þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware | 06-1562417 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
Page | ||
PART I | ||
ITEM 1. | ||
ITEM 2. | ||
ITEM 3. | ||
ITEM 4. | ||
PART II | ||
ITEM 1A. | ||
ITEM 6. | ||
Item 1. | Financial Statements |
March 31, 2014 | December 31, 2013 | ||||||
ASSETS | |||||||
Cash and cash equivalents | $ | 73,491,291 | $ | 27,351,969 | |||
Accounts receivable | — | 1,200 | |||||
Prepaid expenses | 1,324,833 | 658,412 | |||||
Other current assets | 443,798 | 162,997 | |||||
Total current assets | 75,259,922 | 28,174,578 | |||||
Plant and equipment, net of accumulated amortization and depreciation of $27,821,235 and $27,637,443 at March 31, 2014 and December 31, 2013, respectively | 4,135,617 | 2,784,845 | |||||
Goodwill | 19,635,612 | 2,572,203 | |||||
Acquired intangible assets, net of accumulated amortization of $73,661 at March 31, 2014 | 7,997,972 | — | |||||
Other long-term assets | 1,274,646 | 1,303,855 | |||||
Total assets | $ | 108,303,769 | $ | 34,835,481 | |||
LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT) | |||||||
Current portion, long-term debt | $ | 2,869,301 | $ | 3,518,550 | |||
Convertible notes | 1,213,376 | — | |||||
Current portion, deferred revenue | 3,031,744 | 1,660,679 | |||||
Accounts payable | 1,681,448 | 834,740 | |||||
Accrued liabilities | 4,699,051 | 4,215,221 | |||||
Other current liabilities | 878,035 | 66,683 | |||||
Total current liabilities | 14,372,955 | 10,295,873 | |||||
Other long-term debt | 5,277,779 | 5,347,690 | |||||
Deferred revenue | 3,147,754 | 3,193,809 | |||||
Contingent royalty obligation | 8,935,252 | 18,799,141 | |||||
Contingent purchase price consideration | 10,630,000 | — | |||||
Other long-term liabilities | 2,654,627 | 1,679,671 | |||||
Commitments and contingencies | |||||||
STOCKHOLDERS’ EQUITY (DEFICIT) | |||||||
Preferred stock, par value $0.01 per share; 5,000,000 shares authorized at March 31, 2014 and December 31, 2013: | |||||||
Series A-1 convertible preferred stock; 31,620 shares designated, issued, and outstanding at March 31, 2014 and December 31, 2013; liquidation value of $32,320,630 at March 31, 2014 | 316 | 316 | |||||
Series B2 convertible preferred stock; 3,105 shares designated, issued, and outstanding at March 31, 2014 and December 31, 2013 | 31 | 31 | |||||
Common stock, par value $0.01 per share; 70,000,000 shares authorized; 62,230,609 and 36,391,191 shares issued at March 31, 2014 and December 31, 2013, respectively | 622,306 | 363,912 | |||||
Additional paid-in capital | 711,625,013 | 644,571,866 | |||||
Treasury stock, at cost; 0 and 43,490 shares of common stock at March 31, 2014 and December 31, 2013, respectively | — | (324,792 | ) | ||||
Accumulated deficit | (649,177,681 | ) | (649,092,036 | ) | |||
Cumulative translation adjustment | 215,417 | — | |||||
Total stockholders’ equity (deficit) | 63,285,402 | (4,480,703 | ) | ||||
Total liabilities and stockholders’ equity (deficit) | $ | 108,303,769 | $ | 34,835,481 |
Quarters Ended March 31 | ||||||||
2014 | 2013 | |||||||
Revenue: | ||||||||
Service revenue | $ | — | $ | 725,225 | ||||
Grant revenue | 28,768 | — | ||||||
Research and development revenue | 692,088 | 384,017 | ||||||
Total revenues | 720,856 | 1,109,242 | ||||||
Operating expenses: | ||||||||
Cost of service revenue | — | (272,776 | ) | |||||
Research and development | (4,472,533 | ) | (2,554,122 | ) | ||||
General and administrative | (5,163,493 | ) | (2,891,541 | ) | ||||
Contingent consideration fair value adjustment | (909,000 | ) | — | |||||
Operating loss | (9,824,170 | ) | (4,609,197 | ) | ||||
Other income (expense): | ||||||||
Non-operating income | 9,822,466 | 2,880 | ||||||
Interest expense, net | (355,809 | ) | (1,228,702 | ) | ||||
Net loss | (357,513 | ) | (5,835,019 | ) | ||||
Dividends on Series A and A-1 convertible preferred stock | (51,026 | ) | (3,007,186 | ) | ||||
Net loss attributable to common stockholders | $ | (408,539 | ) | $ | (8,842,205 | ) | ||
Per common share data: | ||||||||
Basic and diluted net loss attributable to common stockholders | $ | (0.01 | ) | $ | (0.35 | ) | ||
Weighted average number of common shares outstanding: | ||||||||
Basic and diluted | 50,556,807 | 25,071,684 | ||||||
Other comprehensive income (loss): | ||||||||
Foreign currency translation gain | $ | 215,417 | $ | — | ||||
Other comprehensive income | 215,417 | — | ||||||
Comprehensive loss | $ | (193,122 | ) | $ | (8,842,205 | ) |
Three months Ended March 31, | ||||||||
2014 | 2013 | |||||||
Cash flows from operating activities: | ||||||||
Net income (loss) | $ | (357,513 | ) | $ | (5,835,019 | ) | ||
Adjustments to reconcile net income (loss) to net cash used in operating activities: | ||||||||
Depreciation and amortization | 266,528 | 147,000 | ||||||
Share-based compensation | 953,836 | 709,345 | ||||||
Noncash interest expense | 153,146 | 448,638 | ||||||
Gain on sale of investment | — | — | ||||||
Loss on disposal of assets | 1,150 | 17,915 | ||||||
Change in fair value of contingent royalty obligation | (8,894,974 | ) | — | |||||
Loss on extinguishment of debt | — | — | ||||||
Changes in operating assets and liabilities: | ||||||||
Accounts receivable | 1,200 | 388,606 | ||||||
Inventories | — | — | ||||||
Prepaid expenses | (279,825 | ) | (341,680 | ) | ||||
Accounts payable | 184,008 | (149,686 | ) | |||||
Deferred revenue | (688,904 | ) | (381,971 | ) | ||||
Accrued liabilities and other current liabilities | (1,433,230 | ) | 1,026,886 | |||||
Other operating assets and liabilities | (29,768 | ) | 74,618 | |||||
Net cash (used in) provided by operating activities | (10,124,346 | ) | (3,895,348 | ) | ||||
Cash flows from investing activities: | ||||||||
Cash acquired in acquisition | 514,470 | — | ||||||
Purchases of plant and equipment | (172,592 | ) | (377,323 | ) | ||||
Net cash provided by (used in) investing activities | 341,878 | (377,323 | ) | |||||
Cash flows from financing activities: | ||||||||
Net proceeds from sales of equity | 56,667,252 | — | ||||||
Proceeds from employee stock purchases | 84,271 | 35,438 | ||||||
Financing of property and equipment | (9,505 | ) | (17,078 | ) | ||||
Payments of convertible notes | (833,333 | ) | — | |||||
Net cash provided by financing activities | 55,908,685 | 18,360 | ||||||
Effect of exchange rate changes on cash | 13,105 | — | ||||||
Net increase in cash and cash equivalents | 46,139,322 | (4,254,311 | ) | |||||
Cash and cash equivalents, beginning of period | 27,351,969 | 21,468,269 | ||||||
Cash and cash equivalents, end of period | $ | 73,491,291 | $ | 17,213,958 | ||||
Supplemental cash flow information: | ||||||||
Cash paid for interest | $ | 193,893 | $ | 3,372 | ||||
Non-cash investing and financing activity: | ||||||||
Deemed dividend on Series A convertible preferred stock | $ | — | $ | 2,906,664 | ||||
Issuance of common stock, $0.01 par value, for acquisition of 4-Antibody | 10,102,259 | — | ||||||
Contingent consideration issued in connection with the acquisition of 4-Antibody AG | 9,721,000 | — |
March 31, | ||||||
2014 | 2013 | |||||
Warrants | 2,951,450 | 3,309,378 | ||||
Stock options | 4,267,655 | 2,830,712 | ||||
Nonvested shares | 109,747 | 279,889 | ||||
Convertible preferred stock | 333,333 | 333,333 | ||||
Convertible notes | 382,769 | — |
Assets acquired: | ||||
Cash | $ | 514 | ||
Other current assets | 600 | |||
Plant and equipment | 1,340 | |||
In-process research and development | 2,100 | |||
Patented technology | 5,700 | |||
Other finite-lived intangible | 190 | |||
Goodwill | 16,891 | |||
Total assets | 27,335 | |||
Liabilities assumed: | ||||
Accounts payable | 649 | |||
Other current liabilities | 2,889 | |||
Convertible notes | 1,142 | |||
Deferred revenue | 1,890 | |||
Deferred tax liability | 420 | |||
Other long-term liabilities | 522 | |||
Total liabilities | 7,512 | |||
Total purchase price | $ | 19,823 |
Three months ended March 31, | |||||||
2014 | 2013 | ||||||
Pro forma revenues | $ | 926 | $ | 4,858 | |||
Pro forma net loss attributable to common stockholders | $ | (1,280 | ) | $ | (7,057 | ) | |
Basic and diluted net loss attributable to common stockholders per share | $ | (0.02 | ) | $ | (0.25 | ) |
Balance, December 31, 2013 | $ | 2,572 | ||
Goodwill from 4-AB acquisition | 16,891 | |||
Foreign currency translation adjustment | 173 | |||
Balance, March 31, 2014 | $ | 19,636 |
Amortization period (years) | Gross carrying amount | Accumulated amortization | Net carrying amount | ||||||||||
Intellectual Property | 15 years | 4,850 | (40 | ) | $ | 4,810 | |||||||
Trademarks | 4.5 years | 909 | (25 | ) | $ | 884 | |||||||
Other | 3 years | 192 | (9 | ) | $ | 183 | |||||||
In-process research and development | Indefinite | 2,121 | $ | — | $ | 2,121 | |||||||
Total | $ | 8,072 | $ | (74 | ) | $ | 7,998 |
Options | Weighted Average Exercise Price | Weighted Average Remaining Contractual Term (in years) | Aggregate Intrinsic Value | |||||||||
Outstanding at December 31, 2013 | 4,163,100 | $ | 5.72 | |||||||||
Granted | 175,000 | 3.27 | ||||||||||
Exercised | (12,781 | ) | 3.41 | |||||||||
Forfeited | (43,373 | ) | 3.91 | |||||||||
Expired | (14,291 | ) | 12.83 | |||||||||
Outstanding at March 31, 2014 | 4,267,655 | $ | 5.62 | 7.6 | $ | 212,664 | ||||||
Vested or expected to vest at March 31, 2014 | 3,684,933 | $ | 6.02 | 7.3 | $ | 20,291 | ||||||
Exercisable at March 31, 2014 | 2,379,328 | $ | 7.07 | 6.4 | $ | 4,550 |
Nonvested Shares | Weighted Average Grant Date Fair Value | |||||
Outstanding at December 31, 2013 | 147,274 | $ | 3.99 | |||
Granted | — | — | ||||
Vested | (21,319 | ) | 4.65 | |||
Forfeited | (16,208 | ) | 3.40 | |||
Outstanding at March 31, 2014 | 109,747 | 3.95 |
Quarter Ended March 31, | ||||||||
2014 | 2013 | |||||||
Research and development | $ | 254 | $ | 216 | ||||
General and administrative | 700 | 493 | ||||||
Total share-based compensation expense | $ | 954 | $ | 709 |
March 31, 2014 | December 31, 2013 | ||||||
Professional fees | $ | 1,627 | $ | 1,121 | |||
Payroll | 1,549 | 1,635 | |||||
Clinical trials | 826 | 1,021 | |||||
Other | 697 | 438 | |||||
$ | 4,699 | $ | 4,215 |
Balance, December 31, 2013 | $ | 18,799 | ||
Contingent purchase price consideration | 9,721 | |||
Change in fair value of contingent royalty obligation during the quarter | (9,864 | ) | ||
Change in fair value of purchase price consideration during the quarter | 909 | |||
Balance, March 31, 2014 | $ | 19,565 |
Item 2. | Management’s Discussion and Analysis of Financial Condition and Results of Operations |
Research and Development Program | Product | Three Months Ended March 31, | Year Ended December 31, | Prior to 2011 | Total | |||||||||||||||||||||
2014 | 2013 | 2012 | 2011 | |||||||||||||||||||||||
Heat shock protein-based vaccine candidates for cancer | Prophage Series Vaccines | $ | 1,737 | $ | 5,882 | $ | 5,613 | $ | 10,182 | $ | 281,851 | $ | 305,265 | |||||||||||||
Heat shock protein-based vaccine candidates for infectious diseases | HerpV | 1,695 | 6,358 | 4,862 | 734 | 18,354 | 32,003 | |||||||||||||||||||
Vaccine adjuvant * | QS-21 Stimulon | 81 | 753 | 85 | 94 | 12,404 | 13,417 | |||||||||||||||||||
Checkpoint Modulator Antibody Program** | 956 | — | — | — | — | 956 | ||||||||||||||||||||
Other research and development programs | 4 | 12 | 4 | 13 | 33,527 | 33,560 | ||||||||||||||||||||
Total research and development expenses | $ | 4,473 | $ | 13,005 | $ | 10,564 | $ | 11,023 | $ | 346,136 | $ | 385,201 |
Item 3. | Quantitative and Qualitative Disclosures About Market Risk |
Item 4. | Controls and Procedures |
Item 1A. | Risk Factors |
• | the scope, progress, results and costs of researching and developing our future product candidates, and conducting preclinical and clinical trials; |
• | the timing of, and the costs involved in, obtaining regulatory approvals for our and our licensees' product candidates; |
• | our ability to establish and maintain strategic partnerships, licensing or other arrangements and the financial terms of such agreements; |
• | the costs involved in preparing, filing, prosecuting, maintaining, defending and enforcing our intellectual property rights; |
• | the costs associated with any successful commercial operations; and |
• | incur certain additional indebtedness; |
• | make certain investments; |
• | pay dividends other than dividends required pursuant to pre-existing commitments; |
• | make payments on subordinated indebtedness other than regularly scheduled payments of interest; |
• | create certain liens; |
• | consolidate, merge, sell or otherwise dispose of our assets; and/or |
• | change our line of business. |
• | covenant defaults; |
• | other non-payment defaults; |
• | bankruptcy; |
• | certain penalties and judgments from a governmental authority; |
• | cross-defaults in respect of indebtedness over $50,000; and |
• | insolvency defaults. |
• | commercialize their product candidates sooner than we commercialize our own; |
• | develop safer or more effective therapeutic drugs or preventive vaccines and other therapeutic products; |
• | implement more effective approaches to sales and marketing and capture some of our potential market share; |
• | establish superior intellectual property positions; |
• | discover technologies that may result in medical insights or breakthroughs, which render our drugs or vaccines obsolete, possibly before they generate any revenue; or |
• | adversely affect our ability to recruit patients for our clinical trials. |
• | difficulty or inability to secure financing to fund development activities for such development, acquisition or in-licensed products or technologies; |
• | incurrence of substantial debt or dilutive issuances of securities to pay for development, acquisition or in-licensing of new products; |
• | disruption of our business and diversion of our management's time and attention; |
• | higher than expected development, acquisition or in-license and integration costs; |
• | exposure to unknown liabilities; |
• | difficulty and cost in combining the operations and personnel of any acquired businesses with our operations and personnel; |
• | inability to retain key employees of any acquired businesses; |
• | difficulty in managing multiple product development programs; and |
• | inability to successfully develop new products or clinical failure. |
• | adversely affect the marketing of any products we or our licensees or collaborators develop; |
• | impose significant additional costs on us or our licensees or collaborators; |
• | diminish any competitive advantages that we or our licensees or collaborators may attain; |
• | limit our ability to receive royalties and generate revenue and profits; and |
• | adversely affect our business prospects and ability to obtain financing. |
• | we or our collaborators may initiate litigation or other proceedings against third parties to enforce our patent rights; |
• | third parties may initiate litigation or other proceedings seeking to invalidate patents owned by or licensed to us or to obtain a declaratory judgment that their product or technology does not infringe our patents or patents licensed to us; |
• | third parties may initiate opposition proceedings, post-grant review, inter partes review, or reexamination proceedings challenging the validity or scope of our patent rights, requiring us or our collaborators and/or licensors to participate in such proceedings to defend the validity and scope of our patents; |
