Exhibit 10.2


 





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Exclusive
Channel Collaboration Agreement


 


This
Exclusive Channel Collaboration Agreement (the “Agreement”)
is made and entered into effective as of March 29, 2013 (the “Effective Date”) by and between Intrexon
Corporation, a Virginia corporation with offices at 20358 Seneca Meadows Parkway, Germantown, MD 20876 (“Intrexon”),
and Ampliphi Biosciences Corporation, a Washington corporation having a place
of business at 800 E. Leigh St., Suite 54, Richmond, VA, 23219 (“Ampliphi”). Intrexon and Ampliphi may be referred
to herein individually as a “Party”, and collectively as the “Parties.”


 


Recitals


 


Whereas,
Intrexon has expertise in and owns or controls proprietary technology relating to the identification, design and production of
genetically modified cells and DNA vectors, and the control of peptide expression; and


 


Whereas,
Ampliphi now desires to become Intrexon’s exclusive channel
collaborator with respect to such technology for the purpose of developing the Bacteriophage Program (as defined herein), and
Intrexon is willing to appoint Ampliphi as its exclusive channel collaborator in the Field (as defined herein, and subject to
amendments to the definition as permitted herein) under the terms and conditions of this Agreement.


 


Now
Therefore, in consideration of the foregoing and the covenants
and promises contained herein, the Parties agree as follows:


 


ARTICLE
1



Definitions


 


As
used in this Agreement, the following capitalized terms shall have the following meanings:


 


1.1           “Affiliate”
means, with respect to a particular Party, any other person or entity that directly or indirectly controls, is controlled by,
or is in common control with such Party. As used in this Section 1.1, the term “controls” (with correlative meanings
for the terms “controlled by” and “under common control with”) means the ownership, directly or indirectly,
of more than fifty percent (50%) of the voting securities or other ownership interest of an entity, or the possession, directly
or indirectly, of the power to direct the management or policies of an entity, whether through the ownership of voting securities,
by contract, or otherwise. Notwithstanding the foregoing, Third Security shall be deemed not to be an Affiliate of Intrexon, and
neither Party shall be deemed to be an Affiliate of the other Party. In addition, any other person, corporation, partnership,
or other entity that would be an Affiliate of Intrexon solely because it and Intrexon are under common control by Randal J. Kirk
or by investment funds managed by Third Security or an affiliate of Third Security shall also be deemed not to be an Affiliate
of Intrexon.


 


1.2           “Ampliphi
Indemnitees” has the meaning set forth in Section 9.1.


 




    	 



    	 



    

 


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1.3           “Ampliphi
Product” means any product in the Field that is created, produced, developed, or identified in whole or in part during
the Term through use or practice of Intrexon Channel Technology, Intrexon IP, or the Intrexon Materials.


 


1.4           “Ampliphi
Program Patent” has the meaning set forth in Section 6.2(b).


 


1.5           “Ampliphi
Termination IP” means all Patents or other intellectual property that Ampliphi or any of its Affiliates Controls as
of the Effective Date or during the Term that cover, or is otherwise necessary or useful for, the development, manufacture or
Commercialization of a Reverted Product or necessary or useful for Intrexon to operate in the Field.


 


1.6           “Applicable
Laws” has the meaning set forth in Section 8.2(d)(xii).


 


1.7           “Authorizations”
has the meaning set forth in Section 8.2(d)(xii).


 


1.8           “Bacteriophage
Program” has the meaning set forth in Section 2.1(a).


 


1.9           “CC”
has the meaning set forth in Section 2.2(b).


 


1.10         “Channel-Related
Program IP” has the meaning set forth in Section 6.1(c).


 


1.11         “Claims”
has the meaning set forth in Section 9.1.


 


1.12         “CMCC”
has the meaning set forth in Section 2.2(b).


 


1.13         “Committees”
has the meaning set forth in Section 2.2(a).


 


1.14         “Commercialize”
or “Commercialization” means any activities directed to marketing, promoting, distributing, importing for sale,
offering to sell and/or selling Ampliphi Products.


 


1.15         “Commercial
Sale” means for a given product and country the sale for value of that product by a Party (or, as the case may be, by
an Affiliate or permitted sublicensee of a Party), to a Third Party after regulatory approval (if necessary) has been obtained
for such product in such country.


 


1.16         “Complementary
In-Licensed Third Party IP” has the meaning set forth in Section 3.8(a).


 


1.17         “Confidential
Information” means each Party’s confidential Information, disclosed pursuant to this Agreement or any other confidentiality
agreement between the Parties, regardless of whether in oral, written, graphic or electronic form.


 


1.18         “Control”
means, with respect to Information, a Patent or other intellectual property right, that a Party owns or has a license from a Third
Party to such right and has the ability to grant a license or sublicense as provided for in this Agreement under such right without
violating the terms of any agreement or other arrangement with any Third Party.


 




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1.19         “Diligent
Efforts” means, with respect to a Party’s obligation under this Agreement, the level of efforts and resources
reasonably required to diligently develop, manufacture, and/or Commercialize (as applicable) an Ampliphi Product in a sustained
manner, consistent with the efforts and resources a similarly situated company working in the Field would typically devote to
a product of similar potential, taking into account all relevant factors including market potential, profit potential, strategic
value and/or proprietary protection, competition, regulatory risk and manufacturing feasibility, all based on market conditions
then prevailing. With respect to a particular task or obligation, Diligent Efforts requires that the applicable Party promptly
assign responsibility for such task and consistently make and implement decisions and allocate resources designed to advance progress
with respect to such task or obligation.


 


1.20         “Equity
Agreement” has the meaning set forth in Section 5.1.


 


1.21         “Excess
Product Liability Costs” has the meaning set forth in Section 9.3.


 


1.22         “Executive
Officer” means : (a) the Chief Executive Officer of the applicable Party, or (b) another senior executive officer of
such Party who has been duly appointed by the Chief Executive Officer to act as the representative of the Party to resolve, as
the case may be, (i) a Committee dispute, provided that such appointed officer is not a member of the applicable Committee and
occupies a position senior to the positions occupied by the applicable Party’s members of the applicable Committee, or (ii)
a dispute described in Section 11.1.


 


1.23         “FDA”
has the meaning set forth in Section 8.2(d)(xii).


 


1.24         “Field”
means genetically modified bacteriophages using synthetic biology, and the production of bacteriophages using synthetic biology,
for bacteriophage-containing human therapeutics for use (i) in the treatment of bacterial infections associated with acute and
chronic wounds, and (ii) the treatment of acute and chronic Pseudomonas aeruginosa lung infections, and (iii) the treatment
of infections of Clostridium difficile. For clarity, the Field does not include the development or production of bacteriophage-containing
human therapeutics in which the only bacteriophages included in such therapeutic are (A) not genetically modified, (B) not developed,
selected or produced through the use of Intrexon IP, and (C) not developed or selected without the use of synthetic biology technology
(such as in the case of bacteriophages selected through screening libraries, evolutionary selection, from the environment or other
techniques that do not involve recombinant manipulation techniques).


 


1.25         “Field
Infringement” has the meaning set forth in Section 6.3(b).


 


1.26         “Fully
Loaded Cost” means the direct cost of the applicable good, product or service plus indirect charges and overheads reasonably
allocable to the provision of such good, product or service in accordance with US GAAP. Subject to the approval of a project and
its associated budget by the JSC and the terms of Sections 4.6 and 4.7 (as appropriate), Intrexon will bill for its internal direct
costs incurred through the use of annualized standard full-time equivalents; such rate shall be based upon the actual fully loaded
costs of those personnel directly involved in the provision of such good, product or service. Intrexon may, from time to time,
adjust such full-time equivalent rate based on changes to its actual fully loaded costs and will review the accuracy of its full-time
equivalent rate at least quarterly. Intrexon shall provide Ampliphi with reasonable documentation indicating the basis for any
direct and indirect charges, any allocable overhead, and any such adjustment in full-time equivalent rate.


 




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1.27         “In-Licensed
Program IP” has the meaning set forth in Section 3.9(a).


 


1.28         “Information”
means information, results and data of any type whatsoever, in any tangible or intangible form whatsoever, including without limitation,
databases, inventions, practices, methods, techniques, specifications, formulations, formulae, knowledge, know-how, skill, experience,
test data including pharmacological, biological, chemical, biochemical, toxicological and regulatory test data, analytical and
quality control data, stability data, studies and procedures, and patent and other legal information or descriptions.


 


1.29         “Infringement”
has the meaning set forth in Section 6.3(a).


 


1.30         “Intrexon
Channel Technology” means Intrexon’s current and future technology directed towards the design, identification,
culturing, and/or production of genetically modified cells, including without limitation the technology embodied in the Intrexon
Materials and the Intrexon IP, and specifically including without limitation the following of Intrexon’s platform areas
and capabilities: (1) UltraVector®, (2) LEAPTM, (3) DNA and RNA MOD engineering,
(4) protein engineering, (5) transcription control chemistry, (6) genome engineering, and (7) cell system engineering.


 


1.31         “Intrexon
Indemnitees” has the meaning set forth in Section 9.2.


 


1.32         “Intrexon
IP” means the Intrexon Patents and Intrexon Know-How.


 


1.33         “Intrexon
Know-How” means all Information (other than Intrexon Patents) that (a) is Controlled by Intrexon as of the Effective
Date or during the Term and (b) is reasonably required or useful for Ampliphi to conduct the Bacteriophage Program. For the avoidance
of doubt, the Intrexon Know-How shall include any Information (other than Intrexon Patents) in the Channel-Related Program IP.


 


1.34         “Intrexon
Materials” means the genetic code and associated amino acids and gene constructs, in each case that are Controlled by
Intrexon, used alone or in combination and such other proprietary reagents and biological materials including but not limited
to plasmid vectors, virus stocks, cells and cell lines, antibodies, and ligand-related chemistry, in each case that are reasonably
required or provided to Ampliphi by or on behalf of Intrexon to conduct the Bacteriophage Program.


 


1.35         “Intrexon
Patents” means all Patents that (a) are Controlled by Intrexon as of the Effective Date or during the Term; and (b)
are reasonably required or useful for Ampliphi to conduct the Bacteriophage Program. For the avoidance of doubt, the Intrexon
Patents shall include any Patent in the Channel-Related Program IP.


 


1.36         “Intrexon
Trademarks” means those trademarks related to the Intrexon Channel Technology that are established from time to time
by Intrexon for use across its channel partnerships or collaborations.


 




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1.37         “Inventions”
has the meaning set forth in Section 6.1(b).


 


1.38         “IPC”
has the meaning set forth in Section 2.2(b).


 


1.39         “JSC”
has the meaning set forth in Section 2.2(b).


 


1.40         “Losses”
has the meaning set forth in Section 9.1.


 


1.41         “Net
Sales” means, with respect to any Ampliphi Product, the net sales of such Ampliphi Product by Ampliphi or an Affiliate
of Ampliphi (including without limitation net sales of Ampliphi Product to a non-Affiliate sublicensee but not including net sales
by such non-Affiliate sublicensee), as determined in accordance with US GAAP.


 


1.42         “Patents”
means (a) all patents and patent applications (including provisional applications), (b) any substitutions, divisions, continuations,
continuations-in-part, reissues, renewals, registrations, requests for continued examination, confirmations, re-examinations,
extensions, supplementary protection certificates and the like of the foregoing, and (c) any foreign or international equivalents
of any of the foregoing.


 


1.43         “Product-Specific
Program Patent” means any issued Intrexon Patent where all the claims are directed to Inventions that relate solely
to Ampliphi Products and where all such claims do not do not relate to applications beyond the Field. In the event of a disagreement
between the Parties as to whether a particular Intrexon Patent is or is not a Product-Specific Program Patent, the Parties shall
seek to resolve the issue through discussions at the IPC, provided that if the Parties are unable to resolve the disagreement,
the issue shall be submitted to arbitration pursuant to Section 11.2. Any Intrexon Patent that is subject to such a dispute shall
be deemed not to be a Product-Specific Program Patent unless and until (a) Intrexon agrees in writing that such Patent is a Product-Specific
Program Patent or (b) an arbitrator or arbitration panel determines, pursuant to Article 11, that such Intrexon Patent is a Product-Specific
Program Patent.


 


1.44         “Proposed
Terms” has the meaning set forth in Section 11.2.


 


1.45         “Prosecuting
Party” has the meaning set forth in Section 6.2(c).


 


1.46         “RC”
has the meaning set forth in Section 2.2(b).


 


1.47         “Recovery”
has the meaning set forth in Section 6.3(f).


 


1.48         “Reserved
ECC Field” means genetically engineered bacteriophages for, and the production of bacteriophages using synthetic biology
for, bacteriophage-containing veterinary therapeutics for use in the treatment of bacterial infections.


 


1.49         “Retained
Product” has the meaning set forth in Section 10.4(a).


 


1.50         “Reverted
Product” has the meaning set forth in Section 10.4(c).


 


1.51         “SEC”
means the United States Securities and Exchange Commission.


 




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1.52         “Sublicensing
Revenue” means any cash consideration, or the cash equivalent value of non-cash consideration, regardless of whether
in the form of upfront payments, milestones, or royalties, actually received by Ampliphi or its Affiliate from a Third Party in
consideration for a grant of a sublicense under the Intrexon IP or any rights to develop or Commercialize Ampliphi Products, but
excluding: (a) any amounts paid as bona fide reimbursement or prepayment for research and development costs to the extent incurred
following such grant; (b) bona fide loans or any payments in consideration for a grant of equity of Ampliphi to the extent that
such consideration is equal to or less than fair market value (i.e. any amounts in excess of fair market value shall be Sublicensing
Revenue); and (c) amounts received from sublicensees in respect of any Ampliphi Product sales that are included in the calculation
of royalty payments made to Intrexon under Section 5.4(a).  


 


1.53         “Superior
Therapy” means a therapy in the Field that, based on the data then available, (a) demonstrably appears to offer either
superior efficacy or safety or significantly lower cost of therapy, as compared with both (i) those therapies that are marketed
(either by Ampliphi or others) at such time for the indication or, as evidenced to Intrexon by Ampliphi, have been in human clinical
trials for the same indication by Third Parties, and (ii) those therapies that are being actively developed by Ampliphi for such
indication or known by Ampliphi to be or have been in human clinical trials for the same indication by others; (b) demonstrably
appears to represent a substantial improvement over such existing therapies; and (c) has intellectual property protection and
a regulatory approval pathway that, in each case, would not present a significant barrier to commercial development.


