Asset Purchase Agreement dated August 17, 2021, by and between Aerpio Pharmaceuticals, Inc. and EyePoint Pharmaceuticals, Inc

Exhibit 10.1

ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT (the “Agreement”) is entered into as of August 17, 2021 (the “Effective Date”), by and between Aerpio Pharmaceuticals, Inc., a Delaware corporation on behalf of itself and its wholly-owned subsidiaries (“Seller”), and EyePoint Pharmaceuticals, Inc., a Delaware corporation (“Purchaser”).

RECITALS

WHEREAS, Seller desires to sell, assign, transfer, convey and deliver to Purchaser, and Purchaser desires to purchase, acquire and accept from Seller, the Transfer Assets (as defined below), upon the terms and subject to the conditions hereinafter set forth.

AGREEMENT

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Purchaser and Seller hereby agree as follows:

1. Sale of Transfer Assets. Upon the terms and subject to the conditions of this Agreement, in consideration of and in exchange for the consideration set forth in Sections 3, Seller agrees, on the Closing Date (as defined below), to sell, transfer, assign and convey to Purchaser, and Purchaser hereby agrees to purchase, acquire and accept from Seller, all of Seller’s right, title and interest in and to the Transfer Assets (as defined below) “as is”, “where is”, and without recourse (except as expressly set forth in this Agreement), and (except as set forth in Section 8 below) without representations or warranties of any kind, express or implied, including, without limitation, any warranties as to quiet enjoyment, merchantability, value, useful life, fitness for intended use, or similar representations and warranties. On the Closing Date, Seller and Purchaser shall execute and deliver to each other a Bill of Sale, substantially in the form attached hereto as Exhibit A, and a Patent Assignment, substantially in the form attached hereto as Exhibit D. For purposes of this Agreement, “Transfer Assets” shall mean the following:

(a) the patents and patent applications listed on Exhibit B attached hereto (the “Patents”).

2. Excluded Assets. Notwithstanding anything to the contrary in this Agreement, the Transfer Assets shall not include any of the Excluded Assets and the Excluded Assets shall not be transferred to Purchaser, but shall be retained by Seller. For purposes of this Agreement, “Excluded Assets” shall include all assets of Seller not expressly listed as “Transfer Assets”, including without limitation the following items:

(a) all cash, cash equivalents and uncashed checks held or received by Seller prior to the Closing Date;

(b) any right that Seller has with respect to tax refunds, claims for tax refunds and tax attributes arising prior to the Closing Date;

(c) except as otherwise expressly set forth herein, all books and records of the Seller;

(d) the rights or obligations granted to the Seller under this Agreement;

(e) any rights or claims under any insurance policies of the Seller; and

(f) any claims or causes of action arising from or relating to the Seller’s use, ownership or operation of the Transfer Assets prior to the Closing, other than claims for infringement or misappropriation of the Patents and other intellectual property rights included in the Transfer Assets.

3. Consideration. As consideration for the sale, transfer, assignment and conveyance to Purchaser of the Transfer Assets on the Closing Date, Purchaser shall, within one business day following the Effective Date, pay Seller a one-time, non-refundable (except as provided in Section 14(n)), non-creditable payment of Four Hundred Fifty Thousand Dollars ($450,000) (the “Purchase Amount”). Upon Seller’s receipt of the Purchase Amount, the Purchase Amount shall be held in escrow pursuant to the terms of the Joint Escrow Instructions attached to this Agreement as Exhibit E. On the Effective Date, Purchaser and Seller shall execute and deliver to the individual designated as the escrow agent in the Joint Escrow Instructions or person’s designee (the “Escrow Agent”) the Joint Escrow Instructions, which will be held and used by the Escrow Agent pursuant to the terms of the Joint Escrow Instructions. For the avoidance of doubt, the Joint Escrow Instructions provide that the Purchaser and Seller shall instruct the Escrow Agent to release the Purchase Amount to Seller following the satisfaction or waiver of the conditions precedent set forth in Sections 6 and 7.

4. Obligations Assumed.

(a) Liabilities. Purchaser agrees, upon consummation of, and effective as of, the Closing, to assume all liabilities, obligations and commitments of Seller of any nature whatsoever under or related the Transfer Assets, other than liabilities arising out of or relating to conduct accruing prior to the Closing Date (collectively, the “Assumed Liabilities”).

