EXCLUSIVE AGREEMENT

EX-10.48 17 d72850dex1048.htm EX-10.48 EX-10.48

Exhibit 10.48

[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

EXCLUSIVE AGREEMENT

This Agreement between THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY (“Stanford”), an institution of higher education having powers under the laws of the State of California, and Eiccose, LLC (“Eiccose”), a Delaware limited liability company having a principal place of business at 1115 Lafayette Street, Santa Clara, CA 95050, is effective on the 1st day of May 2015 (“Effective Date”).

1	BACKGROUND

Stanford has an assignment of an invention describing the inhibition of leukotrienes, which are modulators of inflammation and immune responses in the lung, for improved right ventricle function, and attenuation of pulmonary arterial hypertension (PAH). This represents a novel preventative and therapeutic approach to PAH. The invention is entitled “Therapeutic formulations containing Leukotriene production inhibitors for the treatment of pulmonary arterial hypertension,” was invented in the laboratory of Professor Mark Nicolls, an employee of Stanford and the United States Department of Veterans Affairs (“VA”), and is described in Stanford Docket S11-438. The invention was made in the course of research supported by the National Institutes of Health. Stanford wants to have the invention perfected and marketed as soon as possible so that resulting products may be available for public use and benefit.

This Agreement is subject to the Cooperative Technology Administration Agreement between Stanford and the VA, effective January 31, 2013, that authorizes Stanford to exclusively manage this invention on behalf of both Stanford and the VA.

2	DEFINITIONS

2.1

“Distributor and End-User Sublicense” means a sublicense under the Licensed Intellectual Property pursuant to which a third party is licensed to reproduce, distribute, use, perform, display, maintain and support, import, sell and offer for sale Licensed Products created and offered by Company. Revenue derived by Company from Distributor and End-User Sublicenses is to be included in Revenue and is subject to 7.10.

2.2

“Exclusive” means that, subject to Sections 3.3, 3.4, 5.1 and 5.2, Stanford will not grant further licenses under the Licensed Patents in the Licensed Field of Use in the Licensed Territory.

2.3

“Licensed Field of Use” means all uses.

2.4

“Licensed Patent” means Stanford and the VA’s U.S. Provisional Patent Applications, Serial Number [ * ], filed [ * ], 2012, and Serial Number [ * ], filed [ * ], 2012, U.S. Patent Application Serial Number [ * ] filed [ * ], 2013, and PCT Application [ * ] filed [ * ], 2013, any foreign patent application corresponding

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thereto, and any divisional, continuation, or reexamination application of any of the foregoing, and each patent that issues or reissues from any of these patent applications. Any claim of an unexpired Licensed Patent is presumed to be valid unless it has been held to be invalid by a final judgment of a court of competent jurisdiction from which no appeal can be or is taken. “Licensed Patent” includes any continuation-in-part (CIP) patent application filed within two years of the Effective Date that claims priority to U.S. Patent Application Serial Number [ * ] to the extent the subject matter claimed therein is dominated by the original U.S. Patent Application Serial Number [ * ]. CIP’s do not include CIP’s that have different inventors than the original application or that are burdened by, for example, sponsored research or any other collaboration between STANFORD and a third party. Neither party will file a CIP of a Licensed Patent without the other party’s written consent.

2.5

“Licensed Product” means a product or part of a product in the Licensed Field of Use the making, using, importing or selling of which, absent this license, infringes, induces infringement, or contributes to infringement of a Licensed Patent in the Licensed Territory.

2.6

“Licensed Territory” means the world.

2.7

“Net Sales” means all gross revenue received by Eiccose or sublicensees from the sale of Licensed Product. Net Sales excludes the following items (but only as they pertain to the making, using, importing or selling of Licensed Products, are included in gross revenue, and are separately billed):

(A)

import, export, excise and sales taxes, and custom duties;

(B)

costs of insurance, packing, and transportation;

(C)

costs of installation at the place of use;

(D)

cash, trade and quantity discounts and inventory allowances;

(E)

charge-back payments and credit for returns, allowances, or rebates.

Amounts received from the sale of Licensed Products among Eiccose and its Affiliates and sublicensees shall not be included in Net Sales unless the purchaser is an end user. Net Sales shall not include any amounts received for sales of Licensed Products supplied for use in clinical trials or under early access, compassionate use, named patient, indigent access, patient assistance or other reduced pricing programs.

2.8

“Indemnitees” means the VA, Stanford and Stanford Hospitals and Clinics, and their respective trustees, officers, employees, students, and agents.

2.9

“Sublicense” means any agreement between Eiccose and a third party that contains a grant of a license to the Licensed Patents regardless of the name given

[ * ] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

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to the agreement by the parties; however, an agreement to make, have made, use or sell Licensed Products on behalf of Eiccose is not considered a Sublicense.

2.10

“Nonroyalty Sublicensing Consideration” means all consideration, in whatever form, due from a sublicensee in return for the grant of a Sublicense of Eiccose’s rights hereunder or the right to distribute a Licensed Product, but excluding:

(A)

earned royalties or any similar payments calculated wholly as a function of sales of Licensed Product (royalties on product sales by sublicensees will be treated as if Eiccose made the sale of such product);

(B)

payments or reimbursement for sponsored research and/or development activities for Licensed Product;

(C)

payment for expenses actually incurred or paid by Eiccose for Licensed Patents;

(D)

payments for the purchase of equity in Eiccose to the extent of the fair market value of such equity; and

(E)

payments for loans made to Eiccose unless the loan is forgiven.

2.11

“Affiliate” means any person, corporation, or other business entity which controls, is controlled by, or is under common control with Eiccose; and for this purpose, “control” of a corporation means the direct or indirect ownership of more than fifty percent (50%) of its voting stock, and “control” of any other business entity means the direct or indirect ownership of greater than a fifty percent (50%) interest in the income of such entity.

2.12

“Fully Diluted Basis” means the total number of shares of Eiccose’s issued and outstanding common stock, assuming:

(A)

the conversion of all issued and outstanding securities convertible into common stock;

(B)

the exercise of all issued and outstanding warrants or options, regardless of whether then exercisable; and

(C)

the issuance, grant, and exercise of all securities reserved for issuance pursuant to any Eiccose stock or stock option plan then in effect.