 


1.54         “Supplemental
In-Licensed Third Party IP” has the meaning set forth in Section 3.8(a).


 


1.55         “Support
Memorandum” has the meaning set forth in Section 11.2.


 


1.56         “Technology
Access Fee” for the purposes of this Agreement has the meaning as set forth in Section 5.1.


 


1.57         “Term”
has the meaning set forth in Section 10.1.


 


1.58         “Territory”
means the world.


 


1.59         “Third
Party” means any individual or entity other than the Parties or their respective Affiliates.


 


1.60         “Third
Security” means Third Security, LLC.


 


1.61         
“US GAAP” means generally accepted accounting principles in the United States.


 




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ARTICLE
2


 


Scope
of Channel Collaboration; Management


 


2.1           Scope.


 


(a)          Generally.
The general purpose of the channel collaboration described in this Agreement will be to use the Intrexon Channel Technology to
research, develop and Commercialize Ampliphi Products for use in the Field (collectively, the “Bacteriophage Program”).
As provided below, the JSC shall establish, monitor, and govern projects for the Bacteriophage Program. Either Party may propose
potential projects in the Field for review and consideration by the JSC.


 


(b)          Reservation
of Bactgeriophage Veterninary Applications. Intrexon and Ampliphi desire to provide a limited time period for the Parties
after the Effecive Date to consider entering into a second exclusive channel collaboration agreement pertaining to certain veterinary
applications in the Reserved Field. For a time period of one year immediately following the Effective Date, neither Intrexon nor
its Affiliates shall make the Intrexon Channel Technology or Intrexon Materials available to any Third Party for the purpose of
developing or Commercializing products in the Reserved Field, and neither Intrexon nor any Affiliate shall pursue (either by itself
or with a Third Party or Affiliate) the Commercialization of any product for purpose of commercial use or sale in the Reserved
Field. For clarity, nothing in the preceding sentence, however, shall prevent Intrexon from performing general research and development
that may be applicable to the Reserved Field. During the one-year period following the Effective Date, Intrexon will not propose,
negotiate, or enter into any collaboration or Commercialization agreement with a Third Party within the Reserved Field, and will,
at Ampliphi’s request, enter into negotiations directed toward the execution of a second exlcusive channel collaboration
between the parties, which second exclusive channel collaboration will be directed to the Reserved Field (or a subset of the Reserved
Field as mutually agreed by the Parties). The terms of this second exclusive channel collaboration agreement will be subject to
good faith negotiation of the parties with respect to any terms relating to consideration (up-front, milestones, and royalty payments)
that will be due to Intrexon, the scope of exclusive field within the Reserved Field, and the relative rights of the Parties to
continue products following any termination, but otherwise will contain similar terms, rights and obligations of the parties as
set forth herein.


 


2.2           Committees.


 


(a)          Generally.
The Parties desire to establish several committees (collectively, “Committees”) to oversee the Bacteriophage
Program and to facilitate communications between the Parties with respect thereto. Each of such Committees shall have the responsibilities
and authority allocated to it in this Article 2. Each of the Committees shall have the obligation to exercise its authority consistent
with the respective purpose for such Committee as stated herein and any such decisions shall be made in good faith.


 


(b)          Formation
and Purpose. Promptly following the Effective Date, the Parties shall confer and then create the JSC and the IPC, and, optionally,
create one or more of the other Committees listed in the chart below. Each Committee shall have the purpose indicated in the chart.
To the extent that after conferring both Parties agree to not create a Committee (other than the JSC and the IPC), the creation
of such Committee shall be deferred until one Party informs the other Party of its then desire to create the so-deferred Committee,
at which point the Parties will thereafter promptly create the so-deferred Committee.


 




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	Committee	 	Purpose
	Joint Steering Committee (“JSC”)	 	Establish projects for the Bacteriophage Program and establish
    the priorities, as well as approve budgets for such projects.  Approve all subcommittee projects and plans (except
    for decisions of the IPC). The JSC shall establish budgets not less than on a quarterly basis.
	 	 	 
	Chemistry, Manufacturing and Controls
    Committee (“CMCC”)	 	Establish project plans and review
    and approve activities and budgets for chemistry, manufacturing, and controls under the Bacteriophage Program.
	 	 	 
	Regulatory Committee (“RC”)	 	Review and approve all research and
    development plans and projects, including clinical projects, associated with any necessary regulatory approvals, all associated
    publications, and all regulatory filings and correspondence relating to gaining regulatory approval for new Ampliphi Products
    under the Bacteriophage Program; and review and approve itemized budgets with respect to the foregoing.
	 	 	 
	Commercialization Committee (“CC”)	 	Establish project plans and review
    and approve activities and budgets for Commercialization activities under the Bacteriophage Program.
	 	 	 
	Intellectual Property Committee (“IPC”)	 	Evaluate all intellectual property
    issues in connection with the Bacteriophage Program; review and approve itemized budgets with respect to the foregoing.


 


2.3           General
Committee Membership and Procedure.


 


(a)          Membership.
For each Committee, each Party shall designate an equal number of representatives (not to exceed three (3) for each Party) with
appropriate expertise to serve as members of such Committee. For the JSC, the representatives must all be employees of such Party
or an Affiliate of such Party. For Committees other than the JSC, the representatives must all be employees of such Party or an
Affiliate of such Party, with the caveat that each Party may designate for each such other Committee up to one (1) representative
who is not an employee if : (i) such non-employee representative agrees in writing to be bound to the terms of this Agreement
for the treatment and ownership of Confidential Information and Inventions of the Parties, and (ii) the other Party consents to
the designation of such non-employee representative, which consent shall not be unreasonably withheld. For purposes of this Section
2.3, employees of Third Security may, at Intrexon’s election, serve as members of a Committee as if they were employees
of Intrexon. Each representative as qualified above may serve on more than one (1) Committee as appropriate in view of the individual’s
expertise. Each Party may replace its Committee representatives at any time upon written notice to the other Party, provided that
any replacement shall be qualified as set forth above. Each Committee shall have a chairperson; the chairperson of each committee
shall serve for a two-year term and the right to designate which representative to the Committee will act as chairperson shall
alternate between the Parties, with Ampliphi selecting the chairperson first for the JSC, RC and CC, and Intrexon selecting the
chairperson first for the CMCC and IPC. The chairperson of each Committee shall be responsible for calling meetings, preparing
and circulating an agenda in advance of each meeting of such Committee, and preparing and issuing minutes of each meeting within
fifteen (15) days thereafter.


 




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(b)          Meetings.
Each Committee shall hold meetings at such times as it elects to do so, but in no event shall such meetings be held less frequently
than once every six (6) months, with the caveat that both Parties may agree to suspend activities of a given Committee other than
the JSC until such time as one Party informs the other Party of its then desire to reactivate the so-suspended Committee, at which
point the Parties will thereafter schedule and hold the next meeting for the reactivated Committee within one (1) month. Meetings
of any Committee may be held in person or by means of telecommunication (telephone, video, or web conferences). To the extent
that a Committee holds any meetings in person, the Parties will alternate in designating the location for such in-person meetings,
with Ampliphi selecting the first meeting location for each Committee. A reasonable number of additional representatives of a
Party may attend meetings of a Committee in a non-voting capacity. Each Party shall be responsible for all of its own expenses
of participating in any Committee excepting that an Intrexon employee or agent serving on a Committee shall not prevent Intrexon
from recouping the Fully Loaded Costs otherwise derived from the labor of that employee or agent in the course of providing manufacturing
or support services as set forth in Sections 4.6 and 4.7 below.


 


(c)          Meeting
Agendas. Each Party will disclose to the other proposed agenda items along with appropriate information at least three (3)
business days in advance of each meeting of the applicable Committee; provided, that a Party may provide its agenda items to the
other Party within a lesser period of time in advance of the meeting, or may propose that there not be a specific agenda for a
particular meeting, so long as such other Party consents to such later addition of such agenda items or the absence of a specific
agenda for such Committee meeting.


 


(d)          Limitations
of Committee Powers. Each Committee shall have only such powers as are specifically delegated to it hereunder or from time
to time as agreed to in writing by the mutual consent of the Parties and shall not be a substitute for the rights of the Parties.
Without limiting the generality of the foregoing, no Committee shall have any power to amend this Agreement. Any amendment to
the terms and conditions of this Agreement shall be implemented pursuant to Section 12.7 below.


 




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2.4           Committee
Decision-Making. If a Committee is unable to reach unanimous consent on a particular matter within thirty (30) days of its
initial consideration of such matter, then either Party may provide written notice of such dispute to the Executive Officer of
the other Party. The Executive Officers of each of the Parties will meet at least once in person or by means of telecommunication
(telephone, video, or web conferences) to discuss the dispute and use their good faith efforts to resolve the dispute within thirty
(30) days after submission of such dispute to the Executive Officers. If any such dispute is not resolved by the Executive Officers
within thirty (30) days after submission of such dispute to such Executive Officers, then the Executive Officer of the Party specified
in the applicable subsection below shall have the authority to finally resolve such dispute acting in good faith.


 


(a)          Casting
Vote at JSC. If a dispute at the JSC is not resolved pursuant to Section 2.4 above, then the Executive Officer of Ampliphi
shall have the authority to finally resolve such dispute.


 


(b)          Casting
Vote at CMCC. If a dispute at the CMCC is not resolved pursuant to Section 2.4 above, then (i) in the case of any disputes
relating to the Intrexon Materials, the manufacture of an Ampliphi Product through the use of Intrexon Channel Technology or Intrexon
IP, or the manufacturing of other components of Ampliphi Products contracted for or manufactured by Intrexon or reasonable controls
regarding the dissemination of Intrexon Technology, Intrexon IP or Intrexon Materials, the Executive Officer of Intrexon shall
have the authority to finally resolve such dispute; and (ii) in the case of any other disputes, the Executive Officer of Ampliphi
shall have the authority to finally resolve such dispute.


 


(c)          Casting
Vote at RC. If a dispute at the RC is not resolved pursuant to Section 2.4 above, then the Executive Officer of Ampliphi shall
have the authority to finally resolve such dispute.


 


(d)          Casting
Vote at CC. If a dispute at the CC is not resolved pursuant to Section 2.4 above, then the Executive Officer of Ampliphi shall
have the authority to finally resolve such dispute.


 


(e)          Casting
Vote at IPC. If a dispute at the IPC is not resolved pursuant to Section 2.4 above, then the Executive Officer of Intrexon
shall have the authority to finally resolve such dispute, provided that such authority shall be shared by the Parties with respect
to Product-Specific Program Patents (i.e., neither Party shall have the casting vote on such matters, and any such disputes shall
be resolved pursuant to Article 11).


 


(f)          Other
Committees. If any additional Committee or subcommittee other than those set forth in Section 2.2(b) is formed, then the Parties
shall, at the time of such formation, agree on which Party shall have the authority to finally resolve a dispute that is not resolved
pursuant to Section 2.4 above.


 


(g)          Restrictions.
Neither Party shall exercise its right to finally resolve a dispute at a Committee in accordance with this Section 2.4 in a manner
that (i) excuses such Party from any of its obligations specifically enumerated under this Agreement; (ii) expands the obligations
of the other Party under this Agreement; (iii) negates any consent rights or other rights specifically allocated to the other
Party under this Agreement; (iv) purports to resolve any dispute involving the breach or alleged breach of this Agreement; (v)
resolves a matter if the provisions of this Agreement specify that mutual agreement is required for such matter; or (vi) would
require the other Party to perform any act that is inconsistent with applicable law.


 




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ARTICLE
3



License Grants


 


3.1           Licenses
to Ampliphi.


 


(a)          Subject
to the terms and conditions of this Agreement, Intrexon hereby grants to Ampliphi a license under the Intrexon IP to research,
develop, use, import, make, have made, sell, and offer for sale Ampliphi Products in the Field in the Territory. Such license
shall be exclusive (even as to Intrexon) with respect to any development, selling, offering for sale or other Commercialization
of Ampliphi Products in the Field in the Territory, and shall be otherwise non-exclusive.


 


(b)          Subject
to the terms and conditions of this Agreement, Intrexon hereby grants to Ampliphi a non-exclusive, royalty-free license to use
and display the Intrexon Trademarks, solely in connection with the Commercialization of Ampliphi Products in the promotional materials,
packaging, and labeling for Ampliphi Products, as provided under and in accordance with Section 4.9.


 


3.2           Sublicensing.
Except as provided in this Section 3.2, Ampliphi shall not sublicense the rights granted under Section 3.1 to any Third Party,
or transfer the Intrexon Materials to any Third Party, or otherwise grant any Third Party the right to research, develop, use,
or Commercialize Ampliphi Products or use or display the Intrexon Trademarks, in each case except with Intrexon’s written
consent, which written consent may be withheld in Intrexon’s sole discretion. Notwithstanding the foregoing, Ampliphi shall
have a limited right to sublicense under the circumstances described in Sections 3.2(a), 3.2(b) and 3.2(c).


 


(a)          Ampliphi
may transfer, to the extent reasonably necessary and after providing Intrexon with reasonable advance notice thereof, Intrexon
Materials that are or express Ampliphi Products to a Third Party contractor performing contract manufacturing, fill, and/or finish
responsibilities for Ampliphi Products, and may in connection therewith grant limited sublicenses necessary to enable such Third
Party to perform such activities. If Ampliphi transfers any Intrexon Materials under this Section 3.2(a), Ampliphi will remain
obligated to ensure that the rights of Intrexon in and to the Intrexon Materials and Intrexon IP and under the provisions of Articles
6 and 7 of this Agreement are not violated by any such Third Party contractor.


 


(b)          Ampliphi
may, with Intrexon’s written consent, which consent shall not be unreasonably withheld or delayed, sublicense the rights
granted under Section 3.1 to an Affiliate, or transfer the Intrexon Materials to an Affiliate, or grant an Affiliate the right
to display the Intrexon Trademarks. In the event that Intrexon consents to any such grant or transfer to an Affiliate, Ampliphi
shall remain responsible for, and be guarantor of, the performance by any such Affiliate and shall cause such Affiliate to comply
with the provisions of this Agreement in connection with such performance (as though such Affiliate were Ampliphi), including
any payment obligations owed to Intrexon hereunder.