(b) Liabilities and Obligations Not Assumed. Except for the Assumed Liabilities, Purchaser shall not assume or become obligated in any way to pay any liabilities, debts or obligations of Seller whatsoever, including but not limited to any liabilities or obligations now or hereafter arising from Seller’s business activities that took place prior to the Closing or any liabilities arising out of or connected to any action or inaction of Seller in connection with the liquidation and winding down of Seller’s business. All liabilities, debts and obligations of Seller not expressly assumed by Purchaser hereunder as Assumed Liabilities are hereinafter referred to as the “Excluded Liabilities.”

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(c) No Obligations to Third Parties. The execution and delivery of this Agreement shall not be deemed to confer any rights upon any person or entity other than the parties hereto, or make any person or entity a third party beneficiary of this Agreement, or to obligate either party to any person or entity other than the parties to this Agreement. Assumption by Purchaser of any liabilities or obligations of Seller under Section 4(a) shall in no way expand the rights or remedies of third parties against Purchaser as compared to the rights and remedies such parties would have against Seller if the Closing were not consummated.

5. Closing. The closing of the purchase and sale of the Transfer Assets (the “Closing”) shall occur promptly following the satisfaction or waiver of the conditions precedent set forth in Sections 6 and 7 below at such time and place as Seller and Purchaser mutually agree, orally or in writing, and may be effected by the email or facsimile exchange of closing deliverables hereunder (or in such other manner, as the parties shall mutually agree in writing). The date on which the Closing is consummated is referred to herein as the “Closing Date.” Assets meeting the definition of Transfer Assets delivered to Purchaser by or on behalf of Seller either on or after the Closing Date shall be deemed to be Transfer Assets for all purposes of this Agreement.

(a) With respect to the materials listed on Exhibit C attached hereto (the “Materials”), each of Seller and Purchaser shall use commercially reasonable efforts (A) to endeavor to obtain the consents, approvals, clearances, ratifications, permissions, authorizations or waivers from any third parties that control the Materials to cause Purchaser to take title or assume (as applicable) the Materials as of and subject to the Closing (provided that neither Seller nor Purchaser shall be required to expend money, commence, defend or participate in any litigation or offer or grant any accommodation (financial or otherwise) to any such third party), and (B) to cooperate, upon written request of Purchaser, in endeavoring to obtain for Purchaser, at no cost to Seller, an arrangement to provide to the Purchaser, in compliance with law, substantially comparable interests in the Materials as held by Seller immediately prior to the closing. For avoidance of doubt, Seller shall be deemed to have satisfied its obligations under the preceding sentence if, on or before the Closing Date:

i. With respect to the Materials under the heading “Singota Materials,” Seller shall have delivered a Letter of Assignment, in the form previously delivered to Purchaser and signed by the Seller, to the possessor of such Materials.

ii. With respect to the Materials under the heading “Aroz Technologies Materials,” Seller shall have delivered a Letter of Assignment, in the form previously delivered to Purchaser and signed by the Seller, to the possessor of such Materials.

iii. With respect to the Materials under the heading “Charles River Materials,” Seller shall have delivered a Letter of Assignment, in the form previously delivered to Purchaser and signed by the Seller, to the possessor of such Materials.

iv. With respect to the Materials under the heading “Intrinsik IND Materials,” Seller shall have delivered letters to the FDAs in substantially the form attached hereto as Exhibit F-1 and Exhibit F-2, duly executed by Seller, providing notification of the transfer to the Purchaser of all rights of the Seller in and to such Materials.

v. With respect to the Materials under the heading “Intrinsik Other Materials,” Seller shall have delivered a Letter of Assignment, in the form previously delivered to Purchaser and signed by the Seller, to the possessor of such Materials.

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vi. With respect to the Materials under the heading “SDC Materials,” Seller shall have delivered a Letter of Assignment, in the form previously delivered to Purchaser and signed by the Seller, to the possessor of such Materials.

vii. With respect to the Materials under the heading “MedPace Materials,” Seller shall have delivered a Letter of Assignment, in the form previously delivered to Purchaser and signed by the Seller, to the possessor of such Materials.

viii. With respect to the Materials under the heading “Experis Materials,” Seller shall have delivered a Letter of Assignment, in the form previously delivered to Purchaser and signed by the Seller, to the possessor of such Materials.

ix. With respect to the Materials under the heading “Iron Mountain Materials,” Seller shall have delivered a Letter of Assignment, in the form previously delivered to Purchaser and signed by the Seller, or such other documentation as may be appropriate to convey the Iron Mountain Materials to Purchaser at Closing, to the possessor of such Materials.

x. With respect to the Materials under the heading “Electronic Records,” Seller shall have made such Materials available for download by Purchaser.