• | there may be a challenge or dispute regarding inventorship or ownership of patents currently identified as being owned by or licensed to us; |
• | the USPTO may initiate an interference or derivation proceeding between patents or patent applications owned by or licensed to us and those of our competitors, requiring us or our collaborators and/or licensors to participate in an interference or derivation proceeding to determine the priority of invention, which could jeopardize our patent rights; or |
• | third parties may seek approval to market biosimilar versions of our future approved products prior to expiration of relevant patents owned by or licensed to us, requiring us to defend our patents, including by filing lawsuits alleging patent infringement. |
• | others may be able to develop a platform that is similar to, or better than, ours in a way that is not covered by the claims of our patents; |
• | others may be able to make compounds that are similar to our product candidates but that are not covered by the claims of our patents; |
• | we might not have been the first to make the inventions covered by patents or pending patent applications; |
• | we might not have been the first to file patent applications for these inventions; |
• | any patents that we obtain may not provide us with any competitive advantages or may ultimately be found invalid or unenforceable; or |
• | we may not develop additional proprietary technologies that are patentable. |
• | we or our collaborators may initiate litigation or other proceedings against third parties seeking to invalidate the patents held by those third parties or to obtain a judgment that our products or processes do not infringe those third parties’ patents; |
• | if our competitors file patent applications that claim technology also claimed by us or our licensors, we or our licensors may be required to participate in interference, derivation or other proceedings to determine the priority of invention, which could jeopardize our patent rights and potentially provide a third party with a dominant patent position; |
• | if third parties initiate litigation claiming that our processes or products infringe their patent or other intellectual property rights, we and our collaborators will need to defend against such proceedings; and |
• | if a license to necessary technology is terminated, the licensor may initiate litigation claiming that our processes or products infringe or misappropriate their patent or other intellectual property rights and/or that we breached our obligations under the license agreement, and we and our collaborators would need to defend against such proceedings. |
• | decreased demand for our product candidates; |
• | regulatory investigations; |
• | injury to our reputation; |
• | withdrawal of clinical trial volunteers; |
• | costs of related litigation; and |
• | substantial monetary awards to plaintiffs. |
• | continuing operating losses, which we expect over the next several years as we continue our development activities; |
• | announcements of decisions made by public officials; |
• | results of our preclinical studies and clinical trials; |
• | announcements of new collaboration agreements with strategic partners or developments by our existing collaborative partners; |
• | announcements of technological innovations, new commercial products, failures of products, or progress toward commercialization by our competitors or peers; |
• | failure to realize the anticipated benefits of the Acquisition; |
• | developments concerning proprietary rights, including patent and litigation matters; |
• | publicity regarding actual or potential results with respect to product candidates under development; |
• | quarterly fluctuations in our financial results; |
• | variations in the level of expenses related to any of our product candidates or clinical development programs; |
• | additions or departures of key management or scientific personnel; |
• | conditions or trends in the biotechnology and biopharmaceutical industries; |
• | other events or factors, including those resulting from war, incidents of terrorism, natural disasters or responses to these events; |
• | changes in accounting principles; |
• | general economic and market conditions and other factors that may be unrelated to our operating performance or the operating performance of our competitors, including changes in market valuations of similar companies; and |
• | sales of common stock by us or our stockholders in the future, as well as the overall trading volume of our common stock. |
Item 6. | Exhibits |
Date: | May 9, 2014 | AGENUS INC. |
/s/ CHRISTINE M. KLASKIN | ||
Christine M. Klaskin VP, Finance, Principal Financial Officer, Principal Accounting Officer |
Exhibit No. | Description | |
3.1 | Amended and Restated Certificate of Incorporation of Antigenics Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 0-29089) filed on June 10, 2002 and incorporated herein by reference. | |
3.1.1 | Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Antigenics Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 0-29089) filed on June 11, 2007 and incorporated herein by reference. | |
3.1.2 | Certificate of Ownership and Merger changing the name of the corporation to Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 0-29089) filed on January 6, 2011 and incorporated herein by reference. | |
3.1.3 | Certificate of Second Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 0-29089) filed on September 30, 2011 and incorporated herein by reference. | |
3.1.4 | Certificate of Third Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1.4 to our Quarterly Report on Form 10-Q (File No. 0-29089) for the quarter ended June 30, 2012 and incorporated herein by reference. | |
3.1.5 | Certificate of Fourth Amendment to the Amended and Restated Certificate of Incorporation of Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 0-29089) filed on April 25, 2014 and incorporated herein by reference. | |
3.2 | Fifth Amended and Restated By-laws of Agenus Inc. Filed as Exhibit 3.2 to our Current Report on Form 8-K (File No. 0-29089) filed on January 6, 2011 and incorporated herein by reference. | |
3.3 | Certificate of Designation, Preferences and Rights of the Series A Convertible Preferred Stock of Agenus Inc. filed with the Secretary of State of the State of Delaware on September 24, 2003. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 0-29089) filed on September 25, 2003 and incorporated herein by reference. | |
3.4 | Certificate of Designations, Preferences and Rights of the Class B Convertible Preferred Stock of Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 0-29089) filed on September 5, 2007 and incorporated herein by reference. | |
3.5 | Certificate of Designations, Preferences and Rights of the Series A-1 Convertible Preferred Stock of Agenus Inc. Filed as Exhibit 3.1 to our Current Report on Form 8-K (File No. 0-29089) filed on February 5, 2013 and incorporated herein by reference. | |
10.1 (1) | Collaborative Research and Development Agreement dated May 23, 2011 between 4-Antibody AG and Ludwig Institute for Cancer Research LTD. Filed herewith. | |
10.2 (1) | Collaborative Research and Development and Commercial Rights Agreement dated December 21, 2012 among 4-Antibody AG, Ludwig Institute for Cancer Research LTD and Recepta Biopharma S.A. | |
10.3 | Sublease Agreement between 4-Antibody AG, and Technologie Park Basel AG dated January 28, 2011. Filed herewith. | |
10.3.1 | Addendum to the Lease Agreement from January 28, 2011 between 4-Antibody AG and Technologie Park Basel AG dated March 31, 2012. Filed herewith. | |
10.3.2 | Addendum No. 4 to the Lease Agreement from January 28, 2011 between 4-Antibody AG and Technologie Park Basel AG dated June 2013. Filed herewith. | |
10.3.3 | Addendum No. 5 to the Lease Agreement from January 28, 2011 between 4-Antibody AG and Technologie Park Basel AG dated April 30, 2013. Filed herewith. | |
10.3.4 | Addendum No. 6 to the Lease Agreement from January 28, 2011 between 4-Antibody AG and Technologie Park Basel AG dated July 31, 2013. Filed herewith. | |
10.4 | Commercial Lease Agreement No. 01/2003 between BioCentiv GmbH and 4-Antibody AG dated December 1, 2002, Filed herewith. | |
10.4.1 | 20th Addendum to Commercial Lease Agreement No. 01/2003 between BioCentiv GmbH and 4-Antibody AG dated November 1, 2010. Filed herewith. | |
10.4.2 | 28th Addendum to Commercial Lease Agreement No. 01/2003 between BioCentiv GmbH and 4-Antibody AG dated July 2, 2013. Filed herewith. | |
10.4.3 | 29th Addendum to Commercial Lease Agreement No. 01/2003 dated between BioCentiv GmbH and 4-Antibody AG August 9, 2013. Filed herewith. | |
31.1 | Certification of Principal Executive Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as amended. Filed herewith. | |
31.2 | Certification of Principal Financial Officer pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as amended. Filed herewith. | |
32.1(2) | Certification of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. Submitted herewith. | |
101.INS | XBRL Instance Document(3) | |
101.SCH | XBRL Taxonomy Extension Schema Document(3) | |
101.CAL | XBRL Calculation Linkbase Document(3) | |
101.DEF | XBRL Taxonomy Extension Definition Linkbase Document(3) | |
101.LAB | XBRL Label Linkbase Document(3) | |
101.PRE | XBRL Taxonomy Presentation Linkbase Document(3) |
(1) | Certain confidential material contained in the document has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 405 of the Securities Act or Rule 24b-2 of the Securities Exchange Act. |
(2) | This certification accompanies the Quarterly Report on Form 10-Q and is not filed as part of it. |
(3) | XBRL (Extensible Business Reporting Language) information is furnished and not filed or a part of a registration statement or prospectus for purposes of Section 11 or 12 of the Securities Act of 1933, as amended, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise is not subject to liability under these sections. |
1 | DEFINITIONS |
1.01 | “AFFILIATE” shall mean any corporation or business entity of which LICR or 4AB owns directly or indirectly, fifty percent (50%) or more of the assets or outstanding stock, or any corporation which LICR or 4AB directly or indirectly controls, or any parent corporation which owns, directly or indirectly, fifty percent (50%) or more of the assets or outstanding stock of LICR or 4AB or directly or indirectly controls LICR or 4AB. |
1.02 | “ANTIBODY” or “ANTIBODIES” shall mean an immunoglobulin (Ig) molecule, generally comprising four polypeptide chains, two heavy (H) chains and two light (L) chains, or an equivalent Ig homologue thereof (e.g., a camelid nanobody, which comprises only a heavy chain, single domain antibodies (dAbs) which can be either heavy or light chain); including full length functional mutants, variants, or derivatives thereof (including but not limited to chimeric, veneered, humanized antibodies, fully human equivalents (e.g. created by guided selection or similar technology), which retain the essential epitope binding features of an Ig molecule, and including dual specific, bispecific, multispecific, and dual variable domain immunoglobulins; Immunoglobulin molecules can be of any class (e.g., IgG, IgE, IgM, IgD, IgA, and IgY), or subclass (e.g., IgG1, IgG2, IgG3, IgG4, IgA1, and IgA2) and allotype. Also included within the meaning of the term Antibody is any ANTIBODY FRAGMENT. |
1.03 | “ANTIBODY FRAGMENT” means a molecule comprising at least one polypeptide chain that is not full length, including (i) a Fab fragment, which is a monovalent fragment consisting of the variable light (VL), variable heavy (VH), constant light (CL) and constant heavy 1 (CH1) domains; (ii) a F(ab')2 fragment, which is a bivalent fragment comprising two Fab fragments linked by a disulfide bridge at the hinge region; (iii) a heavy chain portion of a Fab (Fd) fragment, which consists of the VH and CH1 domains; (iv) a variable fragment (Fv) fragment, which consists of the VL and VH domains of a single arm of an antibody, (v) a domain antibody (dAb) fragment, which comprises a single variable domain; (vi) an isolated complementarity determining region (CDR); (vii) a Single Chain Fv Fragment; (viii) a diabody, which is a bivalent, bispecific antibody in which VH and VL domains are expressed on a single polypeptide chain, but using a linker that is too short to allow for pairing between the two domains on the same chain, thereby forcing the domains to pair with the complementarity domains of another chain and creating two antigen binding sites; and (ix) a linear antibody, which comprises a pair of tandem Fv segments (VH-CH1- VH-CH1) which, together with complementarity light chain polypeptides, form a pair of antigen binding regions; and (x) other non-full length portions of heavy and/or light chains, or mutants, variants, or derivatives thereof, alone or in any combination. |
1.04 | “ARBITRATION” shall have the meaning ascribed to it in Section 13.02C. |
1.05 | “ARBITRATORS” shall have the meaning ascribed to it in Section 13.02C. |
1.06 | “BACKGROUND INTELLECTUAL PROPERTY” shall mean any INTELLECTUAL PROPERTY, owned or controlled by a party, and which is provided to the other party for use in the PROGRAM, and/or which is necessary or useful for performing the PROGRAM. |
1.07 | “CHANGE OF CONTROL” shall mean a situation in which more than fifty percent (50%) of the ownership interest in a party is acquired by a third party. |
1.08 | “CLINICAL TRIAL” shall mean any clinical studies, research protocols, or medical research, wherein a PRODUCT is evaluated as a potential diagnostic or therapeutic in a human patient or set of patients and the PROTOCOLS of which LICR starts to execute, after the EFFECTIVE DATE of this Agreement. |
1.09 | “CUMULATIVE COSTS” shall mean the identified and documented direct costs incurred by each party directly related to the research and development of each PRODUCT and direct costs associated with PROGRAM INTELLECTUAL PROPERTY filing, prosecution, and maintenance covering each PRODUCT. CUMULATIVE COSTS exclude costs not directly related to the development of a PRODUCT and the PROGRAM INTELLECTUAL PROPERTY claiming such PRODUCT, and shall stop incurring for a PRODUCT and the PROGRAM INTELLECTUAL PROPERTY claiming such PRODUCT upon the earlier of (i) its licensing to a third party; (ii) upon its first regulatory approval as obtained by 4-AB; (iii) the transfer or assignment of rights to a PRODUCT or PROGRAM INTELLECTUAL PROPERTY claiming such PRODUCT obtained under or as a result of this Agreement to a third party. CUMULATIVE COSTS for each such PRODUCT may be deducted from anything of value received for rights in a PRODUCT and the PROGRAM INTELLECTUAL PROPERTY claiming such PRODUCT, whether cash or anything received in lieu of cash for such rights. CUMULATIVE COSTS shall be disclosed annually to the JOINT MANAGEMENT |
1.10 | “DISPUTE” shall have the meaning ascribed to it in Section 13.02A. |
1.11 | “EFFECTIVE DATE” shall have the meaning ascribed to such term in the introductory paragraph of this Agreement. |
1.13 | “FIELD” shall mean the diagnosis, prevention and treatment of animal and human diseases or conditions. |
1.17 | “INTELLECTUAL PROPERTY” shall mean the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply and applications for registration under a statute in respect of these or like rights and rights to protect trade secrets and know-how, throughout the world for the full period of the rights and all renewals and extensions. |