 




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(c)          Ampliphi
may, upon approval of the JSC and with Intrexon’s written consent, which consent shall not be unreasonably withheld or delayed,
sublicense the rights granted under Section 3.1 to a Third-Party, or transfer the Intrexon Materials to a Third Party, in each
case who is providing services to Ampliphi in connection with Ampliphi’s exercise of rights under this Agreement, provided
that such sublicense or use of Intrexon Materials shall be limited to those rights or uses necessary for such Third Party to provide
such services. In the event that Intrexon consents to any such grant or transfer to such a Third Party, Ampliphi shall remain
responsible for the performance by any such Third Party and shall cause such Third Party to comply with the provisions of this
Agreement in connection with such performance (as though such Third Party were Ampliphi).


 


3.3           Limitation
on Sublicensees. None of the enforcement rights under the Intrexon Patents that are granted to Ampliphi pursuant to Section
6.3 shall be transferred to, or exercised by, a sublicensee except with Intrexon’s prior written consent, which may be withheld
in Intrexon’s sole discretion.


 


3.4           No
Non-Permitted Use. Ampliphi hereby covenants that it shall not, nor shall it permit any Affiliate or, if applicable, (sub)licensee,
to use or practice, directly or indirectly, any Intrexon IP, Intrexon Channel Technology, or Intrexon Materials for any purposes
other than those expressly permitted by this Agreement.


 


3.5           Exclusivity.
Neither Intrexon nor its Affiliates shall make the Intrexon Channel Technology or Intrexon Materials available to any Third Party
for the purpose of developing or Commercializing products in the Field (except as set forth in Section 3.2), and neither Intrexon
nor any Affiliate shall pursue (either by itself or with a Third Party or Affiliate) the research, development or Commercialization
of any product for purpose of commercial use or sale in the Field, outside of the Bacteriophage Program. Further, neither Ampliphi
nor its Affiliates shall pursue (either by itself or with a Third Party or Affiliate) outside of the Bacteriophage Program the
research, development or Commercialization of any product for purpose of commercial use or sale in the Field. For clarity, the
foregoing sentence shall not restrict Ampliphi’s rights to research, develop or Commercialize any bacteriophage therapeutic
product in which the only bacteriophages included in such therapeutic are developed, selected, or produced without the use of
synthetic DNA technology, including bacteriophages selected through screening libraries, evolutionary selection or other techniques
that do not involve the direct manipulation of nucleic acid sequences.


 


3.6           No
Prohibition on Intrexon. Except as explicitly set forth in Sections 2.1(b), 3.1 and 3.5, nothing in this Agreement shall prevent
Intrexon from practicing or using the Intrexon Materials, Intrexon Channel Technology, and Intrexon IP for any purpose, and to
grant to Third Parties the right to do the same. Without limiting the generality of the foregoing, Ampliphi acknowledges that,
except as set forth in Section 2.1(b) with respect to the Reserved Field, Intrexon has all rights, in Intrexon’s sole discretion,
to use or make the Intrexon Materials, Intrexon Channel Technology (including any genetic materials used in an Ampliphi Product),
and Intrexon IP available to Third Party channel partners or collaborators for use in fields outside the Field.


 




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3.7           Rights
to Regulatory Data. Ampliphi shall own and control all regulatory trial data and regulatory filings relating to Commercialization
of Ampliphi Products (except to the extent such become Reverted Products). Ampliphi shall provide to Intrexon at Intrexon’s
request full copies of all trial data and reports, regulatory filings, and communications from regulatory authorities that relate
specifically and solely to Ampliphi Products. To the extent that there exist any trial data and reports, regulatory filings, and
communications from regulatory authorities owned by Ampliphi that relate both to Ampliphi Products and other products produced
by Ampliphi outside the Field or outside the Bacteriophage Program, upon Intrexon’s request Ampliphi shall provide to Intrexon
copies of the portions of such data, reports, filings, and communications that relate to Ampliphi Products, provided any such
materials shall be Confidential Information of Ampliphi (except to the extent such become Reverted Products). Subject to its ongoing
obligations of exclusivity under Section 3.5, Intrexon shall be permitted, directly or in conjunction with or through partners
or other channel collaborators, to reference this data, reports, filings, and communications relating to Ampliphi Products in
regulatory filings made to obtain regulatory approval for products for use in fields outside the Field. Intrexon shall have the
right to use any such information in developing and Commercializing products outside the Field and to license any Third Parties
to do so. Notwithstanding the provisions of this Section 3.7, Intrexon shall not, outside of the Bacteriophage Program, utilize
any Ampliphi trial data or reports in support of obtaining regulatory approval for a product for use in the Field.


 


3.8           Third
Party Licenses.


 


(a)          Intrexon
shall obtain, at its sole expense, any licenses from Third Parties that are required in order to practice the Intrexon Channel
Technology in the Field where the licensed intellectual property is reasonably necessary for Intrexon to conduct genetic and cell
engineering and related analytic activities under JSC established plans for the Bacteriophage Program (but specifically excluding
intellectual property directed to any specific target genes, methods of treatment or therapy, cell lines, active pharmaceutical
ingredients, delivery or packaging methods or apparatuses, or processes or methods for commercially manufacturing Ampliphi Products)
(“Supplemental In-Licensed Third Party IP”). Other than with respect to Supplemental In-Licensed Third Party
IP, Ampliphi shall be solely responsible for obtaining, at its sole expense, any licenses from Third Parties that Ampliphi determines,
in its sole discretion, are required in order to lawfully make, use, sell, offer for sale, or import Ampliphi Products (“Complementary
In-Licensed Third Party IP”). Supplemental In-Licensed Third Party IP and Complementary In-Licensed Third Party IP are
collectively referred to as “In-Licensed Program IP”.


 




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(b)          In
the event that either Party desires to license from a Third Party any Supplemental In-Licensed Third Party IP or Complementary
In-Licensed Third Party IP, such Party shall so notify the other Party, and the IPC shall discuss such In-Licensed Program IP
and its applicability to the Ampliphi Products and to the Field. As provided above in Section 3.8(a), Intrexon shall have the
sole right and responsibility to pursue a license under Supplemental In-Licensed Third Party IP, and Ampliphi hereby covenants
that it shall not itself directly license such Supplemental In-Licensed Third Party IP at any time, provided that
Ampliphi may (but shall not be obligated to) obtain such a license directly if the Third Party owner or licensee of such Supplemental
In-Licensed Third Party IP brings an infringement action against Ampliphi or its Affiliates or threatens to bring such action
(to the extent such threats would reasonably be considered to subject the Third Party owner or licensee to declaratory judgment
jurisdiction) and, after written notice to Intrexon of such action, Intrexon fails to obtain a license to such Supplemental In-Licensed
Third Party IP using Diligent Efforts within ninety (90) days after such notice. Following the IPC’s discussion of any Complementary
In-Licensed Third Party IP, subject to Section 3.8(c), Ampliphi shall have the right to pursue a license under Complementary In-Licensed
Third Party IP, at Ampliphi’s sole expense. For the avoidance of doubt, Intrexon may at any time obtain a license under
Complementary In-Licensed Third Party IP outside the Field, at Intrexon’s sole expense, provided that if Intrexon
decides to seek to obtain such a license, it shall use reasonable efforts to coordinate its licensing activities in this regard
with Ampliphi.


 


(c)          Ampliphi
shall provide the proposed terms of any license under Complementary In-Licensed Third Party IP and the final version of the definitive
license agreement for any Complementary In-Licensed Third Party IP to the IPC for review and discussion prior to signing, and
shall consider Intrexon’s comments thereto in good faith. To the extent that Ampliphi obtains a license under Supplemental
In-Licensed Third Party IP, Ampliphi shall provide the final version of the definitive license agreement for such Supplemental
In-Licensed Third Party IP to the IPC. If Ampliphi acquires rights under any In-Licensed Program IP outside the Field, it will
do so on a non-exclusive basis unless it obtains the prior written consent of Intrexon for such license outside the Field to be
exclusive. Notwithstanding the foregoing sentence, Ampliphi shall have the right to acquire exclusive rights to Supplemental In-Licensed
Third Party IP outside the Field if (i) such rights outside the Field are limited specifically to non-genetically modified bacteriophages
and, (ii) Ampliphi provides Intrexon with thirty days notice prior to execution of any such exclusive rights to Supplemental In-Licensed
Third Party IP. Any Party that is pursuing a license to any In-Licensed Program IP with respect to the Field under this Section
3.8 shall keep the other Party reasonably informed of the status of any negotiations relating thereto. For purposes of clarity,
(i) any costs incurred by Intrexon in obtaining and maintaining licenses to Supplemental In-Licensed Third Party IP shall be borne
solely by Intrexon, and (ii) any costs incurred by Ampliphi in obtaining and maintaining licenses to Complementary In-Licensed
Third Party IP (and, to the limited extent provided in subsection (b), Supplemental In-Licensed Third Party IP) shall be borne
solely by Ampliphi.


 


(d)          For
any Third Party license under which Ampliphi or its Affiliates obtain a license under Patents claiming inventions or know-how
specific to or used or incorporated into the development, manufacture, and/or Commercialization of Ampliphi Products, Ampliphi
shall use commercially reasonable efforts to ensure that Ampliphi will have the ability, pursuant to Section 10.4(h), to assign
such agreement to Intrexon or grant a sublicense to Intrexon thereunder (having the scope set forth in Section 10.4(h)).


 


(e)          The
licenses granted to Ampliphi under Section 3.1 may include sublicenses under Intrexon IP that has been licensed to Intrexon by
one or more Third Parties. Any such sublicenses are subject to the terms and conditions set forth in the applicable upstream license
agreement, subject to the cost allocation set forth in Section 3.8(c), provided that Intrexon shall either provide
unredacted copies of such upstream license agreements to Ampliphi or shall disclose in writing to Ampliphi all of such terms and
conditions that are applicable to Ampliphi. Ampliphi shall not be responsible for complying with any provisions of such upstream
license agreements unless, and to the extent that, such provisions have been disclosed to Ampliphi as provided in the preceding
sentence.


 




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(f)          If
either Party receives notice from a Third Party concerning activities of a Party taken in conjunction with performance of obligations
under this Agreement, which notice alleges infringement by a Party of, or offers license under, Patents or other intellectual
property rights owned or controlled by that Third Party, the receiving Party shall inform the other party thereof within five
(5) business days.


 


3.9           Licenses
to Intrexon. Subject to the terms and conditions of this Agreement, Ampliphi hereby grants to Intrexon a non-exclusive, worldwide,
fully-paid, royalty-free license, under any applicable Patents or other intellectual property Controlled by Ampliphi or its Affiliates,
solely to the extent necessary for Intrexon to conduct those responsibilities assigned to it under this Agreement, which license
shall be sublicensable solely to Intrexon’s Affiliates or to any Intrexon subcontractors as permitted in accord with Section
4.6 or as otherwise permitted to be used by Intrexon in conjunction with support services under Section 4.7 (subject to JSC research
plan approval).


 


3.10         Restrictions
Relating to Intrexon Materials. Ampliphi and its permitted sublicensees shall use the Intrexon Materials solely for purposes
of the Bacteriophage Program and not for any other purpose without the prior written consent of Intrexon. With respect to the
Intrexon Materials comprising Intrexon’s vector assembly technology, Ampliphi shall not, and shall ensure that Ampliphi
personnel and permitted sublicensees do not, except as otherwise permitted in this Agreement (a) distribute, sell, lend or otherwise
transfer such Intrexon Materials to any Third Party; (b) co-mingle such Intrexon Materials with any other proprietary biological
or chemical materials without Intrexon’s written consent; or (c) analyze such Intrexon Materials or in any way attempt to
reverse engineer or sequence such Intrexon Materials.


 


ARTICLE
4


 


Other
Rights and Obligations


 


4.1           Development
and Commercialization. Subject to Sections 4.6 and 4.7, Ampliphi shall be solely responsible for the development and Commercialization
of Ampliphi Products. Ampliphi shall be responsible for all costs incurred in connection with the Bacteriophage Program except
that Intrexon shall be responsible for the following: (a) costs of establishing manufacturing capabilities and facilities in connection
with Intrexon’s manufacturing obligation under Section 4.6 (provided, however, that Intrexon may include an allocable portion
of such costs, through depreciation and amortization, when calculating the Fully Loaded Cost of manufacturing an Ampliphi Product,
to the extent such allocation, depreciation, and amortization is permitted by US GAAP, it being recognized that the majority of
non-facilities scale-up costs cannot be capitalized and amortized under US GAAP); (b) costs of basic research with respect to
the Intrexon Channel Technology and Intrexon Materials (i.e., platform improvements) but, for clarity, excluding research described
in Section 4.7 or research requested by the JSC for the development of an Ampliphi Product (which research costs shall be reimbursed
by Ampliphi); (c) payments under Section 3.9(c)(i) in respect of Supplemental In-Licensed Third Party IP; and (d) costs of filing,
prosecution and maintenance of Intrexon Patents. The costs encompassed within clause (a) of the previous sentence shall include
the scale-up of Intrexon Materials for generating data for regulatory approval submissions and Commercialization of Ampliphi Products
undertaken pursuant to Section 4.6, which shall be at Intrexon’s cost whether it elects to conduct such efforts internally
or through Third Party contractors retained by either Intrexon or Ampliphi (with Intrexon’s consent).


 




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4.2           Transfer
of Technology and Information. The JSC shall develop a plan and protocol for each project and timing for the transfer of relevant
data and materials between the Parties.


