter brought in any such court has been brought in an inconvenient forum.

 

17.         No Limitation. Nothing in this Agreement shall (a) prohibit either Party from performing clinical studies other than the Study relating to its own Compound, either individually or in combination with any other compound or product, in any therapeutic area, or (b) create an exclusive relationship between the Parties with respect to any Compound, in each case ((a) and (b)) other than as set forth in Section 2(e).

 

18.         Counterparts and Due Execution. This Agreement and any amendment may be executed in two or more counterparts (including by way of facsimile or electronic transmission), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, notwithstanding any electronic transmission, storage and printing of copies of this Agreement from computers or printers. When executed by the Parties, this Agreement shall constitute an original instrument, notwithstanding any electronic transmission, storage and printing of copies of this Agreement from computers or printers. For clarity, facsimile signatures and signatures transmitted via PDF shall be treated as original signatures.

 

 

19.         Construction. 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 applicable to all genders, and the word “or” is used in the inclusive sense (and/or). Whenever this Agreement refers to a number of days, unless otherwise specified, such number refers to calendar days. The captions of this Agreement are for convenience of reference only and in no way define, describe, extend or limit the scope or intent of this Agreement or the intent of any provision contained in this Agreement. References hereunder to “applicable law” include applicable rules and regulations, and to “third party(ies)” refer to non-Affiliated third party(ies). Use of “hereunder” or “herein” refers to this Agreement as a whole. The term “including” as used herein shall be deemed to be followed by the phrase “without limitation” or like expression. The term “will” as used herein means shall. References to “Article” or “Section” are references to the numbered sections of this Agreement and the appendices attached to this Agreement, unless expressly stated otherwise. Except where the context otherwise requires, references to this “Agreement” shall include the appendices attached to this Agreement. The language of this Agreement shall be deemed to be the language mutually chosen by the Parties and no rule of strict construction will be applied against either Party hereto.

 

[Remainder of page intentionally left blank.]

 

 

IN WITNESS WHEREOF, the respective authorized representatives of the Parties have executed this Agreement as of the Effective Date.

 

BeiGene, Ltd.

 

/s/ John V. Oyler
Signature
John V. Oyler
Name
Chief Executive Officer
Title
SpringWorks Subsidiary 3, PBC
/s/ Saqib Islam
Signature
Saqib Islam
Name
Chief Executive Officer
Title

 

 

Exhibit A

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Exhibit B

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Exhibit C

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Exhibit D

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Exhibit E

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Exhibit F

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

 

Exhibit 10.11

 

CONFIDENTIAL

 

CLINICAL TRIAL COLLABORATION AND SUPPLY AGREEMENT

 

This CLINICAL TRIAL COLLABORATION AND SUPPLY AGREEMENT (this “Agreement”), made as of 25 June, 2019 (the “Effective Date”), is by and between GlaxoSmithKline LLC, a Delaware limited liability company, having a place of business at 1250 South Collegeville Road, Collegeville, PA 19426 (“GSK”) and SpringWorks Therapeutics, Inc., a Delaware corporation, having a place of business at 100 Washington Blvd., 5^th Floor, Stamford, CT 06902 (“SpringWorks”). SpringWorks and GSK are each referred to herein individually as a “Party” and collectively as the “Parties”.

 

RECITALS

 

A.

WHEREAS, GSK is developing Belantamab Mafodotin, a humanized (IgG1) antibody drug conjugate that binds specifically to a B-cell maturation antigen for the treatment of multiple myeloma, other plasma cell clone disorders and B-cell malignancies (the “GSK Compound”);

 

B.

WHEREAS, SpringWorks is developing Nirogacestat, a gamma secretase inhibitor (GSI) which specifically downregulates NOTCH target gene expression and reduces cleavage of B-cell maturation antigen for the treatment of certain human tumors (the “SpringWorks Compound”);

 

C.

WHEREAS, GSK desires to sponsor a combination clinical trial combining the GSK Compound and the SpringWorks Compound to develop a combination therapy for the treatment of multiple myeloma on the terms and conditions set forth herein; and

 

D.

WHEREAS, SpringWorks desires to supply the SpringWorks Compound to GSK for use in connection with the conduct of such combination clinical trial on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the premises and of the following mutual promises, covenants and conditions, the Parties, intending to be legally bound, mutually agree as follows:

 

1.

DEFINITIONS.

 

For all purposes of this Agreement, the capitalized terms defined in this Article 1 and throughout this Agreement shall have the meanings herein specified.

 

1.1

“Affiliate” means, with respect to either Party, a firm, corporation or other entity which directly or indirectly owns or controls said Party, or is owned or controlled by said Party, or is under common ownership or control with said Party. The word “control” means (a) the direct or indirect ownership of fifty percent (50%) or more of the outstanding voting securities of a legal entity, or (b) possession, directly or indirectly, of the power to direct the management or policies of a legal entity, whether through the ownership of voting securities, contract rights, voting rights, corporate governance or otherwise.

 

1.2

“Agreement” has the meaning set forth in the preamble.

 

 

1.3

“Applicable Law” means all federal, state, local, national and regional statutes, laws, rules, regulations and directives applicable to a particular activity hereunder, including performance of clinical trials, medical treatment and the processing and protection of personal and medical data, that may be in effect from time to time including those promulgated by the United States Food and Drug Administration (“FDA”), the European Medicines Agency (“EMA”) and any successor agency to the FDA or EMA or any agency or authority performing some or all of the functions of the FDA or EMA in any jurisdiction outside the United States or the European Union (each a “Regulatory Authority” and collectively, “Regulatory Authorities”), and including cGMP and GCP; Data Protection Laws; export control and economic sanctions regulations which prohibit the shipment of United States-origin products and technology to certain restricted countries, entities and individuals; anti-bribery and anti-corruption laws and regulations governing payments to healthcare providers, including the Physician Payment Sunshine Act and state gift laws, and the European Federation of Pharmaceutical Industries and Associations Disclosure Code; and any United States or other country’s or jurisdiction’s successor or replacement statutes, laws, rules, regulations and directives relating to the foregoing.

 

1.4

“Approved Vendor(s)” shall have the meaning given in Section 9.3.

 

1.5

“Bioanalytical Testing” shall have the meaning given in Section 9.3.

 

1.6

“Biomarkers” mean any naturally occurring molecule, gene or characteristic by which a particular pathological or physiological process can be identified and serially monitored during a therapeutic intervention, including blood (including cells, RNA and circulating multiple myeloma cells (CMMCs)), serum (including cytokines and sBCMA), plasma (including cfDNA), tissue and tumors (including FFPE bone marrow aspirate and biopsy Samples).

 

1.7

“Biomarker Testing” shall have the meaning given in Section 9.2.

 

1.8

“Business Day” means any day other than (a) a Saturday, Sunday or any public holiday in the country where the applicable obligations are to be performed; and (b) a day falling within the time period from and including 24 December up to and including 01 January.

 

1.9

“cGMP” means the current Good Manufacturing Practices officially published and interpreted by EMA, FDA and other applicable Regulatory Authorities that may be in effect from time to time and are applicable to the Manufacture of the Compounds. These include requirements set forth in FDA’s regulations at 21 CFR Parts 11, 210, 211 and 600, as applicable to the processing, manufacture, handling, receipt, packaging, labelling, release and distribution of products and services subject to this Agreement.

 

1.10

“Clinical Data” means all data (including raw data) and results generated under the Sub-Study, including all Sample Testing Results.

 

1.11

“Clinical Hold” means that (a) the FDA has issued an order to a Party pursuant to 21 CFR 312.42 to delay a proposed clinical investigation or to suspend an ongoing clinical investigation of the Combination Therapy or such Party’s Compound in the United States, or (b) a Regulatory Authority other than the FDA has issued an equivalent order to that set forth in (a) in any other country or group of countries.

 

 

1.12

“Clinical Quality Agreement” means that certain Clinical Quality Agreement entered into by the Parties pursuant to Section 11.1 hereof.

 

1.13

“Combination Therapy” means the use or method of using the GSK Compound and the SpringWorks Compound in combination, whether such administration is concomitant or sequential administration. For the avoidance of doubt, the Combination Therapy does not include any compounds other than the GSK Compound and the SpringWorks Compound.

 

1.14

“Compounds” means the GSK Compound and the SpringWorks Compound. A “Compound” means any of the GSK Compound or the SpringWorks Compound, as applicable.

 

1.15

“Confidential Information” means any information, Know-How or other proprietary information or materials, whether in written, visual, oral or electronic or any other format, both technical and non-technical, disclosed to one Party by the other Party pursuant to this Agreement or prior to the Effective Date or otherwise belonging to a Party pursuant to this Agreement and relating to matters contemplated by this Agreement, except to the extent that it can be established by the receiving Party that such information or materials: (a) were already known to the receiving Party, other than under an obligation of confidentiality, either (i) at the time of disclosure by the other Party, or (ii) if applicable, at the time that it was generated hereunder, whichever of (i) or (ii) is earlier, in each case as demonstrated by competent business records; (b) were generally available to the public or otherwise part of the public domain either (i) at the time of its disclosure to the receiving Party, or (ii) if applicable, at the time that it was generated hereunder, whichever of (i) or (ii) is earlier; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement; (d) were disclosed to the receiving Party by a Third Party who had no obligation to the disclosing Party not to disclose such information to others; or (e) were subsequently independently developed by the receiving Party (or its Affiliates) without use of, or reference to, the Confidential Information as demonstrated by competent business records.

 

1.16

“CTA” means an application to a Regulatory Authority for purposes of requesting the ability to start or continue a clinical trial.

 

1.17

“Data Protection Law” means all applicable laws, rules and regulations, including the United States Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”), the California Consumer Privacy Act of 2018 (“CCPA”) (to the extent applicable), and any supranational or national legislation relating to privacy and data protection, direct marketing or the interception or communication of electronic messages, in each case as amended, consolidated, re-enacted or replaced from time to time, including European Data Protection Laws.

 

1.18

“Data Security Breach” shall have the meaning given in Section 13.5.

 

 

1.19

“Data Sharing Schedule” means the schedule attached hereto as Schedule I.

 

1.20

“Data Subject” means an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

 

1.21

“Database Lock” means that all Sub-Study data has been received and processed, all queries have been resolved, all external data (for example, lab results) have been integrated into the main Sub-Study database, the completion of the final quality audit ensuring that all Sub-Study data is present, correspondent and accurate and that the edit access of the Sub-Study database has been removed.

 

1.22

“Debarred” or “Debarment” means that a Party or any of its officers or directors or any other personnel (or other permitted agents of a Party hereunder) has been: (a) convicted of any of the offenses identified among the exclusion authorities listed on the U.S. Department of Health and Human Services, Office of Inspector General (OIG) website, including 42 U.S.C. 1320a-7 (http://oig.hhs.gov/exclusions/authorities.asp); (b) identified in the OIG List of Excluded Individuals/Entities (LEIE) database (http://exclusions.oig.hhs.gov/) or listed as having an active exclusion in the System for Award Management (http://www.sam.gov); or (c) disqualified or proposed by FDA for disqualification from receiving investigational products, conducting clinical studies or providing any services in any capacity to a person that has an approved or pending drug product application or listed by any US Federal agency as being suspended, proposed for debarment, debarred, suspended, excluded or otherwise ineligible to participate in Federal procurement or non-procurement programs, including under 21 U.S.C. 335a (http://www.fda.gov/ora/compliance_ref/debar/).

 

1.23

“Delivery” has the meaning given in Section 12.3.

 

1.24

“Dispute” has the meaning set forth in Section 30.2.

 

1.25

“Effective Date” has the meaning set forth in the preamble.

 

1.26

“EMA” has the meaning set forth in the definition of Applicable Law.

 

1.27

“EU Standard Contractual Clauses” means those standard contractual clauses issued by the European Commission that offer sufficient safeguards on data protection for Personal Data to be transferred internationally, which presently consist of two sets of standard contractual clauses for transfers from data controllers in the European Union to controllers established outside the European Union or European Economic Area (Decision 2001/497/EC and Decision 2004/915/EC) and one set of standard contractual clauses for transfers of Personal Data from controllers in the European Union to processors established outside the European Union or European Economic Area (Decision 2010/87/EU), in each case as amended, consolidated, re-enacted or replaced from time to time.

 

 

1.28

“European Data Protection Laws” means the General Data Protection Regulation 2016/679 (the “GDPR”), the e-Privacy Directive 2002/58/EC, the e-Privacy Regulation 2017/003 once it takes effect, and any relevant law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding instrument which implements, replaces, adds to, amends, extends, reconstitutes or consolidates such laws from time to time, including the Data Protection Act 2018 of the United Kingdom, in each case as amended, consolidated, re-enacted or replaced from time to time.

 

1.29

“FDA” has the meaning set forth in the definition of Applicable Law.

 

1.30

“Field” has the meaning given in Section 4.1.

 

1.31

“Final Sub-Study Report” has the meaning given in Section 6.7.

 

1.32

“GCP” means the Good Clinical Practices officially published by EMA, FDA and the International Conference on Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH) that may be in effect from time to time and are applicable to the testing of the Compounds, including the requirements set forth at 21 CFR Parts 50, 54, 56 and 312.

 

1.33

“Government Official” means (a) any officer or employee of a government or any department, agency or instrumentality of a government (which includes public enterprises and entities owned or controlled by the state); (b) any officer or employee of a public international organization such as the World Bank or United Nations; (c) any officer or employee of a political party or any candidate for public office; (d) any person defined as a government or public official under applicable local laws (including anti-bribery and corruption laws) and not already covered by any of the above; and/or; (e) any person acting in an official capacity for or on behalf of any of the above, including in each case any person with close family members who are Government Officials with the capacity, actual or perceived, to influence or take official decisions affecting GSK business. For the purposes of this definition, “government” means all levels and subdivisions of government, i.e. local, regional, national, administrative, legislative, executive, or judicial and royal or ruling families.

 

1.34

“GSK” has the meaning set forth in the preamble.

 

1.35

“GSK Background Intellectual Property” means any Intellectual Property Rights owned or controlled by GSK or an Affiliate of GSK that (a) exist as of the Effective Date of this Agreement or (b) arise outside of (i.e., is not made or conceived in or through) the design or performance of the Sub-Study or the use of or reliance upon the Licensed Clinical Data or the Confidential Information solely owned or controlled by SpringWorks or the SpringWorks Compound.

 

1.36

“GSK Background Patents” has the meaning given in Section 16.5(b).

 

1.37

“GSK Compound” has the meaning given in the Recitals hereto.

 

1.38

“GSK Invention” is defined in Section 16.1.

 

 

1.39

“GSK IPR” is defined in Section 16.1.

 

1.40

“GSK Regulatory Documentation” means any Regulatory Documentation pertaining to the GSK Compound that exists as of the Effective Date or that is created other than in connection with this Agreement.

 

1.41

“GSK-Related Compound” is defined in Section 16.4(b).

 

1.42

“HIPAA” has the meaning set forth in the definition of Data Protection Law.

 

1.43

“IND” means the Investigational New Drug Application filed or to be filed with the FDA as described in Title 21 of the U.S. Code of Federal Regulations, Part 312, and the equivalent application in the jurisdictions outside the United States, including an “Investigational Medicinal Product Dossier” filed or to be filed with the EMA.

 

1.44

“Intellectual Property Rights” means all patents, inventions (whether patentable or not), discoveries, rights in confidential information, Know-How and trade secrets (and any documents containing such confidential information, Know-How or trade secrets), trademarks and service marks, copyrights (including in computer software) (in each case whether registered or not), registered designs, design rights, contractual waivers of moral rights, rights in databases and collections of data, utility models and all similar property rights whether or not registered or registrable, designs, drawings, performances, computer programs, business or brand names, rights in domain names, metatags, goodwill or the style or presentation of goods or services and all similar property rights whether or not registered or registrable, including applications for protection, renewal or extension of any such rights, anywhere in the world and in each case whether subsisting now or in the future.

 

1.45

“Jointly Owned Sub-Study Invention” has the meaning set forth in Section 16.4(a).

 

1.46

“Joint Patent” means a patent, extension, registration, supplementary protection or certificate of the like that issues from a Joint Patent Application.

 

1.47

“Joint Patent Application” has the meaning set forth in Section 16.4(c).

 

1.48

“Know-How” means any proprietary invention, innovation, improvement, development, discovery, computer program, device, trade secret, method, know-how, process, technique or the like, including manufacturing, use, process, structural, operational and other data and information, whether or not written or otherwise fixed in any form or medium, regardless of the media on which contained and whether or not patentable or copyrightable, that is not generally known or otherwise in the public domain.

 

1.49

“Liability” has the meaning set forth in Section 22.1.

 

1.50

“Licensed Clinical Data” means all data (including raw data) and results generated under the Sub-Study which relates to the Combination Therapy or the SpringWorks Compound as a sole compound, including any Sample Testing Results relating to the Combination Therapy or the SpringWorks Compound as a sole Compound, but excluding any data (including Sample Testing Results) relating to the GSK Compound alone or use of the GSK Compound in combination with any other compound in the Field.

 

 

1.51

“Manufacture,” “Manufactured,” or “Manufacturing” means all activities of the manufacture of a Compound, including planning, purchasing, manufacture, processing, compounding, storage, filling, packaging, waste disposal, labelling, leafleting, testing, quality assurance, sample retention, stability testing, release, dispatch and supply, as applicable.

 

1.52

“Manufacturer’s Release” or “Release” means the certification of release of a production lot of a Compound in accordance with the Clinical Quality Agreement.

 

1.53

“Manufacturing Site” means the facilities where a Compound is Manufactured by or on behalf of a Party, as such Manufacturing Site may change from time to time in accordance with Section 12.6.

 

1.54

“Material Safety Issue” means a Party’s reasonable belief that there is an unacceptable risk for harm in humans based on: (a) pre-clinical safety data, including data from animal toxicology studies, or (b) the observation of serious adverse events in humans after a Party’s Compound, either as a single Compound or in combination with any other pharmaceutical agent (including the Combination Therapy), has been administered to or taken by humans.

 

1.55

“Mechanism of Action” means the specific biological and/or chemical interaction(s) through which a drug substance produces its pharmacological effect(s).

 

1.56

“Non-Conformance” has the meaning given to such term in the Clinical Quality Agreement.

 

1.57

“Party” has the meaning set forth in the preamble.

 

1.58

“Personal Data”, “Process”, “Processed” and “Processing” will be construed in accordance with the GDPR to the extent applicable. In all other instances, to the extent HIPAA applies, Personal Data means Protected Health Information subject to HIPAA.

 

1.59

“Pharmacovigilance Agreement” means that certain pharmacovigilance agreement entered into by the Parties pursuant to Article 10 hereof regarding safety-related activities in relation to the Compounds.

 

1.60

“Platform Study” means the clinical study conducted or sponsored by GSK under which one or more sub-studies (including the Sub-Study) are conducted to evaluate the combination of the GSK Compound and other compound(s) for the treatment of multiple myeloma, other plasma cell clone disorders and B-cell malignancies. For the avoidance of doubt, the Sub-Study investigating the Combination Therapy to be performed under this Agreement is for the treatment of relapsed and refractory multiple myeloma.

 

1.61

“Platform Study IND” has the meaning given in Section 6.3.

 

 

1.62

“Platform Study Protocol” means the written documentation which describes the Platform Study and sets forth specific activities to be performed as part of the Platform Study conduct.

 

1.63

“Protected Health Information” will be construed in accordance with HIPAA.

 

1.64

“Regulatory Approvals” means, with respect to a Compound, any and all permissions required to be obtained from Regulatory Authorities and any other competent authority for the development, registration, importation and distribution of such Compound in the United States, Europe or other applicable jurisdictions.

 

1.65

“Regulatory Authorities” has the meaning set forth in the definition of Applicable Law.

 

1.66

“Regulatory Documentation” means, with respect to a Party’s Compound, all submissions to Regulatory Authorities in connection with the development of such Compound and all INDs for such Compound and amendments thereto, including all drug master files, correspondence with regulatory agencies, periodic safety update reports, adverse event files, complaint files, inspection reports and manufacturing records, in each case together with all supporting documents (including documents that include clinical data).

 

1.67

“Related Agreements” means the Pharmacovigilance Agreement and the Clinical Quality Agreement.

 

1.68

“Right of Reference” means, with respect to SpringWorks, allowing the applicable Regulatory Authority in a country to have access to relevant information (by cross-reference, incorporation by reference or otherwise) contained in any Regulatory Documentation (and any data contained therein) filed with such Regulatory Authority with respect to the SpringWorks Compound, only to the extent necessary for the conduct of the Sub-Study in such country.

 

1.69

“Samples” means biological specimens collected from subjects participating in the Sub-Study, including urine, blood and tissue samples.

 

1.70

“Sample Testing” means the analyses that may be performed by GSK using the applicable Samples, as permitted in accordance with this Agreement, including Bioanalytical Testing and Biomarker Testing.

 

1.71

“Sample Testing Results” means those data and results arising from the Sample Testing.

 

1.72

“Specifications” means, with respect to a given Compound, the specifications for testing, release and stability of such Compound, as set forth in the applicable Regulatory Documentation for such Compound.

 

1.73

“SpringWorks” has the meaning set forth in the preamble.

 

1.74

“SpringWorks Background Intellectual Property” means any Intellectual Property Rights owned or controlled by SpringWorks or an Affiliate of SpringWorks that (a) exist at the Effective Date of this Agreement or (b) arise outside of (i.e., is not made or conceived in or through) the design or performance of the Sub-Study or the use of or reliance upon Licensed Clinical Data or the Confidential Information solely owned or controlled by GSK or the GSK Compound.

 

 

1.75

“SpringWorks Background Patents” has the meaning given in Section 16.5(a).

 

1.76

“SpringWorks Compound” has the meaning given in the Recitals hereto.

 

1.77

“SpringWorks Invention” is defined in Section 16.2.

 

1.78

“SpringWorks IPR” is defined in Section 16.2.

 

1.79

“SpringWorks-Related Compound” is defined in Section 16.4(b).

 

1.80

“SpringWorks Regulatory Documentation” means any Regulatory Documentation pertaining to the SpringWorks Compound that exists as of the Effective Date or that is created other than in connection with this Agreement.

 

1.81

“Sub-Study” means the clinical trial investigating the Combination Therapy for relapsed and refractory multiple myeloma to be performed under this Agreement and pursuant to the Sub-Study Protocol.

 

1.82

“Sub-Study Completion” means the last day on which Database Lock for the Sub-Study occurs.

 

1.83

“Sub-Study Inventions” means all inventions and discoveries, whether or not patentable, that are made or conceived by either Party, its Affiliates or subcontractors, in the design or performance of the Sub-Study and/or that are made or conceived by a Party, its Affiliates or subcontractors, through use of the Licensed Clinical Data.

 

1.84

“Sub-Study Protocol” means the written documentation agreed between the Parties which describes the Sub-Study and sets forth specific activities to be performed as part of the Sub-Study conduct, a summary of which is attached hereto as Appendix A.

 

1.85

“Sub-Study Regulatory Documentation” means any Regulatory Documentation pertaining to the Sub-Study whether created before, during or after the expiry of the term of this Agreement.

 

1.86

“Term” has the meaning given in Section 24.1.

 

1.87

“Third Party” means any person or entity other than GSK, SpringWorks or their respective Affiliates.

 

1.88

“Third Party License Payment” means any payments (e.g. upfront payments, milestones, royalties) due to any Third Party under license agreements or other written agreements granting rights to intellectual property owned or controlled by such Third Party to the extent that such rights are necessary for (a) the making, using or importing of a Party’s Compound for the conduct of the Sub-Study, or (b) the conduct of the Sub-Study.

 

 

 

2.

SCOPE OF THE AGREEMENT.

 

2.1

GSK agrees to Manufacture and supply the GSK Compound for purposes of the Sub-Study as set forth in Article 12. SpringWorks agrees to Manufacture and supply the SpringWorks Compound for purposes of the Sub-Study as set forth in Article 12. Without limiting the foregoing, each Party is responsible for obtaining all approvals (including facility licenses) that are required by the applicable Regulatory Authority to Manufacture its Compound in accordance with Applicable Law (provided that for clarity, GSK shall be responsible for obtaining Regulatory Approvals (other than the Manufacturing approvals for the SpringWorks Compound) for the Sub-Study as set forth in Sections 6.2 and 6.3).

 

2.2

Each Party shall have the right to delegate or subcontract any portion of its obligations hereunder to subcontractors, provided that SpringWorks’ right to so delegate or subcontract shall extend solely to its obligation to Manufacture the SpringWorks Compound. Each Party shall remain solely and fully liable for the performance of such subcontractors and shall ensure that its subcontractors performs its obligations pursuant to the terms of this Agreement. Each Party shall use reasonable efforts to obtain and maintain copies of documents relating to the obligations performed by such subcontractors.

 

2.3

Subject to Article 5, this Agreement does not create any obligation on the part of SpringWorks to provide the SpringWorks Compound for any activities other than the Sub-Study, nor does it create any obligation on the part of GSK to provide the GSK Compound for any activities other than the Sub-Study.

 

2.4

A summary of the Sub-Study Protocol has been agreed to by the Parties as of the Effective Date and is attached as Appendix A. GSK will further develop the Sub-Study Protocol in coordination with SpringWorks. After the Sub-Study Protocol has been mutually agreed by the Parties, it shall be deemed a part of this Agreement. Thereafter, subject to Section 9.2, GSK shall have the final decision-making authority regarding changes to the contents of the Sub-Study Protocol, provided that GSK shall not amend any part of the Sub-Study Protocol if such amendment relates to the dosing of the SpringWorks Compound, the dosing schedule for the SpringWorks Compound and/or safety measures for the SpringWorks Compound, without SpringWorks’ prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned, and provided further that (i) such consent shall not be required for a change which does not relate to the dosing of the SpringWorks Compound, the dosing schedule for the SpringWorks Compound and/or safety measures for the SpringWorks Compound; and (ii) GSK shall provide prompt notice (but in any event no fewer than [***] Business Days before the sooner of the effective date of amendment or submission of the amendment to a Regulatory Authority) of every change to the Sub-Study Protocol to SpringWorks and a copy of the amended Sub-Study Protocol and shall consider in good faith any comments provided by SpringWorks with respect to such proposed amendment.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

2.5

GSK shall prepare the patient informed consent form for the Sub-Study (which shall include provisions designed to permit the lawful sharing of Samples and Licensed Clinical Data and the use of Samples in Sample Testing) in accordance with Applicable Law and in consultation with SpringWorks and shall consider SpringWorks’ comments in good faith; provided that SpringWorks shall provide the portion of the informed consent form relating to the SpringWorks Compound, which shall be prepared in accordance with Applicable Law and in respect of which SpringWorks shall consult with GSK (and all comments by GSK shall be considered by SpringWorks in good faith).

 

3.

COSTS OF SUB-STUDY.

 

3.1

The Parties agree:

 

(a)

all expenses in relation to the following provisions shall be borne or shared by the Parties as provided in the relevant Articles:

 

(i)

Manufacturing of the GSK Compound and SpringWorks Compound, according to Article 12; and

 

(ii)

any costs associated with Intellectual Property Rights, according to Article 16; and

 

(b)

if the conduct of the Sub-Study requires any Third Party License Payment, the Party required to make such payment shall be responsible for the same.

 

3.2

Subject to Section 3.1, GSK shall bear all other costs associated with the conduct of the Sub-Study, including the costs associated with the Regulatory Approvals for the Sub-Study (except for any costs associated with the Manufacture by SpringWorks of the SpringWorks Compound, in respect of which SpringWorks shall be solely responsible).

 

4.

EXCLUSIVITY.

 

4.1

Commencing on the Effective Date and continuing until [***] , SpringWorks and its Affiliates shall not directly or indirectly undertake any pre-clinical or clinical studies or supply or license the SpringWorks Compound to any Third Party in connection with any use of the SpringWorks Compound in the development or commercialization of any combination therapy using any agent that binds to a B-cell maturation antigen (BCMA) (the “Field”) other than in connection with the Sub-Study.

 

5.

FOLLOW ON STUDIES.

 

5.1

Within [***] days of the Sub-Study Completion (or at any earlier point agreed upon by the Parties), either Party shall have the option to propose new agreement(s) for the purpose of performing one or more additional studies of the Combination Therapy for the treatment of relapsed and refractory multiple myeloma, including phase II and phase III studies (including registration studies) (collectively, the “Follow On Studies”). In each such case, the Parties shall work in good faith, but will have no obligation, for up to a period of [***] days after each such proposal (such period to be extended for one additional period of [***] days upon written notice being provided by one Party the other Party, such notice to be provided no later than [***] days prior to expiry of the initial [***] day period), to reach agreement upon the details of such agreement(s) and such Follow On Study(ies), including development of protocols and identification of the study sponsor and other relevant terms (including any agreed right of reference for SpringWorks). Any agreement between the Parties for the conduct of the Follow On Study(ies) shall be set forth in written agreement(s) executed by the Parties and shall be on substantially the same terms and conditions as this Agreement.

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

5.2

If the Parties do not reach agreement on the terms for such Follow On Study, and one Party (“sponsoring Party”) but not the other Party (“nonparticipating Party”) wishes to proceed with any such Follow On Study, and the nonparticipating Party does not object to the protocol based on safety concerns, then the sponsoring Party may proceed with the Follow On Study. The nonparticipating Party shall use commercially reasonable efforts to [***], on reasonable [***], and the sponsoring Party shall [***] to the extent required for the [***]. The Parties shall [***], provided that the nonparticipating party’s [***].

 

5.3

Except as expressly set forth in this Article 5, GSK and SpringWorks have no obligation to renew or to extend this Agreement to any clinical study other than the Sub-Study, and nothing in this Agreement shall require either Party to enter into any new agreement with the other Party.

 

6.

CONDUCT OF THE SUB-STUDY.

 

6.1

Each Party shall act in good faith and perform and fulfil its respective activities under this Agreement in accordance with the Sub-Study Protocol, the terms of this Agreement and Applicable Law. Notwithstanding anything to the contrary contained herein, neither GSK nor SpringWorks shall employ or subcontract with any person or entity that is Debarred or otherwise ineligible for government programs for the performance of the Sub-Study or any other activities under this Agreement or the Related Agreements.

 

6.2

GSK shall, subject to the terms of the Sub-Study Protocol, the applicable terms of this Agreement and any Related Agreement, manage and be responsible for the conduct of the Sub-Study, including timelines and contingency planning, compiling, amending and filing all necessary Sub-Study Regulatory Documentation with Regulatory Authorities pursuant to the terms of this Article 6, maintaining and acting as the sponsor of record as provided in any Applicable Law, with responsibility, unless otherwise delegated in accordance with Applicable Law, for the Sub-Study and making all required submissions to Regulatory Authorities related thereto.

 

6.3

GSK will be the sponsor of the Sub-Study, which shall be conducted under the IND for the Platform Study (the “Platform Study IND”) in accordance with the Platform Study Protocol. GSK shall own the Platform Study IND. If a Regulatory Authority requests a separate IND for the investigation of the GSK Compound with the SpringWorks Compound for the Sub-Study, the Parties will meet and mutually agree on an approach to address such requirement. As between the Parties, GSK shall have the sole right and authority to make and submit filings regarding the Sub-Study to the Platform Study IND.

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

6.4

As required by Applicable Law or a Regulatory Authority and otherwise upon GSK’s reasonable request, SpringWorks shall reasonably cooperate with GSK in good faith in support of GSK’s submissions to or interactions with Regulatory Authorities related to the Combination Therapy or the Sub-Study, including by participating in any discussions with any such Regulatory Authority regarding matters related to the Combination Therapy or the Sub-Study.

 

6.5

GSK shall provide to SpringWorks all Sub-Study information and documentation requested by SpringWorks and within GSK’s possession or control as reasonably required to enable SpringWorks to comply with any of its legal and regulatory obligations, or any request by any Regulatory Authority, related to the SpringWorks Compound.

 

6.6

GSK shall provide to SpringWorks copies of all Licensed Clinical Data, in electronic form or other mutually agreeable alternate form on the timelines specified in the Data Sharing Schedule or on mutually agreed timelines, provided that GSK has obtained all necessary consents required to lawfully share such Licensed Clinical Data. GSK shall use commercially reasonable efforts to obtain all patient authorizations and consents required under Data Protection Laws in connection with the Sub-Study to permit such sharing of Licensed Clinical Data with SpringWorks.

 

6.7

Without limiting the requirements of the foregoing Section 6.6, (a) within [***] Business Days after Database Lock for the Sub-Study, GSK shall provide SpringWorks with: (i) an electronic copy of the top-line report for the Sub-Study and (ii) an electronic first draft of the report for the Sub-Study following Sub-Study Completion in accordance with the results and analysis plan for the Sub-Study. SpringWorks shall review such first draft report and provide comments to GSK within [***] Business Days of the date on which it was sent by GSK, and GSK shall consider such comments in good faith; (b) if applicable, following review of the first draft pursuant to (a), any subsequent draft reports, which SpringWorks shall review and on which SpringWorks shall provide comments within [***] Business Days of the date on which it was sent by GSK. GSK shall consider such comments in good faith; and (c) a final version of the report (the “Final Sub-Study Report”) no later than [***] months following receipt of SpringWorks’ comments on (a) or (b), as applicable. GSK shall not include any statements in the Final Sub-Study Report relating to the SpringWorks Compound which have not been approved by SpringWorks.

 

6.8

SpringWorks will provide to GSK any data related to the SpringWorks Compound that is required for the conduct of the Sub-Study, whether generated by preclinical or clinical studies, and any associated documentation (including the current package insert for the SpringWorks Compound and the current investigator’s brochure for the SpringWorks Compound), that exists and is controlled by SpringWorks at the time of the Effective Date and any such data that becomes newly available and is controlled by SpringWorks during the Term in a timely manner, and will provide any updates thereto to GSK, in a timely manner, as reasonably required to conduct the Sub-Study, including to meet any regulatory requirements pertaining to the conduct of the Sub-Study, and to enable GSK to draft and update as necessary the investigator’s brochure for the Sub-Study. The foregoing obligation shall not apply to the extent SpringWorks’ compliance therewith would constitute a breach of an agreement between SpringWorks and any Third Party: (a) which is entered into prior to the Effective Date; or (b) which is entered into on or after the Effective Date, provided however that: (i) SpringWorks shall use commercially reasonable efforts to include a provision in such agreement that permits the sharing of data as set forth in this Section 6.8; and (ii) [***]; and (iii) [***]. SpringWorks represents and warrants that to its knowledge as at the Effective Date it is not a party to an agreement with any Third Party which would prohibit the sharing of data as set forth in this Section 6.8.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

7.

RIGHT OF REFERENCE

 

7.1

SpringWorks hereby grants to GSK and its Affiliates (including the right to sublicense to the (sub)licensees and subcontractors of the GSK Compound) a Right of Reference to the SpringWorks Regulatory Documentation (including the appropriate INDs and CTAs) for the sole purpose of enabling GSK, its Affiliates, (sub)licensees and subcontractors to apply for and maintain any and all Regulatory Approvals, required to conduct the Sub-Study in accordance with this Agreement. SpringWorks shall promptly provide to GSK or its nominee and FDA or other Regulatory Authorities all letters of authorization required to enable such Right of Reference. If SpringWorks’ CTA is not available in a given country, SpringWorks will file its CMC data with the Regulatory Authority for such country, referencing GSK’s CTA as appropriate (however, GSK shall have no right to directly access the CMC data).

 

7.2

Subject to Section 16.4(b), consistent with GSK’s ownership of all Clinical Data pursuant to Section 15.1, and without limiting the generality of the foregoing, SpringWorks acknowledges and agrees that GSK shall have the right to use and analyze the Clinical Data in connection with the independent development, commercialization or other exploitation of the GSK Compound (individually or in combination with other drugs and/or other pharmaceutical agents), for inclusion in the safety database for the GSK Compound and the Combination Therapy, and/or exercise by GSK of its rights under Section 7.1, which rights shall survive any expiration or termination of this Agreement.

 

8.

JOINT DEVELOPMENT COMMITTEE

 

8.1

The Parties shall form a joint development committee (the “Joint Development Committee” or “JDC”), made up of three (3) representatives of each of SpringWorks and GSK unless otherwise agreed (but in any event, the JDC shall be made up of an equal number of representatives from each Party), which shall have responsibility for coordinating all regulatory and other activities under, and pursuant to, this Agreement. Each Party shall designate a project manager (the “Project Manager”) who shall be responsible for implementing and coordinating activities, and facilitating the exchange of information between the Parties, with respect to the Sub-Study, and shall notify the other Party in writing regarding the name and contact details of the Project Manager promptly following the Effective Date. Other JDC members will be agreed by the Parties promptly following the Effective Date, but no later than five (5) Business Days prior to the first JDC meeting. The JDC shall meet for the first time after the Effective Date and prior to the Sub-Study initiation, and then no less than quarterly, or more or less often as agreed by the JDC, to provide an update on Sub-Study progress. Five (5) Business Days prior to any such meeting, the GSK Project Manager will provide a draft meeting agenda to the SpringWorks Project Manager for review and comment. [***] prior to any such meeting, the GSK Project Manager shall provide: (a) a final draft of the meeting agenda (incorporating any comments from the SpringWorks Project Manager) and (b) an update in writing to the SpringWorks Project Manager, which update shall contain information in reasonable detail about [***]. The minutes of each JDC meeting will be drafted by the meeting’s secretary and shall summarize discussion highlights, actions, and agreements. The draft minutes shall be circulated within three (3) business days of the JDC meeting by the GSK Project Manager, thereafter, the GSK Project Manager shall circulate a final version of such minutes to the JDC at least [***] Business Day in advance of the next JDC meeting. The first such secretary shall be the GSK Project Manager and thereafter the secretarial appointment shall alternate between the SpringWorks Project Manager and the GSK Project Manager.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

9.

SAMPLE TESTING.

 

9.1

GSK shall perform or have performed all Sample Testing and shall own all Samples and Sample Testing Results. Solely to the extent specified on the Data Sharing Schedule as being shared, GSK shall provide to SpringWorks the Sample Testing Results in electronic form or other mutually agreeable alternate form, on the timelines specified in the Data Sharing Schedule or as otherwise mutually agreed.

 

9.2

GSK shall perform Sample Testing of Biomarkers to the Sub-Study as set out in the Protocol as of the Effective Date and as may be agreed between the Parties during the Term of this Agreement (“Biomarker Testing”). The Parties shall discuss in good faith and may agree that GSK should [***]. GSK shall be responsible for directing and overseeing the conduct of any Biomarker Testing (including as may be mutually agreed after Effective Date). In the event that a Biomarker discovered or developed by SpringWorks may be relevant to the Sub-Study, then the Parties shall discuss and agree [***] and [***] to GSK. Any agreed Biomarker Testing (including as set out in the Protocol as of the Effective Date) shall be performed at GSK’s expense.

 

9.3

SpringWorks shall identify to GSK in writing its preferred vendor(s) for the conduct of bioanalytical testing relating to pharmacokinetic Samples from Sub-Study subjects as provided in the Sub-Study Protocol (the “Bioanalytical Testing”) on or by the Effective Date. GSK shall use commercially reasonable efforts to use such preferred vendor(s) for the Bioanalytical Testing, provided that such vendor(s) are approved in accordance with GSK’s internal due diligence processes and acceptable to GSK’s procurement and/or third party resourcing functions, as applicable (“Approved Vendor(s)”). [***]. The Bioanalytical Testing shall be conducted [***] and GSK shall be responsible for overseeing the conduct of such testing by the Approved Vendor(s). SpringWorks shall: (a) provide the necessary authorization for the Approved Vendor(s) to conduct the Bioanalytical Testing on behalf of GSK and for the delivery of the results of such testing to GSK so that the results may be included in the Final Sub-Study Report, and (b) authorize the Approved Vendor(s) to provide GSK with access to the validation report and method for the analysis of the SpringWorks Compound, in the case of both (a) and (b), no later than [***] days following the Effective Date.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

10.

PHARMACOVIGILANCE AGREEMENT.

 

10.1

The Parties (or their respective Affiliates) will use commercially reasonable efforts to execute the Pharmacovigilance Agreement within [***] days of the Effective Date, but in any event no later than the date the first dose of the SpringWorks Compound, is administered as part of the Sub-Study, to ensure the exchange of relevant safety data within appropriate timeframes and in appropriate format to enable the Parties to fulfil local and international regulatory reporting obligations and to facilitate appropriate safety reviews. In the event of a conflict between this Agreement and the Pharmacovigilance Agreement, the terms of the Pharmacovigilance Agreement shall control in relation to safety issues only. The Parties acknowledge that the execution of the Pharmacovigilance Agreement is a condition precedent to dosing of patients in the Sub-Study with the SpringWorks Compound.

 

11.

CLINICAL QUALITY AGREEMENT.

 

11.1

The Parties (or their respective Affiliates) will use commercially reasonable efforts to execute the Clinical Quality Agreement for the SpringWorks Compound within [***] days of the Effective Date, but in no event later than the date on which the first shipment of SpringWorks Compound is shipped to GSK or its nominee for use in the Sub-Study. The Parties acknowledge that the execution of the Clinical Quality Agreement is a condition precedent to the supply of Compound for the Sub-Study. In the event of a conflict between the terms of this Agreement and the terms of the Clinical Quality Agreement, the terms of the Clinical Quality Agreement shall govern in respect of technical quality issues only.

 

12.

SUPPLY AND USE OF THE COMPOUNDS.

 

12.1

Supply of the Compounds. GSK shall supply, or cause to be supplied, at its sole cost and expense, cGMP-grade quantities of the GSK Compound for use in the Sub-Study, and in accordance with the terms of this Article 12. SpringWorks shall supply, or cause to be supplied, at its sole cost and expense, cGMP-grade quantities of SpringWorks Compound for use in the Sub-Study, in the quantities and on the timelines set forth on Appendix B, and in accordance with the terms of this Article 12. In the event that GSK determines that the quantities of the SpringWorks Compound set forth on Appendix B are not sufficient to complete the Sub-Study, GSK shall notify SpringWorks, and the Parties shall agree in good faith on additional quantities of SpringWorks Compound to be provided to complete the Sub-Study and the schedule on which such additional quantities shall be provided. Each Party shall notify the other Party promptly in the event of any Manufacturing or supply issues, including any delay in supply of its Compound, that is reasonably likely to adversely affect the conduct or timelines of the Sub-Study as contemplated by this Agreement. Each Party shall, within [***] days of the Effective Date, provide to the other Party the name and contact details of a person responsible for assisting with coordinating, and facilitating the resolution of any issues or concerns arising in connection with the supply of its Compound under this Agreement. Notwithstanding the foregoing, or anything to the contrary herein, in the event that either Party is not supplying its Compound in accordance with the terms of this Agreement, or is allocating under Section 12.11, then the other Party shall have no obligation to supply its Compound, or may allocate proportionally. Each Party shall ensure that all activities conducted by such Party, its Affiliates and its permitted (sub)contractors and (sub)licensees under this Article 12 are conducted in compliance with cGMP, GCP and other Applicable Law and the Clinical Quality Agreement and applicable safety and environmental protocols.

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

12.2

Minimum Shelf Life Requirements. Each Party shall supply its Compound hereunder with an adequate remaining shelf life at the time of Delivery to meet the Sub-Study requirements.

 

12.3

Delivery of Compounds.

 

(a)

SpringWorks will deliver, at its sole cost, the SpringWorks Compound DDP (INCOTERMS 2010) to GSK’s, or its designee’s location as specified by GSK (“Delivery” with respect to such SpringWorks Compound). Title and risk of loss for the SpringWorks Compound shall transfer from SpringWorks to GSK at Delivery. All costs associated with the subsequent transportation, warehousing and distribution to Sub-Study sites of SpringWorks Compound after Delivery takes place shall be borne by GSK. For the avoidance of doubt, if prior to Delivery the SpringWorks Compound for any reason or in any way becomes lost, damaged, destroyed or becomes unable to comply with applicable Specifications, SpringWorks shall be obligated to replace the same at its sole cost and to use commercially reasonable efforts to do so as soon as practicable in order to cause the least disturbance to the conduct and timelines of the Sub-Study.

 

(b)

GSK is solely responsible, at its sole cost, for supplying (including all Manufacturing, acceptance and release testing) the GSK Compound for the Sub-Study, and the subsequent handling, storage, transportation, warehousing and subsequent distribution to Sub-Study sites of the GSK Compound supplied hereunder. For purposes of this Agreement, the “Delivery” of a given quantity of the GSK Compound shall be deemed to occur when such quantity is packaged for shipment to a Sub-Study site.

 

12.4

Labelling and Packaging; Use of SpringWorks Compound. The Parties’ obligations with respect to the labelling and packaging of the GSK Compound and the SpringWorks Compound are as set forth in the Clinical Quality Agreement. Notwithstanding the foregoing or anything to the contrary contained herein, SpringWorks shall supply the SpringWorks Compound to GSK in the form of unlabelled, [***], and GSK shall be responsible for labelling and packaging such bottles for use in the Sub-Study. For the avoidance of doubt, GSK shall use such SpringWorks Compound solely to perform the Sub-Study and for no other purpose.

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

12.5

Product Specifications. A certificate of analysis, and such other documentation as may be agreed to by the Parties and set forth in the Clinical Quality Agreement, shall accompany each shipment of the SpringWorks Compound to GSK in accordance with the terms of the Clinical Quality Agreement. SpringWorks shall be responsible for any failure of the SpringWorks Compound to meet the Specifications and shall replace any such SpringWorks Compound free of charge; provided that, to the extent that such failure is caused by GSK’s negligence or intentional misconduct in the shipping, storage or handling conditions after Delivery to GSK hereunder, GSK shall pay the actual cost of such replacement SpringWorks Compound without markup. Upon written request, GSK shall provide SpringWorks with a certificate of analysis covering each shipment of GSK Compound used in the Sub-Study.

 

12.6

Changes to Manufacturing. Each Party may make changes from time to time to its Compound or the Manufacturing Site in accordance with the Clinical Quality Agreement; provided that the intended changes would not require a submission, amendment or variation to the Platform Study IND or the Sub-Study, and provided further that the Party making such change provides the other Party with prior written notice of the intended changes. In the case of proposed changes to the Compound or the Manufacturing Site which would require a submission, amendment or variation to the Platform Study IND or the Sub-Study, the Party proposing such change shall provide prior written notice to the other Party of such intended changes, providing reasonable detail, and the Party receiving such notice shall consider such request in good faith.

 

12.7

Product Testing; Noncompliance. After Manufacturer’s Release of the SpringWorks Compound but prior to shipment to GSK, SpringWorks shall provide GSK with such certificates and documentation as described in the Clinical Quality Agreement. GSK shall, within the time defined in the Clinical Quality Agreement, perform (a) with respect to the SpringWorks Compound, the acceptance (including testing) procedures allocated to it under the Clinical Quality Agreement, and (b) with respect to the GSK Compound, the testing and release procedures allocated to it under the Clinical Quality Agreement.

 

12.8

Non-Conformance.

 

(a)

In the event that either Party becomes aware that any Compounds may have a Non-Conformance, despite any testing and quality assurance activities (including any activities conducted by the Parties under Section 12.7 (After Manufacturer’s Release)), such Party shall immediately notify the other Party in accordance with the procedures of the Clinical Quality Agreement. The Parties shall investigate any Non-Conformance in accordance with Section 12.10 (Investigations) and any discrepancy between them shall be resolved in accordance with Section 12.9 (Resolution of Discrepancies).

 

 

(b)

In the event any proposed or actual shipment of the SpringWorks Compound (or portion thereof) shall be agreed to have a Non-Conformance at the time of Delivery to GSK, then unless otherwise agreed to by the Parties, SpringWorks shall replace such SpringWorks Compound as is found to have a Non-Conformance. Unless otherwise agreed to by the Parties in writing, the sole and exclusive remedies of GSK with respect to any SpringWorks Compound that is found to have a Non-Conformance at the time of Delivery shall be (i) replacement of such SpringWorks Compound as set forth in this Section 12.8(b), and (ii) indemnification under Article 22 (to the extent applicable) and (iii) termination of this Agreement pursuant to Section 24.2 (to the extent applicable, but subject to the applicable cure periods set forth therein), provided that, for clarity, GSK shall not be deemed to be waiving any of its rights to recall Compounds in accordance with the Clinical Quality Agreement. In the event that SpringWorks Compound is lost or damaged by GSK after Delivery, SpringWorks shall provide additional SpringWorks Compound (if available for the Sub-Study) to GSK; provided that GSK shall reimburse SpringWorks for the actual cost of such replaced SpringWorks Compound without markup.

 

(c)

GSK shall be responsible for, and SpringWorks shall have no obligations or liability with respect to, any GSK Compound supplied hereunder that is found to have a Non-Conformance. GSK shall replace any GSK Compound as is found to have a Non-Conformance. Unless otherwise agreed to by the Parties in writing, the sole and exclusive remedies of SpringWorks with respect to any GSK Compound that is found to have a Non-Conformance at the time of Delivery shall be (i) replacement of such GSK Compound as set forth in this Section 12.8(c) and (ii) indemnification under Article 22 (to the extent applicable).

 

12.9

Resolution of Discrepancies. If SpringWorks disagrees with any determination of Non-Conformance by GSK, such dispute shall be escalated to SpringWorks’ Head of CMC and GSK’s Director of Quality External Supply, North America, or such other persons as they may designate in writing. If such quality representatives cannot reach a resolution to the discrepancy, they shall escalate it to the head of quality of each Party for resolution. If each Party’s head of quality cannot reach a resolution, the dispute resolution procedure set out at Article 30 shall apply.

 

12.10

Investigations. The process for investigations of any Non-Conformance shall be handled in accordance with the provisions set forth in the Clinical Quality Agreement.

 

12.11

Shortage; Allocation. Without limiting its other obligations hereunder, in the event of a shortage of a Compound such that a Party reasonably believes that it will not be able to fulfil its supply obligations hereunder with respect to the Compound it is supplying, such Party will provide prompt written notice to the other Party thereof (including the reason for the shortage and the quantity of such Compound that such Party reasonably determines it will be able to supply) and, upon request, the Parties will promptly discuss such situation in good faith (including how the quantities of Compound that such Party is able to supply hereunder will be allocated within the Sub-Study).

 

12.12

Regulatory Responsibility. The responsibilities of the Parties with respect to communication and filings with Regulatory Authorities related to the Compounds supplied hereunder in connection with the Sub-Study will be as set forth in this Agreement, the Pharmacovigilance Agreement and the Clinical Quality Agreement entered into by the Parties or their Affiliates in connection herewith.

 

 

12.13

Records; Audit and Inspection Rights. GSK and SpringWorks will each keep complete and accurate records pertaining to the Manufacture, use and disposition, as applicable, of the relevant Compounds under this Agreement (in the case of GSK, comprising the GSK Compound and, after Delivery, the SpringWorks Compound, and in the case of SpringWorks, the SpringWorks Compound prior to Delivery (including storage, shipping (cold chain) and chain of custody activities)). Any records relating to the quality of the Compounds shall be kept in accordance with the terms of the Clinical Quality Agreement. Without limiting the rights of audit included within the Clinical Quality Agreement, upon the reasonable request of the other Party, each Party will make such records open to review by such other Party for the purpose of conducting investigations for the determination of Compound safety and/or efficacy and compliance with this Agreement with respect to the relevant Compound or as required by Applicable Laws; provided that (to the extent permitted by Applicable Laws) the auditing Party provides written notice setting out the reason for the audit no less than twenty (20) days in advance and any such review or audit is performed during business hours on a Business Day in the country where the audit takes place and with minimum disruption to the day-to-day activities of the audited Party.

 

12.14

Quality Control. GSK shall implement and perform operating procedures and controls for sampling, stability and other testing of the GSK Compound, and for validation, documentation and release of the GSK Compound and such other quality assurance and quality control procedures as are required by the Specifications, cGMPs and the Clinical Quality Agreement. SpringWorks shall implement and perform operating procedures and controls for sampling, stability and other testing of the SpringWorks Compound, and for validation, documentation and release of the SpringWorks Compound and such other quality assurance and quality control procedures as are required by the Specifications, cGMPs and the Clinical Quality Agreement.

 

12.15

Recalls. Recalls of the Compounds shall be governed by the terms of the Clinical Quality Agreement.

 

12.16

VAT.

 

(a)

It is understood and agreed between the Parties that any payments made and any other consideration given under this Agreement are each exclusive of any value added or similar tax (“VAT”), which shall be added thereon as applicable and at the relevant rate. Subject to Section 12.16(b), where VAT is properly charged by the supplying Party and added to a payment made or other consideration provided (as applicable) under this Agreement, the Party making the payment or providing the other consideration (as applicable) will pay the amount of VAT properly chargeable only on receipt of a valid tax invoice from the supplying Party issued in accordance with the laws and regulations of the country in which the VAT is chargeable. Each Party agrees that it shall provide to the other Party any information and copies of any documents within its control to the extent reasonably requested by the other Party for the purposes of (i) determining the amount of VAT chargeable on any supply made under this Agreement, (ii) establishing the place of supply for VAT purposes, or (iii) complying with its VAT reporting or accounting obligations.

 

 

(b)

Where one Party or its Affiliate (the “First Party”) is treated as making supply of goods or services in a particular jurisdiction (for VAT purposes) for non-cash consideration, and the other Party or its Affiliate (the “Second Party”) is treated as receiving such supply in the same jurisdiction, thus resulting in an amount of VAT being properly chargeable on such supply, the Second Party shall only be obliged to pay to the First Party the amount of VAT properly chargeable on such supply (and no other amount). The Second Party shall pay such VAT to the First Party on receipt of a valid VAT invoice from the First Party (issued in accordance with the laws and regulations of the jurisdiction in which the VAT is properly chargeable). The Parties agree to (i) use their reasonable endeavors to determine and agree the value of the supply that has been made and, as a result, the corresponding amount of VAT that is properly chargeable, and (ii) provide to each other any information or copies of documents in their control as are reasonably necessary to evidence that such supply will take, or has taken, place in the same jurisdiction (for VAT purposes).

 

13.

CONFIDENTIALITY.

 

13.1

GSK and SpringWorks each agree to hold in confidence any Confidential Information of the other Party, and neither Party shall use Confidential Information of the other Party except to fulfil such Party’s obligations or to exercise its rights under this Agreement. For the avoidance of doubt, for the purposes of this Agreement, regardless of which Party discloses such Confidential Information to the other, (a) all GSK IPR and GSK Regulatory Documentation shall be Confidential Information of GSK and SpringWorks shall be deemed the receiving Party; (b) all SpringWorks IPR and SpringWorks Regulatory Documentation shall be Confidential Information of SpringWorks and GSK shall be deemed the receiving Party; and (c) (x) Licensed Clinical Data shall be treated as Confidential Information of both Parties and (y) all Clinical Data that is not Licensed Clinical Data shall be the Confidential Information of GSK, and in each case such Confidential Information shall not be disclosed by the other Party except as permitted by the terms of this Agreement or if required to be filed with or disclosed to a Regulatory Authority or included in a product’s label or package insert. Notwithstanding the foregoing, (a) Jointly Owned Sub-Study Inventions that constitute Confidential Information shall constitute the Confidential Information of both Parties and each Party shall have the right to use such Confidential Information consistent with this Article 13 and Articles 16 and 17 and (b) Sub-Study Inventions that constitute Confidential Information and that are solely owned by one Party shall constitute the Confidential Information of that Party and each Party shall have the right to use and disclose such Confidential Information consistent with this Article 13 and Articles 16 and 17.

 

 

13.2

Neither Party shall, without the prior written permission of the other Party, nor shall permit any of its employees, consultants, agents, permitted (sub)licensees and (sub)contractors (“Representatives”) to, disclose any Confidential Information of the other Party to any Third Party except to the extent disclosure is (a) required by Applicable Law, to prosecute or defend litigation or to comply with the rules or regulations of any securities exchange on which such Party’s stock is listed; (b) required in order to fulfil the receiving Party’s obligations under this Agreement or exercising the receiving Party’s rights to use and disclose such Confidential Information as expressly provided for in this Agreement and solely on a need-to-know basis; (c) necessary for the conduct of the Sub-Study and solely on a need-to-know basis; or (d) necessary for filing or prosecuting Joint Patent Applications and/or Joint Patents as permitted pursuant to Article 16; provided that, in the event of (a) above, the disclosing Party shall provide reasonable advance notice to the other Party before making such disclosure (to the extent permitted by Applicable Law) and endeavors in good faith to secure confidential treatment of such Confidential Information and/or reasonably assist the Party that owns such Confidential Information in seeking a protective order or other confidential treatment, and in the event of each of (b) and (c) above, any Representative or Third Party to whom such Confidential Information is disclosed is bound by obligations of confidentiality and non-use at least as stringent as those set forth in this Agreement and the receiving Party remains liable for the compliance of such parties with such obligations.

 

13.3

Each receiving Party acknowledges that in connection with its and its Representatives’ or any Third Party’s examination of the Confidential Information of the disclosing Party, the receiving Party and its Representatives and relevant Third Parties may have access to material, non-public information, and that the receiving Party is aware, and will advise its Representatives and Third Parties who are informed as to the matters that are the subject of this Agreement, that securities laws may impose restrictions on the dissemination of such information and trading in securities when in possession of such information.

 

13.4

Notwithstanding any other provision of this Agreement GSK may, without SpringWorks’ consent, disclose Confidential Information to Affiliates, permitted (sub)licensees, contractors, IRBs, CROs, academic institutions, consultants, agents, and employees and contractors engaged by study sites and clinical trial investigators performing the Sub-Study, the data safety monitoring and advisory board relating to the Sub-Study, and Regulatory Authorities or other health authorities working with GSK on the Sub-Study, necessary for the Sub-Study, in each case solely to the extent necessary for the performance of the Sub-Study and provided such persons (other than governmental entities) are bound by an obligation of confidentiality and non-use at least as stringent as the obligations contained herein.

 

13.5

When transferring data, results and Confidential Information, all communications between GSK and SpringWorks will use encryption methods agreed to by the Parties. Upon discovering any suspected or actual unauthorized disclosure, loss or theft of Confidential Information or the results (a “Data Security Breach”), SpringWorks will send an e-mail to [***] notifying GSK, and upon discovering any suspected or actual Data Security Breach, GSK will send an e-mail to [***], notifying SpringWorks. The Parties shall work with each other in good faith to identify a root cause and remediate the Data Security Breach.

 

14.

DATA PROTECTION.

 

14.1

Disclosing Party Obligations. To the extent a Party (the “Disclosing Party”) discloses, transfers or otherwise makes available any Personal Data to the other Party (the “Receiving Party”) in connection with this Agreement, the Disclosing Party:

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(a)

shall, notwithstanding any other provision of this Agreement, use commercially reasonable efforts to: (i) ensure that the Personal Data cannot be used by the Receiving Party to identify a Data Subject and (ii) not provide the Receiving Party with any additional information (if any), including any key codes or any other mechanism or data, that may enable the Receiving Party to attribute the Personal Data to any identifiable Data Subjects;

 

(b)

has, to the best of its knowledge, complied with all applicable Data Protection Laws from time to time relating to the processing of the Personal Data; and

 

(c)

in the event that the Receiving Party receives a request from a Regulatory Authority in relation to any Personal Data transferred to the Receiving Party by the Disclosing Party, agrees to provide reasonable assistance to the Receiving Party to enable it to respond to the Regulatory Authority’s request which may involve contacting any clinical sites, investigators or other subcontractors of the Disclosing Party and providing additional information, with any and all reasonable costs incurred by the Disclosing Party arising from such support to be borne by the Receiving Party.