1.18 | “JOINT MANAGEMENT COMMITTEE” shall mean the committee established pursuant to Section 3 herein. |
1.19 | “LICR” shall have the meaning ascribed to such term in the introductory paragraph of this Agreement. |
1.20 | “4AB” shall have the meaning ascribed to it in the introductory paragraph of this Agreement. |
1.21 | “NY LAB” shall mean LICR’s laboratory at Memorial Sloan-Kettering Cancer Center, 1275 York Avenue, Box 32, New York, New York 10021-6007, USA. The research at the NY LAB is governed by an interinstitutional agreement between LICR and Memorial Sloan-Kettering Cancer Center (MSKCC). A redacted version of that agreement is attached in Appendix 6 (“MSKCC AGREEMENT”). |
1.22 | “PROCEEDS” shall mean all forms of cash consideration such as but not limited to license fees, royalties, milestone fees and sublicense fees and all forms of non-cash consideration received from a licensee or similar |
1.23 | “PRODUCT(S)” shall mean any ANTIBODY or ANTIBODIES or any other product, service, process or method of using such ANTIBODY or ANTIBODIES which recognizes a TARGET. |
1.24 | “PROGRAM” as used herein shall mean the collaboration between LICR and 4AB to carry out the research and clinical development program set out in Appendix 1. The PROGRAM will cover and include all monoclonal ANTIBODIES recognizing a TARGET, generated by 4AB during the INITIAL TERM or any EXTENSION TERM of the research program as specified Appendix 1. |
1.25 | “PROGRAM INTELLECTUAL PROPERTY” shall mean all ANTIBODIES results, research data, know-how, materials, compounds and inventions which are created solely by the LICR or 4AB during the course of and as a direct result of carrying out the PROGRAM. |
1.26 | “PROGRAM P A TENT(S)” shall mean all patents issued and patent applications filed pertaining to the PROGRAM INTELLECTUAL PROPERTY during the TERM, and any reissues, re-examinations, continuations, claims of U.S. and foreign continuations-in-part which are directed to subject matter specifically described in the U.S. and foreign patent applications, divisions, renewals, or renewals claiming priority to any such patent or patent application and including any extensions, patents of addition, and any extension of the term of the patent or supplementary protection certificate or other means by which greater effective patent protection is extended. |
1.27 | "PROTOCOL" shall mean a document or set of documents that describes for example and without limitation the objective(s), design, methodology, statistical considerations, and organization of one or more CLINICAL TRIAL(s). |
1.28 | “RULES” shall have the meaning ascribed to it in Section 13.02C. |
1.29 | “TARGETS” shall mean the cell surface proteins against which ANTIBODIES shall be generated and evaluated within the PROGRAM, which shall be selected by the JOINT MANAGEMENT COMMITTEE. TARGETS shall be identified in Appendix 2, which shall be updated from time to time as agreed by the JOINT MANAGEMENT COMMITTEE. |
1.30 | “TERM” shall have the meaning ascribed to it in Section 9.01. |
1.31 | “TERRITORY” shall mean all countries worldwide, their territories and possessions. |
2.01 | LICR and 4AB shall carry out the PROGRAM in accordance with the research and clinical development program set out in Appendix 1. LICR and 4AB shall perform the PROGRAM in accordance with the timelines set forth therein, as reasonably practicable, and shall perform the PROGRAM using the highest professional standards of workmanship and care in so doing. LICR and 4AB shall not deviate materially from the PROGRAM without the prior written consent of the other party. |
2.02 | The PROGRAM shall commence on the EFFECTIVE DATE and shall continue for the INITIAL TERM; provided, however, that with the consent of both LICR and 4AB, which consent shall not be unreasonably withheld, the PROGRAM may be extended for an additional period of up to three (3) years beyond the INITIAL TERM (the “EXTENSION TERM”). Further extensions may be mutually agreed upon by the parties. |
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2.03 | The PROGRAM may be modified only by mutual written consent of the parties. |
2.04 | Any CLINICAL TRIAL conducted as part of the PROGRAM shall comply with the following provisions: |
2.05 | Subject to any further written agreement between the parties, each party shall be responsible for its own costs and expenses incurred in performing its research and development activities as described the PROGRAM. |
3.01 | The parties shall establish and maintain a JOINT MANAGEMENT COMMITTEE to monitor the conduct, management, supervision and progress of the PROGRAM so as to provide the best chance of a successful outcome for the research and development of PRODUCT(S). The JOINT MANAGEMENT COMMITTEE responsibilities shall include: |
3.02 | The JOINT MANAGEMENT COMMITTEE shall consist of representatives from 4AB and LICR, provided that the number of representatives of each of them will at all times be and remain equal. The parties will have the right to change their representatives from time to time by notifying one another to this effect. 4AB and LICR shall each appoint a project coordinator from one of its representatives who shall report to the JOINT MANAGEMENT COMMITTEE as required. |
3.03 | Each member of the JOINT MANAGEMENT COMMITTEE may appoint an alternate and references in this paragraph and in this Section to “members” and “representatives” of the JOINT MANAGEMENT COMMITTEE shall include references to alternates of such members and representatives. An alternate will only act if the member is not available. |
3.04 | The JOINT MANAGEMENT COMMITTEE shall meet, at least once per calendar quarter, in person, via teleconferences, or via videoconference and shall hold such additional meetings as its members think fit. |
3.05 | Unless otherwise agreed by the parties, 4AB shall appoint a Chairperson of the JOINT MANAGEMENT COMMITTEE who shall be responsible for preparing the minutes of JOINT MANAGEMENT COMMITTEE meetings as well as any related correspondence. |
3.06 | No business shall be transacted at any meeting of the JOINT MANAGEMENT COMMITTEE unless a quorum of members is present at the time when the meeting proceeds to business. A quorum shall be at least four (4) members present in person or by their alternate, at least two (2) of whom must be representatives appointed by 4AB and at least two (2) of whom must be representatives appointed by LICR. |
3.07 | All matters and all formal resolutions of the JOINT MANAGEMENT COMMITTEE shall require the approval of both parties acting through their respective JOINT MANAGEMENT COMMITTEE members. In the event of any disagreement amongst the members of the JOINT MANAGEMENT COMMITTEE with respect to any aspect of the PROGRAM, the matter of disagreement shall be resolved in accordance with the dispute resolution process set out in Section 13. |
3.08 | The first representatives of the JOINT MANAGEMENT COMMITTEE nominated by 4AB and LICR shall be as set forth in Appendix 3 hereto. |
3.09 | The JOINT MANAGEMENT COMMITTEE shall ensure that care is taken to properly record and document all research and development activities performed during the PROGRAM. Each party shall promptly notify the JOINT MANAGEMENT COMMITTEE in writing of the potential creation or existence of any PROGRAM INTELLECTUAL PROPERTY. |
4.01 | 4AB shall have the sole right to negotiate with prospective licensee’s exclusive, sub- licensable, worldwide licenses or options, under the PROGRAM INTELLECTUAL PROPERTY and PROGRAM P A TENTS to develop and commercialize PRODUCTS, in accordance with the terms of this Agreement. |
4.02 | 4AB shall keep LICR informed in writing on a regular basis concerning its progress in securing the exploitation of the PRODUCTS and PROGRAM INTELLECTUAL PROPERTY and the status of negotiations with prospective licensees. 4AB shall provide LICR with copies of draft term sheets and license proposals being exchanged with prospective licensees. |
4.03 | LICR shall provide such assistance as is reasonably necessary for 4AB to carry out its rights and responsibilities under this section 4. |
4.04 | 4AB shall not grant any license or option under PROGRAM INTELLECTUAL PROPERTY and PROGRAM PATENTS to develop and commercialize PRODUCTS without the written consent of LICR, which consent shall not be unreasonably withheld or delayed. |
4.05 | 4AB shall provide LICR with copies of all executed license agreement and annual diligence reports of licensee’s efforts to develop and commercialize licensed PRODUCTS and PROGRAM PATENTS |
4.06 | LICR on behalf of itself and its academic collaborators and Memorial Sloan-Kettering Cancer Center and its academic collaborators retain an irrevocable right to practice only for their educational and non-commercial research (including clinical research involving patient care) purposes the inventions claimed under PROGRAM INTELLECTUAL PROPERTY and PROGRAM PATENTS, where any clinical trial using an ANTIBODY generated and developed through the PROGRAM will be conducted under a JOINT MANAGEMENT COMMITTEE agreed PROTOCOL. |
4.07 | 4AB acknowledges that LICR, after publication or presentation of scientific data related to the PROGRAM, may have obligations to share materials, including ANTIBODIES, with the academic scientific community. In such cases the ANTIBODIES shall be made available to other academic researchers, solely for non- commercial research and educational purposes, pursuant to a material transfer agreement in the form set out in the template agreement in Appendix 5, with any proposed changes thereto subject to the prior review and written approval of 4AB, which shall not be unreasonably withheld. |
4.08 | The parties acknowledge that the United States Government, as a matter of statutory right under 35 USC Sections 200-212, may hold a non-exclusive license and certain other rights under PROGRAM PATENTS made as a consequence of the use of funding supplied by the United States Government for the PROGRAM. In the event the United States Government has such rights or in the future is found to have such rights with respect to any license contemplated under this Agreement, even if termed an “exclusive” license, shall be understood to be subject to the rights of the United States Government, without any effect on the parties’ remaining obligation, as set forth in this Agreement. |
4.09 | No rights or licenses (either express or implied) to any intellectual property rights or any proprietary technical information of LICR or 4AB are granted by this Agreement, except as expressly provided in this Section 4 or the following Section 5. |
5.01 | All rights, title and interest in and to any BACKGROUND INTELLECTUAL PROPERTY shall remain with the party owning such BACKGROUND INTELLECTUAL PROPERTY. Each party grants the other party a royalty free, non- exclusive license to use its BACKGROUND INTELLECTUAL PROPERTY only for the purpose of carrying out the PROGRAM. Neither party may grant any sublicense to use the other party’s BACKGROUND INTELLECTUAL PROPERTY to any third party without the other party’s written agreement. |
5.02 | PROGRAM INTELLECTUAL PROPERTY and PROGRAM PATENTS shall be jointly owned in equal shares by 4AB and LICR, subject to LICR’s obligations under the MSKCC AGREEMENT. |
5.03 | During the TERM and EXTENSION TERM, the JOINT MANAGEMENT COMMITTEE shall assess the PROGRAM INTELLECTUAL PROPERTY with regard to any inventions that could be the subject of a patent application, and where considered appropriate 4AB will file patent application(s) in those countries agreed to by the parties. All such patent applications will become PROGRAM PATENTS as part of the PROGRAM INTELLECTUAL PROPERTY. The inventorship of all such PROGRAM PATENTS shall be determined under US patent law. |
5.04 | During the INITIAL TERM and any EXTENSION TERM, 4AB will be responsible for managing the filing and prosecutions of any patents or applications for patents included in the PROGRAM PATENTS at 4AB’s cost. LICR and 4AB shall consult regularly in the preparation, filing, prosecution and maintenance of any patents or applications for patents included in the PROGRAM PATENTS, and share copies of all material correspondence and filings (and any other information requested by a party) related thereto. 4AB may, in its sole discretion, notify LICR that it does not desire continued filing, prosecution or maintenance of any PROGRAM PATENT upon which timely notification LICR shall have the option to continue the prosecution or maintenance of the PROGRAM PATENT at its sole expense. If LICR does not provide written notice of such intent within 30 days of such notice from 4AB, then 4AB shall have no further responsibility for the costs thereof, and such patent shall no longer be deemed a PROGRAM PATENT. |
5.05 | 4AB and LICR shall reasonably discuss the need to enforce and/or defend the PROGRAM PATENTS and PROGRAM INTELLECTUAL PROPERTY against any third party that infringes or wrongfully uses the same in any manner, and only after 4AB and LICR have agreed a course of action shall any action be initiated by either party. |
5.06 | The parties hereto shall cooperate with each other in gaining patent term restoration or similar extensions or continuations of rights in the TERRITORY where applicable to PROGRAM PATENT(S). |
6.01 | All oral, written, electronic or other communications and other information disclosed or provided by the parties including any and all analyses or conclusions drawn or derived therefrom regarding any PROGRAM INTELLECTUAL PROPERTY or the PROGRAM, or either party’s assays, processes, formulations, analytical procedures, clinical procedures, methodologies, products, samples, material, cells and specimens or functions (“INFORMATION”) shall be received and used solely for the purposes set forth in this Agreement and subject to the following terms and conditions: |
A. | Each party shall keep the other’s INFORMATION in confidence for the period commencing on the EFFECTIVE DATE and ending five (5) years after the end of the TERM or EXTENSION TERM and will not, without the disclosing party’s prior written consent, disclose any INFORMATION to any person or entity, except those of the receiving party’s officers, employees, consultants and AFFILIATES who require said INFORMATION to perform their obligations under this Agreement. Each of the party’s officers, employees, consultants and AFFILIATES to whom INFORMATION is to be disclosed shall be advised by the receiving party of, and bound by the terms of this Agreement. |
B. | The obligations of confidentiality and non-use set forth herein shall not apply to any INFORMATION which is: |
i | known to the receiving party prior to receipt from the disclosing party, other than through prior disclosure by the disclosing party, as evidenced by the receiving party’s written records; |
ii | available to the general public or which hereafter becomes available to the general public otherwise than through a breach of this Agreement; |
iii | obtained by the receiving party from a third party with a valid right to disclose such INFORMATION, provided that said third party is not under a confidentially obligation to the disclosing party; or |
iv | independently developed by employees, agents, consultants or AFFILIATES of the receiving party who had no knowledge of or access to the disclosing party’s INFORMATION as evidenced by the receiving party’s written records. |