 


4.3           Information
and Reporting. Ampliphi will keep Intrexon informed about Ampliphi’s efforts to develop and Commercialize Ampliphi Products,
including reasonable and accurate summaries of Ampliphi’s (and its Affiliates’ and, if applicable, (sub)licensees’)
development plans (as updated), including regulatory plans, marketing plans (as updated), progress towards meeting the goals and
milestones in such plans and explanations of any material deviations, significant developments in the development and/or Commercialization
of the Ampliphi Products, including initiation or completion of a regulatory trial, submission of a United States or international
regulatory filing, receipt of a response to such United States or international regulatory filing, product safety event, receipt
of Regulatory Approval, or commercial launch, and manufacturing costs and pricing information. As set forth in Section 3.7 above,
Ampliphi shall also provide to Intrexon copies of all final regulatory trial protocols and reports, and regulatory correspondence
and filings generated by Ampliphi as soon as practical after they become available. Intrexon will keep Ampliphi informed about
Intrexon’s efforts (a) to establish manufacturing capabilities and facilities for Ampliphi Products (and Intrexon Materials
relevant thereto) and otherwise perform its manufacturing responsibilities under Section 4.6 and (b) to undertake discovery-stage
research for the Bacteriophage Program with respect to the Intrexon Channel Technology and Intrexon Materials. Unless otherwise
provided herein or directed by the JSC in accord with Section 4.2 above, such disclosures by Ampliphi and Intrexon will be coordinated
by the JSC and made in connection with JSC meetings at least once every six (6) months while Ampliphi Products are being developed
or Commercialized anywhere in the world, and shall be reflected in the minutes of such meetings.


 


4.4           Regulatory
Matters. At all times after the Effective Date, Ampliphi shall own and maintain, at its own cost, all regulatory filings and
regulatory approvals for Ampliphi Products that Ampliphi is developing or Commercializing pursuant to this Agreement. As such,
Ampliphi shall be responsible for reporting all adverse events related to such Ampliphi Products to the appropriate regulatory
authorities in the relevant countries, in accordance with the applicable laws and regulations of such countries. To the extent
that Intrexon will itself develop, or in collaboration with other third parties develop, Intrexon Materials outside of the Field,
Intrexon may request that Ampliphi and Intrexon establish and execute a separate safety data exchange agreement, which agreement
will address and govern the timely exchange of safety information generated by Ampliphi, Intrexon, and relevant third parties
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4.5           Diligence.


 


(a)          Ampliphi
shall use, and shall require its sublicensees to use, Diligent Efforts to develop and Commercialize Ampliphi Products.


 


(b)          Without
limiting the generality of the foregoing, Intrexon may, from time to time, notify Ampliphi that it believes it has identified
a Superior Therapy, and in such case Intrexon shall provide to Ampliphi its then-available information about such therapy and
reasonable written support for its conclusion that the therapy constitutes a Superior Therapy. Ampliphi shall have the following
obligations with respect to such proposed Superior Therapy: (i) within sixty (60) days after such notification, Ampliphi shall
prepare and deliver to the JSC for review and approval a development plan detailing how Ampliphi will pursue the Superior Therapy
(including a proposed budget), provided that if Amplphi reasonably requests supplemental information in support of the determination
that the proposed Ampliphi Product is a Superior Therapy, such period shall be extended to sixty (60) days after Ampliphi receives
such supplemental inforation; (ii) Ampliphi shall revise the development plan as directed by the JSC; and (iii) following approval
of the development plan by the JSC, Ampliphi shall use Diligent Efforts to pursue the development of the Superior Therapy under
the Bacteriophage Program in accordance with such development plan. If Ampliphi fails to comply with the foregoing obligations,
or if Ampliphi unreasonably exercises its casting vote at the JSC to either (x) prevent the approval of a development plan for
a Superior Therapy; (y) delay such approval more than sixty (60) days after delivery of the development plan to the JSC; or (z)
approve a development plan that is insufficient in view of the nature and magnitude of the opportunity presented by the Superior
Therapy, then Intrexon shall have the termination right set forth in Section 10.2(c) (subject to the limitation set forth therein).
For clarity, any dispute arising under this 4.5, including any dispute as to whether a proposed project constitutes a Superior
Therapy (as with any other dispute under this Agreement) shall be subject to dispute resolution in accordance with Article 11.


 


(c)          The
activities of Ampliphi’s Affiliates and any permitted sublicensees shall be attributed to Ampliphi for the purposes of evaluating
Ampliphi’s fulfillment of the obligations set forth in this Section 4.5.


 


4.6           Manufacturing.
Intrexon shall have the option and, in the event it so elects, shall use Diligent Efforts, to perform any manufacturing activities
in connection with the Bacteriophage Program that relate to the Intrexon Materials, including through the use of a suitable Third
Party contract manufacturer. To the extent that Intrexon so elects, Intrexon may request that Ampliphi and Intrexon establish
and execute a separate manufacturing and supply agreement, which agreement will establish and govern the production, quality assurance,
and regulatory activities associated with manufacture of Intrexon Materials. Except as provided in Section 4.1, any manufacturing
undertaken by Intrexon pursuant to the preceding sentence shall be performed in exchange for cash payments equal to Intrexon’s
Fully Loaded Cost in connection with such manufacturing, on terms to be negotiated by the Parties in good faith. In the event
that Intrexon does not manufacture Intrexon Materials or bulk quantities of other components of Ampliphi Products, then Intrexon
shall provide to Ampliphi or a contract manufacturer selected by Ampliphi and approved by Intrexon all Information Controlled
by Intrexon that is (a) related to the manufacturing of such Intrexon Materials or bulk qualities of other components of Ampliphi
Products for use in the Field and (b) reasonably necessary to enable Ampliphi or such contract manufacturer (as appropriate) for
the sole purpose of manufacturing such Intrexon Materials or bulk quantities of other components of Ampliphi Products. The costs
and expenses incurred by Intrexon in carrying out such transfer shall be borne by Intrexon. Any manufacturing Information transferred
hereunder to Ampliphi or its contract manufacturer shall not be further transferred to any Third Party, including any sublicensee
of Ampliphi, or any Ampliphi Affiliate without the prior written consent of Intrexon; provided, however, that Intrexon shall not
unreasonably withhold such consent if necessary to permit Ampliphi to switch manufacturers.


 




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4.7           Support
Services. The JSC will meet promptly following the Effective Date and establish a plan under which Intrexon will provide support
services to Ampliphi for the research and development of Ampliphi Products under the Bacteriophage Program, which initial plan
may be amended from time to time by the JSC. Ampliphi will compensate Intrexon for such support services with cash payments equal
to Intrexon’s Fully Loaded Cost in connection with such services. Additionally, from time to time, on an ongoing basis,
Ampliphi shall request, or Intrexon may propose, that Intrexon perform certain additional support services with respect to researching
and developing new Ampliphi Products or improving the manufacturing or processing methods for any existing Ampliphi Products.
To the extent that the Parties mutually agree that Intrexon should perform such additional services, the Parties shall negotiate
in good faith the terms under which services would be performed, it being understood that Intrexon would be compensated for such
services by cash payments equal to Intrexon’s Fully Loaded Cost in connection with such services.


 


4.8           Compliance
with Law. Each Party shall comply, and shall ensure that its Affiliates, (sub)licensees and Third Party contractors comply,
with all applicable laws, regulations, and guidelines applicable to the Bacteriophage Program, including without limitation those
relating to the transport, storage, and handling of Intrexon Materials and Ampliphi Products.


 


4.9           Trademarks
and Patent Marking. To the extent permitted by applicable law and regulations, Ampliphi shall ensure that the packaging, promotional
materials, and labeling for Ampliphi Products, as appropriate, shall carry the applicable Intrexon Trademark(s), subject to Ampliphi’s
reasonable approval of the size, position, and location thereof. Consistent with the U.S. patent laws, Ampliphi shall ensure that
Ampliphi Products, or their respective packaging or accompanying literature as appropriate, bear applicable and appropriate patent
markings for Intrexon Patent numbers. Ampliphi shall provide Intrexon with copies of any materials containing the Intrexon Trademarks
or patent markings prior to using or disseminating such materials, in order to obtain Intrexon’s approval thereof. Ampliphi’s
use of the Intrexon Trademarks and patent markings shall be subject to prior review and approval of the IPC. Ampliphi acknowledges
Intrexon’s sole ownership of the Intrexon Trademarks and agrees not to take any action inconsistent with such ownership.
Ampliphi covenants that it shall not use any trademark confusingly similar to any Intrexon Trademarks in connection with any products
(including any Ampliphi Product). From time to time during the Term, Intrexon shall have the right to obtain from Ampliphi samples
of Ampliphi Product sold by Ampliphi or its Affiliates or sublicensees, or other items which reflect public uses of the Intrexon
Trademarks or patent markings, for the purpose of inspecting the quality of such Ampliphi Products, the use of the Intrexon Trademarks,
or the accuracy of the patent markings. In the event that Intrexon inspects under this Section 4.9, Intrexon shall notify the
result of such inspection to Ampliphi in writing thereafter. Ampliphi shall comply with reasonable policies provided by Intrexon
from time-to-time to maintain the goodwill and value of the Intrexon Trademarks.


 




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ARTICLE
5


 


Compensation


 


5.1           Technology
Access Fee. In partial consideration for Ampliphi’s appointment as an exclusive channel collaborator in the Field and
the other rights granted to Ampliphi hereunder, Ampliphi shall issue to Intrexon, as an access fee for commercial license rights
to the Intrexon IP granted under Section 3.1, certain equity interests in Ampliphi (each, a “Technology Access Fee”)
in accordance with the terms and conditions of the Stock Issuance Agreement of even date herewith (collectively, the “Equity
Agreement”). As set forth in the Equity Agreement, the Technology Access Fee will be that number of shares of Ampliphi
common stock having a value equaling $3,000,000 (the number of shares to be calculated according to the terms of the Equity Agreement),
and such shares issuance will occur contemporaneously with the execution of this Agreement and the Equity Agreement. Provided
that all closing conditions for the Technology Access Fee Shares (as defined in the Equity Agreement) that are within the reasonable
control of Intrexon have been satisfied or waived, the issuance of the Technology Access Fee Shares (as set forth in the Equity
Agreement) is a condition subsequent to the effectiveness of this Agreement. 


 


5.2           Commercialization
Milestones. Upon the attainment of certain milestone events by an Ampliphi Product (whether such attainment is achieved by
Ampliphi, an Affiliate of Ampliphi, or sublicensee of Ampliphi), Ampliphi has agreed to make certain milestone payments to Intrexon
as generally set forth below in Sections 5.2(a) and 5.2(b), which payments (subject to the terms and conditions of the Equity
Agreement) shall be either in cash or in Ampliphi common stock at Ampliphi’s sole discretion.


 


(a)          Clinical
Milestone. Within thirty (30) days of the achievement of the Phase II Milestone Event (as defined in the Equity Agreement),
Ampliphi will pay to Intrexon, according to the timelines and procedures set forth in the Equity Agreement, one of the following:
(i) two and one-half million dollars ($2.5M) in cash, or (ii) the Phase II Milestone Shares (as defined in the Equity Agreement).


 


(b)          Approval
Milestone. Within thirty (30) days of the achievement of the Approval Milestone Event (as defined in the Equity Agreement),
Ampliphi will pay to Intrexon, according to the timelines and procedures set forth in the Equity Agreement, one of the following:
(i) five million dollars ($5M) in cash, or (ii) the Approval Milestone Shares (as defined in the Equity Agreement).


 


5.3           Equity
Agreement Controls. All issuances of equity interests to Intrexon shall be in accordance with the terms and conditions of
the Equity Agreement, which Equity Agreement shall control to the extent they may conflict with Sections 5.1 or 5.2 of this Agreement.


 




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5.4           Royalties.


 


(a)          No
later than thirty (30) days after each calendar quarter in which there are positive Net Sales arising from the sale of any Ampliphi
Product in the Field in the Territory, Ampliphi shall pay to Intrexon on an Ampliphi Product-by-Ampliphi Product basis a six percent
(6%) royalty on the first fifty million dollars ($50M) of annual Net Sales (cumulative worldwide for all Ampliphi Products), an
eight percent (8%) royalty on the portion of annual Net Sales (cumulative worldwide for all Ampliphi Products) exceeding fifty
million dollars ($50M) up to and including one hundred million dollars ($100M) of annual Net Sales (cumulative worldwide for all
Ampliphi Products), a nine percent (9%) royalty on the portion of annual Net Sales exceeding one hundred million dollars ($100M)
up to and including two-hundred million dollars ($200M) of annual Net Sales (cumulative worldwide for all Ampliphi Products),
and a ten percent (10%) royalty on the portion of annual Net Sales exceeding two-hundred million dollars ($200M) of annual Net
Sales (cumulative worldwide for all Ampliphi Products). Commencing with the Effective Date, in the event that are negative Net
Sales for a particular Ampliphi Product in any calendar quarter, neither Ampliphi nor Intrexon shall owe any payments hereunder
with respect to such Ampliphi Product.


 


(b)          
No later than thirty (30) days after each calendar quarter in which Ampliphi or any Ampliphi Affiliate receives Sublicensing
Revenue, Ampliphi shall pay to Intrexon fifty percent (50%) of such Sublicensing Revenue.


 


5.5           Method
of Payment. Payments due to Intrexon under this Agreement shall be paid in United States dollars by wire transfer to a bank
in the United States designated in writing by Intrexon. All references to “dollars” or “$” herein shall
refer to United States dollars.


 


5.6           Payment
Reports and Records Retention. Within thirty (30) days after the end of each calendar quarter during which Net Sales have
been generated, during which Sublicensing Revenue has been received, or during which a negative Net Sales has occurred, Ampliphi
shall deliver to Intrexon a written report that shall contain at a minimum for the applicable calendar quarter:


 


(a)          gross
sales of each Ampliphi Product on a country-by-country basis;


 


(b)          itemized
calculation of Net Sales, showing all applicable deductions;


 


(c)          itemized
calculation of any payment due under Section 5.4(b), including an identification of the Ampliphi Product involved, the quantity
so used, the prevailing market price being used by Ampliphi, and an indication of how Ampliphi determined such prevailing market
price;


 


(d)          itemized
calculation of Sublicensing Revenue;


 


(e)          the
amount of any negative Net Sales for the applicable calendar quarter;


 


(f)          the
amount of the payment (if any) due pursuant to each of Sections 5.4(a) and 5.4(b);


 


(g)          the
amount of taxes, if any, withheld to comply with any applicable law; and


 




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(h)          the
exchange rates used in any of the foregoing calculations.


 


For
three (3) years after each sale or other commercial use of Ampliphi Product, or after incurring any component item Ampliphi incorporated
into its calculation of Net Sales or Sublicensing Revenues, or otherwise impacting Ampliphi’s calculations with regard to
payments made to Intrexon in accord with Section 5.4(a) or 5.4(b), Ampliphi shall keep (and shall ensure that its Affiliates and,
if applicable, (sub)licensees shall keep) complete and accurate records of such sales, commercial use, or component item in sufficient
detail to confirm the accuracy of the payment calculations hereunder.


