Exclusive License Agreement, effective as of March 3, 2014, between The Regents of the University of Colorado and Ocugen, Inc

The University is the owner of the Licensed Patent(s) (“Licensed Patents” has the meaning assigned to it in Article 1) related to University Case Number(s) [___]** and [___]**.

The University wants the invention(s) described in the Licensed Patents developed and marketed as soon as possible so that the resulting products may be available for public use and benefit.

The Licensee desires to license the Licensed Patents for the purpose of developing and commercializing products covered by the Licensed Patents.

“Affiliate” means any entity that controls, is controlled by, or is under common control with Licensee. Control means

the direct or indirect ownership of at least 50% of voting securities,

the power to govern the financial and operating policies of the entity, or

the power to appoint the management of the entity.

“Agreement” means this Exclusive Licensing Agreement, as amended from time to time.

“Diligence Report” has the meaning assigned to it in Appendix B.

“Exclusivity Period” has the meaning assigned to it in Article 1.1(n).

“Fair Market Value” means the cash price that would be paid in an arm’s length transaction between two unrelated parties.

“Field of Use” has the meaning assigned to it in Appendix A.

“Force Majeure Event” has the meaning assigned to it in Article 13.9.

“Gross Sales” has the meaning assigned to it in Article 1.1(o)

“Have Sold” has the meaning assigned to it in Article 2.1.

“Insolvency” means that either party files or has filed against it a petition in bankruptcy or is the subject of any proceedings related to liquation, insolvency or the appointment of a receiver or similar officer.

“Know-How” means the University’s proprietary information which has been created or developed by Dr. Uday Kompella and fixed in any tangible medium of expression as of the Effective Date, and which is directly related to the use of, or desirable for the practice of, the Licensed Patents.

“Licensee” means the entity listed in the Preamble and any of its Affiliates.

“Licensed Patent” means the United States and foreign patent(s) and/or patent application(s) listed in Appendix A together with any and all divisionals, continuations of those applications and the patents issued therefrom, including any reissues, reexaminations, or extensions of such patents, and claims of any continuations-in-part applications and resulting patents that are directed to inventions specifically described and enabled in the patents and patent applications listed in Appendix A.

“Licensed Product” means any product, service, or process, the making, use, offer for sale, sale, importation or rendering of which would infringe one or more Valid Claims in the country in which it is made, used, sold, offered for sale, imported, or rendered; or any product which is manufactured, or any service which is rendered, using a process which would infringe one or more Valid Claims in the country in which it is made, used, sold offered for sale, imported, or rendered; or any product embodied in the Licensed Patents which is sold under the benefit of a statutory or regulatory exclusivity period (“Exclusivity Period”).

“Net Sales” means, with respect to any Licensed Product, the gross amount actually received by or on behalf of a Licensee or Sublicensee for sales of such Licensed Product to third parties (“Gross Sales”), less the following accrued deductions if and to the extent they are included in the Gross Sales of such Licensed Product and are reported on the relevant Royalty Report: (a) rebates, quantity and cash discounts, chargebacks and other usual and customary discounts

“Notice Date” means the date the party to whom notice is sent receives the notice at the address indicated in Article 13.2. Notice Date does not mean actual notice.

“Recipient” means a party who receives information from the other party to this Agreement.

“Royalty Report” is included as Appendix C.

“Senior Executives” means a person with authority to contractually bind the party.

“Sublicense” means a grant of rights by Licensee to a third party to make, have made, use, have used, sell, have sold, import, have imported, exported, or have exported Licensed Product.

“Sublicensee” means the third party granted a Sublicense from the Licensee.