C. | The parties will keep the terms of this Agreement and to the extent necessary or desirable to protect any INTELLECTUAL PROPERTY arising in connection with the PROGRAM, the PROGRAM and PROGRAM INTELLECTUAL PROPERTY, confidential except as otherwise agreed. |
D. | The parties may, under appropriate obligations of confidentiality, disclose the PROGRAM INTELLECTUAL PROPERTY and the terms of this Agreement to its advisers and consultants, and to its potential and actual collaborators, investors, shareholders and licensees. |
E. | Except as is set forth in this Agreement, all INFORMATION shall remain the proprietary property of the disclosing party. |
F. | If, in the opinion of the receiving party’s counsel, any of the disclosing party’s INFORMATION is required to be disclosed pursuant to law, regulation, or court order, the receiving party shall give the disclosing party prompt, written notice in order to allow the disclosing party to take whatever action it reasonably deems necessary to protect its INFORMATION. In the event that no protective order or other remedy is obtained, or the disclosing party waives compliance with the terms of this Section 6, receiving party will furnish only that portion of the INFORMATION which receiving party is advised by counsel is legally required. |
G. | Except as is set forth in this Agreement, no party shall acquire any license or other intellectual property interest in any INFORMATION disclosed to it by the other party. Further, except as is set forth in this Agreement, disclosure of INFORMATION shall not result in any obligation on the part of the discloser to grant the receiving party any right in or to such INFORMATION. |
H. | Upon expiration or termination of this Agreement, each party shall immediately return to each disclosing party all INFORMATION which it has received from the disclosing party, all notes which may have been made regarding said information, and all copies thereof. The receiving party may retain one copy of each item of INFORMATION, and notes regarding the same, provided that said copy shall be retained and used solely for the purposes of ongoing compliance with this Agreement and shall be held in the receiving party’s confidential files. For purposes of this paragraph, LICR and 4AB shall be the disclosing parties with respect to any PROGRAM INTELLECTUAL PROPERTY. |
7.01 | PROCEEDS received by 4AB shall be first used to reimburse each party’s CUMULATIVE COSTS incurred in respect to the licensed PRODUCT and PROGRAM PATENTS from which the PROCEEDS are derived. |
7.02 | The remaining PROCEEDS (“NET PROCEEDS”) shall be shared [**] between LICR and 4AB. |
7.03 | 4AB shall provide LICR its share of CUMULATIVE COSTS and NET PROCEEDS within thirty (30) days of its receipt of any PROCEEDS, together with a report disclosing detail of the PROCEEDS received and the calculation of CUMULATIVE COSTS and NET PROCEEDS distributed to each party. |
8.01 | All payments to be made under this Agreement to LICR shall be made within sixty (60) days of receipt of a tax invoice from LICR and shall be made in US Dollars (USD) by bank wire transfer to LICR’s bank account as follows: |
8.02 | If any payment is not made on or before the due date specified herein, 4AB will pay interest on the outstanding amount until paid in full if requested to do so by LICR. Interest will be charged at a rate equal to the "Intended Federal Funds Rate" or equivalent [**] as specified by the Federal Open Market Committee and currently published by the US Federal Reserve Board at www.federalreserve.gov/fomc/fundsrate.htm. |
8.03 | During the TERM and for a period of five (5) years thereafter, 4AB shall keep complete and accurate records pertaining to the development, manufacture, use, sale or other disposition of the PRODUCTS, in sufficient detail to permit LICR to confirm the accuracy of all payments due hereunder and compliance with all responsibilities and obligations. LICR shall have the right to cause an independent, certified public accountant to audit such records. Such audits may be exercised once each calendar year and only with respect to the then current calendar year and the immediately prior two calendar years, upon reasonable prior written notice to 4AB and during normal business hours, and LICR shall bear the full cost of such audit, unless such inspection leads to the discovery of a discrepancy of greater than the greater of [**] percent ([**] %) in reporting to LICR's detriment, or of $[**], for any calendar year. In such instance, 4AB agrees to pay the reasonable cost of such audit plus interest as stipulated in Section 8.02 from and after the date the audit report is delivered to4AB. The terms of this Section 8.03 shall survive any termination or expiration of this Agreement for a period of five (5) years. |
9.01 | This Agreement shall be effective as of the EFFECTIVE DATE and unless terminated earlier in accordance with this Agreement, shall remain in force until the expiration of the INITIAL TERM or EXTENSION TERM (the “TERM”). |
9.02 | Each party shall have the right to terminate this Agreement upon written notice to the other party if, after receiving written notice of a material breach of this Agreement, the breaching party fails to cure such breach within sixty (60) days from the date of such notice and such termination is affirmed by an arbitral tribunal pursuant to Section 13. |
9.03 | Either party may terminate this Agreement with notice if the other party makes an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party, or has a receiver or trustee appointed for all or substantially all of its property; provided that in the case of an involuntary bankruptcy proceeding such right to terminate shall only become effective if the party consents to the involuntary bankruptcy or such proceeding is not dismissed within ninety (90) calendar days after the filing thereof. |
9.04 | Sections 4 (Commercialization), 5 (Intellectual Property), 6 (Confidentiality), 7 (Consideration), 8 (Payments), 10 (Rights Upon Termination), 12 (Indemnity), 13 (Dispute Resolution), 14 (Public Announcements and Publications), 16 (Survival and Waivers) and 17 (Governing Law) shall survive the expiry or termination of this Agreement. |
10.01 | If this Agreement is terminated by 4AB pursuant to Section 9.02 or 9.03, then on the effective date of said termination, 4AB’s and LICR’s obligations and rights under this Agreement shall terminate. |
10.02 | If this Agreement is terminated by LICR pursuant to Section 9.02 or 9.03, then on the effective date of said termination, 4AB’s and LICR’s obligations and rights under this Agreement shall terminate. Notwithstanding the preceding sentence, LICR shall retain a fully paid up, royalty free, perpetual, worldwide, exclusive license under any PROGRAM PATENT(S). However, notwithstanding such termination, termination of this Agreement shall not affect any already licensed PRODUCTS and PROGRAM PATENT(S). |
10.03 | Notwithstanding termination of this Agreement by either party, each party shall remain liable to the other with respect to any obligations which arise prior to the effective date of termination. |
A. | it is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation, and has full corporate or other power and authority to enter into this Agreement and to carry out the provisions hereof; |
B. | it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the person or persons executing this Agreement on its behalf have been duly authorized to do so by all requisite corporate or partnership action; |
C. | (i) this Agreement is legally binding upon it and enforceable in accordance with its terms, and (ii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement, instrument or understanding, to which it is a party or by which it may be bound, or violate any material law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it; and |
D. | it has not, and will not during the TERM OR EXTENSION TERM, grant any right to any third party that would conflict with the rights granted to the other party hereunder. |
12.01 | LICR shall indemnify, hold harmless and defend 4AB and its directors, officers, agents and employees from and against any loss, costs (including reasonable attorney’s fees), damages, injury, liability, claims, demands, or causes of action (“LIABILITY”) arising out of or resulting from (a) personal injury or death in connection with LICR’s activities hereunder; (b) LICR’s use, handling, storage or disposal of any materials or information; (c) any negligent act or omission or willful misconduct of LICR or LICR’s employees or agents; (d) any act or omission of LICR as an employer; or (e) any debt or other duty of any kind or amount owed to a LICR subcontractor, except to the extent that any such LIABILITY is incurred as a result of the gross negligence or willful misconduct of 4AB. |
12.02 | 4AB shall indemnify, hold harmless and defend LICR and Memorial Sloan-Kettering Cancer Center and their directors, officers, agents and employees, from and against any LIABILITY arising out of or resulting from (a) personal injury or death in connection with 4AB’s activities hereunder; (b) 4AB’s use, handling, storage or disposal of any materials or information; (c) any negligent act or omission or willful misconduct of 4AB or 4AB’s employees, or agents; (d) any act or omission of 4AB as an employer; (e) any debt or other duty of any kind or amount owed to a 4AB subcontractor; or (f) arising out of this Agreement, except to the extent that any such LIABILITY is incurred as a result of the gross negligence or willful misconduct of any such indemnitee. This indemnification shall also include, but not be limited to, any product liability. |
12.03 | 4AB shall maintain insurance with limits, which are consistent with industry standards to cover 4AB’s activities in connection with this Agreement. |
12.04 | Except as otherwise expressly set forth in this Agreement, neither party makes any representations and extends no warranties of any kind, either express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, validity of patent rights claims issued or pending, or non-infringement of third party rights. |
13.01 | The parties recognize that disputes as to certain matters may from time to time arise which relate to the rights of either party and obligations hereunder. It is the objective of the parties to establish procedures to facilitate the resolution of such disputes in an expedient manner by mutual cooperation and without resort to litigation. To accomplish this objective, the parties agree to follow the procedures set forth in Section 13.02, if and when such a dispute arises between the parties. |
A. | If any dispute, claim or controversy of any nature arising out of or relating to this Agreement, including any action or claim based on tort, contract or statute, or concerning the interpretation, effect, termination, validity, performance and/or breach of this Agreement (each, a “DISPUTE”), arises between the parties and the parties cannot resolve such DISPUTE within thirty (30) days of a written request by either party to the other party, the parties agree to refer the DISPUTE either to: (a) the chief scientific officer (or equivalent) of LICR and the chief scientific officer (or equivalent) of 4AB for resolution (if such DISPUTE relates to scientific issues); or (b) to the head of business development (or equivalent) of LICR and the head of business development (or equivalent) of 4AB for resolution (if such DISPUTE does not relate to scientific issues). If such officers of the parties cannot resolve such DISPUTE within an additional thirty (30) days, then such DISPUTE shall be referred to the chief executive officer (or equivalent) of LICR and the chief executive officer (or equivalent) of 4AB for resolution. After an additional thirty (30) days, if such officers have not succeeded in negotiating a resolution of the DISPUTE, then either party may at any time thereafter seek to resolve such DISPUTE by arbitration pursuant to Section 13.02C below. |
B. | The parties acknowledge and agree that any declarations (either oral or in writing) rendered by the parties’ representatives during the resolution procedure under Section 13.02A above, shall not be considered as an acknowledgement of such party’s liability in respect to the DISPUTE. The parties agree that neither of them may rely on such statement or document as mean of evidence during the arbitration proceeding. For the avoidance of doubts, this Section 13.02B shall not apply to documents, information and statements relating to the disputed obligations under this Agreement. |
D. | Notwithstanding anything to the contrary, if any DISPUTE arises from either party’s rights or obligations under Section 6 (Confidentiality), then a party may seek equitable relief from a court of competent jurisdiction without needing to resort to the dispute resolution mechanism described above in this Section 13.02. In the event of any dispute relating to this Agreement or breach thereof, the parties shall use their best endeavors to develop practical solutions of mutual benefit to settle conflicts amicably between themselves. |
14.01 | Neither party shall use the name of the other party in any publicity, advertising, or news without the prior written consent of the other party. |
14.02 | 4AB and LICR may issue one or more joint announcements regarding this Agreement, provided each such announcement has been approved in writing by both LICR and 4AB prior to its release. Further, each party may, in presentations; publications or other disclosures accurately report that it is a party to the relationship represented by this Agreement. All public announcements and statements concerning the research, development and commercialization of PRODUCT(s) by 4AB, LICR or their licensee(s) will acknowledge 4AB’s and LICR’s role in the discovery and validation of the ANTIBODY or ANTIBODIES. |
14.03 | It is accepted by the parties that the parties may wish to publish or disclose aspects of the PROGRAM and results thereof in scientific journals or meetings or the like. Specifically, LICR and its academic collaborators shall have the right to publish and present scientific findings relating to the PROGRAM. In such an event the disclosing party shall provide the other party with copies of such publications and presentations at least thirty (30) calendar days prior to submission for publication or presentation. The non-disclosing party shall, within a period of thirty (30) calendar days of receipt of such publications or presentations advise the disclosing party whether patent or commercial interests may be prejudiced by the proposed publication or presentation, in which case the party shall delay, or cause its collaborators to delay, submission, if necessary, of the publication or presentation for an |
15.01 | At all times, 4AB and LICR shall be deemed and shall in fact be independent of one another and neither shall be authorized or empowered hereby to act as the agent for the other party for the purpose whatsoever or, on behalf of the other, enter into any contract, warranty or representations as to any matter. |
16.01 | The covenants of the parties which by their terms or express intent are to be performed after the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement. |