GRANT

3.1

Grant. Subject to the terms and conditions of this Agreement, Stanford grants Eiccose a license under the Licensed Patents in the Licensed Field of Use to make, have made, use, import, offer to sell and sell Licensed Product in the Licensed Territory.

3.2

Exclusivity. The license is Exclusive, including the right to sublicense under Article 4, in the Licensed Field of Use beginning on the May 1, 2015 and

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continuing, on a country-by-country basis, until the expiration date of the last to expire of the Licensed Patents in such country.

3.3

Retained Rights. Stanford retains the right, on behalf of itself and all other non-profit research institutions, to practice the Licensed Patents for any non-profit purpose, including sponsored research and collaborations. Eiccose agrees that, notwithstanding any other provision of this Agreement, it has no right to enforce the Licensed Patents against any such institution. Stanford and any such other institution have the right to publish any information included in a Licensed Patent.

3.4

Specific Exclusion. Stanford does not:

(A)

grant to Eiccose any other licenses, implied or otherwise, to any patents or other rights of Stanford or the VA other than those rights granted under the Licensed Patents, regardless of whether the patents or other rights are dominant or subordinate to any Licensed Patent, or are required to exploit any Licensed Patent;

(B)

commit to Eiccose to bring suit against third parties for infringement, except as described in Article 14; and

(C)

agree to furnish to Eiccose any technology or technological information or to provide Eiccose with any assistance.

4	SUBLICENSING

4.1

Permitted Sublicensing. Eiccose may grant Sublicenses in the Licensed Field of Use only if Eiccose is developing or selling Licensed Products or is otherwise in compliance with Appendix A. Sublicenses with any exclusivity must include diligence requirements commensurate with the diligence requirements of Appendix A, to the extent applicable to the scope of the Sublicense. Stanford agrees that Eiccose may apportion a commercially reasonable percentage of Nonroyalty Sublicensing Consideration that is subject to sublicensing payments made to Stanford pursuant to Section 4.7, provided however that Eiccose provides Stanford with the proposed apportionment and justification prior to Eiccose’s payment pursuant to Section 8.1. Stanford and Eiccose agree to meet to discuss such proposed apportionment if in Stanford’s opinion the apportionment does not reasonably reflect the relative value of the Licensed Patents.

4.2

Distributor and End-User Sublicensing. LICENSEE may grant Distributor and End-User Sublicenses. Any consideration LICENSEE derives in connection with any Distributor and End-User Sublicenses is to be included in Revenue. LICENSEE will ensure that any Distributor and End-User Sublicenses LICENSEE grants are enforceable against the sublicensee and include indemnity, liability limitations, warranty disclaimers, license and use restrictions, and other

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provisions in Stanford’s benefit at least as favorable as those provided Stanford in this Agreement.

4.3

Required Sublicensing. If Eiccose is unable or unwilling to serve or develop a potential market or market territory for which there is a third party willing to be a sublicensee, Eiccose will, at Stanford’s request, negotiate in good faith a Sublicense with any such sublicensee. Stanford would like licensees to address unmet needs, such as those of neglected patient populations or geographic areas, giving particular attention to improved therapeutics, diagnostics and agricultural technologies for the developing world.

4.4

Sublicense Requirements. Any Sublicense:

(A)

is subject to this Agreement;

(B)

will reflect that any sublicensee will not further sublicense without Stanford’s prior written consent, except to its affiliates or distributors, in each case with such sublicensee remaining responsible for performance by its further sublicensees;

(C)

will prohibit the sublicensee from paying royalties to an escrow or other similar account;

(D)

will expressly include the provisions of Articles 8, 9, and 10 for the benefit of Stanford;

(E)

will include the provisions of Section 4.5;

(F)

will provide for the survival of the sublicense as a direct license from Stanford to the sublicensee if this Agreement is terminated, on terms equivalent to the terms of this Agreement, to the extent applicable to the scope of the sublicense, including the payment of royalties to Stanford as specified in this Agreement; provided that if the sublicensee is a spin-out from Eiccose, Eiccose must guarantee the sublicensee’s performance under such direct license with respect to the payment of Stanford’s share of Sublicense royalties.

4.5

Litigation by Sublicensee. Any Sublicense must include the following clauses:

(A)

In the event the sublicensee brings an action seeking to invalidate any Licensed Patent (excluding any counterclaim to an action first filed or dispute resolution proceeding first pursued by Stanford):

(A)

sublicensee will [ * ] to Eiccose during the pendency of such action. Moreover, should the outcome of such action determine that any claim of a patent challenged by the sublicensee is both valid and infringed by a Licensed Product, sublicensee will [ * ] under the original Sublicense;

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(B)

sublicensee will have no right to recoup any royalties paid before or during the period of challenge;

(C)

any dispute regarding the validity of any Licensed Patent shall be litigated in the courts located in Santa Clara County, and the parties agree not to challenge personal jurisdiction in that forum;

(D)

sublicensee shall not pay royalties into any escrow or other similar account.

(B)

Sublicensee will provide written notice to Stanford at least [ * ] prior to bringing an action seeking to invalidate a Licensed Patent (excluding any counterclaim to an action first filed or dispute resolution proceeding first pursued by Stanford). Sublicensee will include with such written notice an identification of all prior art it believes invalidates any claim of the Licensed Patent.

4.6

Copy of Sublicenses and Sublicensee Royalty Reports. Eiccose will submit to Stanford a copy of each Sublicense, any subsequent amendments and all copies of sublicensees’ royalty reports, in each case redacted of any information that is not necessary to confirm compliance with this Agreement. Beginning with the first Sublicense, the Chief Financial Officer or equivalent of Eiccose will certify annually regarding the name and number of sublicensees.

4.7

Sharing of Sublicensing Income. Subject to Sections 4.1 and 7.9, Eiccose will pay to Stanford a portion of all Nonroyalty Sublicensing Consideration for the Sublicense of Licensed Patents. For each Sublicense, the portion will be based on the stage of the Licensed Product when the Sublicense is signed, as provided below:

(A)

[ * ] before [ * ];

(B)

[ * ] after [ * ] and [ * ];

(C)

[ * ] and [ * ];

(D)

[ * ] after [ * ] and [ * ]; and

(E)

[ * ] after [ * ].

