exv10w22






Exhibit 10.22




EMPLOYMENT AGREEMENT




     The Employment Agreement (the “Agreement”) effective as of October 17th, 2008 (the
“Effective Date”) by and between RXi Pharmaceuticals Corporation, a Delaware corporation
(“RXi” or “Employer” or “Company”), and Anastasia Khvorova, an individual
(“Employee”).



     WHEREAS, Employer and Employee desire to enter into an employment agreement under which
Employee shall serve on a full-time basis as RXi’s Chief Scientific Officer on the terms set forth
in the Agreement, with the term of the Agreement to commence on the Effective Date.



     NOW, THEREFORE, upon the above premises, and in consideration of the mutual covenants and
agreements hereinafter contained, the parties hereto agree as follows.



     1. Engagement. Effective as of the Effective Date, Employer shall employ Employee, and
Employee shall serve, as RXi’s Chief Scientific Officer. As a condition to the Employee’s
employment by the Employer, Employee shall execute the Employee Confidentiality, Non-Competition,
and Proprietary Information Agreement, attached hereto as Exhibit 1 (the “Confidentiality
Agreement”).



     2. Duties. Employee shall perform all duties assigned to her by the Employer
faithfully, diligently and to the best of her ability. Such duties include, but are not limited
to, directing technology development and evaluation research, giving public presentations on behalf
of the company, meeting with investors and potential alliance partners. Employee’s services
hereunder shall be rendered at RXi’s office, except for travel when and as required in the
performance of Employee’s duties hereunder, however, for the first 4 months from the Effective Date
Employee may work from home approximately 50 percent of the time.



Time and Efforts. Employee shall devote all of her business time, efforts, attention, and
energies to Employer’s business and the discharge of her duties hereunder, except as noted on
Schedule A, which contains other potential activities of the Employee.



     3. Compensation. As the total consideration for Employee’s services rendered under the
Agreement, Employer shall pay or provide Employee the following compensation and benefits:



          3.1. Salary. Commencing on the Effective Date, Employee shall be entitled to receive
an annual Base Salary of Two Hundred and Fifty Thousand Dollars ($250,000).




          3.2. Bonus. Employee shall receive an annual performance bonus for the achievement of
certain company and Employee performance goals, these goals will be established by the Compensation
Committee of the Employer’s Board of Directors. The target bonus for achieving these goals shall be
30% of the annual Base Salary.




          3.3. Stock Options. At the first regularly scheduled meeting of the Board of
Directors of the Employer following the Effective Date the Employer shall grant Employee stock
options (“Options”) under the RXi Pharmaceuticals 2007 Incentive Plan (the “Plan”) to purchase one
hundred and ninety thousand 190,000 shares. The Options shall vest in quarterly installments over 4
years beginning on the first quarterly anniversary of the Effective Date of the Agreement provided,
in



 









 






each case, that Employee remains in the continuous employ of Employer through such quarterly
anniversary date. Each vested Option shall (a) be exercisable at an exercise price equal to the
fair market value at the time of granting as determined by Employer’s Board of Directors, (b) have
a term of ten years and be exercisable by Employee at any time during such ten year period, and (c)
be on such other terms as shall be determined by Employer’s Board of Directors (or the Compensation
Committee of the Board) and set forth in a customary form of stock option agreement under the Plan
evidencing the Options. Upon the occurrence of a “Covered Transaction” (as defined in the Plan),
the Options shall thereupon vest in full and become exercisable as to all of the shares covered
thereby in accordance with the terms of the Plan.




          3.4. Expense Reimbursement. Employer shall reimburse Employee for reasonable and
necessary business expenses incurred by Employee in connection with the performance of Employee’s
duties in accordance with Employer’s usual practices and policies in effect from time to time.
Additionally, Employer shall reimburse Employee relocation expenses as follows:





Closing costs on the sale of the home up to a maximum of 7% of $500K ($35K).




RXi will pay up to $20K to cover taxes on non-tax-free components of this relocation
package.




Packing, insuring, shipping and storing (up to 90 days) and unpacking of household goods and
personal effects.




Temporary housing and travel expenses following for the first four months of employment.




Travel expenses for family and employee at the time of the move.




Employee agrees to pay back the moving expenses if the employee resigns or is terminated
with cause within 2 years of hiring.



          3.5. Vacation. Employee will be entitled to 25 days of paid “time off” (vacation days
plus sick time/personal time) for each full calendar year in accordance with the Company’s policies
in effect, in addition to holidays observed by the Company (for partial calendar years, the
Employee’s paid “time off” will be pro-rated). Paid time off may be taken at such times and
intervals as the Employee shall determine, subject to the business needs of the Company, and
otherwise shall be subject to the policies of the Company, as in effect from time to time. The
number of paid “time off” days will accrue per pay period and will stop accruing once 20 days have
been reached.




          3.6. Employee Benefits. Employee shall be eligible to participate in any medical
insurance and other employee benefits made available by Employer to all of its employees under its
group plans and employment policies in effect during the term of employment. Employee acknowledges
and agrees that, any such plans or policies now or hereafter in effect may be modified or
terminated by Employer at any time in its discretion.




          3.7. Payroll Taxes. Employer shall have the right to deduct from the compensation and
benefits due to Employee hereunder any and all sums required for social security and withholding
taxes and for any other federal, state, or local tax or charge which may be in effect or hereafter
enacted or required as a charge on the compensation or benefits of Employee.