 

14.2

Independent Data Controllers. To the extent applicable, the Receiving Party and the Disclosing Party agree that (to the extent that any Personal Data is disclosed to the Receiving Party), for the purposes of Data Protection Law, each of the Receiving Party and the Disclosing Party is an independent data controller.

 

14.3

Fair Processing Notices. The Receiving Party further agrees that the Disclosing Party (to the extent that any Personal Data is disclosed to the Receiving Party) may delay the disclosure of specific Personal Data to the Receiving Party until the Disclosing Party has provided such additional fair processing information to Data Subjects in relation to the Receiving Party’s processing of such Personal Data or taken such other actions as the Disclosing Party reasonably believes to be required by Data Protection Law to enable the Disclosing Party to comply with its obligations thereunder. If a Party reasonably believes that additional fair processing information or actions are required to ensure either Party’s compliance with Data Protection Law from time to time, such Party shall notify the other Party and the Parties shall discuss in good faith what action, if any, is required to be taken provided that the Receiving Party agrees that, as between the Parties, the Disclosing Party shall have the sole right (but not the obligation) to communicate or procure the communication of fair processing information (including updating such fair processing information during the term of this Agreement) to Data Subjects, in a manner and form to be reasonably determined by the Disclosing Party in accordance with Data Protection Law, with any and all reasonable costs incurred by the Disclosing Party arising from such support to be borne by the Receiving Party.

 

14.4

Personal Data Transfers. Other than to countries approved, from time to time, as having equivalent protection for Personal Data as under European Data Protection Laws by the EC, the Receiving Party shall not process such Personal Data outside the EEA unless the Receiving Party complies with the data importer’s obligations set out in the EU Standard Contractual Clauses for transfers from data controllers in the European Union or European Economic Area, to the extent applicable to controllers established outside the European Union or European Economic Area pursuant to EU Commission Decision 2004/915/EC (as amended or replaced from time to time) (the “Controller to Controller Clauses”) which are hereby incorporated into and form part of this Agreement (and for the purposes of Annex B of such Controller to Controller Clauses, the Data Subjects, purpose of transfer, categories of data, recipients and categories of sensitive personal data shall be as set out in Sections 14.5 to 14.10 below).

 

 

14.5

Nature and Purpose of Sharing. The Personal Data is shared, on a controller to controller basis, solely for the purpose of conducting the Study in accordance with the terms of this Agreement and Applicable Laws, including the manufacture and supply of each Compound, and the development, administration and registration of the Combination Therapy. The sharing of the Personal Data is necessary for the purpose of the legitimate interests pursued by the Parties in conducting the Study and developing the Combination Therapy as contemplated by this Agreement.

 

14.6

Categories of Recipients. The Personal Data may only be onward transferred by the Receiving Party as permitted by and on the terms of this Agreement.

 

14.7

Duration of Sharing. As set out in this Agreement.

 

14.8

Types of Personal Data Shared. The Personal Data will include:

 

(a)

identification information, such as name, address, contact information and qualifications, relating to each Party’s personnel and those working on such Party’s behalf in connection with the conduct of the Study and the development of the Combination Therapy by the Parties in connection with this Agreement;

 

(b)

identification information, such as name, address and contact information, relating to each subject participating in the Study, in addition to; and

 

(c)

identification information, such as name, address, contact information and qualifications on healthcare professionals and investigators involved in the Study.

 

14.9

Special Category Personal Data Shared. The Personal Data will include any special categories of Personal Data, including medical records, ethnic or racial background, test results, results of physical examinations, samples, adverse effects and any other health information.

 

14.10

Categories of Data Subjects. The Personal Data will relate to Data Subjects including: (i) each Party’s personnel and those working on such Party’s behalf in connection with the Study; (ii) healthcare professionals and investigators involved in the Study; (iii) Study subjects and patients; and (iv) end users of the Compounds.

 

14.11

Data Minimization. Each Party acknowledges that each Party is under an obligation to ensure that the Personal Data they process and which the Disclosing Party discloses is limited to only that which is necessary for the purposes of the processing, therefore the Disclosing Party shall (to the extent that any Personal Data is disclosed to the Receiving Party), notwithstanding any other provision of this Agreement, use commercially reasonable efforts to transfer only that Personal Data which is required to facilitate the performance of this Agreement. If the Receiving Party reasonably believes that additional Personal Data is required to be disclosed to enable the performance of this Agreement, the Receiving Party shall notify the Disclosing Party and the Parties shall discuss in good faith whether such additional Personal Data will be disclosed by the Disclosing Party, taking into account the Disclosing Party’s obligations under applicable European Data Protection Laws, the potential for the provision of anonymized data in place of the requested Personal Data, and any actions which are required to be taken by either Party in connection with such requested disclosure.

 

 

14.12

Receiving Party Obligations. The Receiving Party shall, and shall cause its officers, employees, agents, attorneys, consultants, advisors and other representatives to:

 

(a)

process any Personal Data in accordance with Data Protection Law and solely for the purposes disclosed and purposes compatible under applicable Data Protection Law with the purposes disclosed to the relevant Data Subjects from time to time or as otherwise permitted by applicable Data Protection Law;

 

(b)

implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, the costs of implementation and the nature, scope, context and purpose of processing and promptly notify the Disclosing Party if any Personal Data is subject to any unauthorized or unlawful access, loss, destruction or damage; and

 

(c)

not further disclose the Personal Data to any Third Party (including, for clarity, any subcontractors) in a manner incompatible with the fair processing information provided to the relevant Data Subjects.

 

14.13

Data Subject Requests. In the event that either Party directly receives a request from a Data Subject for the rectification or erasure of such Personal Data (or any other request regarding Data Subjects exercising rights under any applicable European Data Protection Law) (a “Data Subject Request”), the Party receiving the request shall where appropriate pass on the details of the request to the other Party; and each Party shall provide the other any reasonable assistance as is required for the purposes of responding to the Data Subject Request in accordance with any applicable European Data Protection Law, which may involve contacting clinical sites, investigators or other subcontractors of the disclosing Party and providing additional information.

 

14.14

CCPA. To the extent that the CCPA is applicable to either Party: (i) such Party agrees to comply with all of its obligations under the CCPA; and (ii) in relation to any communication of “personal information” (as defined by the CCPA) from one Party to the other Party pursuant to this Agreement, the Parties agree that no monetary or other valuable consideration is being provided for such personal information and therefore neither Party is “selling” (as defined by the CCPA) personal information to the other Party.

 

15.

CLINICAL DATA OWNERSHIP & USE.

 

15.1

[***].

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

15.2

SpringWorks hereby assigns, and shall cause its Affiliates to so assign, to GSK, without additional compensation, such right, title and interest in and to any Clinical Data as is necessary to fully effect the ownership described in Section 15.1, and agrees to execute all instruments as may be reasonably necessary to effect the same.

 

15.3

Subject to Section 16.4(b), GSK hereby grants, and shall cause its Affiliates to so grant, to SpringWorks the right to use and disclose the Licensed Clinical Data for: (a) the development of the Combination Therapy; (b) to seek approval for or a change or expansion of the label indications for the SpringWorks Compound (individually or in combination with other drugs and/or pharmaceutical agents); (c) subject to Section 4.1, the development, commercialization or other exploitation of the SpringWorks Compound (individually or in combination with other drugs and/or pharmaceutical agents); (d) seeking regulatory approval for use of the SpringWorks Compound (individually or in combination with other drugs and/or pharmaceutical agents); and (e) filing, prosecuting, and enforcing patent applications and patents in accordance with Article 16; provided, however, that the foregoing shall not limit or restrict SpringWorks’ ability to (x) use or disclose the Licensed Clinical Data as may be necessary to comply with Applicable Laws, including as required to respond to regulatory queries, or with SpringWorks’ internal policies and procedures with respect to pharmacovigilance and adverse event reporting; or (y) share with Third Parties or Affiliates safety data where, due to severity, frequency or lack of reversibility, SpringWorks needs to use such safety data with respect to the SpringWorks Compound or the Combination Therapy to ensure patient safety.

 

16.

INTELLECTUAL PROPERTY.

 

16.1

Inventions Owned by GSK. The Parties agree that all rights to (a) GSK Background Intellectual Property and (b) Sub-Study Inventions solely relating to (i) the GSK Compound or (ii) GSK-Related Compound, are in each case the exclusive property of or shall be exclusively controlled by GSK (each such invention described in (i) and (ii) a “GSK Invention”, and together with the GSK Background Intellectual Property, the “GSK IPR”). As between the Parties, GSK shall be entitled to file in its own name relevant patent applications and to own resultant patent rights for all GSK Background Intellectual Property and GSK Inventions. For the avoidance of doubt, any invention generically encompassing a GSK Compound (and not any SpringWorks proprietary compound including the SpringWorks Compound or SpringWorks-Related Compound) within its scope, even where such GSK Compound is not disclosed per se (each a “GSK-Related Invention”), is the exclusive property of GSK. For the avoidance of doubt, and subject to Article 15, any Intellectual Property Rights relating to Clinical Data shall be the exclusive property of or shall be exclusively controlled by GSK, [***].

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

16.2

Inventions Owned by SpringWorks. The Parties agree that all rights to (a) SpringWorks Background Intellectual Property and (b) Sub-Study Inventions relating to (i) the SpringWorks Compound or (ii) a SpringWorks-Related Compound, are in each case the exclusive property of SpringWorks (each such invention described in (i) and (ii) a “SpringWorks Invention”, and together with the SpringWorks Background Intellectual Property, the “SpringWorks IPR”). As between the Parties, SpringWorks shall be entitled to file in its own name relevant patent applications and to own resultant patent rights for all SpringWorks Background Intellectual Property and SpringWorks Inventions. For the avoidance of doubt, any invention generically encompassing a SpringWorks Compound (and not any GSK proprietary compound including the GSK Compound or GSK-Related Compound) within its scope, even where such SpringWorks Compound is not disclosed per se (each a “SpringWorks-Related Invention”), is the exclusive property of SpringWorks.

 

16.3

Each Party hereby assigns, and shall cause its Affiliates to so assign, to the other Party, without additional compensation, such right, title and interest in and to any Sub-Study Inventions as is necessary to fully effect the ownership described in Sections 16.1 and 16.2, and agrees to execute all instruments as may be reasonably necessary to effect the same.

 

16.4

Joint Ownership and Prosecution.

 

(a)

Subject to Sections 16.1, 16.2 and 16.5, all rights to all Sub-Study Inventions relating to, or covering, [***] (GSI) (a “Jointly Owned Sub-Study Invention”) shall be owned jointly by GSK and SpringWorks. Each Party hereby assigns to the other Party a one-half, undivided interest under its right, title and interest in, to and under Jointly Owned Sub-Study Inventions. GSK and SpringWorks shall each be entitled to exploit the Jointly Owned Sub-Study Inventions solely in accordance with this Section 16.4, and without accounting or financial payment to the other Party and without the consent of the other Party. For those countries where a specific license is required for a joint owner of a Jointly Owned Sub-Study Invention to practice such Jointly Owned Sub-Study Invention in such countries, (i) SpringWorks hereby grants to GSK a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up license under SpringWorks’ right, title and interest in and to all Jointly Owned Sub-Study Inventions to use such Sub-Study Inventions subject to and in accordance with the terms and conditions of this Agreement (including Section 16.4(b)), and (ii) GSK hereby grants to SpringWorks a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up license under GSK’s right, title and interest in and to all Jointly Owned Sub-Study Inventions to use such Sub-Study Inventions in accordance with the terms and conditions of this Agreement (including Section 16.4(b)). For the avoidance of doubt, the terms of this Agreement do not provide GSK or SpringWorks with any rights, title or interest to or in or any license to the other Party’s background Intellectual Property Rights except as necessary to conduct the Sub-Study and as expressly set forth in this Article 16.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(b)

Each Party shall have the right to freely exploit each Jointly Owned Sub-Study Invention and the Licensed Clinical Data, both within and outside the scope of the Sub-Study, without accounting to or any other obligation to the other Party; provided, however, that (A) SpringWorks may not exploit the Jointly Owned Sub-Study Invention nor the Licensed Clinical Data, directly or indirectly, to research, develop or commercialize (i) a compound [***] (each such compound a “GSK-Related Compound”) or (ii) [***], and (B) GSK may not exploit the Jointly Owned Sub-Study Invention nor the Licensed Clinical Data, directly or indirectly, to research, develop or commercialize (i) a compound [***] (each such compound a “SpringWorks-Related Compound”) or (ii) [***]. Notwithstanding the foregoing, each Party shall have the right to practice each Jointly Owned Sub-Study Invention and the right to use the Licensed Clinical Data in performing its obligations and exercising its rights under this Agreement. For clarity, nothing in this Section 16.4(b) shall restrict or prevent GSK or SpringWorks from directly or indirectly, researching, developing or commercializing a GSK-Related Compound or SpringWorks-Related Compound, without the use of the Jointly Owned Sub-Study Inventions or the Licensed Clinical Data.

 

(c)

Promptly following the Effective Date, but in any event as soon as practicable after the discovery of a Jointly Owned Sub-Study Invention, patent representatives of each of the Parties shall meet (in person or by telephone) to discuss the patenting strategy for any Jointly Owned Sub-Study Inventions which may arise. In particular, the Parties shall discuss which Party will file a patent application (including any provisional, substitution, divisional, continuation, continuation in part, reissue, renewal, re-examination, extension, supplementary protection certificate and the like) in respect of any Jointly Owned Sub-Study Invention (each, a “Joint Patent Application”), and whether the Parties wish to appoint patent counsel that is mutually acceptable to both Parties, and in which territories such patent applications will be filed. In any event, the Parties shall consult and reasonably cooperate with one another in the preparation, filing, prosecution (including prosecution strategy) and maintenance of such patent application; provided, however, that GSK shall have final say in patenting strategy, and prosecution, of any Joint Patent Application. Costs of filing, prosecuting, and maintaining Joint Patent Applications and resulting patents and any associated expenses shall be divided equally by the Parties (50/50). Neither Party will be obligated for costs, or any portion thereof, for filing, prosecuting, and maintaining Joint Patent Applications and Joint Patents in other jurisdictions without prior agreement by the Parties; provided, however, that in the event that a Party does not agree to share equally the costs for filing, prosecuting, and maintaining a Joint Patent Application in a particular jurisdiction, such Party shall not have any rights to (i) enforce any patents arising from such Joint Patent Application in such jurisdiction (other than in connection with Section 16.4(d)) or (ii) share in any revenues received by the other Party from the enforcement (except for reimbursement of reasonable out-of-pocket costs, including attorneys’ fees, incurred by such Party in connection with Section 16.4(d)) or license of any such patents or Joint Patent Application. In the event that one Party (the “Filing Party”) wishes to file a patent application for a Jointly Owned Sub-Study Invention and the other Party (the “Non-Filing Party”) does not want to file a patent application for such Jointly Owned Sub-Study Invention or does not want to file in a particular country, the Non-Filing Party shall assign its undivided half-interest in such Jointly Owned Sub-Study Invention to the Filing Party and shall execute in a timely manner and at the Filing Party’s reasonable expense a power of attorney and any additional documents (in such country or all countries, as applicable) as may be reasonably necessary to give effect to the assignment and allow the Filing Party to file and prosecute such patent application, and the Non-Filing Party shall cease to have payment obligations or any rights in relation thereto. If a Party (the “Opting- out Party”) wishes to discontinue the prosecution and maintenance of a Joint Patent Application or Joint Patent (in one or more countries), the other Party, at its sole option (the “Continuing Party”), may continue such prosecution and maintenance. In such event, the Opting-out Party shall assign its undivided half-interest in such Joint Patent Application and any Joint Patents issuing therefrom to the Continuing Party, and execute in a timely manner and at the Continuing Party’s reasonable expense a power of attorney and any additional documents (in such country or all countries, as applicable) as may be necessary to give effect to the assignment and allow the Continuing Party to prosecute and maintain such Joint Patent Application or Joint Patent, and the Opting-Out Party shall cease to have payment obligations or any rights in relation thereto.

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(d)

GSK shall have the first right to initiate legal action to enforce all Joint Patents against infringement by any Third Party where such infringement results from the development, promotion or sale of a GSK-Related Compound, but not a SpringWorks-Related Compound, or to defend any declaratory judgment action relating thereto, at its sole expense. In the event that GSK fails to initiate or defend such action within [***] days after being first notified of such infringement, or [***] days before the expiration for filing such action or responding, whichever comes first, SpringWorks shall have the right to do so at its sole expense. Similarly, SpringWorks shall have the first right to initiate legal action to enforce all Joint Patents against infringement or misappropriation by any Third Party where such infringement results from the development, promotion or sale of a SpringWorks-Related Compound, but not a GSK-Related Compound, or to defend any declaratory judgment action relating thereto, at its sole expense. In the event that SpringWorks fails to initiate or defend such action within [***] days after being first notified of such infringement, or [***] days before the expiration for filing such action or responding, whichever comes first, GSK shall have the right to do so at its sole expense. With respect to any infringement resulting from the development, promotion or sale of the Compounds together or any combination of a GSK-Related Compound and a SpringWorks-Related Compound, the Parties shall agree on terms pursuant to which the Parties shall (i) coordinate legal action to enforce all Joint Patents against such infringement and any settlement thereto, (ii) defend any declaratory judgment action relating thereto, and (iii) determine the allocation of the costs and expenses of such litigation.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

(e)

If one Party brings any prosecution or enforcement action or proceeding against a Third Party with respect to any Joint Patent, the second Party agrees to be joined as a party plaintiff where necessary and to give the first Party reasonable assistance and authority to file and prosecute the suit. The costs and expenses of the Party bringing suit under this Section 16.4(e) shall be borne by such Party, and any damages or other monetary awards recovered shall be shared as follows: (i) the amount of such recovery actually received by the Party controlling such action shall be first applied to the out-of-pocket costs of each Party in connection with such action; and then (ii) any remaining proceeds shall be shared by the Parties in proportion based on their relative contributions to the total costs and expenses of the litigation, including any costs and expenses of a Party to enforce any solely- owned patents. A settlement or consent judgment or other voluntary final disposition of a suit under this Section 16.4(e) may not be entered into without the consent of the Party not bringing the suit (such consent not to be unreasonably withheld or delayed). Furthermore, the Party not bringing the suit shall not offer the defendant in such suit any license under the Joint Patent(s) without the consent of the Party bringing the suit.

 

16.5

Mutual Freedom to Operate.

 

(a)

SpringWorks hereby grants to GSK a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up license to (i) any patent owned or controlled by SpringWorks which (A) has a priority claim that is earlier than the initiation of the Sub-Study (i.e., first dosing of the first patient in the Sub-Study) and (B) specifically claims or covers the Combination Therapy (“SpringWorks Background Patents”) and (ii) [***] each in order to practice such Combination Therapy for all purposes, provided, however, that in no event shall GSK have the right to exploit any SpringWorks Background Patents to develop, manufacture or commercialize the SpringWorks Compound or a SpringWorks- Related Invention, either alone or as part of a combination (including the Combination Therapy). This license shall not be transferable or sublicensable to any Third Party except to Affiliates of GSK and Third Parties engaged in developing, manufacturing or marketing GSK Compound for or on behalf of its Affiliates.

 

(b)

GSK hereby grants to SpringWorks a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up license to (i) any patent owned or controlled by GSK which (A) has a priority claim that is earlier than the initiation of the Sub-Study (i.e., first dosing of the first patient in the Sub-Study) and (B) specifically claims or covers the Combination Therapy (“GSK Background Patents”) and (ii) [***] each in order to practice the Combination Therapy for all purposes, provided, however, that in no event shall SpringWorks have the right to exploit any GSK Background Patents to develop, manufacture or commercialize the GSK Compound or a GSK-Related Compound, either alone or as part of a combination (including the Combination Therapy). This license shall not be transferable or sublicensable to any Third Party except to Affiliates of SpringWorks and Third Parties engaged in developing, manufacturing or marketing SpringWorks Compound for or on behalf of its Affiliates.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(c)

Except as expressly provided in Section 16.4(c), and in furtherance and not in limitation of Article 13, each Party agrees to make no patent application based on or comprising the other Party’s Confidential Information and to give no assistance to any Third Party for such application without the other Party’s prior written authorization.

 

(d)

For clarity, the terms of this Agreement do not provide (i) GSK with any rights, title or interest in or any license to the SpringWorks Background Intellectual Property except as necessary to conduct the Sub-Study or as expressly provided under Section 16.5(a), and (ii) SpringWorks with any rights, title or interest in or any license to GSK Background Intellectual Property except as expressly provided under Section 16.5(b).

 

16.6

Reprints. Consistent with applicable copyright and other laws, each Party may use, refer to, and disseminate reprints of scientific, medical and other published articles and materials from journals, conferences and/or symposia relating to the Sub-Study which disclose the name of a Party, provided such use does not constitute an endorsement of any commercial product or service by the other Party.

 

17.

PUBLICATIONS.

 

17.1

GSK will register the Sub-Study with the Clinical Trials Registry located at www.clinicaltrials.gov and is committed to timely publication of the results following Sub-Study Completion, after taking appropriate action to secure Intellectual Property Rights (if any, in accordance with Article 16) arising from the Sub-Study. The publication of the results of the Sub-Study will be in accordance with the Sub-Study Protocol. [***].

 

17.2

GSK shall use reasonable efforts to publish or present scientific papers dealing with the Sub-Study in accordance with accepted scientific practice.

 

17.3

The Parties agree that prior to submission of the results of the Sub-Study for publication or presentation or any other dissemination of results including oral dissemination, the publishing Party shall invite the other to comment on the content of the material to be published or presented according to the following procedure:

 

(a)

At least [***] days prior to submission for publication of any paper, letter or any other publication, or [***]days prior to submission for presentation of any abstract, poster, talk or any other presentation, the publishing Party shall provide to the other Party the full details of the proposed publication or presentation in electronic version (CD-ROMs or email attachment). Upon written request from the other Party, the publishing Party agrees not to submit data for publication/presentation for an additional [***] days in order to allow for actions to be taken to preserve rights for patent protection.

 

(b)

The publishing Party shall give reasonable consideration to any request by the other Party made within the periods mentioned in clause (a) above to modify the publication.

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(c)

The publishing Party shall remove all Confidential Information requested by the other Party before finalizing the publication.

 

(d)

In the event of a disagreement as to content, timing and/or venue or forum for any disclosure, publication or presentation of the Sub-Study results, such dispute shall be referred to the Project Managers (or their respective designees) to be resolved by way of good faith discussions for a period of [***] days following such referral; provided that, the publishing Party may proceed with the disclosure, publication or presentation provided that such disclosure, publication or presentation is consistent with its internal publication guidelines and customary industry practices for the publication of similar data and does not disclose the Confidential Information of the other Party (other than the Licensed Clinical Data). Authorship of any publication shall be determined based on the accepted standards used in peer-reviewed academic journals at the time of the proposed disclosure, publication or presentation.

 

(e)

SpringWorks shall not publish, for any purpose, the results of the Sub-Study without the prior written approval of GSK, which approval shall be obtained in accordance with the procedure set forth in Sections 17.3(a) through 17.3(c) and shall not be unreasonably withheld.

 

17.4

SpringWorks may issue a press release in the form attached hereto as Appendix C provided, however, that SpringWorks shall notify [***] Business Days in advance of such press release.

 

17.5

Each Party agrees to identify the other Party and acknowledge the other Party’s support and contributions in any permitted press release and any other permitted publication or presentation of the results of the Sub-Study.

 

18.

USE OF NAME.

 

18.1

Except as otherwise provided herein, neither Party shall have any right, express or implied, to use in any manner the name or other designation of the other Party or any other trade name, trademark or logo of the other Party for any purpose in connection with the performance of this Agreement.

 

19.

REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.

 

19.1

Each of GSK and SpringWorks represents and warrants to the other that it has the power and authority and the legal right to enter into this Agreement and perform its obligations hereunder.

 

19.2

GSK hereby represents and warrants to SpringWorks that, at the time of Delivery of the GSK Compound, such Compound shall have been Manufactured in compliance with: (a) the Specifications for the GSK Compound; and (b) all Applicable Law, including cGMP and health, safety and environmental protections.

 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

19.3

SpringWorks hereby represents and warrants to GSK that, at the time of Delivery of the SpringWorks Compound, such SpringWorks Compound shall have been Manufactured in compliance with: (a) the Specifications for the SpringWorks Compound; (b) the Clinical Quality Agreement; and (c) all Applicable Law, including cGMP and health, safety and environmental protections.

 

19.4

Each Party represents and warrants to the other Party that, to its knowledge, it is not aware of any pending or threatened litigation (and has not received any communication) that alleges that its activities related to this Agreement have violated, or that by conducting the activities as contemplated in this Agreement it would violate, any of the Intellectual Property Rights of any Third Party (after giving effect to the license grants in this Agreement).

 

19.5

Each Party represents and warrants to the other Party that, to its knowledge, all necessary consents, approvals and authorizations of all regulatory and governmental authorities and other persons required to be obtained by such Party in connection with the performance of its obligations under this Agreement have been obtained or will be obtained prior to such performance.

 

19.6

Each Party represents and warrants to the other Party that it shall comply with all Applicable Law of the country or other jurisdiction, or any court or agency thereof, applicable to the performance of its activities hereunder or any obligation hereunder, including those pertaining to the production and handling of therapeutic drug products, such as those set forth by Regulatory Authorities, as applicable, and the applicable terms of this Agreement in the performance of its obligations hereunder.

 

19.7

Each Party shall comply with its respective obligations under any agreements entered into by it with a Third Party under which it is licensed any Intellectual Property Rights or Confidential Information relating to a Compound (and not to voluntarily terminate same) to the extent necessary for the Sub-Study to be conducted and completed in accordance with the terms of this Agreement and for the other Party to receive the rights and benefits provided to it under this Agreement.

 

19.8

GSK DOES NOT UNDERTAKE THAT THE SUB-STUDY SHALL LEAD TO ANY PARTICULAR RESULT, NOR IS THE SUCCESS OF THE SUB-STUDY GUARANTEED. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY USE THAT THE OTHER PARTY MAY MAKE OF THE LICENSED CLINICAL DATA NOR FOR ADVICE OR INFORMATION GIVEN IN CONNECTION THEREWITH.

 

19.9

EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 19, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, WITH RESPECT TO ITS COMPOUND.

 

 

19.10

Each Party hereby represents and warrants that it has not employed or otherwise used in any capacity and will not employ or otherwise use in any capacity, the services of any person that has been Debarred in performing any portion of the Sub-Study or other activities under this Agreement or the Related Agreements and that this warranty may be relied upon in any applications to a Regulatory Authority. It is understood and agreed that this warranty imposes a continuing obligation on each Party to notify the other in writing immediately if any such Debarment occurs or comes to its attention, and each Party shall, with respect to any person so Debarred, promptly remove such person from performing in any capacity related to the Sub-Study or otherwise related to activities under this Agreement or the Related Agreements.

 

20.

ANTI-CORRUPTION

 

20.1

Each Party agrees that it:

 

(a)

shall comply at all times with Applicable Law;

 

(b)

has not, and covenants that it shall not, in connection with the performance of this Agreement, directly or indirectly make, promise, authorize, ratify or offer to make, or request, receive, or agree to receive or take any act in furtherance of, any payment or transfer of anything of value (i) for the purpose of influencing, inducing or rewarding any act, omission or decision to secure an improper advantage; (ii) for the purpose of improperly assisting it in obtaining or retaining business; or (iii) with the purpose or effect of committing an act of bribery; and

 

(c)

warrants that it has taken reasonable measures to prevent subcontractors, agents or any other Third Parties subject to its control or determining influence from committing any of the acts described in Section 20.1(b), and for the avoidance of doubt, the activities described above shall include facilitating payments which are unofficial or improper and small payments or gifts offered or made to Government Officials to secure or expedite a routine or necessary action.

 

20.2

Except as required by Applicable Law, or in the ordinary course of business, including audits and inspections of SpringWorks facilities by Regulatory Authorities, SpringWorks shall not contact, or otherwise knowingly meet with any Government Official for the purpose of discussing activities arising out of or in connection with this Agreement, without the prior written approval of GSK and, when requested by GSK, only in the presence of a GSK designated representative.

 

20.3

SpringWorks shall inform GSK in writing, if, during the course of this Agreement, it is convicted of or pleads guilty to a criminal offence involving fraud or corruption, or becomes the subject of any government investigation for such offenses, or is listed by any government agency as debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for government programs.

 

 

20.4

SpringWorks represents and warrants that except as disclosed to GSK in writing prior to the commencement of this Agreement: (a) to its knowledge, none of their significant shareholders (>25% shareholding) or senior management have influence over GSK’s business; (b) to its knowledge, no significant shareholders (>25% shareholding), members of senior management team, members of the Board of Directors, or key individuals who will be responsible for the provision of goods / services, are currently or have been in the past two years a Government Official with actual or perceived influence which could affect GSK business; (c) it is not aware of any immediate relatives (e.g. spouse, parents, children or siblings) of the persons listed in the previous subsection (b) having a public or private role which involves making decisions which could affect GSK business or providing services or products to, or on behalf of GSK; (d) it does not have any other interest which directly or indirectly conflicts with its proper and ethical performance of this Agreement; and (e) it shall maintain arm’s length relations with all third parties with which it deals for or on behalf of GSK in performance of this Agreement. SpringWorks shall inform GSK in writing at the earliest possible opportunity of any conflict of interest as described in this Section 20.4 that arises during the performance of this Agreement.

 

20.5

GSK shall have the right once per calendar year during the term of this Agreement to conduct an audit of SpringWorks’ books and records related to this Agreement solely as and to the extent reasonably required to monitor compliance with the terms of Article 20, provided that GSK shall be permitted to conduct more frequent audits to the extent GSK reasonably believes that SpringWorks is not complying with the terms of this Article 20 and further provided that such audits shall be conducted during normal business without unreasonable disruption to SpringWorks business. SpringWorks shall reasonably cooperate with such audit. The audit shall be conducted by an independent professional firm proposed by GSK and acceptable to SpringWorks. Before permitting such firm to have access to SpringWorks’ books and records, SpringWorks may require such firm and its personnel involved in such audit to sign a confidentiality agreement (save that such agreement will not prohibit transmission of information to GSK).

 

20.6

SpringWorks shall ensure that all transactions under the Agreement are properly and accurately recorded in all material respects on its books and records and each document upon which entries such books and records are based is complete and accurate in all material respects. SpringWorks must maintain a system of internal accounting controls reasonably designed to ensure that it maintains no off-the-books accounts.

 

20.7

SpringWorks agrees that in the event that GSK believes that there has been a possible violation of this Article 20, GSK may make full disclosure of such belief and related information at any time and for any reason to any competent government bodies and its agencies, and to whomsoever GSK determines in good faith has a legitimate need to know.

 

20.8

SpringWorks shall provide anti-bribery and anti-corruption training to all personnel, including any relevant subcontractors, at SpringWorks who act on behalf of GSK or interact with Government Officials during the course of any services provided to GSK in connection with this Agreement. SpringWorks shall provide GSK the opportunity to evaluate the training to determine whether it abides by GSK’s standards and shall conduct additional training, as requested by GSK. SpringWorks, upon request by GSK, shall certify in writing that the anti-bribery and anti-corruption training has taken place.

 

20.9

Each Party shall be entitled to terminate this Agreement immediately on written notice to the other Party if such other Party is in breach of this Article 20. The breaching Party shall have no claim against the non-breaching Party for compensation for any loss of whatever nature by virtue of the termination of this Agreement in accordance with this Section 20.9.

 

 

21.

INSURANCE.

 

21.1

Each Party warrants that it maintains a policy or program of insurance or self-insurance of at least $5,000,000 per claim and $5,000,000 in the aggregate. Upon request, a Party shall provide evidence of such insurance. The maintenance of any insurance shall not constitute any limit or restriction on damages available to a Party under this Agreement.

 

22.

INDEMNIFICATION.

 

22.1

Indemnification by GSK. GSK agrees to defend, indemnify and hold harmless SpringWorks, its Affiliates, and its and their employees, directors, subcontractors and agents from and against any loss, damage, reasonable costs and expense (including reasonable legal expenses, including attorneys’ fees and expenses) incurred in connection with any claim, proceeding, or action by a Third Party (a “Liability”) arising out of this Agreement or the Sub-Study to the extent such Liability (a) is directly caused by (i) the negligence or wilful misconduct on the part of GSK (or any of its Affiliates, or its and their employees, directors, subcontractors or agents); or (ii) a breach on the part of GSK of any of its representations and warranties or any other covenants or obligations of GSK under this Agreement; or (b) is determined to be attributable to the GSK Compound.

 

22.2

Indemnification by SpringWorks. SpringWorks agrees to defend, indemnify and hold harmless GSK, its Affiliates, and its and their employees, directors, subcontractors and agents from and against any Liability arising out of this Agreement or the Sub-Study to the extent such Liability (a) is directly caused by (i) the negligence or wilful misconduct on the part of SpringWorks (or any of its Affiliates, or its and their employees, directors, subcontractors or agents); or (ii) a breach on the part of SpringWorks of any of its representations and warranties or any other covenants or obligations of SpringWorks under this Agreement; or (b) is determined to be attributable to the SpringWorks Compound.

 

22.3

Procedure. The obligations of GSK and SpringWorks under this Article 22 are conditioned upon the delivery of written notice to the relevant indemnifying Party of any potential Liability within a reasonable time after the indemnified Party becomes aware of such potential Liability. The indemnifying Party will have the right to assume the defense of any suit or claim related to the Liability if it has assumed responsibility for the suit or claim in writing and the indemnified Party shall provide reasonable assistance to the indemnifying Party, at the indemnifying Party’s expense, in the investigation of, preparation for and defense of any such suit or claim. The indemnified Party may participate in (but not control) the defense thereof at its sole cost and expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof. The Party controlling the defense shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the other Party, which shall not be unreasonably withheld. The controlling Party, but solely to the extent it is also the indemnifying Party, shall not agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the non-controlling Party from all liability with respect thereto or that imposes any liability or obligation on the non-controlling Party without the prior written consent of the non-controlling Party.

 

 

22.4

Notwithstanding the provisions of Section 22.3, in the event that the Parties cannot agree as to the application of Sections 22.1 or 22.2 regarding any particular Liability, the Parties may conduct separate defenses of any suit or claim related to such Liability. Each Party further reserves the right to claim indemnity from the other in accordance with Sections 22.1 or 22.2, as applicable, upon resolution of the underlying claim.

 

22.5

Sub-Study Subjects. GSK shall not offer compensation on behalf of SpringWorks to any Sub-Study subject or bind SpringWorks to any indemnification obligations in favor of any Sub-Study subject.

 

23.

LIMITATION OF LIABILITY

 

23.1

OTHER THAN WITH RESPECT TO THE OBLIGATIONS OF EITHER PARTY UNDER SECTIONS 4 (EXCLUSIVITY) AND 16.4(B) (INTELLECTUAL PROPERTY) AND ARTICLES 13 (CONFIDENTIALITY) AND 14 (DATA PROTECTION) AND/OR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER: (A) IN NO EVENT SHALL EITHER PARTY (OR ANY OF ITS AFFILIATES, SUBLICENSEES OR SUBCONTRACTORS) BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE OR CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING LOST PROFITS OR DAMAGES FOR LOST OPPORTUNITIES), WHETHER IN CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR RELATING TO (x) THE MANUFACTURE, USE OR SALE OF ANY COMPOUND SUPPLIED HEREUNDER OR (y) ANY BREACH OF OR FAILURE TO PERFORM ANY OF THE PROVISIONS OF THIS AGREEMENT OR ANY REPRESENTATION OR WARRANTY CONTAINED IN OR MADE PURSUANT TO THIS AGREEMENT; AND [***]. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY EXCLUDES OR LIMITS ITS LIABILITY FOR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THAT OF ITS AFFILIATES, AND ITS AND THEIR EMPLOYEES, DIRECTORS, SUBCONTRACTORS AND AGENTS, WILFUL MISCONDUCT, INTENTIONAL DEFAULT OR ANY LOSSES TO THE EXTENT NOT CAPABLE OF BEING EXCLUDED OR LIMITED BY LAW.

 

24.

TERM AND TERMINATION.

 

24.1

The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until Sub-Study Completion, delivery of all Licensed Clinical Data and the Final Sub-Study Report, and the completion of any analyses contemplated by the Sub-Study Protocol or otherwise agreed by the Parties to be conducted under this Agreement, unless earlier terminated by either Party pursuant to this Article 24 (the “Term”).

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

24.2

Either Party may immediately terminate this Agreement on notice if the other Party commits a material breach of this Agreement, and such material breach is either not capable of cure or is not cured within [***] days after receipt of written notice thereof from the non-breaching Party.

 

24.3

Either Party may terminate this Agreement if, at any time, the other Party shall file in any court or agency pursuant to any statute or regulation of any state, country or jurisdiction, a petition in bankruptcy or insolvency or for reorganization or for an arrangement or for the appointment of a receiver or trustee of such other Party or of such other Party’s assets, or if the other Party proposes a written agreement of composition or extension of its debts, or if the other Party shall be served with an involuntary petition against it, filed in any insolvency proceeding, and such petition shall not be dismissed or stayed within [***] days after the filing thereof, or if the other Party will propose or be a party to any dissolution or liquidation, or if the other Party shall make an assignment for the benefit of its creditors.

 

24.4

Termination due to Regulatory Action, Material Safety Issue or Clinical Hold.

 

(a)

Either Party may terminate this Agreement (in whole or in part on a country-by-country basis) immediately upon written notice to the other Party in the event that any Regulatory Authority takes any action, or raises any objection, that prevents the terminating Party from supplying its Compound for purposes of the Sub-Study. Additionally, either Party shall have the right to terminate this Agreement immediately (in whole or in part) upon written notice to the other Party in the event that it determines in its sole discretion to discontinue development, marketing or sale of its Compound for medical, scientific or legal reasons.

 

(b)

Either Party may terminate this Agreement (in whole or in part on a country-by-country basis) immediately (after meeting and discussing with the other Party in good faith) upon written notice to the other Party if the terminating Party determines in good faith, based on a review of the Licensed Clinical Data or the Clinical Data, as applicable, or other available information, that termination is necessary to protect the safety, health or welfare of subjects enrolled in the Sub-Study due to the existence of a Material Safety Issue. In the event of a termination due to a Material Safety Issue, prior to provision of notice by the terminating Party, the Parties shall, to the extent practicable, meet and discuss in good faith the safety concerns raised by the terminating Party, but should any dispute arise in such discussion, the dispute resolution processes set forth in Article 30 shall not apply and the terminating Party shall have the right to issue such notice and such termination shall take effect.

 

(c)

If a Clinical Hold with respect to either the GSK Compound or the SpringWorks Compound should arise at any time during the Term, the Parties will meet and discuss the basis for the Clinical Hold, how long the Clinical Hold is expected to last, and how the issue that caused the Clinical Hold might be addressed. If, after ninety (90) days of discussions following the Clinical Hold, either Party reasonably concludes that the issue adversely impacts the Sub-Study and is not solvable or that unacceptable and material additional costs/delays have been and/or will continue to be incurred in the conduct of the Sub-Study, then such Party may immediately terminate this Agreement.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

25.

EFFECT OF EXPIRY OR TERMINATION.

 

25.1

The provisions of Sections 7.2 (Right of Reference) and 12.16 (VAT) and Articles 1 (Definitions), 3 (Costs of Sub-Study), 5 (Follow On Studies), 13 (Confidentiality), 14 (Data Protection), 15 (Clinical Data Ownership & Use), 16 (Intellectual Property), 17 (Publications), 18 (Use of Name), 19 (Representations and Warranties; Disclaimers), 22 (Indemnification), 23 (Limitation of Liability), 25 (Effect of Expiry or Termination), 26 (Force Majeure), 27 (Entire Agreement; Modification), 28 (Assignment), 29 (Severability), 30 (Governing Law and Dispute Resolution and Jurisdiction), 31 (Notices), 32 (No Waiver), 33 (Further Assurances), 34 (No Benefit to Third Parties) 35 (Relationship of the Parties) and 37 (Construction) shall survive the expiration or termination of this Agreement.

 

25.2

Termination or expiration of this Agreement shall be without prejudice to any claim or right of action of either Party against the other Party for any prior breach of this Agreement.

 

25.3

Upon termination or expiration of this Agreement:

 

(a)

GSK shall, at SpringWorks’ sole discretion, promptly either return or destroy all unused SpringWorks Compound pursuant to SpringWorks’ instructions, subject to GSK’s rights under Section 25.3(c). If SpringWorks requests that GSK destroy the unused SpringWorks Compound, GSK shall provide written certification of such destruction and written notification of the quantity of SpringWorks Compound thus destroyed;

 

(b)

the receiving Party shall, upon request by the other Party, immediately destroy or return all of the other Party’s Confidential Information relating solely to its Compound (but not to the Combination Therapy or the GSK Compound) in its possession; provided that the receiving Party shall be entitled to retain one (1) copy of such Confidential Information solely for record-keeping purposes and shall not be required to destroy any Confidential Information required, or reasonably necessary, to be retained for any clinical trial activities that continue after expiration or termination of this Agreement, or off-site computer files created during automatic system back-up which are subsequently securely stored by the receiving Party;

 

(c)

the Parties shall use reasonable efforts to wind down activities under this Agreement in a reasonable manner and avoid incurring any additional expenditures or non-cancellable obligations, provided that (i) in the event of termination under Section 24.4, the Parties shall work together in good faith to ensure that each Party is able to comply with any ongoing regulatory or other obligations (including regulatory reporting obligations, clinical site and investigator communications) under Applicable Law relating to its Compound or the Combination Therapy, as the case may be, and (ii) GSK may continue to dose subjects enrolled in the Sub-Study through completion of the Sub-Study Protocol if dosing is required by the applicable Regulatory Authority(ies), ethical approvals, the Platform Study Protocol, Applicable Law and/or GSK’s internal policies, in which case SpringWorks shall continue to supply SpringWorks Compound in accordance with Article 12 until such dosing is complete.

 

 

26.

FORCE MAJEURE.

 

26.1

If in the performance of this Agreement, one of the Parties is prevented, hindered or delayed by reason of any cause beyond such Party’s reasonable control (e.g., war, riots, fire, strike, governmental laws), such Party shall be excused from such performance to the extent that it is necessarily prevented, hindered or delayed (“Force Majeure”). The non-performing Party will use reasonable efforts to notify the other Party of such Force Majeure within [***] after such occurrence by giving written notice to the other Party stating the nature of the event, its anticipated duration, and any action being taken to avoid or minimize its effect. The suspension of performance will be of no greater scope and no longer duration than is necessary and the non-performing Party will use commercially reasonable efforts to remedy its inability to perform. If the period of any resulting delay or hindrance to such Party’s performance of its obligations, or non-performance thereof, continues for [***], the other Party may terminate this Agreement immediately upon written notice to the non-performing Party.

 

27.

ENTIRE AGREEMENT; MODIFICATION.

 

27.1

This Agreement, together with the Clinical Quality Agreement and the Pharmacovigilance Agreement, constitutes the sole, full, final, complete and exclusive agreement by and between the Parties with respect to the subject matter of this Agreement, and all prior agreements, understandings, promises and representations, whether written or oral, with respect thereto are superseded by this Agreement. No amendments, changes, additions, deletions or modifications to or of this Agreement shall be valid unless reduced to writing and duly executed by authorized representatives of the Parties hereto.

 

28.

ASSIGNMENT.

 

28.1

Neither Party shall assign or transfer its rights or obligations under this Agreement in part or in whole without the prior written consent of the other Party; provided, however, that (a) either Party may assign this Agreement, without the other Party’s consent, to (i) one or more of its Affiliates, (ii) a Third Party that merges with, consolidates with or acquires substantially all of the assets or voting control of the assigning Party or (iii) to a Third Party that acquires all the rights of the assigning Party to the GSK Compound, in the case of GSK, or the SpringWorks Compound, in the case of SpringWorks; and (b) any and all rights and obligations of either Party may be exercised or performed by its Affiliates, provided that such Affiliates agree to be bound by this Agreement. If this Agreement is assigned or transferred to an Affiliate, the assigning/transferring Party shall remain jointly and severally liable with the assignee/transferee Affiliate for the assigned rights and obligations. Any assignment or attempted assignment by any Party in violation of the terms of this Article 28 shall be null and void and of no legal effect.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

29.

SEVERABILITY.

 

29.1

If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision. The illegal, invalid or unenforceable provision (or such part of such provision) shall be severed from this Agreement, and the Parties shall negotiate in good faith to agree upon a reasonable provision that is legal, valid and enforceable to carry out as nearly as practicable the original intention of the entire Agreement.

 

30.

GOVERNING LAW, DISPUTE RESOLUTION AND JURISDICTION.

 

30.1

Governing Law. This Agreement shall be governed and construed in accordance with the substantive laws of the State of New York, without giving effect to its choice of law principles.

 

30.2

Dispute Resolution and Jurisdiction.

 

(a)

Subject to the other terms of this Agreement, the Parties agree that any dispute arising out of or relating to this Agreement (each, a “Dispute”) shall be resolved solely by means of the procedures set forth in this Section 30.2 prior to a Party exercising any other remedy permitted by this Agreement (other than seeking injunctive relief), and that such procedures constitute legally binding obligations that are an essential provision of this Agreement. If either Party fails to observe the procedures of this Section 30.2, the other Party may bring an action for specific performance of these procedures in any court of competent jurisdiction.

 

(b)

Negotiation. The Parties shall endeavor to resolve in good faith any Disputes arising from or relating to the subject matter of this Agreement, failing which either Party may submit such Dispute for resolution to appropriate senior management of SpringWorks and GSK. If such senior management representatives are unable to resolve such Dispute within [***] days after such conflict is submitted to them for resolution, either Party may refer the Dispute for mediation as set forth in Section 30.2(c).

 

(c)

Mediation. If the Parties are unable to resolve a Dispute arising out of or relating to this Agreement through the negotiation procedures set forth in Section 30.2(b), then at the end of such [***] day period, the Parties agree that they shall submit such Dispute for confidential mediation under the CPR Mediation Procedure then in effect at the start of mediation (the “CPR”). Unless otherwise agreed, the Parties shall select a mediator from the CPR panel of mediators. If the Parties cannot agree, they will defer to the CPR to select a mediator. The cost of the mediator shall be borne equally by the Parties. Any Dispute not resolved within [***] days (or within such other time period as may be agreed to by the Parties in writing) after appointment of a mediator shall be finally resolved by arbitration pursuant to Section 30.2(b).

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(d)

Arbitration. If the Parties are unable to resolve a Dispute arising out of or relating to this Agreement through the negotiation procedures set forth in Section 30.2(b) and the mediation procedures set forth in Section 30.2(c) within the timeframes set forth in such Sections, the Parties agree that they shall submit such Dispute for final settlement via binding arbitration. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of the arbitration, except as they may be modified herein or by mutual agreement of the Parties, but need not be under the auspices of the American Arbitration Association, and heard before a single arbitrator as selected in accordance with the Commercial Arbitration Rules. Such arbitration will be held in New York, New York and shall be conducted in English. Each Party shall be responsible for its own expenses in connection therewith; provided that, upon the rendering of the arbitration award, the non-prevailing party shall reimburse the prevailing Party for the arbitration fees. The Parties hereby submit to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York for the limited purpose of enforcing this Agreement to arbitrate. The arbitration award shall be final and binding, and judgment over the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant Party and its assets.

 

(e)

Confidentiality. The arbitration proceeding shall be confidential and the arbitrators shall issue appropriate protective orders to safeguard each Party’s Confidential Information. Except as required by Applicable Law, no Party shall make (or instruct the arbitrators to make) any public announcement with respect to the proceedings or decision of the arbitrators without prior written consent of the other Party. The existence of any dispute submitted to arbitration, and any award shall be kept in confidence by the Parties and the arbitrators, except as required in connection with the enforcement of such award or as otherwise required by Applicable Law. Notwithstanding the foregoing, each Party shall have the right to disclose information regarding the arbitration proceeding to the same extent as it may disclose Confidential Information of the other Party under Article 13 above.

 

(f)

Patent Disputes. Notwithstanding the other provisions of this Section 30.2, any dispute, controversy or claim relating to the validity, scope, enforceability, inventorship, or ownership of intellectual property rights shall be submitted to a court of competent jurisdiction in the country in which such intellectual property rights were granted or arose.

 

30.3

Injunctive or Other Equitable Relief. Nothing contained in this Agreement shall deny either Party the right to seek injunctive or other equitable relief or interim or provisional relief from any court of competent jurisdiction, including a temporary restraining order, preliminary injunction or other interim equitable relief, concerning a dispute either prior to or during any arbitration if necessary in order to prevent irreparable harm, loss or damage, protect the interests of such Party or to preserve the status quo pending the arbitration proceeding, and such an action may be filed or maintained notwithstanding any ongoing discussions between the Parties. For the avoidance of doubt, the other Party shall have the right to seek injunctive or other equitable relief precluding the other Party from continuing its activities related to the Sub-Study without waiting for the conclusion of the dispute resolution procedures set out in this Article 30 if (a) either Party (i) discloses Confidential Information of the other Party other than as permitted under this Agreement, (ii) uses the other Party’s Compound or Intellectual Property Rights in any manner other than as expressly permitted by this Agreement, or (iii) otherwise is in material breach of this Agreement and such material breach could cause immediate harm to the value of the GSK Compound (if SpringWorks is in material breach) or the SpringWorks Compound (if GSK is in material breach), or (b) if SpringWorks is in breach of Section 4.1.

 

 

31.

NOTICES.

 

31.1

All notices or other communications that are required or permitted hereunder shall be in writing and delivered by internationally-recognized overnight courier addressed as follows:

 

If to GSK, to:

 

GlaxoSmithKline
1250 South Collegeville Road, Mail Stop UP 4110
Collegeville, PA 19426
Attn: Head of Business Development, Oncology

 

With a copy to

 

GlaxoSmithKline
980 Great West Road
Brentford, Middlesex TW8 9GS
United Kingdom
Attn: VP and Head of Legal Business Development & Corporate

 

If to SpringWorks, to:

 

SpringWorks Therapeutics
100 Washington Blvd. 5^th Floor
Stamford, CT 06902
Attention: Chief Business Officer

 

With copies to:

 

SpringWorks Therapeutics
100 Washington Blvd. 5^th Floor
Stamford, CT 06902
Attention: General Counsel

 

Any such communication shall be deemed to have been received when delivered to the recipient, if sent before 5.00 pm on a Business Day in the recipient’s jurisdiction, or at 09.00 am on the next Business Day in the recipient’s jurisdiction, if sent after 5.00 pm or not on a Business Day. It is understood and agreed that this Article 31 is not intended to govern the day-to-day business communications necessary between the Parties in performing their duties, in due course, under the terms of this Agreement.

 

 

32.

NO WAIVER.

 

32.1

It is agreed that no waiver by a Party of any breach or default of any of the covenants or agreements set forth herein shall be deemed a waiver as to any subsequent and/or similar breach or default.

 

33.

FURTHER ASSURANCE.

 

33.1

Each Party shall duly execute and deliver, or cause to be duly executed and delivered, such further instruments and do and cause to be done such further acts and things, including the filing of such assignments, agreements, documents and instruments, as may be necessary or as the other Party may reasonably request in order to perfect any license, assignment or other transfer or any properties or rights under, or pursuant, to this Agreement.

 

34.

NO BENEFIT TO THIRD PARTIES.

 

34.1

The representations, warranties and agreements set forth in this Agreement for the sole benefit of the Parties and their successors and permitted assigns, and they shall not be construed as conferring any rights on any other Parties.

 

35.

RELATIONSHIP OF THE PARTIES.

 

35.1

The relationship between the Parties is and shall be that of independent contractors, and does not and shall not constitute a partnership, joint venture, agency or fiduciary relationship. Neither Party shall have the authority to make any statements, representations or commitments of any kind, or take any actions, for or on behalf of the other Party, except with the prior written consent of the other Party to do so. All persons employed by a Party will be the employees of such Party and not of the other Party and all costs and obligations incurred by reason of any such employment shall be for the account and expense of such Party.

 

36.

COUNTERPARTS AND DUE EXECUTION.

 

36.1

This Agreement and any amendment may be executed in two (2) or more counterparts (including by way of electronic transmission (e.g. PDF)), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, notwithstanding any electronic transmission, storage and printing of copies of this Agreement from computers or printers and such signatures shall be deemed to bind each Party hereto as if they were original signatures. When executed by the Parties, this Agreement shall constitute an original instrument, notwithstanding any electronic transmission, storage and printing of copies of this Agreement from computers or printers. For clarity, signatures transmitted via PDF shall be treated as original signatures.

 

 

37.

CONSTRUCTION.

 

37.1

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 applicable to all genders, the word “or” is used in the inclusive sense (and/or), and the words “will” and “shall” are synonymous to indicate an obligation. Whenever this Agreement refers to a particular statute or regulation, such reference shall include all rules and regulations promulgated thereunder and any successor statute, rules or regulations then in effect, in each case including the then-current amendments thereto. Whenever this Agreement refers to a number of days, unless otherwise specified, such number refers to calendar days. The captions of this Agreement are for convenience of reference only and in no way, define, describe, extend or limit the scope or intent of this Agreement or the intent of any provision contained in this Agreement. The term “including” as used herein shall be deemed to be followed by the phrase “without limitation” or like expression. The term “will” as used herein means shall. References to “Article,” “Section” or “Appendix” are references to the numbered sections of this Agreement and the appendices attached to this Agreement, unless expressly stated otherwise. Except where the context otherwise requires, references to this “Agreement” shall include the appendices attached to this Agreement. The language of this Agreement shall be deemed to be the language mutually chosen by the Parties and no rule of strict construction will be applied against either Party hereto.

 

[Signature page follows.]

 

 

IN WITNESS WHEREOF, the respective representatives of the Parties have executed this Agreement as of the Effective Date.

 

GLAXOSMITHKLINE LLC
/s/ John Cantello
Signature
John Cantello
Name
VP Business Development
Title

 

[SIGNATURE PAGE TO CTCSA]

 

 

SPRINGWORKS THERAPEUTICS, INC.

 

/s/ Saqib Islam
Signature
Saqib Islam
Name
Chief Executive Officer
Title
June 25, 2019
Date

 

[SIGNATURE PAGE TO CTCSA]

 

 

Appendix A

 

SUB-STUDY PROTOCOL SUMMARY

 

Appendix A

[***] 

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

  

 

Appendix B

 

SUPPLY OF COMPOUND

 

Schedule of Deliveries for SpringWorks Compound

 

Delivery Date	Quantity of Bottles1
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
Total	[***]

 

Delivery Date2	Quantity of Bottles
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]

 

 

¹ [***].

 

² Delivery Dates for, and Quantities of, SpringWorks Compound are estimates only. Delivery Dates and Quantities may change based on Sub-Study requirements and as agreed by the Parties in accordance with this Agreement.

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Schedule I

 

[***]

 

[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

Appendix C

 

PRESS RELEASE

 

SpringWorks Therapeutics Announces Global Clinical Collaboration with GlaxoSmithKline to Evaluate Nirogacestat in Combination with Belantamab Mafodotin in Patients with Relapsed or Refractory Multiple Myeloma

 

STAMFORD, Conn - June XX, 2019 - SpringWorks Therapeutics, Inc., a clinical-stage biopharmaceutical company focused on developing life-changing medicines for patients with severe rare diseases and cancer, today announced that the company has entered into a clinical trial collaboration agreement with GlaxoSmithKline to evaluate SpringWorks Therapeutics’ investigational gamma secretase inhibitor (GSI), nirogacestat, in combination with GlaxoSmithKline’s investigational anti-B-cell maturation antigen (BCMA) antibody-drug conjugate (ADC), belantamab mafodotin (formerly GSK2857916), in patients with relapsed or refractory multiple myeloma.

 

Gamma secretase is an enzyme that cleaves multiple transmembrane proteins, including BCMA. As evidenced in publications and preclinical experiments, treatment with a GSI, including nirogacestat, can increase BCMA cell surface expression levels on multiple myeloma cells¹, potentially improving the activity of BCMA-targeted therapies, including BCMA ADCs.

 

“While significant advances have been made in treating multiple myeloma over the past decade, a significant unmet need remains for patients who have relapsed or are refractory to available treatments,” said Saqib Islam, Chief Executive Officer of SpringWorks Therapeutics. “We are delighted to enter into this agreement with GlaxoSmithKline, who also invested in our recent Series B financing, and we look forward to exploring the potential benefit of nirogacestat and belantamab mafodotin for multiple myeloma patients. With this collaboration, we are pleased to further expand on our strategy in building our targeted oncology portfolio with another industry leader.”

 

Under the terms of the agreement, GlaxoSmithKline will sponsor and conduct the adaptive Phase 1b study to evaluate the safety, tolerability and preliminary efficacy of the combination, and will assume all development costs associated with the study. GlaxoSmithKline and SpringWorks Therapeutics will also form a joint development committee to manage the clinical study.

 

About Nirogacestat

 

Nirogacestat is an investigational, oral, selective, small molecule gamma-secretase inhibitor in Phase 3 clinical development for desmoid tumors, which are rare and often debilitating and disfiguring soft-tissue tumors. Gamma secretase cleaves multiple transmembrane protein complexes, including Notch, which is believed to play a role in activating pathways that contribute to desmoid tumor growth. In June 2018, the FDA granted Orphan Drug designation for nirogacestat for the treatment of desmoid tumors, and in November 2018, the FDA granted Fast Track designation for nirogacestat for the treatment of adult patients with progressive, unresectable, recurrent or refractory desmoid tumors or deep fibromatosis.

 

 

In addition, gamma secretase has been shown to directly cleave membrane-bound BCMA, resulting in the release of the BCMA extracellular domain, or ECD, from the cell surface. By inhibiting gamma secretase, membrane-bound BCMA can be preserved, increasing target density while reducing levels of soluble BCMA ECD, which may serve as decoy receptors for BCMA- directed therapies.² Nirogacestat’s ability to enhance the activity of BCMA-directed therapies has been observed in preclinical models of multiple myeloma.

 

About belantamab mafodotin (GSK2857916)

 

Belantamab mafodotin is an investigational anti-B-cell maturation antigen (BCMA) antibody-drug conjugate in Phase 2 clinical development for patients with relapsed/refractory multiple myeloma and other advanced hematologic malignancies expressing BCMA.

 

In 2017, belantamab mafodotin was awarded Breakthrough Therapy designation from the U.S. Food and Drug Administration and PRIME designation from the European Medicines Agency; these designations are intended to facilitate development of investigational medicines that have shown clinical promise for conditions where there is significant unmet need.

