Exhibit 10.1


 


COST SHARING AND CONFIDENTIALITY AGREEMENT


 


This Agreement is effective this 15th day of September (“Effective
Date”), 2010, between VIA Pharmaceuticals, Inc. Inc. (“VIA”), a
corporation with offices at 750 Battery Street, Suite 330, San Francisco,
CA 94111, and Poniard Pharmaceuticals, Inc.  (“Tenant”), a corporation with temporary
offices at 750 Battery St., Suite 330, San Francisco, CA 94111, for
establishment of the conditions under which the parties will share office space
(“Space”) leased by VIA in a lease agreement (the “Lease”) dated 13th October 2005, and amended 15th January 2008, with James P. Edmondson (“Landlord”).


 


THEREFORE, in consideration of the mutual understandings by VIA and
Tenant, the parties agree that:


 


	
  A.

  	
  Space
  shared by Tenant is provided in “as is” condition. Tenant cannot alter the
  Space in any manner without VIA’s prior written agreement. Tenant agrees to
  surrender and deliver to VIA the Space in as good of condition as it was as
  of the Effective Date, reasonable wear and tear excepted. Tenant will be
  liable to VIA for any damages occurring to the premises or the contents
  thereof or to the building which are done by Tenant or its guests.
  Furthermore, during the time it is sharing Space, Tenant agrees to abide by
  the Rules and Regulations promulgated by Landlord from time to time
  under the Lease, and the reasonable rules and regulations promulgated by
  Via, as the same may be changed from time to time upon reasonable notice to
  Tenant. VIA has the right to enter into this office sharing agreement and has
  obtained any permission from its Landlord which may be required under the
  Lease.

  
	
   

  	
   

  
	
  B.

  	
  Tenant
  hereby agrees that in return for sharing Space, Tenant shall pay the costs
  summarized in Exhibit A (“Costs”) based upon actual office space
  occupied. VIA will invoice Tenant for these shared Costs on the 1st day of each month, and payment will be due
  and payable to VIA’s above address no later than the end of the quarter in
  which such invoices are sent. Upon paying the Costs reserved hereunder, and
  observing and performing all of the covenants, conditions and provisions on
  Tenant’s part to be performed hereunder, Tenant shall have quiet possession
  of the Space for the Term hereof, subject to all of the provisions of this
  Agreement.

  
	
   

  	
   

  
	
  C.

  	
  Tenant
  shall comply with all laws and covenants and restrictions of record affecting
  use of the Space, and shall not use or occupy the Space in violation of law
  or of the certificate of occupancy issued for the building wherein the Space
  is located and shall immediately discontinue any use of the Space which is
  declared by any governmental authority having jurisdiction to be a violation
  of law or said certificate of occupancy.

  
	
   

  	
   

  
	
  D.

  	
  Tenant
  agrees that Landlord shall at any and all times have the right to enter the
  Space to inspect the same, to supply janitorial service and any other service
  to be provided by Landlord, to show said Space to prospective purchasers or
  tenants, or to alter or repair the Space, all without being deemed guilty of
  an eviction of Tenant and without abatement of Costs, and may for that
  purpose erect scaffolding and any other necessary structures where reasonably
  required by the character of the work to be performed; provided that in all
  cases (but subject to the terms of the Lease), (i) at the request of
  Tenant, a representative may accompany Landlord and its agents; and
  (ii) the business of Tenant shall be interfered with as little as is
  reasonably practicable. Tenant hereby waives any claim for damages or any injury
  or inconvenience to or interference with Tenant’s business, any loss of
  occupancy or quiet enjoyment of the Space, and any other loss occasioned
  thereby. Tenant shall at all times take all actions required in order for VIA
  comply with the terms of the Lease, and the Tenant shall not take any action
  which would be in violation of the terms of the Lease.

  
	
   

  	
   

  
	
  E.

  	
  Tenant
  shall indemnify, hold harmless from and defend VIA and its employees,
  officers, directors and agents (each a “Via Party”) against any and all
  claims, losses, costs, damages, expenses and liabilities, including without
  limitation reasonable attorneys’ fees, for any injury or damage whatsoever to
  the extent such injury or damage have been caused by any act, neglect, fault
  or omission of Tenant, its agents, servants, employees or invitees, other
  than to the extent of the fraud, gross negligence or willful misconduct of
  VIA or its agents, servants, employees or invitees. This indemnity shall not
  require any payment by any VIA Party as condition precedent to recovery. In
  addition, if any person not a party to this Agreement shall institute any
  other type of action against Tenant in which VIA or any Via Party shall be
  made a party defendant, Tenant shall indemnify, hold harmless from and defend
  VIA and each Via Party from all liabilities and costs by reason thereof.