16.02 | Any term or condition of this Agreement may be waived or qualified at any time by the party entitled to the benefit thereof by written instrument executed by said party. No delay or failure on the part of either party in exercising any rights hereunder, and no partial or single exercise thereof, shall constitute a waiver of such rights or of any other rights hereunder. |
17.01 | This Agreement shall be construed and governed in accordance with the laws of the England and Wales, without regard to its conflicts of law provisions. |
18.01 | This Agreement, and the rights and obligations hereunder, may not be assigned or transferred by either party without the prior written consent of the other party, except in the case of a CHANGE OF CONTROL. |
19.01 | If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, all other provisions shall continue in full force and effect. |
20.01 | Any notice or other communication required or permitted to be given to either party hereto shall be in writing unless otherwise specified and shall be deemed to have been properly given and effective: (a) on the date of delivery if delivered in person; (b) the date of electronically confirmed facsimile transmission if during the recipient’s normal business hours, or otherwise on the next business day of the recipient; (c) one (1) business day after sending via next business day delivery by a nationally recognized overnight courier service; or (d) three (3) days after mailing by registered or certified mail, postage prepaid and return receipt requested, to the other party at the following address or facsimile number. |
21.01 | No failure or omission by the parties hereto in the performance of any obligation under this Agreement shall be deemed a breach hereto or create any liability if the same arises from any cause beyond the control of the parties including, but not limited to, the following: acts of gods, acts or omissions of any government; any rule, regulation or order issued by governmental authority or by any officer, department, agency or instrumentality thereof: fire; storm; flood; earthquake; accident; war; rebellion; insurrection; riot; invasion; or strike, lockout or other work stoppage provided that such failure or omission is cured as is practicable after the occurrence of the force majeure. |
22.01 | This Agreement, together with any Appendix attached hereto and expressly incorporated herein, constitutes the entire agreement between the parties and supersedes all previous arrangements whether written or oral. Any Amendment or modification to this Agreement shall be of no effect unless made in a writing which specifically references this Agreement and signed by both parties. |
1. | The Reagents furnished to the Recipient for use by the Investigator pursuant to this letter agreement and derivatives thereof (including but not limited to recombinant constructs, cultures, subcultures, mutations or other products derived directly or indirectly from the Reagents, referred to herein as the ‘Derivatives’) will be maintained at the Recipient within the sole possession and control of the Investigator and those staff directly supervised by the Investigator and will be used solely for research and/or educational purposes described in the Project. The Reagents and any Derivatives will only be used in laboratory animals or in vitro experiments as described above, will not be used in therapy involving humans. The Reagents and Derivatives will not be sold by the Recipient or the Investigator or any of Recipient’s or Investigator’s staff to any third party, for any purposes whatsoever and will not be distributed, or transferred by the Recipient or the Investigator or any of Recipient’s or Investigator’s staff to any third party, for any purposes whatsoever without the prior written agreement of LICR. No right, title or interest in the Reagents, Information and the intellectual proprietary rights therein is conveyed under this agreement except for the limited right to perform the Project. |
2. | The Reagents, and any information relating to the Reagents that may be disclosed to the Investigator by LICR (the ‘Information’) are being provided to and accepted by the Recipient and the Investigator WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESSED OR IMPLIED. LICR and its directors, officers, employees or agents assume no liability in connection with the Reagents or the Derivatives or the Information or their use by the Recipient, including the Investigator and staff. Recipient hereby agrees to defend, indemnify and hold harmless LICR and its directors, officers, |
3. | Reagents are being provided at no cost to Recipient; provided, however, the costs of handling and transportation by courier will be paid by Recipient, which hereby gives authorisation to LICR to use the following courier account. |
4. | The Investigator and Recipient have not licensed, assigned or otherwise transferred and will not license, assign or otherwise transfer to any third party any interest in the research involving the Reagents or in the intellectual property or inventions that might emerge therefrom. |
5. | Title to the Reagents and patent rights and other intellectual property rights therein are retained by LICR. No right or license is granted with respect to the Reagents, any Derivatives, the Information or any intellectual property rights, except as expressly set forth herein. |
6. | Recipient represents and warrants that it is a not-for-profit private or public institution or academic entity and shall not use the Reagents or Information, directly or indirectly for commercial purposes, including without limitation sponsored research. In the event Recipient, Investigator or any other person conceives or reduces to practice any invention as a result of the use of the Reagents or Information furnished under this agreement or the intellectual proprietary rights therein, including any new use for the Reagent, Recipient will promptly disclose any such inventions, discoveries or new use to LICR in writing (the “Invention Notice”). Inventorship on any corresponding patent applications filed as a result of such inventions and discoveries shall be determined in accordance with applicable laws governing inventorship. If Recipient does not pursue or abandons patent protection for any invention described in an Invention Notice, Recipient shall promptly notify LICR, and LICR shall thereafter have the right, at its expense, to prepare, file, prosecute, and maintain any such patent. Recipient and Investigator shall assist LICR, at LICR’s expense, in the preparation of all documents necessary to effectuate LICR's rights in such intellectual property. Recipient hereby grants LICR and said third party a non-terminable, transferable, fully paid-up, royalty-free worldwide, non-exclusive, sublicensable license under any intellectual property rights therein. In addition, Recipient hereby grants LICR (or its designee) an option to obtain a worldwide, exclusive, sublicensable license under any such intellectual property rights within six (6) months of notification, on terms and conditions to be negotiated in good faith by the parties. Such option may be exercised by LICR (or its designee) within six (6) months after LICR’s receipt of the Invention Notice. |
7. | The Investigator will keep LICR informed of the results obtained during the course of the research undertaken with the Reagents, any Derivatives and the Information in the course of the Project and will provide the Intellectual Property Office of LICR (666 Third Avenue, 28th Floor, New York, NY 10017, USA, for the attention of Dr. Jonathan Skipper) with ongoing reports on a three monthly basis and an Invention Notice promptly when an invention is made. |
8. | LICR and the Recipient will keep in strict confidence all confidential information it receives under this agreement and information relating to the Project and will not publicly disclose any such information without the consent of the other party, unless such information is or becomes generally known to the public through no fault of either party, or is made available to the parties by a third party having lawful right to do so, or is required to be disclosed (but only to |
9. | Any publication referring to the Reagents, Information, any Derivatives or reporting of the research carried out with the Reagents, Information or any Derivatives shall contain a reference, when appropriate, to the relevant publication describing the Reagents and to LICR as the source of the Reagents. LICR would appreciate receiving, in due course, a copy of any relevant publications. |
3.05.1 | [**] |
3.05.2 | [**] |
6.03.3 | obtained by the receiving PARTY from a THIRD PARTY with a valid right to disclose such INFORMATION. |
7.02 | The payments referred to in Section 7.01 above will be made as follows: |
7.02.1 | a total unrefundable (even in the event of termination pursuant to Section 10.02 herein) [**] as an upfront payment in two tranches of (a) CHF two hundred and fifty thousand (250,000) within ten (10) days following the EFFECTIVE DATE of this AGREEMENT and (b) [**] on January 31st, 2013 |
7.02.2 | a total amount of [**] on February 1st, 2013 |
7.02.3 | a total amount of [**] on June 1st, 2013 |
7.02.4 | a total amount of [**] on June 1st, 2013 |
8 | FUNDING AND COORDINATION OF DEVELOPMENT PROGRAMS AND DISTRIBUTION OF COMMERCIAL RETURNS |
8.03.1 | First, each PARTY will provide a summary of ACCUMULATED DEVELOPMENT COSTS pursuant to Section 8.02; |
8.03.2 | Second, before distribution of NET REVENUES all ACCUMULATED DEVELOPMENT COSTS of each PARTY for all years (“TOTAL ACCUMULATED DEVELOPMENT COSTS”) will be added and a share of proceeds calculated according to the following formula for each PRODUCT separately: “PERCENTAGE SHARE” of a PARTY equals the TOTAL ACCUMULATED DEVELOPMENT COSTS of the PARTY divided by the TOTAL ACCUMULATED DEVELOPMENT COSTS of all PARTIES; |
14.02.1 | If any dispute, claim or controversy of any nature arising out of or relating to this Agreement, including any action or claim based on tort, contract or statute, or concerning the interpretation, effect, termination, validity, performance and/or breach of this Agreement (each, a “DISPUTE”), arises between the PARTIES and the PARTIES cannot resolve such DISPUTE within thirty (30) days of a written request by a PARTY to another PARTY, the PARTIES agree to refer the DISPUTE either to: (a) the chief scientific officer (or equivalent) of LICR and/or the chief scientific officer (or equivalent) of RECEPTA and/or the chief technology officer (or equivalent) of 4AB for resolution (if such DISPUTE relates to scientific issues); or (b) to the head of business development (or equivalent) of LICR and/or the head of business development (or equivalent) of RECEPTA and/or the head of business development (or equivalent) of 4AB for resolution (if such DISPUTE does not relate to scientific issues). If such officers of the PARTIES cannot resolve such DISPUTE within an additional thirty (30) days, then such DISPUTE shall be referred to the chief executive officer (or equivalent) of LICR and/or the chief executive officer (or equivalent) of RECEPTA and/or the chief executive officer (or equivalent) of 4AB for resolution. After an additional thirty (30) days, if such officers have not succeeded in negotiating a |
14.02.2 | The PARTIES acknowledge and agree that any declarations (either oral or in writing) rendered by the PARTIES’ representatives during the resolution procedure under Section 14.02.1 above, shall not be considered as an acknowledgement of such PARTY’s liability in respect to the DISPUTE. The PARTIES agree that none of them may rely on such statement or document as mean of evidence during the arbitration proceeding. For the avoidance of doubt, this Section 14.02.2 shall not apply to documents, information and statements relating to the disputed obligations under this Agreement. |
14.02.3 | If any dispute, disagreement, claim or controversy of any nature or type arises out of or results from this Agreement and is not resolved pursuant to Section 14.02.1, then without regard or reference to the principles of conflicts of law or international private law or any contrary term or condition in any international treaty or convention (other than in connection with the recognition of arbitration awards as the PARTIES have agreed below): |
14.02.3.1 | Jurisdiction/Forum. Any DISPUTE that cannot be resolved after negotiation between the PARTIES as set forth in Section 14.02.1 shall be finally resolved by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) as supplemented by Section 14.02.3.2 below (collectively, the “RULES”). |
14.02.3.2 | Applicability of Rules. If a procedural question or dispute arises that is not governed by the RULES, the ARBITRATOR or ARBITRATORS shall make a binding determination of its resolution after affording each PARTY an opportunity to state its preferred means of resolution. Each PARTY hereby expressly, irrevocably and unconditionally consents and submits to the personal jurisdiction of the ICC and waives and hereby affirmatively covenants not to assert their right to object to or challenge the sole and exclusive personal jurisdiction of the ICC in connection with DISPUTES. Any controversy concerning the extent to which any DISPUTE is subject to the terms and conditions of this Section and/or the RULES, or concerning the applicability, interpretation, or enforceability of this Section and/or the RULES, including any contention that all or part of these procedures are invalid or unenforceable, shall be governed by the substantive laws of England and Wales. |
14.02.3.3 | Venue and Language. The arbitration described herein (the “ARBITRATION”) shall be conducted in the English language and all written briefs and statements prepared by the PARTIES shall be submitted in the English language. The ARBITRATION shall be conducted at a mutually agreed location in London, United Kingdom. |
14.02.3.4 | Governing law. All DISPUTES shall be governed by and construed in accordance with the substantive laws of England and Wales, and the ARBITRATION shall be conducted under the procedural requirements of the RULES, all without regard or reference to principles of conflicts of law that would result in the application of the laws of another jurisdiction. |
14.02.3.5 | Arbitrators. The panel of arbitrators shall consist of three (3) neutral arbitrators who are mutually agreed upon by the PARTIES meeting the following criteria: (i) none of them shall be current or former employees, directors or shareholders of, or otherwise have any current or previous relationship with, either PARTY or its respective AFFILIATES; and (ii) all of them shall be a person expert in pharmaceutical industry research and development or in licensing arrangements in the biotechnology or pharmaceutical fields (collectively, the “ARBITRATORS”). If the PARTIES can mutually agree that a DISPUTE can be resolved by a single ARBITRATOR or expert and furthermore the PARTIES can agree on the choice of such ARBITRATOR or expert then the arbitration can proceed with such single ARBITRATOR or expert. If the PARTIES cannot mutually agree on the ARBITRATORS within fifteen (15) business days of the filing of the claim with the ICC, then the PARTIES shall each submit six (6) curriculum vitae of proposed ARBITRATORS to the International Court of Arbitration of the ICC and that body shall appoint the ARBITRATORS by selecting one (1) of the expert ARBITRATORS from each of PARTIES’ submissions. |