 

About SpringWorks Therapeutics

 

At SpringWorks Therapeutics, a clinical-stage biopharmaceutical company, we are driven to develop life-changing medicines for patients with severe rare diseases and cancer. Since our launch in 2017, we have worked to identify and advance promising science, beginning with our licensed clinical therapies from Pfizer Inc. We pioneer efficient pathways for drug development, leveraging shared-value partnerships with patient advocacy groups, innovators in industry and academia, and investors so that together, we can unlock the potential of science and bring new therapies to underserved patients. Nirogacestat, our gamma secretase inhibitor for the treatment of desmoid tumors is currently in a Phase 3 clinical trial, and SpringWorks Therapeutics expects to initiate a Phase 2b study of PD-0325901, our MEK 1/2 inhibitor for neurofibromatosis type 1 patients with plexiform neurofibromas, in the third quarter of 2019. PD-0325901 also holds promise as the backbone for combination therapies to treat metastatic solid tumors. At SpringWorks, we ignite the power of promising science to unleash new possibilities for patients. For more information, please visit www.springworkstx.com.

 

Follow SpringWorks Therapeutics on social media: @SpringWorksTx and LinkedIn.

 

References

 

¹ Laurent S, Hoffmann F, Kuhn P, Cheng Q, Chu Y, Schmidt-Supprian M, Hauck S, Schuh E, Krumbholz M, Rubsamen H, Wanngren J, Khademi M, Olsson T, Alexander T, Hiepe F, Pfister H, Weber F, Jenne D, Wekerle H, Hohlfeld R, Lichtenthaler S, & Meinl E, Gamma-secretase directly sheds the survival receptor BCMA from plasma cells, Nature Communications (2015).

 

² Chen H, Li M, Xu N, Ng N, Sanchez E, Soof CM, Patil S, Udd K, Bujarski S, Cao J, Hekmati T, Ghermezi M, Zhou M, Wang EY, Tanenbaum EJ, Zahab B, Schlossberg R, Yashar MA, Wang CS, Tang GY, Spektor TM, Berenson JR, Serum B- cell maturation antigen (BCMA) reduces binding of anti-BCMA antibody to multiple myeloma cells, Leukemia Research (2019), https://doi.org/10.1016/j.leukres.2019.04.008

 

Contact:
Kim Diamond
Vice President, Communications and Investor Relations
Phone: 646-661-1255
Email: kdiamond@springworkstx.com

 

 

 

Exhibit 10.12

 

ASSIGNMENT AND ASSUMPTION OF LEASE

 

THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this “Agreement”), effective as of the 10^th day of October, 2018 (the “Effective Date”), by and between STRUCTURED PORTFOLIO MANAGEMENT, L.L.C., a Delaware limited liability company having an address at Two Harbor Point Square, 100 Washington Boulevard, Stamford, Connecticut 06902 (“Assignor”), and SPRINGWORKS THERAPEUTICS OPERATING COMPANY PBC, a Delaware public benefit corporation having an address at 575 5^th Avenue, New York, New York 10017 (“Assignee”).

 

WITNESSETH:

 

WHEREAS, Assignor is the tenant under that certain Lease dated December 1, 2011, as amended by that certain First Lease Modification Agreement dated as of December 1, 2012 (collectively, “the Lease”) by and between Two Harbor Point Square, LLC, as landlord (“Landlord”) and Assignor, as tenant, which Lease demises certain premises (the “Premises”) consisting of 23,919 rentable square feet and constituting the entire fifth (5^th) floor in the building (the “Building”) commonly known as Two Harbor Point Square and located at 100 Washington Boulevard, Stamford, Connecticut, as more particularly described in the Lease; and

 

WHEREAS, Assignor desires to assign unto Assignee all of Assignor's right, title and interest as tenant in, to and under the Lease, and Assignee desires to succeed to the interest of Assignor and to assume the obligations of Assignor hereafter arising under the Lease.

 

NOW THEREFORE, in consideration of One ($1.00) Dollar and other good and valuable consideration paid in connection herewith, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.             Assignment. Assignor hereby assigns, conveys and transfers unto Assignee all of Assignor’s right, title and interest as tenant in, to and under the Lease from and after the Effective Date.

 

2.            Assumption. Assignee hereby assumes performance of all of the terms, covenants, conditions and obligations of the tenant under the Lease arising or accruing from and after the Effective Date, and agrees to pay the rent and, without limitation, any other charges reserved by or provided for in the Lease, and Assignee will perform all of the terms, covenants and conditions of the Lease from and after the Effective Date, all with the same force and effect as if Assignee had signed the Lease originally as the tenant named therein.

 

3.             Intentionally Omitted.

 

4.             Consideration Payment. In consideration for the transactions contemplated in this Agreement, including without limitation, the assumption of the Lease and the SNDA (as hereinafter defined) by Assignee, the payment of the Consideration Payment (as hereinafter defined), the sale of the Furniture (as hereinafter defined), the release of Assignor by Landlord and the Security Deposit Advance (as hereinafter defined) (collectively, the “Transactions”), Assignor shall pay to Assignee on the Effective Date One Million Five Hundred and No/100

 

 

Dollars ($1,500,000.00) (the “Consideration Payment”) by official bank check (Assignor and Assignee hereby acknowledging and agreeing that the Transactions should be considered a unified whole and that Assignor would not enter into this Agreement without each and every element of the Transactions being a part thereof).

 

5.             Security Deposit. Assignor and Assignee acknowledge and agree that the $500,000.00 cash security deposit (the “Security Deposit”) currently held by Landlord under the Lease shall not be assigned in connection with this Agreement; provided, however, pursuant to the request of Landlord, simultaneously herewith on the Effective Date, (i) Landlord shall return the Security Deposit directly to Assignor by official bank check and (ii) Assignee shall replace Assignor’s existing Security Deposit under the Lease by providing to Landlord a letter of credit from Silicon Valley Bank in the amount of $500,000.00 in the approved form attached hereto as Exhibit C (the “Letter of Credit”), which Letter of Credit shall be held by Landlord in accordance with Article 34 of the Lease.

 

6.             Condition of Premises; Furniture. Assignor and Assignee acknowledge and agree Assignor shall deliver possession of the Premises to Assignee on the Effective Date in its ‘as-is” condition (except that all mechanical systems in the Premises shall be in working order), vacant and broom clean with the furniture and personal property owned by Assignor and listed on Exhibit A attached hereto (the “Furniture”) in the Premises. Simultaneously herewith on the Effective Date, in consideration for the Transactions, Assignor shall sell, and Assignee shall purchase, the Furniture in its then “as-is” condition pursuant to a Bill of Sale in the form attached hereto as Exhibit B (the “Bill of Sale”). Assignor and Assignee hereby agree to execute and deliver the Bill of Sale simultaneously herewith on the Effective Date.

 

7.            Assignor Representations and Warranties. Assignor hereby represents and warrants to Assignee on the Effective Date as follows:

 

(a)

Assignor is not insolvent. As of the Effective Date, the fair value of Assignor’s assets are greater than the fair value of its liabilities, including any contingent liabilities, and as a result of the Transactions, Assignor will not become insolvent. Assignor currently pays its debts as they become due and as a result of the Transactions, Assignor will not have unreasonably small capital to engage in the business in which it is engaged (or any business it will be engaged in);

(b)

Assignor has no intention of (i) filing for bankruptcy, (ii) having a receiver appointed, (iii) making an assignment for the benefit of creditors and/or (iv) filing any other similar insolvency proceeding under state or Federal law (collectively, an “Insolvency Proceeding”);

(c)

To the best of Assignor’s knowledge, no creditor of Assignor has filed, or is threatening or planning to file, an Insolvency Proceeding with respect to Assignor;

(d)

The consideration given by Assignee to Assignor in the Transactions constitutes reasonably equivalent value and fair consideration as those terms are used under 11 U.S.C. § 548, CT Gen. Stat. § 52-552 et. seq. and other similar laws (the “Fraudulent Conveyance Laws”). The Transactions, or any of them individually, do not, and will not, constitute a fraudulent transfer or any act with similar consequences under the Fraudulent Conveyance Laws. The Transactions do not, and will not, give rise to any

 

 

right of any creditor of Assignor to bring any avoidance claim against the assets of Assignor transferred under this Agreement or to bring any direct claim against Assignee under the Fraudulent Conveyance Laws, or any other state or federal law;

(e)

Assignor and Assignee are unrelated third parties who have negotiated a fair market value “arms-length” transaction;

(f)

Assignor is not transferring any assets under this Agreement with the intent to hinder, delay or defraud any of its creditors.

(g)

There is no actual litigation pending, and to the best knowledge of Assignor, no threatened litigation, related in any way to Assignor and/or Assignor’s business;

(h)

Attached hereto as Exhibit D is a true, correct and complete copy of the Lease;

(i)

No notice has been received by Assignor of any default by Assignor under the Lease;

(j)

To Assignor’s knowledge, Landlord is not in default under the Lease; and

(k)

Assignor has good and marketable title to the Furniture and there are no liens and/or encumbrances to title of the Furniture.

 

8.            Assignor Covenants. Assignor covenants and agrees (i) to pay all Fixed Rent and Additional Rent due and payable under the Lease through October 31, 2018, (ii) to continue to pay its debts as they become due; (iii) not to file an Insolvency Proceeding during the two (2) year period immediately after the Effective Date and (iv) to notify Assignee in writing within ten (10) days after the filing of an Insolvency Proceeding, whether voluntary or involuntary.

 

9.            SNDA. Assignor hereby assigns, conveys and transfers unto Assignee all of Assignor’s right, title and interest as tenant under that certain Subordination, Nondisturbance and Attornment Agreement (the “SNDA”), dated as of November 17, 2017, by and between Citi Real Estate Funding Inc. (the “Lender”), as lender, and Assignor, as tenant.

 

10.          Notices. All notices and other communications which any of the parties is required or desires to send to any of the other parties hereto shall be in writing and shall be personally delivered or delivered by overnight courier, in each case with receipt acknowledged, or sent by registered or certified mail, postage prepaid, return receipt requested. Notices shall be deemed to have been given (a) on the date of acknowledgment of receipt or refusal thereof if transmitted by mail or (b) on the date of receipt thereof if delivered personally or by overnight courier. Notices shall be addressed as follows:

 

(a)           if to Assignor to:

 

Structured Portfolio Management, L.L.C.

c/o Ken Cron

P.O. Box 173

Mill Neck, NY 11765

 

With a copy to:

 

K&L Gates

1601 K Street, NW

Washington, DC 20006-1600

Attention: Cary J. Meer

 

 

(b)           if to Assignee to:

 

SpringWorks Therapeutics Operating Company PBC

Two Harbor Point Square

100 Washington Boulevard

Stamford, Connecticut 06902

Attention: General Counsel

 

With a copy to:

 

Wiggin and Dana LLP

437 Madison Avenue, 35^th Floor

New York, New York 10022

Attention: Andrew J. Pal, Esq.

 

or to such other person and/or address as shall be specified by any of the parties hereto in a notice given to each of the other parties hereto pursuant to the provisions of this section 10.

 

11.           Brokers. Assignor and Assignee each covenants, warrants and represents to the other that no broker other than CBRE, Inc. and Newmark of Connecticut LLC (collectively, the “Brokers”) was instrumental in bringing about or consummating this Agreement and that such party has had no conversations or negotiations with any broker other than the Brokers concerning the Transactions. Assignor and Assignee each agrees to indemnify and hold the other harmless from and against any and all claims for any brokerage commission and all costs, expenses and liabilities in connection therewith, including, without limitation, attorneys’ fees, disbursements and court costs, arising out of such party’s breach of such covenant, warranty and representation. Assignor shall pay any brokerage commission or fee due and payable to the Brokers in connection herewith as per separate agreement(s) between Assignor and the Brokers.

 

12.           Governing Law. The provisions of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut without reference to the conflict-of-laws principles adopted by said State.

 

13.           Successors and Assigns. This Agreement shall be binding upon and enforceable against, and shall inure to the benefit of, the parties hereto and their respective legal representatives, successors and assigns.

 

14.           Counterparts. This Agreement may be executed in one or more counterparts (including by fax of pdf), each of which when so executed and delivered shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.

 

[Remainder of this page left intentionally blank.]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective duly authorized representatives, all as of the day and year first written above.

 

	ASSIGNOR:
	STRUCTURED PORTFOLIO MANAGEMENT, L.L.C.
	By:	/s/ Kenneth D. Cron
		Name:	Kenneth D. Cron
		Title:	CEO
	ASSIGNEE:
	SPRINGWORKS THERAPEUTICS OPERATING COMPANY, PBC
	By:	/s/ Michael V. Greco
		Name:	Michael V. Greco
		Title:	General Counsel

 

 

 

Exhibit A

 

List of Furniture

 

(attached)

 

 

Furniture List

 

Aeron Chairs	74
Workstations	48
Office Furniture Chairs	42
Office Desks	17
Office Tables	7
Office couches	2
Conference room chairs	39
Conf Rm Credenzas	4
Large Conf Rm Tables	2
Medium Conf Rm Table	1
Small Conf Room Table	1
Open area tables	3
Coffee tables	2
Arm chairs	8
Kitchen tables	4
Kitchen chairs	10
File cabinets (3 drawers)	10
File cabinets (4 drawers)	14
File cabinets (5 drawers)	1
File cabinets (2 drawers)	35
TVs	9
Lamps	25
Wall Art (multiple)
Shredders (multiple)
Kitchen utensils & pantry supplies   6 plates, 6 bowls, 6 glasses, Spatula, knives, peeler, can opener, turner, toaster, microwave, toaster oven in kitchen, Ninja blender, Nespresso machine and pods, demitasse / espresso glasses, Kitchen supply closet contents

 

 

Desk supplies in reception area
Varidesk

 

Server Room:

(2) Libert MMD96E 8 ton units

(2) Liebert PFH096A roof condenser

 

Supplemental Units:

(2) trading floor Carrier units with 2 roof condensers

(2) conference room Carrier units with 2 roof condensers

 

Generator:

150 KVA Kohler 150REZGB natural gas generator

 

UPS:

Liebert 60KVA UPS

 

50 - 60 Cisco IP Phones
Monitors
Manufactuer	Size	Model	SERIAL (ENDS IN..)	Location
DELL	19"	1901FP	ADN1	IT Area
DELL	19"	1901FP	ADMU	IT Area
DELL	20"	2001FB	OTKL	VB
DELL	20"	2001FP	OPGL	VB
DELL	20"	2007FPB	1EVL	IT Area
DELL	20"	2007FPB	1ELL	IT Area
DELL	20"	2007FPB	26LL	IT Area
DELL	20"	2007FPB	OAKS	IT Area
DELL	20"	2007FPB	OWRS	IT Area
DELL	20"	2007FPB	2KFL	IT Area
DELL	20"	2007FPB	2AFL	IT Area
DELL	20"	2007FPB	1PDL	IT Area
DELL	20"	2007FPB	OWPS	JP
DELL	20"	2007FPB	1FHS	JP
DELL	20"	2007FPB	177L	CF
DELL	20"	2007FPB	3A2L	CF
DELL	22"	E2211HB	1D0M	IT Area

 

 

DELL	22"	E228WFPF	13YI	IT Area
DELL	22"	E228WFPF	1491	IT Area
HP	24"	LG2405WG	OOVX	IT Area
HP	24"	LG2405WG	00ZC	IT Area
HP	24"	LG2405WG	0K70	IT Area
DELL	20"	P2011HT	CGES	IT Area
DELL	22"	P2210T	ARJM	IT Area
DELL	22"	P2213T	F2JS	CM
DELL	22"	P2213T	EWSS	CM
DELL	24"	P2411HB	OTEU	IT Area
DELL	24"	P2411HB	ORWU	IT Area
DELL	24"	P2411HB	0T2U	IT Area
DELL	24"	P2411HB	ORTU	IT Area
DELL	24"	P2411HB	OTOU	IT Area
DELL	24"	P2411HB	0T7U	IT Area
DELL	24"	P2411HB	10HU	IT Area
DELL	24"	P2411MB	OTFU	CM
DELL	24"	P2412HB	107U	IT Area
DELL	24"	P2412HB	13TU	IT Area
DELL	24"	P2412HB	1MLU	IT Area
DELL	43"	P4317QC	05PL	MH
PLANAR	27"	PX2710MW	0966	IT Area
DELL	23"	U2312HMT	DKGL	IT Area
DELL	23"	U2312HMT	DKML	IT Area
DELL	23"	U2312HMT	K8RS	IT Area
DELL	23"	U2312HMT	ABDL	SE
DELL	23"	U2312HMT	DKPL	SE
DELL	24"	U2410F	0MGL	DB
DELL	24"	U2410F	A4YL	IT Area
DELL	24"	U2410F	0N3L	IT Area
DELL	24"	U2410F	A4WL	IT Area
DELL	24"	U2410F	OMWL	IT Area
DELL	24"	U2410F	4DDL	IT Area
DELL	24"	U2410F	0MQL	IT Area
DELL	24"	U2410F	0MLL	DB
DELL	24"	U2410F	0N4L	IT Area
DELL	24"	U2410F	0N0L	IT Area
DELL	24"	U2410F	OMML	IT Area
DELL	24"	U2410F	4C6L	AW
DELL	24"	U2410F	30NL	AW
DELL	24"	U2410F	2V8L	AW
DELL	24"	U2410F	2VVL	TR
DELL	24"	U2410F	30LL	TR

 

 

DELL	24"	U2410F	4D6L	TR
DELL	24"	U2410F	30GL	TR
DELL	24"	U2410F	2V5L	NV
DELL	24"	U2410F	30UL	NV
DELL	24"	U2410F	30ML	NV
DELL	24"	U2412MB	28GL	IT Area
DELL	24"	U2412MB	28CL	IT Area
DELL	24"	U2412MB	4LLS	IT Area
DELL	24"	U2412MB	08MS	IT Area
DELL	24"	U2412MB	08PS	IT Area
DELL	24"	U2412MB	4M7S	IT Area
DELL	24"	U2412MB	4M0S	IT Area
DELL	24"	U2412MB	4LVS	IT Area
DELL	24"	U2412MB	28FL	IT Area
DELL	24"	U2412MB	270L	IT Area
DELL	24"	U2412MB	3P3S	IT Area
DELL	24"	U2412MB	39VS	IT Area
DELL	24"	U2412MB	4LMS	IT Area
DELL	24"	U2412MB	4KLS	IT Area
DELL	24"	U2412MB	3PUS	IT Area
DELL	24"	U2412MB	13VS	MM
DELL	24"	U2412MB	2TUS	BE
DELL	24"	U2412MB	2TDS	BE
DELL	24"	U2412MB	2TRS	BE
DELL	24"	U2412MB	28AL	SB
DELL	24"	U2412MB	4LVS	SB
DELL	24"	U2412MB	4LMS	SB
DELL	24"	U2412MB	4US	IT Area
DELL	24"	U2412MB	3PTS	IT Area
DELL	24"	U2414HB	6LWL	IT Area
DELL	24"	U2414HB	6MSL	IT Area
DELL	24"	U2414HB	6W4L	IT Area
DELL	24"	U2414HB	6M2L	IT Area
DELL	24"	U2414HB	6W2L	IT Area
DELL	24"	U2414HB	4YJL	MM
DELL	24"	U2414HB	551L	MM
DELL	27"	U2711B	8821	IT Area
DELL	27"	U2711B	1813	IT Area
DELL	27"	U2711B	4741	IT Area
DELL	27"	U2711B	7541	LD
DELL	27"	U2711B	0533	LD
DELL	27"	U2711B	1MHL	KC

 

 

Exhibit B

 

Form of Bill of Sale

 

BILL OF SALE

 

STRUCTURED PORTFOLIO MANAGEMENT, L.L.C. (“Seller”), for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, to the undersigned in hand paid, the receipt and sufficiency of which are hereby acknowledged, has BARGAINED, SOLD and DELIVERED unto SPRINGWORKS THERAPEUTICS OPERATING COMPANY PBC (“Purchaser”) the furniture and other personal property set forth on Schedule 1 attached hereto and made a part hereof (all of such furniture and personal property being collectively referred to as the “Furniture”).

 

Seller warrants to Purchaser that Seller has good and marketable title to the Furniture and is conveying the Furniture to Purchaser free and clear of any liens and encumbrances to title of same. This sale is made without recourse except at otherwise provided in that certain Assignment and Assumption Agreement (the “Agreement”), dated on or about the date hereof, between Seller and Purchaser, and except as provided herein or in the Agreement, Seller makes no representation or warranty of any kind, including, without limitation, habitability, fitness, merchantability or construction, installation, repair or maintenance in a good and workmanlike manner, and the conveyances hereof are made and accepted “as-is”, with all faults.

 

Seller hereby covenants that, at any time and from time to time upon the request of Purchaser and without further consideration, Seller shall execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, such further conveyances and assurances as are consistent with the foregoing and as may be reasonably requested by Purchaser in order to transfer, assure and confirm unto, and vest in, Purchaser, or to aid and assist Purchaser in collecting or reducing to possession, any and all of the Furniture.

 

IN WITNESS WHEREOF, Seller has executed and delivered this Bill of Sale to Purchaser, all the day and year first written above.

 

	SELLER:
	STRUCTURED PORTFOLIO MANAGEMENT, L.L.C.
	By
		Name:
		Title:

 

 

Schedule 1

 

List of Furniture

 

(attached)

 

 

Furniture List

 

Aeron Chairs	74
Workstations	48
Office Furniture Chairs	42
Office Desks	17
Office Tables	7
Office couches	2
Conference room chairs	39
Conf Rm Credenzas	4
Large Conf Rm Tables	2
Medium Conf Rm Table	1
Small Conf Room Table	1
Open area tables	3
Coffee tables	2
Arm chairs	8
Kitchen tables	4
Kitchen chairs	10
File cabinets (3 drawers)	10
File cabinets (4 drawers)	14
File cabinets (5 drawers)	1
File cabinets (2 drawers)	35
TVs	9
Lamps	25
Wall Art (multiple)
Shredders (multiple)
Kitchen utensils & pantry supplies   6 plates, 6 bowls, 6 glasses, Spatula, knives, peeler, can opener, turner, toaster, microwave, toaster oven in kitchen, Ninja blender, Nespresso machine and pods, demitasse / espresso glasses, Kitchen supply closet contents

 

 

Desk supplies in reception area
Varidesk

 

Server Room:

(2) Libert MMD96E 8 ton units

(2) Liebert PFH096A roof condenser

 

Supplemental Units:

(2) trading floor Carrier units with 2 roof condensers

(2) conference room Carrier units with 2 roof condensers

 

Generator:

150 KVA Kohler 150REZGB natural gas generator

 

UPS:

Liebert 60KVA UPS

 

50 - 60 Cisco IP Phones
Monitors
Manufactuer	Size	Model	SERIAL (ENDS IN..)	Location
DELL	19"	1901FP	ADN1	IT Area
DELL	19"	1901FP	ADMU	IT Area
DELL	20"	2001FB	0TKL	VB
DELL	20"	2001FP	0PGL	VB
DELL	20"	2007FPB	1EVL	IT Area
DELL	20"	2007FPB	1ELL	IT Area
DELL	20"	2007FPB	26LL	IT Area
DELL	20"	2007FPB	0AKS	IT Area
DELL	20"	2007FPB	0WRS	IT Area
DELL	20"	2007FPB	2KFL	IT Area
DELL	20"	2007FPB	2AFL	IT Area
DELL	20"	2007FPB	1PDL	IT Area
DELL	20"	2007FPB	0WPS	JP
DELL	20"	2007FPB	1FHS	JP
DELL	20"	2007FPB	177L	CF
DELL	20"	2007FPB	3A2L	CF
DELL	22"	E2211HB	1D0M	IT Area

 

 

DELL	22"	E228WFPF	13YI	IT Area
DELL	22"	E228WFPF	1491	IT Area
HP	24"	LG2405WG	00VX	IT Area
HP	24"	LG2405WG	00ZC	IT Area
HP	24"	LG2405WG	0K70	IT Area
DELL	20"	P2011HT	CGES	IT Area
DELL	22"	P2210T	ARJM	IT Area
DELL	22"	P2213T	F2JS	CM
DELL	22"	P2213T	EWSS	CM
DELL	24"	P2411HB	0TEU	IT Area
DELL	24"	P2411HB	0RWU	IT Area
DELL	24"	P2411HB	OT2U	IT Area
DELL	24"	P2411HB	0RTU	IT Area
DELL	24"	P2411HB	0T0U	IT Area
DELL	24"	P2411HB	0T7U	IT Area
DELL	24"	P2411HB	10HU	IT Area
DELL	24"	P2411MB	0TFU	CM
DELL	24"	P2412HB	107 U	IT Area
DELL	24"	P2412HB	13TU	IT Area
DELL	24"	P2412HB	1MLU	IT Area
DELL	43"	P4317QC	05PL	MH
PLANAR	27"	PX2710MW	0966	IT Area
DELL	23"	U2312HMT	DKGL	IT Area
DELL	23"	U2312HMT	DKML	IT Area
DELL	23"	U2312HMT	K8RS	IT Area
DELL	23"	U2312HMT	ABDL	SE
DELL	23"	U2312HMT	DKPL	SE
DELL	24"	U2410F	0MGL	DB
DELL	24"	U2410F	A4YL	IT Area
DELL	24"	U2410F	0N3L	IT Area
DELL	24"	U2410F	A4WL	IT Area
DELL	24"	U2410F	OMWL	IT Area
DELL	24"	U2410F	4DDL	IT Area
DELL	24"	U2410F	0MQL	IT Area
DELL	24"	U2410F	0MLL	DB
DELL	24"	U2410F	0N4L	IT Area
DELL	24"	U2410F	0N0L	IT Area
DELL	24"	U2410F	OMML	IT Area
DELL	24"	U2410F	4C6L	AW
DELL	24"	U2410F	30NL	AW
DELL	24"	U2410F	2V8L	AW
DELL	24"	U2410F	2VVL	TR
DELL	24"	U2410F	30LL	TR

 

 

DELL	24"	U2410F	4D6L	TR
DELL	24"	U2410F	30GL	TR
DELL	24"	U2410F	2V5L	NV
DELL	24"	U2410F	30UL	NV
DELL	24"	U2410F	30ML	NV
DELL	24"	U2412MB	28GL	IT Area
DELL	24"	U2412MB	28CL	IT Area
DELL	24"	U2412MB	4LLS	IT Area
DELL	24"	U2412MB	08MS	IT Area
DELL	24"	U2412MB	08PS	IT Area
DELL	24"	U2412MB	4M7S	IT Area
DELL	24"	U2412MB	4M0S	IT Area
DELL	24"	U2412MB	4LVS	IT Area
DELL	24"	U2412MB	28FL	IT Area
DELL	24"	U2412MB	270L	IT Area
DELL	24"	U2412MB	3P3S	IT Area
DELL	24"	U2412MB	39VS	IT Area
DELL	24"	U2412MB	4LMS	IT Area
DELL	24"	U2412MB	4KLS	IT Area
DELL	24"	U2412MB	3PUS	IT Area
DELL	24"	U2412MB	13VS	MM
DELL	24"	U2412MB	2TUS	BE
DELL	24"	U2412MB	2TDS	BE
DELL	24"	U2412MB	2TRS	BE
DELL	24"	U2412MB	28AL	SB
DELL	24"	U2412MB	4LVS	SB
DELL	24"	U2412MB	4LMS	SB
DELL	24"	U2412MB	4US	IT Area
DELL	24"	U2412MB	3PTS	IT Area
DELL	24"	U2414HB	6LWL	IT Area
DELL	24"	U2414HB	6MSL	IT Area
DELL	24"	U2414HB	6W4L	IT Area
DELL	24"	U2414HB	6M2L	IT Area
DELL	24"	U2414HB	6W2L	IT Area
DELL	24"	U2414HB	4YJL	MM
DELL	24"	U2414HB	551L	MM
DELL	27"	U2711B	8821	IT Area
DELL	27"	U2711B	1813	IT Area
DELL	27"	U2711B	4741	IT Area
DELL	27"	U2711B	7541	LD
DELL	27"	U2711B	0533	LD
DELL	27"	U2711B	1MHL	KC

 

 

Exhibit C

 

Form of Approved Letter of Credit

 

L/C DRAFT LANGUAGE

 

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:

 

Two Harbor Point Square, LLC

1 Elmcroft Road, Suite 500

Stamford, CT 06902

ATTN: Portfolio Manager

 

APPLICANT:

SPRINGWORKS THERAPEUTICS OPERATING COMPANY, PBC

575 5TH AVENUE

NEW YORK NY 10017

 

AMOUNT:	US$500,000.00 (FIVE HUNDRED THOUSAND AND 00/100 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:

 

“AN EVENT OF DEFAULT (AS DEFINED IN THE LEASE) THAT REMAINS UNCURED BEYOND ANY APPLICABLE NOTICE AND CURE PERIOD HAS OCCURRED UNDER THAT CERTAIN LEASE AGREEMENT BETWEEN SPRINGWORKS THERAPEUTICS

 

 

OPERATING COMPANY, PBC, AS TENANT, AND TWO HARBOR POINT SQUARE, LLC AS LANDLORD.”

 

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 60 DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE WE SEND TO YOU A NOTICE BY REGISTERED OR CERTIFIED MAIL OR OVERNIGHT COURIER SERVICE AT THE ABOVE ADDRESS THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE THEN CURRENT EXPIRATION DATE. IN NO EVENT SHALL THIS LETTER OF CREDIT BE AUTOMATICALLY EXTENDED BEYOND JANUARY 30, 2023. IN THE EVENT WE SEND SUCH NOTICE OF NON-EXTENSION, YOU MAY DRAW HEREUNDER BY YOUR PRESENTATION TO US OF YOUR SIGNED AND DATED STATEMENT STATING THAT YOU HAVE RECEIVED A NON-EXTENSION NOTICE FROM SILICON VALLEY BANK IN RESPECT OF LETTER OF CREDIT NO. SVBSF ______________, YOU ARE DRAWING ON SUCH LETTER OF CREDIT FOR US$_______________, AND YOU HAVE NOT RECEIVED A REPLACEMENT LETTER OF CREDIT ACCEPTABLE TO YOU.

 

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 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. SPRINGWORKS THERAPEUTICS OPERATING COMPANY, PBC SHALL PAY OUR TRANSFER FEE OF ¼ OF 1% OF THE TRANSFER AMOUNT (MINIMUM US$250.00) UNDER THIS LETTER OF CREDIT. 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 D

 

Copy of Lease

 

(attached)

 

 

FIRST LEASE MODIFICATION AGREEMENT

 

This First Lease Modification Agreement (this “First Amendment”), dated as of December 1, 2012, by and between TWO HARBOR POINT SQUARE, LLC, a Delaware limited liability company, having an office c/o BLT Management, LLC, 100 Washington Boulevard, Suite 200, Stamford, Connecticut 06902 (“Landlord”), and STRUCTURED PORTFOLIO MANAGEMENT, L.L.C., a Delaware limited liability company, having an office at 100 Washington Boulevard, Suite 500, Stamford, Connecticut 06902 (“Tenant”).

 

RECITALS:

 

A.       Pursuant to that certain Lease dated December 1, 2011 by and between Landlord and Tenant (the “Lease”). Landlord currently leases to Tenant the entirety of the fifth (5^th) floor in the building known as Two Harbor Point Square (and also known as 100 Washington Boulevard), Stamford, Connecticut (the “Building”), which leased premises is comprised of approximately 23,919 rentable square feet (the “Demised Premises”).

 

B.       The parties desire to amend the Lease as set forth herein.

 

C.       All defined terms used herein shall have the same meanings as in the Lease, unless otherwise specified herein. In the event of any inconsistency between the Lease and this First Amendment, the provisions of this First Amendment shall control, and all other provisions of the Lease shall remain in full force and effect

 

NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:

 

1.     Substitution for Exhibits.

 

(a)       The Garage/Parking Plan annexed to the Lease as Exhibit J is hereby deleted and Exhibit J annexed hereto is substituted in its stead.

 

(b)       The Tenant Generator Location annexed to the Lease as Exhibit C-1 is hereby deleted and Exhibit C-1 annexed hereto is hereby substituted in its stead.

 

2.     Amendment and Restatement of Section 11.5(a). Section 11.5(a) is hereby deleted in its entirety and the following is hereby substituted in lieu thereof:

 

“Landlord, at its expense (but without affecting Landlord’s right to recoupment to the extent provided in Article 6 herein), shall maintain the Garage and parking areas, to be used by Tenant or any Tenant Parties in common with other tenants of the Building. Landlord shall supply Tenant with up to 72 parking spaces, of which 48 spaces shall be in the Garage, and 10 of said spaces within the Garage shall be reserved and marked with Tenant’s name for the exclusive use of Tenant and Tenant’s invitees located in the area shown on Exhibit J and 1 of said spaces within the Garage shall be dedicated to Tenant’s use for the Tenant Generator (as hereinafter defined) in the area shown on Exhibit C-1. Tenant shall pay, commencing on the date hereof, as Additional Rent, the sum of $95.00 per month per space for six (6) of said reserved parking spaces. If additional parking spaces in excess of 48 spaces are requested by Tenant, such additional spaces shall be within five hundred (500’) feet of the Building located in the area shown on Exhibit K, and Tenant shall pay, commencing on the date such spaces are provided to Tenant, as Additional Rent, the sum of $95.00 per month per space for the parking provided in excess of 48 parking spaces (“Excess Parking Requirements”);

 

 

provided, that such additional spaces shall be located in the Garage until such time as Landlord shall require the use of such spaces for other users at the Building. At Tenant’s option and sole expense, Landlord shall make available to Tenant valet parking. If the Premises shall increase or decrease, the number of spaces in the Garage and other locations described above shall be proportionally adjusted. Until such time as Landlord reasonably determines that all of the parking spaces in the Garage are needed by occupants and invitees of the Building, Tenant shall be permitted to use such spaces for its Excess Parking Requirements.”

 

3.       Amendment and Restatement of Section 11.13(b). Section 11.13(b) is hereby deleted in its entirety and the following is hereby substituted in lieu thereof:

 

“In addition to the Building Generator and any other generator that may exist on the Property, Tenant may install, at any time and at no additional charge payable to Landlord, and thereafter access and maintain, repair, replace, use and operate a diesel generator, associated fuel tank, wiring and all necessary ancillary equipment thereto (including a reasonably sufficient amount of riser space as available running from the locations of such systems to the Premises for purposes of connecting such systems to the Premises, as available) for Tenant’s business operations within the Building (“Tenant Generator”), on the Properly, subject to compliance with Applicable Laws, in the location shown on Exhibit C-1 or in such other location reasonably designated by Landlord, in accordance with Article 9 or Article 22, as applicable, and so as to not materially adversely affect any tenant or occupant of the Building and the character of the Building and further subject to Tenant paying for all costs and expenses for such installation, access and maintenance. The Tenant Generator shall be appropriately screened or otherwise enclosed in a manner reasonably acceptable to Landlord. Tenant shall indemnify and hold harmless Landlord from any liability, cost or damage resulting from third party claims for property damage, bodily injury or death to the extent arising from the installation, maintenance, operation or removal of the Tenant Generator (subject to the waiver of subrogation provisions of Article 7); provided, however, that with respect to any Hazardous Substances Article 24 shall control. Tenant may remove but shall not be required to remove any such Tenant Generator (or the fuel oil tank or other equipment attendant thereto) at the expiration or sooner termination of this Lease unless Landlord gives Tenant notice that Tenant is required to remove the Tenant Generator at the time it approves the plans and specifications of the Tenant Generator. Tenant shall have the right to conduct weekly testing and regular preventative maintenance of the Tenant Generator and Landlord shall reasonably cooperate with Tenant to do the same.”

 

4.       Ratification of Lease: Effect of Amendment. The Lease, as amended by this First Amendment, is hereby ratified and confirmed, and each and every provision, covenant, condition, obligation, right and power contained in and under, or existing in connection with, the Lease, as amended by this First Amendment, shall continue in full force and effect. This First Amendment is not intended to, and shall not be construed to, effect a novation, and, except as expressly provided in this First Amendment, the Lease has not been modified, amended, canceled, terminated, surrendered, superseded or otherwise rendered of no force and effect. Each party hereto acknowledges and agrees that the Lease, as amended by this Second Amendment, is enforceable against said party in accordance with its terms.

 

5.       Brokerage Commission. Tenant and Landlord each represent to the other party that (i) neither party has dealt with any real estate broker, salesperson or finder in connection with this First Amendment, (ii) no person initiated or participated in the negotiation of this First Amendment, and (iii) no person is entitled to any commission in connection herewith. Landlord and Tenant hereby agree to indemnify, defend and hold each other and their respective employees harmless from and against any and all liabilities, claims, demands, actions, damages, costs and expenses (including attorneys’ fees) arising from any claim of any kind which arise out of or are in any way connected the other’s breach of the foregoing representation.

 

 

6.       Successors and Assigns. This First Amendment shall bind and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns.

 

7.       Counterparts. This First Amendment may be executed in a number of identical counterparts, each of which for all purposes shall be deemed to be an original, and all of which shall collectively constitute but one agreement, fully binding upon, and enforceable against the parties hereto.

 

[SIGNATURE PAGE FOLLOWS]

 

 

IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties have duly executed this First Amendment as of the day and year first written above.

 

LANDLORD:
TWO HARBOR POINT SQUARE, LLC
By:	/s/ Carl R. Kuehner
	Name:	Carl R. Kuehner
	Title:	Authorized signatory
TENANT:
STRUCTURED PORTFOLIO MANAGEMENT, L.L.C.
By:	/s/ Ward J. Mcgraw
	Name:	Ward J. Mcgraw
	Title:	CFO

 

 

 

 

EXHIBIT C-1

 

TENANT GENERATOR LOCATION

 

 

 

 

LEASE

 

TWO HARBOR POINT SQUARE, LLC.

 

Landlord

 

And

 

STRUCTURED PORTFOLIO MANAGEMENT, L.L.C.

 

Tenant

 

Building:

 

Two Harbor Point Square

Stamford, CT

 

Dated: December 1, 2011

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE 1           DEFINITIONS; CONSENTS		1
Section 1.1	Definitions	1
Section 1.2	Consents	10
ARTICLE 2           DEMISE; PREMISES		11
Section 2.1	Demise; Premises	11
Section 2.2	Modification of Property	11
ARTICLE 3           TERM		11
Section 3.1	Primary Term	11
Section 3.2	Renewal Terms	12
Section 3.3	Cancellation Option	13
Section 3.4	Short-Term Extension	14
ARTICLE 4           RENT		15
Section 4.1	Fixed and Additional Rent	15
Section 4.2	Late Charge	15
Section 4.3	No Set-Offs	15
ARTICLE 5          USE		16
Section 5.1	Use	16
Section 5.2	Restrictions On Use	16
Section 5.3	Certificate of occupancy	17
Section 5.4	Floor Load	17
Section 5.5	Signage	17
ARTICLE 6          OPERATING EXPENSES		18
Section 6.1	Payments	18
Section 6.2	Landlord’s Statement	19

 

 

Section 6.3	Operating Expenses	21
Section 6.4	Intentionally omitted	25
Section 6.5	Taxes on Tenant’s Property	25
ARTICLE 7           INSURANCE		25
Section 7.1	Prohibited Acts; Compliance	25
Section 7.2	Rate Increases	25
Section 7.3	Tenant’s Insurance Requirements	25
Section 7.4	Waiver of Sbrogation	27
Section 7.5	Landlord’s Insurance Obligation	27
ARTICLE 8          COMPLIANCE WITH LAWS		28
Section 8.1	Tenant’s Compliance Obligations	28
Section 8.2	Permitted Constests	29
Section 8.3	Landlord’s Compliance Obligations	30
ARTICLE 9          ALTERATIONS AND IMPROVEMENTS		30
Section 9.1	Restrictions	30
Section 9.2	Permits; Mechanic’s Liens	31
Section 9.3	Review of Tenant’s Plans	31
ARTICLE 10         REPAIRS		33
Section 10.1	Tenant’s Obligation	33
Section 10.2	Landlord’s Obligations	34
ARTICLE 11         UTILITIES AND SERVICES		34
Section 11.1	HVAC; Elevators	34
Section 11.2	Cleaning	35
Section 11.3	Electricity	35
Section 11.4	Water	37

 

 

Section 11.5	Parking	37
Section 11.6	Building Communications	38
Section 11.7	Interruption of Services	38
Section 11.8	Access and Security	38
Section 11.9	Shuttle Bus	39
Section 11.10	Shaft Space	39
Section 11.11	Amenities	39
Section 11.12	Fire Alarm System Tie-In	39
Section 11.13	Generator and UPS	39
Section 11.14	Other Services	41
ARTICLE 12         ASSIGNMENT AND SUBLEASING		41
Section 12.1	Rights and Obligations of Tenant	41
Section 12.2	Recapture; Consent	42
Section 12.3	Assignment of Rents	43
Section 12.4	Transfer to Successor or Affiliate	43
Section 12.5	Occupancy Thresholds	44
ARTICLE 13         SUBORDINATION AND ATTORNMENT		44
Section 13.1	Subordination; Nondisturbance Agreement	44
Section 13.2	Attornment	46
Section 13.3	Lease Modification	46
ARTICLE 14         LANDLORD’S RIGHT OF ENTRY; ROOF RIGHTS; ETC		47
Section 14.1	Right of Entry	47
Section 14.2	Rooftop Equipment	47
Section 14.3	Supplement HVAC	48
ARTICLE 15         CASUALTY		48

 

 

Section 15.1	Restoration; Abatement	48
Section 15.2	Tenant’s Right of Termination	49
Section 15.3	Landlord’s Right of Termination	50
Section 15.4	Liability	50
Section 15.5	Cooperation	50
Section 15.6	Willful Misconduct	51
Section 15.7	Express Agreement	51
Section 15.8	Outstanding Mortgage	51
ARTICLE 16         EMINENT DOMAIN		51
Section 16.1	Termination Rights	51
Section 16.2	The Awards	52
Section 16.3	Temporary Taking	52
Section 16.4	Outstanding Mortgage	52
ARTICLE 17         DEFAULT		53
Section 17.1	Events of Default	53
Section 17.2	Use and Occupancy Payments	54
ARTICLE 18         RE-ENTRY BY LANDLORD; REMEDIES		54
Section 18.1	Re-entry	54
Section 18.2	Tenant’s Waivers	54
Section 18.3	Injunction	55
Section 18.4	Remedies	55
Section 18.5	Covenants	56
Section 18.6	Cumulative Remedies	57
Section 18.7	Attorneys’ Fees	57
Section 18.8	Landlord Event of Default	57

 

 

Section 18.9	Waiver	57
ARTICLE 19          CURING DEFAULTS		57
Section 19.1	Cure of Tenants Defaults	57
Section 19.2	Cure of Landlord Defaults	58
ARTICLE 20         NON-LIABILITY AND INDEMNIFICATION		58
Section 20.1	Indemnification By Tenants	58
Section 20.2	Constructive Eviction	59
Section 20.3	Indemnification By Landlord	59
Section 20.4	Defense of Actions	59
Section 20.5	Payments	60
ARTICLE 21         SURRENDER		60
Section 21.1	Condition of Premises	60
Section 21.2	Waiver	60
Section 21.3	Holdover By Tenant	60
Section 21.4	Survival	61
ARTICLE 22         LANDLORD’S WORK		61
Section 22.1	Landlord’s Work	61
Section 22.2	Construction of Tenant Improvements	61
Section 22.3	Tenants Improvement Allowance	64
Section 22.4	Delayed Completion	65
Section 22.5	Performance of Landlord’s Work	65
Section 22.6	Labor Harmony	66
Section 22.7	Punch List Items	66
Section 22.8	Change Orders; Cost of Changes	66
Section 22.9	Site Representatives	67

 

 

Section 22.10	Certificate of Occupancy	67
Section 22.11	Field Changes	67
Section 22.12	Warranty	67
Section 22.13	No Changes by Landlord to Landlord’s Work	68
ARTICLE 23          EXPANSION RIGHTS		68
Section 23.1	Right of First Offer	68
ARTICLE 24           ENVIRONMENTAL OBLIGATIONS		69
Section 24.1	Landlord’s Environmental Indemnification	69
Section 24.2	Tenant’s Environmental Indemnification	71
Section 24.3	Environmental Condition of the Property	73
ARTICLE 25          ACCESS; CHANGE IN FACILITIES		74
Section 25.1	Changes in Facilities	74
Section 25.2	Installation	74
Section 25.3	Access	74
Section 25.4	Name; Management	75
Section 25.5	Constructive Eviction	75
ARTICLE 26          INABILITY TO PERFORM		75
Section 26.1	Unavoidable Delay	75
ARTICLE 27         WAIVERS		75
Section 27.1	Counterclaims	75
Section 27.2	Trial by Jury	75
Section 27.3	No Waiver	76
Section 27.4	Specific Examples	76
Section 27.5	Survival	76
ARTICLE 28         QUIET ENJOYMENT		76

 

 

Section 28.1	Covenant	76
ARTICLE 29         RULES AND REGULATIONS		76
Section 29.1	Compliance	76
Section 29.2	Enforcement	77
ARTICLE 30         SHORING; NATURE OF ACCIDENTS		77
Section 30.1	Access to the Premises	77
Section 30.2	Notice	77
Section 30.3	Window Cleaning	77
ARTICLE 31         BROKERAGE		78
Section 31.1	Representation; Payments	78
ARTICLE 32         NOTICES		78
Section 32.1	Notices	78
ARTICLE 33          ESTOPPEL CERTIFICATE; FINANCIAL DATA; NOTICE OF LEASE		79
Section 33.1	Estoppel	79
Section 33.2	Financial Data	80
Section 33.3	Notice of Lease	80
ARTICLE 34         SECURITY DEPOSIT		80
Section 34.1	Security Deposit	80
Section 34.2	Alternative Security	81
ARTICLE 35         MISCELLANEOUS		82
Section 35.1	Miscellaneous Provisions	82

 

 

Exhibits
A	Property Description
B	Permitted Encumbrances
C	Floor Plan
C-l	Generator Room
D	Plans and Specifications
E	Form of Change Order
F	Building Holidays
G	Cleaning Specifications
H	Rules and Regulations
I	HVAC Specifications
J	Garage Plan
K	Parking Plan
L	Security Specifications
M	Shuttle Bus Specification
N	Form of Notice of Lease
O	Form of Letter of Credit
P	Allocation of Tenant Expenses
Q	Signage Specifications
R	Park
S	Remedial Action Plan

 

 

LEASE dated the 1^st day of December, 2011, by and between TWO HARBOR POINT SQUARE, LLC (“Landlord”), a Delaware limited liability company with an office at 100 Washington Boulevard, Suite 200, Stamford, CT 06902; and STRUCTURED PORTFOLIO MANAGEMENT, L.L.C. (“Tenant”), a Delaware limited liability company with an office at 2187 Atlantic Street, 4^th Floor, Stamford, CT 06902.

 

WITNESSETH:

 

Landlord and Tenant hereby covenant and agree as follows:

 

ARTICLE 1

 

Definitions: Consents

 

Section 1.1        Definitions. For the purposes of this Lease, unless the context otherwise requires:

 

(a)       “AAA” shall have the meaning given to such term in subsection 3.2(b)(i).

 

(b)       “Additional Rent” shall mean all amounts, liabilities and obligations, other than Fixed Rent, which Tenant assumes or agrees to pay under this Lease.

 

(c)       “Affiliate” shall have the meaning given to such term in Section 12.4.

 

(d)       “Alterations” shall mean alterations, installments, improvements, additions or other changes in or about the Premises, other than (i) alterations, installments, improvements, additions or other changes that constitute Tenant Improvements or that are made as part of the Landlord’s Work, and (ii) decorations.

 

(e)       “Applicable Laws” shall have the meaning given to such term in Section 8.1.

 

(f)       “Appraiser” shall mean an individual having not less than ten (10) years current experience as a leasing broker specializing in Comparable Buildings.

 

(g)       “Arbitrator” means Landlord’s architect and Tenant’s architect, acting by mutual agreement, provided that such architects are able to agree as to the matter in question within three (3) Business Days following written notice from Landlord or Tenant of its election to submit the matter to resolution by the Arbitrator, or, if Landlord’s architect and Tenant’s 29 architect are unable to agree within such time period, “Arbitrator” shall mean Harvey Weber of Weber and Associates, 313 Long Ridge Road, Stamford, Connecticut 06902. The fees of Landlord’s architect shall be paid by Landlord, the fees of Tenant’s architect shall be paid by Tenant, and if the Arbitrator shall be a third party, then the fees of the Arbitrator shall be divided evenly between Landlord and Tenant.

 

(h)       “Base Building” shall mean the Building, excluding any Tenant Improvements.

 

 

(i)       “Base Building Systems” shall mean the mechanical, gas, electrical, sanitary, heating, air-conditioning, ventilating, elevator, plumbing, security, life-safety, roof and balcony drainage and other service systems of the Building.

 

(j)       “Base Rate” shall mean the prime or base rate published in The Wall Street Journal (or its successor) and, if more than one (1) prime or base rate shall be published on a day, then the highest such rate on the applicable date.

 

(k)       “Brokers” shall have the meaning given to such term in Section 31.1.

 

(1)       “Building” shall mean the office building containing approximately 140,222 total rentable square feet, and approximately 119,595 rentable square feet of office space, known as Two Harbor Point Square, Connecticut and located in the Park and described as “S-2” on the plan of the Park described in Exhibit R annexed hereto.

 

(m)       “Building Generator” shall have the meaning given to such term in Section 11.15

 

(n)       “Building Holidays” shall mean the holidays described on Exhibit F annexed hereto.

 

(o)       “Building Specifications” shall mean the specifications set forth in Exhibit D-1.

 

(p)       “Business Day” shall mean any day except Saturdays, Sundays and the days observed by state chartered banks and national banks in the State of Connecticut as public holidays.

 

(q)       “Business Hours” shall mean that period of time on Business Days from 8:00 A.M. to 6:00 P.M. (and on Saturdays, except for the holidays specified on Exhibit F hereto, from 9:00 A.M. to 1:00 P.M.).

 

(r)       “Cancellation Charge” shall have the meaning given to such term in subsection 3.3(a).

 

(s)       “Cancellation Date” shall have the meaning given to such term in subsection 3.3(a).

 

(t)       “Changes” shall have the meaning given to such term in Section 22.8.

 

(u)       "Change Increase" shall have the meaning given to such term in Section 22.8.

 

(v)       “Change Orders” shall have the meaning given to such term in Section 22.8.

 

(w)       “Commencement Date” shall mean the Substantial Completion Date.

 

 

(x)       “Common Areas” shall mean all of the non-rentable areas in the interior and exterior of the Building and the balance of the Property, including without limitation restrooms on multi-tenant floors, fire stairs, the entrance lobby, landscaping and exterior facilities, parks, the parking areas, truck docks, roadways, sidewalks and driveways, Common Areas shall not include restrooms, lobbies, corridors, plazas, aisles, telephone and electric closets or mechanical rooms located on floors or portions of floors leased entirely by a single tenant and, as to a partial floor tenant, located in such tenant’s space, all of which shall be for the exclusive use of such single-floor or partial floor tenant and shall not be used in common with Tenant or other tenants or occupants of the Building.

 

(y)       “Comparable Buildings” shall mean Class A office buildings in Stamford, Connecticut similar in nature and type to that of the Building.

 

(z)       “Control” shall mean ownership of more than fifty percent (50%) of the outstanding voting stock of a corporation or other majority equity and/or control interest of a different form of business entity and/or the possession of power to direct or cause the direction of the management and policy of such corporation or other entity, whether through the ownership of a controlling interest, by statute or according to the provisions of a contract.

 

(aa)       “CPA” shall have the meaning given to such term is subsection 6.2(d).

 

(bb)       “Default Rate” shall mean the lesser of (i) the Base Rate plus five percent (5%) per annum or (ii) the maximum rate of interest permitted by Applicable Laws.

 

(cc)       “Delivery Delay Period” shall have the meaning given to such term in Section 22.4.

 

(dd)       “Environmental Laws” shall mean the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C, §§6901, et seq, (RCRA), as amended, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§9601 et seq. (CERCLA), as amended, the Toxic Substance Control Act, as amended, 15 U.S.C, §§2601 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, as amended, 7 U.S.C. §§136 et seq., the Clean Air Act, the Hazardous Materials Transportation Act, the Connecticut Transfer Act, and all other Applicable Laws relating to the environment or to regulation or control of Hazardous Materials.

 

(ee)       “Estimate” shall have the meaning given to such term in Section 15.2.

 

(ff)        “Event of Default” shall mean any of the events set forth in Article 17.

 

(gg)       “Expiration Date” shall mean the Lease Expiration Date, the date at which the last exercised Renewal Term shall expire or the Cancellation Date, as applicable.

 

(hh)       “Fair Rental Value” shall have the meaning given to such term in subsection 3.2 (b).

 

 

(ii)         “Final Determination” shall have the meaning given to such term in subsection 3.2(b)(ii).

 

(jj)         “First Offer Space” shall have the meaning given to such term in Section 23.1.

 

(kk)       “First Offer Notice” shall have the meaning given to such term in Article 23.

 

(ll)         “Fixed Rent” shall mean the rental amounts specified in subsection 4.1(a) hereto.

 

(mm)      “Free Rent Period” shall mean the period between the Commencement Date and the Rent Commencement Date.

 

(nn)       “GAAP” shall have the meaning given to such term in subsection 6.3(a)(vii).

 

(oo)       “Garage” shall mean the parking garage on the Property.

 

(pp)       “Hard Costs” shall have the meaning given to such term in Section 22.3.

 

(qq)       “Hazardous Materials” shall mean substances defined as “hazardous substances”, “hazardous materials”, “hazardous wastes” or “toxic substances” in any applicable federal, state or local statute, rule, regulation or determination, including but not limited to Environmental Laws; and asbestos, PCBs, radioactive substances, methane, volatile hydrocarbons, petroleum or petroleum-derived substances or wastes, radon, industrial solvents or any other material as may be specified in Applicable Laws.

 

(rr)        “Land” shall mean the land described on Exhibit A hereto.

 

(ss)       “Landlord Cure Work” shall have the meaning given to such term in Section 24.1(c).

 

(tt)        “Landlord’s Delay” shall mean any delay, other than a Tenant’s Delay or Unavoidable Delay, in achieving Substantial Completion of Landlord’s Work on or before the Target Completion Date, A Landlord’s Delay shall begin on (but exclude) the Target Completion Date and end on (and include) the actual completion date of Landlord’s Work.

 

(uu)       “Landlord Parties” shall mean Landlord’s Representatives and Affiliates, licensees, Mortgagees and holder of a Superior Lease.

 

(vv)      “Landlord’s Representatives” shall mean Landlord’s members, employees, agents, and contractors and Affiliates of Landlord or any such member, employee, agent or contractor.

 

(ww)     “Landlord’s Statement” shall have the meaning given to such term in Section 6.2.

 

 

(xx)        “Landlord's Work” shall mean all work, services, labor, materials and equipment, including, without limitation, clean-up and removal of debris, equipment and other materials, necessary to perform the construction of (i) the work designated in the Plans and Specifications; and (ii) those other conditions specified as Landlord’s Work in this Lease.

 

(yy)       “Lease Expiration Date” shall mean the last day of the tenth (10^th) Lease Year.

 

(zz)        “Lease Year” shall mean the period commencing on the Commencement Date and ending on the last day of the calendar month during which the day before the first anniversary of the Rent Commencement Date occurs (it being acknowledged that such first Lease Year may be more than twelve (12) months), and each period of twelve (12) consecutive months thereafter within the Term.

 

(aaa)      “Lessor” shall have the meaning given to such term in Section 13.1.

 

(bbb)      “Long Lead Work” shall have the meaning given to such term in Section 15.2.

 

(ccc)      “Losses” shall have the meaning given to such term in Section 24.1.

 

(ddd)     “Mortgage” shall mean any mortgage on the Property given by Landlord to a Mortgagee to secure a loan encumbered by Landlord’s interest in the Property.

 

(eee)      “Mortgagee” shall mean any holder of a Mortgage with respect to the Property or any part thereof.

 

(fff)        “Net Rent” shall have the meaning given to such term in Section 18.4.

 

(ggg)      “Nondisturbance Agreement” shall have the meaning given to such term in Section 13.1.

 

(hhh)     “Nonstandard Improvements” shall mean improvements which ate not customary for the average executive office space in western Fairfield County, Connecticut, such as, without limitation, an internal staircase, private bathroom, supplemental power sources, supplemental HVAC units, raised flooring, computer room installations and Rooftop Equipment.

 

(iii)         “Notice of Lease” shall mean a statutory notice of lease under Section 47-19 of the Connecticut General Statutes.

 

(jjj)        “Occupancy Date" shall mean the date Tenant first occupies the Premises for its business operations.

 

(kkk)      “Operating Expenses” shall have the meaning given to such term in Section 6.3.

 

(lll)         “Other Taxes” shall mean all taxes, assessments, excises, levies, fees and charges other than Property Taxes, including all payments related to the cost of providing

 

 

facilities or services, whether or not now customary or within the contemplation of Landlord and Tenant, that are levied, assessed, charged, confirmed or imposed by any public or government authority upon, or measured by, or reasonably attributable to (i) the Property; (ii) the cost or value of Tenant’s Property or the cost or value of any leasehold improvements made in or to the Premises by or for Tenant, regardless of whether title to such improvements is vested in Tenant or Landlord; (iii) any Rent payable under this Lease, including any sales tax, income tax or excise tax levied by any public or government authority with respect to the receipt of any such Rent; (iv) the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises; or (v) this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the Premises, Other Taxes shall not include (x) federal, state or local income, documentary transfer, conveyance or inheritance taxes of Landlord, unless levied or assessed against Landlord in whole or in part in lieu of or as a substitute for any Other Taxes; or (y) assessments levied in respect to the Harbor Point Infrastructure Improvement District unless, and only to the extent that, such assessments constitute permitted Property Taxes.

 

(mmm)  "Overtime” shall mean any time of day that is not included within Business Hours.

 

(nnn)    “Park” shall mean the development known as Harbor Point and currently comprising the development parcels known as S-1, S-2 (the development parcel for the Building), S-3, S-4, S-5, C-1, C-2, C-3, C-5, C-6, C-7, C-8, P-1, P-2, P-3, P-4, P-5, P-6, The Commons, The Square, Upper Riverwalk, Lower Riverwalk and Coastal Gardens, all located in Stamford, Connecticut, as shown on Exhibit R annexed hereto.

 

(ooo)    “Permitted Encumbrances” shall mean:

 

(i)        Any liens for taxes, assessments and other governmental charges which are not due and payable;

 

(ii)       The easements, rights-of-way, encroachments, encumbrances, restrictive covenants, or other matters specified on Exhibit B hereto, and any Mortgage, subordination and non-disturbance agreement, assignment of lease or other security agreement encumbering the Premises;

 

(iii)      This Lease and the rights of Tenanhreunder; and

 

(iv)       The REA.