 


5.7           Audits.


 


(a)          Upon
the written request of Intrexon, Ampliphi shall permit an independent certified public accounting firm of internationally recognized
standing selected by Intrexon, and reasonably acceptable to Ampliphi, to have access to and to review, during normal business
hours and upon no less than thirty (30) days prior written notice, the applicable records of Ampliphi and its Affiliates to verify
the accuracy and timeliness of the reports and payments made by Ampliphi under this Agreement. Such review may cover the records
for sales made in any calendar year ending not more than three (3) years prior to the date of such request. The accounting firm
shall disclose to both Parties whether the royalty reports and/or know-how reports conform to the provisions of this Agreement
and/or US GAAP, as applicable, and the specific details concerning any discrepancies. Such audit may not be conducted more than
once in any calendar year.


 


(b)          If
such accounting firm concludes that additional amounts were owed during such period, Ampliphi shall pay additional amounts, with
interest from the date originally due as set forth in Section 5.9, within thirty (30) days of receipt of the accounting firm’s
written report. If the amount of the underpayment is greater than five percent (5%) of the total amount actually owed for the
period audited, then Ampliphi shall in addition reimburse Intrexon for all costs related to such audit; otherwise, Intrexon shall
pay all costs of the audit. In the event of overpayment, any amount of such overpayment shall be fully creditable against amounts
payable for the immediately succeeding calendar quarter(s).


 


(c)          Intrexon
shall (i) treat all information that it receives under this Section 5.7 in accordance with the confidentiality provisions of Article
7 and (ii) cause its accounting firm to enter into an acceptable confidentiality agreement with Ampliphi obligating such firm
to retain all such financial information in confidence pursuant to such confidentiality agreement, in each case except to the
extent necessary for Intrexon to enforce its rights under this Agreement.


 




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5.8           Taxes.
The Parties will cooperate in good faith to obtain the benefit of any relevant tax treaties to minimize as far as reasonably possible
any taxes which may be levied on any amounts payable hereunder. Ampliphi shall deduct or withhold from any payments any taxes
that it is required by applicable law to deduct or withhold. Notwithstanding the foregoing, if Intrexon is entitled under any
applicable tax treaty to a reduction of the rate of, or the elimination of, applicable withholding tax, it may deliver to Ampliphi
or the appropriate governmental authority (with the assistance of Ampliphi to the extent that this is reasonably required and
is expressly requested in writing) the prescribed forms necessary to reduce the applicable rate of withholding or to relieve Ampliphi
of its obligation to withhold tax, and Ampliphi shall apply the reduced rate of withholding tax, or dispense with withholding
tax, as the case may be, provided that Ampliphi has received evidence of Intrexon’s delivery of all applicable forms (and,
if necessary, its receipt of appropriate governmental authorization) at least fifteen (15) days prior to the time that the payment
is due. If, in accordance with the foregoing, Ampliphi withholds any amount, it shall make timely payment to the proper taxing
authority of the withheld amount, and send to Intrexon proof of such payment within forty-five (45) days following that latter
payment.


 


5.9           Late
Payments. Any amount owed by Ampliphi to Intrexon under this Agreement that is not paid within the applicable time period
set forth herein shall accrue interest at the lower of (a) two percent (2%) per month, compounded, or (b) the highest rate permitted
under applicable law.


 


ARTICLE
6


 


Intellectual
Property


 


6.1           Ownership.


 


(a)          Subject
to the license granted under Section 3.1, all rights in the Intrexon IP shall remain with Intrexon.


 


(b)          Ampliphi
and/or Intrexon may solely or jointly conceive, reduce to practice or develop discoveries, inventions, processes, techniques,
and other technology, whether or not patentable, in the course of performing the Bacteriophage Program (collectively “Inventions”).
Each Party shall promptly provide the other Party with a detailed written description of any such Inventions that relate to the
Field. Inventorship shall be determined in accordance with United States patent laws.


 


(c)          Intrexon
shall solely own all right, title and interest in all Inventions made with, using, or otherwise incorporating Intrexon Channel
Technology, together with all Patent rights and other intellectual property rights therein (the “Channel-Related Program
IP”). Ampliphi hereby assigns all of its right, title and interest in and to the Channel-Related Program IP to Intrexon.
Ampliphi agrees to execute such documents and perform such other acts as Intrexon may reasonably request to obtain, perfect and
enforce its rights to the Channel-Related Program IP and the assignment thereof.


 


(d)          Notwithstanding
anything to the contrary in this Agreement, any discovery, invention, process, technique, or other technology, whether or not
patentable, that is conceived, reduced to practice or developed by Ampliphi solely or jointly through the use of the Intrexon
Channel Technology, Intrexon IP, or Intrexon Materials in breach of the terms and conditions of this Agreement, together with
all patent rights and other intellectual property rights therein, shall be solely owned by Intrexon and shall be included in the
Channel-Related Program IP.


 




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(e)          All
Information regarding Channel-Related Program IP shall be Confidential Information of Intrexon. Ampliphi shall be under appropriate
written agreements with each of its employees, contractors, or agents working on the Bacteriophage Program, pursuant to which
such person shall grant all rights in the Inventions to Ampliphi (so that Ampliphi may convey certain of such rights to Intrexon,
as provided herein) and agree to protect all Confidential Information relating to the Bacteriophage Program.


 


6.2           Patent
Prosecution.


 


(a)          Intrexon
shall have the sole right, but not the obligation, to (i) conduct and control the filing, prosecution and maintenance of the Intrexon
Patents, and (ii) conduct and control the filing, prosecution, and maintenance of any applications for patent term extension and/or
supplementary protection certificates that may be available as a result of the regulatory approval of any Ampliphi Product. At
the reasonable request of Intrexon, Ampliphi shall cooperate with Intrexon in connection with such filing, prosecution, and maintenance,
at Intrexon’s expense. Under no circumstances shall Ampliphi (A) file, attempt to file, or assist anyone else in filing,
or attempting to file, any Patent application, either in the United States or elsewhere, that claims or uses or purports to claim
or use or relies for support upon an Invention owned by Intrexon, or (B) use, attempt to use, or assist anyone else in using or
attempting to use, the Intrexon Know-How, Intrexon Materials, or any Confidential Information of Intrexon to support the filing
of a Patent application, either in the United States or elsewhere, that contains claims directed to the Intrexon IP, Intrexon
Materials, or the Intrexon Channel Technology, or (C) without prior approval of the IPC, file, attempt to file, or assist anyone
else in filing, or attempting to file, any application for patent term extension or supplementary protection certificate, either
in the United States or elsewhere, that relies upon the regulatory approval of an Ampliphi Product.


 


(b)          Ampliphi
shall have the sole right, but not the obligation, to conduct and control the filing, prosecution and maintenance of any Patents
claiming Inventions that are owned by Ampliphi or its Affiliates and not assigned to Intrexon under Section 6.1(c) (“Ampliphi
Program Patents”). At the reasonable request of Ampliphi, Intrexon shall cooperate with Ampliphi in connection with
such filing, prosecution, and maintenance, at Ampliphi’s expense.


 


(c)          As
used in this Section, “Prosecuting Party” means Intrexon in the case of Intrexon Patents and Ampliphi in the
case of Ampliphi Program Patents. The Prosecuting Party shall be entitled to use patent counsel selected by it and reasonably
acceptable to the non-Prosecuting Party (including in-house patent counsel as well as outside patent counsel) for the prosecution
of the Intrexon Patents and Ampliphi Program Patents, as applicable. The Prosecuting Party shall:


 


(i)          regularly
provide the other Party in advance with reasonable information relating to the Prosecuting Party’s prosecution of Patents
hereunder, including by providing copies of substantive communications, notices and actions submitted to or received from the
relevant patent authorities and copies of drafts of filings and correspondence that the Prosecuting Party proposes to submit to
such patent authorities (it being understood that, to the extent that any such information is readily accessible to the public,
the Prosecuting Party may, in lieu of directly providing copies of such information to such other Party, provide such other Party
with sufficient information that will permit such other Party to access such information itself directly);


 




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(ii)         consider
in good faith and consult with the non-Prosecuting Party regarding its timely comments with respect to the same; provided, however,
that if, within fifteen (15) days after providing any documents to the non-Prosecuting Party for comment, the Prosecuting Party
does not receive any written communication from the non-Prosecuting Party indicating that it has or may have comments on such
document, the Prosecuting Party shall be entitled to assume that the non-Prosecuting Party has no comments thereon;


 


(iii)        consult
with the non-Prosecuting Party before taking any action that would reasonably be expected to have a material adverse impact on
the scope of claims within the Intrexon Patents and Ampliphi Program Patents, as applicable.


 


6.3           Infringement
of Patents by Third Parties.


 


(a)          Except
as expressly provided in the remainder of this Section 6.3, Intrexon shall have the sole right to take appropriate action against
any person or entity directly or indirectly infringing any Intrexon Patent (or asserting that an Intrexon Patent is invalid or
unenforceable) (collectively, “Infringement”), either by settlement or lawsuit or other appropriate action.


 


(b)          Notwithstanding
the foregoing, Ampliphi shall have the first right, but not the obligation, to take appropriate action to enforce Product-Specific
Program Patents against any Infringement that involves a commercially material amount of allegedly infringing activities in the
Field (“Field Infringement”), either by settlement or lawsuit or other appropriate action. If Ampliphi exercises
the foregoing right, Intrexon agrees to be named in any such action if required. If Ampliphi fails to take the appropriate steps
to enforce Product-Specific Program Patents against any Field Infringement within one hundred eighty (180) days of the date one
Party has provided notice to the other Party pursuant to Section 6.3(g) of such Field Infringement, then Intrexon shall have the
right (but not the obligation), at its own expense, to enforce Product-Specific Program Patents against such Field Infringement,
either by settlement or lawsuit or other appropriate action.


 


(c)          With
respect to any Field Infringement that cannot reasonably be abated through the enforcement of Product-Specific Program Patents
pursuant to Section 6.3(b) but can reasonably be abated through the enforcement of Intrexon Patent(s) (other than the Product-Specific
Program Patents), Intrexon shall be obligated to choose one of the following courses of action: (i) enforce one or more of the
applicable Intrexon Patent(s) in a commercially reasonable manner against such Field Infringement, or (ii) enable Ampliphi to
do so directly. To the extent Ampliphi shall be entitled to a share of the Recovery a set forth in Section 6.3(f), Intrexon and
Ampliphi shall bear the costs and expenses of such enforcement equally. The determination of which Intrexon Patent(s) to assert
shall be made by Intrexon in its sole discretion; provided, however, that Intrexon shall consult in good faith with Ampliphi on
such determination. For the avoidance of doubt, Intrexon has no obligations under this Agreement to enforce any Intrexon Patents
against, or otherwise abate, any Infringement that is not a Field Infringement.


 




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(d)          In
the event a Party pursues an action under this Section 6.3, the other Party shall reasonably cooperate with the enforcing Party
with respect to the investigation and prosecution of any alleged, threatened, or actual Infringement, at the enforcing Party’s
expense (except with respect to an action under Section 6.3(c), where all costs and expenses will be shared equally in accordance
with terms thereof).


 


(e)          Ampliphi
shall not settle or otherwise compromise any action under this Section 6.3 in a way that diminishes the rights or interests of
Intrexon outside the Field or adversely affects any Intrexon Patent without Intrexon’s prior written consent, which consent
shall not be unreasonably withheld. Intrexon shall not settle or otherwise compromise any action under this Section 6.3 in a way
that diminishes the rights or interests of Ampliphi in the Field or adversely affects any Intrexon Patent with respect to the
Field without Ampliphi’s prior written consent, which consent shall not be unreasonably withheld.


 


(f)          Except
as otherwise agreed to by the Parties in writing, any settlements, damages or other monetary awards recovered pursuant to a suit,
proceeding, or action brought pursuant to Section 6.3 will be allocated first to the costs and expenses of the Party controlling
such action, and second, to the costs and expenses (if any) of the other Party (to the extent not otherwise reimbursed), and any
remaining amounts (the “Recovery”) will be shared by the Parties as follows: In any action initiated by Intrexon
pursuant to Section 6.3(a) that does not involve Field Infringement, or in any action initiated by Intrexon pursuant to Section
6.3(b), Intrexon shall retain one hundred percent (100%) of any Recovery. In any action initiated by Ampliphi pursuant to Section
6.3(b), Ampliphi shall retain one hundred percent (100%) of any Recovery, but such Recovery shall be shared with Intrexon as Net
Sales. In any action initiated by Intrexon or Ampliphi pursuant to Section 6.3(c), the Parties shall share the Recovery equally,
and such Recovery shall not be deemed to constitute Sublicensing Revenue.


 


(g)          Ampliphi
shall promptly notify Intrexon in writing of any suspected, alleged, threatened, or actual Infringement of which it becomes aware,
and Intrexon shall promptly notify Ampliphi in writing of any suspected, alleged, threatened, or actual Field Infringement of
which it becomes aware.


 


ARTICLE
7


 


Confidentiality


 


7.1           Confidentiality.
Except to the extent expressly authorized by this Agreement or otherwise agreed in writing by the Parties, each Party agrees that
it shall keep confidential and shall not publish or otherwise disclose and shall not use for any purpose other than as provided
for in this Agreement any Confidential Information disclosed to it by the other Party pursuant to this Agreement, except to the
extent that the receiving Party can demonstrate by competent evidence that specific Confidential Information:


 


(a)          was
already known to the receiving Party and can be demonstrated by written records, other than under an obligation of confidentiality,
at the time of disclosure by the other Party;


 




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(b)          was
generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party;


 


(c)          became
generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or
omission of the receiving Party in breach of this Agreement;


 


(d)          was
disclosed to the receiving Party, other than under an obligation of confidentiality to a Third Party, by a Third Party who had
no obligation to the disclosing Party not to disclose such information to others; or


 


(e)          was
independently discovered or developed by the receiving Party without the use of Confidential Information belonging to the disclosing
Party, as documented by the receiving Party’s written records.


 


The
foregoing non-use and non-disclosure obligation shall continue (i) indefinitely, for all Confidential Information that qualifies
as a trade secret under applicable law; or (ii) for the Term of this Agreement and for seven (7) years thereafter, in all other
cases.


