exhibit101-pnt2004fapili






Exhibit 10.1    CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY  BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL AND (II)  THE TYPE THAT THE COMPANY TREATS AS PRIVATE OR CONFIDENTIAL.    [***] = Indicates confidential information omitted from the exhibit.    EXCLUSIVE SUBLICENSE AGREEMENT  This Exclusive Sublicense Agreement (together with its Appendices, the “Agreement”) is  effective as of April 2, 2020 (“Effective Date”) BACH BIOSCIENCES, LLC, a limited liability  corporation with a principal place of business at 75 Cambridge Parkway, E609, Cambridge, MA  02142, USA (“BACH”) and POINT BIOPHARMA INC., a company organized under the laws of  the state of Delaware, USA with a principal place of business at 511 South Orange Avenue, No.  2093, Newark, New Jersey, 07103, USA (“POINT”).  SECTION 1  BACKGROUND  1.1 BACH holds rights in certain intellectual property licensed to BACH by  TRUSTEES OF TUFTS COLLEGE a/k/a TUFTS UNIVERSITY (“Tufts”) pursuant to an  Exclusive License Agreement dated [***] (the “Tufts License”).  POINT wishes to obtain and  BACH wishes to grant an exclusive sublicense under the Tufts License to develop and market  products based thereon.  In consideration of these premises and the mutual promises contained  herein and other good and valuable consideration, the receipt and adequacy of which is hereby  acknowledged, the Parties agree to the terms and conditions set forth in this Agreement.  SECTION 2  DEFINITIONS  Unless this Agreement expressly provides otherwise, the following terms, whether used in  the singular or plural, will have the meanings set forth below:  2.1 “Affiliate” means any person, corporation, company, partnership, joint venture,  firm or other entity which controls is controlled by or is under common control with a Party.  For  purposes of this Section 2.1, “control” will mean (a) in the case of corporate entities, direct or  indirect ownership of at least fifty percent (50%) (or such lesser percentage that is the maximum  allowed to be owned by a foreign corporation in a particular jurisdiction) of the stock or shares  entitled to vote for the election of directors, or even if having less than 50% direct or indirect  ownership the Party nevertheless controls the Board of Directors, and (b) in the case of non- corporate entities, direct or indirect ownership of at least fifty percent (50%) of the equity interest  or the power to direct the management and policies of such non-corporate entities.  2.2 “BACH Deliverables” will have the meaning provided in the Sponsored Research  Plan.  2.3 “BACH Patent Rights” refers to patents and patent applications listed on Exhibit  A, and any United States and foreign patents issuing thereon and any continuing applications,  divisions, continuation-in-part applications (CIPs), and any foreign patent application or  equivalent corresponding thereto and any Letters patent or equivalent thereof issuing thereon or  reissue, reexamination, supplementary protection certificate or extension thereof.  





 






2    [***] =  Indicates confidential information omitted from the exhibit.  2.4 “Calendar Quarter” means each three (3) month calendar period ending March 31st,  June 30th, September 30th and December 31st.  2.5 “Calendar Year” shall mean each successive period of twelve (12) months  commencing on January 1 and ending on December 31.  2.6 “Challenge” means any challenge to the validity or enforceability of any Licensed  Patents including, without limitation, by (a) filing a declaratory judgment action in which any  Licensed Patents is alleged to be invalid or unenforceable; (b) citing prior art, filing a request for  re-examination of any Licensed Patents or provoking or becoming party to an interference with an  application for any Licensed Patents, all in accordance with US patent law; or (c) filing or  commencing any re-examination, opposition, cancellation, nullity or similar proceedings against  any Licensed Patents in any country.  2.7 “Commercialization Option” means the option granted by BACH to POINT in  accordance with Section 3.1 upon which exercise POINT is granted the worldwide royalty bearing  exclusive license to the Licensed Patents, Licensed Know-How and Licensed Materials for the  Field.  2.8 “Commercially Reasonable Efforts” means exerting such efforts and employing  such resources on a consistent basis throughout the Term as would normally be exerted or  employed by an entity having similar resources to POINT with respect to products that are similar  to the Licensed Products (including by having similar market potential, profit potential and  strategic value, being at a similar stage of its product life), taking into account, without limitation,  issues of safety and efficacy, product profile, intellectual property situation, pricing and  reimbursement, the competitiveness of the relevant marketplace, the issuance of Licensed Patents,  intellectual property and development positions of third parties impacting on freedom-to-operate,  the applicable regulatory situation, the commercial viability of the Licensed Product and other  relevant development and commercialization factors based upon then-prevailing conditions, but  excluding from consideration any financial obligations of POINT to BACH under this Agreement.  2.9 “Confidential Information” means all non-public scientific, technical, financial or  business information which is disclosed by one Party to the other Party.  Confidential Information  of a disclosing Party may include third party information.  Confidential Information that is  developed jointly by the Parties shall be “Confidential Information” of both of the Parties.  2.10 “Controlled” (or “Controls”) means with respect to any intellectual property or  other data, information or materials, possession of the ability by a Party or its Affiliate(s) to grant,  without violating the terms of any agreement with a Third Party, a license, access or other right in,  to or under such intellectual property or other data, information or materials on the relevant terms  provided herein.  2.11 “Collaboration Activities” means the activities to be undertaken by each of the  Parties as detailed in the Sponsored Research Agreement and any Work Plan(s) as defined in the  Sponsored Research Agreement;  2.12 “Collaboration Patent Rights” refers to patent and patent applications arising from  inventions made by employees, consultants and contractors of the Parties or by employees of Tufts  





 






3    [***] =  Indicates confidential information omitted from the exhibit.  and subject to Tufts License, which inventions were made in the course of performance under the  terms of the Agreement; and will include any United States and foreign patents issuing thereon  and any continuing applications, divisions, continuation-in-part applications (CIPs), and any  foreign patent application or equivalent corresponding thereto and any Letters patent or equivalent  thereof issuing thereon or reissue, reexamination, supplementary protection certificate or extension  thereof.  Ownership of Collaboration Patent Rights shall follow inventorship.  2.13 “Exclusive” means that, subject to Sections 3.5, 3.7 and 3.8, BACH will not grant  licenses to any third party under the Licensed Patents in the Field and in the Territory.  2.14 “FAP-Targeted Radiopharmaceutical” means a Radiopharmaceutical (defined  below) including a FAP inhibitory moiety which binds to and forms an active site conjugate with  Fibroblast Activation Protein (“FAP”).  2.15 “Field” means all uses of FAP-Targeted Radiopharmaceuticals, including  therapeutic, prophylactic, diagnostics and prognostics uses.  2.16 “FTE” means, with respect to a person, the equivalent of the work of one (1)  employee full time for one year (consisting of at least 1,800 working hours per year, with no further  reductions for vacations and holidays).  Overtime, and work on weekends, holidays and the like  will not be counted with any multiplier (e.g., time-and-a-half or double time) toward the number  of hours that are used to calculate the FTE contribution.  2.17 “FTE Costs” for a given period means the FTE Rate multiplied by the total FTEs  (proportionately, on a per-FTE basis) directly engaged, in the particular period, in the performance  of activities pursuant to the Sponsored Research Agreement;  2.18 “FTE Rate” shall have the meaning given in the Sponsored Research Agreement.  2.19 “Infringement” has the meaning set forth in Section 7.1.  2.20 “Infringement Notice” has the meaning set forth in Section 7.1.  2.21 “Licensed Know-How” means any Confidential Information, data, process,  method, protocol, investigational new drug application, publication, and/or manuscript for  publication, Controlled by BACH, relating to an invention disclosed, taught or claimed in the  patents or patent applications that fall within the Licensed Patents or useful in the research,  development and commercialization of a Licensed Product or Licensed Process.  2.22 “Licensed Materials” means proprietary materials (such as drug agents, reagents,  cell lines) Controlled by BACH, that relate to the Licensed Patents, Licensed Know-How and/or  research, development and commercialization of Licensed Products or Licensed Processes and  which BACH transfers to POINT, its Affiliates or Sublicensees for the purposes of research,  development and commercialization of Licensed Products or Licensed Processes.  2.23 “Licensed Patents” means the BACH Patent Rights and the Collaboration Patent  Rights.  