 

(ppp)       “Person" shall mean any individual, corporation, partnership, limited liability company, limited liability partnership, joint venture, association, joint stock company; trust, trustee(s) of a trust, unincorporated organization, any other form of business organization, or government or governmental authority, agency or political subdivision thereof.

 

(qqq)       “Plans and Specifications” shall mean those certain floor plans, if any, and the specifications for the construction of Landlord’s Work specified on Exhibit D hereto.

 

 

(rrr)         “Pre-Completion Notice” shall have the meaning given to such term in Section 22.7.

 

(sss)        “Premises” shall mean the space in the Building described in Section 2.1 herein, No easement for light, air or view is included with or appurtenant to the Premises, The foregoing disclaimer has been negotiated by Landlord and Tenant, and is intended as a complete negation of any representation or warranty by Landlord, express or implied with respect to such matters; provided, however, Landlord shall not erect or permit to be erected within twenty-five (25) feet of the Building anything that blocks, impairs, obscures or otherwise covers the windows of the Building. Tenant acknowledges, however, that Landlord or Landlord’s Affiliate may construct additional improvements within the Park on other units declared in the REA, and that such improvements may limit the views from the Premises.

 

(ttt)          “Primary Term” shall mean the period described in Section 3.1.

 

(uuu)       “Property” shall mean the Land, Building and the Garage and any accessory structure housing any utilities or equipment serving the Building and/or the Garage.

 

(vvv)      “Property Taxes” shall mean all taxes, assessments, excises, levies, fees and charges (and any tax, assessment, excise, levy, fee or charge levied wholly or partly in lieu thereof or as a substitute therefor or as an addition thereto) of every kind and description, general or special, ordinary or extraordinary, foreseen or unforeseen, secured or unsecured, whether or not now customary or within the contemplation of Landlord and Tenant, that ate levied, assessed, charged, confirmed or imposed by any public or government authority on or against, or otherwise with respect to, the Property or any part thereof or any personal property owned or leased by Tenant and used in connection with the Premises, Property Taxes shall not include income, documentary transfer or inheritance taxes of Landlord, unless levied or assessed against Landlord in whole or in part in lieu of or as a substitute for any Property Taxes and shall also exclude amounts attributable to special assessments relating to construction or redevelopment of, or capital improvement to, the Park, or construction, redevelopment or improvements in any School (as defined in the REA), interest or penalties for late payments, franchise, excise, corporate estate, succession or capital levy tax, Any assessment levied in respect to the Harbor Point Infrastructure Improvement District for debt service shall constitute a Property Tax only to the extent that, together with the other Property Taxes levied with respect to the Property, such assessment and other Property Taxes do not exceed the total amount of Property Taxes that would have been levied with respect to the Property but for the existence of the Harbor Point Infrastructure Improvement District.

 

(www)     “Punch List Items” shall mean minor elements of construction that do not inhibit or interfere with the intended use and operation of the entire Premises (or with the construction of Tenant Improvements) as contemplated by this Lease, except to a de minimis extent.

 

(xxx)        “REA” shall mean that certain Declaration of Harbor Point Planned Community, dated August 13, 2008 relating to the Property and certain neighboring properties, recorded at Volume 9425 at Page 121 of the Stamford Land Records, which document is filed pursuant to the provisions of the Common Interest Ownership Act, Conn, Gen, Stats, §47-200 et

 

 

seq., together with said Act and any and all bylaws, rules and regulations and other instruments duly promulgated to govern the common interest community described in the REA, all as amended from time to time, including but not limited to (i) that certain First Amendment to Declaration dated June 30, 2009 and recorded at Volume 9643 at Page 21 of the Stamford Land Records; (ii) that certain Second Amendment to Declaration dated November 18, 2010 and recorded at Volume 10015 at Page 202 of the Stamford Land Records; (iii) that certain Third Amendment to Declaration dated February 11, 2011 and recorded at Volume 10086 at Page 264 of the Stamford Land Records; and (iv) that certain Fourth Amendment to Declaration dated June 29, 2011 and recorded at Volume 10170 at Page 69 of the Stamford Land Records.

 

(yyy)       “Renewal Notice” shall have the meaning given to such term in Section 3.2.

 

(zzz)        “Renewal Term” shall have the meaning given to such term in Section 3.2.

 

(aaaa)      “Rent” shall mean Fixed Rent and Additional Rent.

 

(bbbb)     “Rent Commencement Date” shall mean the date that is the earlier of (i) twelve (12) months following the Substantial Completion Date, and (ii) six (6) months following the Occupancy Date.

 

(cccc)      “Rooftop Equipment” shall have the meaning given to such term in Section 14.2.

 

(dddd)     “Rules and Regulations” shall have the meaning given to such term in Section 29.1.

 

(eeee)      “Secured Areas” shall have the meaning given to such term in Section 14.1.

 

(ffff)        “Security Deposit” shall have the meaning given to such term in Section 34.1.

 

(gggg)     “Site Assessment” shall have the meaning given to such term in Section 24.2.

 

(hhhh)     “Site Reviewers” shall have the meaning given to such term in Section 24.2.

 

(iiii)         “Soft Costs” shall have the meaning given to such term in Section 22.3.

 

(jjjj)          "Structural Elements” shall mean the roof, exterior structural walls, structural columns, structural support beams, floor slabs and the foundation of (i) the Building, (ii) the Garage, and (iii) any accessory structure housing any utilities or equipment serving the Building.

 

 

(kkkk)     “Substantial Completion” or “Substantially Complete” shall mean Landlord having (i) completed Landlord’s Work and delivered to Tenant a certificate from Landlord’s independent architect and/or from Landlord’s engineer, as the case may be, stating that Landlord’s Work has been completed substantially in accordance with the Plans and Specifications and is in good working order and condition, excluding Punch List Items (provided that Landlord proceeds to diligently complete the Punch List Items), and (ii) obtained such approvals as may be necessary with respect to the Building in order for Tenant to obtain permits and to construct the Tenant Improvements.

 

(llll)       “Substantial Completion Date” shall mean the date on which Landlord shall have achieved Substantial Completion with respect to all of Landlord’s Work.

 

(mmmm)   “Successor” shall have the meaning given such term in Section 12.4.

 

(nnnn)     “Superior Lease” shall mean any ground or underlying lease encumbering the Property hereafter made by Landlord, and all renewals, amendments and replacements thereof.

 

(oooo)     “Target Completion Date” shall mean December 1, 2011.

 

(pppp)     “Taxes” shall mean Property Taxes and Other Taxes.

 

(qqqq)    “Tenant Improvement Allowance” shall have the meaning given in Section 22.3.

 

(rrrr)        “Tenant Improvements” shall mean the improvements and additions to the Base Building, to be constructed pursuant to Tenant’s Plans.

 

(ssss)      “Tenant’s Delay” shall mean any delay that Landlord or any of Landlord’s Representatives may encounter in the performance of Landlord’s Work by reason of an act or omission by Tenant including, without limitation, Changes requested by Tenant in accordance with the provisions of Section 22.8 that cause a delay in the schedule for the construction of Landlord’s Work and without a corresponding Landlord’s Delay, Landlord shall give to Tenant notice of the estimated length of any Tenant’s Delay as promptly as is reasonably practicable after Landlord’s reasonable determination of same, Landlord shall use reasonable efforts to mitigate any Tenant’s Delay (but shall not be required to make use of overtime labor). If Landlord and Tenant dispute the existence of a Tenant’s Delay or the number of days resulting from a Tenant’s Delay, such dispute shall be resolved by the Arbitrator.

 

(tttt)        "Tenant Parties" shall mean Tenant's subtenants, employees, agents, contractors, Affiliates, invitees (while on the Property) and licensees.

 

(uuuu)     “Tenant’s Plans” shall have the meaning given to that term in Section 22.2.

 

 

(vvvv)     “Tenant’s Property” shall mean Tenant’s moveable trade fixtures and moveable partitions, telephone and other equipment, furniture, furnishings, work stations and computer systems, decorations and other items of personal property.

 

(wwww)   “Tenant’s Proportionate Share” shall mean (x) 17.0579% of those Operating Expenses that are allocated based on common usage by the retail tenants on the first floor and the office tenants on the remaining floors of the Building, and (y) 20.0% for those Operating Expenses that are allocated based on common usage solely by the office tenants in the Building as further provided in Exhibit P, as the same may be modified from time to time. The schedule of expenses annexed hereto as Exhibit P shall serve as Landlord’s estimate of Tenant’s Proportionate Share of (i) those expenses that shall be proportionately and equitably allocated with all other Persons, and (ii) those expenses that shall be proportionately and equitably allocated with all other office tenants, as may be amended as provided in Exhibit P. Such list is not meant to be all inclusive.

 

(xxxx)     “Tenant’s Statement” shall have the meaning given to such term in subsection 6.2(d).

 

(yyyy)     “Term” shall mean the Primary Term and the Renewal Term(s), if exercised.

 

(zzzz)       “Unavoidable Delay” shall mean any delay caused by the other party hereto; governmental restrictions, governmental regulations, order of civil, military or naval authority, or governmental preemption; strikes, labor disputes, lock-outs, shortage of labor or materials; inability to obtain materials or reasonable substitutes therefor by reason of other Unavoidable Delay; failure of any of the Base Building Systems, the cause of which failure is outside of the applicable party’s control; Acts of God, including without limitation fire, earthquake, floods, and explosions; or war, enemy action, civil commotion, riot or insurrection, or other event beyond the reasonable control of the parties. Notwithstanding the foregoing, (i) lack of funds shall not be deemed an Unavoidable Delay, and (ii) the provisions of this Section shall not excuse Tenant from its obligation to pay Rent as and when due.

 

(ggggg)   “Uninterrupted Power Supply System" or “UPS” shall have the meaning given to such term in Section 11.15.

 

Section 1.2        Consents. Whenever in this Lease a party’s approval or consent is required, such approval or consent shall not be unreasonably withheld, conditioned or delayed, unless otherwise specified herein to be in such party’s sole discretion or otherwise. If given, such approval or consent shall be given in writing, in the manner required for notices under Article 32 herein. Any reference to a matter that it is "approved" by a party shall include “deemed approved” by such party and any reference to a matter that is “deemed approved” by a party shall include “approved” by such party.

 

  

ARTICLE 2

 

Demise; Premises

 

Section 2.1        Demise; Premises. Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, the entirety of the fifth (5^th) floor (the “Premises”^-) in the Building, for the rents, covenants and conditions (including limitations, restrictions and reservations) hereinafter provided. The Premises are shown on the floor plan attached hereto as Exhibit C. The parties agree that for all purposes hereunder the Premises shall be deemed to contain 23,919 rentable square feet and the Building shall contain 140,222 rentable square feet, the non commercial office area of the Building shall be deemed to contain 20,627 rentable square feet, and the commercial office are of the Building shall be deemed to contain 119,595 rentable square feet, determined by the REBNY method of building measurement with a loss factor of 19% (which loss factor does not apply to retail space), Landlord represents that the foregoing rentable square foot area of the Building has been used for all leases in the Building executed to date, and Landlord covenants that during the Term the aggregate percentage of interests of tenants’ proportionate shares (including, without limitation, Tenant’s Proportionate Share) shall not exceed 100%.

 

Section 2.2        Modification of Property. Landlord hereby reserves the right, without the consent of Tenant, to modify or alter the Land that is subject to this Lease, to convey any portion of the Land, to execute or to amend an REA with respect to any portion of the Property, or to perform any combination thereof; provided, that any such modification, alteration, conveyance, execution or amendment shall not adversely affect Tenant’s use and enjoyment of the Property as provided for in this Lease, increase Tenant’s obligations or Landlord’s rights, decrease Tenant’s rights or Landlord’s obligations, under this Lease by more than a de minimis extent or increase the value of the assessed value of the tax lot comprising the Property other than to a de minimis extent, and at all times the Property shall be a first-class property in comparison to other Comparable Buildings. This Section 2.2 shall be self-operative and no further instrument of modification of this Lease shall be required to effectuate such a modification, alteration, conveyance, execution or amendment. Notwithstanding the foregoing, Tenant, at its expense, shall execute and deliver promptly any agreement that Landlord may reasonably request in confirmation of any such modification, alteration, conveyance or execution.

 

Section 2.3         Base Building Improvements. Landlord represents and warrants that the Building conforms to all of the Building Specifications in all material respects.

 

ARTICLE 3

 

Term

 

Section 3.1        Primary Term. The Primary Term shall be for a period beginning on the Commencement Date and ending on the Lease Expiration Date, or such earlier date as hereinafter provided.

 

 

Section 3.2        Renewal Terms.

 

(a)       Tenant shall have the right, at its option, to renew the Term of this Lease with respect to all, and only all, of the then Premises for two (2) terms of five (5) years each, (each a “Renewal Term”); provided, the parties agree that notwithstanding the characterization of such right as a renewal right the parties intend that such right constitutes a right to extend the Term and that no further writing must be signed by Landlord in order for Tenant to exercise such right and/or for such exercise to be binding on Landlord and Tenant (subject to the terms hereof). A Renewal Term shall commence on the day after the expiration of the prior Term and shall expire on the fifth (5^th) anniversary of such commencement date. Each option to renew the Term of this Lease as described above shall be exercisable by Tenant giving notice to Landlord (the “Renewal Notice”) not less than three hundred sixty five (365) days prior to the Lease Expiration Date or the last day of the first Renewal Term, as the case may be, Time shall be of the essence with respect to the date of exercising each option, any principle of law to the contrary notwithstanding, Except for the Fixed Rent and the obligation of Landlord to give a Tenant Improvement Allowance, the terms and conditions of this Lease shall apply to the Renewal Term with the same force and effect as if such Renewal Term had originally been included in the Primary Term of this Lease. All Rent shall commence on the first day of each Renewal Term. The right of Tenant to a Renewal Term shall be conditioned upon the following: (i) no Event of Default shall have occurred and remain uncured (A) as of the date on which the Renewal Notice has been delivered, and (B) on the Lease Expiration Date or the last day of the first Renewal Term, as the case may be; (ii) this Lease shall be in full force and effect as of the Lease Expiration Date or the last day of the first Renewal Term, as the case may be; and (iii) the named Tenant shall not have assigned this Lease, or, at any time during the Primary Term or the first Renewal Term, as the case may be, subleased all or any portion of the Premises, except for subleases or assignments to Affiliates or Successors.

 

(b)       During each Renewal Term, the Fixed Rent shall be the greater of (i) the Rent payable during the last Lease Year of the prior Term, and (ii) 95% of the fair rental value of the Premises as of the date that is six (6) months prior to the commencement of such Renewal Term (the "Fair Rental Value”), taking into account all relevant factors, including that there will be no break in the rent stream for lease-up time, construction time, cash allowances, free rent, or other lease procurement costs. It is expressly agreed that for purposes of this subsection 3.2(b), the Fixed Rent shall be determined as if the Premises were improved with only Building standard tenant improvements completed as of the date Tenant first occupied the Premises. The Fixed Rent shall increase for each Lease Year of the Renewal Term by such rate as shall be determined to be the fair market rental increase (consistent with the Fair Rental Value) at the time the initial Fixed Rent for a Renewal Term is established. In the event that the parties have not agreed upon the Fair Rental Value of the Premises prior to the date that is six (6) months before the commencement of the applicable Renewal Term, the Fair Rental Value shall be determined by arbitration in Stamford, Connecticut before a single Appraiser as follows:

 

(i)       Either of Landlord or Tenant shall initiate the arbitration process by giving notice to that effect to the other on or after the date that is six (6) months before the commencement of the applicable Renewal Term, which notice shall include the name and address of the Appraiser proposed by the party giving such notice, Within ten (10) days after the giving of such notice, the party to whom such notice was given shall give notice to the other

 

 

party either accepting the proposed Appraiser or disputing the proposed Appraiser and requesting the American Arbitration Association (or any successor organization) (the “AAA”) to appoint an impartial Appraiser on the parties' behalf, and both parties shall be bound by any such appointment. If the AAA fails to so appoint an impartial Appraiser, then either Landlord or Tenant may apply to any court having jurisdiction to make such appointment. The Appraiser shall subscribe and swear to an oath to determine, fairly and impartially, such dispute.

 

(ii)       Within seven (7) Business Days after the appointment of the Appraiser, each of Landlord and Tenant shall submit to the Appraiser, with a copy to the other party, its final determination of the Fair Rental Value (each, a “Final Determination”), together with all supporting materials that it desires to have considered by the Appraiser in rendering its determination. If either party shall fail to timely to submit a Final Determination, then the Final Determination of the other party shall be deemed to be the Fair Rental Value. Within seven (7) Business Days after the date that both parties have submitted their respective Final Determination, each of Landlord and Tenant shall thereafter have the right, but not the obligation, to submit rebuttal documentation addressed to the Final Determination of the other party.

 

(iii)      There shall be no discovery in the arbitration.

 

(iv)      The Appraiser shall make a determination of Fair Rental Value by selecting either the amount set forth in Landlord’s Final Determination or the amount set forth in Tenant’s Final Determination, whichever the Appraiser determines is closer to the Fair Rental Value of the Premises. The Appraiser may not select any other amount as the Fair Rental Value. The fees and expenses of any arbitration pursuant to this subsection 3.2(b) shall be borne by the Landlord and Tenant equally, but each of Landlord and Tenant shall bear the expense of its own arbitrator, attorneys and experts and the additional expenses of presenting its own proof. The Appraiser shall not have the power to add to, modify or change any of the provisions of this Lease. After a determination has been made of the Fair Rental Value, each of Landlord and Tenant shall execute and deliver an instrument setting forth the Fair Rental Value, but the failure to so execute and deliver any such instrument shall not affect the determination of the Fair Rental Value.

 

(c)       The determination of the Appraiser shall be binding upon each of Landlord and Tenant and may be entered in any court of competent jurisdiction.

 

(d)       If the determination of the Fair Rental Value shall not be made on or before the first day of the applicable Renewal Term, then, pending such determination, Tenant shall pay, as Fixed Rent for the applicable Renewal Term, the average of Landlord’s Final Determination and Tenant’s Final Determination. Within thirty (30) days after the determination of the Fair Rental Value, an adjustment required to correct the amounts previously paid on account thereof shall be made by the appropriate party.

 

Section 3.3         Cancellation Option.

 

(a)       Tenant may cancel this Lease, effective at midnight on the last day of the sixtieth (60^th) month following the Rent Commencement Date (the “Cancellation Date”).

 

 

provided that; (i) Tenant shall not be in default hereunder beyond any applicable notice and cure period(s), either at the time of giving notice of cancellation or at the Cancellation Date; (ii) Tenant shall have given written notice of cancellation to Landlord at least three hundred sixty five (365) days prior to the Cancellation Date, together with the Cancellation Charge (as hereinafter defined); and (iii) Tenant shall vacate the Premises in compliance with the requirements of this Lease. The cancellation charge (the “Cancellation Charge”) shall equal the sum of (i)$2,071,740,00; and (ii) an amount equal to six (6) times the monthly installment of Additional Rent in respect of Operating Expenses payable for the month immediately preceding the Cancellation Date, provided, however, that Tenant shall have the right to estimate the amounts equaling that portion of the Cancellation Charge in clause (ii) of this sentence if Tenant does not have sufficient information to confirm the amounts thereof (but which amount will be revised by either a reimbursement to Tenant for any overpayment or paid to Landlord for any underpayment). Landlord will provide to Tenant not later than ninety (90) days prior to the Cancellation Date Landlord’s calculation of the Cancellation Charge. Such calculation shall be binding unless Tenant sends to Landlord in reasonable detail the basis upon which Tenant disputes such calculation within ten (10) Business Days following Tenant’s receipt of such calculation from Landlord. If Tenant so timely disputes such calculation, then the parties shall submit such dispute to arbitration in accordance with the procedure set forth in Section 3.2 hereof, except that the arbitrator shall be an accountant reasonably acceptable to both parties. Absent full and timely exercise of the cancellation option in accordance with the initial two sentences of this Section 3.3(a), this Lease shall remain in effect until the Lease Expiration Date (subject to renewal by Tenant in accordance with Section 3.2). Time shall be of the essence with respect to the dates specified herein.

 

(b)       The cancellation option provided herein shall be personal to Tenant and to any Affiliate or Successor of Tenant, and this option shall not be of further force or effect in the event of any transfer of Tenant’s interest in and to the Premises other than to one or more such Affiliates and/or Successors.

 

Section 3.4         Short-Term Extension. In addition to Tenant’s options to renew the Term of this Lease pursuant to Section 3.2, Tenant shall have the right, at its option, to extend the Term of this Lease (i.e., the Primary Term or any Renewal Term) for a period of sixty (60) days from the end of the then current Term (the “Short-Term Extension”). The Short-Term Extension, if exercised, shall commence on the expiration of the then current Term and shall expire at the end of the sixtieth (60^th) day after such commencement date. Tenant’s option to extend the Term of this Lease for the Short-Term Extension as described above shall be exercisable by Tenant giving notice to Landlord not less than nine (9) months prior to the Primary Term Expiration Date or the last day of the then current Renewal Term, as the case may be. TIME SHALL BE OF THE ESSENCE with respect to the exercise of the option, any principle of law to the contrary notwithstanding. The terms and conditions of this Lease applicable to the then current Term shall apply to the Short-Term Extension with the same force and effect as if the Short-Term Extension had originally been included in the Term of this Lease. The right of Tenant to the Short-Term Extension shall be conditioned upon this Lease being in full force and effect as of the last day of the then current Term.

 

 

ARTICLE 4

 

Rent

 

Section 4.1        Fixed and Additional Rent. Tenant shall pay to Landlord, without notice or demand, in lawful money of the United States of America, at the office of Landlord or at such other place as Landlord may designate, the following:

 

(a)       Annual fixed rent (the “Fixed Rent”) payable in equal monthly installments, in advance on the first day of each and every calendar month during the Term, commencing on the Rent Commencement Date (provided, that if the Rent Commencement Date is not the first day of a month, then the Fixed Rent for the month in which the Rent Commencement Date occurs shall be prorated and paid on the Rent Commencement Date), as follows:

 

Lease			Fixed Rent Per								Monthly
Year			Rentable Sq. Ft.				Fixed Rent				Installments
1			$	42.75			$	1,022,537.25			$	85,211.44
2				43.61				1,042,988.00				86,915.67
3				44.48				1,063,847.75				88,653.98
4				45.37				1,085,124.71				90,427.06
5				46.27				1,106,827.20				92,235.60
6				47.20				1,128,963.75				94,080.31
7				48.14				1,151,543.02				95,961.92
8				49.11				1,174,573.88				97,881.16
9				50.09				1,198,065.36				99,838.78
10				51.09				1,222,026.67				101,835.56

 

(b)       Each item of Additional Rent shall he due thirty (30) days after receipt by Tenant of a bill therefor together with reasonable backup documentation thereof. No Additional Rent in respect of Taxes and Operating Expenses shall be payable prior to the Rent Commencement Date, and from and after the Rent Commencement Date such items shall be payable with respect to the period commencing from and after the Rent Commencement Date. Tenant shall pay for the cost of electricity provided at the Premises from and after the Commencement Date as provided in Section 11.3. Landlord shall have the same remedies for a default in the payment of Additional Rent as for a default in the payment of Fixed Rent.

 

Section 4.2        Late Charge. If Landlord or Tenant shall fail to pay to the other any amount, when the same is due and payable, such unpaid amounts shall bear interest from the date which is five (5) days following the due date thereof to the date of payment at the Default Rate.

 

Section 4.3         No Set-Offs. There shall be no abatement of, deduction from, counterclaim or set off against Rent, except as otherwise specifically provided in this Lease.

 

 

ARTICLE 5

 

Use

 

Section 5.1         Use. Tenant shall use and occupy the Premises for executive, general and administrative offices for the business of Tenant (which may include a trading floor/area), its Affiliates and Successors and its permitted subtenants, and for ancillary uses thereto that comply with Applicable Laws, and for no other purpose. Subject to Landlord’s approval as set forth in Section 9.3 and in Section 22.2, Tenant may install food pantries, kitchenettes, vending machines and areas where Tenant Parties may consume food; provided. Tenant Parties shall not engage in grease laden cooking or cooking that generates excessive smoke or fumes within the Premises. All goods sold in vending machines within the Premises shall be purchased from Landlord’s cafeteria operator unless, after thirty (30) days written notice to Landlord and an opportunity to cure, said cafeteria operator fails to provide reasonable service, selection and competitive pricing for such goods consistent with that found in Comparable Buildings. Tenant shall not use or occupy or suffer to permit the use or occupancy of the Premises or any part thereof which in Landlord’s reasonable judgment shall adversely affect or interfere with any services required to be furnished by Landlord to Tenant or to any other tenant or occupant of the Building or of the Park, or with the proper and economical rendition of any such service or with the use or enjoyment of any part of the Building or of the Park by any other tenant or occupant but notwithstanding anything to the contrary herein, Landlord represents that use of the Premises for any of the purposes described in the first sentence of this Section 5.1 shall not violate the second sentence of this Section 5.1 or the REA.

 

Section 5.2        Restrictions On Use. Tenant shall not use or occupy, or suffer or permit the Premises or any part thereof to be used in any manner, or suffer or permit anything to be done therein or brought into or kept therein, which would in any way: (a) violate any Applicable Laws; (b) make void or voidable any insurance policy then in force with respect to the Building or the Property including, without limitation, any protective safeguards endorsement or sprinkler credit (provided, that mere executive, general and administrative office use will not be deemed to have made void or voidable any such policy); (c) make unobtainable from reputable insurance companies authorized to do business in the State of Connecticut at standard rates any fire insurance with extended coverage, or liability, elevator, boiler or other insurance required to be furnished by Landlord under the terms of a Mortgage or Superior Lease, if any (provided, that mere executive, general and administrative office use will not be deemed to have made unobtainable any such policy); (d) cause, or be likely to cause, physical damage to the Property or any portion of the Property (other than reasonable wear and tear or as part of Tenant Improvements or Alterations approved by Landlord in accordance with provisions of Article 9 and Article 22); (e) constitute a public or private nuisance; (f) materially or unreasonably impair the appearance or reputation of the Building or materially increase the risk of environmental damage at the Property; (g) result in the Premises being classified as an establishment under the Connecticut Transfer Act, Conn. Gen. Stats. §22a-134 et seq; (h) discharge noxious fumes, vapors or odors into the Building’s air conditioning system or into the Building’s flues or vents or otherwise in such a manner as may cause unreasonable disturbance to the other occupants of the Building or of the Park; or (i) cause noise to escape from the Premises as may cause unreasonable disturbance to the other occupants of the Building or of the Park. The provisions of this Section 5.2, and the application hereof, shall not be deemed to be limited in any way to or

 

 

by any other provisions of this Lease or any of the Rules and Regulations (provided, that mere executive, general and administrative office use and that Tenant’s operation as provided in this Lease will not be deemed to violate this Section 5.2).

 

Section 5.3         Certificate of Occupancy. Tenant shall not at any time use or occupy, or suffer or permit the use or occupancy of, the Premises in violation of the certificate of occupancy issued for the Premises or the Building or the applicable zoning ordinances of the City of Stamford, and if any governmental authority shall hereafter contend or declare by notice, violation, order or in any other manner whatsoever that the Premises are being used for a purpose that violates such certificate of occupancy, then Tenant shall promptly discontinue such use or occupancy, or such sufferance of such use or occupancy, of the Premises provided, however, that Landlord represents that Tenant’s use of the Premises as provided in Section 5.1 hereof is within uses expected in the Certificate of Occupancy and Landlord will not seek to limit the Certificate of Occupancy or preclude any use as described in Section 5.1.

 

Section 5.4         Floor Load. Tenant shall not place a load upon any floor of the Premises that exceeds the floor load per square foot that such floor was designed to carry and which is allowed by Applicable Laws. If Tenant wishes to place any Alterations in the Premises that exceed such floor load and therefore require structural reinforcement to the Premises, then Tenant shall install structural reinforcement in accordance with the provisions of Article 9.

 

Section 5.5         Signage. Tenant may, subject to Landlord’s approval of plans and specifications therefor, place signs in the Premises, including but not limited to signage in the lobby of any floor of the Premises, any Building lobby directory and on all interior doors within the Premises. Tenant shall not have any right to signage on the Property other than the signage described in this Section 5.5 without Landlord’s prior approval, which approval may be withheld in Landlord’s sole discretion. All signage described in this Section 5.5 shall comply with Applicable Laws, and the signage visible from the exterior of the Premises shall be subject to Landlord’s approval for consistency with the design criteria attached as Exhibit Q (such approval to be granted or denied within ten (10) Business Days after Landlord’s receipt of plans of such proposed signage, failing which it shall be deemed approved).

 

 

ARTICLE 6

 

Operating Expenses

 

Section 6.1         Payments.

 

(a)       In addition to Fixed Rent, commencing on the Rent Commencement Date, Tenant shall be liable for the payment of Tenant’s Proportionate Shave of the Operating Expenses, as hereinafter defined. Tenant’s Proportionate Share of the Operating Expenses as of the Commencement Date shall be estimated at the rate of $15.00 per rentable square foot of the Premises (resulting in an anticipated annual sum of payable by Tenant of $358,785.00 (i.e., the total rentable square footage of the Premises (23,919) multiplied by $15.00), and a monthly payment of $29,898.75 per month until Landlord notifies Tenant of Tenant’s new estimated payment as hereinafter provided. Notwithstanding anything to the contrary herein, Tenant shall not be liable for an increase of more than three percent (3%) in the aggregate per annum, on a cumulative basis, for all Controllable Expenses, over a baseline expense factor during calendar year 2012 of $6.67 per rentable square foot of the Premises (the “Controllable Expense Cap”). For the purposes hereof “Controllable Expenses” shall mean all Operating Expenses other than (i) utilities, (ii) insurance premiums and (iii) Property Taxes. Any provision of this Lease to the contrary notwithstanding, Tenant shall have no liability for, or obligation to pay, any share of Operating Expenses until, or relating to any period preceding, the Rent Commencement Date. For purposes hereof, "utilities” shall mean water, sewer, gas, electric and fuel oil supplied to the Building and any alternate energy source that might be used during the Term to provide the services Landlord is required to provide under the Lease.

 

(b)       On or prior to January 1 of each calendar year during the Term, Landlord shall notify Tenant of the projected Operating Expenses for such upcoming calendar year and of Tenant’s new estimated monthly payment, determined by Landlord in its reasonable discretion; provided, however, that if Landlord fails to provide such an estimate, Landlord shall not be in default hereunder and Tenant shall continue to pay Tenant’s Proportionate Share of estimated Operating Expenses based on the latest estimate furnished to Tenant. Notwithstanding anything to the contrary herein, no such estimate shall provide that Tenant’s payment with respect to Controllable Expenses will exceed the Controllable Expense Cap applicable to such upcoming calendar year. All monthly installments of Tenant’s Proportionate Share of the estimated Operating Expenses thereafter due during such calendar year shall be increased or decreased, as the case may be, to reflect one-twelfth (1/12) of the annual amount of the new estimate until a new adjustment becomes effective. In addition, if there is a change in the information on which Landlord based the estimate upon which Tenant is then making its payment of Tenant’s Proportionate Share of the estimated Operating Expenses so that such estimate is no longer accurate, Landlord shall be permitted (but not more than once per Lease Year) to revise such Tenant’s Proportionate Share of the estimated Operating Expenses by notice to Tenant (with reasonable back-up information to support the change), and upon the giving of such notice by Landlord, all monthly installments thereafter due during such calendar year shall be further adjusted to reflect such increase or decrease; provided that the first payment from Tenant to Landlord of such increase shall not be due until thirty (30) days after Tenant has received such notice from Landlord. With respect to the first calendar year, prior to the Rent Commencement Date, Landlord shall notify Tenant of the projected Operating Expenses for the balance of such

 

 

calendar year and of Tenant’s estimated monthly payment that shall be payable from and after the Rent Commencement Date.

 

Section 6.2         Landlord’s Statement.

 

(a)       Within one hundred twenty (120) days after the end of each calendar year during the Term, Landlord shall furnish Tenant with a statement reflecting the actual Operating Expenses for the prior calendar year (“Landlord’s Statement”). Upon receipt of such statement, Tenant may request, and Landlord shall within thirty (30) days provide, reasonable back-up documentation for same. If Tenant’s Proportionate Share of actual Operating Expenses for any prior calendar year shall be greater (resulting in a deficiency) or shall be less (resulting in an excess), than the estimated amount actually paid by Tenant during such calendar year, then: (i) Tenant shall, in case of such a deficiency, pay to Landlord as Additional Rent for such calendar year the amount of the difference, in a lump sum on the later of (x) the due date of the next succeeding monthly installment of Fixed Rent after the date of notice to Tenant or (y) 30 days after such notice of deficiency; or (ii) in case of such an excess, Landlord shall credit to Tenant the amount of the difference against the next due payments of Additional Rent, or in the case of the expiration of the Lease, Landlord shall remit Tenant such difference within thirty (30) days. Any adjustment for the final year of the Term shall survive the expiration thereof. If Landlord shall fail to deliver a Landlord’s Statement for any year (including the final year of the term of this Lease), Tenant may initiate, and the parties shall join in, an arbitration pursuant to Section 3.2 hereof to obtain disclosure of the information that would have been provided if Landlord had sent its Landlord’s Statement. Once Tenant has obtained such information in the arbitration, all of Tenant’s rights set forth in the balance of this Section 6.2 shall be applicable.

 

(b)       Landlord shall render to Tenant Landlord’s Statement at any time during or after the Term (but in no event later than after the second anniversary of the last day of the calendar year to which such Landlord’s Statement relates). Landlord’s failure to so render Landlord’s Statement with respect to any calendar year, or Landlord’s delay in so rendering Landlord’s Statement beyond the date specified in this subsection 6.2(b). shall preclude Landlord from rendering a Landlord’s Statement with respect to such calendar year, but shall not prejudice Landlord’s right to timely render a Landlord’s Statement with respect to any subsequent year. The obligations of Landlord and Tenant under the provisions of this Article shall survive the expiration or earlier termination of the Term.

 

(c)       Each Landlord’s Statement shall be conclusive and binding upon Tenant unless, within six (6) months after receipt of such Landlord’s Statement, Tenant shall notify Landlord that it disputes the correctness of Landlord’s Statement, specifying in reasonable detail the respects in which Landlord’s Statement is claimed to be incorrect, but reserving the right to challenge any additional items that may arise during the course of any audit. Tenant’s dispute as to the correctness of Landlord’s Statement may include, without limitation, a dispute as to Landlord’s determination of the appropriate Tenant’s Proportionate Share in respect to the allocated costs of services among tenants within the Building and among users of such services within the Park. Pending the determination of such dispute Tenant shall pay Tenant’s Proportionate Share of the Operating Expenses in accordance with the applicable Landlord’s Statement within twenty (20) days after receipt of such Landlord’s Statement, and such payments shall be without prejudice to Tenant’s position. Tenant (and its consultants) may, upon

 

 

reasonable prior notice to Landlord, inspect the records of the material reflected on any Landlord’s Statement during the six (6) month period and make copies thereof. Tenant shall maintain the results of any such inspection on a confidential basis except that Tenant may disclose such results to its accountants, attorneys, and other advisors (provided that they agree to maintain the results of any such inspections on a confidential basis), and shall disclose such results to the extent necessary or desirable in any proceeding or otherwise as required by Applicable Laws, Such inspection may be done only by Tenant’s employees or contractors on a time basis, as distinguished from a contingent fee basis.

 

(d)       Tenant, on or prior to the last day of the six (6) month period described in subsection 6.2(c) above, may send a notice (“Tenant’s Statement”) to Landlord that Tenant disagrees with the applicable Landlord’s Statement, specifying in reasonable detail the basis for Tenant’s disagreement and the amount of Tenant’s Proportionate Share of the actual Operating Expenses that Tenant claims is due (subject to increase in the amount of said challenge). Landlord and Tenant shall attempt to settle such disagreement. If they are unable to do so within thirty (30) days following delivery of a Tenant’s Statement, then either party may notify the other that such disagreement shall be determined by a CPA in accordance with this subsection 6.2(d), and promptly thereafter Landlord and Tenant shall jointly designate a certified public accountant (the “CPA”) whose determination made in accordance with this subsection 6.2(d) shall be binding upon the parties. The CPA shall be a member of an independent certified public accounting firm having at least twenty accounting professionals and shall have at least ten (10) years immediately preceding experience performing accounting services for landlords and tenants relating to operating expenses for Comparable Buildings. If Landlord and Tenant shall be unable to agree upon the designation of the CPA within 15 days after receipt of notice from the other party requesting agreement as to the designation of the CPA, which notice shall contain the names and addresses of two or more certified public accountants who are acceptable to the party sending such notice, then either party shall have the right to request the AAA to designate the CPA. The CPA designated by the AAA shall not have provided services to Landlord or Tenant on any prior occasion. Any determination made by the CPA shall not exceed the amount determined to be due in the first instance by Landlord’s Statement, nor shall such determination be less than the amount claimed to be due by Tenant in Tenant’s Statement (as Tenant’s Statement may be amended by Tenant prior to submission to the CPA based upon Tenant’s review of Landlord’s records), and any determination which does not comply with the foregoing shall be null and void and not binding on the parties. In rendering such determination the CPA shall not add to, subtract from or otherwise modify the provisions of this Lease, including the immediately preceding sentence, If it shall be determined (by agreement or arbitration) that Landlord overcharged Tenant for its Proportionate Share of the actual Operating Expenses, then Landlord shall credit to Tenant the amount of the difference against the next due payments of Additional Rent, or in the case of the expiration of the Lease, Landlord shall remit Tenant such overpayment within thirty (30) days, In addition, if it shall be determined (by agreement or arbitration) that Landlord overcharged Tenant by five percent (5%) or more of the charges referenced on Landlord’s Statement, but in no case less than $5,000, then Landlord shall be responsible for the fees and expenses of the CPA, and Landlord shall reimburse Tenant, within thirty (30) days thereafter, for all third party fees and expenses incurred by Tenant in connection with its audit of Operating Expenses and such arbitration proceeding and such interest. If it shall be determined that Landlord did not overcharge Tenant to the degree as aforesaid, then Tenant shall be responsible for the fees and expenses of the CPA, and Tenant shall reimburse Landlord.

 

 

within thirty (30) days thereafter, for all third party fees and expenses incurred by Landlord in connection with Tenant’s audit of the Operating Expenses and such arbitration proceeding.

 

Section 6.3         Operating Expenses.

 

(a)       The term “Operating Expenses” shall mean any and all reasonable, out- of-pocket expenses paid or incurred by Landlord (computed on an accrual basis or modified cash basis so long as same is consistently applied) for the operation of the Property, net of any discounts, including, without limitation (but without duplication):

 

(i)        wages and salaries of all necessary employees up to the level of facilities manager, including concierge, clerical personnel, engaged in the physical operation and maintenance of the Property, including Employer’s Social Security Taxes, and any other taxes that may be levied on such wages and salaries, and any and all fringe benefits provided for such employees;

 

(ii)       all supplies and material used in the operation and maintenance of the Property; provided, that if and to the extent any of the foregoing are used at or with respect to any other property, then the cost thereof shall only be included in Operating Expenses in the same proportion that such use at or with respect to the Property reasonably bears to the aggregate use thereof at all properties;

 

(iii)       the cost of supplying HVAC to Common Areas at all times and to tenanted areas of the Building during Business Hours, and the cost of operation of the elevators, as well as the cost of all utilities supplied to the Common Areas;

 

(iv)      the costs of maintaining, repairing, snow plowing, lining and lighting all appurtenant parking, sidewalk and ingress areas, including traffic controls, and the planting, mowing and maintaining of all planted areas within or appurtenant to the Property;

 

(v)       the allocable costs of all maintenance and service agreements on equipment used in the operation and maintenance of the Property;

 

(vi)      insurance premiums for the Property;

 

(vii)     the costs of repairs, cleaning and maintenance of the Property and appurtenances thereto but excluding any costs for which Landlord is reimbursed;

 

(viii)    any capital expenses (including any charges and assessments under the REA) which (A) result in a reasonable cost savings reduction of any item of Operating Expenses, as for example, a labor-saving improvement, or (B) are required by Applicable Laws that first become effective on or after the Substantial Completion Date, then the annual amortization (calculated on a straight-line basis over the useful life of the capital item in question, as determined by generally accepted accounting principles consistently applied (“GAAP”)), with interest at the rate of eight percent (8%) per annum on the unamortized cost of such capital item, may be included in Operating Expenses;

 

 

(ix)      Taxes, provided, however, that if, as an economic incentive to Tenant, any reduction in the Property Taxes assessed against the Property is granted by a governmental agency (including, without limitation, the Stamford Enterprise Zone Real Estate Tax Incentives) the credit for such reduction shall be fully applied against Tenant’s liability for Operating Expenses hereunder and neither Landlord nor any other tenant shall receive the benefit thereof;

 

(x)       management fees pertaining to operation of the Property (not to exceed three percent (3%) of the aggregate Rent);

 

(xi)       all charges and assessments under the REA (other than initial construction costs), if applicable, allocable to the Property charges under the REA for restoration of damage by casualty to the extent that insurance proceeds are not received therefor, provided that costs that would have been covered by insurance proceeds if Landlord (or any Landlord Affiliate as the case may be) had maintained the insurance expressly required under this Lease (and in the case of a Landlord Affiliate, under the REA) shall not be permitted Operating Expenses. For avoidance of doubt, the parties agree that any expense associated with the REA which would be an Operating Expense if it were incurred with respect to the Building shall be a permitted Operating Expense allocable to the Property, and any expense associated with the REA which would not be an Operating Expense if it were incurred with respect to the Building shall not be a permitted Operating Expense allocable to the Property;

 

(xii)      the cost of maintaining and repairing, and of all supplies and materials used in the operation and maintenance of, the Base Building generator serving the Property; and

 

(xiii)     the cost of services for specialty facilities within the Park, if they exist and are made available to Tenant, including, without limitation, a cafeteria, fitness center, shuttle service or conference facilities.

 

(b)       Anything herein to the contrary notwithstanding, there shall be excluded from Operating Expenses the following:

 

(i)        debt service on mortgages, deeds of trust or other monetary encumbrances upon the Property or any part thereof or costs associated with conveyancing;

 

(ii)       any cost or expense (x) for which Landlord is compensated (or could reasonably claim compensation) through insurance or condemnation awards or would have been compensated if Landlord maintained the insurance expressly required under this Lease or is otherwise compensated by any tenant (including Tenant) of the Property, or (y) which exceeds commercially reasonable deductibles;

 

(iii)       any fee or expenditure paid to any Person which shall be an Affiliate (as hereinafter defined) of Landlord, in each case in excess of the amount which would be paid in the absence of such relationship;

 

(iv)      the cost of electricity furnished directly to tenants of the Building;

 

 

(v)       the cost of supplying utilities or services to other tenants of the Building which Tenant is not entitled to receive or is not entitled to receive without a separate charge and the cost of any item, utility or service for which Tenant or another tenant separately reimburses Landlord or pays the cost thereof directly to third parties (including, without limitation, Overtime HVAC);

 

(vi)     costs incurred in the removal, encapsulation, replacement with alternative substances or disposal of asbestos or asbestos-containing materials, the costs of removing and remediating any environmental contamination, including Hazardous Materials, and all costs of defending, challenging and complying with any governmental orders requiring the remediation of any environmental contamination, including any Hazardous Materials (provided, periodic monitoring of environmental conditions shall not be excluded);

 

(vii)     depreciation, interest payments and amortization or rent under leases which represents capital items otherwise excluded under Section 6.3(b)(xxv);

 

(viii)    rent paid under Superior Leases (other than in the nature of rent consisting of taxes or operating expenses or other “pass-through” escalations);

 

(ix)       leasehold improvements made for tenants of the Building or any other inducements or concessions provided to tenants (including, without limitation, work allowances, moving costs, free rent, discounted or free services), leasing commissions, advertising, promotion costs, association costs (except REA costs as provided in Section 6.3(a)(xi)) and other fees and expenses, including, without limitation, legal fees, relating to procuring tenants to rent space in the Property or other sales or promotional marketing activity;

 

(x)        Landlord’s general corporate (e.g., costs relating to Landlord’s parent’s operations generally (including properties other than the Property)) and general overhead expenses and administrative costs, to the extent same are not directly related to the operation of the Property, including wages, salaries and benefits except as provided in Section 6.3(a)(i);

 

(xi)       repairs due to design errors/omissions and/or faulty construction in connection with Landlord’s Work, or other improvements within two (2) years from Tenant’s occupancy at the Premises;

 

(xii)      costs, fines, interest or penalties incurred to cure violations of Applicable Laws or because Landlord violated any Applicable Laws or due to the late payment of any Operating Expense, Taxes or charge under the REA;

 

(xiii)     costs incurred because Landlord or another tenant violated the terms of any lease and costs incurred because Landlord violated any contract affecting the Property;

 

(xiv)    legal fees, costs and disbursements based upon or resulting from Landlord’s negligence, willful misconduct or other tortious conduct, relating to the negotiation, dispute, settlement or enforcement of any lease provisions (except for enforcing any lease provisions for the benefit of the Building tenants generally), relating to the defense of Landlord’s

 

 

title to or interest in the Property, or relating to the negotiation and preparation of tenant leases and related documents (including this Lease) or relating to any financing, loans or bonds relating to the Property or the Park or the construction or capital improvement of the infrastructure or components or elements thereof;

 

(xv)     costs incurred by Landlord to the extent that Landlord is reimbursed by governmental agencies or entities;

 

(xvi)    other costs and expenses which, under GAAP, would not be considered normal maintenance, repair, or operating costs;

 

(xvii)   sums excluded from the definition of Taxes;

 

(xviii)  costs relating to withdrawal liability on unfunded pension obligations;

 

(xix)    bad debt losses, political and charitable contributions and unlawful payments to third parties;

 

(xx)      costs of constructing or in any way related to any specialty facility at the Property;

 

(xxi)     costs and expenses incurred by Landlord in connection with the sale, refinancing or transfer of the Property;

 

(xxii)   any charges and assessments under the REA, if applicable, allocable to the Property and relating to the initial installation or construction or redevelopment thereof; any charges and assessments under the REA arising from fines imposed on Landlord for failure timely to construct the Building or any other building in the Park and from costs incurred to repurchase any Unit (as defined in the REA); any charges and assessments under the REA resulting from Landlord’s liability under the general indemnity provision of the REA (except if and to the extent that such liability is incurred by Landlord as a result of the acts of Tenant or any Tenant Party); and any charges and assessments under the REA resulting from fees imposed on the sale of the Building or any other building in the Park owned by Landlord.

 

(xxiii)   costs relating to the initial construction, expansion or redevelopment of the Park;

 

(xxiv)   repairs necessitated by any construction in the Park or costs or expenses arising from correcting defects or inadequacies in the construction of any portion of the Park to the extent covered by warranties or guaranties;

 

(xxv)   capital expenses other than those provided in Section 6.3(a)(viii); and

 

(xxvi)   The cost of overtime or other expenses in curing a Landlord Default or performing work expressly provided in this Lease to be borne at Landlord’s sole expense.

 

 

Section 6.4         Intentionally omitted.

 

Section 6.5        Taxes on Tenant’s Property. Tenant shall be solely responsible for the payment of any Taxes pertaining to Tenant’s Property.

 

ARTICLE 7

 

Insurance

 

Section 7.1         Prohibited Acts; Compliance.

 

(a)       Tenant shall not do anything, or suffer or permit anything to be done in or about the Property which shall (a) subject Landlord to any liability or responsibility for injury to any person or property by reason of any activity being conducted in the Premises; (b) cause any increase in the fire insurance rates applicable to the Building or equipment or other property located therein or cause the noncompliance of the Property with the provisions of any insurance policy including, without limitation, any protective safeguards endorsement; or (c) be prohibited by any license or other permit required or obtained pursuant to this Lease, including the certificate of occupancy for the Building.

 

(b)       Tenant, at its expense, shall comply with all rules, regulations or requirements of the applicable Board of Fire Underwriters and the applicable Fire Insurance Rating Organization or any similar body, provided that such compliance does not require structural changes to the Premises or changes to Building Systems or changes outside the Premises unless such changes are necessitated or occasioned by Tenant’s particular manner of use or occupancy of or Tenant’s Alterations to the Premises. Landlord shall comply with all such rules, regulations and requirements applicable to the Common Areas.

 

(c)       Notwithstanding anything to the contrary, herein, Landlord represents that Tenant’s use of the Premises as provided in this Lease shall not violate any of the restrictions contained in this Section 7.1.

 

Section 7.2         Rate Increases. If by reason of any act, omission or negligence on the part of Tenant, the rate of fire insurance and related coverage on the Property or equipment or other property of Landlord or any other tenant or occupant of the Building shall be higher than it otherwise would be, Tenant shall reimburse Landlord and all such other tenants or occupants, within thirty (30) days after demand therefor together with reasonable backup documentation, for that part of the premiums for fire insurance and extended coverage paid by Landlord and such other tenants and occupants due to such act, omission or negligence on the part of Tenant.

 

Section 7.3         Tenant’s Insurance Requirements.

 

(a)       From and after the Commencement Date, and during the Term, Tenant shall, at its expense, secure and maintain general liability insurance written on a so-called “commercial” general liability form with combined single limit coverage (for personal injury, property damage or death arising out of any one (1) occurrence) in minimum limits of $ 1,000,000 per occurrence, including excess liability coverage, of at least $5,000,000 umbrella coverage, naming Landlord, Mortgagee of which Tenant has been advised and Landlord’s

 

 

designees as additional insureds under the policy. Tenant shall deliver to Landlord duplicate certificates of such insurance prior to taking occupancy of the Premises and shall deliver new certificates at least ten (10) days prior to the expiration of the existing coverage. Such certificates shall provide that in the event of termination or material change in coverage, Landlord shall be given thirty (30) days’ advance notice (except in the case of non-payment of premium in which case ten (10) days’ advance notice shall be given) in writing sent by certified mail to the notice address of Landlord under Section 34.1 herein. Such insurance shall contain a waiver of the insurer’s right of subrogation against Landlord. Said coverage limit shall be increased if, in Landlord’s reasonable judgment, increased limits are required to protect Landlord and Tenant against claims covered thereby, but not more often than every three (3) years provided such other insurance may be obtained at commercially reasonable rates. If Tenant shall voluntarily carry any liability insurance in an amount greater than required hereunder, such insurance shall comply with the requirements of this Section.

 

(b)       Tenant shall maintain “special cause of loss property form” insurance covering the Premises and Tenant’s Property within the Premises, with replacement value coverage.

 

(c)       Tenant shall obtain such other insurance in such amounts as may from time to time be reasonably required by Landlord against other insurable hazards which at the time are commonly insured against, or resulting from a change in local practice in the case of construction or alteration of buildings and/or in the case of premises similarly situated, due regard being given to the type of building, its location, construction, use and occupancy provided such other insurance may be obtained at commercially reasonable rates. When payment is made on any policy including a deductible, Tenant shall pay such deductible amount to the payee of the insurance proceeds at the time the proceeds are paid.

 

(d)       All insurance required to be maintained by Tenant under this Section and all renewals thereof shall be issued by good and responsible companies qualified to do and doing business in the State of Connecticut and having Standard & Poor’s Corporation claims paying ability rating of at least “A” and shall be satisfactory to Landlord and Mortgagee. In the event that Tenant’s insurance company’s Standard & Poor’s Corporation claims paying ability rating falls below an “A” rating, unless Landlord and Mortgagee consent to an insurance company with a lower rating, Tenant shall diligently, and in all events within not more than 180 days after becoming aware of the insurance company’s downgrade, acquire all insurance required to be maintained by Tenant hereunder from a new insurance company having Standard & Poor’s Corporation claims paying ability rating of at least "A”; provided however, that at no time shall Tenant permit any insurance policy to lapse. Deductible amounts in excess of $250,000 for insurance required by subsection (a) above shall be subject to Landlord’s and Mortgagee’s prior written approval (such approval, in the case of Landlord, not to be unreasonably withheld, delayed or conditioned). In the event payment is made on any policy where a deductible amount is in effect, Tenant shall pay such deductible amount to the recipient of the insurance proceeds at the time such insurance proceeds are paid to such recipient. Bach policy to be maintained by Tenant shall expressly provide that the policy shall not be canceled or altered without thirty (30) days prior written notice to Landlord and Mortgagee and shall remain in effect notwithstanding any such cancellation or alteration until such notice shall have been given to Landlord and Mortgagee and such period of thirty (30) days shall have expired. All property and casualty

 

 

insurance shall list Landlord and (so long as Tenant shall have been provided the name and other relevant information) Mortgagee as additional insureds and as “loss payess”, and all other insurance under this Section to be maintained by Tenant shall name Landlord and the Mortgagee as additional insureds, All insurance shall be primary and noncontributing with any insurance which may be carried by Landlord, shall afford coverage for all claims based on any act, omission, event or condition that occurred or arose (or the onset of which occurred or arose) during the policy period. Upon the issuance of each such policy to be maintained by Tenant, Tenant shall deliver a certificate thereof (Accord 27 form) to Landlord for retention by Landlord or the Mortgagee. Landlord and/or Mortgagee, shall have the right, upon seasonable notice to Tenant, to inspect, review and make copies of all insurance policies required to be maintained by Tenant at such location where Tenant keeps said policies.

 

(e)       Landlord acknowledges and agrees that, provided Landlord receives, upon written request to Tenant, endorsements to all policies required to be maintained by Tenant hereunder, Tenant’s compliance with this Section 7.3 shall satisfy any insurance requirement that may be sought to be imposed upon Tenant.

 

Section 7.4     Waiver of Subrogation.

 

(a)       Landlord and Tenant each hereby waives its respective right of recovery against the other and each releases the other from any claim arising out of loss, damage or destruction to the Property and contents thereon or therein, to the extent of net insurance proceeds actually received by the releasing party, whether or not such loss, damage or destruction may be attributable to the fault or negligence of either party, or any of its respective partners, agents, invitees, contractors or employees, or any agents, invitees, contractors or employees of any partner or member of Landlord. Each party shall look first to the proceeds of its respective property insurance policy (and to its own funds to the extent it is self-insured) to compensate it for any such loss, damage or destruction.

 

(b)       Landlord and Tenant shall cause their respective insurers to issue appropriate waiver of subrogation endorsements to all policies and insurance carried in connection with the Property or the contents of either of them. Anything is this Lease to the contrary notwithstanding, Landlord and Tenant shall look first to the proceeds of their respective insurance policies before proceeding against each other in connection with any claim relating to any matter covered by this Lease.

 

Section 7.5    Landlord’s Insurance Obligations. Landlord, at its cost and expense, shall obtain and maintain in effect as long as this Lease remains in effect, insurance policies providing at least the following coverages:

 

(a)       general liability insurance, in occurrence form, insuring Landlord against any and all liability for injury to or death of a person or persons, and for damage to or destruction of property, occasioned by or arising out of or in connection with the ownership or management of the Property, and including contractual liability coverage for Landlord’s indemnity obligations under this Lease (other than those contained in Article 24 hereof), to afford protection with a minimum combined single limit of liability of at least $10,000,000, including excess liability coverage;

 

 

(b)       standard all-risk property and casualty insurance, insuring the Building and all other improvements on the Land against those risks normally encompassed in an all-risk policy, as well as such other risks as a reasonably prudent owner of similar commercial buildings in the locality where the Building is located would normally insure against, such insurance to provide for the payment of full replacement cost in the event of a total destruction of the Building and other improvements; and

 

(c)       worker’s compensation and similar insurance offering statutory coverage and containing statutory limits and employer’s liability insurance in form and amount deemed reasonable by Landlord in the exercise of its prudent business judgment.

 

(d)       Landlord shall obtain such other insurance in such commercially reasonable amounts as may from time to time be reasonably required against other insurable hazards which at the time are commonly insured against, or resulting from a change in local practice in the case of construction or alteration of buildings and/or in the case of premises similarly situated, due regard being given to the type of building, its location, construction, use and occupancy.

 

ARTICLE 8

 

Compliance with Laws

 

Section 8.1    Tenant’s Compliance Obligations. Throughout the Term, Tenant shall, with respect to Tenant’s use, occupancy and maintenance of the Premises (other than required physical modifications to the Structural Elements of the Building, which are Landlord’s obligations under Section 8.3, and other than Landlord’s obligation to deliver the Premises, the Building, and the Property in compliance with all Applicable Laws as of the Substantial Completion Date), promptly comply in all material respects and cause the Premises to comply in all material respects with or remove or cure any violation of any and all present and future laws, including, without limitation, the Americans with Disabilities Act of 1990, as the same may be amended from time to time, ordinances (zoning or otherwise), orders, rules, regulations and requirements of all Federal, State, municipal and other governmental bodies having jurisdiction over the Premises and the appropriate departments, commissions, boards and officers thereof, and the orders, rules and regulations of the Board of Fire Underwriters where the Premises are situated, or any other body now or hereafter constituted exercising lawful or valid authority over the Premises, or any portion thereof, or exercising authority with respect to the use or manner of use of the Premises, and whether the compliance, curing or removal of any such violation and the costs and expenses necessitated thereby shall have been foreseen or unforeseen, ordinary or extraordinary, and whether or not the same shall be presently within the contemplation of Landlord or Tenant or shall involve any change in governmental policy, or require structural or extraordinary repairs, alterations or additions by Tenant and irrespective of the amount of the costs thereof; provided that Tenant shall not be required to comply and/or cause the Premises or any other portions of the Building to comply with or incur any costs with respect thereto for any Applicable Laws that require structural Alterations to the Premises or changes to the Building Systems or alterations outside the Premises unless such changes are necessitated by (i) Tenant’s particular manner of use of the Premises other than as commercial office use, or (ii) with respect to the bathrooms within the Premises and all Tenant Improvements and Alterations, changes in

 

 

Applicable Laws first becoming effective on or after the Substantial Completion Date (provided that, in each case, Tenant may use its own contractors in satisfying the foregoing compliance requirements). Tenant, at its sole cost and expense, shall comply in all material respects with all agreements, contracts, easements, restrictions, reservations or covenants, if any, presently encumbering the Premises, or hereafter created by Tenant or consented to, in writing, by Tenant or requested, in writing, by Tenant, and with the REA, if applicable. Tenant shall also comply in all material respects with, observe and perform in all material respects all provisions and requirements of all policies of insurance maintained by Tenant with respect to the Premises under the terms of Article 7 and shall comply in all material respects with all development permits issued by governmental authorities issued in connection with Tenant Improvements and Alterations. The laws, ordinances, rules, regulations and requirements referred to in this Section are collectively referred to as “Applicable Laws”. The foregoing notwithstanding, Tenant shall not perform any repairs or Alterations to the Base Building Systems within the Premises and required pursuant to any Applicable Laws, but shall reimburse Landlord for the reasonable out-of-pocket costs for any such work performed by Landlord provided, however, that such payment shall not be due until thirty (30) days after Landlord provides notice to Tenant of the completion of such work and the cost thereof together with reasonable back-up documentation for same, Tenant shall have the right to dispute such costs in the same manner as provided under Section 6.2 hereof. Landlord shall apportion any such costs among all affected tenants based upon each such tenants’ respective interest.