(F)

Equivalent clinical phases in an equivalent regulatory agency outside of the U.S. apply to (A)-(E) above.

4.8

Royalty-Free Sublicenses. If Eiccose pays all royalties due Stanford from a sublicensee’s Net Sales, Eiccose may grant that sublicensee a royalty-free or non-cash:

(A)

Sublicense or

(B)

cross-license.

5	GOVERNMENT RIGHTS

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5.1

This Agreement is subject to Title 35 Sections 200-204 of the United States Code. Among other things, these provisions provide the United States Government with nonexclusive rights in the Licensed Patents. They also impose the obligation that Licensed Product sold or produced in the United States be “manufactured substantially in the United States.” Eiccose will ensure all obligations of these provisions are met.

5.2

The United States Government shall have the nonexclusive, nontransferable, irrevocable, royalty-free, paid-up right to practice or have practiced the Licensed Patent throughout the world by or on behalf of the United States Government and on behalf of any foreign government or international organization pursuant to any existing or future treaty or agreement to which the United States Government is a signatory.

5.3

Eiccose certifies that as of May 1, 2015, Eiccose is in good standing to do business with the federal government regarding debarment, suspension, proposed debarment or other matters rendering it ineligible.

6	DILIGENCE

6.1

Milestones. Because the invention is not yet commercially viable as of the Effective Date, Eiccose will use commercially reasonable efforts to develop, manufacture, and sell Licensed Product. In addition, Eiccose will use commercially reasonable efforts to meet the milestones shown in Appendix A, and will notify Stanford in writing as each milestone is met. Eiccose may satisfy the foregoing diligence obligations itself or through an Affiliate or sublicensee. If Eiccose believes that it will not meet any such milestone, whether itself or through its Affiliate or sublicensee, Eiccose shall notify Stanford, and the parties shall thereafter meet to discuss in good faith Eiccose’s development of Licensed Products. So long as Eiccose is using commercially reasonable efforts to meet the milestones in Appendix A, the parties shall reasonably extend the time period for each such milestone.

6.2

Progress Report. [ * ], Eiccose will submit a written [ * ] report to Stanford covering [ * ]. The report will include information sufficient to enable Stanford to satisfy reporting requirements of the U.S. Government and for Stanford to ascertain progress by Eiccose toward meeting this Agreement’s diligence requirements. Each report will describe, where relevant: Eiccose’s progress toward commercialization of Licensed Product, including work completed, key scientific discoveries, summary of work-in-progress, current schedule of anticipated events or milestones, market plans for introduction of Licensed Product, and significant corporate transactions involving Licensed Product. Each such report will be Confidential Information subject to the terms of Article 19.

6.3

Clinical Trial Notice. Eiccose will notify Stanford prior to commencing any clinical trials at Stanford.

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7	ROYALTIES

7.1

Issue Royalty. Eiccose will pay to Stanford a noncreditable, nonrefundable license issue royalty of [ * ] within [ * ] after May 1, 2015.

7.2

Equity Interest. As further consideration, Eiccose will grant to Stanford shares of common stock in Eiccose, which when issued, those shares will represent [ * ]of the common stock in Eiccose on a Fully Diluted Basis. Eiccose agrees to provide Stanford with the capitalization table upon which the above calculation is made. Eiccose will issue [ * ] of all shares granted to Stanford pursuant to this Section 7.2 and Section 7.3 directly to and in the name of the inventors listed below allocated as stated below:


		[ * ]		[ * ]
		[ * ]		[ * ]
		[ * ]		[ * ]

7.3

Anti-Dilution Protection. Until such time as Eiccose has raised a cumulative total of [ * ] from [ * ], Eiccose will issue Stanford, without further consideration, any additional shares of stock of the class issued pursuant to Section 7.2 necessary to ensure that the number of shares issued Stanford pursuant to Section 7.2 and this Section 7.3 does not represent less than [ * ] of the shares issued and outstanding on a Fully-Diluted Basis at any time through the completion of issuance of all shares to be issued in connection with the [ * ], as calculated on a Fully Diluted Basis. The [ * ] issuance shall be made and maintained at each issuance or tranche up to a maximum issuance of [ * ] based on a total of [ * ] of equity first raised by Eiccose.

7.4

Section 7.4 is set forth in Appendix B of this Agreement.

7.5

Section 7.5 is set forth in Appendix B of this Agreement.

7.6

Section 7.6 is set forth in Appendix B of this Agreement.

7.7

Repurchase Obligation. If Stanford is to conduct any clinical trial on behalf of Eiccose or any agent of Eiccose, Eiccose will repurchase all Stanford’s equity interest in Eiccose (whether or not acquired pursuant to this Agreement) and Stanford’s right to acquire Eiccose securities under this Agreement will terminate upon the commencement of such trial. Eiccose cannot begin any such trial until Stanford no longer holds any equity interest in Eiccose. The repurchase price for any such equity interest will be the fair market value for that equity at the time Eiccose and Stanford enter into a definitive agreement under which any such clinical research will be performed. Fair market value of publicly traded equity instruments will be determined by taking the average of the closing price for such equity over the five days preceding such date. Fair market value of non-public equity instruments will be at least as high as the greater of:

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(A)

the last value placed on any such equity in Eiccose through an arms-length transaction regarding the issuance or sale of any equity in Eiccose; or

(B)

the last value placed on such equity by Eiccose’s Board of Directors in good faith in connection with any transaction purporting to value such equity at fair market value, other than this repurchase of shares from Stanford.

7.8

License Maintenance Fee. Beginning on May 1, 2016, and each anniversary thereafter, Eiccose will pay Stanford a yearly license maintenance fee of:

(A)

[ * ] on the [ * ] anniversaries;

(B)

[ * ] on the [ * ] anniversary and each anniversary thereafter until [ * ]; and

(C)

[ * ] on each anniversary thereafter.

Yearly maintenance payments are nonrefundable, but they are creditable [ * ] as described in Section 7.12.

7.9

Milestone Payments. Eiccose will pay Stanford the following milestone payments, which are due on the first [ * ] different Licensed Products (i.e. each Licensed Product has a different active pharmaceutical ingredient), within [ * ] after the corresponding event is achieved:

(A)

[ * ] on [ * ];

(B)

[ * ] on [ * ]; and

(C)

[ * ] upon [ * ].