14.02.3.6 | Supplemental Rules. The ARBITRATION shall be subject to the following rules: (i) the ARBITRATORS may not award or assess punitive damages against either PARTY except that the ARBITRATORS, in their sole discretion, may award reasonable costs, expenses and fees to the prevailing PARTY; (ii) until such time as an award of costs is made by the ARBITRATORS, each PARTY shall bear its own costs and expenses of the ARBITRATION and one-third (1/3) of the fees and costs |
14.02.3.7 | Award. The ARBITRATORS’ award shall be the sole and exclusive remedy between the PARTIES regarding any claims, counter-claims, issues or accountings presented or pleaded to the ARBITRATORS, including any such claims, counter-claims, issues or accountings seeking declaratory, equitable and/or injunctive relief, and all costs, fees or taxes incident to enforcing the ARBITRATORS’ award shall be, to the maximum extent permitted by law, charged against the PARTY resisting enforcement. Judgment upon the award of the ARBITRATORS may be entered in a court of competent jurisdiction, or application may be made to such court for a judicial acceptance of the award or any order of enforcement. Without limiting the foregoing, if and to extent that the final award of the ARBITRATORS is found unenforceable, either PARTY may bring a cause of action against the other PARTY before any court of competent jurisdiction at the domicile of the defendant PARTY. |
14.02.3.8 | Interim Relief. By agreeing to arbitration, the PARTIES do not intend to deprive any court of its jurisdiction to issue a pre-arbitration injunction, pre-arbitration attachment or other order in aid of the arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies in aid of arbitration as may be available under the jurisdiction of a court, the ARBITRATORS shall have full authority to grant provisional remedies and to award damages for the failure of any PARTY to respect the ARBITRATORS’ orders to that effect. |
14.02.4 | Notwithstanding anything to the contrary, if any DISPUTE arises from any PARTY’S rights or obligations under Article 6 (Confidentiality), then a PARTY may seek equitable relief from a court of competent jurisdiction without needing to resort to the dispute resolution mechanism described above in this Section 14.02. |
14.02.5 | In the event of any dispute relating to this AGREEMENT or breach thereof, the PARTIES shall use their best endeavors to develop practical solutions of mutual benefit to settle conflicts amicably between themselves. |
1. | Jonathan Skipper (Par Olsson- alternate) |
2. | Gerd Ritter |
3. | Jedd Wolchok |
1. | Ekterina Breous |
2. | Marc van Dijk |
3. | Robert Burns |
1. | J. Fernando Perez |
2. | Maria Carolina Tuma |
3. | To be appointed |
Item | Subject | Page(s) |
– | Contract parties / Leased property | 3 |
1 | Type of use | 4 |
2 | Sublease | 4 |
3 | Start of lease / Duration of lease / Termination | 4 |
4 | Rent / Incidental expenses / Payment deadline | 5 |
5 | Security deposit | 5 |
6 | Rent adjustments / Index clause | 5/6 |
7 | Heating and incidental expenses | 6/7 |
8 | Handover | 7 |
9 | Use of the leased property / Order | 7/8 |
10 | Structural changes | 8/9 |
11 | Builder’s lien | 9 |
12 | Addresses / Advertising signs | 10 |
13 | Upkeep / Repairs / Defects | 10 |
14 | Permits | 10 |
15 | Insurances / Risk | 10/11 |
16 | Right of access | 11 |
17 | Keys | 11 |
18 | Return of the leased property | 11/12 |
19 | Expansion | 12 |
20 | Address for delivery | 12/13 |
21 | Written form / Subsidiary right / Place of jurisdiction | 13 |
22 | Transfer of sublease relationship | 13 |
Principal Lessee | Technologie Park Basel AG, in formation, [address, city] VAT No.: will be submitted after formation |
On behalf of | Canton of Basel Stadt |
Sublessee | 4-Antibody AG, Schwarzwaldallee 215, CH-4002 Basel Basel, Commercial Reg. No.: CH-270.4.013.352 VAT No. 569307 |
Represented by | Dr. Ulf Grawunder, CSO Melanie Schmid, Head Human Resources enter into the following Lease Agreement: |
Leased property | The principal lessee concedes to the sublessee for rental use in the property Technologie Park Basel AG, at the Stücki Business Park the following offices / premises: Office spaces, approx. 247 m2 (developed) Lab areas, approx. 171 m2 (shell construction; development by sublessee) Storage areas, approx. 8 m2 (shell construction, development by sublesee) see Annex 1 The leased spaces are marked yellow in the plans in Annex 1; Co-use of the following general spaces is included: - use of the meeting room and auditorium - use of the cafeteria and waiting area - use of the presentation equipment (flipchart, white board, beamer) - use of sanitary facilities The plans in Annex 1 form an integral part of this agreement. The sublessee confirms that the leased property is in contractually agreed upon condition suitable for the intended use. |
Article 1 | |
Type of use | The leased property is leased for use as [x] Workplace/Office [x] Lab (check what applies) The sublessee undertakes not to use the leased property for any purpose other than that stipulated in the contract. Any change requires the written consent of the principal lessee. |
Article 2 | |
Sublease | The sublease of the leased spaces or the relinquishment of the lease agreement to third parties is permitted only with the written consent of the principal lessee. |
Article 3 | |
Start of lease Duration of lease Termination | The tenancy begins on 07/01/2011 and entered into with the lessor for 5 years, that is till 06/30/2016. The sublessee may terminate the agreement with six (6) months’ notice, however for the first time after a lease period of three years, so per 06/30/2014. An extraordinary termination of the lease agreement is possible only for important reason (acc. to Art. 266g OR [Swiss Code of Obligations]). |
Article 4 | |
Rent Incidental costs Payment deadline | The parties agree to voluntarily register the tenancy for value-added tax (option). The sublessee is allowed at any time to demand bills from the principal lessee for the rent in compliance with the value-added tax rules. They must be adequate with regard to the applicable form provisions for input tax deduction. The rent + incidental costs are: The rent and incidental costs are due monthly (calendar month) in advance. The rent cannot be set off against any counterclaims. |
Article 5 | |
Security deposit | To guarantee all claims of the principal lessee from the lease, the sublessee shall provide an interest-bearing cash deposit (rent deposit) upon signing of the agreement for the entire duration of the lease in the amount of two monthly rents (CHF 37,120.00) to Basler Kantonalbank (for account information see Annex 2). The sublessee cannot set off the deposit against any rents or incidental costs. |
Article 6 | |
Rent adjustments Index clause | The agreed net rent of CHF 191,009.00 a year (incl. VAT) (=base or starting rent) is based on the Consumer Price Index (LIK – Landesindex der Konsumentenpreise) for November 2010 of 104.2 points (Dec. 2005 = 100). If the index changes, the rent can be adjusted to the new index once annually per the start of any quarter, regardless of the termination periods and deadlines and regardless of the fixed contract duration. The increase or reduction may amount to 100 |
(one hundred) percent of the index change. The first adjustment may be made per 01/01/2013 at the earliest. The rent can be adjusted downwards only until it reaches the base rent established today, which is considered the minimum. The bases for the calculations of adjustments are always the base rent and index established today. In addition to the regular rent adjustments according to the adjustment clause above, regular rent increases may occur for the additional services of the lessor, within the scope permitted by law (= especially investments for value-enhancing improvement of the leased property itself or general-use parts of the building). They will be added to the base rent and can be announced with one month’s notice at the start of any month. The principal lessee has the right to adjust the rent over the base rent, within the legally permissible scope, including new or increased statutory and legal charges on the real property. If the principal lessee exercises the option of rent adjustment, the sublessee must be informed at least one month in advance (= notification period for rent adjustments). | |
Article 7 | |
Heating and incidental costs | The sublessee is responsible for its share of the incidental and operational costs of the general facilities, listed below: - heating and warm water preparation costs - building maintenance, incl. social services and insurances, incl. upkeep of the garden, paths, passages, etc. - general power consumption - water consumption - sewage treatment and waste disposal fees, public charges - service subscription for the elevator - general ventilation system, incl. service - service subscription for fire alarm systems - cleaning of external areas, buildings and windows - repair of common-use systems - street cleaning, snow removal - lighting of the common-use areas and access ways |
Article 8 | |
Handover | The leased premises will be handed over to the sublessee in the current, inspected conditions, cleaned and with full office setup (unfurnished offices, without sublessee improvements in the labs). Any existing defects must be reported by the sublessee to the principal lessee within 30 (thirty) days after the start of the lease, otherwise the leased property is deemed handed over without defects. Hidden defects are excluded therefrom. The sublessee is not entitled to compensation for damages in case of any activities of renovation or finishing work after the start of the lease. |
Article 9 | |
Use of the leased property, Order | The sublessee must use the leased property with care and keep it in clean and good conditions. It shall ensure regular ventilation and the necessary heating of the leased premises, regardless of whether they are used or not. The sublessee is liable for damages as a result of improper use (extraordinary damages). |
When using the leased property, the lessee must take into consideration the co-tenants and neighbors as much as possible. The sublessee commits to comply with the lessor’s house rules. Before bringing in especially heavy objects (machines, safety deposit boxes, etc.) the sublessee must find out about the floor load capacity from the principal lessee. To protect the floor and, if needed, to prevent noise transmission and vibrations, appropriate bases should be used for heavy furnishings. The entry to the building and the yard, the building and basement corridors, the passage or other free areas may not be used to store objects and goods of any kind. Waste of any kind may only be stored at locations specified in the house rules and in an appropriate manner. | |
Article 10 | |
Structural changes | The sublessee may make changes to the leased property at its own cost and under its own responsibility (cf. especially the provisions for tenant’s development of the labs in Art. 19) by agreement and with written consent of the principal lessee. It is essentially free to choose the architects and the contractors, but it is obliged to have the changes planned and executed by proven experts. The principal lessee is responsible for obtaining any necessary permissions of the owner and principal lessor. If the owner and principal lessor delays or prohibits the structural changes of the sublessee, permitted by the principal lessee, the principal lessor is liable to the sublessee for the resulting damages. All costs of sublessee’s changes are borne by the sublessee in full scope. The building permits for the changes or modifications of the leased property, wished by the sublessee, as well as any permits needed for the use of the leased property must be produced by the sublessee. Furthermore, the sublessee undertakes to take out the standard building insurance policies and bear the costs thereof. Structural changes to and in the leased premises during the tenancy, the installation of systems, changes of existing systems, as well as the installation or modification of blinds, etc. are permitted only with the written consent of the principal lessee. Plans and drafts, as well as cost estimates must be submitted to the principle lessee for this purpose. In particular, the sublessee may not make changes or add connections to the |
electric or sanitary installations without the principal lessee’s permission. The installations and furnishings of the sublessee, connected to the building, must be removed at the end of the lease at the request of the principal lessee, and the original conditions of the leased premises must be reinstated. In particular, the laboratory facilities installed by the sublessee with the principal lessee’s permission can be assumed by the principal lessee upon termination of the tenancy at the value to be agreed upon at that time. The sublessee is responsible for obtaining any official licenses, especial building permits for tenant’s developments, incl. the payment of the respective fees. If third parties make claims against the principal lessee for emissions due to structural modifications or installations of the sublessee, the sublessee is liable to compensate any resulting damages. If the principal lessee intends to make changes or improvements, it must inform the sublessee of this in advance in writing. The type and scope of the planned changes/improvements, the start and expected duration of the works [sic]. The sublessee must be notified of this at least three months in advance in writing, unless there is imminent risk. If the sublessee finds the disruptions associated with the changes/improvements to be unreasonable, it must inform the principal lessee of this within 10 days in writing. | |
Article 11 | |
Builder’s lien | The sublessee undertakes to settle with the owner all claims resulting in connection with modifications contracted by it within an acceptable period of time. If, nevertheless, builder’s liens are registered in the land register, the sublessee must clear them immediately. The sublessee grants the owner the right of recourse, to be exercised at any time, for all claims that may be made against the building owner in connection with construction contracted by the sublessee. The principal lessee may demand from the sublessee a security deposit (e.g., bank guarantee) in the amount of the expected costs for the building work contracted by the sublessee, in particular in order to avert any builder’s lien. |
Article 12 | |
Addresses Advertising signs | The inscriptions outside (mailbox, entrance door) will be acquired by the sublessee at its own cost. The inscriptions shall be placed at locations in the property designated by the principal lessee. Article 12 [sic] |
Addresses Advertising signs | The inscriptions outside (mailbox, entrance door) will be acquired by the sublessee at its own cost. The inscriptions shall be placed at locations in the property designated by the principal lessee. [sic] |
Article 13 | |