 

Section 8.2    Permitted Contests. Tenant shall not be required to (a) comply with any Applicable Law, or (b) discontinue a particular use permitted hereunder, so long as Tenant shall contest, in good faith and at its expense, the existence, the amount or the validity thereof, the amount of the damages caused thereby, or the extent of its liability therefor, by appropriate proceedings which shall operate during the pendency thereof to prevent (i) the sale, forfeiture or loss of the Premises, or any part thereof, by foreclosure or otherwise, or the Rent, or any portion thereof; (ii) any interference with the use or occupancy of the Premises or any part thereof; and (iii) any interference with the payment of Rent, or any portion thereof. While any such proceedings are pending, Landlord shall not have the right to pay, remove or cause to be discharged any assessment, levy, fee, rent or charge thereby being contested. Each such contest shall be promptly prosecuted by Tenant to a final conclusion, Tenant shall pay, and save Landlord and the Mortgagee harmless against, any and all losses, judgments, decrees and costs (including all reasonable attorneys’ fees and expenses) in connection with any such contest and shall, promptly after the final settlement, compromise or determination of such contest, fully pay and discharge (or cause to be paid and discharged) the amounts which shall be levied, assessed, charged or imposed or be determined to be payable therein or in connection therewith, together with all penalties, fines, interests, costs and expenses thereof or in connection therewith, and perform all acts, the performance of which shall be ordered or decreed as a result thereof; provided, however, that nothing herein contained shall be construed to require Tenant to pay or discharge any lien, encumbrance or other charge created by any act or failure to act of Landlord or the payment of which by Tenant is not otherwise required hereunder, or to perform any act which Tenant is not otherwise required to perform hereunder, No such contest by Tenant may subject Landlord or the Mortgagee to the imminent risk of any civil or criminal liability. Tenant shall either complete the contest prior to the date of termination of this Lease, or, if continuing thereafter, supply Landlord with a bond or other form of security reasonably acceptable to Landlord to secure any contested amount together with any interest and costs, including without

 

 

limitation reasonable attorneys’ fees and expenses, that may be incurred in the final settlement, compromise or determination of such contest. Tenant’s obligations under this Section 8.2 shall survive the expiration or earlier termination of this Lease.

 

Section 8.3     Landlord’s Compliance Obligations. Landlord, at its expense (but without affecting Landlord’s right to recoupment in accordance with Article 6), shall comply with all Applicable Laws, the REA, if applicable, the Permitted Encumbrances and insurance requirements applicable to (a) Landlord, as landlord or owner of the Property, (b) the Common Areas and Base Building Systems and the Park (to the extent affecting the Property), and (c) those requiring physical modification or other Alterations to the Structural Elements of the Building, excluding Rooftop Equipment, subject to Landlord’s right to contest the applicability or legality thereof, provided, however, that if any such compliance as to clause (c) shall be required because of the negligence or willful act of Tenant or any of the Tenant Parties or any Alterations to the Premises made by Tenant, Landlord shall comply with same at Tenant’s reasonable expense, payable as Additional Rent. In addition, Landlord, at its expense without contribution from Tenant, shall be obligated to cure any non-compliance of the Property with Applicable Laws, the REA, the Permitted Encumbrances, and insurance requirements that exist on the Substantial Completion Date.

 

ARTICLE 9

 

Alterations and Improvements

 

Section 9.1     Restrictions.

 

(a)       Except as hereinafter provided, Tenant shall make no Alterations in or to the Premises of any nature without Landlord’s prior written consent which consent shall not be unreasonably withheld, conditioned or delayed. Subject to the provisions of this Article, Tenant, at its expense and without Landlord’s prior consent, may make Alterations which are non- structural in or to the interior of the Premises, provided that such Alterations: (i) do not adversely affect utility services or Base Building Systems; (ii) do not adversely affect the value or utility of the Building; (iii) do not affect the certificate of occupancy for the Building or the Premises or the insurance coverage for the Building or the Premises; (iv) if applicable, comply with the requirements of the REA; (vi) comply with Applicable Laws; and (vii) cost less than $25,000 per Alteration (provided, Landlord’s approval of IT wiring, painting, and furniture repair and installation shall not be required by reason of cost if Landlord’s approval would not otherwise be required).

 

(b)       Except as hereinafter provided, all Alterations (other than those that constitute Tenant’s Property), whether temporary or permanent in character, made in or to the Premises by Tenant shall become part of the Premises and Landlord’s property. Termination of this Lease shall not affect the obligations of Tenant pursuant to this Section to be performed after such termination. Tenant shall not be required to remove any of Landlord’s Work completed pursuant to Section 22.1 herein, nor shall Tenant be required to remove any of the Tenant Improvements made pursuant to Article 22 herein or any subsequent Alterations pursuant to this Section, unless such Tenant Improvements or Alteration is a Nonstandard Improvement and Landlord shall have given notice to Tenant, at the time of approval of such Tenant Improvements

 

 

or Alterations, as to which of such Tenant Improvements or Alterations shall be removed by Tenant at the expiration or earlier termination of this Lease.

 

(c)       Fox all Alterations requiring Landlord’s consent, Tenant shall use contractors first approved in writing by Landlord, which approval may be withheld by Landlord in Landlord’s sole discretion. If Landlord fails to respond to a request for approval of a contractor within ten (10) days after submittal of such request by Tenant, Landlord’s consent shall be deemed given. At Tenant’s request, Landlord shall provide Tenant with a list of approved, independent contractors.

 

Section 9.2    Permits; Mechanic’s Liens. Tenant shall, before making any Alterations, at its expense, obtain all permits, approvals and certificates required by any governmental or quasi-governmental bodies and (upon completion) certificates of final approval thereof and shall deliver promptly duplicates or copies of all such permits, approvals and certificates to Landlord. Tenant shall cause Tenant’s contractors and subcontractors to carry such workers’ compensation, general liability, personal and property damage insurance as Landlord may reasonably require. As permitted by law, Tenant shall obtain and deliver to Landlord written and unconditional waivers of mechanic’s, laborer’s or materialman’s liens upon the Property, for all work, labor and services performed to date and all materials furnished to date in connection with such work, signed by the general contractor or applicable subcontractors involved in such work, Notwithstanding the foregoing, if any mechanic’s, laborer’s or materialman’s lien is filed against the Property or any part thereof, for work claimed to have been done for, or materials furnished to, Tenant, Tenant within sixty (60) days after notice from Landlord to Tenant of the filing will cause it to be discharged by payment, deposit, bond, order of court of competent jurisdiction or otherwise, at Tenant’s expense. If Tenant shall fail to cause such lien to be discharged within the period aforesaid, then in addition to any other right or remedy, Landlord may, but shall not be obligated to, discharge it either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings, and in any such event, Landlord shall be entitled, if Landlord so elects, to compel the prosecution of any action for the foreclosure of such lien by the lienor and to pay the amount of the judgment in favor of the lienor with interest, costs and allowances. Any amount so paid by Landlord and all costs and expenses incurred by Landlord in connection therewith, together with interest thereon at the Default Rate from the respective dates of Landlord’s making of the payments and incurring of the costs and expenses, shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord within thirty (30) days following written demand.

 

Section 9.3     Review of Tenant’s Plans.

 

(a)       All Alterations proposed by Tenant and requiring Landlord’s consent shall be made at Tenant’s sole cost and expense as follows:

 

(i)       Tenant shall submit to Landlord 100% complete and final plans and specifications for all work to be done by Tenant. Such plans and specifications shall be prepared by the licensed architect(s) and engineer(s), shall comply with all Applicable Laws and the REA, shall not adversely affect the Structural Elements and shall be in a form sufficient to secure the approval of all government authorities with jurisdiction over the Premises.

 

 

(ii)       With respect to Alterations for which Landlord’s approval is required, within ten (10) Business Days after receipt of the final, complete plans and specifications therefor (which plans shall be accompanied with a notice stating in bold face all-capitals 12-point type “FAILURE OF LANDLORD TO DISAPPROVE THESE PLANS AND SPECIFICATIONS WITHIN TEN (10) BUSINESS DAYS AFTER RECEIPT SHALL BE DEEMED APPROVAL”), Landlord shall notify Tenant in writing whether Landlord approves or disapproves such plans and specifications, and Landlord shall describe the reasons for any such disapproval. If Landlord fails to so notify Tenant within such ten (10) Business Day period, then Landlord shall be deemed to have approved such plans and specifications. Tenant may submit to Landlord revised plans and specifications for Landlord’s prior written approval, and within five (5) Business Days after receipt of the complete revised plans and specifications therefor, Landlord shall notify Tenant in writing whether Landlord approves or disapproves such revised plans and specifications, and Landlord shall describe the reasons for any such disapproval. If Landlord fails to so notify Tenant within such five (5) Business Day period, then Landlord shall be deemed to have approved such revised plans and specifications. Landlord shall approve plans and specifications in accordance with the provisions of this Section 9.3(a)(ii) if (x) the work to be done would not, in Landlord’s reasonable judgment, adversely affect the value, character, rentability or usefulness of the Premises or any part thereof, or (y) the work to be done shall be required by any Applicable Law. Tenant shall pay all reasonable out-of-pocket costs incurred by Landlord to hire third-party licensed architect(s) and/or engineer(s) to review such plans and specifications and any revisions thereto where such review is required due to specialty Alterations or for Alterations affecting the Base Building or the Base Building Systems (which costs shall not exceed $5,000,00 in the aggregate with respect to any Alteration for which Landlord’s approval is sought), which payment shall be due thirty (30) days after Landlord’s delivery of an invoice together with reasonable backup documentation therefor.

 

(iii)       All material changes in the plans and specifications required to be approved by Landlord shall be subject to Landlord’s prior written approval (to be governed by the preceding provisions hereof), and changes not requiring Landlord’s approval shall be provided to Landlord prior to commencement of the construction described therein. For the purpose of this subsection a “material change” shall be one which (x) exceeds $10,000, and/or (y) adversely affects the Structural Elements, the roof or the Base Building Systems. If Tenant wishes to make a change in approved plans and specifications, Tenant shall have its architect(s) and engineer(s) prepare plans and specifications for such change and submit them to Landlord. For modifications requiring Landlord’s approval, Landlord shall notify Tenant in writing within five (5) Business Days whether Landlord approves or disapproves such change; and, if Landlord disapproves such change, Landlord shall describe the reasons for disapproval. If Landlord fails to so notify Tenant within such five (5) Business Day period, then Landlord shall be deemed to have approved such change. Tenant may submit to Landlord revised plans and specifications for such change for Landlord’s written approval in accordance with the procedure for delivery of revised plans per (ii) above. After Landlord’s written approval or deemed approval of such change, such change shall become part of the plans and specifications approved or deemed approved by Landlord.

 

(iv)       Tenant shall obtain and comply with all building permits and other government permits and approvals required in connection with the work, and shall comply with

 

 

the REA, if applicable. Landlord agrees that, if Landlord or a Landlord’s Representative is involved in the administration of the REA, any approval or deemed approval of the work by Landlord shall include approval or deemed approval that the work is in compliance with the REA, if applicable. Tenant shall, through Tenant’s contractor, perform the work in a good and workmanlike manner in accordance with the plans and specifications prepared as set forth above. Tenant shall pay, as Additional Rent, the entire cost of all work performed by Landlord, if any, (including the cost of all utilities, permits, fees, taxes, and property, worker’s compensation and liability insurance premiums in connection therewith), required to make the Alterations; provided, however, Landlord shall advise Tenant of the estimate of such costs at the time Landlord approves the plans so that Tenant can determine whether or not to make such Alteration requiring such work by Landlord. Under no circumstances shall Landlord be liable to Tenant for any damage, loss, cost or expenses incurred by Tenant on account of any plans and specifications, contractors or subcontractors, design of any work, construction of any work, or delay in completion of any work, whether or not Landlord had approved (or is deemed to have approved) the plans and specifications. Within 60 days after completion of any such work, Tenant shall deliver to Landlord one (1) set of as built plans and a CAD drawing of the as-built plans if the work involves Base Building Systems or adds or modifies wall designs, and otherwise shall deliver to Landlord one (1) set of updated design drawings (marked to show changes) plus shop drawings.

 

(v)       No Event of Default shall have occurred and be continuing prior to commencement of any such Alterations.

 

(b)       All of Tenant’s Alterations shall be performed in a manner so as not to unreasonably interfere with other tenants, occupants or contractors, if any, in the Building or the Park. At all times during the progress of Alterations, Tenant shall permit Landlord, its architect and other representatives of Landlord access to the Premises in accordance with the provisions of Section 25.3 for the purpose of inspecting same, verifying substantial conformance of Alterations with Tenant’s Plans and otherwise viewing the progress of Tenant’s work upon reasonable prior notice to Tenant at no cost to Tenant and provided that such entry by Landlord shall not delay completion of Tenant’s Alterations.

 

(c)       The provisions of this Article 9 shall not apply to Tenant’s Improvements which shall be governed by Section 22.2 of this Lease.

 

ARTICLE 10

 

Repairs

 

Section 10.1   Tenant's Obligations. Tenant shall maintain and take good care of the Premises and the fixtures, equipment and appurtenances in the Premises, subject to ordinary wear and tear and damage by fire or casualty, at Tenant’s expense, and shall make all repairs and replacements as and when needed to preserve the Premises in good working order and condition, reasonable wear and tear and damage by fire or casualty excepted, except that Tenant shall not be required to make (a) any repairs or replacements to the Structural Elements of the Premises; (b) any repairs to or replacements of the Base Building Systems serving the Premises; or (c) any repairs or replacements resulting from the negligence (subject to the waiver of subrogation

 

 

provisions contained in Article 7) or willful misconduct of Landlord or any of Landlord’s Representatives. Subject to the provisions of Section 25.3 below, the parties shall arrange an annual inspection by Landlord’s representatives to review compliance with Tenant’s obligations hereunder.

 

Section 10.2   Landlord’s Obligations.

 

(a)       Landlord, at its expense (but subject to recoupment to the extent permitted in Article 6 herein), shall keep and maintain the Common Areas, the Structural Elements and the Base Building Systems (other than the areas of the Premises that Tenant is obligated to keep and maintain in accordance with the provisions of Section 10.1 above) in good working order, condition and repair, as a first class office building, consistent with the standards of Comparable Buildings and shall make all repairs and replacements (if necessary), structural and otherwise, interior and exterior, as and when needed in or about the Building, except for (i) those repairs for which Tenant is responsible pursuant to any other provision of this Lease, including but not limited to Section 10.1 above; (ii) repairs to Tenant’s Property; and (iii) repairs to other leased premises which are the obligation of the tenant thereof (Landlord being obligated to enforce such obligation to the extent the same affects the Premises or Tenant’s rights hereunder); provided, however, that Landlord shall have no obligation or liability for repairs in the Premises until receipt of notice from Tenant specifying the repairs required, except in the case of emergencies where the notice may be by telephone (or otherwise orally by a duly authorized officer), thereafter promptly followed by a written notice, Additionally, Landlord shall enforce its rights under the REA to require that the Park be kept and maintained in good working order, condition and repair. Notwithstanding the foregoing, if Landlord fails to enforce its rights under the REA as provided herein within thirty (30) days after demand by Tenant that Landlord do so, Tenant shall have the right (either on its own or with other tenants) to exercise such rights or to take other measures to cause the party required under the REA to keep and maintain the Park in the condition required herein, All reasonable costs incurred by Tenant shall be reimbursed to Tenant by Landlord within thirty (30) days following demand (with reasonable back-up).

 

(b)       Tenant shall reimburse Landlord, as Additional Rent, for the reasonable cost of the following: (i) any repairs or replacements necessitated or occasioned by the negligence or willful misconduct (subject to the waiver of subrogation provisions contained in Article 7) of Tenant or any of the Tenant Parties, or (ii) any repairs or replacements necessitated or occasioned by or resulting from Alterations to the Premises made by Tenant; or (iii) any repairs made to the Base Building Systems necessitated or occasioned by the negligence or willful misconduct of Tenant or any of Tenant’s Representatives; provided, however, that, notwithstanding anything to the contrary herein, Tenant shall not be liable in any way for any repair or replacement required due to a fire or other casualty that was or should have been covered by the insurance to be maintained by Landlord under this Lease for which subrogation has been waived.

 

ARTICLE 11

 

Utilities and Services

 

Section 11.1    HVAC; Elevators.

 

 

(a)       Landlord shall furnish and distribute to the Premises at no additional cost to Tenant other than as provided in Article 6 hereof and this Section 11.1, heated, cooled and outside air in accordance with the specifications annexed hereto as Exhibit I (collectively “HVAC”) on a year round basis on Business Days during Business Hours (other than Building Holidays). If Tenant shall require HVAC service at any other time (“Overtime”), Landlord shall furnish Overtime HVAC on any day upon advance notice from Tenant, given between the hours of 9:00 A.M. and 3:00 P.M. on such day if such day is a Business Day or during such hours on or before the immediately preceding Business Day if such day is not a Business Day, and Tenant shall pay to Landlord Additional Rent for such services at a rate equal to Landlord’s cost of providing HVAC to the Premises during such Overtime, from time to time. For the first Lease Year, the charge for Overtime HVAC shall be $150.00 per hour per Building floor, subject to reasonable increase from time to time (but not more frequently than once annually) based on increases in Landlord’s costs of supplying same and shall advise Tenant of any such increases from time to time, which increases (i) shall not exceed $5,00 within any five (5) year period during the Term, and (ii) shall not first occur until after the third Lease Year.

 

(b)       Landlord shall maintain in good condition and repair all passenger and freight elevators and the Building’s loading dock. Tenant shall have 24-hours per day non-exclusive use of the Building passenger and freight elevators and the Building’s loading dock. Tenant shall pay for Landlord’s actual cost of Tenant’s use of freight elevators during Overtime. Notwithstanding the foregoing, Landlord shall provide to Tenant (at no additional cost to Tenant) adequate freight elevator and loading dock time and accessibility to accommodate Tenant’s move-in and construction of the Tenant Improvements.

 

Section 11.2    Cleaning. Landlord shall cause the Premises to be cleaned at no additional cost to Tenant other than as provided in Article 6 hereof and this Section 11.2, including the exterior and the interior of the windows thereof (subject to Tenant maintaining reasonable access to such windows) in accordance with the cleaning specifications attached hereto as Exhibit G. Tenant shall pay to Landlord as Additional Rent Landlord’s extra charges from its cleaning contractor for any special or unusual cleaning work in the Premises requested by Tenant other than those listed on Exhibit G, including, without limitation, the cleaning of any portions of the Premises used for the storage, preparation, service or consumption of food or beverage except for the mopping of floors and cleaning of tables and countertops in the kitchenette/pantry located in the Premises.

 

Section 11.3   Electricity.

 

(a)       Landlord shall furnish, at Landlord’s cost and expense, all taps, disconnects, transformers and panels, permanently installed in an electrical closet in or convenient to the Premises. Landlord shall furnish to Tenant and, subject to Section 11.3(c), maintain in use and effect, through the transmission facilities initially installed by Landlord in the Building at Landlord’s Cost, alternating electrical energy in the amount not less than six (6) watts (demand load) per usable square foot of the Premises (exclusive of HVAC). As part of the Tenant Improvements, Landlord shall install one or more checkmeters, as required, to measure electricity consumption in the Premises, at Tenant’s sole cost and expense (but to be deducted from the Tenant Improvement Allowance), Commencing on the Commencement Date, Tenant shall pay for electricity monthly, based on the consumption shown on the checkmeter(s)

 

 

multiplied by the rate for the Building, with no markup fox Landlord-Subject to the capacity of the Building Systems and the electric energy requirements of Landlord and the other tenants of the Building or to satisfactory arrangements to add capacity at Tenant’s expense, Landlord shall provide any electric energy requested by Tenant in excess of such six (6) watts (demand load) per usable square foot of the Premises at Tenant’s expense. Landlord shall cooperate with Tenant to address Tenant’s power requirements (including, without limitation, any request for additional power Tenant desires to make to the utility company).

 

(b)       Tenant’s use of electrical energy in the Premises shall not exceed the capacity of the feeders or wiring installations then serving the Premises. In the event that, in Landlord’s reasonable judgment. Tenant’s electrical requirements exceed the capacity previously provided to Tenant and necessitate installation of an additional riser, risers, or other proper and necessary equipment. Landlord shall so notify Tenant of same. Within thirty (30) days after receipt of such notice, Tenant shall either cease such use of additional electricity or agree to install necessary additional electrical capacity at Tenant’s sole cost, subject to Landlord’s prior reasonable approval of plans therefor, Tenant shall not, without prior reasonable consent of Landlord in each instance (using the procedures per Section 9.3(a)(ii) hereof) make or perform, or permit the making or performing of, any alteration to wiring installations or other electrical facilities in or serving the Premises or any additions to the electrical fixtures in the Premises.

 

(c)       Landlord, at any time, at Landlord’s option, and upon no less than sixty (60) days’ prior notice to Tenant and provided Landlord is required to do so by Applicable Law or is doing so for all office tenants in the Building, may discontinue the furnishing of electrical energy to the Premises, and, in such case, Tenant shall promptly contract directly for the supplying of such electrical energy with the applicable public utility and Landlord shall permit its wires, risers, conduits, feeders and switchboards, to the extent available, suitable and safely capable (provided that Landlord shall remain obligated to maintain such wires, risers, conduits, feeders and switchboards pursuant to Section 10.2(a) and Section 11.3(b)), to be used for the purpose of supplying such electrical energy; provided, however, Tenant, at Tenant’s cost and expense, shall furnish and install at a location in the Building mutually approved and maintain and keep in repair any necessary metering equipment used in connection with measuring Tenant’s consumption of electrical energy so supplied to Tenant by said public utility. In no event shall Landlord cease to furnish electricity until Tenant is receiving the same on a direct basis.

 

(d)       Landlord shall not in any way be liable or responsible to Tenant for any loss or damage or expense that Tenant may sustain or incur if, during the Term, either the quantity or character of electrical energy is changed or is no longer available or suitable for Tenant's requirements; provided, that such change or lack of availability does not result from Landlord’s negligence (subject to the waiver of subrogation provisions of Article 7) or willful misconduct or Landlord’s failure to timely pay for service. Landlord shall in no way be liable for any failure, inadequacy or defect in the character or supply of electrical energy furnished to the Premises except for actual damage suffered by Tenant by reason of any such failure, inadequacy or defect resulting from Landlord’s negligence (subject to the waiver of subrogation provisions of Article 7) or willful misconduct. In order that Landlord may at all times have all necessary information that it requires in order to maintain and protect its equipment, Tenant shall not make any material alteration or material addition to the electrical equipment and/or appliances in the

 

 

Premises without the prior written consent of Landlord in each instance (which consent shall not be unreasonably withheld, conditioned or delayed and deemed given if no response is provided within five (5) Business Days) and shall promptly advise Landlord of any other alteration or addition to such electrical equipment and/or appliances. Tenant shall advise Landlord as to any material change in the periods of use of Tenant’s lighting fixtures, equipment and business machines.

 

(e)       Tenant, at Tenant’s expense, shall purchase and install all replacement bulbs (including, but not limited to, incandescent and fluorescent) and ballasts used in the Premises.

 

Section 11.4     Water. Landlord shall supply reasonably adequate quantities of hot and cold water to a point or points on the floor on which the Premises are located for ordinary lavatory, cleaning, kitchenette/pantry and drinking purposes, If Tenant requires, uses or consumes water for any purpose in addition to ordinary lavatory, cleaning, kitchenette/pantry and drinking, Landlord may install a water meter and thereby measure Tenant’s consumption of water for ail purposes. Tenant shall pay to Landlord the cost of any such meter and its installation, and Tenant, at Tenant’s sole cost and expense, shall maintain any such meter and any such installation equipment in good working order and repair. Tenant shall pay for water consumed as shown on said meter and sewer charges thereon, as Additional Rent with no Landlord mark-up for such consumption but subject to reasonable third party monitoring costs.

 

Section 11.5    Parking.

 

(a)       Landlord, at its expense (but without affecting Landlord’s right to recoupment to the extent provided in Article 6 herein), shall maintain the Garage and parking areas, to be used by Tenant or any Tenant Parties in common with other tenants of the Building. Landlord shall supply Tenant with up to 72 parking spaces, of which 48 spaces shall be in the Garage, and 4 of said spaces within the Garage shall be reserved and marked with Tenant’s name for the exclusive use of Tenant and Tenant’s invitees located in the area shown on Exhibit J. If additional parking spaces in excess of 48 spaces are requested by Tenant, such additional spaces shall be within five hundred (500’) feet of the Building located in the area shown on Exhibit K, and Tenant shall pay, commencing on the date such spaces are provided to Tenant, as Additional Rent, the sum of $95.00 per month per space for the parking provided in excess of 48 parking spaces (“Excess Parking Requirements”); provided, that such additional spaces shall be located in the Garage until such time as Landlord shall require the use of such spaces for other users at the Building. At Tenant’s option and sole expense, Landlord shall make available to Tenant valet parking. If the Premises shall increase or decrease, the number of spaces in the Garage and other locations described above shall be proportionally adjusted, Until such time as Landlord reasonably determines that all of the parking spaces in the Garage are needed by occupants and invitees of the Building, Tenant shall be permitted to use such spaces for its Excess Parking Requirements.

 

(b)       Tenant acknowledges that all parking areas may be used by visitors to the Park during evening hours and on weekends.

 

 

(c)       Notwithstanding Section 28 of the Rules and Regulations attached hereto as Exhibit H, Landlord permits overnight parking during customary business travel by Tenant’s employees, upon prior notice to Landlord.

 

Section 11.6     Building Communications. Tenant’s wireless communications and local area network shall not unreasonably interfere with that of services provided by Landlord nor shall it unreasonably interfere with communications of other tenants in the Building or Park, and Landlord shall require in leases with other tenants of the Building that their wireless communications and local area networks not unreasonably interfere with communications of Tenant. Landlord shall have the right to resolve disputes of wireless communications between tenants of the Building or within the Park by establishing criteria as part of the Rules and Regulations promulgated in accordance with the provisions of Article 29 for all tenants to adhere regarding the use of the 802.xx frequency band or other such wireless band communications within the Building or Park.

 

Section 11.7     Interruption of Services. Landlord does not warrant that any of the services referred to above, or any other services which Landlord may supply, will be free from interruption, and Tenant acknowledges that any one (1) or more such services may be suspended by reason of accident, repairs, inspections, alterations or improvements necessary to be made, or by Unavoidable Delay. Any common law or statute to the contrary notwithstanding, any such interruption or discontinuance of service shall not be deemed an eviction or disturbance of Tenant’s use and possession of the Premises, or any part thereof, nor render Landlord liable to Tenant for damages by abatement of the Rent or otherwise, nor relieve Tenant from performance of Tenant’s obligations under this Lease, except as expressly provided in this Lease. Landlord shall, however, exercise reasonable diligence, in a manner consistent with the standards of owners of Comparable Buildings, to restore any service so interrupted promptly, which may include the use of overtime labor. Notwithstanding the foregoing, if: (i) any Essential Service (as defined in the following sentence) is discontinued to the Premises for more than five (5) consecutive Business Days following notice thereof from Tenant to Landlord; and (ii) such discontinuance materially interferes with Tenant’s ability to conduct its business in or from the Premises, then the Rent shall thereupon abate commencing on the sixth (6^th) consecutive Business Day, based upon the portion of the Premises so affected or the impact on Tenant’s conduct of its business in and from the Premises until such discontinuance is remedied. “Essential Service” means any of the following: heating or air-conditioning (as seasonally required), office electricity, elevator, water or plumbing or anything that prevents Tenant from accessing the Premises. The abatement provided for in this subsection shall not apply to any discontinuance of an Essential Service caused by casualty or condemnation. During any such abatement, Tenant may (but shall not be obligated to) exercise Tenant’s self-help rights in accordance with the provisions of Section 19.2 to remedy the interruption giving rise to such abatement.

 

Section 11.8    Access and Security. Tenant shall have 24-hour, 7-day-per-week, 365-day-per-year access to the Premises, Garage and other parking areas. Access shall be controlled by electronic card and/or on-duty personnel. From and after the Occupancy Date, security shall at all times meet or exceed the specifications set forth on Exhibit L annexed hereto. The actual cost of such security shall be an Operating Expense as provided in Article 6. Any additional security desired by Tenant shall be at Tenant’s sole cost and expense; provided, Tenant shall

 

 

provide Landlord with keys and/or electronic card access such that Landlord shall at all times have access to the Premises.

 

Section 11.9     Shuttle Bus. Commencing no later than the Occupancy Date, Landlord shall provide shuttle bus service at the Park to and from the Stamford Train Station, the Building and the other properties within the Park. Subject to Unavoidable Delay, the frequency of such service will conform to the provisions of Exhibit M. The actual cost of such service shall be an Operating Expense as provided in Article 6. Landlord, at all times, shall ensure that the shuttle bus service is operating and maintained in compliance with all Applicable Laws and with all appropriate insurance in force.

 

Section 11.10   Shaft Space. Landlord shall provide to Tenant, at Landlord’s expense, unobstructed vertical and horizontal shaft space from the basement to the roof of the Building for telecommunications and HVAC needs. Such areas shall be designated in Tenant’s Plans. Landlord shall have the right to install secured conduit(s) in the riser space for Tenant’s exclusive use. Access to such riser space shall be at no cost to Tenant and shall be unimpeded during the Term, including any extension thereof. If requested by Tenant, Landlord shall provide dedicated raceways for telecommunications lines from the Building's main telephone room to the Premises at no additional cost to Tenant, Tenant acknowledges that the remaining portion of such vertical open sleeves may be used by Landlord and other tenants of the Building; provided that any such use does not interfere with Tenant’s use.

 

Section 11.11    Amenities.

 

(a)       Landlord shall ensure that, commencing on the Occupancy Date, Tenant Parties may use the fitness center located within space at One Commons Park, at the same rates as those charged to occupants of said building; provided, if Landlord or an Affiliate of Landlord shall make available a fitness center within the Building or within either Unit S-1, S-3 or S-4 of the Park for use by Tenant Parties, then Tenant Parties shall, at Landlord’s option, have no further right to use the fitness center at One Commons Park, If provided, Tenant Parties may use such alternate fitness center at no separate or additional charge, provided, a portion of the cost of such fitness center shall be an Operating Expense as provided in Article 6. The alternate fitness center shall have amenities and equipment of the same quality as those provided at the original fitness center, and the size of the alternate fitness center shall not be smaller than the original fitness center unless access and availability are materially unchanged.

 

(b)       Commencing on the occupancy Date, Tenant parties may make use of the cafeteria located within Unit S-1 on each Business Day of the Term, The cafeteria shall be operated to a standard commensurate with Comparable Buildings. A portion of the cost of operation of the cafeteria shall be an Operating Expense as provided in Article 6.

 

Section 11.12    Fire Alarm System Tie-In. Landlord shall provide a tie-in from the Premises to the Building fire alarm system, which system shall be maintained and managed by Landlord.

 

Section 11.13     Generator and UPS.

 

 

(a)       Landlord shall keep and maintain a generator on the Property (the “Building Generator”) that produces sufficient electric energy to fully power the Building life safety systems in the event of a loss of electric energy from the electric utility in accordance with Applicable Laws. Landlord shall conduct tests of the Building Generator on a weekly basis to ensure that it is operating properly.

 

(b)       In addition to the Building Generator and any other generator that may exist on the Property, Tenant may install, at any time and at no additional charge payable to Landlord, and thereafter access and maintain, repair, replace, use and operate a diesel generator, associated fuel tank, wiring and all necessary ancillary equipment thereto (including a reasonably sufficient amount of riser space as available running from the locations of such systems to the Premises for purposes of connecting such systems to the Premises, as available) for Tenant’s business operations within the Building (“Tenant Generator”), on the Property, subject to compliance with Applicable Laws, in the Building’s generator room as shown on Exhibit C-1 (the “Generator Room”) or in such other location reasonably designated by Landlord, in accordance with Article 9 or Article 22, as applicable, and so as to not materially adversely affect any tenant or occupant of the Building and the character of the Building and further subject to Tenant paying for all costs and expenses for such installation, access and maintenance. The Tenant Generator shall be located in the Generator Room provided that it is 150 KW and is installed as part of the Tenant Improvements, The Tenant Generator shall be appropriately screened or otherwise enclosed in a manner reasonably acceptable to Landlord, Tenant shall indemnify and hold harmless Landlord from any liability, cost or damage resulting from third party claims for property damage, bodily injury or death to the extent arising from the installation, maintenance, operation or removal of the Tenant Generator (subject to the waiver of subrogation provisions of Article 7); provided, however, that with respect to any Hazardous Substances Article 24 shall control. Tenant may remove but shall not be required to remove any such Tenant Generator (or the fuel oil tank or other equipment attendant thereto) at the expiration or sooner termination of this Lease unless Landlord gives Tenant notice that Tenant is required to remove the Tenant Generator at the time it approves the plans and specifications of the Tenant Generator. Tenant shall have the right to conduct weekly testing and regular preventative maintenance of the Tenant Generator and Landlord shall reasonably cooperate with Tenant to do the same.

 

(c)       In addition to the Building Generator and any other generator that may exist on the Property (including, without limitation, the Tenant Generator), Tenant may install, at any time and at no additional charge payable to Landlord, and thereafter access and maintain one (1) UPS system, associated wiring and all necessary ancillary equipment thereto (including a reasonably sufficient amount of riser space as available running from the locations of such systems to the Premises for purpose of connecting such systems to the Premises) for Tenant’s business operations within the Building ("Uninterrupted Power Supply System" or “UPS"), within the Premises, subject to compliance with Applicable Laws, in accordance with Article 9, and so as to not materially adversely affect any tenant or occupant of the Building and the character of the Building and further subject to Tenant paying for all costs and expenses for such installation, access and maintenance. Tenant shall indemnify and hold harmless Landlord from any liability, cost or damage resulting from the installation, maintenance, operation or removal of the UPS; provided, however, that with respect to any Hazardous Substances Article 24 shall control. Tenant may remove but shall not be required to remove any such UPS at the expiration

 

 

or sooner termination of this Lease unless Landlord gives Tenant notice that Tenant is required to remove the UPS at the time it approves the plans and specifications of the UPS. Tenant shall have the right to conduct weekly testing of the UPS and Landlord shall reasonably cooperate with Tenant to do the same.

 

Section 11.14    Other Services. Notwithstanding anything in this Lease to the contrary, if Tenant desires to obtain any service that Landlord does not provide to Tenant, then Tenant may contract directly with any provider of such service (including, without limitation, telecommunications, data, food and beverage, and furniture vendors).

 

Section 11.15     Lighting Fixture. Tenant shall provide Landlord with access to areas of the Premises upon reasonable advance notice in order for Landlord, at Landlord’s expense (but without affecting Landlord’s right to recoupment to the extent provided in Article 6), to operate and maintain certain installed architectural lighting fixtures located at the northeast corner of the Building. Tenant agrees not to construct any improvements that will block or diminish the light from said architectural lighting fixtures, Nothing in this Section 11.17 shall permit Landlord to take back space from Tenant (other than de minimis areas for limited periods of time, Such architectural lighting fixtures shall not be on Tenant’s electrical meter.

 

ARTICLE 12

 

Assignment and Subleasing

 

Section 12.1       Rights and Obligations of Tenant.

 

(a)       Tenant may not mortgage, pledge or otherwise encumber its interest in this Lease or in any sublease of the Premises or any part thereof or the rentals payable thereunder, Any such mortgage, pledge or encumbrance, made in violation of this Section 12.1 shall be void. Provided that no Event of Default has occurred and is continuing, and, unless such consent is not required in accordance with the provisions of Section 12.4, with Landlord’s prior written consent, Tenant may sublease the Premises or any portion thereof, or Tenant may assign Tenant’s interest in this Lease; provided, that any such sublease or assignment shall expressly be subject and subordinate to the provisions of this Lease and no such sublease shall permit the subtenant thereunder to pay rent in advance for a period of more than one (1) month, and provided, further, that no such sublease or assignment shall affect or reduce any obligations of Tenant or any rights of Landlord hereunder. All obligations of the then current Tenant hereunder shall continue in full effect as the obligations of a principal and not of a guarantor or surety, to the same extent as though no assignment or sublease had been made. If Tenant assigns its interest in this Lease, the assignee shall, in an instrument delivered to Landlord at the time of such assignment, and in form and substance reasonably acceptable to Landlord, expressly assume all the obligations of Tenant hereunder accruing on and after the effective date of the assignment. Tenant shall, within ten (10) days after the execution of any such sublease or assignment, deliver an executed copy thereof to Landlord. No subtenant may further sublease any part of the Premises or assign its interest in the sublease without complying with the terms of this Article 12 as if such subtenant were the Tenant under this Lease. Tenant may list the Premises with a broker, but neither Tenant nor any broker or agent of Tenant shall publicly advertise the availability of the Premises without Landlord’s prior written consent to the text of

 

 

such offer and of any brochures, flyers or similar marketing materials, which consent shall not be unreasonably withheld and shall be deemed given if Landlord does not provide Tenant with written objection thereto together with the reasons therefor within three (3) Business Days following Landlord’s receipt of such materials, nor shall Tenant nor any broker or agent of Tenant market the Premises to other occupants or tenants of the Park if Landlord or any Affiliate of Landlord has comparable space available for a comparable term within those buildings in the Park designated as S-1, S-2, S-3 or S-5. Any such public offer shall not specify a rental lower than the then fair market value of the Premises. This Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant involuntarily or by operation of law without the prior written consent of Landlord (unless such consent is not required in accordance with the provisions of Section 12.4) and any such assignment without the prior written consent of Landlord shall be void and shall, at the option of Landlord, constitute a default that entitles Landlord to terminate this Lease, provided, that a merger, consolidation or similar reorganization of Tenant where Tenant’s obligations are assumed by the successor entity by operation of law shall not be deemed to be a prohibited assignment hereunder.

 

(b)       No assignment or sublease whatsoever shall release Tenant from Tenant’s obligations and liabilities under this Lease (which shall continue as the obligations of a principal and not of a guarantor or surety) or alter the primary liability of Tenant to pay all Rent and to perform all obligations to be paid and performed by Tenant. The acceptance of Rent by Landlord from any other person or entity shall not be deemed to be a waiver by Landlord of any provision of this Lease. If any assignee, subtenant or successor of Tenant defaults in the performance of any obligation to be performed by Tenant under this Lease, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee, subtenant or successor.

 

(c)       Tenant shall, within thirty (30) days after receipt of invoices therefor, reimburse Landlord for reasonable, third-party costs incurred by Landlord, including without limitation attorneys’ fees in investigating the proposed subtenant or assignee; reviewing the proposed assignment or sublease; and negotiating the form of Landlord’s consent; provided such costs shall not exceed $2,500 for any transaction. In addition, Tenant shall pay to Landlord as Additional Rent, within ten (10) days after receipt of payments from a subtenant or assignee, 50% of any "profit” on a subletting or assignment, i.e., the excess of consideration of any type received by Tenant from the subtenant or assignee (other than as a result of the sale of Tenant’s Property, which is expressly excluded), over (in the case of a sublease only) a pro rata portion of the Rent payable by Tenant hereunder, in any event reduced by Tenant’s commercially reasonable third-party costs of effecting the assignment or sublease, including without limitation free rent, marketing costs, work allowances, brokerage and attorneys’ fees and the cost of necessary alterations to the Premises, but excluding lease take-over and comparable costs, The foregoing notwithstanding, Tenant shall not be obligated to pay to Landlord any "profit" with respect to any transaction not requiring Landlord’s consent.

 

Section 12.2      Recapture; Consent. If Tenant desires to assign this Lease or to sublease all or substantially all of the Premises in the aggregate for the balance of the Term, Tenant shall first give notice to Landlord of its intent to do so and, if available, the proposed terms of such assignment or subletting (except as otherwise provided in Section 12.4), and Landlord shall have the right, by notice to Tenant within thirty (30) days after receipt of Tenant’s notice, to terminate

 

 

this Lease, If Tenant desires to sublease greater than twenty five percent (25%) of the Premises in the aggregate for the balance of the Term, Tenant shall first give notice to Landlord as aforesaid, and Landlord shall have the right to terminate this Lease with respect to the portion of the Premises proposed to be subleased, as of the intended effective date of the proposed sublease, Landlord agrees that, if requested by Tenant, it shall execute and deliver to Tenant a confidentiality agreement reasonably satisfactory to Tenant limiting disclosure of such information to such Persons who have a need to know such information in such form as is reasonably acceptable to Tenant, If Landlord exercises its right to terminate this Lease with respect to such portion of the Premises, then (i) the Fixed Rent and Tenant’s Proportionate Share shall be proportionately reduced, and an adjustment shall be made for amounts, if any, paid in advance and applicable to the portion of the Premises no longer leased by Tenant; and (ii) the number of reserved and unreserved parking spaces available for Tenant’s use pursuant to Section 11.6 herein shall be proportionately reduced, as reasonably designated by Landlord but in no event less than 3 spaces for 1,000 square feet of the Premises, If Landlord elects not to so terminate this Lease, then Landlord shall not unreasonably withhold, delay or condition its consent to the proposed subletting or assignment; provided, if such assignment or sublease is permitted in accordance with Section 12.4, then no consent of Landlord shall be required and Landlord shall have no right to recapture. In the event that Landlord elects to withhold its consent to an assignment or sublease, it shall notify Tenant in writing with an explanation, in reasonable detail, as to the reason(s) for such withholding, If Landlord shall not respond within ten (10) Business Days after receiving any such request from Tenant (including reasonable information about the proposed assignee’s or sublessee’s business reputation and financial condition and the statement in bold print as follows: “FAILURE TO RESPOND TO THIS REQUEST WITHIN TEN BUSINESS DAYS FROM RECEIPT SHALL CONSTITUTE APPROVAL OF THE PROPOSED ASSIGNMENT OR SUBLEASE”), then Landlord shall be deemed to have approved the proposed assignment or sublease. If Landlord shall refuse to approve a proposed assignment or sublease, it shall state its reasons therefor in reasonable detail.

 

Section 12.3      Assignment of Rents. Tenant hereby assigns to Landlord all security deposits and rents due or to become due from any subtenant, effective as of the date of the happening of an Event of Default under the provisions of this Lease, Thereupon, Landlord shall apply any net amount collected by it from subtenants to the Rent due under this Lease. No collection of Rent by Landlord from an assignee of this Lease or from a subtenant shall constitute a waiver of any of the provisions of this Article or an acceptance of the assignee or subtenant as a tenant or a release of Tenant from performance by Tenant of its obligations under this Lease, Tenant shall not directly or indirectly collect or accept any payment of subrent under any sublease (exclusive of a security deposit not intended to be applied as prepaid rent) more than one (1) month in advance of the date when the same shall become due, Each sublease shall require the subtenant to attorn to Landlord, at Landlord's request, in the event Tenant shall default under this Lease, If an Event of Default exists under this Lease, LandIord shall have the right to require subtenants to make their rent payments directly to Landlord.

 

Section 12.4      Transfer to Successor or Affiliate. Notwithstanding anything to the contrary set forth herein and provided (a) no Event of Default shall have occurred and be continuing and (b) the transfer is for a legitimate business purpose and not for the purpose of avoidance of the requirement of Landlord’s consent, Tenant may, without landlord’s consent, assign this Lease or sublet all or any portion of the Premises to a Successor or Affiliate of

 

 

Tenant, provided that Tenant shall deliver notice thereof to Landlord within ten (10) Business Days’ following the consummation of such assignment or sublease, which notice shall include an executed counterpart of the assignment or sublease (which, in the case of an assignment, shall provide that the assignee assumes directly for the benefit of Landlord all of Tenant’s obligation under this Lease thereafter accruing and in the case of a sublease, provides that same is subject and subordinate to this Lease in all respects). If thereafter the assignee or subtenant shall no longer be an Affiliate of Tenant, that shall be deemed a new assignment or sublease, as the case may be, subject to this Section, An “Affiliate” of a party shall be an entity controlled by, controlling or under common control with such party, A “Successor” of Tenant shall mean an entity succeeding to substantially all of the business assets of Tenant, whether by purchase, statutory merger or otherwise, which intends to carry on the business of Tenant, Each Successor, for the purposes of this Section 12.4, shall have a net worth at least equal to that of Tenant immediately prior to the merger or other transaction, Net worth shall be determined based upon the most recent financial statements of Tenant and the Successor, which statements shall not be for the period concluding earlier than five (5) months immediately preceding the date the statements are submitted to Landlord, Such sublease or assignment shall not release Tenant from its obligations hereunder, as specified in subsection 12.1(b) herein.

 

Section 12.5      Occupancy Thresholds. With respect to any provision in this Lease requiring that Tenant occupy a certain amount of space (whether expressed as a percentage of the Premises or Building, as a number of rentable square feet or otherwise), Tenant shall be deemed to occupy any space that is occupied by an Affiliate or Successor.

 

ARTICLE 13

 

Subordination and Attornment

 

Section 13.1      Subordination: Nondisturbance Agreement.

 

(a)       Provided that (i) any trustee, mortgagee or holder of a Mortgage (a “Mortgagee”) shall execute and deliver to Tenant an agreement reasonably acceptable to Tenant to the effect that, if there shall be a foreclosure of its Mortgage, such Mortgagee will not make Tenant a party defendant to such foreclosure, evict Tenant, disturb Tenant’s possession under this Lease, or terminate or disturb Tenant’s leasehold estate or rights hereunder, and will recognize Tenant as the direct tenant of such Mortgagee on the same terms and conditions as are contained in this Lease, subject to the provisions hereinafter set forth, provided no Event of Default shall have occurred and be continuing hereunder; or (ii) a lessor under a Superior Lease (a “Lessor”) shall execute and deliver to Tenant an agreement reasonably acceptable to Tenant to the effect that if its Superior Lease shall terminate or be terminated for any reason, Lessor will not evict Tenant, disturb Tenant’s possession under the Lease, or terminate or disturb Tenant’s leasehold estate or rights hereunder, and will recognize Tenant as the direct tenant of such Lessor on the same terms and conditions as are contained in this Lease (subject to the provisions hereinafter set forth), provided no Event of Default shall have occurred and be continuing (any such agreement, or any agreement of similar import, from a Mortgagee or a Lessor, as the case may be, being hereinafter referred to as a “Nondisturbance Agreement”), this Lease shall be subject and subordinate to such Superior Lease and/or to such Mortgage, This clause shall be self-operative and no further instrument of subordination shall be required from Tenant to make

 

 

the interest of any Lessor or Mortgagee superior to the interest of Tenant hereunder. Tenant, however, at its expense, shall execute and deliver promptly the Nondisturbance Agreement. If the date of expiration of any Superior Lease shall be the same day as the Lease Expiration Date, the Term shall end and expire 12 hours prior to the expiration of the Superior Lease (subject, however, to any valid exercise of a renewal right in accordance with Section 3.2). Landlord represents that there is currently no Superior Lease and that currently the only Mortgagee is JP Morgan Chase Bank, NA. Landlord shall cause the current Mortgagee to provide a commercially reasonable Nondisturbance Agreement for execution by Tenant and Mortgagee. If Landlord shall fail to do so within thirty (30) days immediately succeeding the date of this Lease and if thereafter Landlord fails to so provide such a Nondisturbance Agreement to Tenant within five (5) Business Days following Landlord’s receipt of a subsequent notice from Tenant stating that Landlord has failed to so provide such a Nondisturbance Agreement to Tenant within the time prescribed by this Lease, then Tenant may cancel this Lease without penalty.

 

(b)       Any Nondisturbance Agreement may be made on the condition that neither the Mortgagee nor the Lessor, as the case may be, shall be:

 

(i)       liable for any act or omission of any prior landlord (including, without limitation, the then defaulting Landlord), except for a continuing act or omission by the Landlord, Mortgagee or Lessor; or

 

(ii)       except for offsets expressly provided for herein, subject to any defense or offsets which Tenant may have against any prior landlord (including, without limitation, the then defaulting Landlord); or

 

(iii)       bound by any payment of Rent which Tenant may have made to any prior landlord (including, without limitation, the then defaulting Landlord) more than 30 days in advance of the date upon which such payment was due (except as specifically provided in this Lease including, without limitation, Taxes); or

 

(iv)       bound by any obligation to make any payment to or on behalf of Tenant, except as specifically provided in this Lease (including, without limitation, the Tenant Improvement Allowance); or

 

(v)       bound by any obligation to perform any work or to make improvements to the Premises, except for (x) repairs and maintenance pursuant to the provisions of Article 10 herein, the need for which repairs and maintenance is either of a continuing nature or first arises after the date upon which such Lessor, or Mortgagee shall be entitled to possession of the Premises: (y) repairs to the Premises or any part thereof as a result of damage by fire or other casualty pursuant to Article 15 herein, but only to the extent that such repairs can be reasonably made from the net proceeds of any insurance actually made available to such Lessor or Mortgagee; and (z) repairs to the Premises as a result of a partial condemnation pursuant to Article 16 herein, but only to the extent that such repairs can be reasonably made from the net proceeds of any award made available to such Lessor or Mortgagee; or

 

 

(vi)          bound by any amendment or modification of this Lease made without its consent, after the Lessor ox Mortgagor shall have given to Tenant in writing a notice address.

 

(c)         Landlord has executed an REA, a true and complete copy of which has been delivered to Tenant, This Lease shall be subject and subordinate to the REA but not to any amendments of any component or element thereof unless such amendment shall not decrease Tenant’s rights, increase its obligations or impair its ability to use and enjoy the premises as contemplated hereunder, in each case other than to a de minimis extent. This clause shall be self-operative and no further instrument of subordination shall be required from Tenant to make the REA superior to the interest of Tenant hereunder, Tenant, however, at Tenant’s expense, shall execute and deliver promptly any agreement that Landlord may provide to Tenant and reasonably request in confirmation of such subordination. Landlord acknowledges and agrees that it will not take any action or fail to take any action with respect to its obligations under the REA. Tenant acknowledges and agrees that it and the Tenant Parties will not do anything to violate any of the terms of the REA; provided, however, that this obligation shall only be applicable, as to any subsequent amendment to the REA, once Tenant receives a copy of such amendment otherwise in conformance with the terms of this Lease.

 

Section 13.2        Attornment. If at any time prior to the expiration of the Term, any Superior Lease shall terminate or be terminated for any reason or any Mortgagee comes into possession of the Property or the estate created by any Superior Lease by receiver or otherwise, Tenant agrees, at the election and upon demand of any owner of the Property, or of the Lessor, or of any Mortgagee in possession of the Property, to attorn, from time to time, to any such owner, Lessor or Mortgagee or any person acquiring the interest of Landlord as a result of any such termination, or as a result of a foreclosure of the Mortgage or the granting of a deed in lieu of foreclosure, then upon the executory terms and conditions of this Lease, subject to the provisions of Section 13.1 herein, for the remainder of the Term, provided that such owner, Lessor or Mortgagee, as the case may be, or receiver caused to be appointed by any of the foregoing, shall then be entitled to possession of the Premises, The provisions of this Section shall inure to the benefit of any such owner, Lessor or Mortgagee, shall apply notwithstanding that, as a matter of law, this Lease may terminate upon the termination of any Superior Lease, and shall be self-operative upon any such demand, and no further instrument shall be required to give effect to said provisions. Tenant, however, upon demand of any such owner, Lessor or Mortgagee, shall execute, at Tenant’s expense, from time to time, instruments provided by Landlord, in recordable form, in confirmation of the foregoing provisions of this Section, reasonably satisfactory to Tenant and to any such owner, Lessor or Mortgagee, acknowledging such attornment and setting forth the terms and conditions of its tenancy, Nothing contained in this Section, shall be construed to impair any right otherwise exercisable by any such owner, Lessor or Mortgagee.

 

Section 13.3        Lease Modification. Tenant shall execute and deliver to Landlord within a reasonable period of time any modifications of this Lease reasonably satisfactory to Tenant required or requested (a) by the holder or potential holder of a Mortgage, and (b) by Landlord to conform to the REA, if applicable; provided, that no such modification shall adversely affect Tenant’s rights or obligations hereunder, including without limitation, such modifications shall not affect the Term or amount of Rent payable hereunder.

 

 

ARTICLE 14

 

Landlord’s Right of Entry; Roof Rights; Etc.

 

Section 14.1        Right of Entry. Landlord and its designees shall have the right to enter the Premises (other than the Secured Areas) (a) at any time during Business Hours and upon reasonable prior notice in order to perform its obligations or to exercise any right or remedy reserved to it in or under this Lease, and (b) for any other commercially reasonable reason on two (2) Business Days advance notice (or in the event of an emergency, at any time without prior notice to Tenant, in which event Landlord shall give Tenant notice of such emergency access as promptly as reasonably practicable thereafter) and to inspect the same, post notices of non-responsibility, post notices required by Applicable Laws, exhibit the Premises to prospective purchasers and mortgagees, and examine Tenant’s maintenance and service contracts pertaining to Tenant’s use of the Premises under the terms of this Lease, insurance policies, certificates of occupancy and other documents, records and permits in Tenant’s possession with respect to the Premises, all of which shall be customary and adequate and reasonably satisfactory to Landlord and to perform Site Assessments; provided, that, in all cases, Landlord uses commercially reasonable efforts to minimize interference with the use and occupancy of the Premises, and that Landlord and its designees are accompanied by a designated representative of Tenant (Tenant agreeing that it shall make such representative reasonably available), Except as otherwise expressly provided in this Lease, and except as arising from Landlord’s negligence (subject to the waiver of subrogation provisions of Article 7) or willful misconduct, Landlord shall not be liable for inconvenience, annoyance, disturbance, or other damage to Tenant by reason of making such entry on the Premises or on account of bringing materials, supplies and equipment into or through the Premises during the course thereof and the obligations of Tenant under this Lease shall not thereby be affected in any manner whatsoever. Notwithstanding any of the foregoing, Landlord acknowledges that Tenant may, from time to time, have certain security or confidentiality requirements such that portions of the Premises which may include, without limitation, technology rooms and primary computer equipment rooms (“Secured Areas”) shall be locked and/or inaccessible to persons unauthorized by Tenant and such Secured Areas will not be made available to Landlord except in the case of an emergency.

 

Section 14.2        Rooftop Equipment. Tenant shall have the non-exclusive right to install, access and maintain one satellite dish and Supplemental HVAC equipment (collectively, the “Rooftop Equipment”) on the roof of the Building subject to compliance with Applicable Laws, in accordance with the provisions of Article 9 and further subject to Tenant paying for all costs and expenses for such installation, access and maintenance. Tenant shall take all actions necessary to prevent any such installations from unreasonably interfering with the Rooftop Equipment of any other tenant or occupant of the Building and from adversely affecting applicable warranties with respect to the roof, and shall indemnify and hold harmless LandIord from any liability, cost or damage resulting from the installation, maintenance, operation or removal of the Rooftop Equipment, Upon Landlord’s request not less than three (3) months prior to the Lease Expiration Date or the end of the final Renewal Term, if exercised, or within thirty (30) days after an earlier termination of this Lease, as the case may be, Tenant at its expense shall remove the designated Rooftop Equipment prior to the termination of this Lease and restore any damage to the Premises resulting from such removal The location of the Rooftop Equipment shall be selected by Tenant and reasonably acceptable to Landlord, subject

 

 

to Tenant’s rights hereunder. Tenant shall have the right to use, as available (to the extent such needs exceed the need in Tenant’s Plans as per Section 11.10) and at no cost, a sufficient amount of riser space running from the roof to the Premises for purposes of connecting the Rooftop Equipment to the Premises.

 

Section 14.3        Supplemental HVAC.

 

(a)         Tenant may install, access and maintain supplemental HVAC for the Premises (“Supplemental HVAC”). subject to compliance with Applicable Laws, in accordance with the provisions of Article 9 and further subject to Tenant paying for all costs and expenses for such installation, access and maintenance, Tenant shall indemnify and hold harmless Landlord from any liability, cost or damage resulting from the installation, maintenance, operation or removal of the Supplemental HVAC; provided, however, that with respect to any Hazardous Substances Article 24 shall control. Upon Landlord’s request not less than three (3) months prior to the Lease Expiration Date or the end of the final Renewal Term, if exercised, or within 30 days after an earlier termination of this Lease, as the case may be, Tenant at its expense shall remove the designated Supplemental HVAC as aforesaid following early termination) and repair any damage to the Premises resulting from such removal.

 

(b)         At Tenant’s request, Landlord shall furnish condenser water for the operation of the Supplemental HVAC and Tenant shall have the right to connect to the Building’s condenser water system and to draw condenser water therefrom; provided, in no event shall Tenant have the right to draw in excess of 15 tons in the aggregate (the “Committed Tonnage”) from the distribution points at any one time, The condenser water shall have an entering water temperature of 87° F and a leaving water temperature of 97° F, and a flow of three (3) gallons per minute per ton. Landlord shall install, at Tenant’s cost and expense, a checkmeter to monitor Tenant’s condensed water consumption, and Tenant shall pay to Landlord as Additional Rent the reasonably determined incremental out-of-pocket cost to Landlord of providing such condensed water to Tenant, The current cost charged by Landlord for providing such condensed water is $325/ton/year, payable monthly in advance, If Tenant shall require condenser water for the Supplemental HVAC in excess of the Committed Tonnage and Landlord determines, in Landlord’s reasonable determination, that such additional condenser water is available or can readily be made available, Landlord shall make such additional condenser water available to Tenant at Tenant’s sole cost, including without limitation the cost of any necessary improvements made by Landlord to furnish such additional condenser water to Tenant.

 

ARTICLE 15

 

Casualty

 

Section 15.1        Restoration; Abatement.

 

(a)         If the Building or the Premises or any part thereof shall be damaged by fire or other casualty, Tenant shall give reasonably prompt notice thereof to Landlord, and upon such notice Landlord shall proceed with reasonable diligence to repair or cause to be repaired any and all damage to the Base Building and to the Base Building Systems and all Tenant Improvements and Alterations (to the extent Landlord receives the insurance proceeds therefor

 

 

under Section 7.3) to return same to substantially the same condition as prior to such casualty, Landlord’s restoration obligation shall be subject to Applicable Laws, and Landlord shall have no obligation to repair, replace or restore any Tenant’s Property.

 

(b)         Rent shall abate in the proportion that the Premises shall have been rendered untenantable, or, if damage affects major systems or more than twenty five percent (25%) of the Premises or access so that the entire Premises is untenantable and is not used by Tenant, fully abate, such abatement to be from the date of such casualty until such repairs which are required to be performed by Landlord are substantially repaired, restored or rebuilt and reasonable access to the Premises restored, and a certificate of occupancy for the Premises is issued; provided, Tenant shall be solely responsible thereafter for the repair, replacement and restoration of Tenant’s Property and the abatement period shall terminate notwithstanding the lack of a certificate of occupancy if the sole reason that it has not been issued is due to the incomplete repair, replacement or restoration of Tenant’s Property.

 

Section 15.2        Tenant’s Right of Termination.