(D)

For clarity, each milestone payment will be due only one time per different Licensed Product, and no more than $1.5M is due under this Section 7.9.

If Eiccose receives a milestone payment from a sublicensee that is included in Nonroyalty Sublicensing Consideration, and the milestone event giving rise to such milestone payment also triggers a payment obligation under this Section 7.9, then Eiccose shall be obligated to pay to Stanford only a single payment, such payment to be the higher of the applicable milestone payment set forth above and the payment owing to Stanford under Section 4.6.

7.10

Earned Royalty. Eiccose will pay Stanford earned royalties of [ * ] on Net Sales.

7.11

Earned Royalty if Eiccose Challenges the Patent. Notwithstanding the above, should Eiccose bring an action seeking to invalidate any Licensed Patent (excluding any counterclaim to an action first filed or dispute resolution proceeding first pursued by Stanford), Eiccose will pay royalties to Stanford at the rate of [ * ] of the Net Sales of all Licensed Products sold during the pendency of such action. Moreover, should the outcome of such action determine that any claim of a patent challenged by Eiccose is both valid and infringed by a Licensed

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Product, Eiccose will pay royalties at the rate of [ * ] of the Net Sales of all Licensed Products sold.

7.12

Creditable Payments. The license maintenance fee under Section 7.8 [ * ] may be offset against earned royalty payments due on Net Sales [ * ].

For example:

(A)

if Eiccose pays Stanford a [ * ] maintenance payment for year Y, and according to Section 7.10 [ * ] in earned royalties are due Stanford for Net Sales in Year Y, Eiccose will only need to pay Stanford an additional [ * ] for that year’s earned royalties.

(B)

if Eiccose pays Stanford a [ * ] maintenance payment for year Y, and according to Section 7.9 [ * ] in earned royalties are due Stanford for Net Sales in year Y, Eiccose will not need to pay Stanford any earned royalty payment for that year. [ * ] offset the remaining [ * ] against a future year’s earned royalties.

7.13

Obligation to Pay Royalties. A royalty is due Stanford under this Agreement on the sale of any Licensed Product with which Eiccose conducts an activity in a country that would, absent the licenses granted in this Agreement, infringe a Licensed Patent. For convenience’s sake, the amount of that royalty is calculated using Net Sales. Nonetheless, if certain Licensed Products are made, used or imported, or offered for sale before the date this Agreement terminates, in a country in which such activity would, absent the license granted herein, infringe a Licensed Patent, and those Licensed Products are sold after the termination date, Eiccose will pay Stanford an earned royalty for its exercise of rights based on the Net Sales of those Licensed Products.

7.14

No Escrow. Eiccose shall not pay royalties into any escrow or other similar account.

7.15

Currency. Eiccose will calculate the royalty on sales in currencies other than U.S. Dollars using the appropriate foreign exchange rate for the currency quoted by the Wall Street Journal on the close of business on the last banking day of each calendar quarter. Eiccose will make royalty payments to Stanford in U.S. Dollars.

7.16

Non-U.S. Taxes. Eiccose will pay all non-U.S. taxes related to royalty payments. These payments are not deductible from any payments due to Stanford.

7.17

Interest. Any payments not made when due will bear interest at the lower of (a) the Prime Rate published in the Wall Street Journal plus [ * ] or (b) the maximum rate permitted by law.

8	ROYALTY REPORTS, PAYMENTS, AND ACCOUNTING

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8.1

Quarterly Earned Royalty Payment and Report. Beginning with the first sale of a Licensed Product by Eiccose or a sublicensee, Eiccose will submit to Stanford a written report (even if there are no sales) and an earned royalty payment within [ * ] after the end of each calendar quarter. This report will be in the form of Appendix C and will state the number, description, and aggregate Net Sales of Licensed Product during the completed calendar quarter. The report will include an overview of the process and documents relied upon to permit Stanford to understand how the earned royalties are calculated. With each report Eiccose will include any earned royalty payment due Stanford for the completed calendar quarter (as calculated under Section 7.10). All such reports will be Confidential Information subject to Article 19.

8.2

No Refund. In the event that a validity or non-infringement challenge of a Licensed Patent brought by Eiccose is successful, Eiccose will have no right to recoup any royalties paid before or during the period of challenge.

8.3

Termination Report. Eiccose will pay to Stanford all applicable royalties and submit to Stanford a written report within [ * ] after the license terminates. Eiccose will continue to submit earned royalty payments and reports to Stanford after the license terminates, until all Licensed Products made or imported under the license as described in Section 7.13 have been sold.

8.4

Accounting. Eiccose will maintain records showing manufacture, importation, sale, and use of a Licensed Product for [ * ] from the date of sale of that Licensed Product. Records will include general-ledger records showing cash receipts and expenses, and records that include: production records, customers, invoices, serial numbers, and related information in sufficient detail to enable Stanford to determine the royalties payable under this Agreement.

8.5

Audit by Stanford. Eiccose will allow Stanford or its designee, who shall enter into an appropriate confidentiality agreement with Eiccose, on reasonable advance notice and during normal business hours, no more than [ * ] per calendar year, to examine Eiccose’s records for the preceding [ * ] to verify payments made by Eiccose under this Agreement.

8.6

Paying for Audit. Stanford will pay for any audit done under Section 8.5. But if the audit reveals an underreporting of earned royalties due Stanford of [ * ] or more for the period being audited, Eiccose will pay the audit costs.

9	REPRESENTATIONS; EXCLUSIONS AND NEGATION OF WARRANTIES

9.1

By Stanford. Stanford hereby represents to Eiccose that it has the right to grant the license it purports to grant in this Agreement

9.2

Negation of Warranties. Stanford provides Eiccose the rights granted in this Agreement AS IS and WITH ALL FAULTS, and Stanford makes no

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representations and extends no warranties of any kind, either express or implied. Among other things, Stanford disclaims any express or implied warranty:

(A)

of merchantability, of fitness for a particular purpose,

(B)

of non-infringement or

(C)

arising out of any course of dealing.

9.2

No Representation of Licensed Patent. Eiccose also acknowledges that Stanford does not represent or warrant:

(A)

the validity or scope of any Licensed Patent, or

(B)

that the exploitation of Licensed Patent will be successful.