Upkeep Repairs Defects | The principal lessee must undertake major upkeep work, extensive repairs and substitution of defects, especially as a result of wear and tear. The sublessee assumes the costs of small repairs and improvements of up to CHF 200. The sublessee must cover the following in particular and regardless of the cost threshold and cause of damage: the repair and replacement of switches and sockets, locks, hinges, window and door locks, water faucets, seals of heating installations and sanitary installations. The costs of operation, upkeep, repairs, and renovation of its own installations and systems and sublessee’s developments are borne exclusively by the sublessee. In the event of defects, damages, or imminent risk, the sublessee must immediately inform the operator (e.g., water damages, defective devices, moisture). The sublessee is liable for resulting damages in case of failure to report. |
Article 14 | |
Permits | All permits required for the use and operation of the leased properties (e.g., commercial and inspectorate permits) must be acquired by the sublessee on its own, and it must pay the costs thereof. |
Article 15 | |
Insurances / Risk | The principal lessee shall ensure that the building is insured against fire, water, glass, and explosion damages; furthermore, it shall ensure that the owner is covered against liability claims of third parties (building owner liability). The costs of these insurance policies shall be allocated to the sublessee proportionately within the scope of the incidental costs statement and where legally permissible. Other insurance coverage is the responsibility of the sublessee. In particular, it bears the risk of damages to or loss of its property for any reasons (e.g., fire, explosion, water damages, theft, burglary, etc.). It waives to the principal lessee the right to assert any compensation claims in connection from such damages (the right to statutory liability of the building owner according to Art. 58, OR remains reserved). The sublessee undertakes to take out at least an adequate liability insurance. A copy of the liability insurance policy must be enclosed with this contract. If developments and installations of the sublessee are considered part of the building and, therefore, obligatorily insured by the owner, the sublessee must pay the respective share of the premium. |
Article 16 | |
Right of access | The principal lessee has the right to enter the leased property to ensure its rights and duties during regular business hours (according to 257h, OR). |
Article 17 | |
Keys | The sublessee has the required keys according to the handover minutes. The sublessee may order additional keys at its own cost. When moving out, all keys, including the ones additionally made by the sublessee, must be returned to the principal lessee free of charge. |
Article 18 | |
Return of the leased property | The leased property must be fully cleared out and returned at the latest on the last day of the tenancy (until 12:00 p.m.). Basically, the leased property must be returned in the conditions in which it was taken over in the beginning of tenancy. However, the sublessee is not liable for any wear and tear as a result of contractual use. |
It is the sublessee’s responsibility to reinstate the previous conditions (see Article 10) and to rectify the damages caused to the leased property, if they are not the consequence of regular wear and tear. The sublessee shall return the leased property clean-swept. The sublessee will be charged CHF 6/m2 for the final cleaning of the leased property, for fully developed areas. The restoration and cleaning work to be performed by the sublessee must begin early enough so that it is finished at the end of the tenancy or at the time of premature return of the leased property. In case of a premature move, the sublessee is liable for the rent and the incidental costs until the expiry of the agreement. The provisions of Art. 263 and 264, OR apply. Defects and damages discovered at the end of the tenancy, which the sublessee is responsible for, must be registered in an acceptance report or reported to the sublessee in writing within 30 days after the end of tenancy. The sublessee is liable also for hidden defects that were not detectible during the acceptance inspection, if it is informed about them within 30 days after the end of tenancy in writing. The statutory periods from the Swiss Code of Obligations apply to the assertion of or limitation period for claims in this respect. | |
Article 19 | |
Expansion | The lessor hands over the leased properties with the following developments: - See definition of interfaces in Annex 3, which is an integral part of this agreement. All other development work is borne by the sublessee. This circumstance has been taken into account in the rent. In case of complete development of the leased property tailored to the lessee’s needs, a higher rent would have to be agreed upon. |
Article 20 | |
Address for delivery | The following addresses are considered the legally valid addresses for delivery of the contracting party for the purposes of this agreement, till recall by a registered letter to the counterparty: Address for delivery of the sublessee (after start of tenancy): |
4-Antibody AG Hochbergerstrasse 60C 4057 Basel Address for delivery of the main lessee: Technologie Park Basel AG Hochbergerstrasse 60 C 4057 Basel | |
Article 21 | |
Written form Subsidiary right Place of jurisdiction | Any change of the agreement must be made in writing in order to be valid. In all cases not mentioned in this agreement and the associated house rules, the provisions of the Swiss Code of Obligations and any other legal regulations apply. The provisions of this agreement have precedence over any local customs that state otherwise. The parties chose the location of the leased property as the place of jurisdiction; this jurisdiction clause is irrevocable, even after expiry of the contract. If there is a joint conciliation authority at the location of the leased premises or for the region, disputes arising from this lease agreement must be presented to it before invoking a judge. If no agreement is reached, the regular courts at the location of the leased property, excluding the justice of the peace and under the proviso of the right of appeal, are the competent courts. In cases that do not fall within the jurisdiction of conciliation authorities, regular courts shall be called upon directly: eviction lawsuits in consequence of failure to leave upon termination on the basis of Article 257 d, OR; claims for removal of objection in collections/retentions; claims for premature dissolution of contract for important reasons. |
Article 22 | |
Transfer of sublease relationship acc. to 645 OR | The principal lessee shall provide to the sublessee a confirmation concerning the transfer of this contract by the company (principal lessee) according to Art. 645, Par. 2, OR, as soon as it takes place. |
[FLOOR PLAN] | [signatures] [hw:] 06/30/2011 [signature] |
per month | per year | |
Rent | CHF 350.00 | CHF 4,200.00 |
Incidental costs | CHF 64.00 | CHF 768.00 |
VAT (8%) | CHF 33.12 | CHF 397.44 |
Total | CHF 447.12 | CHF 5365.44 |
4-Antibody AG | Technologie Park Basel AG |
Basel, on [hw:] 07/13/2011 | Basel, on [hw:] 06/29/2011 |
[signature] Dr. Ulf Grawunder CSO | [signature] Samuel Hess VR1 |
[signature] Melanie Schmid Head HR | [signature] Dr. Christof Klöpper VR2 |
per month | per year | |
Rent | CHF 300.00 | CHF 3,600.00 |
Incidental costs | CHF 68.75 | CHF 825.00 |
VAT (8%) | CHF 29.50 | CHF 354.00 |
Total | CHF 398.25 | CHF 4779.00 |
4-Antibody AG | Technologie Park Basel AG |
Basel, on [hw:] 09/02/2011 | Basel, on [hw:] 09/21/2011 |
[signature] Dr. Ulf Grawunder CSO | [signature] Samuel Hess VR1 |
[signature] Melanie Schmid Head HR | [signature] Dr. Christof Klöpper VR2 |
per month | per year | |
Rent | CHF 1,476.00 | CHF 17,712.00 |
Incidental costs | CHF 338.25 | CHF 4,059.00 |
VAT (8%) | CHF 145.15 | CHF 1,741.70 |
Total | CHF 1,959.40 | CHF 23,512.70 |
4-Antibody AG | Technologie Park Basel AG |
Basel, on [hw:] 09/24/2012 | Basel, on [hw:] 10/16/2012 |
[signature] Dr. Robert Burns Chief Executive Officer | [signature] Hans Jürg Dolder VR1 |
[signature] Melanie Schmid Group Head of HR | [signature] Samuel Hess VR2 |
1. | The autoclave and the ice machine can be installed in Room C3_67 and used in agreement with 4-Antibody AG by all tenants of the Technologie Park (as of May 2013) within regular scope. 4-Antibody AG may charge them for the operating costs. |
2. | The responsibility for the autoclave and the ice machine lies with 4-Antibody AG. For example, the costs of maintenance and repairs of these devices shall be covered by 4-Antibody AG. However, if one of these devices breaks and cannot be repaired anymore, 4-Antibody AG is not obliged to purchase a new device. |
3. | The air-conditioners in Rooms C3_23, C3_25, C3_31 belong to 4-Antibody AG. The costs of repair, replacement, or the costs resulting from the breakdown of these devices shall be borne by 4-Antibody AG. |
4. | In return for 4-Antibody AG providing the autoclave and ice machines at the disposal of the other lab tenants, TPB AG shall assume the costs of regular maintenance of the air-conditioners in these rooms. (As of May 2013, this is performed by Johnson Controls) |
4-Antibody AG | Technologie Park Basel AG |
Basel, on [hw:] 06/06/2013 | Basel, on [hw:] 06/24/2013 |
[signature] Dr. Robert Burns Chief Executive Officer | [signature] Samuel Hess VR1 |
[signature] Melanie Princip Group Head of HR | [signature] Nina Ryser VR2 |
per month | per year | |
Rent | CHF 2,015.65 | CHF 24,187.50 |
Incidental costs | CHF 246.35 | CHF 2,956.25 |
VAT (8%) | CHF 181.00 | CHF 2,172.00 |
Total | CHF 2,443.00 | CHF 29,315.75 |
4-Antibody AG | Technologie Park Basel AG |
Basel, on [hw:] 06/06/2013 | Basel, on [hw:] 06/24/2013 |
[signature] Dr. Robert Burns Chief Executive Officer | [signature] Samuel Hess VR1 |
[signature] Melanie Princip Group Head of HR | [signature] Nina Ryser VR2 |
per month | per year | |
Rent | CHF 300.00 | CHF 3,600.00 |
Incidental costs | CHF 68.75 | CHF 825.00 |
VAT (8%) | CHF 29.50 | CHF 354.00 |
Total | CHF 398.25 | CHF 4,779.00 |
4-Antibody AG | Technologie Park Basel AG |
Basel, on [hw:] __________ | Basel, on [hw:] 06/24/2013 |
[signature] Dr. Robert Burns Chief Executive Officer | [signature] Samuel Hess VR1 |
[signature] Melanie Princip Group Head of HR | [signature] Nina Ryser VR2 |
Commercial Lease Agreement No. 01/2003 |
BioCentiv GmbH |
4antibody GmbH |
(1) | The Lessor leases to the Lessee the following spaces in the BioInstrumentezentrum: |
a) | Lab spaces: Module 2, Ground Floor, Room No. M2.107 with a total area of 41.76 m2, including lab furniture; |
b) | Office spaces: none; |
c) | Storage spaces: none; |
d) | Underground parking spaces: none; |
e) | External, supply, and ancillary facilities (if needed) according to |
(2) | The Lessee declares that it inspected the Leased Property in detail. |
(3) | The Lessee assumes the Leased Property in the condition in which it is found at the start of the agreement. |
(1) | The Leased Property may only be used for the following purpose: |
(2) | The Lessor provides no guarantee for the suitability of the Leased Property for the above-mentioned purpose. |
(3) | The Lessee must procure the permits and anything else of the sort necessary for its business and operations at its own cost and keep the Leased Property and operations in the conditions that comply with all the official requirements. It must report changes that necessitate an inspection in terms of the static, fire-prevention, industrial, and other legal aspects. |
(4) | Subleasing or subletting of the Leased Property or parts thereof is permitted only with the consent (prior approval) of the Lessor. The Lessee does not have the right of extraordinary termination in case of justified rejection of subleasing. |
(5) | The Lessee may relinquish its rights under this agreement to third parties or make them the object of company contracts only with written consent (prior approval) of the Lessor. |
(2) | The Lessor has the right to terminate the tenancy without notice in the cases stipulated by law, in particular when the Lessee |
a) | fails to pay the agreed rent or other payments, despite being overdue and receiving a collection notice, largely or in full, for more than one month, or fails to provide a security deposit by the deadline; |
b) | culpably violates the regulations of Section 2, Pars. 1, 4, and 5, Section 6, Par. 3, Section 7, Par. 1, Par. 4 and 5, Section 5, Par. 1, 3, and 4, Section 9, Par. 1, and Section 10, Par. 2 and repeats or continues such violation after first warning; |
c) | is subject to a filed insolvency or out-of-court settlement procedures with regard to the Lessee’s assets, if the paid-in assets of the Lessee are subject to compulsory execution, or the Lessee is summoned to make an official affidavit of the lack of funds. |
(3) | In the cases indicated in Par. 2, the Lessee is liable for damages suffered by the Lessor as a result of untimely clearance or return of the Leased Property by the Lessee, a sublessee, or a subletter. The same applies when after clearance or return by the Lessee the Leased Property remains empty or can only be rented out cheaper or on worse terms, whereby the Lessee is liable until the end of the initially agreed upon tenancy and a maximum till the expiry of one year after clearance or return. |
(4) | Termination notices must be submitted in writing in all cases. The timeliness of a termination notice is not based on when it is sent, but on when it is received. |
(5) | The Lessee has the option of extending the lease for another three years. The Lessee must make its final decision about exercising the option six months before expiry of the lease. |
(1) | The monthly rent of the Leased Property amounts to: |
a) | according to Section 1, Par. 1, letter “a” €11.00 /m2 |
b) | In addition to the rent, the Lessee shall pre-pay monthly the following incidental costs |
c) | In addition, the Lessee shall pay other fees in the amount of €1.50/m2 of the leased area, as a lump-sum payment to the center. |
(2) | Additional costs of the Leased Property, resulting from building measures of the Lessee, must be borne by the Lessee itself or compensated to the Lessor if charged to and paid by it, if and to the extent that the added value resulting from such building measures is not compensated to the Lessee and the rent is not raised respectively. |
(3) | In case of new introduction, retroactive collection, or increase of public duties or other charges and costs in connection with the Leased Properties, the Lessee must pay the higher incidental costs starting with the month following the notification of the effective additional charges or pay the one-time extra charges incurred on the Leased Properties. |
(4) | If the Lessee moves out before the end of the lease without paying the compensation in the subsequent period agreed in accordance with Section 4, Par. 1 and the Lessor must leave the Leased Property for the use of a third party at a lower fee than that agreed upon in Section 4, Par. 1 due to deteriorated market conditions, the Lessee must pay the difference. |
(5) | The rents, incidental costs, and other fees indicated in this lease agreement are net amounts in accordance with the applicable Income Tax Act. The VAT is due additionally by agreement of the |
(1) | The Lessee and the Lessor may reach a new agreement about the rent even during the term of the lease and other fees may be demanded, if special agreements for such fees are not concluded. |