 

(a)         Within sixty (60) days after notice to Landlord of any damage described in Section 15.1 herein, Landlord shall deliver to Tenant a statement setting forth Landlord’s good faith estimate (the “Estimate”) as to the time required to repair such damage, exclusive of time required to perform Long Lead Work, If the estimated time period exceeds twelve (12) months from the date of the Estimate, Tenant may elect to terminate this Lease by notice to Landlord not later than thirty (30) days following receipt of the Estimate, If Tenant makes such election, the Term shall expire upon the thirtieth (30^th) day after notice of such election is given by Tenant, and Tenant shall vacate the Premises and surrender the same to Landlord in accordance with the provisions of Article 21 (provided, that such obligation shall be subject to Tenant being reasonably and safely able to access the Premises for purposes of complying with such obligations in light of the casualty) and any prepaid portion of Rent shall be abated as of such date of damage or destruction and shall be refunded by Landlord to Tenant. If Tenant shall not have elected to terminate this Lease pursuant to this Article (or is not entitled to terminate this Lease pursuant to this Article), the damage (including the damage to the Tenant Improvements and Alterations provided that Landlord receives the proceeds of Tenant’s insurance covering such Tenant Improvements and Alterations) shall be diligently repaired by Landlord, as set forth in this Article provided, that (i) if Landlord fails to substantially complete the repair on or prior to the thirtieth (30^th) day after the expiration of the repair period set forth in the Estimate, then Tenant may (but shall not be obligated to) exercise Tenant’s self-help rights in accordance with the provisions of Section 19.2 to perform such repair for Landlord’s account, or (ii) if Landlord fails to substantially complete the repair on or prior to the sixtieth (60^th) day after the expiration of the repair period set forth in the Estimate, then Tenant may (but shall not be obligated to) terminate this Lease by notice to Landlord; provided, Tenant may not terminate this Lease if on such sixtieth (60^th) day Landlord has substantially completed such repairs and is diligently pursuing completion thereof and Tenant’s use of the Premises is not materially impaired thereby.

 

(b)         Notwithstanding the foregoing, if such damage occurs during the last two (2) Lease Years of the Term and if the estimated time period set forth in the Estimate delivered pursuant to subsection (a) above exceeds one hundred eighty (180) days from the date of the Estimate (exclusive of time required to perform Long Lead Work), then Tenant may give notice

 

 

to Landlord of its intention to terminate this Lease, and if Tenant makes such election, the Term shall expire upon the 30th day after notice of such election is given by Tenant, and Tenant shall vacate the Premises and surrender the same to Landlord in accordance with the provisions of Article 21 below (provided, that such obligation shall be subject to Tenant being reasonably and safely able to access the Premises for purposes of complying with such obligations in light of the casualty), and any prepaid portion of Rent shall be abated as of such date of damage or destruction and shall be refunded by Landlord to Tenant.

 

Section 15.3        Landlord’s Right of Termination. If more than fifty percent (50%) of the Building shall be damaged by fire or other casualty, then Landlord may, at its option, terminate this Lease by giving Tenant thirty (30) days’ notice of such termination, which notice shall be given within ninety (90) days after the date Tenant gives Landlord notice of such damage, In the event that such notice of termination shall be given, (a) this Lease shall terminate as of the date thirty (30) days after the giving of the notice of termination (whether or not the Term shall have commenced) with the same effect as if that were the Expiration Date (except that Tenant shall have no obligation to restore the Premises in accordance with the provisions of Article 21); (b) Rent shall be apportioned as of the date of damage or destruction; and (c) any prepaid portion of Rent shall be abated as of the date of damage or destruction and shall be refunded by Landlord to Tenant, If, at any time during the ninety (90) day period and prior to Landlord giving Tenant the aforesaid notice of termination or commencing the repair and restoration pursuant to Section 15.2, the holder of a Mortgage takes possession of the Building through foreclosure or otherwise, such holder or person shall have a further period of thirty (30) days from the date of so taking possession to terminate this Lease, under the same terms and conditions as set forth in this Section, by thirty (30) days’ written notice of termination, If such notice shall be given, this Lease shall terminate as of the date provided in such notice of termination (whether or not the Term shall have commenced) with the same effect as if that were the Expiration Date (except that Tenant shall have no obligation to restore the Premises in accordance with the provisions of Article 21), and Rent shall be abated as of the date of damage or destruction, and any prepaid portion of Rent for any period after such date shall be refunded by Landlord to Tenant. Landlord shall have no right to terminate this Lease under this Article 15 unless it is simultaneously terminating all other leases in the Building and completely closing the Building to any occupants during the restoration.

 

Section 15.4        Liability. Landlord shall not be liable for any inconvenience or annoyance to Tenant or injury to the business of Tenant resulting in any way from such damage by fire or other casualty or the repair thereof, Landlord will not carry insurance of any kind on Tenant’s Property or Tenant’s Alterations, If Landlord shall be delayed from substantially completing the repairs or restoration due to any act or omission of Tenant or any of the Tenant Parties, then such repairs or restoration shall be deemed substantially complete on the date when the repairs or restoration would have been substantially complete but for such delay, and the expiration of the Rent abatement shall not be postponed by reason of such delay.

 

Section 15.5        Cooperation. Landlord and Tenant shall cooperate with each other in providing information to any insurance company insuring any loss or damage occurring at the Property and shall not interfere with the other’s collection of insurance proceeds.

 

 

Section 15.6        Willful Misconduct. Nothing herein contained shall relieve either party from any liability to the other caused by such party’s willful misconduct or criminally liable acts in connection with any damage to the Premises or the Property by fire or other casualty.

 

Section 15.7        Express Agreement. This Lease shall be considered an express agreement governing any case of damage to or destruction of the Property or any part thereof by fire or other casualty, and any law providing for such contingency in the absence of such express agreement, now or hereafter enacted, shall have no application in such case.

 

Section 15.8        Outstanding Mortgage. Notwithstanding anything in this Lease to the contrary, for any time period during which the Mortgage is outstanding, the net proceeds of any insurance that is recovered shall be applied in the manner set forth in the Mortgage and in the Nondisturbance Agreement.

 

ARTICLE 16

 

Eminent Domain

 

Section 16.1        Termination Rights.

 

(a)         If the whole of the Premises, or such part thereof as will render the remainder untenantable shall be acquired or condemned for any public or quasi-public use or purpose, this Lease shall end as of the date of the vesting of title in the condemning authority (either through court order or by voluntary conveyance by Landlord in lieu of condemnation) with the same effect as if said date were the Expiration Date. If only a part the Premises shall be so acquired or condemned, then, except as otherwise provided in this Article, this Lease and the Term shall continue in force and effect, but from and after the date of the vesting of title, the Fixed Rent shall be an amount which bears the same ratio to the Fixed Rent payable immediately prior to such condemnation pursuant to this Lease as rentable square footage of the untaken portion of the Premises bears to the rentable square footage of the entire Premises immediately before the taking, and any Additional Rent payable or credits receivable pursuant to Article 6, and the amount of the Security Deposit set forth in Section 34.1 shall be adjusted proportionately to reflect the diminution of the Premises.

 

(b)         If more than 25% of the Building and a material part of the Land shall be so acquired or condemned, then: (i) Landlord, at its option, may give to Tenant, within sixty (60) days following the date upon which Landlord shall have received notice of vesting of title, ninety (90) days’ notice of termination of this Lease; and (ii) if the part of the Building so acquired or condemned shall contain more than ten (10%) percent of the total area of the Premises immediately prior to such acquisition or condemnation, Tenant no longer has reasonable means of access to the Premises or associated parking or its ability to use the Premises for its business has been materially impaired, then Tenant, at its option, may give to Landlord, within sixty (60) days following the date upon which Tenant shall have received notice of vesting of title, ninety (90) days’ notice of termination of this Lease, In the event any such ninety (90) day notice of termination is given by Landlord or Tenant, this Lease shall terminate upon the expiration of said ninety (90) days with the same effect as if that were the Expiration Date (except that Tenant shall have no obligation to restore

 

 

the Premises in accordance with the provisions of Article 21). If a part of the Premises shall be so acquired or condemned, and this Lease shall not be terminated pursuant to the provisions of this Section, Landlord, at its expense (but subject to recoupment from the proceeds of any award), shall restore that part of the Premises not so acquired or condemned (together with all of the services and amenities to which Tenant is otherwise entitled under the Lease, to the extent reasonably practicable) to a self-contained rental unit and substantially the same condition as prior thereto, excluding Tenant’s Property, and Rent applicable to the portion of the Premises so acquired or taken shall abate from and after such acquisition or taking (with any prepaid portion of Rent applicable thereto being credited against the next Rent payable hereunder). In the event of any termination of this Lease pursuant to the provisions of this Section, the Rent shall be apportioned as of the date of such termination and any prepaid portion of Rent for any period after such date shall be refunded by Landlord to Tenant.

 

Section 16.2        The Award. In the event of any such acquisition or condemnation of all or any part of the Property, Landlord shall be entitled to receive the entire award for any such acquisition or condemnation. Tenant shall have no claim against Landlord or the condemning authority for the value of any unexpired portion of the Term, and Tenant hereby expressly assigns to Landlord all of its right, title and interest in and to any such award. Tenant shall (at no expense or liability) execute any and all further documents that may be required in order to facilitate the collection thereof by Landlord. Nothing contained in this Section shall be deemed to prevent Tenant from making a separate claim in any condemnation proceedings for any moving expenses and for the value of any Tenant’s Property (in excess of Landlord’s contribution thereto).

 

Section 16.3        Temporary Taking. If all or any part of the Premises shall be condemned or taken for any public or quasi-public use or purpose on a temporary basis during the Term, this Lease shall be and remain unaffected by such condemnation or taking and Tenant shall continue to be responsible for all of its obligations hereunder and shall continue to pay the Rent in full, In the event of any such condemnation or taking, Tenant shall be entitled to appear, claim, prove and receive the entire award unless the period of temporary use or occupancy extends beyond the Expiration Date, in which event Landlord shall be entitled to appear, claim, prove and receive the entire award as represents the cost of restoration of the Premises and the balance of any such award shall be apportioned between Landlord and Tenant as of the Expiration Date provided further, however, if the temporary taking is for substantially the balance of the Term, Tenant shall have the right to terminate this Lease. At the termination of such public or quasi-public occupancy prior to the Expiration Date, Tenant shall, at its expense, restore the Premises as nearly as possible to the condition in which they were prior to the condemnation or taking (reasonable wear and tear excepted); provided, however, that Tenant shall have no obligation to expend any sum in excess of the condemnation proceeds received by Tenant under this Section to restore the Premises in accordance with this Section. Notwithstanding the preceding provisions of this Section, any lump sum award received by Tenant as compensation for temporary use and occupancy of the Premises shall be delivered forthwith to Landlord to be held by Landlord in trust for the making of payments by Tenant as provided in this Lease.

 

Section 16.4        Outstanding Mortgage. Notwithstanding anything in this Lease to the contrary, for any time period during which the Mortgage is outstanding, any condemnation

 

 

proceeds awarded in accordance with Sections 16.1 or 16.2 herein shall be applied in the manner set forth in the Mortgage.

 

ARTICLE 17

 

Default

 

Section 17.1        Events of Default. Each of the following events shall be an “Event of Default” hereunder:

 

(a)         if Tenant shall file a voluntary petition in bankruptcy or insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, or shall make an assignment for the benefit of creditors or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of all or any part of Tenant’s Property; or

 

(b)         if, within ninety (90) days after the commencement of any such proceeding against Tenant, such proceeding shall not have been dismissed, or if, within ninety (90) days after the appointment of any trustee, receiver or liquidator of Tenant, or of all or a substantial part of Tenant’s property, without the consent or acquiescence of Tenant, such appointment shall not have been vacated or otherwise discharged, or if any execution or attachment shall be issued against Tenant or any of Tenant’s property pursuant to which the Premises shall be taken or occupied or attempted to be taken or occupied and the same shall not be discharged within ninety (90) days; or

 

(c)         if Tenant shall default in the payment when due of any installment of Fixed Rent or in the payment when due of any Additional Rent, and such default shall continue for a period of ten (10) Business Days after notice to Tenant; or

 

(d)         if Tenant shall default in the observance or performance of any term, covenant or condition of this Lease on Tenant’s part to be observed or performed (other than the covenants for the payment of Rent) and Tenant shall fail to remedy such default within thirty (30) days after notice by Landlord to Tenant of such default, or if such default is of such a nature that it cannot with due diligence be completely remedied within said period of thirty (30) days and Tenant shall not commence within said period of thirty (30) days, or shall not thereafter diligently prosecute to completion remedy of such default; or

 

(e)           if any event shall occur or any contingency shall arise whereby this Lease or the estate hereby granted or the unexpired balance of the Term would, by operation of law or otherwise, devolve upon or pass to any person, firm or corporation other than Tenant, except as is expressly permitted under Article 12 herein;

 

then in any of said events Landlord may give to Tenant notice of intention to end the Term, and, in the event such notice is given, this Lease (whether or not the Term shall have commenced) shall terminate with the same effect as if that day were the Expiration Date, and all rights of Tenant under this Lease shall expire and terminate and Tenant shall immediately quit and

 

 

surrender the Premises but Tenant shall remain liable for all of its obligations hereunder and for damages as provided in Article 18 herein.

 

Section 17.2        Use and Occupancy Payments. Any monies received by Landlord from or on behalf of Tenant during the pendency of any proceeding of the types referred to in Section 18.1 herein shall be deemed paid as compensation for the use and occupation of the Premises, and the acceptance of any such compensation by Landlord shall not be deemed an acceptance of Rent or a waiver on the part of Landlord of any rights under Article 18 herein.

 

ARTICLE 18

 

Re-entry by Landlord; Remedies

 

Section 18.1        Re-entry. If this Lease and the Term shall terminate as provided in Article 17:

 

(a)         Landlord and Landlord’s agents may at any time after the date upon which this Lease shall terminate, re-enter the Premises or any part thereof, without notice, either by summary proceeding or by any other applicable lawful action or proceeding, and may repossess the Premises and dispossess Tenant and any other persons from the Premises and remove any and all of its or their property and effects from the Premises, and in no event shall re-entry be deemed an acceptance of surrender of this Lease; and

 

(b)         Landlord may relet the whole or any part or parts of the Premises from time to time either in the name of Landlord or otherwise, to such tenant or tenants, for such term or terms ending before, on or after the Expiration Date, at such rental or rentals and upon such other conditions, which may include concessions and free rent periods reasonably required under then existing market conditions, as Landlord, in its sole discretion, may reasonably determine, Landlord, at its option, may make such repairs, replacements, alterations, additions, improvements, decorations and other physical changes in and to the Premises as necessary to restore the Premises to first class office space in good condition in connection with any such reletting or proposed reletting, without relieving Tenant of any liability under this Lease or otherwise affecting any such liability, Tenant shall be liable for the amount of all expenses reasonably incurred by Landlord in connection with such repairs, replacements, alterations, additions, improvements, decorations and other physical changes made by Landlord to restore the Premises to good condition first class office space and the costs of such reletting, including without limitation reasonable brokerage (pro-rated to cover the unexpired portion of the Term) and legal expenses but only to the extent Landlord does not recoup such costs by the reletting.

 

Section 18.2        Tenant’s Waivers. Tenant waives any rights to (a) redeem the Premises, (b) re-enter or repossess the Premises, or (c) restore the operation of this Lease, after Tenant shall have been dispossessed by a judgment or by warrant of any court or judge, or after this Lease shall have been terminated and any re-entry by Landlord, or after the expiration or termination of this Lease and the Term, whether such dispossess, re-entry, expiration or termination shall, be by operation of law or pursuant to the provisions of this Lease, The words “re-enter”, "re-entry” and “re-entered” as used in this Lease shall not be deemed to be restricted to their technical legal meanings.

 

 

Section 18.3        Injunction. In the event of any breach or threatened breach by either party or any persons claiming through or under either party of any of the agreements, terms, covenants or conditions contained in this Lease, the other party shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke any right or remedy allowed at law or in equity or by statute or otherwise; provided however, that in no event shall Tenant be entitled to enjoin Landlord from any actions which are required pursuant to the terms of a Mortgage.

 

Section 18.4        Remedies. If this Lease and the Term shall terminate as provided in Article 17 herein, or by or under any summary proceeding or any other lawful action or proceeding, or if Landlord shall re-enter the Premises as provided in this Article, or by or under any summary proceeding or any other lawful action or proceeding, then, in any of said events;

 

(a)         Tenant shall pay to Landlord all Rent to the date upon which this Lease and the Term shall have terminated.

 

(b)         Landlord shall be entitled to retain all monies, if any, paid by Tenant to Landlord, whether as advance rent, security or otherwise, but such monies shall be credited by Landlord against any Rent due at the time of such termination or re-entry, or at Landlord’s option, against any damages payable by Tenant.

 

(c)         Tenant shall be liable for and shall pay to Landlord any deficiency between (i) the Rent payable hereunder for the period which otherwise would have constituted the unexpired portion of the Term (conclusively presuming the Operating Expenses to increase by 3% per annum over the Operating Expenses payable for the year immediately preceding such termination or re-entry), and (ii) the net amount, if any, of rents (“Net Rent”) collected under any reletting effected pursuant to the provisions of subsection 18.1(b) herein for any part of such period (first deducting from the rents collected under any such reletting all of Landlord’s reasonable expenses in connection with the termination of this Lease and Landlord’s re-entry upon the Premises and in connection with such reletting that were not otherwise reimbursed by Tenant to Landlord in accordance with the provisions of subsection 18.1(b), including but not limited to all reasonable repossession costs, brokerage commissions, alteration costs, attorneys’ fees and other expenses of preparing the Premises for such reletting.

 

(d)         Any such deficiency shall be paid in monthly installments by Tenant on the days specified in this Lease for the payment of installments of Fixed Rent, Landlord shall be entitled to recover from Tenant each monthly deficiency as the same shall arise, and no suit to collect the amount of the deficiency for any month shall prejudice Landlord’s right to collect the deficiency for any subsequent month by a similar proceeding, Alternatively, suit or suits for the recovery of such deficiencies may be brought by Landlord from time to time at its election;

 

 

(e)         Whether or not Landlord shall have collected any monthly deficiencies as aforesaid, Landlord shall, at its sole option, be entitled to recover from Tenant, and Tenant shall pay Landlord, on demand, as and for liquidated and agreed final damages, a sum equal to the amount by which the Rent payable hereunder for the period which otherwise would have constituted the unexpired portion of the Term following the last deficiency collected (conclusively presuming the Operating Expenses to increase by 3% per annum over the

 

 

Operating Expenses payable for the year immediately preceding such termination or re-entry) exceeds the then fair rental value of the Premises for the same period, both discounted to present worth at 8% per annum, Each party shall be entitled to have an expert testify before such court, commission or tribunal as to its determination of the fair rental value for the part or the whole of the Premises so relet during the term of the reletting and the decision made by the judge of such court, commission or tribunal shall be binding upon the parties. Notwithstanding anything to the contrary that may be contained in this Lease, Landlord shall use commercially reasonable efforts to re-let the Premises and mitigate its damages in connection with an Event of Default or other breach or termination of this Lease, but Landlord will not be required to give priority to releasing the Premises over other vacant space in the Park, if applicable, or over other vacant space owned by Landlord or an Affiliate of Landlord in Fairfield County, Connecticut.

 

(f)          In no event (i) shall Tenant be entitled to receive any excess of the Net Rent collected over the sums payable by Tenant to Landlord hereunder, or (ii) shall Tenant be entitled in any suit for the collection of damages pursuant to this Section to a credit in respect of any Net Rent from a reletting, except to the extent that such Net Rent is actually received by Landlord, If the Premises or any part thereof should be relet in combination with other space, then equitable apportionment on a rentable square foot area basis shall be made of the rent received from such reletting and of the expenses of reletting.

 

Section 18.5        Covenants.

 

(a)         If this Lease be terminated as provided in Article 17 herein or by or under any summary proceeding or any other lawful action or proceeding, or if Landlord shall re-enter the Premises, notwithstanding anything to the contrary contained in this Lease:

 

(i)          The Premises shall be, upon such earlier termination or re-entry, in the same condition as that in which the Tenant has agreed to surrender them to Landlord at the expiration of the Term hereof;

 

(ii)         Tenant, on or before the occurrence of any Event of Default, shall have performed every covenant imposed on it pursuant to this Lease for the making of any improvement, alteration or betterment to the Premises, or for restoring or rebuilding any part hereof; and

 

(iii)        For the breach of either subdivision (i) or (ii) of this subsection, or both, Landlord shall be entitled immediately, without notice or other action by Landlord, to recover, and Tenant shall pay, as and for damages therefor, the then cost of performing such covenant, plus interest thereon at the Default Rate for the period between the occurrence of any event of default and the time when any such work or act, the cost of which is computed, should have been performed under the other provisions of this Lease had such Event of Default not occurred.

 

(b)         Each and every covenant contained in this Section shall be deemed separate and independent, and not dependent on other provisions of this Lease. It is understood that the consideration for the covenants in this Section is the making of this Lease, and the damages for failure to perform the same shall be deemed to be in addition to and separate and

 

 

independent of the damages accruing by reason of default in observing any other covenant contained in this Lease.

 

Section 18.6        Cumulative Remedies. Except as expressly otherwise provided in this Lease, each right and remedy of Landlord provided for in this Lease shall be cumulative and shall be in addition to every other right and remedy provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by Landlord of any one or more of the rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by any party of any or all other rights or remedies provided for in this Lease or now or hereafter existing at law or in equity by statute or otherwise.

 

Section 18.7        Attorneys’ Fees. In addition to all other remedies, the prevailing party shall be entitled to reimbursement upon demand of all reasonable attorneys’ fees incurred by the prevailing party in connection with any default by the other party, together with other costs of collection and interest, commencing upon the occurrence of an Event of Default, or Landlord Event of Default, on the amount recovered, at the Default Rate.

 

Section 18.8        Landlord Event of Default. Landlord shall be deemed to have committed an event of default (“Landlord Event of Default”) in the event Landlord shall violate or fail to perform any of the conditions, covenants or agreements herein made by Landlord and such default shall continue for 30 days after notice from Tenant; provided, however, that if the nature of such default is such that Landlord can cure the default, but not within 30 days, then the Landlord Event of Default shall be suspended so long as Landlord commences to cure such default within 30 days and thereafter diligently and continuously prosecutes the curing of the default.

 

Section 18.9        Waiver. Notwithstanding anything to the contrary contained herein, with the exception of any claim Landlord may have against Tenant pursuant to the provisions of Section 21.3 as a result of a holdover by Tenant, in no event shall either patty be liable to the other for special, indirect, punitive or consequential damages with respect to any default or other matter arising under this Lease or the transactions contemplated hereunder.

 

ARTICLE 19

 

Curing Defaults

 

Section 19.1        Cure of Tenant Defaults. If Tenant shall fail to comply with any of its obligations under this Lease, Landlord may, without thereby waiving such default, perform the same for the account, and at the expense, of Tenant, without notice in a case of emergency (except such notice as is reasonable under the circumstances, which may be notice after the fact) and in any other case if such failure continues after ten (10) days from the date of the giving by Landlord to Tenant of notice of Landlord’s intention so to do, or such lesser period of notice in the event that a condition might constitute a default under a Mortgage or Superior Lease, in which event Landlord shall so specify in its notice, providing relevant detail, Bills for any expense incurred by Landlord in connection with any such performance by it for the account of Tenant, and bills for all costs, expenses and disbursements of every kind and nature whatsoever,

 

 

including reasonable attorneys’ fees, involved in collecting or endeavoring to collect Fixed Rent or Additional Rent or other charge or any part thereof or enforcing or endeavoring to enforce any rights against Tenant, under or in connection with this Lease, or pursuant to law together with reasonable backup documentation may be sent by Landlord to Tenant monthly or immediately, and shall be due and payable as Additional Rent, Any such bills shall be payable with interest at the Default Rate from the date Landlord incurs the charge or expense to the date of payment by Tenant to Landlord, Tenant’s obligations under this Section 19.1 shall survive the Expiration Date or sooner termination of the Term.

 

Section 19.2        Cure of Landlord Defaults. If Landlord shall fail to comply with any of its obligations under this Lease, Tenant may, without thereby waiving such default, provide notice to Landlord of Landlord’s failure to so comply, with reasonable specificity as to the manner in which Landlord has failed to comply with its obligations under this Lease, stating in bold-face all-capitals 12-point type “LANDLORD HAS DEFAULTED IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE LEASE, IF LANDLORD FAILS TO CURE SUCH DEFAULT ON OR BEFORE THIRTY (30) DAYS AFTER THE GIVING OF THIS NOTICE TENANT SHALL HAVE THE RIGHT TO AVAIL ITSELF OF SELF-HELP.” If Landlord shall fail to cure such default within thirty (30) days after receipt of such notice, then Tenant may perform the same for the account, and at the expense, of Landlord, without further notice. Bills for any expense incurred by Tenant in connection with any such performance by it for the account of Landlord together with reasonable backup documentation may be sent by Tenant to Landlord not more often than monthly, and each such bill shall be due and payable with 30 days after the giving thereof. Each such bill shall be payable with interest at the Default Rate from the date Tenant delivers notice that it has incurred the charge or expense to the date of payment by Landlord to Tenant. Landlord’s obligations under this Section 19.2 shall survive the Expiration Date or sooner termination of the Term.

 

ARTICLE 20

 

Non-Liability and Indemnification

 

Section 20.1        Indemnification By Tenant. Subject to the waiver of subrogation provisions contained in Article 7 and except as expressly set forth to the contrary in this Lease, from and after the Substantial Completion Date Tenant shall indemnify and save Landlord and Landlord’s Representatives harmless of and from ail loss, cost, liability, claim, damage and expense, including, without limitation, reasonable attorneys’ fees, penalties and fines incurred by Landlord in connection with third party claims arising from: (a) the use or occupancy of the Premises by Tenant or anyone claiming under Tenant in violation of Tenant’s obligations under this Lease, and (b) any acts, omissions, or negligence of Tenant or any of the Tenant Parties, in or about the Premises, the Building or the Property, either prior to or during the Term, including any acts, omissions or negligence in making or performing of any Tenant’s Alterations but, in all cases, excluding (from the indemnity provision) loss, cost, liability, claim, damage or expense caused by the negligence or willful misconduct of Landlord or any of Landlord’s Representatives, This indemnity and hold harmless agreement shall include indemnity from and against any and all liability, fines, suits, demands, costs and expenses of any kind or nature (including, without limitation, reasonable attorneys’ fees and disbursements) incurred in or in connection with any such claim or proceeding brought thereon, and the defense thereof, but

 

 

except with respect to claims with respect to bodily injury or death, shall be limited to the extent any insurance proceeds collectible by Landlord under policies owned by Landlord or such injured party with respect to such damage or injury are insufficient to satisfy same, Any Building employees to whom any personal property shall be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant’s agents with respect to such personal property, and neither Landlord nor Landlord’s Representatives shall be liable for any loss of or damage to any such property by theft or otherwise.

 

Section 20.2        Constructive Eviction. Except as expressly set forth to the contrary in this Lease, neither (a) the performance by Landlord, Tenant or others of any decorations, construction, repairs, Alterations, additions or improvements in, to or on the Building, Land or the Premises, nor (b) any damage to the Premises or to Tenant’s Property, nor any injury to any persons, caused by other tenants or persons in the Building, or by operations in the construction of any private, public or quasi-public work, or by any other cause, nor (c) any temporary covering or bricking up of any windows of the Premises required for Landlord to perform any maintenance or repairs or as required by Applicable Laws, nor (d) the interruption or cessation of any services to the Premises, nor (e) any inconvenience or annoyance to Tenant or injury to or interruption of Tenant’s business by reason of any of the events or occurrences referred to in the foregoing subdivisions (a) through (e) shall constitute an actual or constructive eviction, in whole or in part, or entitle Tenant to any abatement or diminution of Rent, or relieve Tenant of any of its obligations under this Lease, or impose any liability upon Landlord, or Landlord’s Representatives.

 

Section 20.3        Indemnification By Landlord. Subject to the waiver of subrogation provisions contained in Article 7 and except as expressly set forth to the contrary in this Lease, from and after the date hereof, Landlord shall indemnify and save Tenant and the Tenant Parties harmless of and from all loss, cost, liability, claim, damage and expense, including, without limitation, reasonable attorneys’ fees, penalties and fines incurred by them in connection with or arising from (a) any acts, omissions, or negligence of Landlord or any Landlord’s Parties, in or about the Premises, the Building, the Property or the Park either prior to or during the Term, including, without limitation any acts, omissions or negligence in making or performing of Landlord’s Work, and (b) any excavation or access arising under Section 30.1. This indemnity and hold harmless agreement shall include indemnity from and against any and all liability, fines, suits, demands, costs and expenses of any kind or nature (including, without limitation, reasonable attorneys’ fees and disbursements) incurred in or in connection with any such claim or proceeding brought thereon, and the defense thereof but except with respect to claims with respect to bodily injury or death, shall be limited to the extent any insurance proceeds collectible by Tenant under policies owned by Tenant or such injured party with respect to such damage or injury are insufficient to satisfy same.

 

Section 20.4        Defense of Actions. If any claim, action or proceeding is made or brought against either party, which claim, action or proceeding the other party shall be obligated to indemnify such first party against pursuant to the terms of this Lease, then, upon demand by the indemnified party, the indemnifying party, at its sole cost and expense, shall resist or defend such claim, action or proceeding in the indemnified party’s name, if necessary, by such attorneys as the indemnified party shall reasonably approve. Attorneys for the indemnifying party’s insurer are hereby deemed approved for purposes of this Section. The indemnified party shall not settle

 

 

or compromise any claim, action or proceeding without the indemnifying party’s approval (which approval shall not be unreasonably withheld, conditioned or delayed).

 

Section 20.5        Payments. All payments pursuant to this Article shall be paid within thirty (30) days following rendition of bills or statements therefor together with reasonable backup documentation thereof, The provisions of this Article shall survive the Expiration Date or sooner termination of the Term.

 

ARTICLE 21

 

Surrender

 

Section 21.1        Condition of Premises. On the Expiration Date or upon any earlier termination of this Lease, or upon any re-entry by Landlord upon the Premises, Tenant shall, at its expense, quit and surrender the Premises, including all Tenant Improvements and Alterations but with the exception of all Nonstandard Improvements designated by Landlord in writing upon approval of the plans and specifications therefor in accordance with Subsection 9.1(b) and Subsection 22.2(b) (which shall be the only Tenant Improvements and Alterations which Tenant shall be obligated to remove upon the Expiration Date, Tenant being obligated to repair any damage resulting from such removal, any earlier termination of this Lease or otherwise) to Landlord broom clean, in as good order, condition and repair, except with respect to Landlord’s obligations pursuant to the provisions of this Lease and except for ordinary wear, tear and damage by fire or other insured casualty or condemnation, together with all improvements which have been made upon the Premises (except as otherwise provided for in this Lease, including but not limited to Article 9 herein), Tenant shall remove from the Premises and the Building all of Tenant’s Property and all personal property and personal effects of all persons claiming through or under Tenant, and shall pay the cost of repairing all damage to the Property occasioned by such removal.

 

Section 21.2        Waiver. Tenant expressly waives, for itself and for any person claiming through or under Tenant, any rights which Tenant or any such person may have under any Applicable Law (other than a compulsory counterclaim) in connection with any holdover summary proceedings which Landlord may institute to enforce the provisions of this Article.

 

Section 21.3        Holdover By Tenant. If the Premises are not surrendered within thirty (30) days following the termination of the Term, Tenant shall indemnify Landlord against loss or liability resulting from delay by Tenant in so surrendering the Premises, including any claims made by any succeeding tenant founded on such delay, The parties recognize and agree that the damage to Landlord resulting from any failure by Tenant to timely surrender possession of the Premises on the Expiration Date, or earlier termination date will exceed the amount of the monthly installments of the Rent theretofore payable hereunder, and will be impossible to accurately measure, Tenant therefore agrees that if possession of the Premises is not surrendered to Landlord on the Expiration Date, or earlier termination date, a tenancy at sufferance is created and in addition to any other rights and remedies Landlord may have hereunder or at law, Tenant shall pay to Landlord on account of use and occupancy of the Premises for each month and for each portion of any month during which Tenant holds over in the Premises, a sum equal to 150% of the Rent which was payable under this Lease during the last month of the Term. Nothing

 

 

herein contained shall be deemed to permit Tenant to retain possession of the Premises after the expiration or earlier termination of this Lease or to limit in any manner Landlord’s right to regain possession of the Premises through summary proceedings, or otherwise, and no acceptance by Landlord of payments from Tenant after the Expiration Date, or earlier termination date shall be deemed to be other than on account of the amount to be paid by Tenant in accordance with the provisions of this Section.

 

Section 21.4        Survival. Tenant’s obligations under this Article shall survive the Expiration Date or sooner termination of this Lease.

 

ARTICLE 22

 

Landlord’s Work

 

Section 22.1        Landlord’s Work.

 

(a)         Landlord shall, at its sole cost and expense, cause to be constructed and completed the Landlord’s Work in accordance with the Plans and Specifications. Landlord shall construct the Landlord’s Work in a first-class workmanlike manner and in accordance with all Applicable Laws, Landlord shall apply for and obtain, at its sole cost and expense, all permits, licenses and certificates necessary for the performance of the Landlord’s Work. It shall be Landlord’s obligation to construct the Landlord’s Work in accordance with Applicable Laws, and Tenant shall not be deemed to release Landlord of this obligation by approving the Plans and Specifications or by occupying its space or commencing its construction therein. Landlord agrees to cure and/or remove of record any violations filed against or existing as to the Landlord’s Work, Tenant acknowledges that, as of the date hereof, Tenant has reviewed and approved the Plans and Specifications, Subject to Section 22.8, neither party may change the Plans and Specifications, unless approved in writing (or deemed approved) by the other party in accordance with the procedures set forth in this Lease.

 

(b)         Landlord shall cause Landlord’s Work to be Substantially Completed by the Target Completion Date.

 

(c)         Prior to the Substantial Completion Date, Landlord shall grant reasonable periodic access to the Premises upon reasonable advance notice to Landlord, to Tenant and to Tenant’s design and construction professionals for the purpose of confirming that Landlord’s Work is in substantial compliance with the Plans and Specifications. Landlord shall provide to Tenant and its design and construction professionals a copy of the Plans and Specifications, permits relating to Landlord’s Work, approvals, certificates of occupancy and other such information relating to the Building and the Property as Tenant or any such professional may reasonably request from time to time. Landlord will keep Tenant reasonably advised as to the progress of Landlord’s Work and whether Landlord anticipates any delays in the Target Completion Date.

 

Section 22.2        Construction of Tenant Improvements.

 

(a)         Tenant shall, at Tenant’s expense, submit to Landlord final and 100% complete dimensioned and detailed plans and drawings of partition layouts (including openings).

 

 

ceiling and lighting layouts, colors, mechanical and electrical circuitry plans and any and all other information as may be reasonably necessary to complete the construction of the Tenant Improvements (such plans are collectively referred to herein as “Tenant’s Plans”). Tenant shall submit Tenant’s Plans to Landlord in form, quality and quantity acceptable for the purposes of filing for a building permit with the Building Department of the City of Stamford, and such plans shall be signed and sealed by an architect licensed in the State of Connecticut, Tenant’s Plans shall comply with Applicable Laws, Tenant shall be permitted to file progress prints of such plans and specifications for all or any portion of the Tenant Improvements for Landlord’s review.

 

(b)         Within ten (10) Business Days after receipt of the complete Tenant’s Plans (which plans shall be accompanied with a notice stating in bold face all-capitals 12-point type “FAILURE OF LANDLORD TO DISAPPROVE THESE PLANS AND SPECIFICATIONS WITHIN TEN (10) BUSINESS DAYS AFTER RECEIPT SHALL BE DEEMED APPROVAL”), Landlord shall notify Tenant in writing whether Landlord approves or disapproves the Tenant’s Plans, and Landlord shall describe the reasons for any such disapproval. If Landlord fails to so notify Tenant within such ten (10) Business Day period, then Landlord shall be deemed to have approved the Tenant’s Plans. Tenant may submit to Landlord revised Tenant’s Plans for Landlord’s prior written approval, and within five (5) Business Days after receipt of the complete revised Tenant’s Plans, Landlord shall notify Tenant in writing whether Landlord approves or disapproves such revised Tenant’s Plans, and Landlord shall describe the reasons for any such disapproval, If Landlord fails to so notify Tenant within such five (5) Business Day period, then Landlord shall be deemed to have approved such revised Tenant’s Plans, This procedure shall be repeated until Tenant’s Plans are finally approved (or deemed approved) by Landlord. If Landlord shall have approved any progress prints pursuant to subsection 22.2(a), Landlord shall not disapprove any Tenant’s Plans on the basis of any matters in such plans that are substantially in conformity with those matters previously approved by Landlord in the progress prints, Tenant’s Plans shall comply with and conform to the plans and specifications of the Building and comply with all the rules, regulations and/or other requirements of any governmental department having jurisdiction over the construction of the Building. Tenant shall prepare Tenant’s Plans in accordance with pre-existing conditions and field measurements. Landlord’s review of Tenant’s Plans is solely to protect the interests of Landlord in the Building, and Landlord shall be neither the guarantor of, nor responsible for, the correctness or accuracy of Tenant’s Plans or the compliance of Tenant’s Plans with Applicable Laws. At the time of, and in conjunction with, Landlord’s approval of Tenant’s Plans pursuant to this subsection, Landlord shall give notice to Tenant as to which parts of the Tenant Improvements shall constitute Nonstandard Improvements and, therefore, must be removed by Tenant at the expiration or earlier termination of this Lease. (As to any of Tenant’s Plans deemed approved by Landlord, Landlord must provide such notice before the date such Tenant’s Plans are deemed so approved.) If Tenant does not provide Landlord with notice that Tenant disputes such determination of which parts of the Tenant Improvements constitute Nonstandard Improvements within ten (10) Business Days of Tenant’s receipt of Landlord’s notice, then Landlord’s determination shall be conclusive. If Tenant shall provide such notice and the parties are unable to agree as to which parts of the Tenant Improvements constitute Nonstandard Improvements, then the determination as to the Tenant Improvements in dispute shall be made by the Arbitrator.

 

 

(c)         Upon Landlord providing access on the Substantial Completion Date to Tenant to the entire Premises to commence Tenant Improvements (including access through Common Areas), Tenant shall, at its sole cost, risk and expense, cause to be constructed and completed Tenant Improvements, Tenant shall, only after having obtained Landlord’s written approval (or deemed approval) of the Tenant’s Plans as provided in Section 22.2(b), and at its sole cost and expense, be responsible for obtaining all governmental permits as shall be required for the completion of Tenant Improvements, or, if Landlord or Tenant shall deem the same reasonably advisable (or the applicable governmental authority shall so require), Landlord may procure such permits and Tenant shall pay for same. Landlord shall reasonably and timely cooperate with Tenant in connection with obtaining necessary permits for the Tenant Improvements and other Alterations, Tenant shall reimburse Landlord, within thirty (30) days after demand therefor (together with reasonable backup documentation), for all reasonable and actual out of pocket, third party costs and expenses reasonably incurred by Landlord in connection with Landlord’s cooperation in obtaining such permits and changes, Any entry by Tenant in or on the Premises shall be at Tenant’s sole risk and, upon request of Landlord, Tenant shall pay for insurance in amounts that satisfy the requirements of the Lease.

 

(d)         Tenant’s general contractor, construction manager and subcontractors shall be subject to Landlord’s prior written approval as provided in Article 9, the decision on which approval shall not be unreasonably conditioned or delayed, but may be withheld by Landlord in Landlord’s sole discretion, Landlord shall be provided the right to submit a proposal to perform the Tenant Improvements. Tenant shall not be required to use contractors designated by Landlord, except for work which affects the Base Building Systems or the Structural Elements.

 

(e)         In the event Tenant or Tenant’s contractor shall enter upon the Premises for the purpose of performing Tenant Improvements, in accordance with this Lease, Tenant shall, in accordance with Section 20.1, indemnify and save Landlord (and Landlord’s employees, contractors, agents and Mortgagees) free and harmless from and against any and all claims to the extent arising from or out of any entry thereon or the performance of said work and from and against any and all claims to the extent arising from or claimed to arise from any act or neglect of Tenant or Tenant’s Representatives or to the extent arising from any failure to act, or to the extent arising from any other reason whatsoever arising out of said entry or such work.

 

(f)          Tenant, at its expense, and with diligence and dispatch, shall procure the cancellation or discharge of all notices of violation arising from or otherwise connected with Tenant Improvements which shall be issued by any public authority having or asserting jurisdiction, Landlord does not consent to be liable for any improvements or alterations made to the Premises by Tenant, its employees, agents or contractors, Tenant shall, in accordance with Section 20.1, defend, indemnify, and harmless Landlord against any and all mechanics and other liens in connection with Tenant Improvements, including but not limited to the liens of any conditional sale of, or chattel mortgages upon, any materials, fixtures, or articles so installed in and constituting part of the Premises and against all costs, counsel fees, fines, expenses and liabilities reasonably incurred in connection with any such lien, conditional sale or chattel mortgage or any action or proceeding brought thereon, Landlord shall not be obligated to pay for any materials or labor ordered by Tenant.

 

 

(g)         Tenant, at its expense, shall procure the satisfaction or discharge, by bonding, payment, deposit, court order or otherwise, of all such mechanics and other liens within 60 days after notice to Tenant from Landlord of the filing of such lien against the Property, If Tenant shall fail to cause such lien to be discharged within the period aforesaid, then, in addition to any other right or remedy, Landlord may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings. Any amount so paid by Landlord and all reasonable, out-of- pocket costs and expenses incurred by Landlord, in connection therewith shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord within thirty (30) days following written demand.

 

(h)         Landlord shall not be entitled to a fee for supervision or overhead expenses in connection with the Tenant Improvements, Tenant shall be responsible for all reasonable third party costs, not to exceed $10,000.00 in the aggregate, incurred by Landlord for the performance of review of the Tenant Improvements by third party professionals.

 

Section 22.3        Tenant Improvement Allowance.

 

(a)         Landlord shall pay up to $1,195,950.00 (the “Tenant Improvement Allowance”) toward the Hard Costs (subject to the following provisions of this Section 22.3) incurred by Tenant in connection with construction of the Tenant Improvements, “Hard Costs” shall mean the costs of labor and materials incurred for the installation of fixtures, improvements and appurtenances attached to or built into the Premises in connection with Tenant Improvements, excluding any Tenant’s Property, Anything herein to the contrary notwithstanding, at Tenant’s request Landlord shall disburse to Tenant up to 20% of the Tenant Improvement Allowance for costs relating to Tenant’s design services incurred in the relocation to the Premises, including architectural and engineering fees, permit fees and other consultant’s fees (“Soft Costs”).

 

(b)         Within thirty (30) days after receipt of a request for disbursement from Tenant in accordance with this Section 22.3 (but not more frequently than monthly and not in excess of the amounts then payable (as certified by Tenant’s licensed architect), Landlord shall disburse from time to time a portion of the Tenant Improvement Allowance to Tenant for Hard Costs and for Soft Costs (as limited above) actually paid or incurred by Tenant to contractors, subcontractors, materialmen and suppliers with respect to the portion of Tenant Improvements theretofore completed or services performed or supplies furnished in connection therewith or for the permitted use thereof, and for which the disbursement is requested and which have not been the subject of a previous disbursement.

 

(c)         Landlord's obligation to make disbursements from the Tenant Improvement Allowance shall be subject to Landlord’s receipt of: a request for such disbursement from Tenant signed by an authorized officer; copies of invoices or other evidence reasonably satisfactory to Landlord of the Hard Costs and the Soft Costs actually paid or to be paid by Tenant; a certificate of Tenant’s independent licensed architect stating, in his opinion, that the portion of Tenant Improvements theretofore completed and for which the disbursement of Hard Costs is requested was performed in a good and workman manner and substantially in accordance with the Tenant’s Plans, as approved by Landlord (provided, Tenant’s submission to

 

 

Landlord of a properly prepared and executed Form G702/703 shall satisfy the requirements of such certificate); and no lien on account of work done for or materials furnished to Tenant or any of its contractors or subcontractors shall have been filed against any part of the Property and not have been paid or bonded and, in either event, discharged of record. In addition, at Landlord’s request, Tenant will provide to Landlord as part of the aforesaid documentation partial lien waivers from all subcontractors and materialmen involved in Tenant Improvements and any other work covering prior payments by Landlord hereunder. In the event that Landlord fails to pay the Tenant Improvement Allowance in accordance with this Section, and without limiting any other rights that may be available to Tenant at law or equity, Tenant may set off such unpaid amounts against the Rents and any other payment obligations of Tenant under this Lease first becoming due and payable until the unpaid balance of the Tenant Improvement Allowance, plus interest thereon at the Default Rate, is reduced to zero.

 

(d)         Tenant and Landlord shall share the tax depreciation from each component of the Tenant Improvements in the proportion that the amount of the cost of Tenant Improvements paid for by Tenant and Landlord, respectively, bears to the total cost of all Tenant Improvements.

 

Section 22.4        Delayed Completion.

 

(a)         Landlord shall diligently attempt to cause Landlord’s Work to be Substantially Completed on or before the Target Completion Date. Notwithstanding anything to the contrary, if, but only to the extent that, any Tenant’s Delay causes a delay in the Landlord’s Work, then the Target Completion Date and the Substantial Completion Date shall be deemed to be the date(s) when the Target Completion Date and the Substantial Completion Date, as the case may be, would have occurred but for such Tenant’s Delay. Any delay claimed by Landlord shall be substantiated in writing and accompanied by a statement as to the number of days of Tenant’s Delay, which notice of delay shall be delivered within five (5) Business Days after the extent of the Tenant’s Delay is reasonably ascertainable, If Landlord and Tenant dispute the existence of a Tenant’s Delay or the number of days resulting from a Tenant’s Delay, such dispute shall be resolved by the Arbitrator.

 

(b)         If Landlord fails to Substantially Complete Landlord’s Work (i) on or prior to the sixtieth (60^th) day after the Target Completion Date, then Tenant may (but shall not be obligated to) exercise Tenant’s self-help rights in accordance with the provisions of Section 19.2 to perform Landlord’s Work for Landlord’s account, or (ii) on or prior to the one hundred twentieth (120^th) day after the Target Completion Date, then Tenant may (but shall not be obligated to) terminate this Lease by notice to Landlord.

 

Section 22.5        Performance of Landlord’s Work. Landlord shall, through its construction manager or its Affiliate, proceed with construction of Landlord's Work in accordance with the Plans and Specifications. Landlord shall procure or cause its construction manager or Affiliate to procure and keep in effect throughout construction of Landlord’s Work, builder’s risk insurance in such amounts and with such carriers as Landlord deems necessary or desirable, Landlord’s Work shall comply with the requirements of all Applicable Laws and the REA as of the Substantial Completion Date.

 

 

Section 22.6        Labor Harmony. Tenant shall not be required to use union laborers for Tenant Improvements or any other work performed at any time during the Term; but until Landlord has completed Landlord’s Work, Tenant shall not use any contractors, workers, labor, material or equipment at the Premises who, or which, in Landlord’s reasonable, judgment, has disturbed or may disturb harmony with any trade engaged in performing any work, labor or service for Landlord, In the event Tenant’s contractors, workers, labor, material or equipment shall violate the provisions of this Section 22.6, then Landlord shall have the right to cause Tenant to cease the use thereof.

 

Section 22.7        Punch List Items. Landlord shall give Tenant five (5) Business Days prior notice of the date Landlord anticipates to be the Substantial Completion Date (the “Pre-Completion Notice”) and the Substantial Completion shall in no event have occurred unless Tenant has received such 5-Business Day prior notice. Within five (5) days following its receipt of the Pre-Completion Notice, Tenant shall inspect or cause to be inspected Landlord’s Work for material compliance with the Plans and Specifications, and Tenant and Landlord shall agree that Substantial Completion has occurred and upon the Punch List Items. If Tenant and Landlord shall fail to reach agreement either that Substantial Completion has occurred or on the Punch List Items within five (5) Business Days following the end of the five (5) day period after Tenant’s receipt of the Pre-Completion Notice, the disagreement shall be resolved by the Arbitrator. Promptly thereafter, Landlord shall undertake and diligently complete all Punch List Items within sixty (60) days, except for such Punch List Items that cannot with due diligence be completed within said period of sixty (60) days in which case Landlord shall undertake and diligently prosecute to completion such Punch List Items. After Tenant re-inspects the same, or causes the same to be re-inspected, Landlord shall continue to remedy any further defective or incomplete items until Landlord has completed all Punch List Items in accordance with the Plans and Specifications.

 

Section 22.8        Change Orders; Cost of Changes. Tenant may, without invalidating this Lease, order changes in the Landlord’s Work (“Changes”) in accordance with this Section 22.8. All Changes initiated for any portion of the Landlord’s Work shall be authorized by change orders signed by Landlord and Tenant (“Change Orders”), which shall be in the form annexed hereto as Exhibit E. If Tenant wishes to make a Change to the Landlord’s Work, then Tenant shall notify Landlord in writing of the requested Change. All Changes shall be subject to Landlord’s reasonable approval. Within five (5) Business Days after such request, or as soon thereafter as possible, Landlord shall either approve or disapprove the Change, and any rejection shall be accompanied by a statement in reasonable detail of the reasons therefor. If Landlord approves the Change, then Landlord shall issue a Change Order executed by Landlord, which shall specify Landlord’s good faith statement of the increased net costs of implementing the Change (a “Change Increase”) and the amount of Tenant Delay which Landlord in good faith anticipates shall result therefrom. Within five (5) Business Days after receipt of the Change Order executed by Landlord, Tenant shall either accept the Change Order by delivering an executed copy thereof to Landlord, or reject the Change Order, in which case the Change shall not be made, Within fifteen (15) days after Tenant executes the Change Order, Tenant shall deliver to Landlord the full payment of the Change Increase. If the Change Increase shall be a negative number (resulting from the actual savings in the cost of Landlord’s Work derived from Tenant’s Changes exceeding the actual increased costs, if any, arising from Tenant’s Changes), then Landlord shall remit Tenant such difference within thirty (30) days after completion of the

 

 

Change Order. If Tenant fails to deliver the executed Change Order to Landlord within such five (5) Business Day period, the Change shall not be made. If Tenant executes the Change Order. Landlord shall duly prosecute the Change in accordance with the requirements of the Change Order. Tenant shall also pay any reasonable out-of-pocket expenses of Landlord payable to third parties (including the construction manager or Landlord’s Affiliate) incurred in connection with any proposed Change requested by Tenant which is not implemented. Tenant understands that Landlord shall not be obligated to stop any portion of construction while a Change proposed by Tenant is under consideration, unless Tenant requests such work stoppage in writing. Any delay resulting from a work stoppage requested for a Change by Tenant or any delay actually caused by reason of a Change Order relating to a Change requested by Tenant shall be deemed a Tenant’s Delay. Landlord shall review and reasonably provide Landlord’s consent to Changes requested by Tenant including those that consist of (a) specialty construction features that are customarily found in Comparable Buildings that do not adversely affect areas outside of the Premises, (b) increases to the electric energy capacity provided to the Premises in excess of six (6) watts (demand load) per usable square foot of the Premises, or (c) structural reinforcements to increase floor loading capacities in certain areas identified by Tenant. Any dispute between Landlord and Tenant with respect to Changes or a Change Order hereunder (including whether a delay resulted) shall be resolved by the Arbitrator.

 

Section 22.9        Site Representatives. Tenant and Landlord shall each designate in writing one or more representatives to act on its behalf in dealings with the other party in matters relating to Landlord’s Work. Each of the representatives shall: (a) be qualified to give authorizations, render decisions and take such other action as shall be required at such meetings; and (b) be authorized to approve Changes. Each party shall be bound by any consents or approvals given by such designated representatives. Except as hereinafter provided, either party may, at any time, change its designated representatives by giving a minimum of three (3) Business Days’ notice of a change of designation. The designated representatives shall exert their good faith efforts to render decisions and take actions in a timely manner so as to avoid unreasonable delay in the other party’s work and actions with respect to Landlord’s Work. Tenant hereby designates Beth Genova (Granoff Architects) as its designated representative. Landlord hereby designates Carl R. Kuehner as its designated representative. Neither Landlord nor Tenant shall change or add any designated representatives without notice to the other.

 

Section 22.10        Certificate of Occupancy. Landlord represents that it has obtained a temporary certificate of occupancy for the core and shell of the Building. Tenant shall diligently obtain, and shall deliver to Landlord a permanent certificate of occupancy for the Premises prior to the expiration of the temporary certificate of occupancy, as the same may be extended; it being agreed that Landlord shall renew the temporary certificate of occupancy as it relates to Landlord’s Work prior to the expiration thereof so that it shall remain in full force and effect at all times prior to Landlord obtaining the permanent certificate of occupancy for the Building.

 

Section 22.11        Field Changes. Landlord shall have the right to make non-material changes to Landlord’s Work based upon field conditions, provided that Landlord shall give Tenant prompt notice thereof.

 

Section 22.12        Warranty. If, on or before the second anniversary of the Substantial Completion Date (or the completion date of a Punch List Item, as applicable), any of Landlord’s

 

 

Work is found not to be in accordance with the Plans and Specifications or is otherwise defective, and Tenant gives notice of same to Landlord (multiple notices from time to time within the period specified above being permitted), then Landlord shall correct the defective work promptly after receipt of the specific notice, anything in Article 10 herein to the contrary notwithstanding. Time shall be of essence in giving notice to Landlord of any defect in Landlord’s Work. Anything herein to the contrary notwithstanding, Landlord shall not be responsible for defects in Landlord’s Work to the extent caused by the negligence or willful act of Tenant or any of the Tenant Parties.

 

Section 22.13        No Changes by Landlord to Landlord’s Work. Notwithstanding anything to the contrary contained herein, but subject to Section 22.11, Landlord shall not materially amend, modify or otherwise change Landlord’s Work without Tenant’s written consent; it being acknowledged that Tenant is relying on Landlord’s performance of Landlord’s Work as a material inducement to Tenant entering into this Lease.

 

ARTICLE 23

 

Expansion Rights

 

Section 23.1        Right of First Offer.

 

(a)         Subject to the prior rights of (x) McKinsey & Company, Inc, United States and (y) X.L. Global Services, Inc., throughout the Term of this Lease, if any office space in the Building (i) has not been fully leased, or (ii) all of the rentable contiguous office space in the Building (i.e. the fourth and sixth floors of the Building) shall have been leased, and if Landlord believes in good faith that any portion of such space (“First Offer Space”) is or will become available, Landlord shall offer to lease the First Offer Space to Tenant, as set forth in a notice to Tenant which identifies the First Offer Space (“First Offer Notice”), and the terms and conditions upon which such space is available.

 

(b)         Tenant shall have a period of ten (10) Business Days after receipt of the First Offer Notice to give to Landlord notice that Tenant (i) accepts Landlord’s offer, or (ii) rejects Landlord’s offer, Time shall be of the essence with respect to Tenant’s notice, and Tenant’s failure to give any such notice within the ten (10) Business Day period shall be deemed a rejection of Landlord’s offer, any principles of law or equity to the contrary notwithstanding. A First Offer Notice may only be accepted in whole, not in part. Within thirty (30) days after Tenant’s acceptance of Landlord’s offer, the parties shall execute an amendment to this Lease for the First Offer Space, or a separate lease, and in either case, in mutually acceptable form and each party shall pay their respective costs.

 

(c)         If Tenants rejects, or is deemed to have rejected, Landlord’s offer, Landlord shall be free to lease such First Offer Space to any party upon substantially the same terms and conditions as set forth in the First Offer Notice. If Landlord shall fail to lease the First Offer Space to any party within six (6) months after the First Offer Notice and on substantially such terms, Landlord shall provide Tenant with a subsequent First Offer Notice prior to leasing the First Offer Space to any other party.

 

 

(d)         Anything herein to the contrary notwithstanding, Landlord shall not be obligated to give a First Offer Notice, Tenant shall have no right to exercise its option to lease the First Offer Space, and any attempted exercise shall be void and of no effect, if: (i) the named Tenant has assigned this Lease other than to an Affiliate or Successor or has at any time subleased more than 50% of the Premises to any party in a transaction where Landlord’s consent was required under Article 12 herein; or (ii) Tenant shall be in default beyond all notice and cure periods hereunder and such default shall not have been cured at the time that Landlord would otherwise be obligated to give the First Offer Notice or, if such default beyond all notice and cure periods occurs after Tenant’s attempted exercise of its option, or at the time of the proposed commencement of the lease of the First Offer Space. Landlord shall be obligated to give a First Offer Notice, but Tenant shall have no right to exercise its option to lease the First Offer Space, and any attempted exercise shall be void and of no effect, if: (x) the First Offer Notice is provided later than the last day of the eighth (8^th) Lease Year of the Primary Term and Tenant does not, simultaneously with its acceptance of Landlord’s offer, bind itself to extend the Term to include the first Renewal Term; or (y) the First Offer Notice is provided later than the last day of the third (3^rd) Lease Year of the first Renewal Term and Tenant does not, simultaneously with its acceptance of Landlord’s offer, bind itself to extend the Term to include the second Renewal Term; or (z) the First Offer Notice is provided during the second Renewal Term and Tenant does not, simultaneously with its acceptance of Landlord’s offer, bind itself to extend the Term to include a minimum of ten (10) years from the date Landlord’s offer is accepted with respect to the First Offer Space.

 

(e)         If Tenant rejects, or is deemed to have rejected, Landlord’s offer under the First Offer Notice, Tenant shall, within five (5) days after demand therefor by Landlord, give notice to Landlord that Tenant has declined to exercise such right.

 

(f)          This Section shall not preclude Landlord from extending a lease for an existing tenant or entering into a new lease with an existing tenant for the same space.

 

(g)         If Tenant accepts Landlord’s offer under the First Offer Notice, the Lease shall remain unmodified with the exception that (i) if the First Offer Space is equal to one full floor (or more) in the Building the Lease Expiration Date shall be amended to that date that is the later of (a) the Lease Expiration Date as initially determined, and (b) the last day of the seventh (7^th) Lease Year as calculated from the rent commencement date of the First Offer Space (and if this clause (b) is applicable, the Lease Expiration Date for the existing Premises shall be deemed extended to the same dates, with the Fixed Rent being payable in accordance with Section 4.1 and increased thereafter at the rate of 2.0% per year); (ii) the provisions of Section 3.3 shall be waived by Tenant and of no further force and effect; and (iii) the Lease shall be amended to provide for cross default in the, event Tenant shall default under either the Lease or the lease of the First Offer Space.

 

ARTICLE 24

 

Environmental Obligations.

 

Section 24.1        Landlord’s Environmental Indemnification.