10	INDEMNITY

10.1

Indemnification. Eiccose will indemnify, hold harmless, and defend all Indemnitees against any claim of any kind by a third party arising out of or related to the exercise of any rights granted Eiccose under this Agreement or the breach of this Agreement by Eiccose

10.2

No Indirect Liability. Neither party shall be liable to the other for any indirect, special or consequential damages whatsoever, whether grounded in tort (including negligence), strict liability, contract or otherwise arising out of or in connection with solely this Agreement under any theory of liability, provided, however, that the foregoing shall not apply to any right of action for infringement, contributory infringement or inducement of infringement STANFORD may have under any applicable law. STANFORD shall not have any responsibilities or liabilities whatsoever with respect to Licensed Products(s).

10.3

Workers’ Compensation. Eiccose will comply with all statutory workers’ compensation and employers’ liability requirements for activities performed under this Agreement.

10.4

Insurance. Prior to initiating use in humans for any purpose, Eiccose will maintain Comprehensive General Liability Insurance, including Product Liability Insurance, with a reputable and financially secure insurance carrier to cover the activities of Eiccose and its sublicensees. The insurance will provide minimum limits of liability of [ * ] and will include Indemnitees as additional insureds until the commencement of dosing in humans for any purpose, and thereafter [ * ] and will include Indemnitees as additional insureds. Insurance must cover claims incurred, discovered, manifested, or made during or after the expiration of this Agreement and must be placed with carriers with ratings of at least A- as rated by A.M. Best. At least 15 days of the Effective Date of this Agreement, Eiccose will furnish a Certificate of Insurance evidencing primary coverage and additional insureds. Eiccose will provide to Stanford 30 days prior written notice of cancellation or material change to this insurance coverage. Upon request,

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Eiccose will advise Stanford in writing that it maintains excess liability coverage (following form) over primary insurance for at least the minimum limits set forth above. All insurance of Eiccose will be primary coverage; insurance of Stanford and Stanford Hospitals and Clinics will be excess and noncontributory.

11	EXPORT

Eiccose and its Affiliates and sublicensees shall comply with all United States laws and regulations controlling the export of licensed commodities and technical data in connection with its activities under this Agreement. (For the purpose of this paragraph, “licensed commodities” means any article, material or supply but does not include information; and “technical data” means tangible or intangible technical information that is subject to US export regulations, including blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions.) These laws and regulations may include, but are not limited to, the Export Administration Regulations (15 CFR 730-774), the International Traffic in Arms Regulations (22 CFR 120-130) and the various economic sanctions regulations administered by the US Department of the Treasury (31 CFR 500-600).

Among other things, these laws and regulations prohibit or require a license for the export or retransfer of certain commodities and technical data to specified countries, entities and persons. Eiccose hereby gives written assurance that it will comply with, and will cause its Affiliates and sublicensees to comply with all United States export control laws and regulations in connection with its activities under this Agreement, that it bears sole responsibility for any violation of such laws and regulations by itself or its Affiliates or sublicensees, and that it will indemnify, defend and hold Stanford harmless for the consequences of any such violation.

12	MARKING

Before any Licensed Patent issues, Eiccose will mark Licensed Product with the words “Patent Pending” or whatever marking is legally required. Otherwise, Eiccose will mark Licensed Product with the number of any issued Licensed Patent or whatever marking is legally required.

13	NAMES AND MARKS

Eiccose will not identify Stanford or the VA in any promotional statement, or otherwise use the name of any Stanford faculty member, employee, or student, any VA employee, or any trademark, service mark, trade name, or symbol of Stanford, Stanford Hospitals and Clinics, or the VA including the Stanford or VA name, unless Eiccose has received Stanford’s or the VA’s prior written consent, as the case may be. Permission may be withheld at Stanford’s or the VA’s sole discretion. Promptly after the Effective Date, the parties will cooperate to agree on a statement that Eiccose may use in connection with its fundraising and business development efforts that identifies Stanford as the licensor of

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the Licensed Patents and the inventors of the Licensed Patents, only if Eiccose has obtained written permission directly from the inventors, and Stanford agrees not to unreasonably withhold its agreement to any such statement. Following such agreement, Eiccose will have the right to use such statement without prior notice to or approval from Stanford.

14	PROSECUTION AND PROTECTION OF PATENTS

14.1

Patent Prosecution. Following the Effective Date and subject to Stanford’s approval, not to be unreasonably withheld or delayed, Eiccose will be responsible for preparing, filing, and prosecuting the Licensed Patents (including any interference or reexamination actions) for Stanford’s and the VA’s benefit and for maintaining all Licensed Patents, in each case in the countries in the Licensed Territory listed on Exhibit E, using patent counsel reasonably acceptable to both parties. Eiccose will notify Stanford before taking any substantive actions in prosecuting the claims, and Stanford will have final approval on how to proceed with any such actions; provided that (a) Stanford shall not unreasonably withhold such approval and (b) Stanford’s failure to provide such approval by [ * ] before the applicable deadline for taking action will be deemed approval. To aid Eiccose in this process, Stanford will provide information, execute and deliver documents and do other acts as Eiccose shall reasonably request from time to time. Eiccose will reimburse Stanford for Stanford’s reasonable costs incurred in complying with such requests. Stanford and Eiccose agree that Stanford is the client of record for the attorney prosecuting the Licensed Patents and agree to have Appendix D fully executed by the appropriate parties upon execution of this Agreement. If Eiccose desires to abandon prosecution or maintenance of any Licensed Patent in any jurisdiction, it shall provide reasonable prior written notice to Stanford, and thereafter Stanford shall have the right to assume responsibility for the prosecution and maintenance of such Licensed Patent in such jurisdiction, at its sole expense.

14.2

Patent Costs.

Eiccose will be responsible for all costs it incurs pursuant to Section 14.1 for the preparation, filing, prosecution and maintenance of the Licensed Patents. In all instances, Eiccose will pay the fees prescribed for large entities to the United States Patent and Trademark Office. Stanford assumes responsibility for all patent expenses incurred prior to Effective Date.