“Sublicense Income” means all consideration received by the Licensee from a third party as consideration for the grant of a Sublicense or an option for a Sublicense to the Licensed Patents, less [___]** percent ([___]** %) of Licensee’s reasonable legal fees and broker fees, if any, that have not otherwise been reimbursed and which are directly related to the Sublicense transaction up to a maximum of [___]** percent ([___]** %) of the total consideration received for the Sublicense transaction. Such consideration includes without limitation any upfront, license initiation or signing fees, license maintenance fees, milestone payments, unearned portion of any minimum annual royalty payment, equity, and the Fair Market Value of any non-cash consideration paid to Licensee for sublicense rights.

sums received as royalties on Net Sales by the Sublicensees, such Net Sales being subject to the royalty on Net Sales in Appendix A;

amounts paid for equity of the Licensee up to its Fair Market Value; or,

payments received by Licensee for research and development up to the actual cost of performing such research and development, where such actual costs for scientific consulting will reflect a commercially reasonable FTE or man/year charge, as separately reported and supported by appropriate documentation.

“Term” has the meaning assigned to it in Article 12.1.

“Territory” has the meaning assigned to it in Appendix A.

“University Indemnitees” includes the University, its regents, employees, students, officers, agents, affiliates, representatives, and inventors.

“Valid Claim” means a pending or issued and unexpired claim of a Licensed Patent so long as the claim has not been irrevocably abandoned or declared to be invalid through no fault of Licensee in a non-appealable decision of a court or other government agency of competent jurisdiction.

All references to statutes and related regulations include

any past and future amendments of those statutes and related regulations; and

any successor statues and related regulations.

The words “including,” “includes,” and “include” are deemed to be followed by the words “without limitation.”

Pay royalties on Net Sales by its Sublicensee and on Sublicense Income as specified in Appendix A. Payment by Licensee of royalties on Net Sales by Sublicensees becomes due when Licensee receives its royalty payment under the Sublicense for such Net Sales by the Sublicensee.

Include terms in the Sublicense that are consistent with and do not conflict with this Agreement and a requirement that the Sublicensee indemnify the University as set forth in Article 11.2.

Include language within the Sublicense agreement which makes the University a third party beneficiary under the Sublicense agreement with the right to enforce

Retain all responsibility for the performance of all Sublicensees under a Sublicense as if the performance was carried out by the Licensee itself, including the payment to the University of any Net Sales royalties, minimum annual royalties, milestone payments, and other license fees or payments provided for a Sublicense, regardless of whether the Sublicensee pays the Licensee.

Require payment of cash consideration only from Sublicensees unless the University has expressly consented in writing and in advance to other consideration.

Article 3 Economic Consideration, Article 6 Reports, Records and Audits including the University’s direct right to audit the Sublicensee, and Article 11 Warranties, Indemnification, and Insurance.

Submit to the University and the Licensee:

Diligence Reports including at least the same level of detail as set forth in Appendix B; and

Royalty Reports in the form set forth in Appendix C.

Agree to the equivalent of Article 5 U.S. Government Rights and Requirements, Article 8 Export, Article 7 Confidential Information and Article 13.14 Survival.

The Licensee shall cause the Sublicense to be subject to the termination of this Agreement; provided, however, that the Sublicense shall not be subject to the termination of this Agreement if Licensee and Sublicensee comply with Article 4.5(b) below.

In the event this Agreement is terminated pursuant to Articles 12.2, 12.3 or 12.5, the Licensee and Sublicensee shall agree to assign any Sublicense to the University so long as the Sublicensee complies with Article 4, the Sublicensee is not in breach of its Sublicense, and the University is not obligated to incur any obligations or make any representations or warranties in excess of those contained in this Agreement.

The Licensee shall require the automatic termination of the Sublicense in the event the Sublicensee institutes a legal action challenging the validity of any Licensed Patent.

Annual Diligence Reports as set forth in Appendix B for each calendar year beginning on March 31, 2015 (for the year ended December 31, 2014).

Quarterly Royalty Reports as set forth in Appendixes A and C for each calendar quarter regardless of any Net Sales beginning in the calendar quarter of the first commercial sale.

Keep accurate records and cause its Sublicensees to keep accurate records in sufficient detail to reflect its operations under this Agreement and to enable the royalties accrued and payable under this Agreement to be determined.