(2) | If the price index indicated in paragraph (1) is no longer continued or published, the parties will agree to substitute it from that point on with a price index established and continued to be published by the Federal Statistics Office, which comes closest to the economic approach of the discontinued price index. |
(1) | The power is supplied by the competent utility company and the Lessee is charged by the operator. The connected load required by the Lessee is determined at the start of the lease. If the connected load of the Lessee increases in the course of the lease, it must reimburse the costs resulting from the |
(2) | Water may only be taken from the waterlines for own use. |
(3) | In case of problems or damages to the supply or disposal lines (power, gas, water, sewage), the Lessee must disconnect them immediately and inform the Lessor or its authorized agent right away. |
(4) | If the Lessor supplies heat to the Leased Property, it is liable in case of disruptions of heat supply only in case of intent or gross negligence. |
(5) | The Lessee has the right to shared use of any elevators adjacent to the Leased Property. Operating problems must be reported to the Lessor or its authorized agent right away. The Lessee has not right to uninterrupted service in case of operating problems. |
(1) | The Lessor has insurance on the Leased Properties, among other for fire, storm, hail and water damages. The insurance premiums are split proportionately as part of the incidental costs. |
(2) | The Lessee is liable for all damages culpably caused by it, its employees, staff, or visitors to the Leased Properties or other property of the Lessor. The Lessee is responsible for demonstrating that there was no culpable conduct. For conduct of people for which the Lessee is liable, the Lessee waives the right to exonerating evidence according to Section 531, BGB [German Civil Code]. |
(3) | The Lessee exempts the Lessor from all claims asserted due to its operation or effects of its operation by third parties during or after the term of the lease against the Lessor as the owner of the Leased |
(4) | The Lessee shall provide to the Lessor on request at any time, also in writing, complete information about the type, scope and use (including disposal) of materials or substances that may be viewed as harmful to the environment. The Lessee shall allow the environmental agent of the Lessor or its representative also to enter the Leased Property for this purpose. |
(5) | The Lessee must be adequately insured, due to its liability under the duties assumes under the contract, and show proof of respective insurance, in particular liability insurance, to the Lessor. |
(1) | The Lessee must handle the Leased Property with care, ensure that it is serviced and cared for, and provide what is needed for its security, including access security under the law. |
(2) | The ongoing service and repair measures must be carried out by the Lessor at its cost, if and to the extent that the Lessee cannot use the Leased Property otherwise, and no other provisions are made below. |
(3) | Damages to the Leased Properties caused by use of the Leased Properties must be professionally and immediately rectified by the Lessee at its costs. Damages to the Leased Properties that were not caused by use or by the Lessee must be rectified by the Lessee up to the amount of 10 (in words: ten) percent of the net annual rent per year. |
(4) | The Lessee must compensate the Lessor for depreciation in value caused by operation of the Lessee in accordance with the contract, beyond the normal depreciation in value. |
(5) | The Lessee has no right to claim compensation for damages due to an initial defect of the Leased Properties or due to delay by the Lessor in rectifying the initial defect, as long as the defect was not |
(1) | The Lessee requires the prior written permission of the Lessor for structural and other permanent changes to the Leased Properties. The Lessee is exclusively responsible for obtaining the official permits necessary for the approved changes. |
(2) | The Lessee is not entitled to reimbursement of costs incurred by the Lessee from the changes to the Leased Properties without the prior written permission of the Lessor and to reimbursement of any other kind for such reasons if they result in a permanent enhancement of the value of the Leased Properties. In these cases, the Lessor is also allowed to demand the reinstatement of the previous conditions at the expense of the Lessee and a security deposit before the return of the Leased Property for the costs of reinstating the previous conditions. |
(3) | The Lessee must tolerate all work performed by the Lessor to expand, change, service, or repair the Leased Properties and the property it owns. Damage compensation claims by the Lessee for this reason are excluded. To avoid significant hindrances to the Lessee, the Lessor must inform the Lessee of the date, type and scope of such work within a reasonable time in advance in writing. |
(1) | In order to exercise its right of lien, the Lessor or its authorized agent are allowed to enter the Leased Property, also accompanied by witnesses, and to perform an inspection. |
(2) | The Lessee must inform the Lessor of an imminent lien or utilization of attached or mortgaged assets, of an imminent filing of a bankruptcy, settlement, or collective bankruptcy for the Lessee’s assets, or of a summoning of the Lessee to provide an official affidavit of the lack of funds. The same applies in case of enforcement measures involving the Leased Properties. |
(3) | The Lessor or its authorized agent have the right to access and inspect the Leased Properties during regular business hours or with prior notice. |
(4) | The Lessee hereby transfers to the Lessor and the Lessor accepts the existing or arising claims against third parties for payment of the rent or lease amounts under sublease or sublet agreements to guarantee the Lessor’s claims under this agreement. |
(5) | The Lessee waives the right to offset and retention with respect to all claims of the Lessor under this lease agreement. |
(1) | After termination of the lease, the Lessee must return the Leased Properties in contractually appropriate conditions suitable to be leased again, in consideration of normal wear and tear. |
(2) | The Lessee’s installations (e.g., gas, water, cooling, heating systems, electrical appliances) must, at the discretion of the Lessor, |
a) | either be removed by the Lessee at its expense and conditions suitable for lease reinstated, where the Lessor has the right to demand a security deposit for the reinstatement, or |
b) | left on the premises without a claim to reimbursement. |
(3) | The Lessee must rectify all damages beyond the contractual wear and tear before the end of the lease. If the Lessee does not comply with this obligation, the Lessor has the right to have such damages rectified at the Lessee’s expense. |
(4) | All property of the Lessee, left on or in the Leased Properties after their return may be disposed of by the Lessor at its free discretion and to its benefit, if the Lessee does not remove it within two weeks |
(5) | The provisions of Section 568, BGB (silent extension of the lease after expiry of the term of lease) do not apply. An express objection of the Lessor is therefore not required. |
(1) | The Lessee must provide a security deposit. |
(2) | For this purpose, the Lessee shall provide a bank guarantee document for €2,000.00 or a set up a rent deposit account before the start of the lease to guarantee the performance of all claims of the Lessor from and in connection with this lease. Such guarantee or account must be irrevocable, indefinite, unconditional, and payable on first request, under waiver of the disputability, setoff, and unexhausted remedies. |
(3) | The Lessor may use the security deposit already during the term of the lease for its outstanding claims. If the Lessee provided a guarantee, the Lessee must immediately provide an equivalent bank guarantee for the original amount. |
(4) | A guarantee shall expire respectively once the guarantee document is returned to the guarantor, but at the latest one month after proper return of the Leased Properties. |
(1) | There are no verbal side agreements to this contract. |
(2) | If individual provisions of this contract are void or unenforceable, the remainder of the contract shall not be affected. The void or unenforceable provisions shall be replaced by a valid or enforceable provision that fulfils the intended purpose under the contract in a legally valid form and comes closest to the intended commercial result. The contract parties are obliged to collaborate on establishing the valid or enforceable provisions. The same applies in case of any loopholes in this contract. |
(3) | Unless there is an exclusive place of jurisdiction, Jena shall be agreed as the place of jurisdiction for all legal disputes arising from this agreement. |
BioCentiv GmbH | 4antibody GmbH |
[signature] Dr. Klaus Ullrich Director | [signature] Dr. Ulf Grawunder Director |
Subtotal rent, net | €7,742.81 | ||
Center’s flat charge | €739.55 | ||
Prepaid incidental expenses | €4,000.00 | ||
Total rent, net | €12,482.36 | ||
19% VAT | €2,371.65 | ||
Total rent, gross | €14,854.01 |
BioCentiv GmbH | 4-Antibody AG Germany Branch | |
[signature] Dr. Klaus Ullrich Director | [signature] Dr. Ulf Grawunder Authorized Agent | [signature] Dr. Eva-Maria Stegemann Authorized Agent |
Leased Property | Area | Type of Use | Price per m2 | Rent | Flat Charge | Prepaid Operating Costs | ||||||||
0.00 m2 | €0.00 | €0.00 | €0.00 | €0.00 | ||||||||||
Open Space SP 06 – Outdoor Parking Space | 1.00 m2 | €30.00 | €30.00 | €0.00 | €0.00 | |||||||||
Open Space SP 08 – Outdoor Parking Space | 1.00 m2 | €30.00 | €30.00 | €0.00 | €0.00 | |||||||||
Open Space SP 09 – Outdoor Parking Space | 1.00 m2 | €30.00 | €30.00 | €0.00 | €0.00 | |||||||||
Open Space TG1 03 – Underground Parking Space | 1.00 m2 | €40.00 | €40.00 | €0.00 | €0.00 | |||||||||
Open Space TG1 04 – Underground Parking Space | 1.00 m2 | €40.00 | €40.00 | €0.00 | €0.00 | |||||||||
Open Space TG1 10 – Underground Parking Space | 1.00 m2 | €40.00 | €40.00 | €0.00 | €0.00 | |||||||||
Open Space TG1 13 – Underground Parking Space | 1.00 m2 | €40.00 | €40.00 | €0.00 | €0.00 | |||||||||
Open Space TG1 37 – Underground Parking Space | 1.00 m2 | €40.00 | €40.00 | €0.00 | €0.00 | |||||||||
Open Space TG1 41 – Underground Parking Space | 1.00 m2 | €40.00 | €40.00 | €0.00 | €0.00 | |||||||||
Open Space TG1 47 – Underground Parking Space | 1.00 m2 | €40.00 | €40.00 | €0.00 | €0.00 | |||||||||
Open Space TG1 48 – Underground Parking Space | 1.00 m2 | €40.00 | €40.00 | €0.00 | €0.00 | |||||||||
Open Space TG1 49 – Underground Parking Space | 1.00 m2 | €40.00 | €40.00 | €0.00 | €0.00 | |||||||||
Room 1.201 | 26.26 m2 | 2.1 Office Spaces | €8.00 | €210.08 | €39.39 | €0.00 | ||||||||
Room 1.202 | 26.57 m2 | 2.1 Office Spaces | €8.00 | €212.56 | €39.86 | €2,000.00 | ||||||||
Room 1.203 | 47.54 m2 | 3.3. Technological Lab | €17.00 | €808.18 | €71.31 | €400.00 | ||||||||
Room 1.204 | 49.35 m2 | 3.3. Technological Lab | €17.00 | €838.95 | €74.03 | €600.00 | ||||||||
Room 1.205 | 48.93 m2 | 3.3. Technological Lab | €17.00 | €831.81 | €73.40 | €600.00 | ||||||||
Room 1.206 | 49.70 m2 | 3.3. Technological Lab | €17.00 | €844.90 | €74.55 | €0.00 | ||||||||
Room 1.207 | 51.77 m2 | 3.3. Technological Lab | €17.00 | €880.09 | €77.66 | €0.00 | ||||||||
Room 1.208 | 42.66 m2 | 3.3. Technological Lab | €15.50 | €661.23 | €63.99 | €0.00 | ||||||||
Room 1.209 | 6.31 m2 | 4.1 Storage spaces | €5.00 | €31.55 | €9.47 | €0.00 | ||||||||
Room 2.301 | 26.20 m2 | 2.1 Office Spaces | €8.00 | €209.60 | €39.30 | €0.00 | ||||||||
Room 2.303 | 49.07 m2 | 3.3. Technological Lab | €17.00 | €834.19 | €73.61 | €400.00 | ||||||||
Room 2.305 | 48.86 m2 | 3.3. Technological Lab | €17.00 | €830.62 | €73.29 | €0.00 | ||||||||
Room 2.309 | 6.31 m2 | 4.1 Storage spaces | €5.00 | €31.55 | €9.47 | €0.00 | ||||||||
Room M1.014.4 | 7.90 m2 | 4.1 Storage spaces | €5.00 | €39.50 | €11.85 | €0.00 | ||||||||
Room M1.014.5 | 5.60 m2 | 4.1 Storage spaces | €5.00 | €28.00 | €8.40 | €0.00 |
Monday, 11/01/2010 | Innocad® | Page 1 of 2 |
BioCentiv GmbH | 4-Antibody AG Germany Branch | |
[signature] Dr. Klaus Ullrich Director | [signature] Dr. Robert Burns Director | [signature] Dr. Luis Martin-Parras Authorized Agent |
BioCentiv GmbH Winzerlaer Strasse 2 07745 Jena Tel. +49 3641 508600 Fax +49 3641 508610 E-mail mail@biocentiv.com Website www.biocentiv.com Chairperson of the Supervisory Board Prof. Dr. A. Tünnermann Director Dr. K. Ullrich Sparkasse Jena-Saale-Holzland BRN 830 530 30 Account 2 224 IBAN DE45 8305 3030 0000 0022 24 BIC HELA DE F1 JEN Commercial Reg. No. 207546, District Court of Jena Tax ID No. 161/106/08733 VAT ID No. DE198475335 Tax ID No. 162/106/03011 |
Subtotal rent, net | €8,891.11 | ||
Center’s flat charge, net | €859.20 | ||
Prepaid incidental expenses | €7,959.93 | ||
Total rent, net | €17,710.24 | ||
19% VAT | €3,364.95 | ||
Total rent, gross | €21,075.19 |
Subtotal rent, net | €8,891.11 | ||
Center’s flat charge, net | €859.20 | ||
Prepaid incidental expenses | €6,279.98 | ||
Total rent, net | €16,030.29 | ||
19% VAT | €3,045.76 | ||
Total rent, gross | €19,076.05 |
BioCentiv GmbH | 4-Antibody AG Germany Branch | |
[signature] Dr. Klaus Ullrich Director | [signature] Dr. Robert Burns Director | [signature] Dr. Luis Martin-Parras Authorized Agent |
1. | I have reviewed this Quarterly Report on Form 10-Q of Agenus Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report; |
4. | The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have: |
a. | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b. | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting principles; |
c. | evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d. | disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and |
5. | The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent function): |
a. | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and |
b. | any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting. |
Date: | May 9, 2014 | /s/ GARO H. ARMEN, PH.D. | |
Garo H. Armen, Ph.D. | |||
Chief Executive Officer and Principal Executive Officer |
1. | I have reviewed this Quarterly Report on Form 10-Q of Agenus Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report; |
4. | The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have: |
a. | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b. | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting principles; |
c. | evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d. | disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and |
5. | The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent function): |
a. | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and |
b. | any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting. |
Date: | May 9, 2014 | /s/ CHRISTINE M. KLASKIN | |
Christine M. Klaskin | |||
VP, Finance and Principal Financial Officer |
(i) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
(ii) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
/s/ GARO H. ARMEN, PH.D. | |
Garo H. Armen, Ph.d. | |
Chief Executive Officer and Principal Executive Officer | |
/s/ CHRISTINE M. KLASKIN | |
Christine M. Klaskin | |
VP, Finance and Principal Financial Officer |
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