14.3

Infringement Procedure. Eiccose and Stanford’s Office of Technology Licensing will each promptly notify the other party if it believes a third party infringes a Licensed Patent or if a third party files a declaratory judgment action with respect to any Licensed Patent. During the Exclusive term of this Agreement, and if Eiccose is diligently developing Licensed Product or is otherwise in compliance with Appendix A, Eiccose shall have the right to

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institute a suit against or defend any declaratory judgment action initiated by this third party as provided in Sections 14.4 – 14.8.

14.4

Joint Suit. If Stanford and Eiccose so agree, they may institute suit or defend the declaratory judgment action jointly. If so, they will:

(A)

prosecute the suit in both their names;

(B)

bear the out-of-pocket costs equally;

(C)

share any recovery or settlement equally; and

(D)

agree how they will exercise control over the action.

14.5

Eiccose Suit. If Section 14.4 does not apply, Eiccose may (but is not obligated to) institute and prosecute a suit or defend any declaratory judgment action so long as it conforms with the requirements of this Section and Eiccose is diligently developing or selling Licensed Product or is otherwise in compliance with Appendix A . Eiccose will diligently pursue the suit and Eiccose will bear the entire cost of the litigation, including expenses and counsel fees incurred by Stanford and the VA at Eiccose’s request. Eiccose will keep Stanford reasonably apprised of all developments in the suit, and will seek Stanford’s input and approval (which Stanford may not unreasonably withhold or delay) on any substantive submissions or positions taken in the litigation regarding the scope, validity and enforceability of the Licensed Patents. Eiccose will not prosecute, settle or otherwise compromise any such suit in a manner that adversely affects Stanford’s interests without Stanford’s prior written consent, which shall not be unreasonably withheld or delayed. Stanford or the VA may be named as a party only if:

(A)

Eiccose’s and Stanford’s respective counsel recommend that such action is necessary in their reasonable opinion to achieve standing;

(B)

Neither Stanford nor the VA are the first named party in the action; and

(C)

The pleadings and any public statements about the action state that Eiccose is pursuing the action and that Eiccose has the right to join Stanford and the VA as a party.

14.6

Stanford and VA Suit. If Eiccose does not institute a suit or defend a declaratory judgment action pursuant to Section 14.5 within [ * ] after receipt or delivery of notice under Section 14.3, Stanford and the VA have the right to institute suit on either of their own account, and may name Eiccose as a party for standing purposes. If Stanford or the VA decide to institute suit, Stanford will notify Eiccose in writing. Stanford or the VA will bear the entire cost of the litigation and will retain the entire amount of any recovery or settlement. Stanford shall not settle any such suit or action in any manner that would adversely affect the Licensed Patents or Eiccose’s rights without Eiccose’s prior written consent, which shall not be unreasonably withheld or delayed.

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14.7

Recovery. If Eiccose sues under Section 14.5, then any recovery in excess of any unrecovered litigation costs and fees will be shared with Stanford as follows:

(A)

any payment for past sales will be deemed Net Sales, and Eiccose will pay Stanford royalties at the rates specified in Section 7.10;

(B)

any payment for future sales will be deemed a payment under a Sublicense, and royalties will be shared as specified in Article 4; and

(C)

Eiccose and Stanford will negotiate in good faith appropriate compensation to Stanford for any non-cash settlement or non-cash cross-license.

14.8

Abandonment of Suit. If either Stanford or Eiccose commences a suit and then wants to abandon the suit, it will give timely notice to the other party. The other party may continue prosecution of the suit after Stanford and Eiccose agree on the sharing of expenses and any recovery in the suit.

14.9

VA Cooperation. The VA’s cooperation in litigation proceedings instituted under this Agreement is subject to U.S. Department of Justice approval on a case-by-case basis.

15	TERMINATION

15.1

Termination by Eiccose. Eiccose may terminate this Agreement by giving Stanford written notice at least [ * ] in advance.

15.2

Termination by Stanford.

(A)

Stanford may also terminate this Agreement if Eiccose:

(1)

is delinquent on any report or payment;

(2)

is not developing and commercializing Licensed Product in accordance with its diligence obligations in Section 6.1;

(3)

is in material breach of any provision;

(4)

provides any materially false report; or

(5)

is the subject of a petition filed in bankruptcy or insolvency or for the placing of Eiccose’s business in the hands of a receiver.

(B)

Termination under Section 15.2 (A) (1)-(4) will take effect [ * ] after written notice by Stanford unless Eiccose remedies the problem in that [ * ] period; provided that if such problem is not reasonably capable of remedy within such [ * ] period, Eiccose may submit, and Stanford approve (not to be unreasonably withheld or delayed), a reasonable cure plan prior to the end of such [ * ] period, in which case Stanford shall not have the right to terminate this Agreement for so long as Eiccose is using diligent efforts to implement such cure plan.

15.3

Surviving Provisions. Surviving any termination or expiration are:

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(A)

Eiccose’s obligation to pay royalties accrued or accruable as of the effective date of termination or expiration;

(B)

any claim of Eiccose or Stanford, accrued or to accrue, because of any breach or default by the other party; and

(C)

the provisions of Articles 8, 9, 10 and 19 and any other provision that by its nature is intended to survive.

16	ASSIGNMENT

16.1

Permitted Assignment by Eiccose. Subject to Section 16.3, Eiccose may assign this Agreement:

(A)

as part of a sale or change of control, regardless of whether such a sale or change of control occurs through an asset sale, stock sale, merger or other combination, or any other transfer of Eiccose’s entire business or that part of Eiccose’s business that exercises all rights granted under this Agreement; or

(B)

to an Affiliate provided that Eiccose remains liable to Stanford for the performance by its Affiliate .

16.2

Any Other Assignment by Eiccose. Except pursuant to Section 16.1, any attempt to assign this Agreement by Eiccose without Stanford’s prior written consent is null and void.

16.3

Conditions of Assignment. Prior to any assignment, the following conditions must be met:

(A)

Eiccose must make best efforts to give Stanford [ * ] prior written notice of the assignment, including the new assignee’s contact information; and

(B)

the new assignee must agree in writing to Stanford to be bound by this Agreement; and

(C)

Stanford must have received a [ * ] assignment fee.

16.4

After the Assignment. Upon a permitted assignment of this Agreement pursuant to Article 16, Eiccose will be released of liability under this Agreement and the term “Eiccose” in this Agreement will mean the assignee.