(b) Following the Effective Date and prior to the Closing, Seller will make available to Purchaser some or all of the Materials and such Materials shall be deemed to be Confidential Information under that certain Bilateral Confidentiality and Non-Disclosure Agreement, dated March 23, 2021, between Seller and Purchaser. In the event that this Agreement is terminated prior to Closing, promptly following such termination, Purchaser shall destroy or return to Seller, at Seller’s sole discretion, any Materials delivered or made available to Purchaser in accordance with Seller’s instructions.

6. Seller’s Conditions Precedent. Seller’s obligations to consummate the Closing shall be conditioned upon the satisfaction or waiver of the following:

(a) The representations and warranties of Purchaser contained in Section 9 shall be true on and as of Closing.

(b) The Purchaser shall have performed or complied with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Purchaser on or before the Closing.

(c) The Seller shall have consummated a merger with Aspen Merger Subsidiary, Inc., a Delaware corporation (the “Merger”).

(d) The Purchaser shall have executed and delivered to the Escrow Agent the Joint Escrow Instructions in the form attached as Exhibit E hereto.

(e) As of the Closing Date, the sale of the Transfer Assets by Seller or any of the transactions contemplated hereby are not prohibited by any stay or injunction in any litigation, governmental action, or other proceeding, including, without limitation, the “automatic stay” under 11 U.S.C. § 362 in any pending case under Title 11 of the United States Code by or against Seller.

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7. Purchaser’s Conditions Precedent. Purchaser’s obligations to consummate the Closing shall be conditioned upon the satisfaction or waiver of the following:

(a) The representations and warranties of Seller contained in Section 8 shall be true on and as of Closing.

(b) The Seller shall have performed or complied with all agreements, obligations and conditions contained in this Agreement and required to be performed or complied with by it on or before the Closing, including, but not limited to, Seller’s obligations pursuant to Section 5(a).

(c) As of the Closing Date, the sale of the Transfer Assets by Seller or any of the transactions contemplated hereby are not prohibited by any stay or injunction in any litigation, governmental action, or other proceeding, including, without limitation, the “automatic stay” under 11 U.S.C. § 362 in any pending case under Title 11 of the United States Code by or against Seller.

(d) The Seller shall have executed and delivered to the Escrow Agent the Joint Escrow Instructions in the form attached as Exhibit E hereto.

(e) The Seller shall have executed and delivered to Purchaser a Bill of Sale in the form attached as Exhibit A hereto and a Patent Assignment in the form attached hereto as Exhibit D, with respect to the Transfer Assets.

8. Representations and Warranties of Seller. Except as to Seller’s representations and warranties expressly provided below, the Transfer Assets are being sold “as is,” and “where is” with no express or implied representations or warranties of any kind, nature, or type whatsoever from or on behalf of, Seller. For purposes of this Agreement, the “Knowledge of Seller” means the actual knowledge of Seller, without any duty of inquiry.

(a) Seller (i) is a corporation duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation and (ii) has all requisite corporate power and authority to execute and deliver this Agreement and to perform the transactions contemplated hereby.

(b) The execution, delivery, and performance by Seller of this Agreement and the consummation of the transaction contemplated hereby are within the power of Seller and have been duly authorized by all necessary actions on the part of Seller. The execution of this Agreement by Seller constitutes, or will at the Closing constitute, a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as limited by bankruptcy, insolvency, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

(c) No consent, approval, authorization or order of, or registration or filing (other than any filing to be made with the U.S. Patent Office to record the Patent Assignment) with, or notice to, any court or governmental agency or body having jurisdiction or regulatory authority over Seller (or any of its properties) is required for (i) Seller’s execution and delivery of this Agreement (and each agreement executed and delivered by it in connection herewith) or (ii) the consummation by Seller of the transactions contemplated by this Agreement (and each

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agreement executed and delivered by it in connection herewith) or, to the extent so required, such consent, approval, authorization, order, registration, filing or notice has been obtained, made or given (as applicable) and is still in full force and effect. Notwithstanding the foregoing, except with respect to Patents that are abandoned or expired as of the Effective Date, Seller has paid and, as of the Effective Date, is current on the payment of all maintenance fees, annuities, and the like, due and owing to any governmental bodies and other third parties in connection with the Transfer Assets, and Seller has obtained all necessary intellectual property assignments from inventors to Seller in connection with the Transfer Assets, except, in each case, as would not reasonably be expected to have a material adverse effect.