 









 








     4. Term. The Term of the Employee’s employment shall commence on the Effective Date
and shall continue until terminated under Section 6.



     5. Termination. The Agreement may be terminated as set forth in this Section 6.



          5.1. Termination by Employer for Cause or Voluntary Resignation. Employer may
terminate Employee’s employment hereunder for Cause upon notice to Employee and Employee may
voluntarily resign her employment hereunder upon notice to Employer. “Cause” for the purpose of
this Agreement shall mean any of the following:




               5.1.1. Employee’s breach of any material term of the Agreement; provided that the first
occasion of any particular breach shall not constitute such Cause unless Employee has failed to
cure such breach within ten (10) days after receiving written notice from Employer stating the
nature of such breach;



               5.1.2. Employee’s conviction of, or plea of guilty or nolo contendere to, any felony or other
crime of moral turpitude;



               5.1.3. Employee’s act of fraud or dishonesty injurious to Employer or its reputation;



               5.1.4. Employee’s continual failure or refusal to perform her material duties as required
under the Agreement after written notice from Employer stating the nature of such failure or
refusal and affording Employee at least ten days to correct the same;



               5.1.5. Employee’s act or omission that, in the reasonable determination of Employer, indicates
alcohol or drug abuse by Employee; or



               5.1.6. Employee’s act or personal conduct that, in the judgment of Employer’s Board of
Directors (or a Committee of the Board), gives rise to a material risk of liability of Employee or
Employer under federal or applicable state law for discrimination, or sexual or other forms of
harassment, or other similar liabilities to subordinate employees.



     Upon termination of Employee’s employment by Employer for Cause or by Employee due to a
voluntary resignation, all compensation and benefits to Employee hereunder shall cease and Employee
shall be entitled only to payment, not later than three days after the date of termination, of any
accrued but unpaid salary and unused vacation time and unpaid business expenses (only as accrued
during the then-current year of employment), as of the date of such termination.



          5.2. Termination by Employer without Cause. Employer may also terminate Employee’s
employment without Cause upon notice to Employee. Upon termination of Employee’s employment by
Employer without Cause during the term of employment, all compensation and benefits to Employee
hereunder shall cease and Employee shall be entitled to payment of: (a) any accrued but unpaid
salary and unused vacation time (only as accrued during the term of employment) as of the date of
such termination; (b) six (6) months of salary from the date of termination (the “Severance
Period”) in the form of salary continuation; and (c) continued participation, at Employer’s
cost and expense, during the Severance Period in any Employer-sponsored group benefit plans in
which Employee was participating as of the date of termination provided, however, that the Employee
agrees to sign a comprehensive covenant not to sue and release of liability covering their
employment with the Company.




 









 








          5.3. Death or Disability. Employee’s employment will terminate automatically in the
event of Employee’s death or upon notice from Employer in event of her permanent disability.
Employee’s “permanent disability” shall have the meaning ascribed to such term in any
policy of disability insurance maintained by Employer (or Employee, as the case may be) with
respect to Employee, or if no such policy is then in effect, shall mean Employee’s inability to
fully perform her duties hereunder for any period of at least 75 consecutive days or for a total of
90 days, whether or not consecutive. Upon termination of Employee’s employment as aforesaid, all
compensation and benefits to Employee hereunder shall cease and Employer shall pay to the
Employee’s heirs or personal representatives, not later than ten days after the date of
termination, any accrued but unpaid salary and unused vacation as of the date of such termination
as required by law.




     6. Equitable Remedies; Injunctive Relief. Employee hereby acknowledges and agrees that
monetary damages are inadequate to fully compensate Employer for the damages that would result from
a breach or threatened breach of the Confidentiality Agreement and, accordingly, that Employer
shall be entitled to equitable remedies, including, without limitation, specific performance,
temporary restraining orders, and preliminary injunctions and permanent injunctions, to enforce
such Section without the necessity of proving actual damages in connection therewith. The
provision shall not, however, diminish Employer’s right to claim and recover damages or enforce any
other of its legal or equitable rights or defenses.



     7. Severable Provisions. The provisions of the Agreement are severable and if any one
or more provisions is determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions, and any partially unenforceable provisions to the extent enforceable, shall
nevertheless be binding and enforceable.



     8. Successors and Assigns. The Agreement shall inure to the benefit of and shall be
binding upon Employer, its successors and assigns, and Employee and her heirs and representatives;
provided, however, that neither party may assign the Agreement without the prior written consent of
the other party.



     9. Entire Agreement. The Agreement, including Schedule A and Exhibit 1, contains the
entire agreement of the parties relating to the subject matter hereof, and the parties hereto have
made no agreements, representations or warranties relating to the subject matter of the Agreement
that are not set forth otherwise therein or herein. Except as expressly provided herein, the
Agreement supersedes any and all prior or contemporaneous agreements, written or oral, between
Employee and Employer relating to the subject matter hereof. Any such prior or contemporaneous
agreements are hereby terminated and of no further effect, and Employee, by the execution hereof,
agrees that any compensation provided for under any such agreements is specifically superseded and
replaced by the provisions of the Agreement.



     10. Amendment. No modification of the Agreement shall be valid unless made in
writing, approved by the Compensation Committee, and signed by the parties hereto and unless such
writing is made by an executive officer of Employer (other than Employee). The parties hereto
agree that in no event shall an oral modification of the Agreement be enforceable or valid.