16.5

Bankruptcy. In the event of a bankruptcy, assignment is permitted only to a party that can provide adequate assurance of future performance, including diligent development and sales, of Licensed Product.

17	DISPUTE RESOLUTION

17.1

Dispute Resolution by Arbitration. Any dispute between the parties regarding any payments made or due under this Agreement will be settled by arbitration in accordance with the JAMS Arbitration Rules and Procedures. The parties are not

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obligated to settle any other dispute that may arise under this Agreement by arbitration.

17.2

Request for Arbitration. Either party may request such arbitration. Stanford and Eiccose will mutually agree in writing on a third party arbitrator within 30 days of the arbitration request. The arbitrator’s decision will be final and nonappealable and may be entered in any court having jurisdiction.

17.3

Discovery. The parties will be entitled to discovery as if the arbitration were a civil suit in the California Superior Court. The arbitrator may limit the scope, time, and issues involved in discovery.

17.4

Place of Arbitration. The arbitration will be held in Stanford, California unless the parties mutually agree in writing to another place.

17.5

Patent Validity. Any dispute regarding the validity of any Licensed Patent shall be litigated in the courts located in Santa Clara County, California, and the parties agree not to challenge personal jurisdiction in that forum.

18	NOTICES

18.1

Legal Action. Eiccose will provide written notice to Stanford at least [ * ] prior to bringing an action seeking to invalidate any Licensed Patent or a declaration of non-infringement. Eiccose will include with such written notice an identification of all prior art it believes invalidates any claim of the Licensed Patent.

18.2

All Notices. All notices under this Agreement are deemed fully given when written, addressed, and sent as follows:

All general notices to Eiccose are mailed or emailed to:

Eiccose, Inc.

Attention: Matthew Bys

1115 Lafayette Street

Santa Clara, California 95050

All financial invoices and progress report invoices shall be sent to Eiccose by e-mail to: ***@***.

All general notices to Stanford are e-mailed or mailed to:

Office of Technology Licensing

1705 El Camino Real

Palo Alto, CA ###-###-####

***@***

All payments to Stanford are mailed to:

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Stanford University

Office of Technology Licensing

Department #44439

P.O. Box 44000

San Francisco, CA 94144-4439

All progress reports to Stanford are e-mailed or mailed to:

Office of Technology Licensing

1705 El Camino Real

Palo Alto, CA ###-###-####

***@***

Either party may change its address with written notice to the other party.

19	CONFIDENTIAL INFORMATION

Stanford shall maintain the reports and any information provided by Eiccose to Stanford pursuant to Sections 4.5, 6.1, 6.2, 6.3, 8.1, 8.3, 8.4, 8.5, 14, 15.2, 16.3, 17 an 18 in confidence and not disclose such information or reports to any third party, except as required by law. STANFORD’s obligation of confidentiality hereunder shall be fulfilled by using at least the same degree of care with LICENSEE’s confidential information as it uses to protect its other confidential information.

20	MISCELLANEOUS

20.1

Entire Agreement; Amendment. This Agreement, including its Appendices, sets forth the complete, final and exclusive agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings between the parties with respect to such subject matter. No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties unless reduced to writing and signed by an authorized officer of each party.

20.2

Waiver. No term of this Agreement can be waived except by the written consent of the party waiving compliance.

20.3

Choice of Law. This Agreement and any dispute arising under it is governed by the laws of the State of California, United States of America, applicable to agreements negotiated, executed, and performed within California.

20.4

Exclusive Forum. The state and federal courts having jurisdiction over Stanford, California, United States of America, provide the exclusive forum for any court action between the parties relating to this Agreement. Eiccose submits to the

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jurisdiction of such courts, and waives any claim that such a court lacks jurisdiction over Eiccose or constitutes an inconvenient or improper forum.

20.5

Headings. No headings in this Agreement affect its interpretation.

20.6

Electronic Copy. The parties to this document agree that a copy of the original signature (including an electronic copy) may be used for any and all purposes for which the original signature may have been used. The parties further waive any right to challenge the admissibility or authenticity of this document in a court of law based solely on the absence of an original signature.

The parties execute this Agreement in duplicate originals by their duly authorized officers or representatives.


THE BOARD OF TRUSTEES OF THE LELAND
STANFORD JUNIOR UNIVERSITY

Signature		/s/Katharine Ku
Name		Katharine Ku
Title		Director
Date		May 5, 2015

EICCOSE, LLC.

Signature		/s/ David Cory
Name		David Cory
Title		President and CEO
Date		May 4, 2015

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APPENDIX A

Eiccose Development and Regulatory Plan for Bestatin (ubenimex) in PAH

[ * ]

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APPENDIX B –– Equity Purchase Rights

7.4 10% Purchase Right. Until such time as Eiccose has raised $4.5 million, in any private offering of Eiccose’s equity securities (or securities convertible into or exercisable for Eiccose’s equity securities) for cash (or in satisfaction of debt issued for cash) having its final closing held on or after the date of this Agreement, Stanford may purchase for cash up to 10% of the securities issued in such offering. This right will expire following the first round of bona fide equity investment in Eiccose from a single investor or group of investors that includes at least one venture capital, professional angel, corporate or other similar institutional investor (other than Stanford) and that either (i) is at least $2,500,000 in size or (ii) involves the sale to outside investors of at least 25% of the shares outstanding after such round on a Fully-Diluted Basis, but will apply to all shares to be issued in such round. For the avoidance of doubt, any securities Stanford may acquire or have the right to acquire under Sections 7.3 and 7.4 shall not reduce the number of securities Stanford may purchase under this Section 7.4.

7.5 Future Offerings; Limitation on Right to Purchase. In any private offering of Eiccose’s equity securities (or securities convertible into or exercisable for Eiccose’s equity securities) in exchange for cash (or in satisfaction of debt issued for cash), Stanford may purchase for cash that number of the securities issued in such offering as is necessary for Stanford to maintain its pro rata ownership interest in Eiccose on a Fully-Diluted Basis. For the avoidance of doubt: (i) any securities Stanford may acquire or have the right to acquire under Section 7.4 shall not reduce the number of securities Stanford may purchase under this Section 7.5; (ii) if both Section 7.4 and this Section 7.5 apply to an offering, the provision granting Stanford the superior rights will govern; and (iii) Stanford shall not be obligated to purchase under Section 7.4 or 7.5 any Eiccose securities it has the right to acquire under Section 7.4.