(d) Seller has good and marketable title to and, on the Closing Date, Seller will convey to Purchaser, all of the Transfer Assets, free and clear from any lien, security interest or other encumbrance.

(e) The execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby will not conflict with, or result in a breach of or a constitute a default under, or result in the creation of any lien, security interest or other encumbrance upon the Transfer Assets under, any provision of (i) Seller’s certificate of incorporation or bylaws; (ii) any applicable law; or (iii) any contract to which Seller is a party or by which any Transfer Asset is bound.

(f) There is no judicial, governmental or administrative action, investigation, audit, claim, suit, arbitration, proceeding or other litigation to which Seller or any of its affiliates is a party, or to which the Transfer Assets are subject, that is pending or, to the Knowledge of Seller, threatened. No order, judgment, settlement agreement or stipulation has been issued or entered into that restricts in any respect the use, provision, transfer, assignment or licensing of the Transfer Assets.

(g) Except for the representations and warranties contained in this Section 8, neither Seller nor any other person or entity makes any other express or implied representation or warranty with respect to Seller, any of its affiliates or the transactions contemplated by this Agreement, and Seller disclaims any other representations or warranties, whether made by Seller, any of its affiliates, or any of their respective officers, directors, employees, agents or representatives. Except for the representations and warranties contained in this Section 8, Seller hereby disclaims all liability and responsibility for, or any use by Purchaser or its affiliates or representatives of, any representation, warranty, projection, forecast, statement or information made, communicated or furnished (orally or in writing) to Purchaser or its affiliates or representatives (including any opinion, information, projection or advice that may heretofore have been or may hereafter be made available to Purchaser or its affiliates or representatives, whether in any “data rooms,” “management presentations,” or “break out sessions,” in response to questions submitted by or on behalf of Purchaser or otherwise by any director, officer, employee, agent, or representative of Seller or any of its respective affiliates). The parties agree that any matter, condition or set of facts which is more specifically (rather than generally or by implication) covered in any of the representations and warranties of this Section 8 shall be solely governed by such more specific representation and warranty without reference to or inclusion within a more generalized representation and warranty that but for this sentence could be applicable to such matter, condition or set of facts.

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9. Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller, as follows:

(a) Purchaser (i) is a corporation duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation and (ii) has all requisite corporate power and authority to execute and deliver this Agreement and to perform the transactions contemplated hereby.

(b) The execution, delivery, and performance by Purchaser of this Agreement and the consummation of the transaction contemplated hereby are within the power of Purchaser and have been duly authorized by all necessary actions on the part of Purchaser. The execution of this Agreement by Purchaser constitutes, or will at the Closing constitute, a legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except as limited by bankruptcy, insolvency, or other laws of general application relating to or affecting the enforcement of creditors’ right generally and general principles of equity.

(c) No consent, approval, authorization or order of, or registration or filing with, or notice to, any court or governmental agency or body having jurisdiction or regulatory authority over Purchaser (or any of its properties) is required for (i) Purchaser’s execution and delivery of this Agreement (and each agreement executed and delivered by it in connection herewith) or (ii) the consummation by Purchaser of the transactions contemplated by this Agreement (and each agreement executed and delivered by it in connection herewith) or, to the extent so required, such consent, approval, authorization, order, registration, filing or notice has been obtained, made or given (as applicable) and is still in full force and effect.

(d) No person or entity acting on behalf of Purchaser or any of its affiliates or under the authority of any of them is or will be entitled to any “brokers” or “finders” fee or any other commission or similar fee, directly or indirectly, from Purchaser or any of its affiliates in connection with any of the transactions contemplated hereby.