     11. Governing Law. The Agreement is and shall be governed and construed in accordance
with the laws of the Commonwealth of Massachusetts without giving effect to the choice-of-law rules
of Massachusetts.




 












 





     12. Notice. All notices and other communications under the Agreement shall be in
writing and mailed, telecopied (in case of notice to Employer only) or delivered by hand or by a
nationally recognized courier service guaranteeing overnight delivery to a party at the following
address (or to such other address as such party may have specified by notice given to the other
party pursuant to the provision):


If to Employer:



RXi Pharmaceuticals Corp.

60 Prescott Street

Worcester MA 01605



If to Employee:



Through company e-mail or company regular mail box if employed by Company or if not

employed, to:



4550 Squires

Boulder, CO 80305




     13. Survival. Sections 7 through 16 shall survive the expiration or termination of
the Agreement.



     14. Counterparts. The Agreement may be executed in counterparts, each of which shall
be deemed to be an original and all of which together shall be deemed to be one and the same
agreement.



     15. Attorney’s Fees. In any action or proceeding to construe or enforce any provision
of the Agreement the prevailing party shall be entitled to recover its or her reasonable attorney’s
fees and other costs of suit in addition to any other recoveries.




     IN WITNESS WHEREOF, the Agreement is executed as of the day and year first above written.



	 	 	 	 	 
	 	EMPLOYER





RXi Pharmaceuticals Corporation

 	 
	 	By:  	/s/  Tod Woolf 	 
	 	 	Tod Woolf 	 
	 	 	Chief Executive Officer
RXi Pharmaceuticals Corporation 	 
	 



EMPLOYEE



/s/  Anastasia Khvorova




Anastasia Khvorova, Ph.D.





 









 





Exhibit 1




RXi Pharmaceuticals Corporation




CONFIDENTIALITY, NON-COMPETITION, INVENTION, ASSIGNMENT, AND

PROPRIETARY INFORMATION AGREEMENT



AGREEMENT, effective as of October 19th , between RXi Pharmaceuticals Corporation, a Delaware
corporation (the “Company”), and Anastasia Khvorova (the “Employee”).



1. Employee will make full and prompt disclosure to the Company of all inventions, improvements,
modifications, discoveries, methods, technologies, biological materials, developments, and all
other materials, items, techniques, and ideas related directly or indirectly to the business of the
Company (all of which are collectively termed “Intellectual Property” hereinafter), whether
patentable or not, made or conceived by Employee or under Employee’s direction during Employee’s
employment with the Company, whether or not made or conceived during normal working hours, or on
the premises of the Company.



2. Employee agrees that all Intellectual Property, as defined above, shall be the sole property of
the Company and its assigns, and the Company and its assigns shall be the sole owner of all patents
and other rights in connection therewith. Employee hereby assigns to the Company any rights
Employee may have or acquire in all Intellectual Property and all related patents, copyrights,
trademarks, trade names, and other industrial and intellectual property rights and applications
therefore, in the United States and elsewhere. Employee further agrees that with regard to all
future developments of Intellectual Property, Employee will assist the Company in every way that
may be reasonably required by the Company (and at the Company’s expense) to obtain and, from time
to time, enforce patents on Intellectual Property in any and all countries that the Company may
require, and to that end, Employee will execute all documents for use in applying for and obtaining
such patents thereon and enforcing the same, as the Company may desire, together with any
assignment thereof to the Company or persons designated by the Company, and Employee hereby
appoints the Company as Employee’s attorney to execute and deliver any such documents or
assignments requested by the Company. Employee’s obligation to assist the Company in obtaining and
enforcing patents for Intellectual Property in any and all countries shall continue beyond the
termination of Employee’s employment with the Company, but the Company shall compensate Employee at
a reasonable, standard hourly rate following such termination for time directly spent by Employee
at the Company’s request for such assistance.



3. Employee hereby represents that Employee has no continuing obligation to assign to any former
employer or any other person, corporation, institution, or firm any Intellectual Property as
described above. Employee represents that Employee’s performance of all the terms of this
Agreement and as an employee of the Company does not and will not breach any agreement to keep in
confidence proprietary information acquired by Employee, in confidence or in trust, prior to
Employee’s employment by the Company. Employee has not entered into, and Employee agrees not to
enter into, any agreement (either written or oral), which would put Employee in conflict with this
Agreement.




 









 







4. Employee agrees to assign to the Company any and all copyrights and reproduction rights to any
material prepared by Employee in connection with this Agreement and/or developed during the term of
Employee’s employment with the Company.



5. Employee understands and agrees that a condition of Employee’s employment and continued
employment with the Company is that Employee has not brought and will not bring to the Company or
use in the performance of Employee’s duties at the Company any materials or documents rightfully
belonging to a former employer which are not generally available to the public.



6. Employee recognizes that the services to be performed by Employee hereunder are special, unique,
and extraordinary and that, by reason of Employee’s employment with the Company, Employee may
acquire Confidential Information (as hereinafter defined) concerning the operation of the Company,
the use or disclosure of which would cause the Company substantial loss and damage which could not
be readily calculated and for which no remedy at law would be adequate. Accordingly, Employee
agrees that Employee will not (directly or indirectly) at any time, whether during or after
Employee’s employment with the Company:





     6.1. knowingly use for personal benefit or for any other reason not authorized by the Company
any Confidential Information that Employee may acquire or has acquired by reason of Employee’s
employment with the Company, or;




     6.2. disclose any such Confidential Information to any person or entity except (A) in the
performance of Employee obligations to the Company hereunder, (B) as required by a court of
competent jurisdiction, (C) in connection with the enforcement of Employee rights under this
Agreement, or (D) with the prior consent of the Board of Directors of the Company.



