Counsel, Secretary and
Government Relations
If to Company:
Certainty Therapeutics, Inc.
3150 Almaden Expressway,
Suite 250, San Jose, California 95118
Attn:
Amit Kumar, Chief Executive Officer
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10.5
ENTIRE AGREEMENT.
THIS AGREEMENT, TOGETHER WITH THE
EQUITY DOCUMENTS, EMBODIES THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER HEREOF AND SUPERSEDES THE OPTION AND ALL PRIOR
UNDERSTANDINGS AND AGREEMENTS, WHETHER WRITTEN OR ORAL.
THIS AGREEMENT MAY NOT
BE VARIED EXCEPT BY A WRITTEN DOCUMENT SIGNED BY DULY AUTHORIZED REPRESENTATIVES
OF BOTH PARTIES.
10.6
SEVERABILITY.
ANY OF THE PROVISIONS OF THIS AGREEMENT
WHICH ARE DETERMINED TO BE INVALID OR UNENFORCEABLE IN ANY JURISDICTION SHALL BE
INEFFECTIVE TO THE EXTENT OF SUCH INVALIDITY OR UNENFORCEABILITY IN SUCH
JURISDICTION, WITHOUT RENDERING INVALID OR UNENFORCEABLE THE REMAINING
PROVISIONS HEREOF OR AFFECTING THE VALIDITY OR UNENFORCEABILITY OF ANY OF THE
TERMS OF THIS AGREEMENT IN ANY OTHER JURISDICTION.
10.7
HEADINGS; INTERPRETATION.
ANY ARTICLE AND SECTION
HEADINGS AND CAPTIONS USED IN THIS AGREEMENT ARE FOR CONVENIENCE OF REFERENCE
ONLY AND SHALL NOT AFFECT ITS CONSTRUCTION OR INTERPRETATION. THE WORDS
"INCLUDE" OR "INCLUDING" SHALL BE CONSTRUED AS INCORPORATING, ALSO, "BUT NOT
LIMITED TO" OR "WITHOUT LIMITATION."
THE PARTIES ACKNOWLEDGE THAT EACH PARTY
HAS READ AND NEGOTIATED THE LANGUAGE USED IN THIS AGREEMENT.
BECAUSE ALL
PARTIES PARTICIPATED IN NEGOTIATING AND DRAFTING THIS AGREEMENT, NO RULE OF
CONSTRUCTION SHALL APPLY TO THIS AGREEMENT WHICH CONSTRUES AMBIGUOUS LANGUAGE IN
FAVOR OF OR AGAINST ANY PARTY BY REASON OF THAT PARTY'S ROLE IN DRAFTING THIS
AGREEMENT.
10.8
NO THIRD PARTY BENEFITS.
NOTHING IN THIS AGREEMENT,
EXPRESS OR IMPLIED, IS INTENDED TO CONFER ON ANY PERSON OTHER THAN THE PARTIES
HERETO OR THEIR PERMITTED ASSIGNS, ANY BENEFITS, RIGHTS OR REMEDIES.
10.9
DISPUTES; GOVERNING LAW; JURISDICTION; ARBITRATION.
10.9.1.
IN THE CASE OF ANY DISPUTE, CLAIM, QUESTION OR DISAGREEMENT ARISING OUT
OF OR RELATING TO THIS AGREEMENT, OR THE PARTIES' ACTIVITIES HEREUNDER,
INCLUDING ANY QUESTION REGARDING THE EXISTENCE, VALIDITY OR TERMINATION OF THIS
AGREEMENT, THE PARTIES SHALL USE ALL REASONABLE EFFORTS TO SETTLE SUCH DISPUTE,
CLAIM, QUESTION OR DISAGREEMENT BY AMICABLE AGREEMENT, INCLUDING BY ESCALATION
TO THE PRESIDENT AND CHIEF EXECUTIVE OFFICER OF WISTAR AND CHIEF EXECUTIVE
OFFICER OF COMPANY, IF NECESSARY, PRIOR TO COMMENCEMENT OF ARBITRATION.
10.9.2.
THIS AGREEMENT SHALL BE CONSTRUED, GOVERNED, INTERPRETED AND APPLIED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT GIVING
EFFECT TO CONFLICT OF LAW PRINCIPLES.
ANY CONTROVERSY OR CLAIM ARISING OUT OF
OR RELATING TO THIS CONTRACT, OR THE BREACH THEREOF, SHALL BE SETTLED BY
ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE
WITH ITS COMMERCIAL ARBITRATION RULES, AND JUDGMENT ON THE AWARD RENDERED BY
THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
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10.10
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER
OF COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AS AGAINST THE PARTY
WHOSE SIGNATURE APPEARS THEREON, BUT ALL OF WHICH TAKEN TOGETHER SHALL
CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
35
IN WITNESS WHEREOF, the parties hereto have duly executed