(e) Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Seller is not making any representations or warranties whatsoever, express or implied, beyond those expressly given by Seller in Section 8, and Purchaser acknowledges and agrees that, except for such representations and warranties contained therein, the Transfer Assets of Seller are being transferred to Purchaser on a “where is” and, as to condition, “as is” basis. Any claims Purchaser may have for breach of representation or warranty shall be based solely on the representations and warranties of Seller set forth in Section 8. Purchaser further represents that none of Seller, its affiliates nor any other person or entity has made, and Purchaser has not relied upon, any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding Seller, the Transfer Assets or the transactions contemplated by this Agreement not expressly set forth in Section 8 and Purchaser hereby expressly disclaims any reliance on any representations or warranties other than those expressly set forth in Section 8. Purchaser hereby acknowledges and agrees that none of Seller, any of its affiliates nor any other person or entity will have or be subject to any liability to Purchaser or any other person or entity resulting from the distribution to Purchaser or its representatives or Purchaser’s use of any such information, including any confidential memoranda distributed on behalf of Seller relating to the Transfer Assets or other publications, data room information or any

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other document or information in any form provided to Purchaser or its representatives in connection with the sale of the Transfer Assets and the transactions contemplated hereby other than this Agreement including its exhibits and the documents delivered by Seller at the Closing pursuant to express requirements of this Agreement. Purchaser acknowledges that it (i) has conducted, to its satisfaction, its own independent investigation of the condition of the Transfer Assets and the business of Seller in making its determination to proceed with the transactions contemplated by this Agreement, Purchaser has relied on the results of its own independent investigation and, except with respect to those representations or warranties expressly set forth in Section 8, waives any right it may have against Seller with respect to any omission of any kind on the part of Seller of any potentially material information other than a failure to disclose information constituting material exceptions to the representations and warranties of set forth in Section 8, (ii) had adequate access to Seller’s books and records, contracts, agreements and documents, and employees, agents and representatives; and (iii) has had such opportunity to seek accounting, legal and other advice or information in connection with its entry into this Agreement and the other documents referred to herein relating to the consummation of the transactions contemplated hereby and thereby as it has seen fit.

10. Survival; Limitations of Liability. All representations and warranties contained in this Agreement shall survive the Closing and shall terminate on the earlier of (i) date that is forty-five (45) days following the Closing Date or (ii) the closing date of the Merger. IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR RELATED TO THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWSOEVER ARISING, EITHER OUT OF BREACH OF THIS AGREEMENT (INCLUDING BREACH OF EXPRESS OR IMPLIED WARRANTY), NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER THEORY, EVEN IF THE OTHER PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY CLAIMS BASED UPON OR ARISING FROM (A) ANY ACTION SEEKING EQUITABLE REMEDY OR SPECIFIC PERFORMANCE BROUGHT AGAINST SELLER FOR FAILURE TO DELIVER THE TRANSFER ASSETS AS CONTEMPLATED BY SECTION 1, OR (B) SELLER’S ACTUAL FRAUD (AS DEFINED BELOW), SELLER’S LIABILITY FOR DAMAGES ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO THE VALUE OF THE PURCHASE AMOUNT. Recovery of the Purchase Amount by Purchaser shall be Seller’s sole liability and Purchaser’s sole remedy for the matters described in this Section 10, and Purchaser shall not be entitled to any other remedy or indemnification rights or claims of any nature whatsoever against Seller, its affiliates or any other person or entity in respect thereof or otherwise in connection with this Agreement. For purposes of this Agreement, “Actual Fraud” means an inaccurate representation or warranty contained in this Agreement if, at the time such representation or warranty was made, Seller had actual knowledge of the inaccuracy of such representation or warranty and failed to notify Purchaser in writing of, or otherwise correct, the same.

11. Expenses. Purchaser and Seller shall each bear their own expenses incurred in connection with the transactions contemplated by this Agreement.

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12. Transfer Taxes. Purchaser shall pay all sales, use, excise, stamp, documentary, filing, recording, transfer or similar fees or taxes or governmental charges, as levied by any taxing authority or governmental agency in connection with the sale and transfer of Transfer Assets contemplated by this Agreement. Prior to the Closing Date, (a) Purchaser shall deliver to Seller evidence that these transactions are exempt from sales tax, or (b) Purchaser shall remit to Seller any sales tax due as a result of these transactions. Seller hereby agrees to file all necessary documents with respect to such amounts in a timely manner.