 

 

(a)         On the Substantial Completion Date, the Property shall be free of Hazardous Materials, except Hazardous Materials that are: (i) present at the Property in compliance with Environmental Laws including, without limitation, Hazardous Materials ordinarily used in a first-class office building; (ii) the subject of any ongoing remediation and/or monitoring program as approved by the Connecticut Department of Environmental Protection or a “licensed environmental professional” within the meaning of Connecticut General Statutes §22a-134 ef seq., or (iii) present at the Property as a result of Tenant’s actions but in no event shall any Hazardous Materials exist in the Premises as of the Commencement Date other than in minor quantities typical for office needs. Landlord shall indemnify Tenant and the Tenant Parties and hold Tenant and the Tenant Parties harmless with respect to all liabilities, costs and expenses (including reasonable attorneys’ fees) arising from (A) the presence of Hazardous Materials on the Property or the Premises other than as permitted hereunder, and (B) any violation of Environmental Laws with respect to the Property at any time during the Tern, provided that the condition described in clause (A) or (B) was (i) not caused by Tenant or any Tenant Party or by any other tenant at the Property, or (ii) caused by Landlord’s failure to comply with its obligation to cause the Property to be free of Hazardous Materials on the Substantial Completion Date as described in the first sentence of this subsection 24.1(a), Landlord shall remediate any condition for which Landlord is providing indemnification under this Section in accordance with all applicable requirements of Environmental Laws. Tenant shall not be liable for the presence of any Hazardous Materials on the Property or the Premises or the violation of any Environmental Law with regard to the Property or the Premises that is caused by Landlord or any of Landlord’s Representatives or that existed at the Premises as of the Substantial Completion Date, except with respect to any condition caused by, but only to the extent caused by, the actions or inactions of Tenant or the Tenant Parties, including actions or inactions that exacerbate any environmental condition present on the Premises prior to the date of execution of this Lease, In addition to the foregoing indemnification, Landlord hereby agrees to indemnify, protect, defend, save and hold Tenant and the Tenant Parties harmless from and against all debts, duties, obligations, liabilities, suits, claims, demands, causes of action, fees, damages, losses, costs and expenses (including, without limitation, reasonable legal expenses and attorneys’ fees with respect to the same) (“Losses”), in any way relating to, connected with or arising out of any environmental condition relating to the time period prior to the Substantial Completion Date, including, without limitation, any debts, duties, obligations, liabilities, suits, claims, demands, causes of action, damages, losses, costs and expenses in any way relating to, connected with or arising out of the foregoing. This agreement to indemnify and hold harmless shall be in addition to any other obligations or liabilities Landlord may have to Tenant at common law, under all Applicable Laws or otherwise, and shall survive, with respect to liability that accrues during the Term of this Lease, without limit of time.

 

(b)         Landlord shall notify Tenant, promptly upon Landlord’s learning thereof, of any:

 

(i)         notice of violation to Landlord or awareness by Landlord of a condition which might reasonably result in a notice of violation of any applicable Environmental Law with respect to the Property; and

 

 

(ii)         release of Hazardous Materials on the Property or presence of Hazardous Materials on the Property in violation of Environmental Laws, except such releases or presence caused by Tenant or any of the Tenant Parties.

 

(c)         Notwithstanding anything to the contrary contained in this Lease, in the event any Hazardous Materials are discovered at the Property except as permitted by subsection 24.1(a) (other than Hazardous Materials brought onto the Property by Tenant or the Tenant Parties and violations of Environmental Laws arising from Tenant’s performance of the Tenant Improvements) or any violation of Environmental Laws exists with respect to the Property, prior to the date Tenant completes the Tenant Improvements and takes initial occupancy of the Premises for the conduct of its business, then (i) Landlord, at Landlord’s cost and expense, shall remove such Hazardous Materials and/or cure such violation in compliance with Applicable Laws (any such work being “Landlord Cure Work”) so that Tenant shall be permitted to perform the Tenant Improvements (including, without limitation, obtain any building permits or other governmental approvals or signoffs with respect thereto) and to occupy the Premises for the use permitted under this Lease and (ii) if Tenant is actually delayed in completing the Tenant Improvements and/or taking occupancy of the Premises in the condition required on the Occupancy Date due to (x) the existence of such Hazardous Materials to the extent not permitted by subsection 24.1(a) or violation(s) of Environmental Laws, or (y) the performance of the Landlord Cure Work the following shall apply (each day that Tenant is prevented from using or occupying the Premises due to the provisions herein is referred to herein as the “Environmental Delay Period”): (a) if the Environmental Delay Period shall consist of sixty (60) or fewer days, then Tenant shall be entitled to a Rent abatement equal to one (1) day for each day of the Environmental Delay Period; and (b) if the Environmental Delay Period shall consist of more than sixty (60) days, then (in addition to the abatement described in clause (a) of this Section for the initial sixty (60) day period) Tenant shall be entitled to a Rent abatement equal to one and one half (1.5) days for each day of the Environmental Delay Period after the sixtieth (60^th) day.

 

Section 24.2        Tenant’s Environmental Indemnification.

 

(a)         Tenant shall, with respect to any environmental issue first occurring on and after the Substantial Completion Date to the extent caused by Tenant or any Tenant Party (or in the case of any violation of Environmental Laws to the extent caused by the acts or omissions of Tenant or the Tenant Parties, at any time), (i) comply, and cause the Premises to comply, with all Environmental Laws applicable to the Premises (including the making of all submissions to governmental authorities required by Environmental Laws and the carrying out of any remediation program specified by such authority); (ii) prohibit the use of the Premises for the generation, manufacture, refinement, production, or processing of any Hazardous Material or for the storage, handling, transfer or transportation of any Hazardous Material (other than in connection with the operation, business and maintenances of the Premises and in commercially reasonable quantities as a consumer thereof and in compliance with Environmental Laws); (iii) not install or permit the installation on the Premises of any surface impoundments, underground storage tanks, PCB-containing transformers or asbestos-containing materials; and (iv) cause any Tenant Improvements and Alterations to be done in a way so as to not expose in an unsafe manner the persons working in or visiting the Premises to Hazardous Materials, and in connection with any such Tenant Improvements and Alterations shall remove any Hazardous Materials present upon the Premises

 

 

which were introduced by Tenant or the Tenant Parties and which are not in compliance with Environmental Laws or which present a danger to persons working in or visiting the Premises.

 

(b)         Tenant shall protect, defend, indemnify and hold harmless Landlord, its direct and indirect members, partners, shareholders, beneficiaries, managers, Mortgagees, directors, officers, Landlord’s Representatives, and any successors and assigns from and against any and all liability, including all foreseeable and all unforeseeable damages including but not limited to attorneys’ and consultants’ fees, fines, penalties and civil or criminal damages, and including loss of value, directly or indirectly arising out of the use, generation, storage, treatment, release, threatened release, discharge, spill, presence or disposal of Hazardous Materials from, on, at, to or under the Premises during the Term and first occurring on and after the Commencement Date, including without limitation, the cost of any required or necessary repair, response action, remediation, investigation, cleanup or detoxification and the preparation of any closure or other required plans, to the extent caused by Tenant or any Tenant Party. This agreement to indemnify and hold harmless shall be in addition to any other obligations or liabilities Tenant may have to Landlord at common law, under all Applicable Laws or otherwise, and shall survive, with respect to liability that accrues during the Term of this Lease, without limit of time. The representations, warranties and covenants made and the indemnities stated in this Lease are not personal to Landlord, and the benefits under this Lease shall be automatically assigned to subsequent parties in interest to the chain of title to the Property and Mortgagees, which subsequent parties in interest may proceed directly against Tenant to recover pursuant to this Lease.

 

(c)         Landlord shall have the right to cause to be performed by site reviewers (the “Site Reviewers”) environmental site investigations and assessments on the Premises not more than once every twelve (12) months, unless Landlord has reasonable cause to believe there are Hazardous Materials present therein in violation of Applicable Laws (each, a “Site Assessment”) for the purpose of determining whether there exists on the Premises any environmental condition which may result in any liability, cost or expense to Landlord or any other owner or occupier of the Premises. Each such Site Assessment may include both above and below ground testing for environmental damage or the presence of Hazardous Materials on the Premises and such other tests on the Premises as may be necessary to conduct the Site Assessments in the reasonable opinion of the Site Reviewers. Tenant shall supply to the Site Reviewers such historical and operational information regarding the use of Hazardous Materials in the Premises as may be reasonably requested by the Site Reviewers to facilitate the Site Assessments (to the extent in Tenant’s possession or control) and shall make reasonably available for meetings with the Site Reviewers appropriate personnel having knowledge of such matters. Provided that such Site Assessment confirms the existence of a material violation of Environmental Laws with respect to the Premises for which Tenant is responsible within thirty (30) days after demand by Landlord together with reasonable backup documentation therefor; in all other events such costs shall be payable by Landlord. Landlord, promptly after the completion thereof and written request by Tenant and payment by Tenant to the extent required as aforesaid, shall deliver to Tenant copies of such Site Assessments.

 

(d)         Tenant shall notify Landlord, promptly upon Tenant’s learning thereof, of any:

 

 

(i)         notice or claim to the effect that Tenant or any other Person is or may be liable to any Person as a result of the release or threatened release of any Hazardous Material into the environment from the Premises;

 

(ii)         notice that Tenant or any other Person is subject to investigation by any governmental authority evaluating whether any remedial action is needed to respond to the release or threatened release of any Hazardous Material into the environment from the Premises;

 

(iii)         notice that the Premises are subject to an environmental lien;

 

(iv)         notice of violation to Tenant or awareness by Tenant of a condition which might reasonably result in a notice of violation of any applicable Environmental Law that could have a material adverse effect upon the Property or the value of the Property; or

 

(v)         release of Hazardous Materials on the Property or presence of Hazardous Materials on the Property in violation of Environmental Laws.

 

Section 24.3        Environmental Condition of the Property.

 

(a)         Landlord’s Compliance with the Connecticut Transfer Act. Tenant acknowledges that it is aware of the presence of certain Hazardous Materials in soil and groundwater at the Property. Landlord, pursuant to a Form III filing filed with the Connecticut Department of Environmental Protection (“CTDEP”) is responsible for investigating, remediating and monitoring such Hazardous Materials in compliance with Connecticut’s Remediation Standard Regulations, Conn, Adm, Regs, 22a-133k-l et seq. (“RSRs”). The documents identified in Exhibit S collectively constitute the Landlord’s Remedial Action Plan (“RAP”) for the Property, and Tenant hereby consents to the Landlord’s performance of all actions set forth in the RAP and Tenant shall not undertake any actions that adversely affect Landlord’s ability to implement the RAP but Landlord represents that the construction of Landlord’s Work and Tenant’s Initial Improvements and use of the Premises, including for the purposes intended by Tenant as permitted in this Lease, shall not affect Landlord’s ability to implement the RAP. Tenant further consents to all other actions that Landlord may determine are required to comply with the RSRs, provided that such actions do not interfere with Tenant’s use, occupancy and enjoyment of the Premises other than to a de minimis extent.

 

(b)         Tenant’s Compliance with Environmental Land Use Restrictions and Obligation not to Damage or Destroy Site Remediation Equipment.

 

(i)         Pursuant to Landlord’s obligation to comply with the RSRs as set forth in subsection 24.3(a), Landlord has installed certain equipment and monitoring wells on the Property (“Remediation Equipment”). Tenant shall not damage or destroy the Remediation Equipment, and to the extent that Tenant does damage or destroy such Remediation Equipment, Tenant shall promptly upon receipt of an invoice from Landlord, pay to Landlord, all actual, third-party costs, fees and expenses incurred by Landlord to repair or replace such Remediation Equipment.

 

(ii)         Pursuant to the terms of the RAP, and as otherwise may be required to comply with the RSRs, Landlord may record on the Stamford Land Records certain

 

 

environmental land use restrictions (“ELURs”) on the Property as permitted by the RSRs, provided, however, that no ELUR may interfere with Tenant’s use, occupancy and enjoyment of the Premises other than to a de minimis extent. The RAP currently contemplates that an ELUR will be filed which restricts the ability to conduct activities that would damage an engineered control on the Property, Each ELUR shall be considered a Permitted Encumbrance and Tenant agrees to comply with all of the terms and conditions of the ELUR from and after the date that it is recorded on the Stamford Land Records and a copy thereof is provided to Tenant. In addition to the foregoing, Tenant covenants and agrees, on behalf of itself and its successors and assigns, that it will, in connection with the recording of an ELUR, agree to execute, at its expense, and deliver promptly any agreement that Landlord may provide to Tenant on term otherwise reasonably acceptable to Tenant in order to subordinate its interests in this Lease to the terms and conditions of the ELUR. Furthermore, Tenant shall require that any subtenant, assignee or successor agree in writing to be bound by the terms of this Article 24 in the same manner, and to the same extent, as Tenant.

 

ARTICLE 25

 

Access; Change in Facilities

 

Section 25.1        Changes in Facilities. Landlord reserves the right, at any time, without incurring any liability to Tenant therefor, but subject to the provisions of Section 14.1, to make such immaterial changes in or to the Building and the fixtures and equipment of the Building, a well as in the entrances, passageways, halls, doors, doorways, corridors, elevators, escalators stairs, toilets and other Common Areas as it may deem reasonably necessary or desirable provided, that any such change does not (i) unreasonably or for an unreasonably long period interfere with Tenant’s access to the Premises or the use of the Premises by Tenant, (ii) reduce Tenant’s rights or increase its obligations, (iii) diminish the Building and Property’s status and appearance as a first-class office building, (iv) change the layout, configuration or usefulness of the Common Areas (except to a de minimis extent), and (v) diminish the capabilities of the Base Building Systems.

 

Section 25.2        Installation. Tenant shall permit Landlord, to install, use and maintain pipes, ducts and conduits within or through the demising walls of the Premises, or through the walls, columns and ceilings therein; provided, that the installation work shall be performed at such times and by such methods as will not reduce the usable office space in the Premises unreasonably interfere with Tenant’s use and occupancy of the Premises or adversely change the appearance thereof; and provided further, that all such installations shall be made behind the finished walls, ceilings or floors in the Premises and shall be routed around any sensitive areas as may be reasonably designated by Tenant (for example, but without limitation, to avoid placing water pipes above sensitive electronic equipment).

 

Section 25.3        Access. Landlord or Landlord’s agents shall have the right to enter the Premises during Business Hours, upon reasonable prior notice to Tenant to exhibit the Premises to a prospective tenant or others (a) during the last twelve (12) months of the Term; and (b) at any time during the Term if an Event of Default has occurred and is continuing. Landlord’s access to the Premises shall at all times be in the company of a Tenant representative which Tenant shall make reasonably available.

 

 

Section 25.4        Name; Management. Landlord shall have the right to name the Building and to change such name from time to time. It is the intent of the named Landlord that its Affiliate, BLT Management, LLC, shall manage the Building, subject to change by Landlord from time to time, provided that at all times the Building shall be managed in a first-class manner consistent with the standard for Comparable Buildings.

 

Section 25.5        Constructive Eviction. Except as otherwise expressly set forth in this Lease, the proper exercise of any right reserved to Landlord in this Article shall not constitute an actual or constructive eviction, in whole or in part, or entitle Tenant to any abatement or diminution of rent, or relieve Tenant from any of its obligations under this Lease or impose any liability upon Landlord or Landlord’s agents, or upon the holder of a Mortgage.

 

ARTICLE 26

 

Inability to Perform

 

Section 26.1        Unavoidable Delay. Except where otherwise expressly provided herein, this Lease and the obligation of Landlord and Tenant to perform all of the covenants and agreements hereunder on the part of either patty to be performed (including, without limitation, Tenant’s obligation to pay Rent hereunder) shall in no way be affected, impaired or excused because Landlord or Tenant, as the case may be, due to Unavoidable Delay, is: (a) unable to fulfill any of its obligations under this Lease expressly or impliedly to be performed by such party; or (b) unable to supply or delayed in supplying any service expressly or impliedly to be supplied; or (c) unable to make or delay in making any repairs, replacements, additions, alterations or decorations; or (d) unable to supply or delayed in supplying any equipment or fixtures. Landlord and Tenant shall in each instance exercise reasonable diligence to effect performance when and as soon as possible; provided, however, that neither party shall be under any obligation to pay overtime labor rates. Notwithstanding the foregoing, (i) lack of funds shall not be deemed a cause beyond either party’s reasonable control; and (ii) the provisions of this Section shall not excuse Tenant from its obligation to pay Rent except as expressly provided in this Lease.

 

ARTICLE 27

 

Waivers

 

Section 27.1        Counterclaims. In the event Landlord commences any summary proceeding or other action for possession of the Premises, Tenant shall not interpose any counterclaim in any such proceeding (unless Tenant would waive such counterclaim by failing to interpose the same in such proceeding).

 

Section 27.2        Trial by Jury. To the extent permitted by Applicable Laws, Landlord and Tenant hereby waive trial by jury in any action, proceeding or counterclaim brought by either against the other on any matter arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, or Tenant’s use or occupancy of the Premises, any claim of injury or damage, or any emergency or other statutory remedy with respect thereto.

 

 

Section 27.3        No Waiver. The failure of either party to insist in any one or more instances upon the strict performance of any one or more of the agreements, terms, covenants, conditions or obligations of this Lease, or to exercise any right, remedy or election herein contained, shall not be construed as a waiver or relinquishment for the future of the performance of such one or more obligations of this Lease or of the right to exercise such election, but the same shall continue and remain in full force and effect with respect to any subsequent breach, act or omission whether of a similar nature or otherwise.

 

Section 27.4        Specific Examples. The following specific provisions of this Section shall not be deemed to limit the generality of the foregoing provisions of this Article:

 

(a)         No agreement to accept a surrender of all or any part of the Premises shall be valid unless in writing and signed by Landlord, No delivery of keys shall operate as a termination of this Lease or a surrender of the Premises.

 

(b)         The receipt or acceptance by Landlord of Rent with knowledge of breach by Tenant of any term, covenant or condition of this Lease shall not be deemed a waiver of such breach.

 

(c)         No payment by Tenant or receipt by Landlord of a lesser amount than the correct Rent shall be deemed to be other than a payment on account, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed to effect or evidence an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance or pursue any other remedy in this Lease or at law provided.

 

Section 27.5        Survival. The provisions of this Article shall survive the expiration or any sooner termination of this Lease.

 

ARTICLE 28

 

Quiet Enjoyment

 

Section 28.1        Covenant. So long as this Lease shall be in full force and effect, Tenant shall and may peaceably and quietly have, hold, occupy and enjoy the Premises during the Term without hindrance or molestation by or from anyone claiming by, through or under Landlord, subject to the other terms of this Lease.

 

ARTICLE 29

 

Rules and Regulations

 

Section 29.1        Compliance. Tenant and the Tenant Parties shall observe and comply with, and shall not permit violation of, the Rules and Regulations annexed hereto as Exhibit H, and of the REA, and such reasonable changes thereto (whether by modification, elimination or addition) and such other reasonable rules and regulations applicable to the Park as Landlord hereafter may make and communicate by thirty (30) days’ prior notice to Tenant (collectively.

 

 

“Rules and Regulations”). No change in the Rules and Regulations may adversely affect Tenant’s rights and obligations under this Lease except to a de minimis extent.

 

Section 29.2        Enforcement. The manner of enforcement or the failure of Landlord to enforce the REA or any of the Rules and Regulations against Tenant and/or any other tenant or occupant in the Building or any other entity subject to the REA or the Rules and Regulations shall not be deemed a waiver of the REA or of any such Rules and Regulations, and Landlord shall not be liable to Tenant for violation of the same by any other such tenant, occupant or entity and their respective employees, agents, visitors or licensees, except that Landlord shall not enforce the REA or any Rule or Regulation against Tenant which Landlord shall not then be enforcing (or attempting in good faith to enforce) against all other such tenants in the Building and entities subject to the REA or the Rules and Regulations and in all events Landlord shall enforce the same on a non-discriminatory basis.

 

ARTICLE 30

 

Shoring; Nature of Accidents

 

Section 30.1        Access to the Premises. If an excavation or other substructure shall be undertaken or authorized upon land adjacent to the Building or in subsurface space, Tenant, without liability on the part of Landlord therefor (except if due to the negligence, act or omission (where there is a duty to act) of Landlord or Landlord’s Representatives), shall afford to the person causing or authorized to cause such excavation or other substructure work license to enter upon the Premises for the purpose of doing such work as such person shall deem necessary to protect or preserve any of the walls or structures of the Building or surrounding land from injury or damage and to support the same by proper foundations, pinning and/or underpinning, and, except in case of emergency, Landlord shall use reasonable efforts to have such entry accomplished during reasonable hours and within a reasonable time in the presence of a representative of Tenant, who shall be designated by Tenant promptly upon Landlord’s request. The said license to enter shall not constitute an actual or constructive eviction, in whole or in part, or, except as otherwise expressly set forth in this Lease, entitle Tenant to any abatement or diminution of rent, or relieve Tenant from any of its obligations under this Lease, or impose any liability upon Landlord or Landlord’s agents, Landlord shall exercise its rights under this Section in a manner that will not unreasonably interfere with Tenant’s use of the Premises or Tenant’s operation in the Premises.

 

Section 30.2        Notice. Tenant shall give prompt notice to Landlord of; (a) any material accident in or about the Premises of which Tenant has notice; (b) any fire in the Premises of which Tenant has notice; (c) any and all damages to or defects in the Premises of which Tenant has notice including the fixtures, equipment and appurtenances thereof, for the repair of which Landlord might be responsible or which constitutes Landlord’s property; and (d) all damage to or defects in any parts or appurtenances of the Base Building Systems located in or passing through the Premises of which Tenant has notice.

 

Section 30.3        Window Cleaning. Tenant will not require, permit, suffer or allow the cleaning of any window in the Premises from the outside without Landlord’s prior written consent and unless the equipment and safety devices required by law, ordinance, rules and

 

 

regulations are provided and used. Tenant shall indemnify Landlord and Landlord’s Representative for all losses, damages or fines suffered by them as a result of the Tenant requiring, permitting, suffering or allowing any window in the Premises to be cleaned from the outside by Tenant’s contractor or in violation of the requirements of the aforesaid laws, ordinances, regulations and rules.

 

ARTICLE 31

 

Brokerage

 

Section 31.1        Representation; Payment. Landlord and Tenant each represent to the other that in the negotiation of this Lease it has not dealt with any real estate broker other than Cushman and Wakefield of Connecticut, Inc. as procuring broker and Prime Real Estate, LLC as listing broker (“Brokers”). Each party shall indemnify the other and hold it harmless from any and all losses, damages and expenses arising out of any inaccuracy or alleged inaccuracy of the above representation, including court costs and reasonable attorneys’ fees, Landlord shall pay Brokers pursuant to a separate commission agreement and hereby agrees to indemnify and hold harmless Tenant for any claims for commissions or other sums, and any losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising from claims made by Brokers. Landlord shall have no liability for brokerage commissions arising out of a sublease or assignment by Tenant, and Tenant shall indemnify Landlord and hold it harmless from any and all liability for brokerage commissions arising out of any such sublease or assignment.

 

ARTICLE 32

 

Notices

 

Section 32.1        Notices. Notices, statements, demands, or other communications required or permitted to be given, rendered or made by either party to the other pursuant to this Lease or pursuant to any Applicable Law, shall be in writing (whether or not so stated elsewhere in this Lease) and shall be deemed to have been properly given, rendered or made, when received by certified mail with return receipt or overnight courier delivery with receipt of delivery, or delivery refused, addressed to the other parties, as follows:

 

If to Landlord:

Two Harbor Point Square, LLC

100 Washington Boulevard, Suite 200

Stamford, CT 06902

Attn: Paul J. Kuehner

 

and to:

Two Harbor Point Square, LLC

100 Washington Boulevard, Suite 200

Stamford, CT 06902

Attn: David Fite Waters, Esq.

 

 

If to Tenant prior to the Occupancy Date:

Structured Portfolio Management, L.L.C.

2187 Atlantic Street

Stamford, CT 06902

Attn: Ward McGraw, Chief Financial Officer

 

with a copy to:

Diserio Martin O’Connor & Castiglioni, LLP

One Atlantic Street

Stamford, CT 06901

Attention: William A, Durkin, Esq.

 

Upon the Occupancy Date, Tenant’s address for notices shall be at the Premises, to the attention of Ward McGraw, Chief Financial Officer, with a copy to (x) Tenant at the second address listed above, and (y) Tenant’s outside counsel as listed above.

 

Any party listed in this Section may, by notices as aforesaid, designate a different address for addresses for notices, statements, demands or other communications intended for it.

 

ARTICLE 33

 

Estoppel Certificate; Financial Data; Notice of Lease

 

Section 33.1        Estoppel.

 

(a)         At any time and from time to time, Tenant shall, within ten (10) Business Days after notice by Landlord or a Mortgagee, execute, and deliver to Landlord and/or such Mortgagee a certificate certifying: (i) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full force and effect as modified, and stating the date and nature of each modification); (ii) the Rent Commencement Date, the Commencement Date, the Lease Expiration Date and the date, if any, to which all Rent and other sums payable hereunder have been paid; (iii) the amount of Fixed Rent currently payable monthly, (iv) that no notice has been received by Tenant of any default by Tenant hereunder which has not been cured, except as to defaults specified in such certificate; (v) to Tenant’s knowledge that Landlord is not in default under this Lease, except as to defaults specified in such certificate; and (vi) such other matters as may be reasonably requested by Landlord or any current or prospective purchaser or mortgage lender. Any such certificate may be relied upon by Landlord and any current or prospective purchaser or mortgage lender of the Premises or any part thereof.

 

(b)         At any time and from time to time, Landlord shall, within ten (10) Business Days after notice by Tenant, execute, and deliver to Tenant and/or such third parties as Tenant may specify in such notice, a certificate certifying: (i) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full force and effect as modified, and stating the date and nature of each modification); (ii) the Rent

 

 

Commencement Date, the Commencement Date, the Lease Expiration Date and the date, if any, to which all Rent and other sums payable hereunder have been paid; (iii) the amount of Fixed Rent currently payable monthly, (iv) that no notice has been received by Landlord of any default by Landlord hereunder which has not been cured, except as to defaults specified in such certificate; (v) to Landlord’s knowledge that Tenant is not in default under this Lease, except as to defaults specified in such certificate; and (vi) such other matters as may be reasonably requested by Tenant, any prospective assignee of this Lease, or other party then dealing with Tenant. Any such certificate may be relied upon by Tenant, any prospective assignee of this Lease, or other party then dealing with Tenant.

 

Section 33.2        Financial Data. If Tenant is not a publicly traded entity, Tenant shall deliver to Landlord and any Mortgagee, within thirty (30) days after written request therefor from Landlord, provided that (i) such request from Landlord is based upon or related to a financial event of Landlord wherein it is necessary or desirable for Landlord to obtain such financial information in conjunction with a financing or sale of the Property, and (ii) Landlord executes and delivers to Tenant a confidentiality agreement reasonably satisfactory to Tenant limiting disclosure of such information to such Persons who have a need to know such information in such form as is reasonably acceptable to Tenant, the following information: (a) an audited balance sheet of Tenant and its consolidated subsidiaries, if any, for the immediately preceding fiscal year, (b) an audited statement of profits and losses of Tenant and its consolidated subsidiaries for such year, and (c) an audited statement of cash flows of Tenant and its consolidated subsidiaries, if any, setting forth in each case, in comparative form, the corresponding figures for the immediately preceding fiscal year in reasonable detail and scope and certified by independent certified public accountants of recognized standing selected by Tenant.

 

Section 33.3        Notice of Lease. At Tenant’s request, Landlord shall execute, acknowledge and exchange with Tenant a statutory Notice of Lease with respect to this Lease sufficient for recording in the form attached as Exhibit N and which Tenant may record in the Stamford Land Records. Such Notice shall not in any circumstance be deemed to change or otherwise affect any of the terms, covenants and conditions of this Lease.

 

ARTICLE 34

 

Security Deposit

 

Section 34.1        Security Deposit.

 

(a)         Tenant has deposited with Landlord the amount of $500,000.00 (the (“Security Deposit”), the receipt whereof (if by check, subject to collection), is hereby acknowledged. The Security Deposit shall be held as security for the full and faithful performance by Tenant of each and every term, covenant and condition of this Lease on the part of Tenant to be observed and performed. The Security Deposit shall not be mortgaged, assigned, transferred or encumbered by Tenant without the prior consent of Landlord in each instance, and any such act on the part of Tenant shall be without force and effect and shall not be binding upon Landlord.

 

 

(b)         If any Rent or any other charges or sums payable by Tenant to Landlord shall be overdue and unpaid beyond any applicable notice and grace period, then Landlord may, at its option, and without prejudice to any other remedy that Landlord may have on account thereof, appropriate and apply the Security Deposit or so much thereof (i) as may be reasonably necessary to compensate Landlord toward the payment of Rent or other sums due from Tenant, or (ii) towards any loss, damage or expense sustained by Landlord resulting from such default on the part of Tenant which Landlord is entitled to receive under this Lease, or (iii) towards any third-party expenses which are the responsibility of Tenant under this Lease. In such event, Tenant shall, within twenty (20) days after Landlord gives to Tenant notice thereof together with reasonable backup documentation thereof, restore the Security Deposit to the original amount deposited. The Security Deposit, or any balance remaining after any permissible deductions, shall be returned in full to Tenant within thirty (30) days after the date of the termination of this Lease and the surrender of the Premises by Tenant in compliance with the provisions of this Lease.

 

(c)         In the event any bankruptcy, insolvency, reorganization or other creditor- debtor proceedings shall be instituted by or against Tenant, or it successors or assigns, if any, the Security Deposit shall be deemed to be applied first to the payment of any Rent and/or other charges due Landlord for all periods prior to the institution of such proceedings and the balance, if any, of the Security Deposit may be retained by Landlord in partial liquidation of Landlord’s damages.

 

(d)         Landlord shall cause the delivery of the Security Deposit to the purchaser of Landlord’s interest in the Building if such interest be sold or transferred, and thereupon (provided such transferee assumes same in writing) Landlord shall be discharged and released from all further liability with respect to the Security Deposit or the return thereof to Tenant. Tenant shall look solely to the new landlord for the return of the Security Deposit to the extent so transferred, and this provision shall also apply to any subsequent transferees. No holder of a mortgage or deed of trust or lessor under a ground or underlying lease to which this Lease is or may be superior or subordinate shall be responsible for the Security Deposit, unless such mortgagee or holder of such deed of trust or lessor shall have actually received the Security Deposit.

 

(e)         The. Security Deposit shall not be commingled with any other monies whatsoever.

 

Section 34.2        Alternative Security. Tenant shall have the right at any time to substitute an unconditional irrevocable letter of credit, substantially in the form annexed hereto as Exhibit O or such other form as is reasonably acceptable to Landlord (“Letter of Credit”), as the Security Deposit, in an amount equal to the required security at the time of such substitution. The Letter of Credit shall be issued by a lending institution with an office for presentation of the Letter of Credit in the New York metropolitan area, reasonably satisfactory to Landlord. In the event that Tenant elects to issue the Letter of Credit, the Letter of Credit shall either (a) expire on the date which is sixty (60) days after the Lease Expiration Date (the “LC Date”), (b) be automatically self-renewing until the LC Date, or (c) if the Letter of Credit expires prior to the LC Date and is not self-renewing, provide the Landlord with a sixty (60) day period to draw on the Letter of Credit following notice to Landlord that the Letter of Credit will not be renewed.

 

 

Upon the occurrence of an Event of Default, Landlord shall be entitled to use, apply or retain the whole or any part of the Security Deposit to the extent required for the payment of any Fixed Rent, Additional Rent, or any other sum as to which Tenant is in default of (and may draw on the entire Letter of Credit for such purposes), or for any sum which Landlord may expend or may be required to expend by reason of Tenant’s default in respect of any of the terms, covenants and conditions of this Lease, including, without limitation, any damages or deficiency in reletting the Premises accrued before or after any summary proceedings or other re-entry by Landlord, In the event of a transfer of Landlord’s interest in the Property, Landlord shall have the right to transfer the Letter of Credit to the transferee, without cost to Landlord, provided that the transferee has agreed in writing to assume all of Landlord’s obligations under this Article 34, and Tenant shall thereafter be bound to transferee under the terms of the Letter of Credit. Tenant shall be solely responsible for payment of any and all costs and expenses associated with the transfer of the Letter of Credit. This provision shall apply to every transfer or assignment made of the Letter of Credit to a new landlord or to a Mortgagee. The Letter of Credit shall not be assigned or encumbered by Tenant and any attempted assignment or encumbrance by Tenant shall be void.

 

ARTICLE 35

 

Miscellaneous

 

Section 35.1        Miscellaneous Provisions.

 

(a)         This Lease and all of the covenants and provisions hereof shall inure to the benefit of, and be binding upon, the parties hereto and the heirs, personal representatives, successors and permitted assigns of the parties.

 

(b)         The titles and headings appearing in this Lease are for reference only and shall not be considered a part of this Lease or in any way to modify, amend or affect the provisions thereof.

 

(c)         This Lease contains the complete agreement of the parties with reference to the leasing of the Premises, and may not be amended except by an instrument in wilting signed by Landlord and Tenant.

 

(d)         Any provision or provisions of this Lease which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof, and the remaining provisions hereof shall nevertheless remain in full force and effect.

 

(e)         This Lease may be executed in one or more counterparts, and may be signed by each party on a seperate counterpart, each of which, taken together, shall be an original, and all of which shall constitute one and same instrument.

 

(f)          Except as otherwise expressly provided in this Lease, (i) term “Landlord” as used in this Lease shall mean only the owner or owners of the Premises at the time in question, (ii) in the event of any transfer of such title or interest, Landlord named in this Lease (and in case of any subsequent transfers, the then grantor) shall be relieved from and after the date of such transfer of all liability with respect to Landlord’s obligations thereafter to be performed hereunder, and (iii) the obligations contained in this Lease to be performed by

 

 

Landlord shall, subject as aforesaid, be binding on Landlord’s successors and assigns, only during their respective periods of ownership.

 

(g)         This Lease shall be governed by, and construed in accordance with, the laws of the State of Connecticut.

 

LANDLORD AND TENANT HEREBY SUBMIT TO EXCLUSIVE PERSONAL JURISDICTION IN THE STATE OF CONNECTICUT AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF CONNECTICUT (AND ANY APPELLATE COURTS TAKING APPEALS THEREFROM) FOR THE ENFORCEMENT OF SUCH PERSON’S OBLIGATIONS HEREUNDER AND WAIVE ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN SUCH STATE FOR THE PURPOSES OF SUCH ACTION, SUIT, PROCEEDING OR LITIGATION TO ENFORCE SUCH OBLIGATIONS OF TENANT OR LANDLORD. WITH RESPECT TO A SUIT COMMENCED IN A COURT LOCATED IN THE STATE OF CONNECTICUT, LANDLORD AND TENANT HEREBY WAIVE AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS LEASE (i) THAT IT IS NOT SUBJECT TO SUCH JURISDICTION OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT IT IS EXEMPT OR IMMUNE FROM EXECUTION; (ii) THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM; OR (iii) THAT THE VENUE OF THE ACTION, SUIT OR PROCEEDING IS IMPROPER. IN THE EVENT ANY SUCH ACTION, SUIT, PROCEEDING OR LITIGATION IS COMMENCED, SERVICE OF PROCESS MAY BE MADE, AND PERSONAL JURISDICTION OVER LANDLORD AND TENANT OBTAINED, BY SERVICE OF A COPY OF THE SUMMONS, COMPLAINT AND OTHER PLEADINGS REQUIRED TO COMMENCE SUCH LITIGATION BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED UPON LANDLORD AND TENANT AT THE ADDRESS FOR NOTICE TO SUCH PERSON IN THIS LEASE. TENANT AND LANDLORD EACH HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATED TO THIS LEASE.

 

(h)         Any claim based on or in respect of any liability of Landlord under this Lease shall be enforced only against the Property (including, without limitation, (A) all rent or other consideration received by Landlord in respect of its estate in the Property, (B) the proceeds of a sale, financing or refinancing of the Property, Landlord’s estate or interest therein, and (C) any insurance proceeds or condemnation awards relating to any portion of the estate or the Property; provided, that for each of clauses (A), (B) and (C) above in this Section 35.1, such rent, consideration and proceeds shall only be included if and to the extent that same are in the possession and control of Landlord and have not been distributed or disbursed to any other Person) and not against any other assets, properties or funds of (i) Landlord or any manager, director, officer, shareholder, general partner, limited partner, or direct or indirect partners, employee or agent of Landlord or its managers (or any legal representative, heir, estate, successor or assign of any thereof); (ii) any predecessor Person of Landlord or its managers, either directly or through Landlord or its predecessor Person of Landlord or its general partners; and (iii) any other Person, Notwithstanding the foregoing, Tenant does not waive its right to make any claim of fraudulent conveyance. The right of Tenant to enforce any claim against rent

 

 

received by Landlord shall not, except to the extent expressly provided in this Lease, include the right of Tenant to set off the Rent due from Tenant to Landlord or the right to abate the Rent due from Tenant to Landlord.

 

(i)          Without the written approval of Landlord and Tenant, no Person other than Landlord (including its direct and indirect partners), the Mortgagee (but only if Mortgagee shall assume the rights and obligations of Landlord), Tenant and their respective successors and assigns shall have any rights under this Lease.

 

(j)          There shall be no merger of the leasehold estate created hereby by reason of the fact that the same Person may own directly or indirectly, (i) the leasehold estate created hereby or any interest in this Lease or such leasehold estate and (ii) the fee estate in the Premises, Notwithstanding any such combined ownership, this Lease shall continue in full force and effect until terminated by an instrument executed by both Landlord and Tenant.

 

(k)         In the event of the termination of this Lease as herein provided, the obligations and liabilities of Landlord and Tenant, as the case may be, actual or contingent, under this Lease which arose at or prior to such termination shall survive such termination.

 

(l)          This Lease is intended as, and shall constitute, a true lease, and Landlord and Tenant shall report their interests herein of accounting, tax and all other purposes as a true lease and shall not take any action or position inconsistent therewith.

 

(m)        Landlord shall, at Tenant’s request and expense, reasonably cooperate with Tenant (including, without limitation, providing Tenant and/or any federal, state or municipal governmental agency and/or quasi-governmental agency as directed by Tenant, any necessary documents, instruments and/or information under the control of Landlord and executing and delivering any documents reasonably requested by Tenant and/or any such governmental agency (including, without limitation, any required Department of Revenue Exemption Certificate)), (i) to enable Tenant to attempt to obtain a sales tax exemption with respect to materials used in construction of the Tenant Improvements, and (ii) to enable Tenant to attempt to obtain any other federal, state and/or municipal government economic incentives, including, without limitation, from the Connecticut Department of Economic and Community Development and the Connecticut Development Authority. Tenant acknowledges that it will not pursue incentives from the State of Connecticut or from any other governmental entity to the extent that such incentives, if granted, would reduce the Property Taxes.

 

(n)         Each party shall, at the other party’s (the “Requesting Party”) request and expense, reasonably cooperate with the Requesting Party (including, without limitation, providing the Requesting Party with any necessary documents, instruments and/or information under the control of such party and executing and delivering any documents reasonably requested by the Requesting Party) to enable the Requesting Party to attempt to obtain LEED compliance certification with respect to the Requesting Party’s activities at the Premises, the Building and/or the Park.

 

(o)         In the event that any Mortgagee reasonably requests changes, modifications or amendments to this Lease or otherwise requires additional documentation from

 

 

Tenant as a condition to providing a loan to Landlord secured by a Mortgage on the Premises, Tenant agrees to make (at no cost to Tenant) any such changes, modifications or amendments so long as they do not decrease Tenant’s rights or increase Tenant’s obligations hereunder or affect Tenant’s use of the Premises, in either case by more than a de minimis extent, or in any way increase the financial obligations of the Tenant hereunder.

 

(p)         Landlord may grant easements, licenses, rights of way or similar rights, or release or amend any such easements or rights with respect to the Premises, so long that such actions do not decrease Tenant’s rights or increase Tenant’s obligations hereunder or affect Tenant’s use of the Premises, in either case by more than a de minimis extent, or in any way increase the financial obligations of Tenant hereunder. Tenant shall reasonably cooperate with Landlord in connection therewith, at no cost to Tenant.

 

(q)         TIME SHALL BE OF THE ESSENCE with respect to the dates for taking all actions under this Lease, except as otherwise specified.

 

(r)          Subject to the exclusions below, each of Landlord and Tenant agrees to keep the terms of this Lease confidential, except that each of Landlord and Tenant may issue press releases regarding the execution of this Lease (and make comments to media inquiries that are consistent with such press releases), provided any such press release is mutually agreed to by the parties. Except in such a mutually agreed upon press release or as may be required (1) by Applicable Laws, (2) by a court of competent jurisdiction in connection with any action or proceeding before a court of competent jurisdiction, (3) to be disclosed to a party’s attorneys, accountants, real estate brokers and other professionals, or (4) to be disclosed in Landlord’s or Tenant’s financial statements or as part of the financing or sale of the Property, the terms of this Lease shall be kept confidential by the parties and no disclosure of same or any public disclosure mentioning Tenant’s name or Landlord’s name shall be made without the reasonable approval of the non-disclosing party.

 

(s)         Landlord represents and warrants to Tenant that:

 

(i)         (x) Landlord is a duly formed and validly existing limited liability company authorized to do business in the State of Connecticut and (y) the execution, delivery and performance by Landlord of this Lease has been duly authorized by all necessary limited liability company action and Landlord has all rights, power and authority necessary to enter into this Lease; and

 

(ii)         Landlord is the owner of fee-simple title to the Property.

 

[SIGNATURE PAGE FOLLOWS]

 

 

IN WITNESS WHEREOF, the parties have executed this Lease on the date first above written.

 

	Landlord:
	TWO HARBOR POINT SQUARE, LLC
	By:	/s/ Paul Kuehner
		Name:	Paul Kuehner
		Title:	Authorized Signatory
	Tenant:
	STRUCTURED PORTFOLIO MANAGEMENT, L.L.C.
	By:	/s/ Ward J. McGraw
		Name:	Ward J. McGraw
		Title:	CFO

 

 

EXHIBIT A

 

PROPERTY DESCRIPTION

 

ALL THAT CERTAIN real property situated in the City of Stamford, County of Fairfield and State of Connecticut, being known and designated as Unit S2 of Harbor Point Planned Community, together with all appurtenances thereto, all as more particularly designated and described in a certain Declaration of Harbor Point Planned Community dated August 13, 2008 and recorded in Volume 9425 at Page 121 of the Stamford Land Records, as amended from time to time.

 

 

EXHIBIT B

 

PERMITTED ENCUMBRANCES

 

1.

Taxes not yet due and payable.

 

2.

Water and/or sewer use charges not yet due and payable.

 

3.

Fees or assessments of Harbor Point Planned Community and Harbor Point Infrastructure Improvement District not yet due and payable. (See Certificate of Assessment Lien and Certificate of Notice of Installment Payment of Assessment Benefits, dated February 3, 2010 and recorded February 4, 2010 in Book 9811 at page 117 of the Stamford land records).

 

4.

Covenant and Restriction by and among The Strand/BRC Group, LLC, the Connecticut Light and Power Company, Western Massachusetts Electric Company and Holyoke Water Power Company dated as of June 21, 2005 and recorded on June 22, 2005 in Volume 8121 at Page 246 SLR.

 

5.

Declaration by One Harbor Point Square LLC, Two Harbor Point Square LLC, Three Harbor Point Square LLC, Four Harbor Point Square LLC, Antares Walter Wheeler Drive SPE, LLC, the Strand/BRC Group, LLC and Fairway Stamford LLC, dated August 20, 2009 and recorded October 7, 2009 in Volume 9722 at Page 232 SLR and amended by Declaration dated August 28, 2009 and recorded November 12, 2009 in Volume 9747 at Page 239 SLR.

 

6.

Terms, covenants, restrictions, easements, grants, by-laws, rules and regulations all as set forth in the Declaration of Harbor Point Planned Community dated August 13, 2008 and recorded August 19, 2008 in Volume 9425 at Page 121 SLR and in the surveys, plans and exhibits referred to therein, as the same may be amended from time to time.

 

7.

Presentation of Harbor Point Infrastructure Improvement District, dated January 17, 2008 and recorded January 18, 2008 in Volume 9244 at Page 281 SLR. (see Map No. 14243 SLR).

 

8.

Interlocal Agreement by and between the City of Stamford and Harbor Point Infrastructure Improvement District, dated July 1, 2008 and recorded July 11, 2008 in Volume 9397 at Page 178 SLR, as amended by that First Amendment to Interlocal Agreement dated October 28, 2009 and recorded January 13, 2010 in Volume 9793 at Page 104 SLR.

 

 

9.

Development Agreement, Harbor Point Infrastructure Improvement History by and between the City of Stamford and Harbor Point Infrastructure Improvement District, dated October 28, 2009 and recorded February 3, 2010 in Volume 9810 at Page 154 SLR.

 

10.

Road and Utility Agreement, Harbor Point Infrastructure Improvement History by and between the City of Stamford and Harbor Point Infrastructure Improvement District, dated October 28, 2009 and recorded February 3, 2010 in Volume 9810 at Page 171 SLR.

 

11.

Community Association Maintenance Assumption Agreement (Harbor Point), dated January 1, 2010 and recorded February 3, 2010 in Volume 9810 at Page 177 SLR.

 

12.

Construction Rights Agreement – Harbor Point, by and between Walter Wheeler Drive SPE, LLC and The Strand/BRC Group, LLC and Harbor Point Infrastructure Improvement District, dated January 1, 2010 and recorded February 3, 2010 in Volume 9810 at Page 190 SLR.

 

13.

Notice of Imposition of Special Assessments of Harbor Point Infrastructure Improvement District And, dated February 3, 2010 and recorded February 4, 2010 in Volume 9811 at Page 38 SLR.

 

14.

Certificates of Assessment Lien and Certificates of Notice of Installment Payment of Assessment Benefits, dated February 3, 2010 and recorded February 4, 2010 in Volume 9811 at Pages 94 et seq. SLR.

 

15.

Environmental land use restrictions which Landlord and Landlord's Affiliates may record in the Stamford Land Records in accordance with Section 24.3(b)(ii).

 

 

exhibit c

 

FLOOR PLAN

 

 

 

 

EXHIBIT C-1

 

GENERATOR ROOM

 

 

 

 

EXHIBIT D

 

PLANS AND SPECIFICATIONS

 

There are no separate and distinct plans of Landlord’s Work.

 

Landlord’s Work shall include the following:

 

1.

delivery of the Premises in broom clean condition;

2.

mechanical equipment room, electric and phone closets provided;

3.

all Base Building on-floor HVAC distribution ductwork stop/stubbed out at the mechanical room;

4.

provision of existing connection points to the floor for the fire alarm system;

5.

sprinkler loop mains provided for further distribution by Tenant;

6.

exterior columns sheetrocked, spackled, taped and ready for paint;

7.

life safety systems ready for Tenant connections as part of the Tenant Improvements;

8.

all perimeter convector enclosures (where applicable) in new condition;

9.

perimeter (where applicable) and core walls installed with gypsum wallboard, scraped, patched and ready to receive Tenant finishes;

10.

all perimeter windows and frames clean, sealed and in weathertight condition and any broken glass replaced; and

11.

bathrooms for the Premises delivered with a finish consistent with that of the second (2nd) floor bathrooms.

12.

The Base Building shall comply with the specifications annexed hereto as Exhibit D-1.

 

 

EXHIBIT D-1

 

BUILDING SPECIFICATIONS

 

Two Harbor Point Square is a 140,000 gross square foot office building with a covered parking garage with a parking ratio of 2/1000 and all the necessary site improvements for a Class A development. The project is in compliance with all governing building codes, building regulations and authorities.

 

Site Improvements:

 

1.

All access roads, drives, loading areas and on-site parking areas are paved with asphalt and concrete curbs. All required pavement markings and parking strips are provided.

2.

Storm Water Management – The site drainage system is a State and City approved storm water control system.

3.

Infrastructure – All necessary on-site infrastructure is completed including all ingress, egress and site utilities. All necessary utilities have been brought to the site and are located underground within public utility easements including storm sewer, sanitary sewer, domestic water, fire service, electrical power (transformed) and telecommunications. The utility service complies with all municipal and utility company requirements.

 

Structural:

 

1.

Frame – The building structure consists of structural steel and light- weight concrete decks.

2.

Loading – The floors will accommodate a total Tenant load of 90 pounds per square foot (70-lbs. Live load plus 20-lbs. partition load).

3.

Height – The floor-to-floor height will be designed to accommodate a clear ceiling height of 10’-6” to 10” in most areas. Areas immediately adjacent to the core area will be less due to Base Building supply and return HVAC ductwork.

4.

Finish – Concrete floors are steel trowel finished per ACI Specifications, leveled to a minimum tolerance of FF 20, FL 17 and ready to receive the Tenant’s improvements.

 

Exteriror Wall:

 

1.

Wall – The Exterior Wall of the building is a curtainwall system that incorporates high efficiency glass, aluminum framing and granite-base accents.

2.

Framing – The framing consists of extruded aluminum sections finished with a factory applied, thermally set fluoropolymer finish on the exposed exterior surfaces and thermally set acrylic on the exposed interior surfaces of the framing system. The framing includes an internal weep system. The glazing seals are extruded gaskets.

 

 

3.

Vision Glass – The vision glass incorporates double pane insulating units with tinted glass and a Low-E coating.

4.

Spandrel Glass – Spandrel units are single pane glass with an opacifier. Thermal insulation is provided behind the spandrel.

5.

Window Treatment – The exterior wall window treatment will be consistent with building standard and provided by Tenant as part of the Tenant Work Allowance.

 

Roof:

 

1.

Roofing – The roof includes a 15-year warranty and is an EPDM system.

 

Interior Finishes and Core Services:

 

1.

Tenant Ceilings – The building will accommodate a conventional suspended acoustical 2’ x 2' tile lay-in ceiling (installed by the Tenant) at 9’-6” to 10” above the finished floor. Some areas adjacent to the Base Building core Mechanical Rooms will accommodate a 8’-0” ceiling height.

2.

Lobbies – Finishes at the ground floor entrance lobby are designed with a combination of high quality, durable finish materials of natural stone, wood, and architectural plaster.

3.

Restrooms – Men and women’s restrooms are provided on each floor. Fixture counts are based on the requirements of the building code and all restrooms are fully compliant with provisions of the ADA, The restroom floors and walls are finished with ceramic tile. The restroom vestibule walls are finished with durable vinyl wall covering over gypsum board, Natural stone vanities and ceiling hung, painted metal toilet partitions are provided. Accessories include stainless steel recessed and semi-recessed toilet accessories and full width unframed mirrors.

4.

Electrical Rooms and Telephone Closets – One (1) electrical room is provided at the building core on each floor to accommodate the building’s electrical distribution system. One (1) closet is provided at the building core on each floor to accommodate Tenant voice and data risers.

5.

Walls – Building exterior columns, core walls and exterior perimeter walls are finished with gypsum wallboard, taped and sanded, ready to receive Tenant’s finishes.

6.

Drinking Fountains – Drinking fountains are provided to comply with all applicable codes and provisions of the ADA.

7.

Doors and Frames – The base building core doors will be full height @ 8’-0”, hollow metal construction with hollow metal frames, include high quality commercial grade brushed stainless steel hardware (mortised locks, latch sets and lever type handles). All doors and hardware comply with the provisions of the ADA.

 

Elevators:

 

1.

The office tower is served by three (3) passenger elevators located at the main lobby. The elevators will have a handling capacity of 12% and an interval not greater than 30

 

 

seconds. One (1) passenger car is rated at 4,500 lbs. and will double as a freight elevator when needed. The elevator doors and frames have a brushed stainless steel finish and the elevator cab finishes compliment the main lobby finishes.

 

Loading Dock:

 

1.

The project includes a loading dock at grade level that includes a trash compactor and one (1) delivery bay with a dimension as follows: Width-20’0”; Height-14’0”.

 

Mechanical:

 

1.

HVAC Design Criteria:

 

a.

The HVAC system design for the building is based on the following criteria:

(1)

Summer design outdoor condition: 84°F DB 74°F WB.

(2)

Winter design temperature: 5°F

(3)

Indoor design conditions:

(a)

Occupied office space: 76°F (summer), 70° (winter) +/- 2°F.

(b)

Occupied office space humidity range:

Summer – 60% RH (Max.)

Winter – No humidity control

(c)

Elevator machine rooms: 85°F maximum, 60°F minimum

(4)

Lighting at typical office spaces: 1.5 watts per usable sq. ft. (70% assigned to space loads)

(5)

Diversified tenant equipment heat loads: 3.5 watts per usable sq. ft.

(6)

Outside air: The base building will accommodate a population density for outside air ventilation of 1 person per 150 usable sq. ft. and 20 CFM per person.

(7)

Population: 150 USF/person (for space head load calculations.)

(8)

The HVAC system is designed so that sound levels do not exceed the following;

(a)

General office areas – NC 35-40

(b)

Spaces adjacent to air handling unit equipment rooms or below roof mounted equipment – NC 45

 

2.

Air conditioning is provided by floor-by-floor packaged water cooled air conditioning units in base building MERs. Condenser water system is comprised of a multicell cooling tower located on the roof with plate frame heat exchangers and primary/secondary pumping systems. Ventilation air is provided from an outside air hear recovery system with indirect fired gas heating and delivered to each floor fan room via a central air riser ductwork system.

3.

Cooling towers are galvanized steel construction with stainless steel basins and incorporate an induced draft and counter-flow design.

 

 

4.

All Base Building ductwork terminates at the core wall with dampers. The Tenant Improvement scope of work will include the on-floor primary heating and cooling system i.e. primary distribution ductwork, secondary distribution ductwork and VAV terminal units on the floor. The air velocity in primary ductwork and risers shall not exceed 2000 feet per minute, 1500 feet per minute in secondary and branch ducts. Ductwork construction shall be in accordance with SMACNA Standard (First Edition 1985). Secondary ductwork downstream of the terminal units plus panel face supply type diffusers for the internal and perimeter overhead heating and cooling distribution will be provided as part of the Tenant Improvement scope of work.

5.

Primary VAV ductwork will be provided with external glass fiber insulation.

6.

Hydronic heating systems shall be variable flow with two-way valves.

7.

Supply air to the occupied tenant spaces is filtered with replaceable media type filters in accordance with ASHRAE 62-89 Standards with an average efficiency of 30% based on ASHRAE Test standard 52.1-92, Outside air shall be filtered with media type filters with an efficiency of approximately 30%.

8.

All supply air ductwork shall be sealed in accordance with SMACNA standards. Ductwork shall be insulated with external glass fiber insulation.

9.

Outside ventilation air to each tenant floor is flow monitored and adjustable through the building control and management system in accordance with ASHRAE 62-89 Standards and the use of CO2 sensors.

10.

Variable air volume floor air handling units on each floor are provided and equipped with efficient variable speed drives, They are designed to accommodate the indoor air quality issues as set forth in the ASHRAE 62-89 Standards, The following is provided:

(a)

Double wall construction.

(b)

Stainless steel cooling coil drain pans, which are internally sloped to drain, dry upon unit shutdown, Coils have a maximum of 6 rows and selected at a maximum face velocity of 500 fpm.

(c)

Air handling units are fully accessible for cleaning and maintenance in accordance with ASHRAE 62-89 Standards. Fiberglass insulation is not exposed to the air stream.

11.

The floor terminal equipment is series type fan powered terminal units (FPTU) with energy efficient motors and internal acoustical attenuation as required to maintain a NC 35 or lower in the occupied space. Internal acoustical lining shall be provided in the secondary ductwork up to 20’-0” downstream of the FPTU. All air terminal equipment will be included in the Tenant Improvement scope of work.

12.

The condenser water system will be hydrostatically tested and leak tight prior to insulation.

13.

The condenser water system will be balanced to design flow rates and documented. All air distribution will be balanced and documented.

14.

The building control system is a state-of-the-art DDC microprocessors and PC based system, with stand alone remote field panels and peer-to-peer communication over a high speed network to all terminal equipment. All Tenant temperature sensors are to be connected to Landlord’s building control system will be included in the Tenant Improvement work scope.

15.

Stairways are provided with stair pressurization systems in accordance with code.

 

 

Plumbing:

 

1.

The building water service entrance is provided for fire protection and domestic water. All connections between the domestic water system and use will be protected by reduced pressure type back flow preventers.

2.

A complete plumbing system is provided, including all underground piping to public mains, consisting of sanitary waste piping, sanitary vent piping, domestic cold water piping, and storm sewer piping installed to all facilities and in accordance with all applicable codes.

3.

Internal downspouts with overflow drains are provided as per code for all roof areas and discharge to the storm sewer system. All horizontal downspout lines in the ceiling space below the roof are insulated.

4.

The plumbing fixtures shall be vitreous china, commercial quality. Water closets and urinals shall be flush valve type, siphon jet, wall hung, Lavatory bowls are under counter type. Lavatory trim and selected fixtures meet all ADA requirements.

5.

Drinking fountains are self-contained electric, stainless steel and meet all ADA requirements. One (1) will be provided at the core wall on each level.

6.

Domestic cold water is provided from municipal water mains in the street and boosted by a triplex domestic water booster pump to base building restroom facilities at street pressure. Electric water heaters (one per floor) provide hot water to the base building restrooms. All hot water piping is insulated.

7.

A Tenant “wet column” with a 4” waste, 3” vent and 1 1/4” cold water line is provided at the building core.

8.

Hose bibbs are provided in the mechanical rooms and the loading dock. A freeze-proof wall hydrant is provided on each exterior face of the building at ground level and at two sides of the mechanical penthouse roof area.

 

Fire Protection:

 

1.

The building is fully sprinkled, Concealed type heads with white cover plates and adjustable inlets will be provided in the common core areas of the Base Building. The Base Building provides a standpipe with tamper switches and valves in the building exit stairways for future Tenant connection. The Base Building system is designed and installed as required by NFPA 14 and all local code requirements.

2.

The Tenant will provide the main and branch sprinkler piping distribution system which shall be located near structural slab or deck. Concealed type heads that match the Base Building heads will be provided in the Tenant area and included in the Tenant Improvement scope of work. The Tenant design will be based on NFPA 13 and local code requirements. All required drops and/or relocation of the base building core area heads will be included in the Tenant Improvement scope of work.

3.

An electrical driven fire pump is connected to normal utility power and the emergency generator via an automatic transfer switch.

 

 

Electrical

 

1.

The base building electrical distribution system complies with local codes and the National Electrical Code as well as any additional applicable code authorities.

2.

The electrical service is 480Y/277 volt, 3 phase, 60 Hz and is supplied to the building from Connecticut Light & Power Company through transformers located at Grade Level. The main switchboards are located on the ground floor and include heavy-duty circuit breakers with solid state trip function plus ground fault protection, Each Tenant space will be individually sub-metered at the floor of occupancy (the cost of such sub-meter to be paid for by Tenant as part of the Tenant Improvement Allowance).

3.

The building electrical service is distributed vertically in the core through conduit risers to high voltage panels located in the core electrical rooms on each floor, The high voltage panels serve the Base Building MEP equipment/systems, the Base Building/Tenant 277-volt fluorescent lighting system.