Retain the records for at least three years after the close of the period to which they pertain, or for such longer time as may be required to resolve any question or discrepancy raised by the University.

Upon the request of the University, with reasonable notice, but not more frequently than once a calendar year, the Licensee shall permit an independent public accountant selected and paid by the University, and who enters into a non-disclosure agreement with Licensee or Sublicensee (provided, however, that such non-disclosure agreement shall not prevent the accountant from disclosing to the University supporting information relevant to the audit report findings, which information shall be treated as confidential information under Article 7), to have access during regular business hours to records, reports and other information relating to any Sublicense or the licenses as may be necessary to verify the accuracy of made or payable royalty payments. The audit shall be conducted in a manner so as not to unreasonably disrupt Licensee’s or Sublicensee’s business.

The accountant will disclose information acquired to the University only to the extent that it should properly have been contained in the royalty reports required under this Agreement.

If an inspection or audit shows an underreporting or underpayment in excess of, for any 12-month period, the greater of: (i) ten percent or (ii) twenty thousand dollars ($20,000), then Licensee shall reimburse the University for the cost of the inspection or audit and pay the amount of the underpayment including any interest as required by this Agreement.

Information which at the time of disclosure had been previously published or was otherwise in the public domain through no fault of Recipient,

Information which becomes public knowledge after disclosure unless such knowledge results from a breach of this Agreement.

Information which was already in Recipient’s possession prior to the time of disclosure as evidenced by written records kept in the ordinary course of business or by proof of actual use.

Information that is independently developed without use of the confidential information.

Information which is required to be disclosed by law, court order, or government regulation.

THE UNIVERSITY MAKES NO REPRESENTATIONS, EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ASSUMES NO RESPONSIBILITIES WHATSOEVER WITH RESPECT TO USE, SALE, OR OTHER DISPOSITION BY LICENSEE OR ITS SUBLICENSEE(S) OR VENDEES OR OTHER TRANSFEREES OF LICENSED PRODUCTS OR ANY OTHER PRODUCTS OR PROCESSES INCORPORATING OR MADE BY USE OF THE LICENSED PATENTS OR KNOW-HOW.

THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OR SALE OF LICENSED PRODUCTS OR ANY OTHER PRODUCTS OR PROCESSES INCORPORATING OR MADE BY USE OF THE LICENSED PATENTS OR KNOW-HOW WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, SERVICE MARK, OR OTHER RIGHTS.

Nothing in this Agreement may be construed as

a warranty or representation by the University as to the validity or scope of any of the rights included in the Licensed Patents;

a warranty or representation that the Licensed Patents, or anything made, used, sold or otherwise disposed of under this Agreement will or will not infringe patents, copyrights or other rights;

an obligation to furnish any know-how or services not agreed to in this Agreement, or

an obligation by the University to bring or prosecute actions or suits against third parties for infringement, or to provide any services other than those specified in this Agreement.

The use of any Licensed Patents or Know-How by or on behalf of Licensee, its directors, officers, employees or third parties whose actions are attributable to, or have been caused by, Licensee; or

The design, manufacture, production, distribution, advertisement, consumption, sale, lease, sublicense or use of any Licensed Products or materials by Licensee, or other products or processes developed in connection with or arising out of the Licensed Patents or Know-How; or

Any material breach of an obligation of Licensee under this Agreement.

Pays all undisputed amounts due to the University through the termination date.

Submits final payments as provided in Appendix A and a final report of the type described in Article 6 Reports, Records and Audits.

Returns any confidential information provided to the Licensee by the University in connection with this Agreement.

Suspends its use and sales of the Licensed Products; provided however, that subject to making the payments required by Article 3 and the reports required by Article 6, Licensee may, for a period of 120 days after the effective date of such termination, sell all Licensed Products which may be in inventory.

Provides the University the right to access any regulatory information filed with any U.S. or foreign government agency with respect to the Licensed Products.