  
	
   

  	
   

  
	
  F.

  	
  VIA shall indemnify, hold
  harmless from and defend Tenant and its employees, officers, directors and
  agents (each a “Tenant Party”) against any and all claims, losses, costs,
  damages, expenses and liabilities, including without limitation reasonable
  attorneys’ fees, for any injury or damage whatsoever to the extent such
  injury or damage have been caused by any act, neglect, fault or omission of
  VIA, its agents, servants, employees or invitees, other than to the extent of
  the fraud, gross negligence or

  



 


1

















 


	
   

  	
  willful
  misconduct of Tenant or its agents, servants, employees or invitees.  This indemnity shall not require any
  payment by any Tenant Party as condition precedent to recovery.  In addition, if any person not a party to
  this Agreement shall institute any other type of action against VIA in which
  any Tenant Party shall be made a party defendant, VIA shall indemnify, hold
  harmless from and defend Tenant and each Tenant Party from all liabilities
  and costs by reason thereof.

  
	
   

  	
   

  
	
  G.

  	
  Tenant
  hereby agrees to maintain in full force and effect at all times during the
  term of this Agreement, at its own expense, for the protection of VIA and
  Tenant as their interests may appear, policies of insurance issued by a
  responsible carrier or carrier licensed in California and also having a
  policyholder’s rating of not less than A- in the most recent edition of
  Best’s Insurance Reports which afford the following coverage, together with
  any coverage required of the tenant under the Lease:

  



 


	
  (1)

  	
  Worker’s
  Compensation

  	
  Statutory

  
	
   

  	
  Employer’s
  Liability

  	
  Not
  less than $250,000

  
	
   

  	
   

  
	
  (2)

  	
  Comprehensive
  General Liability Insurance including Blanket Contractual Liability Broad Form Property
  Damage, Personal Injury Completed Operations, Products Liability, Fire
  Damage: Not less than $500,000 Combined Single Limit for both bodily injury
  and property damage

  



 


	
  H.

  	
  This
  agreement shall commence on the Effective Date and shall continue for a
  period of one (1) year (“Term”) unless terminated by either party in
  accordance with Section I below.

  
	
   

  	
   

  
	
  I.

  	
  VIA
  and Tenant agree that either party may terminate this Agreement to share
  Space upon 30 days advance written notice. Upon notice of termination Tenant
  shall pay VIA all Costs and pro-rated Costs owed up until the date of
  vacating the space, as specified in the written notice of termination. If
  Tenant holds over after the expiration or sooner termination hereof without
  the express written consent of VIA, Tenant will become a tenant at sufferance
  only at two times the Cost due hereunder and shall be prorated on a daily
  basis according to the number of days contained in the month that such
  expiration or earlier termination takes place, and otherwise upon the terms,
  covenants and conditions herein specified, so far as applicable. Acceptance
  by VIA of Costs after such expiration or earlier termination shall not
  constitute a consent to a holdover hereunder or result in a renewal. The
  foregoing provisions of this paragraph are in addition to and do not affect
  VIA’s rights of re-entry or any other rights of VIA hereunder or as otherwise
  provided by law.

  
	
   

  	
   

  
	
  J.

  	
  On
  the expiration or the sooner termination hereof, Tenant shall peaceably
  surrender the Space broom clean, in good order, condition and repair,
  ordinary wear and tear excepted. On or before the last day of the Term or the
  sooner termination hereof, Tenant shall at its own expense remove its trade
  fixtures, signs and other personal property from the Space. Any property not
  removed shall be deemed abandoned and my either be retained by VIA as its
  property, or disposed of, without accountability and at Tenant’s expense, in
  such a manner as VIA may determine. If the Space is not surrendered at the end
  of the Term or the sooner termination, Tenant shall indemnify VIA against
  loss or liability resulting from delay by Tenant in so surrendering the
  Space. Tenant shall promptly surrender all keys to VIA. Tenant’s covenants
  hereunder shall survive expiration or termination of this Agreement.

  
	
   

  	
   

  
	
  K.