4.

The Base Building buss duct riser is sized to provide 6.0 watts per useable square foot of electrical connected load capacity for the Tenant’s low voltage use at each floor. The Tenant will be responsible for all distribution from the buss duct riser out.

5.

All wiring is in conduit or EMT. When approved for use in the applicable occupancy and by the local code authorities, type AC or MC cable may be used for branch circuits where not subjected to damage. At the Tenant’s option, aluminum conductors shall be allowed for sizes # 1/0 AWG and above where terminated with crimp type compression connectors. Wiring for individual fire alarm indicating and initiating devices shall be plenum rated cable or alternate cable if allowed by the local authority.

6.

A base building diesel powered emergency generator and standby power distribution system utilizing automatic transfer switches is provided to serve the following loads:

(a)

Stair lighting

(b)

Fire Command Station

(c)

Service elevator as well as one passenger elevator in each bank

(d)

Fire alarm system

(e)

Fire pumps

(f)

Stair pressurization

7.

The Tenant emergency lighting fixtures must include a battery back-up system.

 

Tenant Voice / Data Access:

 

1.

A main voice / data frame POP (Point of Presence) Room is located at grade. Voice / data riser sleeves are located at the core of the building to facilitate the vertical distribution of the Tenant's system or systems. All individual Tenant voice / data switches and equipment will be located within the Tenant occupied space. Current providers include, AT&T, Cablevision Lightpath and Verizon.

 

Lighting Systems:

 

1.

Lighting system will be flexible with modular wiring technology. The Tenant will consider infrared

 

 

or ultrasonic type occupancy sensors for all private offices. The lighting goal shall be 1.2 watts/sq. fl. maximum. The building standard lighting fixtures will be included in the Tenant Improvement scope of work.

2.

The Base Building restrooms include occupancy sensors.

3.

The parking garage is lighted with metal halide fixtures to provide 5.0 foot-candles average. The garage is lighted with metal halide fixtures to provide 5.0 foot-candles average maintained with an average to minimum ratio of 5 to 1. A night and weekend set back reduction feature is incorporated to reduce energy consumption. Walkways and walk areas are lighted and include the night and weekend set back reduction feature.

 

Fire Alarm System:

 

1.

A code compliant fully addressable fire detection and alarm system, which complies with ADA requirements is provided. At a minimum, the system includes the following:

(1)

Manual pull stations

(2)

Speaker horns and visual strobes (ADA approved)

(3)

Water flow alarms and tamper switch monitoring coordinated with the fire protection system

(4)

Smoke detectors at elevator lobbies, which interface with the elevator control system

(5)

Smoke detectors at air handling units

(6)

Additional monitoring and indicating devices as required by local code

(7)

Fireman’s telephone system utilizing two-way permanent phones and phone jacks

 

Security System:

 

1.

An electronically controlled card access building system is provided. The system controls all the perimeter entrances to the building to ensure that Tenant’s employees and property are adequately safeguarded. Each card is separately coded for specific individual access and is configured for a multitude of authorized access levels.

 

Parking Garage Control System:

 

1.

The Parking Garage entrance/exit control utilizes a “Smart Pass” control system that automatically opens the control gate as a vehicle approaches.

 

 

EXHIBIT E

 

FORM OF CHANGE ORDER

 

Change Order No. _______

 

Two Harbor Point Square

 

To:

 

______________________________

______________________________

______________________________

Attn: _________________________

 

From:

Two Harbor Point Square, LLC

100 Washington Boulevard, Suite 200

Stamford, CT 06902

 

Description of Change

 

Cost of Change		$
Savings from Change		$
Net Amount of Change		$
Tenant’s Delay			____________Days

 

Accepted:

 

			Two Harbor Point Square, LLC
By:			By:
Date:			Date:

 

 

EXHIBIT F

 

BUILDING HOLIDAYS

 

Holiday Schedule is as follows:

 

·

New Year’s Day

·

President’s Day

·

Memorial Day

·

Independence Day

·

Labor Day

	·	Thanksgiving Day
	·	Christmas Day

 

 

EXHIBIT G

 

CLEANING SPECIFICATIONS

 

DAILY

 

Sweep, dry mop or vacuum all floor areas of resilient wood or carpet, remove matter such as gum and tar, which has adhered to the floor.

 

Empty all ashtrays and waste baskets and removal all trash. Wipe down ashtrays and waste baskets.

 

Spot wash to remove major smudges, marks and fingerprints from such areas as walls, equipment, doors, partitions and light switches within reach.

 

Damp mop all non-resilient floors.

 

Dust and wipe all desk and table tops, so long as desks and table tops are not covered with files, paper or other personal effects.

 

Wash clean all water fountain tops and countertops.

 

Dust closet shelving, coat racks, telephones, furniture, fixtures and window sills.

 

Dust all vinyl, plastic or leather type synthetic covered chairs nightly and wipe clean as needed

 

WEEKLY

 

Spot clean carpet stains.

 

Spot wash interior partition glass and door glass to remove smudge marks.

 

MONTHLY

 

Scrub resilient floor areas using buffable non-slip floor finish.

 

Clean all interior glass, both sides.

 

Clean the exterior and saddles of elevator doors.

 

QUARTERLY

 

Vacuum all ceiling and wall air supply and exhaust vents and diffusers

 

Clean all glass and mirrors in common lobbies.

 

High dust pictures, frames, charts, graphs and similar wall hangings or surfaces not reached in nightly cleanings, the exterior of lighting fixtures, overhead pipes and sprinklers located in the Premises.

 

 

SEMI-ANNUALLY

 

Wash vertical terrazzo or marble surfaces.

 

Damp wash such items, including surrounding wall or ceiling areas that are soiled.

 

Wash all exterior surfaces of exterior glass.

 

ANNUALLY

 

Vacuum drapes.

 

Dust all storage shelves and damp mop floor areas.

 

Wash all interior surfaces of exterior glass.

 

Refinish resilient floor areas using buffable non-slip floor finish.

 

LAVATORY CLEANING

 

Nightly

 

Scrub, rinse and dry floors.

Wipe mirrors, power shelves, bright work (including flushometers, piping, and toilet seat hinges).

Clean enameled surfaces, wash basins, urinals and bowls.

Wash both sides of all toilet seats with soap and water.

Wash tile walls near urinals with disinfectant

Fill toilet tissue dispensers, as needed

Fill all soap, towel sanitary napkin dispensers as needed

Empty and wash clean all waste cans and other receptacles

 

Weekly

 

Treat urinals with a scale solvent, weekly

 

Monthly

 

Wash down lavatory walls and stalls from trim to floor.

Wash down partitions, tile floors and enameled surfaces.

Dust all lighting fixtures.

 

General

 

Landlord to provide sanitary dispensary units in ladies’ rooms.

 

PORTER/MATRON DUTIES

 

Police lobby area, elevator cabs and lavatories twice daily.

Fill toilet tissue, soap, towel dispensers, as needed.

Keep garage lobby vestibules clean.

Keep sidewalks free from debris and snow/ice.

Keep all stairwells clean and free of debris.

Keep the building entrance doors in clean condition.

Keep base building exterior metal work, marble, and building entrance in clean condition at all times.

Keep plaza, outdoor seating, railings, lights and other appurtenances clean.

Insert plastic liners in outdoor waste disposal cans and empty cans as needed.

 

 

Note:

 

This specification does not include the cleaning of IT/equipment rooms. This specification does not include cleaning of dishes, glasses, silverware, equipment or cooking materials located in a kitchenette. This specification does not include carpet shampooing, This specification does not include the type of cleaning involved for high end finishes such as wood paneling, office glass panel walls, marble, stone or other high finish flooring (other than normal mopping/cleaning).

 

 

EXHIBIT H

 

RULES AND REGULATIONS

 

To the extent the provisions of these Rules and Regulations conflict with the provisions of the Lease, the provisions of the Lease shall control.

 

1.

The sidewalks, driveways, entrances, passages, courts, lobby, esplanade areas, plaza, elevators, vestibules, stairways, corridors or halls shall not be obstructed or encumbered by any tenant or used for any purpose other than ingress and egress to and from the Premises, and Tenant shall not permit any of its employees, agents, or invitees to loiter in any of said areas (except for the outdoor plaza and esplanade areas as designated). No doormat of any kind whatsoever shall be placed or left in any public hall or outside any entry door of the Premises.

 

2.

Except as provided in the Lease, no awnings or other projections shall be attached to the outside walls of the Building. No curtains, blinds, shades or screens that are visible from the exterior of the Premises or Building shall be attached to or hung in, or used in connection with, any window or door of the Premises, unless included in Tenant’s Plans or, if not so included without the prior written consent of Landlord (including the manner of hanging or attachment), such consent not to be withheld unreasonably and to be deemed given if not withheld, with reasonable explanation, within ten (10) days following request.

 

3.

No sign, insignia, advertisement, object, notice or other lettering shall be exhibited, inscribed, painted or affixed by any tenant either (a) on any part of the outside of the Building, or (b) inside of the Common Areas, or (c) outside of the Premises, without in each such case the prior written consent of Landlord, such consent to be deemed given if not withheld within ten (10) days following request. In the event of the violation of the foregoing by any tenant, Landlord may remove the same without any liability, and may charge the expense incurred in such removal to the tenant or tenants violating this rule. Interior signs in Common Areas of the Building (if and when approved by Landlord), and lettering on doors and directory tablets shall be inscribed, painted or affixed for each tenant by Landlord at the reasonable expense of such tenant, and shall be of a size, color and style which matches Building standard or is otherwise reasonably acceptable to Landlord.

 

4.

The sashes, sash doors, skylights, windows, and doors that reflect or admit light and air into the halls, passageways or other public places in the Building shall not be covered or obstructed by any tenant, nor shall any bottles, parcels, or other articles be placed on the window sills or on the peripheral heating loop enclosures.

 

5.

No showcases or other articles shall be put in front of or affixed to any part of the exterior of the Building, nor placed in the halls, corridors or vestibules of the Common Areas.

 

6.

The water and wash closets and other plumbing fixtures shall not be used for any purpose other than those for which they were designed or constructed, and no sweepings, rubbish,

 

 

rags, acids or other similar substances shall be thrown or deposited therein, Except as specified in Landlord’s cleaning specifications, any cuspidors or containers or receptacles used as such in the Premises shall be emptied, cared for and cleaned by and at the expense of Tenant.

 

7.

No tenant shall mark, paint, drill into, or in any way deface any part of the Common Areas or the Building. No borings or cuttings shall be permitted, except with the prior written consent of Landlord, and as Landlord may direct, except as provided in Tenant’s Plans or in connection with approved (or deemed approved) Alterations, Subject to the foregoing, Tenant may install and hang normal office decorations and cabinetry in the Premises.

 

8.

No bicycles, vehicles, birds or animals of any kind (except fish) shall be brought into or kept in or about the Premises. However, this prohibition shall not apply to dogs or other animals which are assisting visually impaired individuals or which may be utilized for detecting illegal drugs or explosives.

 

9.

No noise, including, but not limited to, music or other playing of musical instruments, recordings, radio or television, which, in the reasonable judgment of Landlord, might disturb other tenants in the Building, shall be made or permitted by any tenant, Nothing shall be done or permitted in the Premises by any tenant which would materially impair or interfere with, as determined by reasonable standards, the use or enjoyment by any other tenant of any other space in the Building or on the outdoor plaza.

 

10.

No tenant nor any of tenant’s servants, employees, agents, visitors or licensees shall at any time bring or keep upon the Premises any inflammable, combustible or explosive fluid, chemical or substance, except in small quantities as may be required for the proper operation, maintenance and/or cleaning of customary office equipment, provided Tenant shall comply with any and all laws and regulations governing usage and disposal of same.

 

11.

Additional locks or bolts of any kind which shall not be operable by the Grand Master Key for the Building or other key or code provided to Landlord shall not be placed upon any of the doors or windows by any tenant, nor shall any changes be made in locks or the mechanism thereof which shall make such locks inoperable by said Grand Master Key or other key or code provided to Landlord, Each tenant shall, upon the termination of its tenancy, turn over to Landlord all security cards, Smartpass cards, all keys of stores, offices and toilet rooms, either furnished to, or otherwise procured by, such tenant, and in the event of the loss of any keys furnished by Landlord, such tenant shall pay to Landlord the standard fee charged by Landlord for the cost of replacement thereof, Any security card or Smartpass returned by a tenant when unneeded during the term of such tenant’s lease shall thereafter be re-issued to such tenant as an “add back” without charge upon request.

 

12.

The removal or delivery of furniture or extra-large or heavy items which may interfere with the use and occupancy of the Building by other tenants, or with their access to their respective leased premises, must take place during such hours and in such elevators as Landlord or its Agent may reasonably determine from time to time, Landlord reserves

 

 

the right to a cursory inspection of all objects and matter to be brought into the Building and to exclude from the Building all objects and matter which violate any of these Rules and Regulations or the Lease of which these Rules and Regulations are a part. Landlord may require any person leaving the Building with any package or other object or matter to submit a pass, listing such package or object or matter is being removed, but the establishment and enforcement of such requirement shall not impose any additional responsibility on Landlord for the protection of any tenant against the removal of property from the premises of such tenant. Landlord shall in no way be liable to any tenant for damages or loss arising from the admission, exclusion or ejection of any person to or from the Premises of the Building under the provisions of this Rule 12 or Rule 16 hereof.

 

13.

Tenant shall not occupy or permit any portion of the Premises to be occupied as an office for a public stenographer or public typist, or for the storage, manufacture, or sale of liquor, narcotics, dope, tobacco in any form, or as a barber, beauty or manicure shop, or as a school, or as a hiring or employment agency. Tenant shall not use the Premises or any part thereof, or permit the Premises, or any part thereof to be used for manufacturing or for the sale at auction of merchandise, goods or tangible personal property of any kind.

 

14

No tenant shall obtain, purchase or accept for use in the Premises catering, ice, water cooler, towel service, barbering, boot blackening, special cleaning, floor polishing, or other similar services from any persons not expressly authorized by Landlord to furnish such service; provided, however, that such service may be famished by an outside vendor or caterer in the event the vendors and/or caterers doing business at the Building and the Park, if applicable, fail to bid competitive prices or rates for such services. Such services shall be furnished only during regular Business Hours, in the Premises, and under such reasonable regulations as may be fixed by Landlord. Notwithstanding the above, this prohibition shall not prevent Tenant from furnishing such services for its employees, guests, invitees and independent contractors, or prevent Tenant’s employees from bringing in meal items and/or having coffee breaks. Notwithstanding the foregoing, Tenant shall have the right to utilize exterior vendors and/or caterers, provided that Tenant utilizes such vendors that maintain the Class A nature of the Building.

 

15.

Landlord shall have the right to prohibit any advertising or identifying sign by any tenant which, in Landlord’s judgment, tends to impair the reputation of the Building or its desirability as a building for offices and upon written notice from Landlord, such tenant shall refrain from or discontinue such advertising or identifying sign.

 

16.

Landlord reserves the right to exclude from the Building during hours other than Business Hours (as defined in the foregoing Lease) all persons connected with or calling upon Tenant who do not present a pass to the Building signed by Tenant or whose entry Tenant does not approve in response to telephone inquiry from the front desk upon such person’s arrival at the Building. Tenant shall furnish Landlord with a facsimile of such pass. All persons entering and/or leaving the Building on weekends or Holidays or on non-Holiday weekends before or after Business Hours may be required to sign a register. Tenant shall be responsible for all persons for whom it issues any such pass and shall be liable to Landlord for all acts or omissions of such persons.

 

 

17.

Tenant, before closing and leaving the Premises at any time, shall see that all operable windows are closed and all lights are turned out. All entrance doors in the Premises shall be left locked by Tenant when the Premises are not in use. Entrance doors on multi- tenant floors shall not be left open at any time.

 

18.

Unless Landlord shall furnish electrical energy hereunder as a service included in the rent, Tenant shall, at Tenant’s expense, provide artificial light and electrical energy for the employees of Landlord and/or Landlord’s contractors while doing janitor service or other cleaning in the Premises and while making repairs or alterations in the Premises.

 

19.

The Premises shall not be used for lodging or sleeping or for any immoral or illegal purpose.

 

20.

The requirements of tenants will be attended to only upon notice of Landlord’s managing agent and, if Landlord or its managing agent requests, upon execution and submission or written application or purchase order. Employees of Landlord shall not perform any work or do anything outside of their regular duties, unless under special instructions from Landlord.

 

21.

Canvassing, soliciting and peddling in the Building are prohibited and each tenant shall reasonably cooperate to prevent the same.

 

22.

There shall not be used in any space, or in the public halls of the Building, either by any tenant or by any others, in the moving or delivery or receipt of safes, freight, furniture, packages, boxes, crates, paper, office material, or any other matter of thing, any hand tracks except those equipped with rubber tires, side guards and such other safeguards as Landlord shall reasonably require.

 

23.

Tenant shall not cause or permit any odors of cooking or other processes or any unusual or objectionable odors to emanate from the Premises in disturbance of other tenants or which creates a public or private nuisance. No cooking shall be done in the Premises except as is expressly permitted in the foregoing Lease or in the pantry area.

 

24.

On notice to Tenants, Landlord may rescind, alter or waive any rule or regulation at any time prescribed for the Building when, in its reasonable judgment, it deems it necessary or desirable for the reputation, safety, care or appearance of the Building, or the preservation of good order therein, or the operation or maintenance of the Building, or the equipment thereof, or the comfort of tenants or others in the Building. Rules will be applicable and enforced uniformly.

 

25.

The parking areas servicing the Building shall not be used for storage of vehicles or long-term parking of vehicles; it being the intention that Tenant’s use of said parking areas is to be directly related to Tenant’s use of Premises as said use is permitted by the terms of its Lease, Landlord reserves the right to cause the removal, by towing, of vehicles in violation of this parking rule, it being understood and agreed by Tenant that Landlord’s right to tow illegally parked vehicles is hereby noticed to Tenant and no notice of Landlord’s right to tow illegally parking vehicles by signage need be posted on the Land

 

 

or the Building, All costs of the towing of illegally parked cars owned by Tenant or Tenant Parties shall be borne by Tenant and shall be deemed to be Additional Rent.

 

26.

The garage is to be used by tenants of the Building or Park, their employees, visitors and guests.

 

27.

The speed limit within the garage and on all internal roadways and driveways shall be 5 m.p.h. and is strictly enforced.

 

28.

Overnight parking is prohibited, You should defer to your specific lease for an individual tenant’s rights to park in the garage after hours.

 

29.

Vehicles may not be parked in such a manner as to block access to: garages, fire hydrants, pedestrian crossing areas, designated fire lanes, or clear two lane passage by vehicles, Violators will be towed.

 

30.

The following types of vehicles are prohibited in the parking areas or drives except for temporary loading or unloading: trucks and other commercial vehicles (carrying a sign advertising a business) and vehicles with more than four single-tired wheels.

 

31.

All vehicles parked on the property will be licensed and in operating condition for safe travel on public roads.

 

32.

The maximum height for vehicles accessing the garage is posted, You will be responsible for damages resulting from your vehicles exceeding this height requirement. Vehicles with roof racks shall enter at their own risk.

 

33.

All persons will comply with Connecticut state laws and Department of Motor Vehicles regulations on the roads, drives and property.

 

34.

Parking in the garage and in other parking areas is “at your own risk”. Ownership and management shall not be held responsible for any damage to vehicles nor be responsible for any items left in vehicles.

 

35.

Tenants and their employees may park only in those areas assigned to them.

 

36.

All visitors must report to reception of the appropriate building entrance of which they are visiting.

 

Landlord acknowledges that Tenant shall not be responsible for compliance by Tenant Parties with the Rules and Regulations with respect to motor vehicles, but shall reasonably cooperate with, and support, Landlord’s actions to enforce compliance with such Rules and Regulations by all Tenant Parties.

 

[The remainder of this page is left intentionally blank.]

 

 

EXHIBIT I

 

HVAC SPECIFICATIONS

 

b.

The HVAC system design for the building is based on the following criteria:

 

(1)

Summer design outdoor condition; 84°F DB 74°F WB.

 

(2)

Winter design temperature: 5°F

 

(3)

Indoor design conditions;

 

(a)

Occupied office space; 76°F (summer), 70° (winter) +/- 2°F.

 

(b)

Occupied office space humidity range:

 

Summer – 60% RH (Max.)

Winter – No humidity control

 

(c)

Elevator machine rooms: 85°F maximum, 60°F minimum

 

(4)

Lighting at typical office spaces: 1.5 watts per usable sq. ft, (70% assigned to space loads)

 

(5)

Diversified tenant equipment heat loads: 3.5 watts per usable sq. ft.

 

(6)

Outside air: The base building will accommodate a population density for outside air ventilation of 1 person per 150 usable sq. ft. and 20 CFM per person.

 

(7)

Population: 150 USF/person (for space head load calculations.)

 

(8)

The HVAC system is designed such that sound levels do not exceed the following;

 

(a)

General office areas – NC 35-40

 

(b)

Spaces adjacent to air handling unit equipment rooms or below roof mounted equipment – NC 45

 

 

EXHIBIT J

 

GARAGE PLAN

 

 

 

 

EXHIBIT K

 

PARKING PLAN

 

 

 

 

EXHIBIT L

 

SECURITY SPECIFICATIONS

 

Building Access 

 

The Building will have access 24/7/365, via an electronic controlled access system. All external doors will be locked after Business Hours. A tenant must use their card to access the Building through any secured exterior door during Business Hours or after hours. Each tenant shall be given a set amount of cards for their employees. All employees who are terminated or change their employment shall be required to return their access card to security. There will be a charge for replacement of cards or for issuance of additional cards over and above the original card allocation provided to tenant. The current charge for replacement or additional security cards is $15 per card and the current charge for replacement or additional Smartpasses is $35 per card.

 

All visitors to the Building during Business Hours shall be checked in by security.

 

Garage Access

 

The garage will be equipped with a “smart pass” or similar system that opens the control gate when activated, by use of a card system, allowing for vehicle access into the garage.

 

Personnel

 

The Building shall have an unarmed security officer or concierge in the main lobby of the Building during Business Hours (Monday thru Friday 8:00am to 6:00pm and Saturday 8:00am to 1:00pm, excluding Business Holidays), An officer or roving patrol shall be available during non-business hours, Monday thru Friday from 6:00pm to 11:00pm, excluding Building Holidays. From time to time, the security personnel on duty may be away from the desk to provide for various tours of the Building or Property (signage shall be present during this time). Security personnel shall escort employees and invitees to the Garage upon request.

 

Building Monitoring

 

The Building will have various cameras to cover all external door entrances. Images provided by the cameras will be recorded on a DVR or similar device. Building intruder and fire alarms shall be connected to a central monitoring panel with automatic off-site notification during periods security personnel are not present on the Property.

 

Life Safety/Evacuation and Building Emergency Plans

 

A plan for life safety/evacuation and for Building emergencies shall be adopted prior to the occupancy of the Building by the first tenant, and a copy of such plans shall be distributed to each tenant. Each tenant is expected to ensure that its employees and invitees are aware of such plans and comply with them as needed.

 

 

EXHIBIT M

 

SHUTTLE BUS SPECIFICATIONS

 

Morning Shuttle Schedule

 

Shuttle shall run continuously from 7:30 AM to 9:30 AM, Monday thru Friday, except for Building Holidays

 

Afternoon/Evening Shuttle Schedule

 

Shuttle shall run continuously from 4:20 PM to 6:20 PM, , Monday thru Friday, except for Building Holidays.

 

Additional Service

 

Shuttle service shall be available on an on-call basis between 9:30 AM and 4:20 PM, Monday thru Friday, except for Building Holidays. Any additional services shall be provided upon request at an additional fee.

 

 

EXHIBIT N

 

FORM OF NOTICE OF LEASE

 

NOTICE OF LEASE

 

Pursuant to Section 47-19 of the Connecticut General Statutes (1958 version, as amended), notice is hereby given of the existence of the following lease (the “Lease”):

 

1.

The name and address of Landlord is:

 

Two Harbor Point Square, LLC

100 Washington Boulevard, Suite 200

Stamford, CT 06902

 

2.

The name and address of Tenant is;

 

Two Harbor Point Square
Stamford, CT 06902

 

3.    The date of execution of the Lease is:_______  _______, 2011

 

4.    The description of the leased premises (the “Premises”) as contained in the Lease is the entirety of the __________ (_______) floor in the building known as Two Harbor Point Square, Stamford, Connecticut on the land on which the building is located, described on Exhibit A hereto.

 

5.    The initial term of the Lease is for approximately ______(_____) years, the scheduled date of commencement being approximately ________ and the scheduled date of expiration being approximately__________.

 

6.    The Lease contains the following right of extension or renewal: ______ (_____) ______ (__) year options to extend.

 

7.    The Lease contains no option to purchase.

 

8.     Nothing contained in this instrument shall be deemed to modify or change any of the provisions of the Lease. In the event of any conflict between the terms of the Lease and the terms of this Notice, the Lease shall govern. A copy of the Lease is on file in the Landlord’s office.

 

9.    This instrument shall be binding upon and inure to the benefit of the respective successors and assigns of the parties.

 

 

IN WITNESS WHEREOF, the parties have executed this instrument as of the ____ day of _____, 2011.

 

Witnesses:		LANDLORD:
		TWO HARBOR POINT SQUARE, LLC
		By:
			Name:
			Title:
		TENANT:
		By:
			Name:
			Title:

 

 

STATE OF CONNECTICUT	)
	)	ss: Stamford
COUNTY OF FAIRFIELD	)

 

The foregoing instrument was acknowledged before me this ____ day of _______, 2011 by ________, Authorized Signatory of Two Harbor Point Square, LLC, a Connecticut limited liability company, on behalf of the company.

 

	[Name of person taking acknowledgement]
	Commissioner of the Superior Court
	Notary Public
	My commission expires:_______________________

 

STATE OF_______________	)
	)	ss:
COUNTY OF_____________	)

 

The foregoing instrument was acknowledged before me this _____ day of ______, 2010 by __________, ________ of __________, a _____________ , on behalf of the _______________.

 

	[Name of person taking acknowledgement]
	Commissioner of the Superior Court
	Notary Public
	My commission expires:____________________

 

 

EXHIBIT A

 

PROPERTY DESCRIPTION

 

ALL THAT CERTAIN real property situated in the City of Stamford, County of Fairfield and State of Connecticut, being known and designated as Unit S2 of Harbor Point Planned Community, together with all appurtenances thereto, all as more particularly designated and described in a certain Declaration of Harbor Point Planned Community dated August 13, 2008 and recorded in Volume 9425 at Page 121 of the Stamford Land Records.

 

 

EXHIBIT O

 

FORM OF LETTER OF CREDIT

 

LETTER OF CREDIT

 

OUR REFERENCE NO._________________		DATE:____________________
BENEFICIARY:		APPLICANT:
[OWNERSHIP NAME]
c/o BLT Management LLC
100 Washington Boulevard, Suite 200
Stamford, Connecticut 06902
Attention: Portfolio Manager

 

GENTLEMEN/LADIES:

 

OUR REFERENCE NO.____________

 

ACCOUNT OF:

 

 

AVAILABLE WITH:	OURSELVES BY PAYMENT
DRAFTS AT SIGHT
DRAWN ON (NAME OF BANK & ADDRESS OF BANK)

 

TO THE EXTENT OF:	***USD ___________________***
EXPIRY DATE:	____________________
PLACE OF EXPIRY:	OUR COUNTERS

 

ADDITIONAL DETAILS:

 

WE HERE BY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER___________ IN YOUR FAVOR, AT THE REQUEST AND FOR THE ACCOUNT OF THE ABOVE NAMED APPLICANT UP TO THE AGGREGATE AMOUNT OF ***USD _________ *** _______________________AND 00/100 U.S. DOLLARS) AVAILABLE BY YOUR SIGHT DRAFT(S) DRAWN ON US INDICATING OUR LETTER OF CREDIT NO ___________ DATED _______________ACCOMPANIED BY:

 

1.            YOUR STATEMENT, PURPORTEDLY SIGNED BY ONE OF YOUR AUTHORIZED REPRESENTATIVES, READING AS FOLLOWS:

 

 

OUR LETTER OF CREDIT _______________

APPLICANT:

 

“THE UNDERSIGNED, A DULY AUTHORIZED SIGNATORY OF ______________ (LANDLORD ENTITY), HEREBY CERTIFIES THAT THE AMOUNT OF OUR DRAWING, USD ___________, UNDER THE _______________ (BANK NAME), IRREVOCABLE STANDBY LETTER OF CREDIT NO.____________ REPRESENTS FUNDS DUE TO THE LANDLORD UNDER LEASE BETWEEN _____________ (LANDLORD ENTITY), LANDLORD AND _____________ (TENANT NAME), TENANT, DATED ______________________, AS THE RESULT OF A DEFAULT THAT REMAINS UNCURED BEYOND ANY APPLICABLE NOTICE AND CURE PERIOD.

 

IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT IS DEEMED TO BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ONE YEAR FROM THE EXPIRY DATE HEREOF OF ANY FURTHER EXPIRATION DATE, UNLESS AT LEAST THIRTY (30) DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE, WE NOTIFY YOU BY REGISTERED MAIL OR OVERNIGHT COURIER THAT WE ELECT NOT TO CONSIDER THIS LETTER OF CREDIT RENEWED FOR ANY SUCH ADDITIONAL PERIOD.

 

IN THE EVENT THAT WE NOTIFY YOU OF OUR ELECTION NOT TO RENEW THIS LETTER OF CREDIT, YOU MAY DRAW HEREUNDER BY MEANS OF YOUR DRAFT AT SIGHT DRAWN ON US, ACCOMPANIED BY YOUR STATEMENT, PURPORTEDLY SIGNED BY ONE OF YOUR AUTHORIZED REPRESENTATIVES READING AS FOLLOWS:

 

“THE UNDERSIGNED, A DULY AUTHORIZED SIGNATORY OF ___________________ (LANDLORD ENTITY), HEREBY CERTIFIES THAT WE HAVE RECEIVED A NOTICE OF NON-RENEWAL UNDER THE ______________ (BANK NAME), IRREVOCABLE STANDBY LETTER OF CREDIT NO.____________ WILL BE HELD OR APPLIED BY THE LANDLORD AS A SECURITY DEPOSIT UNDER THE LEASE BETWEEN ______________ (LANDLORD ENTITY), LANDLORD AND ____________ (TENANT NAME), TENANT, DATED_________________.

 

IN ANY EVENT, THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND ITS FINAL EXPIRATION DATE OF _______________________.

 

PARTIAL DRAWINGS ARE PERMITTED.

 

 

NOTWITHSTANDING ANY REFERENCE IN THIS LETTER OF CREDIT TO OTHER DOCUMENTS, INSTRUMENTS OR AGREEMENTS OR REFERENCES IN SUCH OTHER DOCUMENTS, INSTRUMENTS OR AGREEMENTS TO THIS OUR

LETTER OF CREDIT__________________

APPLICANT: ___________________

 

LETTER OF CREDIT, THIS LETTER OF CREDIT CONTAINS THE ENTIRE AGREEMENT AMONG THE BENEFICIARY AND THE ISSUER HEREUNDER RELATING TO THE OBLIGATIONS OF THE ISSUER HEREUNDER.

 

WE HEREBY ENGAGE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT SHALL BE DULY HONORED IF DOCUMENTS AS SPECIFIED ARE DULY PRESENTED AT OUR COUNTERS AT THE ______________________ (BANK NAME AND ADDRESS), ATTENTION: THE MANAGER, LETTER OF CREDIT DEPARTMENT, ON OR BEFORE _________________, OR ANY AUTOMATICALLY EXTENDED DATE THROUGH ___________________, AS PROVIDED FOR HEREIN.

 

THIS IRREVOCABLE LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500.

 

VERY TRULY YOURS.

 

AUTHORIZED SIGNATURE

 

 

EXHIBIT P

 

ALLOCATION OF TENANT EXPENSES

 

		Percent Share of Operating Expenses
Description		Office Tower				Special Facility				Entire Building
Payroll											17.0579	%
Utilities - common											17.0579	%
Water/Sewer/Telephone											17.059	%
Cleaning			20.0	%
Security			20.0	%
Security - Rover											17.0579	%
Elevator			20.0	%
HVAC											17.0579	%
Parking											17.0579	%
Rubbish			20.0	%
Landscaping											17.0579	%
R&M											17.0579	%
Loading Dock			20.0	%
Insurance											17.0579	%
RE Taxes											17.0579	%
Common Expenses											17.0579	%
Admin & General											17.0579	%
Mgmt Fee											17.0579	%

 

Note: 

 

The above is meant to be a guide and may be changed from time to time depending on the nature of services provided from time to time and to the extent any services benefit more than just the Building and/or the Office Tower and is subject to the provisions of the Lease including, without limitation, Section 6.2(c)

 

Cleaning and rubbish assumes that the retail tenants separately contract for this work.

 

HVAC assumes that retail tenants utilize Base Building HVAC.

 

Landlord shall confirm, to Tenant's reasonable satisfaction, that any service allocated strictly to the Office Tower tenants is not being used by other tenants or occupants of the Building or benefits other buildings in the Park and that to the extent other tenants or occupants or buildings are using such services, they either (a) separately contract and pay for such services, or (b) are included in a reasonable reallocation of the cost of such services among all users.

 

 

EXHIBIT Q

 

SIGNAGE SPECIFICATIONS

 

1.

All signage shall comply with Applicable Laws.

 

2.

No sign which uses movement or change of lighting to depict action or to create a scene or which contains an intermittent or sequential flashing light, except for a time-temperature device in an otherwise nonanimated display, shall be permitted.

 

3.

No sign which is set in motion by movement of the atmosphere, such as pennants or flags, revolving or moving signs, spinners or other eye catching devices shall be permitted, with the exception of national, state and corporate flags.

 

4.

No sign shall be permitted if it predominantly appeals to the prurient interest or if it depicts or describes a sexual act or other act prohibited by the laws of the State of Connecticut.

 

5.

Any illuminated sign shall employ only lights emitting a light of constant intensity and shall be designed, located, erected and maintained to confine or direct all illumination to the surface of the subject sign or the area of the building immediately behind the subject sign.

 

6.

The following criteria shall apply to all exterior signs on the Property;

 

a.

Façade signs (including parapet signs): as to each side of the Building, not greater than two square feet of signage for each lineal foot of Building frontage. All signage located on the faҫade of the Building shall be in the general locations depicted on the building elevations included in Exhibit D as A-200 and A-201. Some variation shall be permitted for retail space signage, both as to location and as to area, provided that it is consistent with the standards of a Class A building.

 

b.

Parking area signs: not greater than twelve square feet in the aggregate, located at the entrances and exits of such parking areas.

 

c.

Ground or pole sign: one sign (which may be double faced), not greater than fifty square feet in area.

 

7.

The following criteria shall apply to all signs within the lobby of the Building:

 

a.

Lobby directory: if Landlord shall have a lobby directory, each tenant shall have the right to a proportionate share of listings in Building standard typeface and color.

 

b.

Wall signage: if permitted by Landlord, wall signage in the Building lobby shall be limited to the area behind the security desk, and any tenant who is permitted to place

 

 

wall signage in this location shall be limited to not more than 12”H x 36”W to designate its name and/or corporate logo

 

c.

Monument signage: if permitted by Landlord, one monument sign may be located within the lobby and may not exceed 24”W x 24”L x 48”H.

 

 

EXHIBIT R

 

PARK

 

Harbor Point

Common Interest Community

(Planned Community)

 

 

 

 

EXHIBIT S

 

REMEDIAL ACTION PLAN

 

Documents that collectively constitute the Remedial Action Plan for the Property:

 

1.

Approval of Request to Modify Designs for Engineered Controls for Vapor Barrier, dated April 28, 2008.

 

2.

Approval of Interim Remedy, dated November 28, 2007.

 

3.

Conditional Approval of Remedial Action Plan Addendum, June 15, 2007.

 

4.

Proposed Engineered Control and Vapor Barrier Design Modification, Antares Admiral’s Wharf LLC, Antares Walter Wheeler Drive SPE, LLC, Antares Yale & Towne SPE, LLC, Stamford, CT, dated April 8, 2008.

 

5.

Revised Plan for Temporary Cover for Interim Measure, Antares Admiral's Wharf LLC, Antares Walter Wheeler Drive SPE, LLC and Antares Yale & Towne SPE, LLC (Antares) Stamford, CT, dated October 30, 2007.

 

6.

Remedial Action Plan Addendum, Antares Admiral’s Wharf Site, 25 Acre Parcel, Stamford, CT (May, 2007)

 

 

Exhibit 10.13

 

springworks therapeutics, INC.

 

EMPLOYMENT AGREEMENT

 

This Employment Agreement (“Agreement”) is made as of [_____________], 2019, between SpringWorks Therapeutics, Inc., a Delaware corporation (the “Company”), and [____________] (the “Employee”) and is effective as of the closing of the Company’s first underwritten public offering of its equity securities pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Effective Date”).

 

WHEREAS, the Company or a subsidiary of the Company and the Employee are parties to an offer letter, dated as of [__________] [and a Severance Agreement, dated as of [_______] (collectively, the “Prior Agreement”); and

 

WHEREAS, the parties intend to replace the Prior Agreement with this Agreement, effective as of the Effective Date.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

 

1.            Employment.

 

(a)          Term. The term of this Agreement shall commence on the Effective Date and continue until terminated in accordance with the provisions hereof (the “Term”). The Employee’s employment with the Company will continue to be “at will,” meaning that the Employee’s employment may be terminated by the Company or the Employee at any time and for any reason subject to the terms of this Agreement.

 

(b)          Position and Duties. During the Term, the Employee shall serve as the [__________________] of the Company, and shall have such duties and authorities as may from time to time be prescribed by the [Chief Executive Officer of the Company (the “CEO”)]. The Employee shall devote his full working time and efforts to the business and affairs of the Company. Notwithstanding the foregoing, the Employee may serve on other boards of directors, with the approval of [the CEO], or engage in religious, charitable or other community activities as long as such services and activities do not materially interfere with the Employee’s performance of his duties to the Company as provided in this Agreement.

 

2.            Compensation and Related Matters.

 

(a)          Base Salary. During the Term, the Employee’s annual base salary shall be $[______]. The Employee’s base salary shall be reviewed annually by the Compensation Committee of the Board (the “Compensation Committee”) or [the CEO]. The base salary in effect at any given time is referred to herein as “Base Salary.” The Base Salary shall be payable in a manner that is consistent with the Company’s usual payroll practices.

 

 

(b)          Incentive Compensation. During the Term, the Employee shall be eligible to receive cash incentive compensation as determined by the Board or the Compensation Committee from time to time. The Employee’s initial target annual incentive compensation shall be [_____] percent (___%) of his Base Salary (the “Target Annual Incentive Compensation”). Except as otherwise provided herein, to earn incentive compensation, the Employee must be employed by the Company on the day such incentive compensation is paid.

 

(c)          Expenses. The Employee shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by him during the Term in performing services hereunder, in accordance with the policies and procedures then in effect and established by the Company.

 

(d)          Other Benefits. During the Term, the Employee shall be eligible to participate in or receive benefits under the Company’s employee benefit plans in effect from time to time, subject to the terms of such plans.

 

(e)          Vacations. During the Term, the Employee shall be entitled to paid vacation in accordance with the Company’s policies and procedures. The Employee shall also be entitled to all paid holidays given by the Company in accordance with the policies and procedures then in effect and established by the Company.

 

3.            Termination. During the Term, the Employee’s employment hereunder may be terminated without any breach of this Agreement under the following circumstances:

 

(a)          Death. The Employee’s employment shall terminate upon his death.

 

(b)          Termination by Company for Cause. The Company may terminate the Employee’s employment for Cause. For purposes of this Agreement, “Cause” shall mean that the Company has complied with the “Cause Process” (hereinafter defined) following the occurrence of one of the following events: (i) conduct by the Employee constituting a material act of misconduct in connection with the performance of his duties, including, without limitation, misappropriation of funds or property of the Company or any of its subsidiaries or affiliates other than the occasional, customary and de minimis use of Company property for personal purposes; (ii) the commission by the Employee of any felony or a misdemeanor involving moral turpitude, deceit, dishonesty or fraud; (iii) any conduct by the Employee that would result in material economic harm to the Company or any of its subsidiaries if he were retained in his position; (iv); a material breach by the Employee of any provisions of this Agreement, including without limitation continued non-performance by the Employee of his duties under this Agreement (other than by reason of the Employee’s physical or mental illness, incapacity or disability) which has continued for more than 30 days following written notice of such non-performance from the Board; (v) a material violation by the Employee of the Company’s employment policies provided to the Employee in writing; or (vi) material failure to cooperate with a bona fide internal investigation by the Board or an investigation by regulatory or law enforcement authorities, after being instructed by the Company to cooperate, or the willful destruction or failure to preserve documents or other materials known to be relevant to such investigation or the inducement of others to fail to cooperate or to produce documents or other materials in connection with such investigation (subject to the limitations in the final sentence of Section 7(a)). If the Employee rebuts or cures the applicable finding of Cause within the applicable cure period, Cause shall be deemed not to have occurred. “Cause Process” shall mean that: (A) the Board reasonably determines in good faith that a “Cause” condition has occurred; and (B) with regard to any termination of the Employee for Cause under items (i), (iii), (iv), (v) or (vi) above, (1) the Company will provide the Employee with written notice of its intention to terminate the Employee’s employment hereunder setting forth with reasonable particularity the basis for Cause and will provide the Employee with a thirty (30) day opportunity to rebut or cure such finding of Cause and (2) the Company cooperates in good faith with the Employee’s efforts, for a period of not less than 30 days following such notice to remedy the condition.

 

 

(c)          Termination Without Cause. The Company may terminate the Employee’s employment at any time without Cause. Any termination by the Company of the Employee’s employment which does not constitute a termination for Cause under Section 3(b) and does not result from the death of the Employee under Section 3(a) shall be deemed a termination without Cause.

 

(d)          Termination by the Employee. The Employee may terminate his employment at any time for any reason, including but not limited to Good Reason. For purposes of this Agreement, “Good Reason” shall mean that the Employee has complied with the “Good Reason Process” (hereinafter defined) following the occurrence of any of the following events: (i) a material diminution in the Employee’s title, responsibilities, authority or duties; (ii) a diminution in the Employee’s base salary except for across-the-board salary reductions based on the Company’s financial performance similarly affecting all senior management employees of the Company; (iii) a greater than fifty (50) mile change in the principal office location at which the Employee provides services to the Company; or (iv) the material breach of any provisions of this Agreement by the Company. “Good Reason Process” shall mean that (i) the Employee reasonably determines in good faith that a “Good Reason” condition has occurred; (ii) the Employee notifies the Company in writing of the occurrence of the Good Reason condition within 60 days of the Employee obtaining knowledge of the occurrence of such condition; (iii) the Employee cooperates in good faith with the Company’s efforts, for a period not less than 30 days following such notice (the “Cure Period”), to remedy the condition; (iv) notwithstanding such efforts, the Good Reason condition continues to exist; and (v) the Employee terminates his employment within 60 days after the end of the Cure Period. If the Company cures the Good Reason condition during the Cure Period, Good Reason shall be deemed not to have occurred.

 

(e)          Notice of Termination. Except for termination as specified in Section 3(a), any termination of the Employee’s employment by the Company or any such termination by the Employee shall be communicated by written Notice of Termination to the other party hereto. For purposes of this Agreement, a “Notice of Termination” shall mean a written notice which shall indicate the specific termination provision in this Agreement relied upon Employee.

 

(f)          Date of Termination. “Date of Termination” shall mean: (i) if the Employee’s employment is terminated by his death, the date of his death; (ii) if the Employee’s employment is terminated by the Company under Section 3(c), the date on which a Notice of Termination is given; (iii) if the Employee’s employment is terminated by the Employee under Section 3(d) without Good Reason, the date on which a Notice of Termination is given, and (iv) if the Employee’s employment is terminated by the Employee under Section 3(d) with Good Reason, the date on which a Notice of Termination is given after the end of the Cure Period.

 

 

4.            Compensation Upon Termination.

 

(a)          Termination Generally. If the Employee’s employment with the Company is terminated for any reason, the Company shall pay or provide to the Employee (or to his authorized representative or estate) (i) any base salary earned through the Date of Termination, unpaid expense reimbursements (subject to, and in accordance with, Section 3(c) of this Agreement) and unused vacation that accrued through the Date of Termination on or before the time required by law but in no event more than 30 days after the Employee’s Date of Termination; and (ii) any vested benefits the Employee may have under any employee benefit plan of the Company through the Date of Termination, which vested benefits shall be paid and/or provided in accordance with the terms of such employee benefit plans (collectively, the “Accrued Benefit”).

 

(b)          Termination by the Company Without Cause or by the Employee with Good Reason. If the Employee’s employment is terminated by the Company without Cause as provided in Section 3(c), or the Employee terminates his employment for Good Reason as provided in Section 3(d), then the Company shall pay the Employee his Accrued Benefit. In addition, subject to the Employee signing a customary separation agreement containing, among other provisions, a general release of claims in favor of the Company, its subsidiaries and affiliates, confidentiality, return of property and non-disparagement, in a form and substance mutually satisfactory to the Company and the Employee (the “Separation Agreement and Release”) and the Separation Agreement and Release becoming irrevocable and fully effective, all within 60 days after the Date of Termination (or such shorter time period provided in the Separation Agreement and Release):

 

(i)           the Company shall pay the Employee an amount equal to [____] months of the Employee’s Base Salary (the “Severance Amount”). Notwithstanding the foregoing, if the Employee breaches any of the provisions contained in Section 7 of this Agreement, all payments of the Severance Amount shall immediately cease;

 

(ii)          RESERVED;

 

(iii)         if the Employee was participating in the Company’s group health plan immediately prior to the Date of Termination and elects COBRA health continuation, then the Company shall pay to the Employee a monthly cash payment for [____]months or the Employee’s COBRA health continuation period, whichever ends earlier, in an amount equal to the monthly employer contribution that the Company would have made to provide health insurance to the Employee if the Employee had remained employed by the Company; and

 

(iv)         the amounts payable under Section 4(b)(i) and (iii) shall be paid out in substantially equal installments in accordance with the Company’s payroll practice commencing within 60 days after the Date of Termination; provided, however, that if the 60-day period begins in one calendar year and ends in a second calendar year, the Severance Amount shall begin to be paid in the second calendar year by the last day of such 60-day period; provided, further, that the initial payment shall include a catch-up payment to cover amounts retroactive to the day immediately following the Date of Termination. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).

 

 

5.            Change in Control Payment. The provisions of this Section 5 set forth certain terms of an agreement reached between the Employee and the Company regarding the Employee’s rights and obligations upon the occurrence of a Change in Control of the Company. These provisions are intended to assure and encourage in advance the Employee’s continued attention and dedication to his assigned duties and his objectivity during the pendency and after the occurrence of any such event. These provisions shall apply in lieu of, and expressly supersede, the provisions of Section 4(b) regarding severance pay and benefits upon a termination of employment, if such termination of employment occurs within 18 months after the occurrence of the first event constituting a Change in Control. These provisions shall terminate and be of no further force or effect beginning 18 months after the occurrence of a Change in Control.

 

(a)          Change in Control. During the Term, if within 18 months after a Change in Control, the Employee’s employment is terminated by the Company without Cause as provided in Section 3(c) or the Employee terminates his employment for Good Reason as provided in Section 3(d), then, subject to the signing of the Separation Agreement and Release by the Employee and the Separation Agreement and Release becoming irrevocable and fully effective, all within 60 days after the Date of Termination (or such shorter time period provided in the Separation Agreement and Release):

 

(i)           the Company shall pay the Employee a lump sum in cash in an amount equal to the sum of (A) [____]months of the Employee’s Base Salary (or the Employee’s Base Salary in effect immediately prior to the Change in Control, if higher) plus (B) [____]times the Employee’s Target Annual Incentive Compensation (or the Employee’s Target Annual Incentive Compensation in effect immediately prior to the Change in Control, if higher);

 

(ii)          notwithstanding anything to the contrary in any applicable option agreement or stock-based award agreement, all time-based stock options and other time-based stock-based awards held by the Employee shall immediately accelerate and become fully exercisable or nonforfeitable as of the Date of Termination;

 

(iii)         if the Employee was participating in the Company’s group health plan immediately prior to the Date of Termination and elects COBRA health continuation, then the Company shall pay to the Employee a monthly cash payment for [___] months or the Employee’s COBRA health continuation period, whichever ends earlier, in an amount equal to the monthly employer contribution that the Company would have made to provide health insurance to the Employee if the Employee had remained employed by the Company; and

 

 

(iv)         The amounts payable under Section 5(a)(i) and (iii) shall be paid or commence to be paid within [60] days after the Date of Termination; provided, however, that if the [60]-day period begins in one calendar year and ends in a second calendar year, such payment shall be paid or commence to be paid in the second calendar year by the last day of such 60-day period.

 

(b)          Additional Limitation.

 

(i)           Anything in this Agreement to the contrary notwithstanding, in the event that the amount of any compensation, payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, then the Aggregate Payments shall be reduced (but not below zero) so that the sum of all of the Aggregate Payments shall be $1.00 less than the amount at which the Employee becomes subject to the excise tax imposed by Section 4999 of the Code; provided that such reduction shall only occur if it would result in the Employee receiving a higher After Tax Amount (as defined below) than the Employee would receive if the Aggregate Payments were not subject to such reduction. In such event, the Aggregate Payments shall be reduced in the following order, in each case, in reverse chronological order beginning with the Aggregate Payments that are to be paid the furthest in time from consummation of the transaction that is subject to Section 280G of the Code: (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits; provided that in the case of all the foregoing Aggregate Payments all amounts or payments that are not subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c) shall be reduced before any amounts that are subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c).

 

(ii)          For purposes of this Section 5(b), the “After Tax Amount” means the amount of the Aggregate Payments less all federal, state, and local income, excise and employment taxes imposed on the Employee as a result of the Employee’s receipt of the Aggregate Payments. For purposes of determining the After Tax Amount, the Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation in each applicable state and locality, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

 

(iii)         The determination as to whether a reduction in the Aggregate Payments shall be made pursuant to Section 5(b)(i) shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Employee. Any determination by the Accounting Firm shall be binding upon the Company and the Employee.

 

 

(c)          Definitions. For purposes of this Section 5, the following terms shall have the following meanings:

 

“Change in Control” shall mean any of the following:

 

(i)           any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Act”) (other than the Company, any of its subsidiaries, or any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any of its subsidiaries), together with all “affiliates” and “associates” (as such terms are defined in Rule 12b-2 under the Act) of such person, shall become the “beneficial owner” (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 50 percent or more of the combined voting power of the Company’s then outstanding securities having the right to vote in an election of the Board (“Voting Securities”) (in such case other than as a result of an acquisition of securities directly from the Company); or

 

(ii)          the date a majority of the members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board before the date of the appointment or election; or

 

(iii)         the consummation of (A) any consolidation or merger of the Company where the stockholders of the Company, immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, shares representing in the aggregate more than 50 percent of the voting shares of the Company issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any), or (B) any sale or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company and its affiliates on a consolidated basis.

 

Notwithstanding the foregoing, a “Change in Control” shall not be deemed to have occurred for purposes of the foregoing clause (i) solely as the result of an acquisition of securities by the Company which, by reducing the number of shares of Voting Securities outstanding, increases the proportionate number of Voting Securities beneficially owned by any person to 50 percent or more of the combined voting power of all of the then outstanding Voting Securities; provided, however, that if any person referred to in this sentence shall thereafter become the beneficial owner of any additional shares of Voting Securities (other than pursuant to a stock split, stock dividend, or similar transaction or as a result of an acquisition of securities directly from the Company) and immediately thereafter beneficially owns 50 percent or more of the combined voting power of all of the then outstanding Voting Securities, then a “Change in Control” shall be deemed to have occurred for purposes of the foregoing clause (i).

 

 

6.            Section 409A.

 

(a)          Anything in this Agreement to the contrary notwithstanding, if at the time of the Employee’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Employee becomes entitled to under this Agreement on account of the Employee’s separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Employee’s separation from service, or (B) the Employee’s death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule.

 

(b)          All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Employee during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.

 

(c)          To the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation” under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Employee’s termination of employment, then such payments or benefits shall be payable only upon the Employee’s “separation from service.” The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).

 

(d)          The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.

 

 

(e)          The Company makes no representation or warranty and shall have no liability to the Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.

 

7.            Confidential Information, Noncompetition and Cooperation. The terms of the Confidentiality and Proprietary Rights Agreement (the “Restrictive Covenant Agreement”), between the Company or a subsidiary thereof and the Employee, attached hereto as Exhibit A, shall continue to be in full force and effect and are incorporated by reference in this Agreement. The Employee hereby reaffirms the terms of the Restrictive Covenant Agreement as material terms of this Agreement.

 

(a)          Litigation and Regulatory Cooperation. During and after the Employee’s employment, the Employee shall reasonably cooperate with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while the Employee was employed by the Company. The Employee’s cooperation in connection with such claims or actions shall include, but not be limited to, being reasonably available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after the Employee’s employment, the Employee also shall cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Employee was employed by the Company. The Company shall reimburse the Employee for any reasonable out-of-pocket expenses incurred in connection with the Employee’s performance of obligations pursuant to this Section 7(a) upon presentation of receipts. Nothing about the foregoing shall preclude the Employee from testifying truthfully in any forum or from providing truthful information to any regulatory authority or require the Employee to waive any attorney-client privilege or protection or violate any applicable law.

 

(b)          Relief. The Employee agrees that it would be difficult to measure any damages caused to the Company which might result from any breach by the Employee of the promises set forth in this Section 7, and that in any event money damages would be an inadequate remedy for any such breach. Accordingly, subject to Section 8 of this Agreement, the Employee agrees that if the Employee breaches, or proposes to breach, any portion of this Agreement, the Company shall be entitled, in addition to all other remedies that it may have, to an injunction or other appropriate equitable relief to restrain any such breach without showing or proving any actual damage to the Company. In addition, in the event the Employee breaches this Section 7 during a period when he is receiving severance payments pursuant to Section 4 or Section 5 hereof, the Company shall have the right to suspend or terminate such severance payments. Such suspension or termination shall not limit the Company’s other options with respect to relief for such breach and shall not relieve the Employee of his duties under this Agreement.

 

(c)          Protected Disclosures and Other Protected Action. Nothing contained in this Agreement limits the Employee’s ability to communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to the Company.

 

 

8.            Arbitration of Disputes. Any controversy or claim arising out of or relating to this Agreement or the breach thereof or otherwise arising out of the Employee’s employment or the termination of that employment (including, without limitation, any claims of unlawful employment discrimination whether based on age or otherwise) shall, to the fullest extent permitted by law, be settled by arbitration in any forum and form agreed upon by the parties or, in the absence of such an agreement, under the auspices of the American Arbitration Association (“AAA”) in Stamford, Connecticut, in accordance with the Employment Dispute Resolution Rules of the AAA, including, but not limited to, the rules and procedures applicable to the selection of arbitrators. In the event that any person or entity other than the Employee or the Company may be a party with regard to any such controversy or claim, such controversy or claim shall be submitted to arbitration subject to such other person or entity’s agreement. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This Section 8 shall be specifically enforceable. Notwithstanding the foregoing, this Section 8 shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or a preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Section 8.

 

9.            Consent to Jurisdiction. To the extent that any court action is permitted consistent with or to enforce Section 8 of this Agreement, the parties hereby consent to the jurisdiction of the courts of the State of Connecticut and the United States District Court for the District of Connecticut. Accordingly, with respect to any such court action, the Employee (a) submits to the personal jurisdiction of such courts; (b) consents to service of process; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process.

 

10.          Integration. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties concerning such subject matter, including the Prior Agreement.

 

11.          Withholding. All payments made by the Company to the Employee under this Agreement shall be net of any tax or other amounts required to be withheld by the Company under applicable law.

 

12.          Successor to the Employee. This Agreement shall inure to the benefit of and be enforceable by the Employee’s personal representatives, executors, administrators, heirs, distributees, devisees and legatees. In the event of the Employee’s death after his termination of employment but prior to the completion by the Company of all payments due to him under this Agreement, the Company shall continue such payments to the Employee’s beneficiary designated in writing to the Company prior to his death (or to his estate, if the Employee fails to make such designation).

 

13.          Enforceability. If any portion or provision of this Agreement (including, without limitation, any portion or provision of any section of this Agreement) shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

 

 

14.          Survival. The provisions of this Agreement shall survive the termination of this Agreement and/or the termination of the Employee’s employment to the extent necessary to effectuate the terms contained herein.

 

15.          Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.

 

16.          Notices. Any notices, requests, demands and other communications provided for by this Agreement shall be sufficient if in writing and delivered in person or sent by a nationally recognized overnight courier service or by registered or certified mail, postage prepaid, return receipt requested, to the Employee at the last address the Employee has filed in writing with the Company or, in the case of the Company, at its main offices, attention of the Board.

 

17.          Amendment. This Agreement may be amended or modified only by a written instrument signed by the Employee and by a duly authorized representative of the Company.

 

18.          Governing Law. This is a Connecticut contract and shall be construed under and be governed in all respects by the laws of the State of Connecticut without giving effect to the conflict of laws principles thereof.

 

19.          Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be taken to be an original; but such counterparts shall together constitute one and the same document.

 

20.          Successor to Company. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and agree to perform this Agreement to the same extent that the Company would be required to perform it if no succession had taken place. Failure of the Company to obtain an assumption of this Agreement at or prior to the effectiveness of any succession shall be a material breach of this Agreement.

 

21.          Gender Neutral. Wherever used herein, a pronoun in the masculine gender shall be considered as including the feminine gender unless the context clearly indicates otherwise.

 

 

IN WITNESS WHEREOF, the parties have executed this Agreement effective on the date and year first above written.

 

SPRINGWORKS THERAPEUTICS, INC.

 

	By:
	Its:

 

	EMPLOYEE
	[_______________]

 

 

Exhibit 21.1

Subsidiaries of SpringWorks Therapeutics, Inc.

 

 

1.

SpringWorks Therapeutics, LLC, a Delaware Limited Liability Company

 

2.

SpringWorks Subsidiary 1, Inc. a Delaware Corporation

 

3.

SpringWorks Subsidiary 2, Inc. a Delaware Corporation

 

4.

SpringWorks Subsidiary 3, Inc. a Delaware Corporation

 

5.

SpringWorks Subsidiary 4, Inc. a Delaware Corporation

 

6.

SpringWorks Therapeutics Operating Company, Inc., a Delaware Corporation

 

 

 

Exhibit 23.1

 

 

 

Consent of Independent Registered Public Accounting Firm

 

 

We consent to the reference to our firm under the caption "Experts" and to the use of our report dated June 7, 2019, in the Registration Statement (Form S-1) and related Prospectus of SpringWorks Therapeutics, Inc. (formerly SpringWorks Therapeutics, LLC) for the registration of its common stock.

 

 

/s/ Ernst & Young LLP

New York, New York

August 16, 2019