Is delinquent on any report or fails to make a payment that is not in dispute, within sixty (60) days after the payment is due.

Is in material breach of the diligence obligations described in Appendix A, including the milestone requirements and such missed milestone is not otherwise excused pursuant to the terms of this Agreement.

Provides any materially false report, as determined between the parties pursuant to Article 13.8 of this Agreement, or is in material breach of any other material provision of this Agreement.

Violates any laws or regulations of applicable governmental entities that have a material adverse effect on the

University; or,

Licensee’s ability to perform its obligations under this Agreement.

Ceases to carry on development activities pertaining to the Licensed Patents for at least two (2) consecutive months, unless a Sublicensee is continuing such development activities, or unless such failure to perform is due to a Force Majeure Event. (“Force Majeure Event” has the meaning assigned to it in Article 13.9.)

Institutes a legal action challenging the validity of any Licensed Patent.

Claims that its production, use, manufacture, rendering, or sale of any product, service, or process that the University reasonably believes is a Licensed Product does not infringe a Licensed Patent. With respect to a dispute under this Article 12.3(g), and after the dispute resolution process in Article 13.8 is exhausted, the parties shall submit to a third party law firm who is mutually agreed by the parties, information to determine whether the production, use, manufacture, rending or sale of the product, service or process infringes a Licensed Product, and the third party law firm will prepare a report for the parties with its determination. In the event that the third party law firm determines that such product, services or process does infringe, then the University may, at its option, terminate this Agreement pursuant to this Article 12.3(g). Neither party is foreclosed from pursuing any judicial remedy upon receipt of the law firm’s report.

Assignment by Licensee. Subject to Articles 13.1(b) and (d), the Licensee may assign this Agreement as part of a sale, regardless of whether such a sale occurs through an asset sale, stock sale, merger or other combination, or any other transfer of (i) Licensee’s entire business; or (ii) that part of Licensee’s business that exercises all rights granted under this Agreement.

Conditions of Assignment. Prior to any assignment, the following conditions must be met: (i) Licensee must provide the University 10 days prior written notice of the assignment, including the new assignee’s contact information; and (ii) the new assignee must agree in writing with the University to be bound by this Agreement.

Bankruptcy Petition. In the event the Licensee informs the University that the Licensee is considering filing a bankruptcy petition, the Licensee may assign this Agreement if the University determines in its sole discretion that the party has provided or can provide adequate assurance of future performance, including diligent development and sales, of the Licensed Patents.

Any Other Assignment by Licensee. Any other attempt to assign this Agreement by the Licensee is null and void.

Licensee will provide written notice to the University at least 90 days prior to bringing an action seeking to invalidate any Licensed Patent or a declaration of non-infringement. Licensee shall include in such written notice an identification of all prior art it believes invalidates any claim of the patent.

Notice under this Agreement is sufficient if given by registered mail, postage prepaid, and addressed to the party to receive such notice at the addresses given below, or such other address as may hereafter be designated by notice in writing.

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

Notwithstanding the other provisions in this Article 13, the University may email financial invoices to Licensee (i.e., accounting contact) to the following contact person:

Any disputes not so resolved shall be referred to the Principal Technology Transfer Officer for the University and to Licensee’s Senior Executives with settlement authority, who shall meet at a mutually acceptable time and location within 30 days of the Notice Date and shall attempt to negotiate a settlement.

If the Senior Executives fail to meet within 30 days of the Notice Date, or if the matter remains unresolved for a period of 120 days after the Notice Date, the parties may bring a suit, action or proceeding in the state or federal courts located in the State of Colorado.

Licensed Patents:

The Licensed Patents are as follows:

Country

Serial No

File Date

Title

Field of Use: All therapeutic applications.

Territory: Worldwide.