 


7.2           Authorized
Disclosure. Notwithstanding the limitations in this Article 7, either Party may disclose the Confidential Information belonging
to the other Party to the extent such disclosure is reasonably necessary in the following instances:


 


(a)          complying
with applicable laws or regulations or valid court orders, provided that the Party making such disclosure provides the
other Party with reasonable prior written notice of such request or demand for disclosure and makes a reasonable effort to obtain,
or to assist the other Party in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the
terms and conditions of this Agreement be used only for the purposes for which the law or regulation required, or for which the
order was issued;


 


(b)          to
regulatory authorities in order to seek or obtain approval to conduct regulatory trials, or to gain regulatory approval, of Ampliphi
Products or any products being developed by Intrexon or its other licensees and/or channel partners or collaborators, provided
that the Party making such disclosure (i) provides the other Party with reasonable opportunity to review any such disclosure in
advance and to suggest redactions or other means of limiting the disclosure of such other Party’s Confidential Information
and (ii) does not unreasonably reject any such suggestions;


 


(c)          disclosure
to investors and potential investors, acquirers, or merger candidates who agree to maintain the confidentiality of such information,
provided that such disclosure is used solely for the purpose of evaluating such investment, acquisition, or merger (as
the case may be);


 


(d)          disclosure
on a need-to-know basis to Affiliates, licensees, sublicensees, employees, consultants or agents (such as CROs) who agree to be
bound by obligations of confidentiality and non-use at least equivalent in scope to those set forth in this Article 7; and


 




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(e)          disclosure
of the terms of this Agreement by Intrexon to collaborators and other channel partners or collaborators who agree to be bound
by obligations of confidentiality and non-use at least equivalent in scope to those set forth in this Article 7.


 


7.3           Publicity;
Publications. The Parties agree that the public announcement of the execution of this Agreement shall be substantially in
the form of a press release and/or the filing of a Form 8-K by Ampliphi, which shall be mutually agreed to by the Parties. Each
Party will provide the other Party with the opportunity to review and comment, prior to submission or presentation, on external
reports, publications and presentations (e.g., press releases, reports to government agencies, abstracts, posters, manuscripts
and oral presentations) that refer to the Bacteriophage Program or programs that are approved by the JSC. For such reports, publications,
and presentations, the disclosing Party will provide the other Party at least fifteen (15) calendar days for review of the proposed
submission or presentation. In the case of a Form 8-K filing, such shall be provided to Intrexon by Ampliphi as soon as practicable
prior to filing. For reports and manuscripts, the disclosing Party will provide the other Party at least thirty (30) days for
review of the report or manuscript. The presenting Party will act in good faith to incorporate the comments of the other Party
and shall, in any event, redact any Confidential Information of the other Party and cooperate with the other Party to postpone
such submissions or presentations if necessary to provide the other Party with sufficient time to prepare and file any related
Patent applications before the submission or presentation occurs, as appropriate.


 


7.4           Terms
of the Agreement. Each Party shall treat the terms of this Agreement as the Confidential Information of other Party, subject
to the exceptions set forth in Section 7.2. Notwithstanding the foregoing, each Party acknowledges that the other Party may be
obligated to file a copy of this Agreement with the SEC, either as of the Effective Date or at some point during the Term. Each
Party shall be entitled to make such a required filing, provided that it requests confidential treatment of certain commercial
terms and sensitive technical terms hereof to the extent such confidential treatment is reasonably available to it. In the event
of any such filing, the filing Party shall provide the other Party with a copy of the Agreement marked to show provisions for
which the filing Party intends to seek confidential treatment and shall reasonably consider and incorporate the other Party’s
comments thereon to the extent consistent with the legal requirements governing redaction of information from material agreements
that must be publicly filed. The other Party shall promptly provide any such comments.


 


7.5           Proprietary
Information and Operational Audits.


 


(a)          For
the purpose of confirming compliance with the Field-limited licenses granted in Article 3, the diligence obligations of Article
4, and the confidentiality obligations under Article 7, Ampliphi acknowledges that Intrexon’s authorized representative(s),
during regular business hours may (i) examine and inspect Ampliphi’s facilities and (ii) inspect all data and work products
relating to this Agreement, subject to restrictions imposed by applicable laws. Any examination or inspection hereunder shall
require five (5) business days written notice from Intrexon to Ampliphi. Ampliphi will make itself and the pertinent employees
and/or agents available, on a reasonable basis, to Intrexon for the aforementioned compliance review.


 




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(b)          For
the purpose of confirming compliance with the diligence obligations of Section 4.5, and the confidentiality obligations under
Article 7, Intrexon acknowledges that Ampliphi authorized representative(s), during regular business hours may (i) examine and
inspect Intrexon’s facilities and (ii) inspect all data and work products relating to this Agreement. Any examination or
inspection hereunder shall require five (5) business days written notice from Ampliphi to Intrexon. Intrexon will make itself
and the pertinent employees and/or agents available, on a reasonable basis, to Ampliphi for the aforementioned compliance review.


 


(c)          In
view of the Intrexon Confidential Information, Intrexon Know-How, and Intrexon Materials transferred to Ampliphi hereunder, Intrexon
from time-to-time, but no more than quarterly, may request that Ampliphi confirm the status of the Intrexon Materials at Ampliphi
(i.e. how much used, how much shipped, to whom and any unused amounts destroyed (by whom, when) as well as any amounts returned
to Intrexon or destroyed). Within ten (10) business days of Ampliphi’s receipt of any such written request, Ampliphi shall
provide the written report to Intrexon.


 


7.6           Intrexon
Commitment. Intrexon shall use reasonable efforts to obtain an agreement with its other licensees and channel partners or
collaborators to enable Ampliphi to disclose confidential information of such licensees and channel partners or collaborators
to regulatory authorities in order to seek or obtain approval to conduct regulatory trials, or to gain regulatory approval of,
Ampliphi Products, in a manner consistent with the provisions of Section 7.2(b).


 


ARTICLE
8


 


Representations
And Warranties


 


8.1           Representations
and Warranties of Ampliphi. Ampliphi hereby represents and warrants to Intrexon that, as of the Effective Date:


 


(a)          Corporate
Power. Ampliphi is duly organized and validly existing under the laws of Washington and has full corporate power and authority
to enter into this Agreement and to carry out the provisions hereof.


 


(b)          Due
Authorization. Ampliphi is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder,
and the person executing this Agreement on Ampliphi’s behalf has been duly authorized to do so by all requisite corporate
action.


 


(c)          Binding
Agreement. This Agreement is a legal and valid obligation binding upon Ampliphi and enforceable in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other
similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of
equitable relief, including specific performance. The execution, delivery and performance of this Agreement by Ampliphi does not
conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound.
Ampliphi is aware of no action, suit or inquiry or investigation instituted by any governmental agency which questions or threatens
the validity of this Agreement.


 




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8.2           Representations
and Warranties of Intrexon. Intrexon hereby represents and warrants to Ampliphi that, as of the Effective Date:


 


(a)          Corporate
Power. Intrexon is duly organized and validly existing under the laws of Virginia and has full corporate power and authority
to enter into this Agreement and to carry out the provisions hereof.


 


(b)          Due
Authorization. Intrexon is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder,
and the person executing this Agreement on Intrexon’s behalf has been duly authorized to do so by all requisite corporate
action.


 


(c)          Binding
Agreement. This Agreement is a legal and valid obligation binding upon Intrexon and enforceable in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other
similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of
equitable relief, including specific performance. The execution, delivery and performance of this Agreement by Intrexon does not
conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound.
Intrexon is aware of no action, suit or inquiry or investigation instituted by any governmental agency which questions or threatens
the validity of this Agreement.


 


(d)          Additional
Intellectual Property Representations.


 


(i)          Intrexon
possesses sufficient rights to enable Intrexon to grant all rights and licenses it purports to grant to Ampliphi with respect
to the Intrexon Patents under this Agreement;


 


(ii)         The
Intrexon Patents existing as of the Effective Date constitute all of the Patents Controlled by Intrexon as of such date that are
necessary for the development, manufacture and Commercialization of Ampliphi Products;


 


(iii)        Intrexon
has not granted, and during the Term Intrexon will not grant, any right or license, to any Third Party under the Intrexon IP that
conflicts with the rights or licenses granted or to be granted to Ampliphi hereunder;


 


(iv)        There
is no pending litigation, and Intrexon has not received any written notice of any claims or litigation, seeking to invalidate
or otherwise challenge the Intrexon Patents or Intrexon’s rights therein;


 


(v)         None
of the Intrexon Patents is subject to any pending re-examination, opposition, interference or litigation proceedings;


 


(vi)        All
of the Intrexon Patents have been filed and prosecuted in accordance with all applicable laws and have been maintained, with all
applicable fees with respect thereto (to the extent such fees have come due) having been paid;


 




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(vii)       Intrexon
has entered into agreements with each of its current and former officers, employees and consultants involved in research and development
work, including development of Intrexon’s products and technology providing Intrexon, to the extent permitted by law, with
title and ownership to patents, patent applications, trade secrets and inventions conceived, developed, reduced to practice by
such person, solely or jointly with other of such persons, during the period of employment or contract by Intrexon (except where
the failure to have entered into such an agreement would not have a material adverse effect on the rights granted to Ampliphi
herein), and Intrexon is not aware that any of its employees or consultants is in material violation thereof;


 


(viii)      To
Intrexon’s knowledge, there is no infringement, misappropriation or violation by third parties of any Intrexon Channel Technology
or Intrexon IP in the Field;


 


(ix)         There
is no pending or, to Intrexon’s knowledge, threatened action, suit, proceeding or claim by others against Intrexon that
Intrexon infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of others in connection
with the use of the Intrexon Channel Technology or Intrexon IP, and Intrexon has not received any written notice of such claim;


 


(x)          To
Intrexon’s knowledge, no employee of Intrexon is the subject of any claim or proceeding involving a violation of any term
of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation
agreement, non-disclosure agreement or any restrictive covenant to or with a former employer (A) where the basis of such violation
relates to such employee’s employment with Intrexon or actions undertaken by the employee while employed with Intrexon and
(B) where such violation is relevant to the use of the Intrexon Channel Technology in the Field;


 


(xi)         None
of the Intrexon Patents owned by Intrexon or its Affiliates, and, to Intrexon’s knowledge, the Intrexon Patents licensed
to Intrexon or its Affiliates, have been adjudged invalid or unenforceable by a court of competent jurisdiction or applicable
government agency, in whole or in part, and there is no pending or, to Intrexon’s knowledge, threatened action, suit, proceeding
or claim by others challenging the validity or scope of any such Intrexon Patents; and


 




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(xii)        Except
as otherwise disclosed in writing to Ampliphi, Intrexon: (A) is in material compliance with all statutes, rules or regulations
applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling,
promotion, sale, offer for sale, storage, import, export or disposal of any product that is under development, manufactured or
distributed by Intrexon in the Field (“Applicable Laws”); (B) has not received any FDA Form 483, notice of
adverse finding, warning letter, untitled letter or other correspondence or notice from the United States Food and Drug Administration
(the “FDA”) or any other federal, state, local or foreign governmental or regulatory authority alleging or
asserting material noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations,
permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”), which
would, individually or in the aggregate, result in a material adverse effect; (C) possesses all material Authorizations necessary
for the operation of its business as described in the Field and such Authorizations are valid and in full force and effect and
Intrexon is not in material violation of any term of any such Authorizations; and (D) since January 1, 2011, (1) has not received
notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from the FDA or
any other federal, state, local or foreign governmental or regulatory authority or third party alleging that any product operation
or activity is in material violation of any Applicable Laws or Authorizations and has no knowledge that the FDA or any other federal,
state, local or foreign governmental or regulatory authority or third party is considering any such claim, litigation, arbitration,
action, suit investigation or proceeding; (2) has not received notice that the FDA or any other federal, state, local or foreign
governmental or regulatory authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any material
Authorizations and has no knowledge that the FDA or any other federal, state, local or foreign governmental or regulatory authority
is considering such action; (3) has filed, obtained, maintained or submitted all material reports, documents, forms, notices,
applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations
and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments
were materially complete and correct on the date filed (or were corrected or supplemented by a subsequent submission); and (4)
has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued,
any recall, market withdrawal or replacement, safety alert, post sale warning, letters to customers, or other notice or action
relating to the alleged lack of safety or efficacy of any product or any alleged product defect or violation and, to Intrexon’s
knowledge, no third party has initiated, conducted or intends to initiate any such notice or action.


 


except,
in each of (ix) through (xii), for any instances which would not, individually or in the aggregate, result in a material adverse
effect on the rights granted to Ampliphi hereunder or Intrexon’s ability to perform its obligations hereunder.


 


8.3           Warranty
Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS ARTICLE 8 OR IN THE EQUITY AGREEMENT, EACH PARTY HEREBY DISCLAIMS
ANY AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.


 




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ARTICLE
9


 


Indemnification


 


9.1           Indemnification
by Intrexon. Intrexon agrees to indemnify, hold harmless, and defend Ampliphi and its Affiliates and their respective directors,
officers, employees, and agents (collectively, the “Ampliphi Indemnitees”) from and against any and all liabilities,
damages, costs, expenses, or losses (including reasonable legal expenses and attorneys’ fees) (collectively, “Losses”)
resulting from any claims, suits, actions, demands, or other proceedings brought by a Third Party (collectively, “Claims”)
to the extent arising from (a) the gross negligence or willful misconduct of Intrexon or any of its Affiliates, or their respective
employees or agents, (b) the use, handling, storage or transport of Intrexon Materials by or on behalf of Intrexon or its Affiliates,
licensees (other than Ampliphi) or sublicensees; or (c) breach by Intrexon of any representation, warranty or covenant in this
Agreement. Notwithstanding the foregoing, Intrexon shall not have any obligation to indemnify the Ampliphi Indemnitees to the
extent that a Claim arises from (i) the gross negligence or willful misconduct of Ampliphi or any of its Affiliates, licensees,
or sublicensees, or their respective employees or agents; or (ii) a breach by Ampliphi of a representation, warranty, or covenant
of this Agreement.