     As used herein, “Confidential Information” includes information with respect to the facilities
and methods of the Company, reagents, chemical compounds, cell lines or subcellular constituents,
organisms, or other biological materials, trade secrets, and other Intellectual Property, systems,
patents and patent applications, procedures, manuals, confidential reports, financial information,
business plans, prospects, or opportunities, personnel information, or lists of customers and
suppliers; provided, however, that Confidential Information shall not include any information that
is known or becomes generally known or available publicly other than as a result of disclosure by
Employee which is not permitted as described in clause (ii) above, or the Company discloses same to
others without obtaining an agreement of confidentiality.



     Employee confirms that all Confidential Information is the exclusive property of the Company.
All business records, papers, documents, and electronic materials kept or made by Employee relating
to the business of the Company which comprise Confidential Information shall be and remain the
property of the Company during the Employee’s employment and at all times thereafter. Upon the
termination, for any reason, of Employee’s employment with the Company, or upon the request of the
Company at any time, Employee shall deliver to the Company, and shall retain no copies of any
written or electronic materials, records and documents made by Employee or coming into Employee’s
possession concerning the business or affairs of the Company and which comprise Confidential
Information.



 









 




7. During the term of Employee’s employment with the Company and for six months afterwards (the
“Restricted Period”), the Employee shall not directly or indirectly, for Employee’s own account or
for the account of others, as an officer, director, stockholder (other than as the holder of less
than 1% of the outstanding stock of any publicly traded company), owner, partner, employee,
promoter, consultant, manager, or otherwise, participate in the promotion, financing, ownership,
operation, or management of, or assist in or carry on through proprietorship, a corporation,
partnership, or other form of business entity which is in competition with the Company within the
United States or any other country in which the Company is conducting or is actively seeking or
planning to conduct business as of the date of such termination.




     During the Restricted Period, the Employee shall not, whether for Employee’s own account or
for the account of any other person (excluding the Company):




     7.1. solicit or contact in an effort to do business with any person who was or is a customer
of the Company during the term of this Agreement or after its termination, or any affiliate
of any such person, if such solicitation or contact is for the purpose of competition with
the Company; or




     7.2. solicit or induce any of the Company’s employees to leave their employment with the
Company or accept employment with anyone else, or hire any such employees or persons who
were employed by the Company during the preceding twelve (12) months.



     Nothing herein shall prohibit or preclude the Employee from performing any other types of
services that are not precluded by this Section 7 for any other person.



     Employee has carefully read and considered the provisions of this Section 7 (including the
Restricted Period, scope of activity to be restrained, and the restriction’s geographical scope)
and concluded them to be fair, appropriate, and reasonably required for the protection of the
legitimate business interests of the Company, its officers, directors, employees, creditors, and
shareholders. Employee understands that the restrictions contained in this Section may limit
Employee’s ability to engage in a business similar to the Company’s business, but acknowledges that
Employee will receive adequate and affluent remuneration and other benefits from the Company
hereunder to justify such restrictions.



     The Employee shall give prompt notice to the Company of the Employee’s acceptance of
employment or other fees for services relationship during the Restricted Period, which notice shall
include the name of, the business of, and the position that Employee shall hold with such other
employer.


8. In the event that Employee’s employment is transferred by the Company to a subsidiary,
affiliated company, or acquiring company (as the case may be), Employee’s employment by such
company will, for the purpose of this Agreement, be considered as continued employment with the
Company, unless Employee executes an agreement, substantially similar in substance to this
Agreement, and until the effective date of said agreement in any such company for which Employee
becomes employed.




 









 







9. Upon termination of Employee’s employment for any reason, unless such employment is transferred
to a subsidiary, affiliated or acquiring company of the Company, Employee agrees to leave with, or
return to, the Company all records, drawings, notebooks, and other documents pertaining to the
Company’s Confidential Information, whether prepared by Employee or others, as well as any
equipment, tools, or other devices owned by the Company, that are then in Employee’s possession,
however such items were obtained, and Employee agrees not to reproduce or otherwise retain any
document or data relating thereto.




     Employee obligations under this Agreement shall survive the termination of Employee’s
employment with the Company regardless of the manner of, and reason for, such termination, and
shall be binding upon Employee’s heirs, executors, and administrators. The foregoing commitments
regarding Confidential Information shall survive for a period terminating on five (5) years
following the date on which Confidential Information is last disclosed under this Agreement,
however, if the Confidential Information is covered by a confidentiality agreement between the
Employer and a third party which extends longer than 5 years, then the confidentiality obligations
herein shall extend to length of confidentiality required by such third party agreement.


10.



11. Prior to entering the employ of the Company, Employee has lawfully terminated employment with
all previous employers, except as noted in Schedule A. Subject to paragraph 6 of the Employment
Agreement, Employee acknowledges that this Agreement does not constitute a contract of employment
for a term and does not otherwise imply that the Company will continue her or her employment for
any period of time. Employee further understands and agrees that no license to any of the
Company’s trademarks, patents, copyrights, or other proprietary rights is either granted or implied
by Employee’s access to and utilization of the Confidential Information or Intellectual Property.