7.6	Purchase Terms and Procedures; Financial Information; Notices.

(A)

In any offering subject to Section 7.4 or 7.5:

(1)

Eiccose will give Stanford notice of the terms of the offering, including: (i) the names of the investors, the allocation of shares among them and the total amounts to be invested by each of them in such offering; (ii) pre- and post- (projected) financing capitalization table; (iii) investor presentation (if available); (iv) an introduction to the lead investor in such offering for the purpose of discussing the lead investor’s due diligence process; and (v) such other documents and information as Stanford may reasonably request for the purpose of making an investment decision or verifying the number of shares it is entitled to purchase in such offering;

(2)

Stanford’s purchase right shall be on the same terms as the other investors in such offering, except that Stanford shall not be required to enter into any investor rights or similar agreement unless such agreement: (i) provides Stanford with rights no less favorable than those granted to any other investor that is a party to any such agreement with Eiccose, regardless of the number of Eiccose shares held by Stanford; (ii) provides that any registration rights granted to investors apply to both common and preferred stock held by Stanford; (iii) provides Stanford with rights no less favorable than those set forth in Sections 7.3 through and including Section 7.7; and (iv) provides that no amendment to the rights specified in the preceding clauses (i), (ii) and (iii) will be effective without Stanford’s written consent;

(3)

Stanford may elect to exercise its right of purchase, in whole or in part, by notice given to Eiccose within 15 Stanford business 10 days (i.e days other than Saturdays, Sundays, and holidays or other days on which Stanford is officially closed) after receipt of Eiccose’s notice; and

(4)

If Stanford elects not to purchase, or fails to give an election notice within such period, Stanford’s purchase right will not apply to the offering if (and only if and to the extent) it is consummated within 90 days on the same or less favorable (to the investor) terms as stated in Eiccose’s notice to Stanford.

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(B) If there is a conflict between the terms of this Agreement and those of any Eiccose investor rights or similar agreement to which Stanford is a party, this Agreement will prevail.

(C) Stanford’s rights under Sections 7.4 and 7.5 will not apply to the issuance of stock: (i) to employees and other service providers pursuant to a plan approved by Eiccose’s Board of Directors; or (ii) as additional consideration in lending or leasing transactions.

(D) In the event of the closing of a firm commitment underwritten public offering of Eiccose’s common stock, the rights granted in Sections 7.5 and 7.6 will terminate (in addition to any earlier termination pursuant to their terms) immediately before such closing.

(E) Eiccose shall furnish to Stanford, as promptly as reasonable, Eiccose’s annual financial statements and annual operating plan, including an annual report of the holders of Eiccose’s capital stock and other securities, and such other information as Stanford may reasonably request from time to time for the purpose of valuing its interest in Eiccose.

(F) Notwithstanding any notice provision in this Agreement to the contrary, any notice given under this Agreement that refers or relates to any of Section 7.3 through and including Section 7.6 shall be copied concurrently to ***@***; provided, however, that delivery of the copy will not by itself constitute notice for any purpose under this Agreement.

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APPENDIX C – Sample Reporting Form

Stanford Docket No. S11-438

This report is provided pursuant to the license agreement between Stanford University and (Eiccose, LLC) License Agreement Effective Date: May 1, 2015

Name(s) of Licensed Products being reported:


Report Covering Period
Yearly Maintenance Fee		$
Number of Sublicenses Executed
Net Sales		$
Royalty Calculation
Royalty Subtotal		$
Credit		$
Royalty Due		$

Comments:

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APPENDIX D – Client and Billing Agreement

The Board of Trustees of the Leland Stanford Junior University (“STANFORD”); and Eiccose, LLC, a Delaware limited liability company, with a principal place of business at 1115 Lafayette Street, Santa Clara, CA 95050, (“EICCOSE”); have agreed to use the law firm of (“FIRM”) to prepare, file and prosecute the pending patent applications listed in Exhibit A attached hereto and maintain the patents that issue thereon (“Patents”).

WHEREAS, FIRM desires to perform the legal services related to obtaining and maintaining the Patents; and

WHEREAS, STANFORD remains the client of the FIRM; and

WHEREAS, EICCOSE is the licensee of STANFORD’s and the VA’s interest in the Patents;

NOW THEREFORE, in consideration of the premises and the faithful performance of the covenants herein contained, IT IS AGREED:

1. FIRM can interact directly with EICCOSE on all patent prosecution matters related to the Patents and will copy STANFORD and the U.S. Department of Veterans Affairs (“VA”) on all correspondence. STANFORD will be notified by FIRM prior to any substantive actions and will have final approval on proceeding with such actions, subject to the terms of the license agreement between STANFORD and EICCOSE. In addition, as prosecution proceeds, FIRM will notify STANFORD if there is any change in inventorship from the originally filed application.

2. EICCOSE is responsible for the payment of all charges and fees by FIRM related to the prosecution and maintenance of the Patents. FIRM will invoice EICCOSE and EICCOSE must pay FIRM directly for all charges. If STANFORD requests, STANFORD will be copied on all invoices and payments. FIRM must inform STANFORD within 90 days if the licensee is delinquent on payment. Otherwise, STANFORD will not be responsible for those expenses.

3. Notices and copies of all correspondence should be sent to the following:

To EICCOSE:

Matthew Bys

Director of Operations

1115 Lafayette Street

Santa Clara, CA 95050

To STANFORD:

Name

Office of Technology Licensing

Stanford University

1705 El Camino Real

Palo Alto, CA ###-###-####

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To VA:

Director (122)

Technology Transfer Program

Office of Research and Development

U.S. Department of Veterans Affairs

8 10 Vermont Avenue N.W.

Washington, D.C. 20420

4. The parties to this document agree that a copy of the original signature (including an electronic copy) may be used for any and all purposes for which the original signature may have been used. The parties further waive any right to challenge the admissibility or authenticity of this document in a court of law based solely on the absence of an original signature.


ACCEPTED AND AGREED TO:

STANFORD

By:
Name:		Katharine Ku
Title:		Director
Date:

Eiccose Name

By:
Name:		David Cory
Title:		President and CEO
Date:

Law Firm Name

By:
Name:
Title:
Date:

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