13. Notices. Any notice or other communication provided for herein or given hereunder to a party hereto shall be in writing, and shall be deemed given when personally delivered to a party set forth below or when sent by telecopy providing a transmission confirmation (provided that such notice is immediately sent by a recognized overnight delivery service), or three (3) days after mailed by first class mail, registered, or certified, return receipt requested, postage prepaid, or when delivered by a nationally-recognized overnight delivery service, with proof of delivery, delivery charges prepaid, in any case addressed as follows.

To Seller:

Aerpio Pharmaceuticals, Inc.

c/o Regina Marek

10663 Loveland-Madeira Road #168

Loveland, Ohio 45140

with a copy to:

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

Attention: Kingsley Taft

To Purchaser:

EyePoint Pharmaceuticals, Inc.

480 Pleasant Street, Suite A210

Watertown, MA 02472

Attention: Chief Legal Officer

14. Miscellaneous.

(a) Entire Agreement. This Agreement, together with the schedules and exhibits attached hereto, constitutes the entire agreement of the parties hereto regarding the purchase and sale of the Transfer Assets, and all prior agreements, understandings, representations and statements regarding such subject matter, oral or written, are superseded hereby.

(b) Captions. Section captions used in this Agreement are for convenience only, and do not affect the construction of this Agreement.

(c) Counterpart Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission or by e-mail in .PDF or similar electronic format shall be effective as delivery of a manually executed counterpart thereof and shall be deemed an original signature for all purposes.

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(d) Severability. If any provision of this Agreement shall for any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid or unenforceable provision had never been contained in this Agreement.

(e) Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by Purchaser and Seller, and no waiver of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the party against which such waiver is to be enforced. No waiver by any party hereto of any default, misrepresentation, condition precedent or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any other default, misrepresentation, condition precedent or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

(f) Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts (without reference to conflicts of law principles).

(g) Waiver of Trial by Jury. SELLER AND PURCHASER HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. SELLER AND PURCHASER HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.

(h) Submission to Jurisdiction; Selection of Forum. EACH PARTY HERETO (A) AGREES THAT IT SHALL BRING ANY ACTION OR PROCEEDING IN RESPECT OF ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTAINED IN OR CONTEMPLATED BY THIS AGREEMENT, WHETHER IN TORT OR CONTRACT OR AT LAW OR IN EQUITY, EXCLUSIVELY IN (I) THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS OR IN THE EVENT THAT SUCH COURT LACKS SUBJECT MATTER JURISDICTION OVER THE ACTION OR PROCEEDING, (II) IN AN APPROPRIATE STATE COURT LOCATED IN THE COUNTY OF SUFFOLK, MASSACHUSETTS (THE “CHOSEN COURT”), (B) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE CHOSEN COURT, (C) WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,

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ANY OBJECTION TO LAYING VENUE IN ANY SUCH ACTION OR PROCEEDING IN THE CHOSEN COURT, (D) WAIVES ANY ARGUMENT THAT THE CHOSEN COURT IS AN INCONVENIENT FORUM OR DOES NOT HAVE JURISDICTION OVER ANY PARTY THERETO, AND (E) AGREES THAT SERVICE OF PROCESS UPON ANY PARTY IN ANY SUCH ACTION OR PROCEEDING SHALL BE EFFECTIVE IF NOTICE IS GIVEN IN ACCORDANCE WITH SECTION 13 OF THIS AGREEMENT.

(i) Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean “including without limitation.”

(j) No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person or entity other than the parties hereto and their respective successors and permitted assigns.

(k) Successor and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without obtaining the prior written consent of the other party; provided, however, that each party shall be entitled, without the prior written consent of the other party, to assign its rights and obligations under this Agreement to an affiliate or to its successor in connection with the sale of all or substantially all of its business or assets related to this Agreement, whether by way of merger, consolidation, sale of stock, sale of assets, operation of law or otherwise, subject in each case to the assignee agreeing in writing to be bound by the terms and conditions of this Agreement. Any attempted assignment, delegation or transfer by a party in violation hereof shall be null and void. Subject to the foregoing, this Agreement shall be binding on the parties and their successors and permitted assigns.