 


9.2           Indemnification
by Ampliphi. Ampliphi agrees to indemnify, hold harmless, and defend Intrexon, its Affiliates and Third Security, and their
respective directors, officers, employees, and agents (and any Third Parties which have licensed to Intrexon intellectual property
rights within Intrexon IP on or prior to the Effective Date, to the extent required by the relevant upstream license agreement)
(collectively, the “Intrexon Indemnitees”) from and against any Losses resulting from Claims, to the extent
arising from any of the following: (a) the gross negligence or willful misconduct of Ampliphi or any of its Affiliates or their
respective employees or agents; (b) the use, handling, storage, or transport of Intrexon Materials by or on behalf of Ampliphi
or its Affiliates, licensees, or sublicensees; (c) breach by Ampliphi of any material representation, warranty or covenant in
this Agreement; or (d) the design, development, manufacture, regulatory approval, handling, storage, transport, distribution,
sale or other disposition of any Ampliphi Product by or on behalf of Ampliphi or its Affiliates, licensees, or sublicensees. Notwithstanding
the foregoing, Ampliphi shall not have any obligation to indemnify the Intrexon Indemnitees to the extent that a Claim arises
from (i) the gross negligence or willful misconduct of Intrexon or any of its Affiliates, or their respective employees or agents;
or (ii) a breach by Intrexon of a representation, warranty, or covenant of this Agreement.


 


9.3           Product
Liability Claims. Notwithstanding the provisions of Section 9.2, any Losses arising out of any Third Party claim, suit, action,
proceeding, liability or obligation involving any actual or alleged death or bodily injury arising out of or resulting from the
development, manufacture or Commercialization of any Ampliphi Products for use or sale in the Field, to the extent that such Losses
exceed the amount (if any) covered by the applicable Party’s product liability insurance (“Excess Product Liability
Costs”), shall be paid by Ampliphi, except to the extent such Losses arise out of any Third-Party Claim based on the
gross negligence or willful misconduct of a Party, its Affiliates, or its Affiliates’ sublicensees, or any of the respective
officers, directors, employees and agents of each of the foregoing entities, in the performance of obligations or exercise of
rights under this Agreement.


 


9.4           Control
of Defense. As a condition precedent to any indemnification obligations hereunder, any entity entitled to indemnification
under this Article 9 shall give written notice to the indemnifying Party of any Claims that may be subject to indemnification,
promptly after learning of such Claim. If such Claim falls within the scope of the indemnification obligations of this Article
9, then the indemnifying Party shall assume the defense of such Claim with counsel reasonably satisfactory to the indemnified
Party. The indemnified Party shall cooperate with the indemnifying Party in such defense. The indemnified Party may, at its option
and expense, be represented by counsel of its choice in any action or proceeding with respect to such Claim. The indemnifying
Party shall not be liable for any litigation costs or expenses incurred by the indemnified Party without the indemnifying Party’s
written consent, such consent not to be unreasonably withheld. The indemnifying Party shall not settle any such Claim if such
settlement (a) does not fully and unconditionally release the indemnified Party from all liability relating thereto or (b) adversely
impacts the exercise of the rights granted to the indemnified Party under this Agreement, unless the indemnified Party otherwise
agrees in writing.


 




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9.5           Insurance.
Immediately prior to, and during marketing of Ampliphi Products, Ampliphi shall maintain in effect and good standing a product
liability insurance policy issued by a reputable insurance company in amounts considered standard for the industry. Immediately
prior to, and during the conduct of any regulatory trials, Ampliphi shall maintain in effect and good standing a regulatory trials
liability insurance policy issued by a reputable insurance company in amounts considered standard for the industry. At Intrexon’s
reasonable request, Ampliphi shall provide Intrexon with all details regarding such policies, including without limitation copies
of the applicable liability insurance contracts. Ampliphi shall use reasonable efforts to include Intrexon as an additional insured
on any such policies.


 


ARTICLE
10


 


Term;
Termination


 


10.1         Term.
The term of this Agreement shall commence upon the Effective Date and shall continue until terminated pursuant to Section 10.2
or 10.3 (the “Term”).


 


10.2         Termination
for Material Breach; Termination Under Section 4.5(b)


 


(a)          Either
Party shall have the right to terminate this Agreement upon written notice to the other Party if the other Party commits any material
breach of this Agreement that such breaching Party fails to cure within sixty (60) days following written notice from the nonbreaching
Party specifying such breach; provided, however, that if Ampliphi commits any breach of the provisions of Section 4.10 of this
Agreement, Intrexon shall have the right to terminate this Agreement if Ampliphi fails after notice from Intrexon to cure such
breach within thirty (30) days following written notice thereof.


 


(b)          Intrexon
shall have the right to terminate this Agreement, at its sole discretion, if any necessary shareholder, member, exchange, and/or
board of director approvals of Ampliphi have not been obtained, and the Technology Access Fee Shares (as defined in the Equity
Agreement) have not been issued, within the time frames set forth in the Equity Agreement.


 


(c)          Intrexon
shall have the right to terminate this Agreement under the circumstances set forth in Section 4.5(b) upon written notice to Ampliphi,
such termination to become effective sixty (60) days following such written notice unless Ampliphi remedies the circumstances
giving rise to such termination within such sixty (60) day period.


 


(d)          
Intrexon shall have the right to terminate this Agreement should Ampliphi execute any purported assignment of this Agreement
contrary to the prohibitions in Section 12.8, such termination occurring upon Intrexon providing written notice to Ampliphi and
becoming effective immediately upon such written notice.


 




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10.3         Termination
by Ampliphi. Ampliphi shall have the right to voluntarily terminate this Agreement in its entirety upon ninety (90) days written
notice to Intrexon at any time.


 


10.4         Effect
of Termination. In the event of termination of this Agreement pursuant to Section 10.2 or Section 10.3, the following shall
apply:


 


(a)          Retained
Products. Ampliphi shall be permitted to continue the development and Commercialization in the Field of any product resulting
from the Bacteriophage Program that, at the time of termination, satisfies at least one of the following criteria (a “Retained
Product”):


 


(i)          the
particular product is an Ampliphi Product that is being sold by Ampliphi (or, as may be permitted under this Agreement, its Affiliates
and, if applicable, (sub)licensees) triggering royalty payments therefor under Section 5.4(a) or (b) of this Agreement,


 


(ii)         the
particular product is an Ampliphi Product that has received regulatory approval,


 


(iii)        the
particular product is an Ampliphi Product that is the subject of an application for regulatory approval in the Field that is pending
before the applicable regulatory authority;


 


(iv)        the
particular product is an Ampliphi Product that is the subject of an ongoing or completed phase 2 or phase 3 clinical trial in
the Field; or


 


(v)         in
the event of termination by Ampliphi pursuant to Section 10.2, the particular product is an Ampliphi Product that is the subject
of an effective investigational new drug application with the FDA, or is an Ampliphi Product for which Ampliphi has commenced
at least one JSC-authorized in vivo good laboratory practices animal study that is expected to be used for filing an investigational
new drug application for such Ampliphi Product.


 


Such
right to continue development and Commercialization shall be subject to Ampliphi’s full compliance with the payment provisions
in Article 5, a continuing obligation for Ampliphi to use in accord with Sections 4.5(a) and 4.5(c) Diligent Efforts to develop
and Commercialize any Retained Products, and all other provisions of this Agreement that survive termination.


 


(b)          Termination
of Licenses. Except as necessary for Ampliphi to continue to obtain regulatory approval for, develop, use, manufacture and
Commercialize the Retained Products in the Field as permitted by Section 10.4(a), all rights and licenses granted by Intrexon
to Ampliphi under this Agreement shall terminate and shall revert to Intrexon without further action by either Intrexon or Ampliphi.
Ampliphi’s license with respect to Retained Products shall be exclusive or non-exclusive, as the case may be, on the same
terms as set forth in Section 3.1.


 




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(c)          Reverted
Products. All Ampliphi Products other than the Retained Products shall be referred to herein as the “Reverted Products.”
Ampliphi shall immediately cease, and shall cause its Affiliates and, if applicable, (sub)licensees to immediately cease, all
development and Commercialization of the Reverted Products, and Ampliphi shall not use or practice, nor shall it cause or permit
any of its Affiliates or, if applicable, (sub)licensees to use or practice, directly or indirectly, any Intrexon IP with respect
to the Reverted Products. Ampliphi shall immediately discontinue making any representation regarding its status as a licensee
or channel collaborator of Intrexon with respect to the Reverted Products.


 


(d)          Intrexon
Materials. Ampliphi shall promptly return, or at Intrexon’s request, destroy, any Intrexon Materials in Ampliphi’s
possession or control at the time of termination other than any Intrexon Materials necessary for the continued development, regulatory
approval, use, manufacture and Commercialization of the Retained Products in the Field.


 


(e)          Licenses
to Intrexon. Ampliphi is automatically deemed to grant to Intrexon a worldwide, fully paid, royalty-free, exclusive (even
as to Ampliphi and its Affiliates), irrevocable, license (with full rights to sublicense) under the Ampliphi Termination IP, to
make, have made, import, use, offer for sale and sell Reverted Products and to use the Intrexon Channel Technology, the Intrexon
Materials, and/or the Intrexon IP in the Field, subject to any exclusive rights held by Ampliphi in Reverted Products pursuant
to Section 10.4(c). The Parties shall also take such actions and execute such other instruments and documents as may be reasonably
necessary to document such license to Intrexon.


 


(f)          Regulatory
Filings. Ampliphi shall promptly assign to Intrexon, and will provide full copies of, all regulatory approvals and regulatory
filings that relate specifically and solely to Reverted Products. Ampliphi shall also take such actions and execute such other
instruments, assignments and documents as may be necessary to effect the transfer of rights thereunder to Intrexon. To the extent
that there exist any regulatory approvals and regulatory filings that relate both to Reverted Products and other products, Ampliphi
shall provide copies of the portions of such regulatory filings that relate to Reverted Products and shall reasonably cooperate
to assist Intrexon in obtaining the benefits of such regulatory approvals with respect to the Reverted Products.


 


(g)          Data
Disclosure. Ampliphi shall provide to Intrexon copies of the relevant portions of all material reports and data, including
regulatory trial data and reports, obtained or generated by or on behalf of Ampliphi or its Affiliates to the extent that they
relate to Reverted Products, within sixty (60) days of such termination unless otherwise agreed, and Intrexon shall have the right
to use any such Information in developing and Commercializing Reverted Products and to license any Third Parties to do so.


 


(h)          Third
Party Licenses. At Intrexon’s request, Ampliphi shall promptly provide to Intrexon copies of all Third Party agreements
under which Ampliphi or its Affiliates obtained a license under Patents claiming inventions or know-how specific to or used or
incorporated into the development, manufacture and/or Commercialization of the Reverted Products. At Intrexon’s request
such that Intrexon may Commercialize the Reverted Products, Ampliphi shall promptly work with Intrexon to either, as appropriate
(i) assign to Intrexon the Third Party agreement(s), or (ii) grant a sublicense (with an appropriate scope) to Intrexon under
the Third Party agreement(s). Thereafter Intrexon shall be fully responsible for all obligations due for its actions under the
sublicensed or assigned Third Party agreements. Notwithstanding the above, if Intrexon does not wish to assume any financial or
other obligations associated with a particular Third Party agreement identified to Intrexon under this Section 10.4(h), then Intrexon
shall so notify Ampliphi and Ampliphi shall not make such assignment or grant such sublicense (or cause it to be made or granted).


 




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(i)          Remaining
Materials. At the request of Intrexon, Ampliphi shall transfer to Intrexon all quantities of Reverted Product (including final
products or work-in-process) in the possession of Ampliphi or its Affiliates. Ampliphi shall transfer to Intrexon all such quantities
of Reverted Products without charge, except that Intrexon shall pay the reasonable costs of shipping.


 


(j)          Third
Party Vendors. At Intrexon’s request, Ampliphi shall promptly provide to Intrexon copies of all agreements between Ampliphi
or its Affiliates and Third Party suppliers, vendors, or distributors that relate to the supply, sale, or distribution of Reverted
Products in the Territory. At Intrexon’s request, Ampliphi shall promptly: (i) with respect to such Third Party agreements
relating solely to the applicable Reverted Products and permitting assignment, immediately assign (or cause to be assigned), such
agreements to Intrexon, and (ii) with respect to all other such Third Party agreements, Ampliphi shall reasonably cooperate to
assist Intrexon in obtaining the benefits of such agreements. Ampliphi shall be liable for any costs associated with assigning
a Third Party agreement to Intrexon or otherwise obtaining the benefits of such agreement for Intrexon, to the extent such costs
are directly related to Ampliphi’s breach. For the avoidance of doubt, Intrexon shall have no obligation to assume any of
Ampliphi’s obligations under any Third Party agreement.


 


(k)          Commercialization.
Intrexon shall have the right to develop and Commercialize the Reverted Products itself or with one or more Third Parties, and
shall have the right, without obligation to Ampliphi, to take any such actions in connection with such activities as Intrexon
(or its designee), at its discretion, deems appropriate.


 


(l)          Confidential
Information. Each Party shall promptly return, or at the other Party’s request destroy, any Confidential Information
of the other Party in such Party’s possession or control at the time of termination; provided, however, that each Party
shall be permitted to retain (i) a single copy of each item of Confidential Information of the other Party in its confidential
legal files for the sole purpose of monitoring and enforcing its compliance with Article 7, (ii) Confidential Information of the
other Party that is maintained as archive copies on the recipient Party’s disaster recovery and/or information technology
backup systems, or (iii) Confidential Information of the other Party necessary to exercise such Party’s rights in Retained
Products (in the case of Ampliphi) or Reverted Products (in the case of Intrexon). The recipient of Confidential Information shall
continue to be bound by the terms and conditions of this Agreement with respect to any such Confidential Information retained
in accordance with this Section 10.4(l).


 




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10.5         Surviving
Obligations. Termination or expiration of this Agreement shall not affect any rights of either Party arising out of any event
or occurrence prior to termination, including, without limitation, any obligation of Ampliphi to pay any amount which became due
and payable under the terms and conditions of this Agreement prior to expiration or such termination. The following portions of
this Agreement shall survive termination or expiration of this Agreement: Sections 3.1 (as applicable with respect to 10.4(b)),
5.6 through 5.8, 6.1, 6.2 (with subsection (c) surviving only to the extent relating to Intrexon Patents that are relevant to
Retained Products that, to Intrexon’s knowledge, are being developed or Commercialized at such time, if any), 7.1, 7.2,
7.4, 7.5, 10.4, and 10.5; Articles 9, 11, and 12; and any relevant definitions in Article 1. Further, Article 7 and Sections 4.5(a),
4.5(c), 5.2 through 5.9, and 9.5 will survive termination of this Agreement to the extent there are applicable Retained Products.