 






4    [***] =  Indicates confidential information omitted from the exhibit.  2.24 “Licensed Process” means any process and/or method covered by a Valid Claim of  a Licensed Patent.  2.25 “Licensed Product” means a product (such as a composition) covered by a Valid  Claim of a Licensed Patent.  2.26 “Major Market” means [***].  2.27 “Net Sales” means the gross amounts actually received by POINT or its Affiliates  for sales of the Licensed Product or Licensed Process less the following items to the extent that  they are paid or actually allowed and/or are shown on the relevant invoice:  quantity, trade or cash discounts actually granted for Licensed Product or  Licensed Process;  amounts repaid or credited and allowances including cash, credit or free  goods allowances, given by reason of chargebacks, retroactive price  reductions or billing errors and rebates (including government-mandated  rebates) for Licensed Product or Licensed Process;  amounts refunded or credited for Licensed Product or Licensed Process  which was rejected, spoiled, damaged, outdated or returned;  freight, shipment and insurance costs incurred transporting the Licensed  Product or providing the Licensed Process to a third party purchaser; and  taxes, tariffs, customs duties and surcharges and other governmental  charges incurred in connection with the sale, exportation or importation of  Licensed Product or Licensed Process.  If Licensed Product or Licensed Process is in the form of a combination  product including a radioisotope and is sold together for a single price, then  POINT or its Affiliates may also deduct from Net Sales the actual out-of- pocket expense incurred in obtaining the radioisotope and incorporating the  radioisotope into the Licensed Product (pro rata by the number of units in  which the radioisotope is incorporated and sold).  In the absence of separate  reimbursement for infusion services, then POINT or its Affiliates may also  deduct from Net Sales the actual out-of-pocket expense incurred in  obtaining infusion services to administer the License Product or carry out  the Licensed Process in the clinic.  2.28 “Option Exercise Fee” has the meaning given in Section 5.2.  2.29 “Option Period” means the later date to occur of (a) [***] months after completion  of the BACH Deliverables under the Sponsored Research Plan (defined below) or (b) [***] months  from Effective Date.  





 






5    [***] =  Indicates confidential information omitted from the exhibit.  2.30 “Patent Expenses” means all costs and expenses (including legal and other  professional fees, Goods and Services Tax, other applicable taxes, and stamp duties) in relation to  the preparation, filing, prosecution and maintenance of the Licensed Patents.  2.31 “Sublicense Income” means any and all payments received from a Sublicensee by  POINT and its Affiliates, in consideration of the grant of a Sublicense, including but not limited  to upfront and milestone payments, license maintenance fees, royalty payments and the fair market  value of any non-cash consideration, but excluding (a) Research Support Payments (as defined  below); (b) reimbursements for customary patent expenses with respect to Licensed Patents; and  (c) payments made by a Sublicensee in consideration for the issuance of equity or debt securities  of POINT that do not exceed the Fair Market Value of such equity.  2.32 “Party” means POINT or BACH; “Parties” means POINT and BACH.  2.33 “Phase II Clinical Trial” means a clinical trial generally consistent with 21 CFR  §312.21(b), or its foreign equivalent, that is required for receipt of regulatory approval of a  Licensed Product or Licensed Process and which is conducted to evaluate the effectiveness and  the appropriate dose range of a Licensed Product or Licensed Process for a particular indication or  indications in patients with the disease or condition under study and to determine the common  short-term side effects and risks.  2.34 “Phase III Clinical Trial” means a pivotal human clinical trial in any country the  results of which could be used to establish safety and effectiveness of a Licensed Product or  Licensed Process as a basis for a NDA (or a BLA, as applicable) or that would otherwise satisfy  requirements of 21 CFR 312.21(c), or its foreign equivalent.  2.35 “Radiopharmaceutical” means a pharmaceutical agent containing radioactive  isotopes for use in human or veterinary subjects.  2.36 “Research Support Payments” mean payments made to POINT by a Sublicensee to  fund, at cost, the expenses of bona fide research and development activities with respect to  Licensed Products or Licensed Processes and only to the extent such costs are incurred after the  effective date of such Sublicense pursuant to a written research and development plan and budget  both as mutually agreed between POINT and such Sublicensee.  2.37 “Results” means all protocols, data, information and/or materials obtained,  identified, developed, generated, created, conceived and/or reduced to practice by or on behalf of  either or both Parties in the course of performance of activities under this Agreement.  2.38 “Right of First Negotiation” has the meaning given in Section 3.10.   2.39 “ROFN Maintenance Payment” has the meaning given Section 3.10(b).  2.40 “Royalty Term” means the later of the expiration of the last to expire Valid Claim  covering a Licensed Product or ten (10) years after the first commercial sale of the Licensed  Product.  





 






6    [***] =  Indicates confidential information omitted from the exhibit.  2.41 “Sponsored Research Agreement” refers to the agreement attached hereto as  Exhibit C, along with any additional written research and development plans, expected FTE hours  with projected FTE Costs, cost of materials and reagents and other such budget items as both  Parties may mutually agree in writing that BACH shall conduct.  2.42 “SRA Payment” shall mean a payment made by POINT to BACH to fund research  and development activities at BACH and/or at TUFTS in accordance with a Sponsored Research  Agreement.  2.43 “Sublicense” means:  (a) any right granted, license given or agreement entered into  by POINT or a POINT Affiliate to or with any other person or entity, under or with respect to or  permitting any use of any of the Licensed Patents, or otherwise granting rights to such person or  entity under the rights granted to POINT under Section 3.1 of this Agreement; (b) any option or  other right granted by POINT or a POINT Affiliate to any other person or entity to negotiate for  or receive any of the rights described under clause (a); or (c) any nonsuit obligation undertaken by  POINT or a POINT Affiliate toward any other person or entity with respect to the Licensed Patents.  2.44 “Sublicensee” means a third party that is not an Affiliate of POINT and to which  POINT or a POINT Affiliate has granted a Sublicense pursuant to Section 3.6.  Without limiting  the generality of the foregoing, a Sublicensee will be deemed to include any third party that is  granted a Sublicense hereunder by POINT or a POINT Affiliate pursuant to the terms of the  outcome or settlement of any infringement or threatened infringement action.  For avoidance of  doubt, an Affiliate who has been granted a Sublicense and subsequently no longer qualifies as an  Affiliate hereunder shall thereupon be a Sublicensee for purposes of this Agreement.  2.45 “Territory” means worldwide.  2.46 “True Up Event” refers to a credit or payment adjustment made to a currently due  SRA Payment in the event the actual costs incurred by BACH in carrying out its activities under  the Sponsored Research Agreement for a previously paid SRA Payment were more or less than  the SRA Payment made for the quarter in which the activities were carried out.  2.47 “Valid Claim” means (a) for the first [***] years from the Effective Date, any claim  in a pending patent application included within Licensed Patents, or (b) any claim in any issued  patent included within Licensed Patents, which, in either case, has not been withdrawn, cancelled  or disclaimed, nor held invalid or unenforceable by a court of competent jurisdiction in an  unappealed or unappealable decision.  SECTION 3  OPTION EXERCISE AND LICENSE GRANTS  3.1 Exclusive Commercialization Option:  During the Option Period, POINT shall have  the exclusive right to evaluate FAP-Targeted Radiopharmaceuticals for the purpose of determining  whether or not to exercise the Commercialization Option.  3.2 Maintenance of Commercialization Option:  Within [***] days after the Effective  Date, the Parties will finalize the initial Work Plan and the for Sponsored Research Agreement,  which will then be attached as Exhibit C.  In order to maintain the Commercialization Option for  