Financial Conditions:

Patent Fees and Costs. For patenting expenses incurred by the University prior to the Effective Date, Licensee shall pay to the University twenty-six thousand one hundred forty-nine dollars ($26,178.50) within six (6) months of the Effective Date. With respect to reasonable expenses incurred by the University after the Effective Date related to the nationalization costs for [___]**, the Licensee shall reimburse the University within 30 days of receiving an invoice from the University.

Equity License Fee. Licensee agrees to issue to University License Equity Holdings, Inc., a Colorado nonprofit corporation (“ULEHI”), pursuant to ULEHI’s standard stock purchase agreement, shares of Licensee’s common stock or membership interests in Licensee (as may be applicable) equal to [___]** percent ([___]**%) of all outstanding shares of capital stock or membership interests of Licensee as of the Effective Date on a fully diluted, as converted to common, basis (such basis including the license fee shares and any stock options granted, but excluding options reserved but not granted), with anti-dilution until such time as Licensee shall issue and sell its capital stock or membership interests to non-affiliated third parties in arms-length transactions having an aggregate purchase price of [___]** dollars ($[___]**).

Milestone Fees: Licensee agrees to pay University Milestone fees as follows, provided that the Milestone fees are due only upon the first occurrence of any of the events listed below:

Initiation of Phase 3 clinical trial (or foreign equivalent, subject to the condition below) after US FDA approval for such trial for a Licensed Product from [___]** (after dosing the first patient): $[___]**.

initiation of Phase 3 clinical trial (or foreign equivalent, subject to the condition below) after US FDA approval for such trial approval for a Licensed Product from [___]** (after dosing the first patient): $[___]**.

BLA approval by FDA (or foreign equivalent, subject to the condition below) for a Licensed Product from [___]** for first indication: $[___]**.

BLA approval by FDA (or foreign equivalent, subject to the condition below) for a Licensed Product from [___]** for first indication: $[___]**.

Minimum Annual Royalty. During the term of the Agreement, Licensee agrees to pay to the University an annual, nonrefundable minimum annual royalty of twenty thousand dollars ($20,000), due on the 3rd anniversary of the Effective Date of the Agreement and on each annual anniversary thereafter, and after sales commence, increasing to [___]**% of the previous year’s royalty payments paid to the University. The minimum annual royalty shall be credited against any actual royalties on Net Sales and Sublicense Income due and owing for the contract year in which said minimum annual royalty is due. For the sake of clarity, the minimum annual royalty set forth in this Section 2(d) is due only by the Licensee and not by any Sublicensee.

Royalty on Net Sales. Licensee agrees to pay the University an earned royalty of [___]** percent ([___]**%) of Net Sales.

Royalty on Sublicense Income. The Licensee shall pay the University an earned royalty on Sublicense Income as follows:

[___]** percent ([___]**%) of Sublicense Income for Sublicenses executed after the Effective Date and prior to the one-year anniversary of the Effective Date.

[___]** percent ([___]**%) of Sublicense Income for Sublicenses executed after the one-year anniversary of the Effective Date and prior to the initiation of a Phase I (or foreign equivalent) clinical trial.

[___]** percent ([___]**%) of Sublicense Income for Sublicenses executed after initiation of a Phase 1 (or foreign equivalent) clinical trial and prior to the completion of a Phase 3 (or foreign equivalent) clinical trial.

[___]** percent ([___]**%) of Sublicense Income for Sublicenses executed after the completion of a Phase 3 (or foreign equivalent) clinical trial.

[Intentionally Deleted]

Timing or Reporting and Payment Obligations. The Licensee shall

prepare a quarterly Royalty Report pursuant to Article 6 Reports, Records and Audits and Appendix C, Form of Royalty Report; and

submit the earned royalty payment, if any

No Multiple Royalties. No multiple royalties are payable in the event any Licensed Products are covered by more than one of the Licensed Patents.

Interest. Licensee shall pay past-due payments including interest at either the rate of [___]** percent per month compounded or the maximum interest rate allowed by applicable law, whichever is less.