 


ARTICLE
11


 


Dispute
Resolution


 


11.1         Disputes.
It is the objective of the Parties to establish procedures to facilitate the resolution of disputes arising under this Agreement
in an expedient manner by mutual cooperation and without resort to litigation. In the event of any disputes, controversies or
differences which may arise between the Parties out of or in relation to or in connection with this Agreement, including, without
limitation, any alleged failure to perform, or breach, of this Agreement, or any issue relating to the interpretation or application
of this Agreement, then upon the request of either Party by written notice, the Parties agree to meet and discuss in good faith
a possible resolution thereof, which good faith efforts shall include at least one in-person meeting between the Executive Officers
of each Party. If the matter is not resolved within thirty (30) days following the written request for discussions, either Party
may then invoke the provisions of Section 11.2.


 


11.2         Arbitration.
Any dispute, controversy, difference or claim which may arise between the Parties, out of or in relation to or in connection with
this Agreement (including, without limitation, arising out of or relating to the validity, construction, interpretation, enforceability,
breach, performance, application or termination of this Agreement) that is not resolved pursuant to Section 11.1 shall, subject
to Section 11.10, be settled by binding “baseball arbitration” as follows. Either Party, following the end of the
thirty (30) day period referenced in Section 11.1, may refer such issue to arbitration by submitting a written notice of such
request to the other Party, with the arbitration to be held in the state where the other Party’s principal office is located
(or some other place as may be mutually agreed by the Parties). Promptly following receipt of such notice, the Parties shall meet
and discuss in good faith and seek to agree on an arbitrator to resolve the issue, which arbitrator shall be neutral and independent
of both Parties and all of their respective Affiliates, shall have significant experience and expertise in licensing and partnering
agreements in the pharmaceutical and biotechnology industries, and shall have some experience in mediating or arbitrating issues
relating to such agreements. If the Parties cannot agree on a single arbitrator within fifteen (15) days of request by a Party
for arbitration, then each Party shall select an arbitrator meeting the foregoing criteria and the two (2) arbitrators so selected
shall select within ten (10) days of their appointment a third arbitrator meeting the foregoing criteria. Within fifteen (15)
days after an arbitrator(s) is selected (in the case of the three-person panel, when the third arbitrator is selected), each Party
will deliver to both the arbitrator(s) and the other Party a detailed written proposal setting forth its proposed terms for the
resolution for the matter at issue (the “Proposed Terms” of the Party) and a memorandum (the “Support
Memorandum”) in support thereof. The Parties will also provide the arbitrator(s) a copy of this Agreement, as it may
be amended at such time. Within fifteen (15) days after receipt of the other Party’s Proposed Terms and Support Memorandum,
each Party may submit to the arbitrator(s) (with a copy to the other Party) a response to the other Party’s Support Memorandum.
Neither Party may have any other communications (either written or oral) with the arbitrator(s) other than for the sole purpose
of engaging the arbitrator or as expressly permitted in this Section 11.2; provided that, the arbitrator(s) may convene a hearing
if the arbitrator(s) so chooses to ask questions of the Parties and hear oral argument and discussion regarding each Party’s
Proposed Terms. Within sixty (60) days after the arbitrator’s appointment, the arbitrator(s) will select one of the two
Proposed Terms (without modification) provided by the Parties that he or she believes is most consistent with the intention underlying
and agreed principles set forth in this Agreement. The decision of the arbitrator(s) shall be final, binding, and unappealable.
For clarity, the arbitrator(s) must select as the only method to resolve the matter at issue one of the two sets of Proposed Terms,
and may not combine elements of both Proposed Terms or award any other relief or take any other action.


 




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11.3         Governing
Law. This Agreement shall be governed by and construed under the substantive laws of the State of New York, excluding any
conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the
substantive law of another jurisdiction.


 


11.4         Award.
Any award to be paid by one Party to the other Party as determined by the arbitrator(s) as set forth above under Section 11.2
shall be promptly paid in United States dollars free of any tax, deduction or offset; and any costs, fees or taxes incident to
enforcing the award shall, to the maximum extent permitted by law, be charged against the losing Party. Each Party agrees to abide
by the award rendered in any arbitration conducted pursuant to this Article 11, and agrees that, subject to the United States
Federal Arbitration Act, 9 U.S.C. §§ 1-16, judgment may be entered upon the final award in any United States District
Court located in New York and that other courts may award full faith and credit to such judgment in order to enforce such award.
The award shall include interest from the date of any damages incurred for breach of the Agreement, and from the date of the award
until paid in full, at a rate fixed by the arbitrator(s). With respect to money damages, nothing contained herein shall be construed
to permit the arbitrator(s) or any court or any other forum to award consequential, incidental, special, punitive or exemplary
damages. By entering into this agreement to arbitrate, the Parties expressly waive any claim for consequential, incidental, special,
punitive or exemplary damages. The only damages recoverable under this Agreement are direct compensatory damages.


 


11.5         Costs.
Each Party shall bear its own legal fees. The arbitrator(s) shall assess his or her costs, fees and expenses against the Party
losing the arbitration.


 


11.6         Injunctive
Relief. Nothing in this Article 11 will preclude either Party from seeking equitable relief or interim or provisional relief
from a court of competent jurisdiction, including a temporary restraining order, preliminary injunction or other interim equitable
relief, concerning a dispute either prior to or during any arbitration if necessary to protect the interests of such Party or
to preserve the status quo pending the arbitration proceeding. Specifically, the Parties agree that a material breach by either
Party of its obligations in Section 3.5 or Article 7 of this Agreement may cause irreparable harm to the other Party, for which
damages may not be an adequate remedy. Therefore, in addition to its rights and remedies otherwise available at law, including,
without limitation, the recovery of damages for breach of this Agreement, upon an adequate showing of material breach of such
Section 3.5 or Article 7, and without further proof of irreparable harm other than this acknowledgement, such non-breaching Party
shall be entitled to seek (a) immediate equitable relief, specifically including, but not limited to, both interim and permanent
restraining orders and injunctions, without bond, and (b) such other and further equitable relief as the court may deem proper
under the circumstances. For the avoidance of doubt, nothing in this Section 11.6 shall otherwise limit a breaching Party’s
opportunity to cure a material breach as permitted in accordance with Section 10.2.


 




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11.7         Confidentiality.
The arbitration proceeding shall be confidential and the arbitrator(s) shall issue appropriate protective orders to safeguard
each Party’s Confidential Information. Except as required by law, no Party shall make (or instruct the arbitrator(s) to
make) any public announcement with respect to the proceedings or decision of the arbitrator(s) without prior written consent of
the other Party. The existence of any dispute submitted to arbitration, and the award, shall be kept in confidence by the Parties
and the arbitrator(s), except as required in connection with the enforcement of such award or as otherwise required by applicable
law.


 


11.8         Survivability.
Any duty to arbitrate under this Agreement shall remain in effect and be enforceable after termination of this Agreement for any
reason.


 


11.9         Jurisdiction.
For the purposes of this Article 11, the Parties acknowledge their diversity and agree to accept the jurisdiction of any United
States District Court located in New York for the purposes of enforcing or appealing any awards entered pursuant to this Article
11 and for enforcing the agreements reflected in this Article 11 and agree not to commence any action, suit or proceeding related
thereto except in such courts.


 


11.10         Patent
Disputes. Notwithstanding any other provisions of this Article 11, and subject to the provisions of Section 6.2, any dispute,
controversy or claim relating to the scope, validity, enforceability or infringement of any Intrexon Patents shall be submitted
to a court of competent jurisdiction in the country in which such Patent was filed or granted.


 


ARTICLE
12


 


General
Provisions


 


12.1         Use
of Name. No right, express or implied, is granted by this Agreement to either Party to use in any manner the name of the other
or any other trade name or trademark of the other in connection with the performance of this Agreement, except that (a) either
Party may use the name of the other Party as required by regulations and in press releases accompanying quarterly and annual earnings
reports approved by the issuer’s Board of Directors, and (b) Ampliphi may use the Intrexon Trademarks in accord with licenses
and restrictions set forth herein.


 




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12.2         LIMITATION
OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT
DAMAGES ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS PARAGRAPH IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS
OF ANY PARTY UNDER ARTICLE 9, OR DAMAGES AVAILABLE FOR BREACHES OF THE OBLIGATIONS SET FORTH IN ARTICLE 7.


 


12.3         Independent
Parties. The Parties are not employees or legal representatives of the other Party for any purpose. Neither Party shall have
the authority to enter into any contracts in the name of or on behalf of the other Party. This Agreement shall not constitute,
create, or in any way be interpreted as a joint venture, partnership, or business organization of any kind.


 





12.4        Notice.
All notices, including notices of address change, required or permitted to be given under this Agreement shall be in writing and
deemed to have been given when delivered if personally delivered or sent by facsimile (provided that the party providing such
notice promptly confirms receipt of such transmission with the other party by telephone), on the business day after dispatch if
sent by a nationally-recognized overnight courier and on the third business day following the date of mailing if sent by certified
mail, postage prepaid, return receipt requested. All such communications shall be sent to the address or facsimile number set
forth below (or any updated addresses or facsimile number communicated to the other Party in writing):










 


	If to Intrexon:	Intrexon Corporation
	 	20358 Seneca Meadows Parkway
	 	Germantown, MD  20876
	 	Attention: President, Human Therapeutics Division    
	 	Fax:  (301) 556-9901
	 	 
	with a copy to:	Intrexon Corporation
	 	20358 Seneca Meadows Parkway
	 	Germantown, MD  20876
	 	Attention:  Legal Department
	 	Fax:  (301) 556-9902
	 	 
	If to Ampliphi:	Ampliphi Biosciences
	 	800 E. Leigh St., Suite 54
	 	Richmond, VA  23219
	 	Attention:  Chief Executive Officer
	 	Fax:  ___


 


12.5         Severability.
In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof
and the remaining provisions of this Agreement will remain in full force and effect.


 


12.6         Waiver.
Any waiver (express or implied) by either Party of any breach of this Agreement shall not constitute a waiver of any other or
subsequent breach.


 




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12.7         Entire
Agreement; Amendment. This Agreement, including any exhibits attached hereto, constitute the entire, final, complete and exclusive
agreement between the Parties and supersede all previous agreements or representations, written or oral, with respect to the subject
matter of this Agreement (including any prior confidentiality agreement between the Parties). All information of Intrexon or Ampliphi
to be kept confidential by the other Party under any prior confidentiality agreement, as of the Effective Date, shall be maintained
as Confidential Information by such other Party under the obligations set forth in Article 7 of this Agreement. This Agreement
may not be modified or amended except in a writing signed by a duly authorized representative of each Party.


 


12.8         Non-assignability;
Binding on Successors. Any attempted assignment of the rights or delegation of the obligations under this Agreement shall
be void without the prior written consent of the non-assigning or non-delegating Party; provided, however, that either Party may
assign its rights or delegate its obligations under this Agreement without such consent (a) to an Affiliate of such Party or (b)
to its successor in interest in connection with any merger, acquisition, consolidation, corporate reorganization, or similar transaction,
or sale of all or substantially all of its assets, provided that such assignee agrees in writing to assume and be bound by the
assignor’s obligations under this Agreement. This Agreement shall be binding upon, and inure to the benefit of, the successors,
executors, heirs, representatives, administrators and permitted assigns of the Parties. Notwithstanding the foregoing, in the
event that either Party assigns this Agreement to its successor in interest by way of merger, acquisition, consolidation, corporate
reorganization, or similar transaction, or sale of all or substantially all of its assets (whether this Agreement is actually
assigned or is assumed by such successor in interest or its affiliate by operation of law (e.g., in the context of a reverse triangular
merger)), the intellectual property rights of such successor in interest or any of its Affiliates other than those licensed in
this Agreement shall be automatically excluded from the rights licensed to the other Party under this Agreement.


 


12.9         Force
Majeure. Neither Party shall be liable to the other for its failure to perform any of its obligations under this Agreement,
except for payment obligations, during any period in which such performance is delayed because rendered impracticable or impossible
due to circumstances beyond its reasonable control, including without limitation earthquakes, governmental regulation, fire, flood,
labor difficulties, civil disorder, acts of terrorism and acts of God, provided that the Party experiencing the delay promptly
notifies the other Party of the delay.


 


12.10       No
Other Licenses. Neither Party grants to the other Party any rights or licenses in or to any intellectual property, whether
by implication, estoppel, or otherwise, except to the extent expressly provided for under this Agreement.


 


12.11       Non-Solicitation.
During the Term and for a period of one (1) year following the end of the Term, neither Ampliphi nor Intrexon may directly or
indirectly solicit in order to offer to employ, engage in any discussion regarding employment with, or hire any employee of the
other Party or an individual who was employed by the other party within one (1) year prior to such solicitation, discussion, or
hire, without the prior approval of such other Party. General employment solicitations or advertisements shall not be considered
direct or indirect solicitations, and are not prohibited under this Agreement.


 




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12.12         Legal
Compliance. The Parties shall review in good faith and cooperate in taking such actions to ensure compliance of this Agreement
with all applicable laws.


 


12.13         Counterparts.
This Agreement may be executed in any number of counterparts (including by facsimile, PDF, or other means of electronic communication),
each of which taken together will constitute one and the same instrument, and any of the Parties hereto may execute this Agreement
by signing any such counterpart.


 


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EXECUTION
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In
Witness Whereof, the Parties hereto have duly executed this
Exclusive Channel Collaboration Agreement.


 


	Intrexon
    Corporation	 	Ampliphi
    Biosciences Corporation
	 	 	 	 
	By:	 	 	By:	 
	 	 	 	 
	Name:	Jayson M. Rieger, Ph.D.	 	Name: _________
	 	 	 	 
	Title:	President of Human Therapeutics Division
    and Senior Vice President	 	Title:   ______________________


 


SIGNATURE
PAGE FOR EXCLUSIVE CHANNEL COLLABORATION AGREEMENT


 




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