(l) Confidentiality.

i. Purchaser agrees that it will treat in complete confidence all documents, materials and other information, made available by Seller to the Purchaser in connection with the transaction contemplated herein or the negotiation of this Agreement (the “Confidential Information”) and shall use such Confidential Information solely to evaluate the proposed purchase and sale of the Transfer Assets (the “Purpose”); provided, however, that after Closing Date Purchaser may use or disclose any Confidential Information included in the Transfer Assets or otherwise necessary to exercise its rights or obligations under this Agreement. Purchaser shall not, directly or indirectly, disclose, publish, divulge, furnish or make accessible to anyone all or any portion of the Confidential Information, other than (A) to Purchaser’s employees and consultants who are required to have access to such Confidential Information in connection with the Purpose, (B) to Purchaser’s professional advisers (e.g., lawyers and accountants), provided that any and all such employees and consultants are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement and (C) retention of a copy of the Materials that constitute electronic

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records by Seller for ordinary archival and recordkeeping purposes. If the transactions contemplated hereby are not consummated, the Purchaser will promptly return to the Seller all Confidential Information. In addition to the restrictions set forth in this Section 14(l), but subject to the terms of Section 14(m), each party agrees that it shall not, at any point prior to or after the Closing Date, without the prior written consent of the other party, disclose the existence or terms or conditions of this Agreement.

ii. Confidential Information shall not include any information that (A) at the time of disclosure is available to the public, (B) after the date of disclosure becomes generally available to the public, except through a breach of this Section 14(l), (C) is independently developed by the employees or agents of the Purchaser without use of or reference to the Confidential Information, (D) that is received from a third party without restriction and without breach of any agreement between such third party and the Seller.

iii. In the event that the Purchaser is required by law to make any disclosure of any of the Confidential Information, by subpoena, judicial or administrative order or otherwise, the Purchaser shall first give written notice of such requirement to the Seller, and shall permit the Seller to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Seller in seeking to obtain such protection.

iv. Each party acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to the other party for which the other party could not be adequately compensated by money damages. Accordingly, each party agrees that, in addition to all other remedies available to the other party in an action at law, in the event of any breach or threatened breach by a party of the terms of this Section 14(l), the other party shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to seek temporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Section 14(l).

(m) Public Announcements. No party shall issue or make any public announcement, press release or other public disclosure regarding this Agreement or its subject matter without the prior written approval of the other party, except for any such disclosure that is, in the opinion of the disclosing party’s counsel, required by applicable law (including securities regulations) or the rules of a stock exchange on which the securities of the disclosing party are listed. Notwithstanding anything to the contrary contained in this Agreement, following the Closing, (i) Purchaser and its licensees, sublicensees and other collaborators shall be permitted, without the prior approval of or prior notice to Seller, to disclose for any purpose, and to make publications and public presentations regarding, progress and results with respect to the development and commercialization of the Transfer Assets; and (ii) Purchaser shall be permitted, without the prior approval of or prior notice to Seller, to disclose the existence and terms of this Agreement, other than the amount of the Purchase Price, to actual and potential investors, licensees, sublicensees, collaborators and acquirers on a reasonable need-to-know basis under circumstances that reasonably ensure the confidentiality thereof. If a party is, in the opinion of its counsel, required by applicable law (including securities regulations) or the rules of a stock exchange on which its securities are listed to make a public disclosure regarding this Agreement or its subject matter, such party shall, if practicable under the circumstances, submit the proposed

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disclosure in writing to the other party and provide the other party a reasonable opportunity to comment thereon. The contents of any public announcement, press release or other public disclosure that has been made in compliance with this Section 14(l) may then be re-released by any party without a requirement for advance notice or re-approval.

(n) Termination. Each of Seller and Purchaser shall have the right to terminate its obligations to complete the Closing and the transactions contemplated in connection therewith in the event that the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after such other party receives notice from the first party of such material breach. For the avoidance of doubt, the Joint Escrow Instructions provide that the Purchaser and Seller shall instruct the Escrow Agent to release the Purchase Amount to Purchaser following any such termination.

[Signature Page Follows]

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IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be executed as of the Effective Date.

Signature page to Asset Purchase Agreement

EXHIBIT A

BILL OF SALE

[Omitted pursuant to Item 601(a)(5) of Regulation S-K]

EXHIBIT B

TRANSFER ASSETS

Patents and Patent Applications

ATTACHMENT A

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