12. No delay or omission by the Company in exercising any right under this Agreement will operate
as a waiver of that or any other right. A waiver or consent given by the Company on any one
occasion is effective only in that instance and will not be construed as a bar to or waiver of any
right on any other occasion.



13. Employee agrees that in addition to any other rights and remedies available to the Company for
any breach or threatened breach by Employee of Employee’s obligations hereunder, the Company shall
be entitled to enforcement of Employee’s obligations hereunder by whatever means are at the
Company’s disposal, including court injunction.



14. The Company may assign this Agreement to any other corporation or entity which acquires
(whether by purchase, merger, consolidation, or otherwise) all or substantially all of the business
and/or assets of the Company. Employee shall have no rights of assignment.



15. If any provision of this Agreement shall be declared invalid, illegal, or unenforceable, then
such provision shall be enforceable to the extent that a court deems it reasonable to enforce such
provision. If such provision shall be unreasonable to enforce to any extent, such provision shall
be severed and all remaining provisions shall continue in full force and effect.




 









 







16. This Agreement shall be effective as of the date first written above.



17. This Agreement shall be governed in all respects by the laws of the Commonwealth of
Massachusetts. Each of the Company and Employee (a) hereby irrevocably submits to the exclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts or the United States District
Court located in The Commonwealth of Massachusetts for the purpose of any action between the
Company and Employee arising in whole or in part under or in connection with this Agreement, (b)
hereby waives, to the extent not prohibited by applicable law, and agrees not to assert, by way of
motion, as a defense or otherwise, in any such action, any claim that it is not subject personally
to the jurisdiction of the above-named courts, that its property is exempt or immune from
attachment or execution, that any such action brought in one of the above-named courts should be
dismissed on grounds of forum non conveniens, should be transferred or removed to any court other
than one of the above-named courts, or should be stayed by reason of the pendency of some other
proceeding in any other court other than one of the above-named courts, or that this Agreement or
the subject matter hereof may not be enforced in or by such court, and (c) hereby agrees not to
commence any such action other than before one of the above-named courts. Notwithstanding the
previous sentence, the Company or Employee may commence any action in a court other than the
above-named courts solely for the purpose of enforcing an order or judgment issued by one of the
above-named courts.



IN WITNESS WHEREOF, Employee has executed this Agreement under seal as of the date set forth above:




	 	 	 	 	 
	BY:

	 	/s/  Anastasia Khvorova	 	 
	 

	 	 	 	 
	Name of Employee: Anastasia Khvorova, Ph.D.	 	 
	 
	 	 	 	 
	ACCEPTED AND AGREED TO:	 	 
	 
	 	 	 	 
	RXi Pharmaceuticals Corporation	 	 
	 
	 	 	 	 
	BY:
	 	/s/  Tod Woolf	 	 
	 

	 	 	 	 
	Name:

	 	Tod Woolf	 	 
	Title:

	 	President and CEO	 	 







 












 





Schedule A





	I.	 	Potential consulting activities. As of the Effective Date, the Employee is
providing professional services to Advirna, whose current business is unrelated to the
Employer’s business and which presents no conflict of interest for the Employee, and the
Employee may desire to continue this relationship on a part-time basis. The Employer
acknowledges this pre-existing relationship and agrees that the Employee may continue to
provide professional services to this company, on a part-time basis and provided this
activity does not materially interfere with the performance of the Employee’s duties
hereunder.






	II.	 	Potential participation on the Boards of other companies. The Employee may
desire to seek appointment to an outside Board for a non-competing company in the future.
If so, the Employee will inform the Employer that he is contemplating an outside Board
position and request approval to pursue such an opportunity, and the Employer agrees to
give consider this request in good faith.






	III.	 	Total time expended on outside companies shall not exceed 10 hours per month.




 









 











OPTION AGREEMENT



This Option Agreement (the “AGREEMENT”) is made between Advirna LLC, with its principal place of
business at 4550 Squires, Boulder, CO 80305 (“ADVIRNA”), and RXi Pharmaceuticals Corporation
(“OPTIONEE”), a Delaware corporation with its principal place of business at 60 Prescott St.,
Worcester, MA 01605. ADVIRNA and OPTIONEE may each be referred to herein as a “PARTY” and
collectively as the “PARTIES”.




RECITALS



A. ADVIRNA owns certain PATENT RIGHTS and TECHNOLOGY RIGHTS.



B. ADVIRNA desires to have PATENT RIGHTS and TECHNOLOGY RIGHTS developed and used for the benefit
of OPTIONEE and ADVIRNA.



C. OPTIONEE wishes to obtain an option to negotiate and acquire a license from ADVIRNA to practice
PATENT RIGHTS and TECHNOLOGY RIGHTS and sell and distribute products derived therefrom.



NOW THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties
agree as follows:



1. EFFECTIVE DATE AND OPTION PERIOD



This AGREEMENT is effective as of October 7, 2008 (“EFFECTIVE DATE”) for a period of 8 months and
will expire at no time later than June 7th 2009 (the “OPTION PERIOD”).



2. DEFINITIONS



2.1 PATENT RIGHTS mean ADVIRNA’S rights in information or discoveries covered by U.S. Patent
Application no.                     , entitled “Covalent and non-covalent chemically modified polynucleotide
complexes for in vivo delivery”; and any divisional, continuation, or continuation-in-part of the
patent application to the extent the claims are directed to subject matter specifically described
therein as well as any patents issued on the patent application and any reissues or reexaminations
or extensions of the patents, and any foreign counterparts to any of the foregoing.



2.2 TECHNOLOGY RIGHTS mean ADVIRNA’S rights in any technical information, know-how, process,
procedure, composition, method, formula, protocol, technique or data developed by Anastasia
Khvorova, Ph.D. (“INVENTOR”) at ADVIRNA prior to the EFFECTIVE DATE relating to technology which
are not covered by PATENT RIGHTS, but which are necessary for practicing the invention covered by
PATENT RIGHTS.



2.3 LICENSED PRODUCT means any product that cannot be developed, manufactured, used, or sold
without infringing one or more VALID CLAIM.



2.4. VALID CLAIM means (a) a claim of an issued and unexpired patent within the PATENT RIGHTS which
has not been permanently revoked or held unenforceable or invalid by an unappealable or unappealed
decision of a court or government agency of


 









 






competent jurisdiction or (b) a claim of a pending patent application within the PATENT RIGHTS that
has not been abandoned or finally disallowed without the possibility of appeal or refilling.



3. REPRESENTATIONS AND WARRANTIES



3.1 MUTUAL REPRESENTATIONS. Each of the Parties hereby represents and warrants to the other Party
that, as of the EFFECTIVE DATE:



(a) Such Party has full corporate right, power and authority to enter into this AGREEMENT and to
perform its respective obligations under this AGREEMENT and that it has the right to grant the
licenses and sublicenses granted pursuant to this AGREEMENT;



(b) This AGREEMENT is a legal and valid obligation binding upon such Party and enforceable in
accordance with its terms. The execution, delivery and performance of the AGREEMENT by such Party
does not conflict with any agreement, instrument or understanding, oral or written, to which it is
a Party or by which it is bound, nor, to its knowledge, violate any Law of any Governmental
Authority having jurisdiction over it;



(c) Such Party has not granted any right to any Third Party that would conflict with the rights
granted to the other Party hereunder;



(d) Except for Regulatory Approvals, pricing and/or reimbursement approvals, manufacturing
approvals and/or similar approvals necessary for the Development, Manufacture or Commercialization
of a LICENSED PRODUCT (and the components thereof), such Party has obtained all necessary consents,
approvals and authorizations of all Government Authorities and other Persons required to be
obtained by it as of the EFFECTIVE DATE in connection with the execution, delivery and performance
of this Agreement; and



(e) There is no action or proceeding pending or, to such Party’s knowledge, threatened, that
questions the validity of this Agreement or any action taken by such Party in connection with the
execution of this AGREEMENT.



3.2 ADDITIONAL REPRESENTATIONS OF ADVIRNA. ADVIRNA hereby represents and warrants to OPTIONEE
that, as of the EFFECTIVE DATE:



(a) ADVIRNA owns all right, title and interest in and to the PATENT RIGHTS and can grant the
exclusive option set forth in this AGREEMENT and any License as described more fully under
paragraph 4.1 of this AGREEMENT;



(b) All the patents and patent applications that are part of the PATENT RIGHTS existing as of the
EFFECTIVE DATE are identified under paragraph 2.1 PATENT RIGHTS. To ADVIRNA’s knowledge, all
patent applications within the PATENT RIGHTS are still pending and all issued patents within the
PATENT RIGHTS are in good standing and have not been abandoned;




 









 







(c) To ADVIRNA’s knowledge, ADVIRNA is not a party to an interference relating to the subject
matter of the PATENT RIGHTS.



3.3 LIMITATION ON REPRESENTATIONS OR WARRANTIES. Notwithstanding anything to the contrary herein,
neither Party will be in breach of any representation or warranty made pursuant to this paragraph 3
to the extent that the Party alleged to have so breached can demonstrate that the Party alleging
such breach had, on or prior to the EFFECTIVE DATE, actual knowledge of such breach of such
representation or warranty.



3.4 DISCLAIMER OF WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 3.1
AND 3.2 NEITHER PARTY MAKES ANY REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED,
EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND ADVIRNA AND OPTIONEE EACH
SPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS,
STATUTORY OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT
OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. EACH PARTY HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY THAT THE DEVELOPMENT, MANUFACTURE AND COMMERCIALIZATION OF A LICENSED
PRODUCT PURSUANT TO THIS AGREEMENT WILL BE SUCCESSFUL OR THAT ANY PARTICULAR SALES LEVEL WITH
RESPECT TO THE LICENSED PRODUCT WILL BE ACHIEVED.



3.5 LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS OR
FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, ON ANY
THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, ARISING UNDER ANY CAUSE OF ACTION AND ARISING IN ANY WAY OUT OF THIS AGREEMENT, EXCEPT AS
A RESULT OF A PARTY’S WILLFUL MISCONDUCT, GROSS NEGLIGENCE, RECKLESS CONDUCT OR A BREACH OF THE
CONFIDENTIALITY IN PARAGRAPH 7.



4. OPTION FOR EXCLUSIVE LICENSE



4.1 ADVIRNA hereby grants OPTIONEE an exclusive option to acquire an exclusive, worldwide license
to practice PATENT RIGHTS and TECHNOLOGY RIGHTS in all therapeutic areas and under the terms set
forth under the License Agreement Terms attached herewith as Attachment A.



4.2 OPTIONEE may exercise its option at any time during the OPTION PERIOD by paying ADVIRNA an
initial maintenance fee of $75,000.00 (Seventy Five Thousand).



5. TERMINATION




 









 







5.1 OPTIONEE may terminate this AGREEMENT by giving 30 days written notice to ADVIRNA.



5.2 ADVIRNA may terminate this AGREEMENT upon 30 days written notice to OPTIONEE if OPTIONEE
breaches or defaults on its payments obligations under Article 6 herein or on its payment
obligations (including, but not limited to, payment of patent expenses) as set forth in any related
agreement between OPTIONEE and ADVIRNA covering PATENT RIGHTS and/or TECHNOLOGY RIGHTS, unless,
before the end of the 30 day period, OPTIONEE has cured the breach or default to the satisfaction
of ADVIRNA and so notifies ADVIRNA in writing, stating the manner of the cure.



6. CONSIDERATION



6.1 In consideration for the option granted herein, OPTIONEE agrees to pay ADVIRNA $5,000.00 (Five
Thousand) within 30 days after the EFFECTIVE DATE.



6.2 In consideration for the option granted herein, OPTIONEE also agrees to pay for all patent
prosecution and maintenance costs after the EFFECTIVE DATE until this AGREEMENT is terminated
before the expiration of the OPTION PERIOD. For clarity, initially patent prosecution and
maintenance costs will be reimbursed to ADVIRNA and ADVIRNA will control the prosecution, however,
ADVIRNA shall consult with OPTIONEE as to the preparation, filing, prosecution, and maintenance of
all PATENT RIGHTS reasonably prior to any deadline or action with the United States Patent &
Trademark Office or any foreign patent office and shall furnish OPTIONEE with copies of relevant
documents reasonably in advance of consultation. ADVIRNA shall consider in good faith any comments
of OPTIONEE on any patent filings for the PATENT RIGHTS.



If and when OPTIONEE exercises its option to license the PATENT RIGHTS and TECHNOLOGY RIGHTS,
OPTIONEE will control the prosecution and pay directly for all patent and maintenance costs during
the term of the license.



If at any time OPTIONEE decides at OPTIONEE’s sole discretion to abandon the prosecution and
maintenance of PATENT RIGHTS, the rights to the PATENT RIGHTS and TECHNOLOGY RIGHTS revert to
ADVIRNA and ADVIRNA will be solely responsible for prosecution and maintenance costs of the PATENT
RIGHTS.



In consideration for the option granted herein, OPTIONEE shall have the right to use the
CONFIDENTIAL INFORMATION disclosed by ADVIRNA regarding PATENT RIGHTS and TECHNOLOGY RIGHTS.
Improvements to the PATENT RIGHTS and TECHNOLOGY RIGHTS derived from CONFIDENTIAL INFORMATION shall
be jointly owned by ADVIRNA and OPTIONEE.



6.3 All payments under this AGREEMENT are to be paid in U.S. dollars, checks payable to the order
of ADVIRNA and mailed to the address in Section 8.6.



7. CONFIDENTIAL INFORMATION




 









 







7.1 As soon as possible following the execution of this AGREEMENT, ADVIRNA, through INVENTOR, will
disclose all relevant CONFIDENTIAL INFORMATION as defined in Section 7.2 below, other information,
and data relating to PATENT RIGHTS and TECHNOLOGY RIGHTS, to enable OPTIONEE to evaluate the
potential commercial significance of the PATENT RIGHTS and TECHNOLOGY RIGHTS.



7.2 In addition to the initial disclosure described in Section 7.1, the parties may disclose other
CONFIDENTIAL INFORMATION to each other, from time to time, in connection with work contemplated
under this AGREEMENT. All such information whether disclosed initially or during the OPTION PERIOD
will be referred to as “CONFIDENTIAL INFORMATION.” Each party will use reasonable efforts to
prevent the disclosure of any of the other party’s Confidential Information to third parties for a
period of three (3) years after the termination of this AGREEMENT, provided that the recipient
party’s obligation will not apply to information that:



(a) was known to the receiving Party prior to its disclosure to the receiving Party by the
disclosing Party as evidenced by written documents predating the receiving Party’s receipt of such
Confidential Information; or



(b) is public knowledge at the time of its disclosure to the receiving Party or became public
knowledge after its disclosure to the receiving Party through no act or omission or on its behalf;
or



(c) is or later becomes published through no fault of the recipient party;



(d) is disclosed or made available to the receiving Party by a third party which, to the receiving
Party’s knowledge, had no direct or indirect obligation to the disclosing Party to maintain the
confidentiality of such Confidential Information at the time of such disclosure to the receiving
Party; or



(e) is independently developed by the receiving Party without the aid or benefit of Confidential
Information disclosed to the receiving Party by the disclosing Party; or



(f) is required by law or regulation to be disclosed.



7.3 In the event that information is required to be disclosed under Section 7.2(f) above, the party
required to make disclosure will notify the other to allow that party to assert whatever exclusions
or exemptions may be available to it under such law or regulation.



8. GENERAL PROVISIONS



8.1 This AGREEMENT may not be assigned by OPTIONEE without the prior written consent of ADVIRNA,
which consent may not unreasonably be withheld. However, OPTIONEE may assign any and all of the
rights granted to it pursuant to this AGREEMENT to a successor of all or substantially all of its
business to which this AGREEMENT relates without the approval from or prior notice to ADVIRNA.



8.2 This AGREEMENT constitutes the entire and only agreement between the parties relating to an
option to acquire a license, and all prior negotiations, representations,


 









 






agreements and understandings are superseded hereby. No agreements altering or supplementing the
terms hereof may be made except by written mutual agreement by the parties.



8.3 The relationship between ADVIRNA and OPTIONEE is that of independent contractors. ADVIRNA and
OPTIONEE are not joint ventures, partners, principal and agent, master and servant, employer or
employee, and have no other relationship other than independent contracting parties. ADVIRNA will
have no power to bind or obligate OPTIONEE in any manner, other than as is expressly set forth in
this AGREEMENT. Likewise OPTIONEE will have no power to bind or obligate ADVIRNA in any manner,
other than as is expressly set forth in this AGREEMENT.



8.4 If any provision of this AGREEMENT is ultimately held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.



8.5 Any delay in enforcing a party’s right under this AGREEMENT or any waiver as to a particular
default or other matter will not constitute a waiver of such party’s rights to the future
enforcement of its rights under this AGREEMENT, except only as to an express written and signed
waiver to a specific matter for a specific period of time.



8.6 Any notice required by this AGREEMENT will be given by personal delivery (including delivery by
reputable messenger services such as Federal Express) or by prepaid, first class, certified mail,
return receipt requested, addressed to:




ATTENTION:

A Anastasia Khvorova

ADVIRNA LLC

4550 Squires

Boulder, CO 80305




or in the case of OPTIONEE to:




Steve Dipalma

Chief Financial Officer

RXi Pharmaceuticals Corporation

60 Prescott St.

Worcester, MA 01605



or at such other addresses as may be given from time to time in accordance with the terms of this
notice provision.



8.7 GOVERNING LAW. This AGREEMENT will be governed by, construed, and enforced in accordance with
the internal laws of the Commonwealth of Massachusetts, without regard to conflict of law
principles.



8.8 The parties agree to negotiate a detailed License Agreement under the terms set forth in
APPENDIX A attached herewith, in good faith, and with additional terms


 









 






customarily contained in such licenses. If the parties fail to come to agreement on the detailed
terms, OPTIONEE may elect to have the details of the license determined by arbitration, consistent
with the above terms. If OPTIONEE elects arbitration, the arbitration shall be conducted in
Massachusetts, by one (1) independent arbitrator who is experienced in licensing biotechnology
intellectual property. The arbitrator shall be chosen by mutual consent of the parties within
thirty (30) days after OPTIONEE elects arbitration, and OPTIONEE shall pay the fees of the
arbitrator.



IN WITNESS WHEREOF, the parties have caused this AGREEMENT to be executed by their duly authorized
representatives.




	 	 	 	 	 	 	 
	ADVIRNA LLC	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	(OPTIONEE)

RXI PHARMACEUTICALS CORPORATION	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Tod Woolf, Ph.D.	 	 
	 	 	Chief Executive Officer	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 	 	 






 









 





ATTACHMENT A

(TO OPTION AGREEMENT BETWEEN ADVIRNA LLC AND RXI

PHARMACEUTICALS CORPORATION OF 07 OCTOBER 2008)




LICENSE AGREEMENT TERMS





	 	•	 	License Scope: an exclusive, worldwide, royalty-bearing license in the PATENT
RIGHTS and TECHNOLOGY RIGHTS to make, have made, use, offer to sell, sell, have sold,
imported and have imported, a LICENSED PRODUCT, for all therapeutic applications, with a
right to sublicense.
	 
	 	•	 	RXi (OPTIONEE) agrees to pay a yearly license maintenance fee of $100,000.00 (One
Hundred Thousand) beginning January 1st 2011, as long as it wants to maintain an
exclusive license.
	 
	 	•	 	RXi (OPTIONEE) agrees to pay a one time payment of $350,000.00 (Three Hundred Fifty
Thousand) for an issuance of the first patent from the PATENT RIGHTS that covers a product
that RXi is actively developing with commercially relevant breadth.
	 
	 	•	 	RXi (OPTIONEE) agrees to pay a one time payment of $200,000.00 (Two Hundred Thousand)
upon filing an IND (initiation of Phase I in humans) with a LICENSED PRODUCT.
	 
	 	•	 	RXi (OPTIONEE) agrees to pay a one time payment of $400,000.00 (Four Hundred Thousand)
upon entering Phase II in humans with a LICENSED PRODUCT.
	 
	 	•	 	RXi (OPTIONEE) agrees to pay a one time payment of $600,000.00 (Six Hundred Thousand)
upon entering Phase III in humans with a LICENSED PRODUCT.




For clarity one payment is to be made, as described above, even if the product contains multiple
pieces of licensed PATENT RIGHTS.





	 	•	 	The exclusive license is Royalty bearing at 1%, if the licensed technology
becomes a part of a commercial product, or is being sublicensed to a third party (for
clarity, licensing fees paid to RXi by the third party are royalty bearing).
	 
	 	•	 	Term: Life of the PATENT RIGHTS, but may be terminated early at any time by
RXi.
	 
	 	•	 	RXi shall indemnify and defend ADVIRNA, its officers and stockholders against any suit
resulting from the commercialization of the licensed technology, other than a suit
resulting from a breach of the warranty and representation of ADVIRNA herein.