 






7    [***] =  Indicates confidential information omitted from the exhibit.  the duration of the Option Period or until which time as POINT exercises the Commercialization  Option, POINT agrees upon finalization of the initial Work Plan of the Sponsored Research  Agreement to make regular quarterly SRA Payments to BACH under the Sponsored Research  Agreement, which payments are no less than $[***] per quarter, to commence on the first day of  the first quarter after finalization of the initial Work Plan.  Failure to make the minimum required  SRA Payment for a given quarter, unless the consequence of a True Up Event or by written consent  from BACH and fails to cure such non-payment within [***] days from the date of written notice  thereof by BACH, will result in the immediate end to the Commercialization Option and, at  BACH’s election, termination of this Agreement.  3.3 Evaluation License:  For the term of the Option Period, solely for the purpose of  POINT’s evaluation of FAP-Targeted Radiopharmaceuticals, BACH grants POINT a exclusive,  revocable, royalty free, non-assignable, non-transferrable license, with the limited right to sub- license to subcontractors only in furtherance of the permitted evaluation, to the License Patents,  Licensed Know-How and Licensed Materials for the evaluation of FAP-Targeted  Radiopharmaceuticals.  3.4 Option Exercise:  In order to effectively exercise the Commercialization Option,  POINT must within the Option Period provide BACH with written notice of exercise of the  Commercialization Option along with payment of the Option Exercise Fee; the Commercialization  Option being deemed exercised only upon actual receipt of both by BACH.  3.5 Commercialization License.  Subject to the terms and conditions of this Agreement,  upon timely and effective exercise of the Commercialization Option, BACH grants to POINT and  its Affiliates an exclusive, royalty bearing license (or sublicense under the Tufts License as the  case may be) in the Licensed Patents, Licensed Know-How and Licensed Materials to research,  develop, use, make, have made, import or have imported, export or have exported, offer for sale  or have offered for sale, and/or sell or have sold Licensed Products in the Field and in the Territory  and to provide Licensed Processes in the Field and in the Territory.  (a) The foregoing Commercialization License includes the right to grant  additional Sublicenses through multiple tiers subject to the terms set forth in Section 3.6 below.  (b) If the Commercialization License granted in this Section 3.5 is to be  exercised by Affiliates of POINT, then POINT shall provide written notice thereof to BACH  accompanied by a written statement executed by an authorized representative of each such  Affiliate indicating its agreement to be bound by the terms and conditions of this Agreement;  provided, however, that any act or omission taken or made by an Affiliate of POINT under this  Agreement will be deemed an act or omission by POINT under this Agreement.  3.6 Sublicenses.  POINT and its Affiliates and Sublicensees may grant further  Sublicenses hereunder; provided, that:  (a) all Sublicenses are subject to and consistent with the terms and conditions  of this Agreement;  (b) no Sublicense shall relieve POINT of any of its obligations hereunder, and  POINT shall be responsible for the acts or omissions of its Sublicensees and for the compliance  





 






8    [***] =  Indicates confidential information omitted from the exhibit.  by its Sublicensees with their obligations under the Sublicense, including the obligations set forth  in Section 3.6(c), and POINT or an Affiliate shall take all steps necessary to enforce such  compliance; and  (c) POINT furnishes to BACH a true and complete copy of each executed  Sublicense and each amendment thereto, within [***] days after the Sublicense or amendment has  been executed.  3.7 Retained Rights.  POINT acknowledges and agrees that pursuant to the Tufts  License, Tufts retains the right (a) to practice and use the subject matter covered by Licensed  Patents and Licensed Know-How and (b) to distribute materials related to the Licensed Patents  and Licensed Know-How to other universities, academic institutions and non-profit research  organizations, in either case, solely for academic non-commercial research, clinical, educational  and compassionate use purposes.  However, BACH will take all reasonable steps necessary to  prevent the use of any retained rights by Tufts from being used to the detriment of POINT and the  commercialization license and purposes of this Agreement.  Furthermore, the above- notwithstanding, nothing in this Agreement grants BACH nor Tufts a license to POINT’s  intellectual property rights, including its own patents, to distribute materials even to other  universities, academic institutions and non-profit research organizations.  3.8 Government Rights.  In accordance with Public Laws 96-517, 97-256 and 98-620,  codified at 35 U.S.C. §§ 200-212, and 37 CFR Part 401, (a) the United States government retains  certain rights to inventions arising from federally supported research or development; (b) the  United States government may impose requirements on such inventions; and (c) products  embodying inventions subject to these laws and regulations sold in the United States must be  substantially manufactured in the United States, in each case (clauses (a) – (b)) subject to waivers  or exceptions as provided in such statutes. In connection therewith, POINT (a) acknowledges that  the rights granted to Licensed Patents in this Agreement are expressly made subject to such laws  and regulations as they may be amended from time to time and (b) agrees to abide by all such laws  and regulations to the extent applicable.  3.9 Marking.  POINT will mark, and will cause its Affiliates and Sublicensees to mark,  all Licensed Products (or their packaging, containers or labels) with the word “patent” and the  issued patent number or “patent pending” or “patent applied for,” as the case may be, as required  to enable the Licensed Patents to be enforced to their full extent in any country where the Licensed  Products are made, used or sold.  3.10 Right of First Negotiation.  During the Term of this Agreement, subject to the terms  and conditions below, BACH grants to POINT a Right of First Negotiation (“ROFN”) to [***]  owned or controlled by BACH.  Accordingly, before entering into any transaction pertaining to a  [***] (a “[***] Transaction”) with any third party, BACH shall first notify POINT in writing of  the [***] Transaction, which notice shall include sufficient written detail of the proposed [***] as  available to BACH and reasonably necessary for POINT to make a determination of whether to  exercise the ROFN.  POINT shall have [***] days from the receipt of such notice to provide BACH  with written notice that it desires to enter into good faith negotiations with BACH regarding the  [***] Transaction.  If POINT does not provide written notice that it is exercising its ROFN within  such [***] day period, then BACH shall have no further obligation with respect to the ROFN and  





 






9    [***] =  Indicates confidential information omitted from the exhibit.  shall be free to negotiate and enter into a [***] Transaction with any third party provided that such  [***] Transaction does not undermine or alter the terms and conditions of this Agreement or any  option exercised hereunder.  If POINT properly exercises the ROFN as described above, then the  Parties shall negotiate exclusively, reasonably and in good faith concerning the terms of a [***]   Transaction for a period of [***] days.  If the Parties using Commercially Reasonable Efforts do  not execute and deliver an agreement with respect to the [***] Transaction within such [***] day  period, then BACH shall be free to negotiate and enter into any transaction for the [***]  Transaction with any third party; provided that if such third party transaction is, when taken as a  whole, materially and substantially less favorable to BACH than the terms last offered to BACH  by POINT, then BACH will provide written notice describing and offering POINT such  transaction for the [***] for a period of [***] days (after POINT’s receipt of such notice) before  entering such transaction with a third party.  If POINT elects to pursue such [***] Transaction, it  shall deliver written notice to BACH within such [***]-day period, and the Parties will proceed to  negotiate and finalize definitive agreements.  SECTION 4  DILIGENCE  4.1 Requirements.  As an inducement to BACH to enter into this Agreement, POINT  agrees to use, and agrees to cause its Affiliates or Sublicensees to undertake to use Commercially  Reasonable Efforts to proceed with the development, manufacture, and sale of Licensed Products  in the Field and the Territory.  4.2 Reports.  No later than [***] days after each anniversary of the Effective Date,  POINT will provide to BACH a written annual progress report in the form attached as Exhibit B  regarding the progress of POINT on research and development, regulatory approval,  manufacturing, sublicensing, marketing and sale of Licensed Products during the preceding twelve  (12) month period and plans for the forthcoming year.  Each annual progress report will contain a  sufficient level of detail for BACH to assess whether POINT is in compliance with its obligations  under Section 4.1.  Any such reports will be treated as Confidential Information of POINT.  SECTION 5  FEES, MILESTONES, ROYALTIES AND REPORTS  5.1 Agreement Execution Fee.  In partial consideration for the exclusive  Commercialization Option granted by BACH to POINT, within [***] days from the Effective  Date, POINT shall pay BACH an upfront fee of six hundred thousand dollars ($600,000), which  shall be credited toward the Option Exercise Fee in the event POINT elects to exercise the  Commercialization Option.  5.2 Option Exercise Fee.  In partial consideration for the exclusive license to be granted  to POINT upon its exercise of the Commercialization Option, the Option Exercise Fee to be paid  to BACH is Five Million dollars ($5,000,000), less (i) the amount of the Agreement Execution  Fee, and (ii) the amounts of any Sponsored Research Payments made up to the date of POINT’s  exercise of the Commercialization Option.  





 






10    [***] =  Indicates confidential information omitted from the exhibit.  5.3 Sublicense Income.  In the event that, pursuant to Section 3.6 of this Agreement,  POINT or an Affiliate grants a Sublicense, POINT agrees to pay BACH a percentage of any and  all Sublicense Income received by POINT or an Affiliate from any and all Sublicensees or licenses.   Such payments shall be made within [***] days after the end of each Calendar Quarter during the  Term during which POINT or an Affiliate receives any Sublicense Income.  The amount payable  shall be equal to a percentage of the Sublicense Income received during the relevant Calendar  Quarter as follows:  Royalty-Related Sublicense Income from Sublicenses entered  into prior to [***]  [***]% shall be  payable to BACH  Royalty-Related Sublicense Income from Sublicenses entered  into after [***] but before [***]  [***]% shall be  payable to BACH  Royalty-Related Sublicense Income from Sublicenses entered  into after [***]  [***]% shall be  payable to BACH    5.4 Milestone Payments.  Upon achievement of each milestone event set forth below  by POINT or an Affiliate, POINT will make the payments set forth below to BACH within [***]  days of the occurrence of each such event:  Milestone Event Payment  [***] US$[***] ([***] US Dollars)  [***] US$[***] ([***] US Dollars)  [***] US$[***] ([***] US Dollars)  First Year Global Sales of Licensed Product(s)  exceed US$[***]  US$[***] ([***] US Dollars)  First Year Global Sales of Licensed Product(s)  exceed US$[***]  US$[***] ([***] US Dollars)  First Year Global Sales of Licensed Product(s)  exceed US$[***]  US$[***] ([***] US Dollars)    5.5 Royalties.  During the Royalty Term, POINT shall pay BACH royalties of [***]%  of Net Sales of each Licensed Product or Licensed Process covered by a Valid Claim, which  royalty shall be reduced to [***]% of Net Sales in the absence of a Valid Claim.  5.6 Royalty Payment Offsets.  Except for the cost described in 2.27 (vi) which are  deducted from the Net Sales calculation as defined above, in the event that POINT or its Affiliates,  





 






11    [***] =  Indicates confidential information omitted from the exhibit.  in order to exploit the license granted to it under this Agreement in any country, actually makes  earned royalty payments on Net Sales of a Licensed Product or Licensed Process to one or more  third parties (“Third Party Payments”) as consideration for a license to any patents which would  necessarily be infringed by the manufacture, use, sale or importation of such Licensed Product or  practice of such Licensed Process in or into such country, then POINT shall have the right, on a  country-by-country basis, to reduce the royalty payments otherwise due to BACH pursuant to  Section 5.5 for such Licensed Product by [***] percent ([***]%) of such Third Party Payments;  provided, however, that in no event will the royalties due to BACH for any Licensed Product in  any country be reduced to less than [***] percent ([***]%) of the royalties otherwise payable  pursuant to Section 5.5.  5.7 Reports and Payment.  (a) Sublicense Income.  Within [***] days of the end of each Calendar Quarter  during the term of this Agreement following the execution by POINT of each Sublicense  agreement, POINT will deliver to BACH (i) a written report showing the Sublicense Income  received from any such Sublicensees, if any, its computation of Sublicense Income due under this  Agreement and the amounts of any permissible deductions and (ii) the full amount of the  Sublicense Income shown to be due under this Agreement for such Calendar Quarter.  (b) Royalty Payments.  POINT will report to BACH the date of the first commercial sale of each  Licensed Product within [***] days of occurrence.  During the term of this  Agreement, commencing with the Calendar Quarter in which the First  Commercial Sale of a Licensed Product or Licensed Process occurs, within  [***] days after the end of each Calendar Quarter, POINT will deliver to  BACH (i) a written report showing its computation of royalties due under  this Agreement for such Calendar Quarter on a country-by-country and  product-by-product basis, including an accounting of deductions taken from  the calculation of Net Sales and (ii) payment of the royalties shown to be  due under this Agreement for such Calendar Quarter.  All Sublicense Income, royalty and other payments due hereunder will be  payable in United States Dollars, by check or wire transfer, and will be  deemed received when funds are credited to BACH’s bank account in  accordance with instructions to be provided by BACH promptly following  the Effective Date.  Late payments will be subject to a charge of [***] percent ([***]%) per  month, or the maximum rate of interest that can be charged under applicable  law. Payments hereunder will be made in United States Dollars.  With  respect to payments based on amounts received by POINT in a currency  other than United States Dollars, the sales and royalties and/or other  payments payable will be expressed in their United States Dollar equivalent  calculated using the applicable conversion rates for buying United States  Dollars published by The Wall Street Journal on the last business day of the  





 






12    [***] =  Indicates confidential information omitted from the exhibit.  Calendar Quarter to which the royalty report relates and the report shall  further disclose the exchange rate at which a conversion was calculated.  All  reports provided by POINT under this Section 5.7 shall be certified by an  executive officer of POINT as being, true, correct and complete to the  knowledge of such officer on the date provided.  5.8 Taxes.  Any tax required to be withheld under the laws of any jurisdiction on  royalties or other amounts payable to BACH by POINT under this Agreement will be promptly  paid by POINT (out of the amounts payable to BACH) for and on behalf of BACH to the  appropriate governmental authority, and POINT will furnish BACH with sufficient proof of  payment of the tax together with official or other appropriate evidence issued by the competent  governmental authority.  POINT and BACH will use reasonable and legal efforts to reduce taxes  on payments to be made to BACH and will cooperate with one another in claiming exemption  from non-U.S. withholding and deductions under any agreement or treaty that may be in effect.  5.9 Records.  POINT will keep, and will require all Affiliates and Sublicensees to keep,  true and accurate books of accounts and other records containing all information and data which  may be necessary to ascertain and verify the amounts due under this Agreement and any permitted  deductions thereto and such records will be maintained for no less than [***] years after the year  in which the related payment is due under this Agreement.  During the term of this Agreement and  for a period of [***] years following its termination or expiration, BACH will have the right from  time to time (not to exceed once during each calendar year) to have an independent certified public  accountant inspect such books and records of POINT, its Affiliate and Sublicensees.  Any such  independent certified accountant will be reasonably acceptable to POINT, will execute a standard  form of confidentiality agreement with POINT, and will only be permitted to share with BACH  (as applicable) its findings with respect to the accuracy of the royalties and Sublicense Income  (including any deductions thereto) reported as payable under this Agreement.  Such examination  will be solely limited to the revenue and will be at the expense of BACH (as applicable), except  that if such examination shows an underreporting or underpayment in excess of [***] percent  ([***]%) for any [***] consecutive Calendar Quarters, POINT will pay the cost of such  examination as well as any additional sum that would have been payable to BACH (as applicable)  had POINT, its Affiliate or Sublicensee reported correctly, plus interest on said sum at the rate of  [***] percent ([***]%) per month, or the maximum rate of interest that can be charged under  applicable law, starting with the month on which such payment should have been made.  SECTION 6  PATENT FILINGS AND MAINTENANCE  6.1 Patent Prosecution Fees.  From the Effective Date, POINT shall be responsible for  all Patent Expenses.  To the extent BACH incurs any Patent Expenses, including Patent Expenses  billed to BACH under the Tufts License, POINT will reimburse within [***] days of the receipt  of an invoice for such Patent Expenses incurred by BACH during the term of this Agreement.   BACH shall seek prior approval from POINT prior to incurring Patent Expenses.  All Patent  Expenses paid by POINT shall be creditable towards future Royalty or Sublicense Income  payments otherwise due to BACH.  





 






13    [***] =  Indicates confidential information omitted from the exhibit.  6.2 Patent Filings.  As between Tufts and BACH and pertaining to Tufts’ interest in  Licensed Patents, under the terms of the Tufts License Tufts is responsible, in consultation with  BACH, for the preparation, filing, prosecution, and maintenance of those patent applications and  patents of the Licensed Patents for which Tufts is an owner.  BACH shall diligently and in a timely  manner seek input from POINT on prosecution decisions and facilitate conveying POINT’s  recommendations to Tufts concerning the Licensed Patents.  For the avoidance of doubt, for Patent  Rights in which POINT is a co-owner, POINT shall be responsible for its own prosecution and  maintenance decisions and interactions with Tufts related thereto.  Tufts will not, without prior  written notice to BACH, abandon any patent application or patent within the Licensed Patents.  In  the event Tufts, in its sole discretion, determines not to prepare, file, prosecute or maintain any  patent application or patent within the Licensed Patents in any country in the Territory, BACH  will promptly notify POINT thereof, and, if so requested by POINT, POINT will have the right, at  its own expense, to prepare, file, prosecute and maintain any such patent application or patent in  such country in the name of Tufts, subject to Section 6.3 below.  If POINT fails to assume control  of preparation, filing, prosecution and maintenance of such patent application or patent in the  Licensed Patents or, if POINT otherwise elects to surrender any patent application or patent in the  Licensed Patents in any country in the Territory upon [***] days prior written notice to BACH,  each of Tufts and BACH shall be relieved of its obligations regarding such surrendered patent  application or patent under Section 6.3 below and POINT shall be relieved of the obligation to  reimburse BACH for future patent expenses with respect to such surrendered patent application or  patent; provided, that, POINT shall continue to have the obligation to reimburse BACH for patent  expenses incurred in connection with that patent application or patent prior to the expiration of the  [***] day notice.  For purposes of clarity, in the event POINT elects to surrender or abandon any  patent application or patent in the Licensed Patents, such application or patent will be excluded  from the definition of the Licensed Patents.  6.3 Patent Cooperation.  Each Party will provide the other Party with copies of all  substantive communications from all patent offices regarding the Licensed Patents, the filing or  maintenance of which such Party is responsible pursuant to Section 6.2 above, promptly after the  receipt thereof.  Each Party will provide the other Party with copies of all proposed substantive  communications to such patent offices regarding the Licensed Patents, the filing or maintenance  of which such Party is responsible pursuant to Section 6.2 above, in sufficient time before the due  date in order to enable the other Party an opportunity to comment on the content thereof.  BACH  shall provide POINT with copies of all third party invoices relating to patent filings and give  POINT at least [***] days in which to provide a notification to BACH of any disputed fees or  charges (including the basis for the dispute) prior to BACH paying the invoice; BACH will use  reasonable efforts to work with third parties to address any disputed fees or charges as requested  in the notification from POINT.  SECTION 7  INFRINGEMENT  7.1 Notice.  During the Term of this Agreement, each Party will promptly, and in any  event no later than [***] days, report in writing to the other Party any actual or threatened  infringement of the Licensed Patents of which it becomes aware (each, an “Infringement”), and  will provide the other Party with all available evidence supporting such actual or threatened  





 






14    [***] =  Indicates confidential information omitted from the exhibit.  Infringement (“Infringement Notice”).  The Parties will reasonably cooperate with each other to  terminate or settle any such Infringement without litigation.  7.2 Suit Initiation.  (a) As between the Parties, POINT will have the first right to commence an  action against any Infringement in respect of a Licensed Product anywhere in the world at its own  expense, provided POINT gives BACH and Tufts sufficient advance notice of its intent to take  such action and the reasons therefore.  BACH and Tufts will cooperate with POINT in bringing  and pursuing such Infringement action as reasonably requested.  POINT will keep BACH and  Tufts promptly informed, will regularly consult with BACH and Tufts regarding the status of any  such Infringement action and will provide BACH and Tufts with copies of all documents filed in  such Infringement action.  Each of BACH and Tufts may, at its option and expense, join POINT  in such Infringement action.  (b) If within [***] days from the date of the Infringement Notice, the alleged  Infringement is not terminated or settled and POINT has failed to bring any action against the  alleged or actual infringer, then either BACH or Tufts will have the right to bring an action against  the alleged or actual infringer at its own expense.  POINT will cooperate with BACH or Tufts, as  applicable, in bringing and pursuing such Infringement action as reasonably requested by BACH  or Tufts, as applicable, and at the expense of BACH or Tufts, as applicable.  BACH or Tufts, as  applicable, will keep POINT promptly informed, will from time to time consult with POINT  regarding the status of any such Infringement action and will provide POINT with copies of all  documents filed in, and all written communications relating to, such Infringement action.  7.3 Litigation by POINT.  POINT will have the sole and exclusive right to select  counsel for any Infringement action referred to in Section 7.2(a) of this Agreement and will, except  as provided herein, pay all expenses of the action, including without limitation attorneys’ fees and  court costs.  If reasonably necessary, BACH or Tufts will join as a party to each Infringement  action but will be under no obligation to participate except to the extent that such participation is  required as the result of being a named party to the Infringement action.  At POINT’s request,  BACH and Tufts will offer reasonable assistance to POINT in connection therewith at no charge  to POINT except for reimbursement of reasonable out-of-pocket expenses incurred in rendering  such assistance excluding legal fees.  Each of BACH and Tufts will have the right to participate in  any such suit and be represented by its own counsel at its own expense.  POINT will not settle any  such Infringement action without obtaining the prior written consent of BACH and Tufts, which  consent will not be unreasonably withheld.  7.4 Litigation by BACH.  As between the Parties, BACH will have the sole and  exclusive right to select counsel for any Infringement action referred to in Section 7.2(b) of this  Agreement and will, except as provided herein, pay all expenses of the Infringement action,  including without limitation attorneys’ fees and court costs.  If reasonably necessary, POINT will  join as a party to the Infringement action but will be under no obligation to participate except to  the extent that such participation is required under this Agreement or as a result of being a named  party to the Infringement action.  At BACH’s or Tufts’ request, as applicable, POINT will offer  reasonable assistance to BACH or Tufts, as applicable, in connection therewith at no charge to  BACH or Tufts, as applicable, except for reimbursement of reasonable out-of-pocket expenses  





 






15    [***] =  Indicates confidential information omitted from the exhibit.  incurred in rendering such assistance excluding legal fees.  POINT will have the right to participate  in any such suit and be represented by its own counsel at its own expense.  Neither BACH nor  Tufts will settle any such Infringement action without obtaining the prior written consent of  POINT, which consent will not be unreasonably withheld.  With respect to the settlement of any  Infringement action prosecuted by BACH or Tufts, POINT will, at the request of BACH or Tufts,  negotiate in good faith a Sublicense with the allegedly infringing party and will pay over to BACH  or Tufts, as applicable, any and all payments (whether or not designated as “royalties”) made by  the alleged infringer to POINT until such time as the amount of the unreimbursed litigation  expenses of BACH or Tufts, as applicable, including but not limited to reasonable attorneys’ fees  have been completely reimbursed; and thereafter will allocate all such payments in accordance  with Section 7.5 of this Agreement.  7.5 Recoveries and Reimbursement.  Recoveries or reimbursements from Infringement  actions commenced by POINT pursuant to Sections 7.2(a) will be distributed as follows:  (a)  POINT, BACH and Tufts will be reimbursed for their respective litigation expenses, including but  not limited to reasonable attorneys’ fees; (b) any recoveries based on POINT’s lost sales shall be  treated as Sublicense Income and BACH shall be entitled to receive the payment due hereunder,  with POINT entitled to receive the balance of such recoveries that are based on POINT’s lost sales;  and (c) any remaining recoveries or reimbursements will be divided equally between BACH and  POINT.  POINT and BACH agree to negotiate in good faith an appropriate compensation to BACH  for any non-cash settlement or non-cash cross-license unless reasonably required by POINT, its  Affiliates and/or Sublicensees to develop and commercial a Licensed Product.  7.6 Claimed Infringement.  In the event that a third party at any time provides written  notice of a claim to, or brings an action, suit or proceeding against, BACH, Tufts or POINT or any  of POINT’s Affiliates or Sublicensees, claiming infringement of its patent rights, based upon an  assertion or claim arising out of the manufacture, use or sale of Licensed Products or Licenses  Processes, the allegedly infringing Party will promptly, and in any event no later than [***] days,  notify the other Party of the claim or the commencement of such action, suit or proceeding,  enclosing a copy of the claim and all papers served.  Each Party agrees to make available to the  other Party its advice and counsel regarding the technical merits of any such claim.  SECTION 8  CONFIDENTIALITY  8.1 Non-Disclosure and Non-Use.  Each receiving Party agrees (a) to maintain in  confidence the disclosing Party’s Confidential Information and not to disclose, publish or  otherwise communicate such Confidential Information; (b) use the disclosing Party’s Confidential  Information, including all those rights granted to POINT by BACH for Licensed Know-How in  Section 3.3 above, solely for the purposes set forth in this Agreement and (c) to disclose the  disclosing Party’s Confidential Information only on a need to know basis to its Affiliates and  Sublicensees or potential Sublicensees, as the case may be, and to their respective employees and  consultants, in each case, who are under written obligations of confidentiality to the receiving Party  at least as stringent as those set forth herein.  Each receiving Party agrees to use the same degree  of care in protecting the disclosing Party’s Confidential Information as it uses to protect its own  Confidential Information.  BACH will use Commercially Reasonable Efforts to ensure that Tufts  





 






16    [***] =  Indicates confidential information omitted from the exhibit.  holds POINT Confidential Information in confidence.  The provisions of this Section 8.1 will not  apply to any Confidential Information disclosed hereunder which:  (a) was known or used by the receiving Party prior to its date of disclosure to  the receiving Party, as demonstrated by competent evidence of the receiving Party;  (b) either before or after the date of the disclosure to the receiving Party is  disclosed to the receiving Party by an independent, unaffiliated third party rightfully in possession  of the Confidential Information who does not have a duty of confidentiality to the disclosing Party  with respect to such Confidential Information; or  (c) either before or after the date of the disclosure to the receiving Party  becomes published or generally known to the public through no fault or omission on the part of  the receiving Party; or  (d) is independently developed by the receiving Party without reference to the  Confidential Information of the disclosing Party.  If required, the receiving Party may disclose the Confidential Information of the disclosing Party  to comply with applicable laws or regulations (including any securities exchange), to defend or  prosecute litigation, to file for patent protection, or to file for regulatory approval to test or market  Licensed Products; provided, however, that, (a) where available, the receiving Party takes  reasonable and lawful actions to avoid and/or minimize the degree of such disclosure and (b) the  receiving Party notifies the disclosing Party in advance in writing of any such disclosure to the  extent legally possible.  8.2 Publicity.  Neither Party may publicly disclose the terms of this Agreement without  the prior written consent of the other Party, which consent shall not be unreasonably withheld or  delayed; provided, however, that either Party may make such a disclosure (a) to the extent required  by law or by the requirements of any nationally recognized securities exchange, quotation system  or over-the-counter market on which such Party has its securities listed or traded, or (b) to any  investors, prospective investors, lenders and other potential financing sources who are obligated  to keep such information confidential.  In the event that such disclosure is required as aforesaid,  the disclosing Party shall provide the other Party with written notice beforehand and coordinate  with the other Party with respect to the wording and timing of any such disclosure.  SECTION 9  REPRESENTATIONS, WARRANTIES AND LIMITATIONS  9.1 BACH represents and warrants that:  (a) it Controls the Licensed Patents;  (b) it is a corporation organized and existing under the laws of the  Commonwealth of Massachusetts and has the power and authority to enter into this Agreement;  and  





 






17    [***] =  Indicates confidential information omitted from the exhibit.  (c) it has the full and unencumbered right, power and authority to enter into this  Agreement and to grant the rights granted by BACH to POINT hereunder;  (d) it has not received any written notice or claim and is not otherwise aware  that the Licensed Know-How and Licensed Materials infringe or misappropriate the proprietary  rights of any third party;  (e) it has not received any written notice or claim and is not otherwise aware  that the Licensed Patents are invalid or unenforceable;  (f) it has taken all necessary action to authorize the execution and delivery of  this Agreement by its representatives who carried out such execution and delivery, and to authorize  the performance of its obligations hereunder;  (g) none of the rights granted to POINT hereunder are in conflict with the terms  and conditions of the Tufts License; and  (h) Exhibit A lists all of the patents and patent applications owned or Controlled  by BACH that are necessary to POINT’s evaluation, development and commercialization of FAP- Targeted Radiopharmaceuticals as contemplated by this Agreement.  9.2 Other than as set forth in Section 9.1 above, BACH MAKES NO  REPRESENTATIONS AND EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED OR  EXPRESS WARRANTIES AND MAKES NO EXPRESS OR IMPLIED WARRANTIES OF  MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE  INTELLECTUAL PROPERTY SUPPLIED BY BACH.  9.3 POINT represents and warrants that:  (a) it is a corporation organized and existing under the laws of Delaware and  has the power and authority to enter into this Agreement; and  (b) it has taken all necessary action to authorize its execution and delivery of  this Agreement by its representatives who carried out such execution and delivery, and to authorize  the performance of its obligations hereunder.  9.4 Limitation of Liability.  Neither Party will be liable to the other party UNDER ANY  LEGAL THEORY (WHETHER TORT, CONTRACT OR OTHERWISE) for special, incidental,  consequential or punitive damages arising out of OR RELATED TO this Agreement or the  exercise of its rights hereunder, including lost profits arising from or relating to any breach of this  Agreement, regardless of any notice of such damages, except as a result of a material breach of the  confidentiality and non-use obligations in Section 10.  Nothing in this Section 9.4 is intended to  limit or restrict the indemnification rights of BACH or indemnification obligations of POINT.   Notwithstanding the foregoing, BACH’s liability to POINT under this Agreement for any and all  claims, losses, damages and expenses shall not exceed the total amounts paid by POINT to BACH  under this Agreement.  





 






18    [***] =  Indicates confidential information omitted from the exhibit.  SECTION 10  EXPIRATION AND TERMINATION  10.1 Expiration.  This Agreement is effective as of the Effective Date and unless sooner  terminated under this Section 10, will expire upon the cessation of commercialization of the last  Licensed Product by POINT, its Affiliates and Sublicensees (the “Term”).  10.2 BACH Termination Rights.  BACH may, at its election, either (a) terminate this  Agreement, or (b) convert POINT’s exclusive license rights under Section 3.5 above, into non- exclusive rights, upon the occurrence of any one or more of the following events:  (a) POINT does not make a payment hereunder and fails to cure such non- payment within [***] days from the date of written notice thereof by BACH;  (b) POINT is in material breach of any other material provision of this  Agreement and fails to remedy such material breach within [***] days after written notice thereof  by BACH;  (c) POINT (or an Affiliate as applicable) does not use Commercially  Reasonable Efforts pursuant to Section 4.1 or cause its Sublicensee(s) to do so and fails to remedy  such material breach within [***] days after written notice thereof by BACH;  (d) POINT is found, on more than one examination by BACH or Tufts pursuant  to Section 5.9 of this Agreement, to have underreported or underpaid any royalty due under Section  5.5 of this Agreement or Sublicense Income pursuant to Section 5.3 by more than [***] of the total  amount payable in each of any [***] Calendar Quarters in the period under examination;  (e) POINT ceases to carry on the business related to the subject matter covered  by the Licensed Patents directly or through a Sublicensee;  (f) POINT becomes insolvent, makes an assignment of a substantial portion of  its assets for the benefit of creditors or upon the filing or institution of bankruptcy, reorganization,  liquidation or receivership proceedings; provided, however, that in the event of any involuntary  bankruptcy or receivership proceeding such right to terminate shall only become effective if  POINT consents to the involuntary bankruptcy or receivership or such proceeding is not dismissed  within [***] days after the filing of such bankruptcy or receivership, effective immediately upon  BACH giving written notice to POINT;  (g) POINT or any of its Affiliates brings a Challenge against BACH or Tufts,  or assists others in bringing a Challenge against BACH or Tufts (except as required under a court  order or subpoena), effective immediately upon BACH or Tufts giving written notice to POINT;  or  (h) To the extent permitted by law, POINT fails to terminate a Sublicense  within [***] days after written demand from BACH or Tufts to do so in the case where a  Sublicensee brings a Challenge against BACH or Tufts (except as required under a court order or  subpoena), effective immediately upon expiration of such time period.  





 






19    [***] =  Indicates confidential information omitted from the exhibit.  10.3 POINT’s Termination Rights.  POINT may terminate this Agreement in its entirety,  or with respect to one or more Licensed Products or Licensed Patents throughout the Territory or  in one or more countries, by giving BACH ninety (90) days prior written notice and paying BACH  all sums due and payable through the effective date of such termination.  10.4 Consequences of Termination.  Upon termination of this Agreement for any reason:  (a) the right of POINT and its Affiliates hereunder to make, use, sell or import  such Licensed Product(s) or to practice such Licensed Patents in such country(ies) will cease  immediately; provided, that, notwithstanding the foregoing, no such termination of this Agreement  shall be construed as a termination of any valid Sublicense to any Sublicensee hereunder, and  thereafter, upon POINT’s notice to BACH, each such Sublicensee shall be considered a direct  licensee of BACH; provided, that, (i) such Sublicensee is then in full compliance with all terms  and conditions of its Sublicense, (ii) all accrued payment obligations of POINT to BACH have  been paid, and (iii) such Sublicensee agrees in writing to assume all applicable obligations of  POINT under this Agreement within [***] days;  (b) if POINT or its Affiliates then possess, have started the manufacture of or  have accepted binding orders for Licensed Products, POINT and its Affiliates will have the right  to sell their inventories, complete the manufacture of and market and sell the finished Licensed  Products to the extent necessary to dispose of those inventories and fill those orders, subject at all  times, to POINT’s obligation to pay BACH the royalty payments due under Sections 5.5 and to  deliver the reports required under Section 5.8 of this Agreement;  (c) neither Party will be discharged from any liability or obligation hereunder  that arose or became due or payable before the effective date of termination;  (d) each Party, and their respective Affiliates, will promptly return or destroy  the Confidential Information of the other Party and will deliver a certificate signed by one of its  authorized officers that it has done so; and  (e) Sections 5.9, 8, 9.2, 9.4, 10.4, 11 and 12 of this Agreement will survive the  termination or expiration of this Agreement.  SECTION 11  INDEMNIFICATION AND INSURANCE  11.1 POINT agrees, and shall cause its Affiliates and Sublicensees to agree, to  indemnify, hold harmless and defend BACH, Tufts and their respective current and former  directors, governing board members, trustees, officers, faculty, medical and professional staff,  employees, students, Affiliates and agents and their respective successors, heirs and assigns  (collectively, the “BACH Indemnitees”), against any liability, damage, loss or expenses (including  reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Indemnitees  or any of them in connection with any third party claims, suits, actions, demands or judgments  arising out of, (a) any theory of product liability (including, but not limited to, actions in the form  of tort, warranty, or strict liability) or the development, manufacture, use or sale of any Licensed  Products developed, manufactured, used or sold by POINT or any of its Affiliates or Sublicensees  and/or the provision of Licensed Processes, (b) the negligence or willful misconduct of POINT, or  





 






20    [***] =  Indicates confidential information omitted from the exhibit.  (c) POINT’s breach of this Agreement (collectively, “Covered Claims”).  POINT will not be  responsible for the indemnification or defense of the BACH Indemnitees to the extent a Covered  Claim is solely caused by the gross negligence or willful misconduct of any BACH Indemnitees.   BACH will notify POINT in writing within [***] days of receipt of any Covered Claim hereunder.   The BACH Indemnitees will cooperate with POINT and may, at the option and expense of BACH  (or Tufts, as applicable), be represented in such action or proceeding by counsel of their own  choosing.  POINT agrees not to settle any Covered Claim without the written consent of BACH  (or Tufts, as applicable).  11.2 POINT will comply, and will cause its Affiliates and Sublicensees to comply, at all  times, with all statutory workers’ compensation and employers’ liability requirements covering  any and all employees and consultants of POINT or its Affiliates or Sublicensees, as the case may  be, with respect to activities performed under this Agreement.  In addition to the foregoing, POINT  will maintain, and will cause its Affiliates and Sublicensees to maintain, through insurance (or  equivalent self-insurance if approved by BACH (or Tufts, as applicable)):  (a) during the term of  this Agreement and at all times thereafter until the expiration of all applicable statutes of limitation  pertaining to the manufacture, marketing, possession, use, sale or other disposition of any Licensed  Products, commercial general liability insurance, including coverage for contractual liability  assumed by POINT and coverage for POINT’s independent contractors with per occurrence limits  of at least [***] Dollars ($[***]) each and a general aggregate limit of [***] Dollars ($[***]); and  (b) commencing immediately prior to the earlier to occur of the following of POINT’s activities  pertaining to the Licensed Products: clinical trial, regulatory clearance/approval or First  Commercial Sale (as defined in the Tufts License), products/completed operations liability  insurance to include clinical trials liability coverage and exclusive of the coverage provided by the  commercial general liability insurance policy, with an aggregate limit of at least [***] Dollars  ($[***]), both with reputable and financially secure insurance carrier(s) licensed to practice in the  Commonwealth of Massachusetts (or pre-approved by BACH (or Tufts, as applicable)) to cover  the activities of POINT, its Affiliates and Sublicensees hereunder, as the case may be, as well as  the Indemnitees with respect to events covered by Section 11.1 above.  Such insurance will include  BACH and Tufts as additional insureds and will be written to cover claims incurred, discovered,  manifested, or made during or after the expiration of this Agreement and should be placed with  carriers with ratings of at least A VIII or better as rated by A.M. Best.  Within [***] days of the  Effective Date, POINT will furnish, and will cause its Affiliates and Sublicensees to furnish, to  BACH and Tufts a Certificate of Insurance evidencing primary coverage and additional insured  requirements. POINT shall provide BACH and Tufts [***] days prior written notice of  cancellation, non-renewal or material change.  All such insurance will be primary coverage and  any insurance obtained by BACH or Tufts in its discretion will be deemed to be excess and  noncontributory.  11.3 BACH agrees, and shall cause its Affiliates and Sublicensees to agree, to  indemnify, hold harmless and defend POINT and its current and former directors, governing board  members, trustees, officers, medical and professional staff, employees, Affiliates and agents and  their respective successors, heirs and assigns (collectively, the “POINT Indemnitees”), against any  liability, damage, loss or expenses (including reasonable attorneys’ fees and expenses of litigation)  incurred by or imposed upon the Indemnitees or any of them in connection with any third party  claims, suits, actions, demands or judgments arising out of, (a) the negligence or willful  misconduct of BACH, (b) BACH’s breach of this Agreement, or (c) BACH’s breach of a  





 






21    [***] =  Indicates confidential information omitted from the exhibit.  representation or warranty herein (collectively, “Indemnifiable Claims”).  BACH will not be  responsible for the indemnification or defense of the POINT Indemnitees to the extent an  Indemnifiable Claim is solely caused by the gross negligence or willful misconduct of any POINT  Indemnitees.  POINT will notify BACH of any Indemnifiable Claim hereunder.  The POINT  Indemnitees will cooperate with BACH and may, at the option and expense of POINT, be  represented in such action or proceeding by counsel of their own choosing.  BACH agrees not to  settle any Indemnifiable Claim without the written consent of POINT.  SECTION 12  MISCELLANEOUS  12.1 Dispute Resolution.  In the event of any controversy or claim arising out of or  relating to any provision of this Agreement or the breach thereof, the Parties will try to settle such  conflict amicably between themselves by referring the matter to their respective chief executive  officers or their designees.  If the matter is not resolved with [***] days and subject to the limitation  stated in the final sentence of this section, any such conflict which the Parties are unable to resolve  promptly will be settled through arbitration conducted in accordance with the rules of JAMS.  The  demand for arbitration will be filed within a reasonable time after the controversy or claim has  arisen and the chief executive officers or their designees have failed to resolve the matter, and in  no event after the date upon which institution of legal proceedings based on such controversy or  claim would be barred by the applicable statute of limitation.  Such arbitration will be held in  Boston, Massachusetts.  The award through arbitration will be final and binding.  Either Party may  enter any such award in a court having jurisdiction or may make application to such court for  judicial acceptance of the award and an order of enforcement, as the case may be.  Notwithstanding  the foregoing, either Party may, without recourse to arbitration, assert against the other Party a  third party claim or cross-claim in any non-collusive action brought by a third party, to which the  subject matter of this Agreement may be relevant.  12.2 No Use of Name.  Neither Party shall use the other Party’s name or insignia, nor  shall POINT, its Affiliates or its Sublicensees use Tufts’ name or insignia in any public advertising,  promotional or sales literature without the prior written approval of the other Party; the above  notwithstanding, POINT may use both BACH or Tufts names and insignias on non-public business  development and investor relations documents (or the like).  12.3 Assignment.  Neither this Agreement nor any of the rights or obligations hereunder  may be assigned by either Party without the prior written consent of the other Party; provided, that,  either Party may, without the consent of the other Party, assign this Agreement to a third party that  acquires all or substantially all of the business to which this Agreement relates by merger, sale of  assets or otherwise.  12.4 Governing Law; Jurisdiction.  This Agreement will be governed by and interpreted  in accordance with the laws of the Commonwealth of Massachusetts, U.S.A., without regard to  conflict of laws rules or principles.  Subject to Section 12.1 of this Agreement, any dispute or issue  arising hereunder, including any alleged breach by any Party, will be heard, determined and  resolved by an action commenced in the state or federal courts in Boston, Massachusetts, which  the Parties hereby agree will have proper jurisdiction over the issues and the Parties.  BACH and  





 






22    [***] =  Indicates confidential information omitted from the exhibit.  POINT hereby agree to submit to the jurisdiction of the state or federal courts in Boston,  Massachusetts and waive the right to make any objection based on jurisdiction or venue.  12.5 Waiver.  The waiver by either Party of a breach or a default of any provision of this  Agreement by the other Party will not be construed as a waiver of any succeeding breach of the  same or any other provision, nor will any delay or omission on the part of either Party to exercise  or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver  of any right, power or privilege by such Party.  12.6 Notices.  Any notice or other communication required or permitted under this  Agreement will be properly addressed to the other Party as set forth below and will be (a) hand  delivered, (b) mailed, postage prepaid, first class, certified mail, return receipt requested, (c) sent,  shipping prepaid, receipt requested via a reputable courier service, or (d) dispatched by facsimile,  if promptly confirmed by one of the preceding notice mechanisms.  Either Party may change its  address to which notices will be sent by giving notice to the other Party in accordance with the  terms of this Section 12.6.  For notices, communications and payment to POINT:   POINT Biopharma Inc.  511 South Orange Avenue, No. 2093,   Newark, New Jersey, 07103, USA  And  22 St. Clair Ave. East, Suite 1201,   Toronto, ON M4T 2S3, Canada   Attn:  Joe McCann, CEO  For notices, communications and invoices to BACH:  BACH Biosciences, LLC.  75 Cambridge Parkway, E609  Cambridge, MA 02142  Attn.:  William Bachovchin  12.7 No Agency.  Nothing herein will be deemed to constitute either Party as the agent  or representative of the other Party or both Parties as joint venturers or partners for any purpose.   Neither Party will be responsible for the acts or omissions of the other Party and neither Party will  have authority to speak for, represent or obligate the other Party in any way without prior written  authority from the other Party.  12.8 Entire Agreement.  This Agreement contains the full understanding of the Parties  with respect to the subject matter hereof and supersedes all prior understandings and writings  relating thereto.  No waiver, alteration or modification of any of the provisions hereof will be  binding unless made in writing and signed by the Parties by their respective officers thereunto duly  authorized.  





 






23    [***] =  Indicates confidential information omitted from the exhibit.  12.9 Severability.  In the event that any provision of this Agreement is held by a court  of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of  any relevant jurisdiction, the validity of the remaining provisions will not be affected, and the  rights and obligations of the Parties will be construed and enforced as if the Agreement did not  contain the particular provisions held to be unenforceable.  12.10 Successors and Assigns.  This Agreement will be binding upon and inure to the  benefit of the Parties hereto and their permitted successors and assigns.  12.11 Headings.  This Agreement contains headings only for convenience and the  headings do not constitute or form a part of this Agreement, and should not be used in the  construction of this Agreement.  12.12 Counterparts.  This Agreement may be executed in any number of counterparts,  each of which will be deemed an original but all of which together will constitute one and the same  instrument.  The transmission of an executed counterpart of this Agreement (but not just a signature  page) by e-mail (such as in PDF or JPEG) will take effect as the delivery of an executed original  counterpart of this Agreement.  If that method of delivery is used, each party will provide the other  party with the original of the executed counterpart as soon as possible.  IN WITNESS WHEREOF, duly authorized representatives of the Parties have executed  this Agreement as of the Effective Date.  POINT BIOPHARMA  BACH BIOSCIENCE, LLC  /s/ Joe McCann    /s/ William W. Bachovchin  Signature  Signature  Joe McCann    William W. Bachovchin  Name  Name  CEO    CEO  Title  Title  April 2, 2020    April 2, 2020  Date  Date    





 






24    [***] =  Indicates confidential information omitted from the exhibit.  Exhibits  Exhibit A - Patent Rights  Exhibit B – Form of Annual Progress Report  Exhibit C – Sponsored Research Agreement  31692196.3