  	
  It is understood that
  during the course of this Agreement, Tenant and its agents or employees may
  be exposed to data and information which is confidential and proprietary to
  VIA. All such data and information (scientific or business) including,
  without limitation, data, reports, know-how and materials (hereinafter “VIA
  Confidential Information”) written or verbal, tangible or intangible, made
  available, disclosed, or otherwise made known to Tenant and its agents or
  employees as a result of this Agreement, or the circumstances contemplated
  hereby, shall be considered confidential and shall be considered the sole
  property of VIA. It is also understood that during the course of this
  Agreement, VIA and its agents or employees may be exposed to data and
  information (scientific or business) which is confidential and proprietary to
  Tenant, or which Tenant may disclose to VIA in connection with this Agreement
  or circumstances contemplated thereby, including, without limitation,
  Tenant’s proprietary and confidential information, trade secrets and know-how
  which may include information, data and strategies relating to research and
  development, preclinical and clinical programs/studies, product and business
  development, financial information, manufacturing and third-party
  relationships (hereinafter “Tenant Confidential Information”), whether
  written or verbal, tangible or intangible, made available, disclosed or
  otherwise made known to VIA and its agents or employees, and VIA agrees that
  such Tenant Confidential Information is the sole property of Tenant.
  Together, the Tenant Confidential Information and the VIA Confidential
  Information may also be hereinafter referred to as “Confidential
  Information”. The Confidential Information shall be used by the receiving
  party and its agents and employees only for purposes of performing the
  receiving party’s obligations hereunder. All Confidential Information
  disclosed shall remain the exclusive property of the disclosing party. Each
  party agrees that it will not reveal, use, publish or otherwise disclose the

  



 


2

















 


	
   

  	
  Confidential
  Information of the other party to any third party without the prior written
  consent of the disclosing party. Each party agrees that it will not disclose
  the terms of this Agreement to any third party without the written consent of
  the other party, which shall not unreasonably be withheld. These obligations
  of confidentiality and nondisclosure shall remain in effect for a period of
  ten (10) years after the expiration or earlier termination of this
  Agreement. The foregoing obligations shall not apply to Confidential
  Information to the extent that it: (a) is or becomes generally available
  to the public other than as a result of a disclosure by the receiving party;
  (b) becomes available to the receiving party on a non-confidential basis
  from a source which is not prohibited from disclosing such information; (c) was
  developed independently of any disclosure by the disclosing party or was
  known to the receiving party prior to its receipt from the disclosing party,
  as shown by contemporaneous written evidence; or (d) is required by law,
  regulation, subpoena, government order or judicial order to be disclosed,
  provided the disclosing party promptly notify the other party upon such
  request for disclosure and prior to such disclosure to permit that party to
  oppose same by appropriate legal action.

  
	
   

  	
   

  
	
  L.

  	
  Neither party may assign
  any of its rights or obligations under this Agreement to any party without
  the express, written consent of the other party, except in connection with a
  merger, reorganization or sale of substantially all of its assets, or similar
  transaction.

  
	
   

  	
   

  
	
  M.

  	
  This Agreement contains
  the entire understanding of the parties with respect to the subject matter
  herein, and supersedes all previous oral or written agreements, negotiations
  and discussions. Any modifications to the provisions herein must be in
  writing and signed by the parties.

  
	
   

  	
   

  
	
  N.

  	
  This Agreement shall be
  governed by and construed pursuant to the laws of the State of California.

  



 


	
  VIA
  Pharmaceuticals, Inc.

  	
  Poniard Pharmaceuticals, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Lawrence K. Cohen

  	
   

  	
  By:

  	
  /s/
  Ronald A Martell

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Lawrence
  K. Cohen

  	
   

  	
  Ronald
  A. Martell

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  President
  and CEO

  	
   

  	
  President
  and CEO

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  August 20,
  2010

  	
  Date:

  	
  August 20,
  2010

  
					



 


3

















 


Exhibit A


Cost Sharing


 


1. Tenant shall share costs of actual offices occupied based on 1,544
square footage of offices compared to total office square footage of 8,180
square feet. Calculation of current actual monthly expense, and the current
calculated monthly shared cost has been provided to Tenant, and aggregates
$5241.00 per month.


 


2. Costs include use of shared conference room at no additional charge,
costs of reasonable telephone charges, supplies, etc.


 


3. No Security Deposit will be required of Tenant related to occupancy
of space.


 


4. VIA will coordinate with Tenant and IT support personnel for both
VIA and Tenant to provide information technology support coordination.  Tenant and VIA agree that VIA will facilitate
independent access to printing without any access to VIA’s network. Any
required hardware / software support will be coordinated and will not be
incurred without prior written approval of Tenant, with such costs to be
strictly limited to actual out of pocket costs incurred by VIA.  Tenant shall allowed unlimited access to the
server room for installation, maintenance, etc. and may install one
separate rack in such room for Tenant’s equipment, etc.


 


5. Tenant will reimburse VIA $680 on the first of each month for two
parking stalls at $340 each.