Payments After Agreement Termination. After the Agreement terminates, the Licensee shall continue to submit earned royalty payments and reports required by Article 6 of this Agreement, until all Licensed Products made or imported under this Agreement have been sold and until all sublicense payments have been received by Licensee.

Tax-exempt. All payments due under this Agreement shall be made without deduction for taxes, assessments, or other charges of any kind that may be imposed on the University by any government outside of the United States or any political subdivision of such government with respect to any amounts payable to the University pursuant to this Agreement. All such taxes, assessments, or other charges shall be assumed by the Licensee.

Payments. The Licensee shall make or cause its Sublicensee to make all payments to the University payable to “The Regents of the University of Colorado” within [___]** days of receiving an invoice and mail them to the following address:

Licensee Due Diligence Milestones and Obligations

Milestones. The Licensee shall use commercially reasonable efforts to develop, manufacture, sublicense, market and sell the Licensed Products in the Fields of Use and the Territory in accordance with the Milestones defined here.

Completion of pre-clinical studies by [___]** months after the Effective Date for the first product (one indication) and additional [___]** months for the second product (one indication)

Filing an IND for BLA approval with the FDA (or foreign equivalent) by [___]** months after the Effective Date for the first product (one indication) and additional [___]** months for the second product (one indication)

initiation of a Phase I Clinical Trial (or foreign equivalent) within [___]** months of the Effective Date for the first product (one indication) and additional [___]** months for the second product (one indication)

Initiation of a Phase 3 Clinical Trial (or foreign equivalent) within [___]** years of the Effective Date for the first product (one indication) and additional [___]** months for the second product (one indication)

University Requested Sublicensing. If the Licensee is unable or unwilling to serve or develop a potential market or market territory for which there is a company willing to be a Sublicensee, the Licensee shall at the University’s request negotiate in good faith a Sublicense with any such Sublicensee. The Licensee acknowledges the University’s interest in ensuring that Licensed Products are developed and commercialized to the fullest extent possible for the benefit of the public. Nothing in this Section requires the Licensee to enter into a Sublicense with any party if the parties are unable to reach an agreement after good faith negotiations.

Licensed Patents: Pursuant to Article 6 of this Agreement the Licensee is obligated to submit an annual Diligence Report. The Licensee shall submit the Diligence Report within [___]** calendar days of the end of the calendar year, starting in 2015 (for the 2014 calendar year), and mark it as confidential. The Licensee shall include the following items in the Diligence Report:

Date development plan initiated and time period covered by this report.

Development Report

Activities completed since last report including the object and parameters of the development, when initiated, when completed and the results.

Activities currently under investigation, i.e., ongoing activities including object and parameters of such activities, when initiated, and projected date of completion.

Future development activities

Activities to be undertaken before next report including, but not limited to, the type and object of any studies conducted and their projected starting and completion dates.

Estimated total development time remaining before a product will be commercialized.

Changes to initial development plan

Reasons for changes.

Variables that may cause additional changes.

Rationale for delay in or termination of development plans or product lines, including financial, strategic, and legal reasons.

Rationale for non-termination of Agreement or retention of Field of Use.

Additional items to be provided:

If the Licensee receives funding from the State of Colorado, including funds received through the University, the Licensee shall provide a summary of capital investments and an employee growth chart (# of FTEs, etc.).

Information relating to the Licensed Products that has become publicly available, e.g., published articles, competing products, patents, etc.

Development work being performed by third parties other than the Licensee to include name of third party, reasons for use of third party, planned future uses of third parties including reasons why and type of work.

Update of competitive information trends in industry and government compliance.

Update the market plan.

Information and copies of relevant materials evidencing the status of any patent applications or other protection relating to the Licensed Products or the Licensed Patents.

If changed, the name and current address of Licensee’s patent counsel responsible for the Licensed Patents.

Sublicensee Name: (for Sublicensee reports):                                                                                                                                                 

United States

Other (List)

TOTAL:

TOTAL: