Exhibit 4.4

 

REGISTRATION RIGHTS AGREEMENT

 

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of the [DATE]¹, 2021 by and among Olink Holding AB (publ), Reg. No. 559189-7755, a limited liability company incorporated under the laws of Sweden, or any of its assignees or successors (the “Company”), Knilo InvestCo AB, Reg. No. 559189-7748 , or any of its assignees or successors (the “Summa Investor”), each of the shareholders listed on ‎Schedule B hereto (each an “Existing Shareholder”, collectively, the “Existing Shareholders” and, together with the Summa Investor(s), the “Existing Investors”), and any Person that becomes a party hereto pursuant to Section ‎2.15.

 

WHEREAS, in connection with the IPO (as defined below), the Existing Investors and the Company intend to enter into a new shareholder agreement (the “New Shareholder Agreement”).

 

WHEREAS, the Existing Investors and the Company wish to provide for certain rights that [shall become effective immediately] and certain rights that shall become effective following the closing of the IPO, in each case, as set forth herein.

 

NOW, THEREFORE, the Existing Investors hereby agree that this Agreement shall become effective upon the effectiveness of the New Shareholder Agreement as set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises hereinafter set forth, the Parties agree as follows:

 

1.              Certain Definitions. In addition to the terms defined above, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below.

 

“Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including without limitation any general partner, managing member or manager, officer or director of such Person or any fund now or hereafter existing that is controlled by one or more general partners or managing members or managers of, or shares the same management company with, such Person. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise.

 

“American Depositary Shares,” or “ADSs” means those certain American Depositary Shares issued pursuant to a deposit agreement by and among the Company, the depositary, and the owners and holders from time to time of American Depositary Shares issued thereunder, as such agreement may from time to time be amended, each initially representing the right to receive Common Share(s) deposited under the deposit agreement.

 

“Board of Directors” means the board of directors of the Company.

 

“Business Day” means any day that is not a Saturday, a Sunday or any other day on which banks are required or authorized by law to be closed in The City of New York and in Stockholm, Sweden.

 

“Commission” means the United States Securities and Exchange Commission, or any other federal agency at the time administering the Securities Act and the Exchange Act.

 

“Common Shares” means the Company’s common shares of any class, SEK [0.10] quota value per share (as the same may change from time to time), together with any securities issued in respect thereof in any recapitalization or reorganization of the Company, or similar transaction.

 

 

¹ Pricing Date.

 

 

“Disclosure Package” means, with respect to any offering of securities, (i) the preliminary prospectus, (ii) each free writing prospectus (as defined in Rule 405 promulgated under the Securities Act) and (iii) all other information, in each case, that is deemed, under Rule 159 promulgated under the Securities Act, to have been conveyed to purchasers of securities at the time of sale of such securities (including a contract of sale).

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any similar successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.

 

“FINRA” means the Financial Industry Regulatory Authority, Inc.

 

“Foreign Private Issuer” means a “foreign private issuer” within the meaning of Rule 405 of the Securities Act.

 

“Form F-1” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the Commission that is filed by the Company with the Commission for registration of Common Shares for an initial public offering and certain other registrations for which Form F-3 may not be used and that is available to certain Foreign Private Issuers.

 

“Form S-1” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the Commission that is filed by the Company with the Commission for registration of Common Shares for an initial public offering and certain other registrations for which Form S-3 may not be used and that is available to U.S. domestic issuers.

 

“Form F-3” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the Commission that permits incorporation of substantial information by reference to other documents filed by the Company with the Commission and that is available to certain Foreign Private Issuers that have met prior reporting requirements.

 

“Form S-3” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the Commission that permits incorporation of substantial information by reference to other documents filed by the Company with the Commission and that is available to certain U.S. domestic issuers that have met prior reporting requirements.

 

“Holder” means any holder of Registrable Securities who is a party to this Agreement or a transferee of a party to this Agreement in which the transferor’s rights under this Agreement are assigned in accordance with the provisions herein.

 

“IPO” means the initial public offering of the Company’s American Depositary Shares, each of which represents [●] Common Shares pursuant to an effective registration statement under the Securities Act.

 

“Long-Form Registration Statement” means a registration statement on Form F-1, Form S-1 or any successor forms thereto.

 

“Maximum Amount of Shares” means, for each Holder (other than the Summa Investor(s)), such number of Common Shares as equal to twenty percent (20%) of the total Common Shares held by such Holder immediately prior to the consummation of the IPO (including any Common Shares such Holder sold in the IPO, if any).

 

 

“Person” means an individual, a corporation, a partnership, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.

 

“Registrable Securities” means (i) Common Shares outstanding on the date hereof and held by the Holders, (ii) other Common Shares acquired from the Company from time to time by a Summa Investor, (iii) any Common Shares issued and issuable with respect to any such shares described in the foregoing clauses (i) and (ii) by way of a conversion or exchange thereof, share dividend or share split or in connection with a combination of shares, recapitalization, merger, consolidation, conversion, re-designation or other reorganization, and (iv) any ADSs in respect of any securities described in clause (i) to (iii); provided, however, that the following shall not be deemed Registrable Securities: (A) any Common Shares after they have been sold in a registered sale pursuant to an effective registration statement under the Securities Act or sold pursuant to Rule 144 thereunder, and (B) any Common Shares sold in a transaction or transferred in an in-kind distribution by a Summa Investor that is an investment fund to any of its direct or indirect partners or members or their affiliates, in each case, in which the transferor’s rights under this Agreement are not assigned in accordance with the requirements of Section ‎2.14 hereof.

 

“Registration Statement” means a Long-Form Registration Statement or a Short-Form Registration Statement.

 

“Rule 144” means Rule 144 promulgated by the Commission under the Securities Act (or any comparable successor rules).

 

“Restrictive Period” means the twelve (12)-month period immediately following the consummation of the IPO.

 

“Securities Act” means the Securities Act of 1933, as amended from time to time, or any similar successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.

 

“Selling Expenses” means all underwriting discounts, selling commissions, and share transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements of the selling Holder counsel borne and paid by the Company as provided in Section ‎2.10.

 

“Short-Form Registration Statement” means a registration statement on Form S-3, Form F-3 or any successor forms thereto.

 

“Subsidiary” or “Subsidiaries” of any person means any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the shares or other equity interests, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

 

 

2.                   Registration Rights.

 

2.1                 Demand Registrations.

 

(a)                At any time and from time to time, the Summa Investor(s) (the “Initiating Holder(s)”) may request in writing that the Company register under the Securities Act all or any portion of the Registrable Securities held by the Initiating Holder(s); provided that no Registration Statement need be filed with the Commission (for the avoidance of doubt, this proviso excludes any Registration Statement confidentially submitted to the Commission) prior to the expiration of any “lock-up agreement” entered into with an underwriter in connection with the IPO (unless waived by such underwriter). Upon receipt of such written request, which shall specify the intended method of distribution thereof, the Company shall as soon as possible and in any case within three (3) days deliver notice (any such written notice, a “Demand Notice” and any such registration, a “Demand Registration”) thereof to all Holders (other than the Initiating Holder(s)), if any, who shall then have three (3) Business Days to notify the Company in writing of their desire to be included in such registration. If no request for inclusion from a Holder is received within the specified time, such Holder shall have no further right to participate in such Demand Registration. A Holder who is, or who is controlled by any person who is, an employee of the Company or its Subsidiaries may participate in a Demand Registration pursuant to this Section 2.1(a) within the Restrictive Period, only if and to the extent the aggregate of (i) the Registrable Securities such Holder will include in such Demand Registration and (ii) the Common Shares such Holder has sold, transferred, assigned, distributed or otherwise conveyed prior to such Demand Registration does not exceed the Maximum Amount of Shares (and where the Initiating Holder(s) shall have the full and absolute discretion to determine the extent by which any cutbacks are required and which Holders will be affected), unless otherwise agreed by the Initiating Holder(s). Subject to the provisions of Section ‎2.5 below, the Company shall use its reasonable best efforts to file a registration statement for such intended method of distribution, as promptly as practicable, but not later than (x) sixty (60) days after such Demand Notice in the case of a registration with a Long-Form Registration Statement and (y) thirty (30) days after such Demand Notice in the case of a registration with a Short-Form Registration Statement, and in each case shall use its reasonable best efforts to cause such registration statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof (subject to the proviso of the first sentence of this Section ‎2.1(a)).

 

(b)                Notwithstanding the foregoing, the Company shall not be required to effect registration under this Section ‎2.1 before ninety (90) days after the effective date of any other previously effective Registration Statement for an underwritten offering of securities pursuant to a Company-initiated registration (other than pursuant to a registration statement on Form F-4, S-4 or S-8) or a Piggy-Back Underwritten Offering (as defined below), provided, however, that nothing in this clause shall derogate from the Company’s obligations under Section ‎2.4 hereof.

 

(c)                The Company shall be obligated to effect an unlimited number of registrations for the Summa Investor(s) under this Section ‎2.1.

 

(d)                A registration shall not be counted as “effected” if (i) after effectiveness, the Registration Statement becomes subject to any stop order, injunction or other order of the Commission or other governmental agency prior to the sale of all Registrable Securities to be sold thereunder, (ii) the method of disposition is a firm commitment underwritten public offering and, as a result of an exercise of the underwriters’ cutback provisions in Section ‎2.3(b), less than seventy-five (75%) of the Registrable Securities requested to be included therein have been sold pursuant thereto; provided, however, that if such registration is the second registration on a Long-Form Registration Statement of the applicable Initiating Holder(s) as described in Section ‎2.1(c) hereof, then such percentage shall be ninety (90%), or (iii) if the Company shall have withdrawn or prematurely terminated a Registration Statement as set forth in Section ‎2.5.

 

(e)                The Registrable Securities covered by any Registration Statement demanded under this Section ‎2.1 shall be distributed by means of a firm commitment underwritten offering unless otherwise agreed to in writing by the Summa Investor(s).

 

 

2.2                Piggyback Registration.

 

(a)                Other than in connection with an IPO, if at any time the Company, including if the Company qualifies as a well-known seasoned issuer (within the meaning of Rule 405 under the Securities Act) (a “WKSI”), proposes to file (i) a prospectus supplement to an effective shelf registration statement (a “Shelf Registration Statement”), or (ii) a registration statement, other than a shelf registration statement for a delayed or continuous offering pursuant to Rule 415 under the Securities Act, in either case, for the sale of Common Shares for its own account, or for the benefit of the holders of any of its securities other than the Holders, to an underwriter on a firm commitment basis for reoffering to the public or in a “bought deal,” “block trade” or “registered direct offering” with one or more investment banks (collectively, a “Piggy-Back Underwritten Offering”), then as soon as practicable but not less than fourteen (14) Business Days prior to the filing of (x) any preliminary prospectus supplement relating to such Piggy-Back Underwritten Offering pursuant to Rule 424(b) under the Securities Act, (y) any prospectus supplement relating to such Piggy-Back Underwritten Offering pursuant to Rule 424(b) under the Securities Act (if no preliminary prospectus supplement is used) or (z) such Registration Statement, as the case may be, the Company shall give notice of such proposed Piggy-Back Underwritten Offering to the Holders and such notice shall offer the Holders the opportunity to include in such Piggy-Back Underwritten Offering such number of Registrable Securities (the “Included Registrable Securities”) as each such Holder may request in writing. For the avoidance of doubt, a Holder may participate in a Piggy-Back Underwritten Offering pursuant to this Section 2.2(a) only if the Summa Investor(s) will participate in the same offering. Prior to the commencement of any “road show,” any Holder shall have the right to withdraw its request for inclusion of its Registrable Securities in any Registration Statement pursuant to this Section ‎2.2(a) by giving written notice to the Company of its request to withdraw and such withdrawal shall be irrevocable and, after making such withdrawal, such Holder shall no longer have any right to include Registrable Securities in the Piggy-Back Underwritten Offering as to which such withdrawal was made. For the avoidance of doubt, in the event that the Summa Investor(s) withdraw from a Piggy-Back Underwritten Offering pursuant to this Section 2.2(a), all the other participating Holders shall be deemed to have been withdrawn from such offering. The notice required to be provided in this Section ‎2.2(a) to Holders shall be provided on a Business Day. Each such Holder shall then have ten (10) days after receiving such notice to request in writing to the Company inclusion of Registrable Securities in the Piggy-Back Underwritten Offering, except that such Holder shall have two (2) days after such Holder confirms receipt of the notice to request inclusion of Registrable Securities in the Piggy Back Underwritten Offering in the case of a “block trade”, “bought deal”, “accelerated bookbuild, or ABB”, “registered direct offering” or “overnight transaction” where no preliminary prospectus is used. Upon receipt of any such request for inclusion from a Holder received within the specified time, the Company shall use reasonable best efforts to effect the registration in any Registration Statement described in this Section ‎2.2(a) of any of the Holders’ Registrable Securities requested to be included on the terms set forth in this Agreement. If no request for inclusion from a Holder is received within the specified time, such Holder shall have no further right to participate in such Piggy-Back Underwritten Offering. A Holder who is, or who is controlled by any person who is, an employee of the Company or its Subsidiaries may participate in a Piggy-Back Underwritten Offering pursuant to this Section 2.2(a) within the Restrictive Period, only if and to the extent the aggregate of (i) the Registrable Securities such Holder will include in such Piggy-Back Underwritten Offering and (ii) the Common Shares such Holder has sold, transferred, assigned, distributed or otherwise conveyed prior to such Piggy-Back Underwritten Offering does not exceed the Maximum Amount of Shares (and where the Initiating Holder(s) shall have the full and absolute discretion to determine the extent by which any cutbacks are required and which Holders will be affected), unless otherwise agreed by the Summa Investor(s). There is no limitation on the number of such piggyback registrations that the Company may be required to effect. No registration of Registrable Securities effected under this Section ‎2.2(a) shall relieve the Company of its obligations to effect registrations under Section ‎2.1 hereof.

 

 

(b)               Unless the Company qualifies as a WKSI, (i) the Company shall give each Holder fourteen (14) days’ notice prior to filing a Shelf Registration Statement and, upon the written request of any Holder, received by the Company within ten (10) days of such notice to the Holder, the Company shall include in such Shelf Registration Statement a number of Common Shares equal to the aggregate number of Registrable Securities requested to be included without naming any requesting Holder as a selling shareholder and including only a generic description of the holder of such securities (the “Undesignated Registrable Securities”), (ii) the Company shall not be required to give notice to any Holder in connection with a filing pursuant to Section ‎2.2(a)(i) unless such Holder provided such notice to the Company pursuant to this Section ‎2.2(b) and included Undesignated Registrable Securities in the Shelf Registration Statement related to such filing, and (iii) at the written request of a Holder given to the Company more than ten (10) days before the date specified in writing by the Company as the Company’s good faith estimate of a launch of a Piggy-Back Underwritten Offering (or such shorter period to which the Company in its sole discretion consents), the Company shall use reasonable best efforts to effect the registration of any of the Holders’ Undesignated Registrable Securities so requested to be included and shall file a post-effective amendment or, if available, a prospectus supplement to a Shelf Registration Statement to include such Undesignated Registrable Securities as any Holder may request, provided that the Company is actively employing its reasonable best efforts to effect such Piggy-Back Underwritten Offering.

 

(c)               The Company shall have the right to terminate or withdraw any registration or Piggy-Back Underwritten Offering initiated by it under this Section ‎2.2 prior to the effectiveness of such registration whether or not the Holders have elected to include Registrable Securities in such registration. Notwithstanding Section ‎2.10 hereof, in the case of the termination or withdrawal referred in the immediately preceding sentence, all Registration Expenses incurred in connection with such registration or Piggy-Back Underwritten Offering shall be borne entirely by the Company.

 

(d)                For the avoidance of doubt, any Registrable Securities included in such registration pursuant to this Section 2.2 shall be sold pursuant thereto in the form of ADSs.

 

2.3               Underwriting Requirements.

 

(a)                If, pursuant to Section ‎2.1, the Initiating Holder(s) intend to distribute the Registrable Securities covered by their request by means of an underwriting, the Company shall include such information in the Demand Notice. The managing underwriter(s) shall be a nationally recognized investment banking firm selected by the Initiating Holder(s). In the event of a Company-initiated underwritten registered offering or a Piggy-Back Underwritten Offering, the managing underwriter(s) shall be a nationally recognized investment banking firm selected by the Company subject to the approval of the Summa Investor(s).

 

(b)                In the event that, pursuant to Section ‎2.1, the Initiating Holder(s) intend to distribute the Registrable Securities covered by their request by means of an underwriting, and in the event any Holder wants to participate pursuant to Section ‎2.2 in a Company registration of its Common Shares which the Company intends to distribute by means of an underwriting (including, without limitation, a Piggy-Back Underwritten Offering), the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Section ‎2.4(h)) enter into an underwriting agreement in the form requested by the Summa Investor(s) agreed to with the underwriter(s) selected for such underwriting.

 

(c)                The Company shall not include in any registration pursuant to Section ‎2.1 that is an underwritten offering any securities that are held by an employee of the Company or any of its Subsidiaries or any Person controlled by any such employee without the consent of the managing underwriter(s) (which consent may be evidenced by such managing underwriter(s) signing the underwriting agreement for such offering), and shall not include in any registration pursuant to Section ‎2.1 any securities that are not Registrable Securities without the prior written consent of the Initiating Holder(s). Notwithstanding anything in this Agreement to the contrary, if a requested registration under Section ‎2.1 involves an underwritten offering and the managing underwriter(s) of such offering determine(s) in good faith that the number of securities sought to be offered exceeds the number of securities which can be sold in the market in an orderly fashion, then the number of securities to be included in such underwritten offering shall be allocated as follows:

 

 

(i)                in the event that the Initiating Holders, directly or indirectly, holds more than 20% of the Common Shares then outstanding,

 

(A)              first, pro rata among participating Holders in the underwritten offering, including the Initiating Holders, on the basis of the percentage of the Registrable Securities owned by such Holders; and

 

(B)              second, the securities sought to be registered by the Company for its own account;

 

or

 

(ii)              in the event that the Initiating Holders, directly or indirectly, holds 20% or less of the Common Shares then outstanding,

 

(A)              first, any Registrable Securities for which inclusion in such Demand Registration was requested by the Initiating Holders;

 

(B)              second, pro-rata among the participating Holders (other than the Initiating Holders) on the basis of the percentage of the Registrable Securities owned by such Holders; and

 

(C)               third, the securities sought to be registered by the Company for its own account.

 

(d)                The Company shall not include in any Piggy-Back Underwritten Offering any securities that are held by an employee of the Company or any of its Subsidiaries or any Person controlled by any employee without the prior written consent of the managing underwriter(s) (which consent may be evidenced by such managing underwriter(s) signing the underwriting agreement for such offering). Notwithstanding anything in this Agreement to the contrary, in connection with any Piggy-Back Underwritten Offering conducted pursuant to Section ‎2.2, if the Company is advised by the managing underwriter(s) in good faith that the number of the Company’s securities proposed to be sold by Persons other than the Company (collectively, the “Selling Shareholders”) in such Piggy-Back Underwritten Offering exceeds the number of securities of the Company that can be sold in the market in an orderly fashion by the managing underwriter(s), then the number of securities to be included in such underwritten offering shall be allocated as follows:

 

(i)                in the event that the Summa Investor(s), directly or indirectly, holds more than 20% of the Common Shares then outstanding,

 

(A)              first, the securities the Company proposes to issue and sell for its own account; and

 

(B)            second, the Registrable Securities requested to be included in such registration, pro rata among the Selling Shareholders of such Registrable Securities on the basis of the number of Registrable Securities owned by each Selling Shareholder;

 

or

 

(ii)              in the event that the Summa Investor(s), directly or indirectly, holds 20% or less of the Common Shares then outstanding,

 

 

(A)              first, the securities the Company proposes to issue and sell for its own account;

 

(B)              second, any Registrable Securities for which inclusion in such Piggyback Registration was requested by the Summa Investor(s); and

 

(C)              third, pro-rata among the Selling Shareholders (other than the Summa Investor(s)) on the basis of the percentage of the Registrable Securities owned by such Selling Shareholders.

 

2.4               Registration Procedures. If and whenever the Company is required by the provisions of this Agreement to use its reasonable best efforts to effect the registration of any of the Holders’ Registrable Securities under the Securities Act, the Company will, as expeditiously as possible:

 

(a)                prepare and file with the Commission a registration statement or prospectus or any amendment or supplement thereto on the appropriate form under the Securities Act with respect to such Registrable Securities, which form shall comply as to form with the requirements of the applicable form and include all financial statements required by the Commission to be filed therewith, and use its reasonable best efforts to cause such registration statement to become effective and, in the case of a registration pursuant to Section ‎2.1, keep such registration statement effective for a period of up to one hundred and eighty (180) days or, if earlier, until the distribution contemplated in the registration statement has been completed in the manner contemplated in the Initiating Holders’ request under Section ‎2.1(a) hereof (but in any event not before the expiration of any longer period required under the Securities Act); provided, however, that before filing a registration statement or prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, the Company will furnish to (i) counsel for the Holders participating in the planned offering (selected by the Summa Investor(s)), and (ii) counsel for any lead managing underwriter(s), if any, copies of all such documents proposed to be filed (including all exhibits thereto other than documents that are incorporated by reference), which documents will be subject to the review and reasonable comment of each such counsel;

 

(b)                (i) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement and (ii) provide notice to such sellers of Registrable Securities and the lead managing underwriter(s), if any, of the Company’s determination that a post-effective amendment to a registration statement would be appropriate;

 

(c)                promptly notify each Holder selling Registrable Securities covered by such registration statement and each managing underwriter(s), if any: (i) when the registration statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto, any post-effective amendment to the registration statement or any free writing prospectus has been filed and, with respect to the registration statement or any post-effective amendment, when the same has become effective; (ii) as soon as the Company becomes aware, of any request by the Commission or state securities authority for amendments or supplements to the registration statement or the prospectus related thereto or for additional information related thereto; (iii) as soon as the Company becomes aware, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering the Registrable Securities or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or state “blue sky” laws of any jurisdiction or the initiation or threatening of any proceeding for such purpose and (v) of the existence of any fact of which the Company becomes aware which results in the registration statement or any amendment thereto, the prospectus related thereto or any supplement thereto, any document incorporated therein by reference, any free writing prospectus or the information conveyed to any purchaser at the time of sale to such purchaser containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading; and, without derogating from the provisions of Section ‎2.5, if the notification relates to an event described in clause (v), the Company shall use its reasonable best efforts to promptly prepare, file with the Commission, and furnish to each such seller and each underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading;

 

 

(d)                furnish to each Holder selling Registrable Securities such number of copies of such registration statement, any amendments thereto, any documents incorporated by reference therein, the prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, any free writing prospectus, and such other documents as such selling Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such selling Holder and covered by the registration;

 

(e)                  use its reasonable best efforts to register or qualify the securities covered by such registration statement under the securities or state “blue sky” laws of such jurisdictions as each selling Holder may reasonably request; provided that the Company shall not be required to register or qualify the securities in any such states or jurisdictions which require it to qualify to do business, subject itself to taxation or consent to general service of process therein, in each case where it would not otherwise do so but for this Section ‎2.4(e);

 

(f)                 within a reasonable time before each filing of the registration statement or prospectus or amendments or supplements thereto with the Commission, upon request of the Holders furnish, to counsel selected by the Holders copies of such documents proposed to be filed;

 

(g)                  make available to (x) any underwriter(s) participating in any disposition pursuant to a registration statement, and any counsel retained by the underwriter(s), and (y) any Holder of Registrable Securities which Holder, in its good faith judgment (based on the advice of outside counsel) could reasonably be expected to be deemed to be an underwriter or controlling Person of the Company, and any attorney retained thereby (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, managers, directors and employees, and use reasonable best efforts to cause the Company’s agents, representatives and independent accountants, to supply all information reasonably requested by any such Inspector in connection with such registration statement, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith, subject, in each case, to such confidentiality agreements as the Company shall reasonably request;

 

(h)                enter into and perform its obligations under such customary agreements (including, if applicable, a lock-up agreement in customary form and an underwriting agreement in customary form, including customary representations and warranties to the underwriter(s) regarding the offering documents, the Company’s business operations and other customary matters, and customary provisions with respect to indemnification and contribution) and take such other actions as the Holders holding a majority of the Registrable Securities participating in such offering or the underwriter(s) shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;

 

 

(i)                 (A) cause all such Registrable Securities covered by such registration statement (or the ADSs representing such Registrable Securities) to be listed on the principal national securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (B) if no similar securities are then so listed, (i) to use its reasonable best efforts to cause all such Registrable Securities to be listed on a national securities exchange or to secure designation of all such Registrable Securities as a Nasdaq National Market “national market system security” within the meaning of Rule 11Aa2-1 of the Exchange Act or, failing that, secure Nasdaq National Market authorization for such shares and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with FINRA and (ii) to use its reasonable best efforts to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of the Registrable Securities;

 

(j)                 make generally available to its security holders, as soon as reasonably practicable after the effective date of the registration statement (and in any event within ninety (90) days after the end of such twelve (12)-month period described hereafter), an earnings statement (which need not be audited) covering the period of at least twelve (12) consecutive months beginning with the first day of the Company’s first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

 

(k)                if necessary, appoint a transfer agent and registrar for all Registrable Securities covered by a registration statement not later than the effective date of such registration statement;

 

(l)                (A) subject to each selling Holder to whom the comfort letter is addressed providing a customary representation letter to the independent registered public accounting firm of the Company in form and substance reasonably satisfactory to such accountants, (A) use its reasonable best efforts to obtain customary “comfort” letters from such accountants (to the extent deliverable in accordance with their professional standards) addressed to such selling Holder (to the extent consistent with the Statement on Auditing Standards No. 72 of the American Institute of Certified Public Accountants) and the managing underwriter(s), if any, in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings and (B) use its reasonable best efforts to obtain opinions of counsel to the Company and updates thereof covering matters customarily covered in opinions of counsel in connection with underwritten offerings, addressed to each selling Holder and the managing underwriter(s), if any, provided that the delivery of any “10b-5 statement” and opinion may be conditioned on the prior or concurrent delivery of a comfort letter pursuant to subsection (A) above; provided, further that the Company shall only be required to comply with this clause (l) in connection with an underwritten offering;

 

(m)              notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed;

 

(n)                furnish to each seller of Registrable Securities, and the managing underwriter(s) (if any), without charge, such number of copies of the applicable Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus, final prospectus, and any other prospectus (including any prospectus filed under Rule 424, Rule 430A or Rule 430B promulgated under the Securities Act and any “issuer free writing prospectus” as such term is defined under Rule 433 promulgated under the Securities Act)), all exhibits and other documents filed therewith and such other documents as such seller or such managing underwriters (if any) may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by such seller, and upon request, a copy of any and all transmittal letters or other correspondence to or received from, the Commission or any other governmental authority relating to such offer;

 

 

(o)                use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement, or suspending qualification of any securities included in such registration statement for sale in any jurisdiction, in each case, at the earliest practicable date;

 

(p)                provide a CUSIP number for all Registrable Securities (or the ADSs representing such Registrable Securities), not later than the effective date of the registration statement;

 

(q)                use its reasonable best efforts to make available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters (taking into account the reasonable needs of the Company’s businesses and the reasonable requirements of the marketing process) in the marketing of Registrable Securities in any underwritten offering;

 

(r)                 cooperate with the selling Holders of Registrable Securities and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement at least two (2) days prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the selling Holders of Registrable Securities at least two (2) days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof;

 

(s)                 cooperate with each holder of Registrable Securities covered by the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;

 

(t)                  after such registration statement becomes effective, notify each selling Holder of any request by the Commission that the Company amend or supplement such Registration Statement or prospectus;

 

(u)                 use its reasonable best efforts to take all other actions necessary to effect the registration and sale of the Registrable Securities contemplated hereby;

 

(v)                to the extent the Company is a WKSI at the time any request for registration pursuant to Section ‎2.1 is submitted to the Company, which requests that the Company file an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) (an “automatic shelf registration statement”) on a Short-Form Registration Statement, the Company shall file an automatic shelf registration statement which covers those Registrable Securities which are requested to be registered. If the Company does not pay the filing fee covering the Registrable Securities at the time the automatic shelf registration statement is filed, the Company agrees to pay such fee at such time or times as the Registrable Securities are to be sold;

 

(w)              if at any time when the Company is required to re-evaluate its WKSI status for purposes of an outstanding automatic shelf registration statement used to effect a request for registration in accordance with Section 2.1 the Company determines that it is not a WKSI and (a) the registration statement is required to be kept effective in accordance with this Agreement and (b) the registration rights of the applicable Holders have not terminated, use reasonable best efforts to promptly amend the registration statement on a form the Company is then eligible to use or file a new registration statement on such form, and keep such registration statement effective in accordance with the requirements otherwise applicable under this Agreement; and

 

(x)                if the Holder holds Common Shares and it wishes to deposit such Common Shares with the depositary bank for the ADSs, the Company shall use all reasonable best efforts to cooperate with such Holder and take any action it is required to take, if any, promptly and expeditiously in connection with the deposit of Common Shares by such Holder and the issuance of ADSs to such Holder.

 

 

2.5               Suspension Periods. In the event:

 

(a)                of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose;

 

(b)                of the receipt by the Company of any notification of the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;

 

(c)                of any request by the Commission or any other federal or state governmental authority during the period of effectiveness of any registration statement or amendments or supplements to such registration statement or prospectus or for additional information, or any other of any event or circumstance other than those referred to in sub-paragraph ‎(d) below which, upon the advice of the Company’s counsel, necessitates the making of any changes in the registration statement, prospectus or any prospectus supplement, or any document incorporated or deemed to be incorporated therein by reference, so that neither the registration statement nor the prospectus or, if applicable, prospectus supplement will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or

 

(d)                the Company, in its good faith judgment, determines that effecting a registration pursuant to this Agreement, not suspending the use of a registration statement pursuant to this Agreement or the continued use of such registration statement, would: (i) be seriously detrimental to a material financing, acquisition, disposition, merger, consolidation, tender offer, recapitalization, reorganization or other material transaction of the Company; or (ii) render the Company unable to comply with requirements under the Securities Act or Exchange Act (collectively, a “Valid Business Reason”),

 

then the Company may delay effecting such registration hereto or suspend the use of a registration statement pursuant hereto or cease to permit the use of the prospectus included in a registration pursuant hereto if the Company provides a certificate in writing to the Holders signed by the Chief Executive Officer of the Company to the effect of the foregoing (the “Suspension Notice”), and, in the case of the right described in sub-paragraph ‎(d) hereof (a “Corporate Suspension”), stating that the Board of Directors has determined in good faith that there is a Valid Business Reason, and upon receipt of such Suspension Notice, if the Registration Statement is effective, each Holder will refrain from selling any Registrable Securities pursuant to the Registration Statement (such period of suspension or delay of the Company’s obligation and the Holders’ right to sell Registrable Securities pursuant to an effective Registration Statement being herein referred to as a “Suspension Period”) until such Holder’s receipt of copies of a supplemented or amended prospectus prepared and filed by the Company, or until it is advised in writing by the Company that the Suspension Period is no longer in effect; provided, that, other than in the case of a Corporation Suspension, the Company shall use its reasonable best efforts promptly to obtain the withdrawal of such any stop order or suspension, to make such changes or supplements or to otherwise bring to an end such Suspension Period so that Registrable Securities may be sold pursuant to the applicable Registration Statement; provided, further, that, with respect to a Corporate Suspension, (A) the Company shall have the right to invoke no more than two (2) Corporate Suspensions in any twelve (12)-month period, and (B) the duration of such Corporate Suspensions may not exceed (x) ninety (90) days on each occasion and (y) one hundred twenty (120) days in the aggregate during any twelve (12)-month period. If the Company shall have withdrawn or prematurely terminated a registration statement filed under Section ‎2.1 (whether upon the determination of the Board of Directors or as a result of any stop order, injunction or other requirement of the Commission or any other governmental agency or court), the registration under Section ‎2.1 shall not be deemed effected.

 

 

2.6               Termination of Registration Rights. The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Sections ‎2.1 or ‎2.2 shall terminate when no Registrable Securities are outstanding.

 

2.7               Lock-Up Agreements.

 

(a)                The Company and each Holder of Registrable Securities (other than a Summa Investor) hereby agrees that if requested by the managing underwriter(s) in connection with an offering pursuant to Section ‎2.1 or a Piggy-Back Underwritten Offering pursuant to Section ‎2.2, the Company and such Holder will enter into a customary “lock-up agreement” with the managing underwriter(s) pursuant to which the Company and such Holder will agree not to sell or transfer any securities or any interest in securities of the Company during a specified number of days following the date of the final prospectus related to any other offering conducted pursuant to Sections ‎2.1 or ‎2.2 hereof, provided that (i) if any Summa Investor is participating in such offering, each Holder of Common Registrable Securities shall only be required to enter into a “lock-up agreement” if the Summa Investor enters into such “lock-up agreement”; (ii) the obligation of any Holder to enter into such “customary” lock-up agreement shall be subject to the Company, each of its directors, officers, one percent (1%) holder, and each Selling Shareholder in such offering other than the Holders of Registrable Securities entering into a similar customary “lock-up agreement” and (iii) unless the managing underwriter (s) in the registered public offering otherwise agree in writing, the Company shall not file any Registration Statement for any public sale or distribution of its shares (other than pursuant to this Agreement) or cause any such Registration Statement to become effective during any lock-up period or extension thereof.

 

(b)                The provisions of this Section ‎2.7 shall no longer apply to a Holder once such Holder ceases to hold Registrable Securities. In addition, no Holder may participate in any underwritten registration hereunder unless such person (a) agrees to sell such person’s securities on the basis provided in any customary underwriting agreement, and (b) provides any relevant information, including in connection with FINRA’s clearance of underwriting compensation to the extent required, and completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements (in each case subject to the other terms and conditions of this Agreement).

 

2.8               Confidentiality. Each Holder (other than the Summa Investor(s)) agrees that any information obtained pursuant to the provisions of this Agreement will be held in strict confidence, will not be disclosed or exposed to any person or entity without the prior written consent of the Company and will not be used for any purpose, other than with respect to exercise of such Holder’s rights as a shareholder in the Company; unless such confidential information (a) is known or becomes known to the public in general (other than as a result of a breach of this Section ‎2.8 by such Holder), (b) is or has been independently developed or conceived by such Holder without use of the Company’s confidential information, or (c) is or has been made known or disclosed to such Holder by a third party without a breach of any obligation of confidentiality such third party may have to the Company and without any restrictions as to its disclosure; provided, however, that such Holder may disclose confidential information (i) to its attorneys, accountants, consultants, principals, officers and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company, if such persons are bound by confidentially provisions or obligations; (ii) to any partner, member, shareholder or Affiliate of such Holder in the framework of reports to such partner, member, shareholder or Affiliate in the ordinary course of business; (iii) to any prospective purchaser of Registrable Securities from a Holder, provided with respect to clauses (ii) and (iii) above that such Holder informs such Person that such information is confidential and directs such Person to maintain the confidentiality of such information and such Holder is responsible for any breach of the provisions of this paragraph; or (iv) as may otherwise be required by law, provided that to the extent legally permissible such Holder promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure.

 

 

2.9               No Required Sale. Nothing in this Agreement shall be deemed to create an independent obligation on the part of any Holder to sell any Registrable Securities pursuant to any effective registration statement.

 

2.10           Expenses. All expenses incurred in effecting a registration provided for in Sections ‎2.1 and ‎2.2 shall be paid by the Company, including, without limitation, all registration and filing fees, printing expenses, reasonable fees and disbursements of (i) counsel for the Company; (ii) U.S. counsel for the Holders participating in such registration as a group (selected by the Summa Investor(s) if the Summa Investor(s) are participating in the registration in the case of a Piggy-Back Underwritten Offering or by the Initiating Holder(s) in the event of a registration pursuant to Section ‎2.1), (iii) for each of the Existing Investors as a group and the Summa Investor(s) as a group, any local counsels (selected by the Summa Investor(s)) as necessary to deliver an opinion of counsel, (iv) underwriting expenses (other than share transfer taxes, underwritten discounts or commissions) and expenses of any audits incident to or required by any such registration, and (v) all legal expenses in connection with issuance of any legal opinion required by the depositary bank for the ADSs in connection with a deposit of Common Shares by a Holder with such depositary bank and the issuance of ADSs to such Holder, and a transfer of ADSs of a Holder held on the books of the depositary bank (all of such expenses referred to collectively, as the “Registration Expenses”). All underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder (except for the counsel set forth above) relating to Registrable Securities registered pursuant to this Agreement shall be borne and paid by the Holders, pro rata on the basis of the number of Registrable Securities registered on their behalf.

 

2.11           Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Agreement with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably required to effect the registration of such Holder’s Registrable Securities.

 

2.12           Indemnification.

 

(a)               The Company shall indemnify and hold harmless, to the fullest extent permitted by the law, each selling Holder of Registrable Securities that is included in a registration whether included pursuant hereto or otherwise and such Holder’s shareholders, affiliates, partners, members, underwriters, and their respective directors, officers, employees, agents, and legal counsel and accountants and other representatives, and each person who controls such Holder, its shareholders, affiliates, partners, members or underwriters within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (a “Controlling Person”), from and against any and all losses, claims, actions, expenses, damages or liabilities, joint or several (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted), as the same are incurred to which they, or any of them, may become subject under the Securities Act, the Exchange Act, other federal or state statutory law or regulation, at common law, or otherwise, insofar as such losses, claims, expenses, damages or liabilities (or action in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act (including any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto, or any free writing prospectus or the Disclosure Package) or in any application or other document or communication (collectively called an “application”) executed by or on behalf of the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify any securities covered by such registration under the securities laws thereof, (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact in the information conveyed to any purchaser at the time of the sale to such purchaser, or the omission or alleged omission to state therein a material fact required to be stated therein, or (iv) any violation by the Company of the any federal, state, common or other law, rule or regulation applicable to the Company in connection with such registration, including the Securities Act, any state securities or “blue sky” laws or any rule or regulation thereunder in connection with such registration. The Company will reimburse any such indemnified party for any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such claim. The Company shall not be liable to any indemnified party, however, in any such case, to the extent that any such liability arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, preliminary or final prospectus, or amendment or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by such indemnified party specifically for use therein; provided further, however, that the Company shall be liable to any indemnified party to the extent that a court of competent jurisdiction determines that any such alleged untrue statement or alleged omission by the indemnified party is not proven.

 

 

 

(b)                Subject to applicable law, each selling Holder of Registrable Securities included in such registration whether included pursuant hereto or otherwise being effected shall, severally and not jointly, indemnify and hold harmless the Company (including its directors and officers, employees and agents), legal counsel and accountants of the Company, any other selling Holder, including shareholders, affiliates, partners, members or underwriters of such Holder, included in such registration, and each person who controls the Company or such other Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, expenses and liabilities, joint or several, to which they, or any of them, may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law, or otherwise, insofar as such losses, claims, damages, expenses or liabilities (or actions in respect thereof) arises out of or is based upon (i) any untrue statement or alleged untrue statement of any material fact contained, on the effective date thereof, in any registration statement under which such securities were registered under the Securities Act (including any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereto, or any free writing prospectus or the Disclosure Package), (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in the case of both (i) and (ii) to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in such registration statement, preliminary or final prospectus, amendment or supplement thereto, or any free writing prospectus or the Disclosure Package, in reliance upon and in conformity with information furnished in writing to the Company by such selling Holder specifically for use therein. In no event, however, shall the liability of any selling Holder for indemnification under this Section ‎2.12 in its capacity as a seller of Registrable Securities exceed the amount equal to the net proceeds (net of underwriting discounts and commissions, but not other expenses) to such selling Holder of the securities sold in any such registration, except in the case of fraud by such selling Holder. The Company and each Holder of Registrable Securities hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such Holders to the contrary, for all purposes of this Agreement, the only information to be furnished to the Company by or on behalf of any Holder for use in any such registration statement, preliminary, final or summary prospectus or amendment or supplement thereto, or any free writing prospectus, are statements specifically limited to (i) the number of Registrable Securities held by such Holder and its Affiliates and the related description of their beneficial ownership, (ii) the name and address of such Holder, and (iii) the affiliation of such Holder and its Affiliates with a broker-dealer or an affiliate of a broker-dealer. If any additional information about such Holder or the plan of distribution (other than for an underwritten offering) is required by law to be disclosed in any such document, then such Holder shall not unreasonably withhold its agreement referred to in the immediately preceding sentence. Such indemnity and reimbursement of expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party and shall survive the transfer of such securities by such Holder. The obligation of the Holders to indemnify hereunder shall be individual, and not joint and several, for each Holder.

 

(c)                Promptly after receipt by an indemnified party under this Section ‎2.12 of notice of the commencement of any action which, if proven, would require the indemnifying party to indemnify the indemnified party under this Section ‎2.12, the indemnified party will notify the indemnifying party in writing of the commencement thereof; but the failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph ‎(a) or ‎(b) above unless and to the extent such action and such failure results in material prejudice to the indemnifying party and forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph ‎(a) or ‎(b) above. The indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, except as provided in the next sentence, after notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s rights in the prior sentence, the indemnified party shall have the right to employ its own counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party within a reasonable time after notice of the institution of such action; (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party; or (v) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding after receiving notice from such indemnified party that the indemnified party believes it has failed to do so. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general circumstances or allegations, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties. An indemnifying party shall not be liable under this Section ‎2.12 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement or compromise unless such settlement or compromise (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

 

 

(d)                If the indemnification provided for in this Section ‎2.12 for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party under this Section ‎2.12, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (or actions thereof) in such proportion as is appropriate to reflect the relative fault of the Company and each selling Holder in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. The relative fault of the Company and each selling Holder shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the selling Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

(e)                The Company, the selling Holders and the underwriters agree that it would not be just and equitable if contribution pursuant to this Section ‎2.12 were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. In no event, however, shall a selling Holder be required to contribute any amount under this Section ‎2.12(e) in excess of the net proceeds (net of underwriting discounts and commissions, but not other expenses) received by such selling Holder from its sale of Registrable Securities under such registration statement, except in the case of fraud or willful misconduct by such selling Holder. No Person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.

 

(f)               The indemnification and contribution provided for in this Section ‎2.12 will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified parties or any officer, director, employee, agent or controlling Person of such indemnified parties and shall survive the transfer of Registrable Securities by any such party.

 

(g)                The indemnification and contribution provided for in this Section ‎2.12 shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party.

 

(h)                The indemnification and contribution provided for in this Section ‎2.12 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred.

 

(i)                Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

 

2.13           Compliance with Rule 144. With a view to making available to the Holders the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form F-3 or Form S-3, the Company shall:

 

(a)                use reasonable best efforts to (i) file in a timely fashion the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (at any time after the Company has become subject to such reporting requirements) and (ii) make publicly available adequate current public information and any other information so long as necessary to permit sales in compliance with Rule 144 and Regulation S under the Securities Act (as such rules may be amended from time to time), at all times after the effective date of the Registration Statement filed by the Company for the IPO; and

 

 

(b)                furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of Rule 144 (at any time after ninety (90) days after the effective date of the Registration Statement filed by the Company for the IPO), the Securities Act, and the Exchange Act (at any time after the Company has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form F-3 or Form S-3 (at any time after the Company so qualifies); and (ii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time after the Company has become subject to the reporting requirements under the Exchange Act) or pursuant to Form F-3 or Form S-3 (at any time after the Company so qualifies to use such form).

 

2.14           Transferability of Registration Rights. Unless otherwise agreed by the Summa Investor(s) and the Company, the registration rights contained in this Agreement shall only inure to the benefit of a transferee of Registrable Securities if (i) such transferee is an Affiliate of the Summa Investor(s), and (ii) such subsequent Holder executes and delivers an Accession Agreement, a form of which is annexed hereto as ‎Exhibit A. Such a transferee of a Summa Investor shall be a “Summa Investor” for purposes of this Agreement. For the purpose of determining the number of shares of Registrable Securities held by a transferee, the holdings of a transferee that is an Affiliate of the Summa Investor(s) shall be aggregated together and with those of the Summa Investor(s) and the holdings of any transferees that are Affiliates of each other shall be aggregated together. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.

 

2.15           Additional Registration Rights. The Company represents and warrants as of the date of this Agreement that, except as set forth herein, the Company has not granted any party the right to require that the Company register, or include in registrations filed by the Company, any of its or any of its Subsidiaries’ securities. From and after the date of this Agreement, the Company shall not, without the prior written consent of the Summa Investor(s), enter into any agreement with any holder or prospective holder of any equity securities of the Company granting such holder or prospective holder the right to include such securities in any registration statement filed by the Company.

 

2.16           Delay of Registration. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of the provisions hereof.

 

3.                   Miscellaneous.

 

(a)                All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (i) personal delivery to the party to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next Business Day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) Business Day after the Business Day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their addresses as set forth on ‎Schedule C hereto, or to the principal office of the Company and to the attention of the Chief Executive Officer, in the case of the Company, or to such email address, facsimile number, or address as subsequently modified by written notice given in accordance with this Section ‎4(a). If notice is given to the Company, a copy shall also be sent to Goodwin Procter LLP, The New York Times Building, 620 Eighth Avenue, New York, NY 10018, attention: Kristopher Brown, and if notice is given to the Summa Investor(s), a copy shall also be sent to White & Case Advokat AB, Biblioteksgatan 12, Box 5573, SE-114 85 Stockholm, attention: Jonas Lagerroo.

 

(b)                Existing Investors hereby agree that, except as otherwise provided for herein, this Agreement shall become effective upon the effectiveness of the New Shareholders Agreement.

 

 

(c)                Subject to the terms of any other applicable agreements, if the Company seeks, for its own account or for the account of others, (a) to obtain a listing for its equity securities (including ADRs or ADSs), or (b) to register for public sale any such securities, in either case in a jurisdiction outside the United States, the Holders shall be provided, as a condition to such listing or registration, with registration rights in such other jurisdiction that are the same, in all material respects, to the registration rights such Holders have with respect to listings or registrations in the United States pursuant to the terms of this Agreement.

 

(d)                This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed in and to be performed in that state and without regard to any applicable conflicts of law. In any action between the parties hereto arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement: (i) each of the parties irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of either the state courts located in the City and County of New York or the United States District Court for the Southern District of New York and (ii) each of the parties irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid.

 

(e)                Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of (i) the Company, (ii) the Existing Investors that are Holders of a majority of the Registrable Securities then outstanding held by all Existing Investors and (iii) the Summa Investor(s) that are Holders of a majority of the Registrable Securities then outstanding held by all Summa Investor(s). Notwithstanding the foregoing, this Agreement may not be amended or terminated and the observance of any term hereof may not be waived with respect to any Holder without the written consent of such Holder, unless such amendment, termination, or waiver applies to all Holders in the same fashion. The Company shall give prompt notice of any amendment or termination hereof or waiver hereunder to any party hereto that did not consent in writing to such amendment, termination, or waiver. Any amendment, termination, or waiver effected in accordance with this Section ‎4(e) shall be binding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision. For the avoidance of doubt, unless otherwise expressly provided in this Agreement, no provisions in this Agreement shall survive the termination of registration rights pursuant to Section 2.6.

 

(f)                 Without limiting Section ‎2.16, any Person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that a breach of this Agreement would cause irreparable harm and money damages would not be an adequate remedy for any such breach of the provisions of this Agreement and that, in addition to any other rights and remedies existing in its favor, any party shall be entitled to specific performance and/or other injunctive relief from any court of law or equity of competent jurisdiction (without posting any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement. The rights and remedies of each of the parties under this Agreement shall be cumulative and not exclusive of any rights or remedies which either would otherwise have hereunder or at law or in equity or by statute, and no failure or delay by either party in exercising any right or remedy shall impair any such right or remedy or operate as a waiver of such right or remedy, nor shall any single or partial exercise of any power or right preclude such party’s other or further exercise or the exercise of any other power or right. No failure by any party to exercise any right or privilege hereunder shall be deemed a waiver of such party’s rights or privileges hereunder or shall be deemed a waiver of such party’s rights to exercise the same at any subsequent time or times hereunder. The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Sections ‎2.1 or ‎2.2 shall terminate when no Registrable Securities are outstanding.

  

(g)                This Agreement may be executed and delivered in two or more counterparts, each of which shall deemed an original, but all of which together shall constitute one and the same instrument.

 

(h)                If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and this Agreement shall be carried out as if any such illegal, invalid or unenforceable provision were not contained herein.

 

(i)                 This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matters hereof and supersedes all prior agreements, understandings and negotiations, both written and oral, between the parties with respect to the subject matter hereof.

 

 

IN WITNESS WHEREOF, the parties have executed this Amended and Restated Stockholders’ Agreement as of the date first written above.

 

COMPANY

 

Olink Holding AB (publ)

 

By:
Name:
Title:

 

 

Address:

 

[ADD ADDRESS]

 

[Signature Page to Registration Rights Agreement]

 

 

EXISTING SHAREHOLDERS

 

[ADD EXISTING SHAREHOLDERS]

 

[Signature Page to Registration Rights Agreement]

 

 

Knilo InvestCo AB

 

By:
Name:
Title:

 

[Signature Page to Registration Rights Agreement]

 

 

Schedule A

 

Summa Investors

 

[LIST ENTITIES]

 

[Signature Page to Registration Rights Agreement] 

 

 

Schedule B

 
Existing Investors

 

[ADD EXISTING INVESTORS]

 

[Signature Page to Registration Rights Agreement] 

 

 

Schedule C

 

[ADD ADDRESSES]

 

[Signature Page to Registration Rights Agreement] 

 

 

Exhibit A

ACCESSION AGREEMENT

 

This Accession Agreement (“Accession Agreement”) is executed on  , 20, by the undersigned (the “Holder”) pursuant to the terms of that certain Registration Rights Agreement dated as of [  ], 2021 (the “Agreement”), by and among Olink Holding AB (publ), a limited liability company incorporated under the laws of Sweden (the “Company”), the Summa Investor(s) (as defined in the Agreement), and each of the shareholders listed on ‎Schedule B thereto. Capitalized terms used and not defined herein shall have the meanings ascribed in such terms in the Agreement. By the execution of this Accession Agreement, the Holder agrees as follows.

 

1.1               Acknowledgement. Holder acknowledges that Holder is acquiring certain shares of the Company (the “Shares”) in accordance with Section ‎2.14 of the Agreement, as a holder of Registrable Securities.

 

1.2               Agreement. Holder hereby (a) agrees that the Shares, and any other share capital or securities required by the Agreement to be bound thereby, shall be bound by and subject to the terms of the Agreement and (b) adopts the Agreement with the same force and effect as if Holder were originally a party thereto.

 

1.3               Notice. Any notice required or permitted by the Agreement shall be given to Holder at the address or facsimile number listed below Holder’s signature hereto.

 

[Remainder of page intentionally left blank]

 

 

HOLDER:			ACCEPTED AND AGREED:
By:			Olink Holding AB (publ)
	Name and Title of Signatory

 

Address:				By:
				Name:
Facsimile Number:				Title:

[Remainder of page intentionally left blank]

 

 

 

Exhibit 10.1

 

CERTAIN INFORMATION IN THIS DOCUMENT, MARKED BY [****], HAS BEEN EXCLUDED PURSUANT TO REGULATION S-K, ITEM 601(b)(10)(iv). SUCH EXCLUDED INFORMATION IS NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.

 

OEM SUPPLY AND LICENSE AGREEMENT

 

This Manufacturing Supply Agreement, dated as of August 10, 2016 (the “Agreement”), is entered into by and between Bio-Techne Corp., a Minnesota corporation having its principal place of business at 614 McKinley Place NE (“Bio-Techne”), and Olink Proteomics AB, a Swedish company, registration no. 559046-8632, having an address at Dag Hammarskjölds väg 52B, SE-752 37 Uppsala, Sweden (“Buyer”, and together with Bio-Techne, the “Parties”, and each, a “Party”).

 

WHEREAS, Bio-Techne is in the business of manufacturing and selling antibodies, proteins and related reagents for research and diagnostic use;

 

WHEREAS, Buyer wishes to purchase certain Goods (as defined below) exclusively from Bio- Techne; and WHEREAS, Bio-Techne desires to manufacture and sell the Goods to Buyer.

 

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1.             Definitions. Capitalized terms have the meanings set forth or referred to in this Section 1.

 

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise.

 

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

 

“Agreement” has the meaning set forth in the preamble to this Agreement.

 

“Basic Purchase Order Terms” means, collectively, any one or more of the following terms specified by Buyer in a Purchase Order pursuant to Section 3.2: (a) a list of the Goods to be purchased; (b) the quantity of each of the Goods ordered; (c) the Requested Delivery Date; (d) the unit Price for each of the Goods to be purchased; (e) the billing address; and (f) the Delivery Location. For the avoidance of doubt, the term “Basic Purchase Order Terms” does not include any general terms or conditions of any Purchase Order.

 

“Bio-Techne” has the meaning set forth in the preamble to this Agreement.

 

“Bio-Techne’s Intellectual Property Rights” means [*****].

 

Bio-Techne’s Trademarks” means [*****].

 

 

“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Minneapolis, MN, USA are authorized or required by Law to be closed for business.

 

“Buyer” has the meaning set forth in the preamble to this Agreement.

 

“Buyer Contracts” means all contracts or agreements to which Buyer is a party or to which any of its material assets are bound.

 

“Buyer Products” means [*****].

 

“Buyer Services” means [*****].

 

“Claim” means any Action brought against a Person entitled to indemnification under Section 10.

 

“Confidential Information” has the meaning set forth in Section 13.1.

 

“Control” (and with correlative meanings, the terms “Controlled by” and “under common Control with”) means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership or voting securities, by contract, or otherwise.

 

“Defective” means not conforming to the Product Warranty under Section 10.3.

 

“Defective Goods” means goods shipped by Bio-Techne to Buyer pursuant to this Agreement that are Defective.

 

“Delivery Location” means the street address within the Territory for delivery of the Goods specified in the applicable Purchase Order.

 

“Disclosing Party” has the meaning set forth in Section 13.1.

 

“Dispute” has the meaning set forth in Section 16.15.

 

“Dispute Notice” has the meaning set forth in Section 16.15.

 

“Effective Date” means January 1, 2016.

 

“Force Majeure Event” has the meaning set forth in Section 16.19.

 

“Forecast” means, with respect to any [*****] period, a good faith projection or estimate of Buyer’s requirements for Goods during each [*****] during the period, which approximates, as nearly as possible, based on information available at the time to Buyer, the quantity of Goods that Buyer may order [*****].

 

“Goods” means the goods identified on Schedule 1 and described in the Specifications.

 

 

“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other nongovernmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

 

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.

 

“Indemnified Party” has the meaning set forth in Section 11.1.

 

“Indemnifying Party” has the meaning set forth in Section 11.1.

 

“Initial Term” has the meaning set forth in Section 7.1.

 

“Inspection Period” has the meaning set forth in Section 4.6.

 

“Intellectual Property Rights” [*****].

 

“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.

 

“Losses” has the meaning set forth in Section 11.1.

 

“Net Sales” [*****].

 

“Nonconforming Goods” means any goods received by Buyer from Bio-Techne pursuant to a Purchase Order that: (a) do not conform to the catalog number listed in the applicable Purchase Order; (b) do not fully conform to the Specifications; or (c) materially exceed the quantity of Goods ordered by Buyer pursuant to this Agreement or any Purchase Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of this Agreement.

 

“Notice” has the meaning set forth in Section 16.4.

 

“Party” has the meaning set forth in the preamble to this Agreement.

 

“Patents” means all patents (including all reissues, divisional, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models).

 

“Payment Failure” has the meaning set forth in Section 7.3(a).

 

 

“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.

 

“Personnel” of a Party means any agents, employees, contractors or subcontractors engaged or appointed by such Party.

 

“Price” has the meaning set forth in Section 5.1.

 

“Product Warranty” has the meaning set forth in Section 10.3.

 

“Purchase Order” means Buyer’s purchase order issued to Bio-Techne hereunder, including all terms and conditions attached to, or incorporated into, such purchase order.

 

“Receiving Party” has the meaning set forth in Section 13.1.

 

“Renewal Term” has the meaning set forth in Section 7.2.

 

“Representatives” means a Party’s Affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.

 

“Requested Delivery Date” means the requested delivery date for Goods ordered hereunder that is set forth in a Purchase Order, which must be a Business Day no less than [*****] following delivery of the applicable Purchase Order to Bio-Techne.

 

“Specifications” means the specifications for the Goods attached hereto as Exhibit A and Exhibit B.

 

“Taxes” means any and all present and future sales, income, stamp and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any Governmental Authority, together with any interest or penalties imposed thereon.

 

“Term” has the meaning set forth in Section 7.2.

 

“Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

 

“Trade Secrets” [*****].

 

“US” means the United States of America.

 

“Warranty Period” has the meaning set forth in Section 10.3.

 

 

2.            Purchase and Sale of Goods.

 

2.1           Purchase and Sale. 

 

2.1.1        Subject to the terms and conditions of this Agreement, during the Term, Buyer shall [*****], and Bio-Techne shall manufacture and sell to Buyer, [*****].

 

2.1.2        Unless otherwise provided in Schedule 1, subject to the terms and conditions of this Agreement, Buyer shall purchase from Bio-Techne, and Bio-Techne shall manufacture and sell to Buyer, [*****] the Goods; provided, that, notwithstanding anything to the contrary contained herein: (i) [*****].

 

2.2           Terms of Agreement Prevail Over Buyer’s Purchase Order. The Parties intend for the express terms and conditions contained in this Agreement (including any Schedules and Exhibits hereto) and the Basic Purchase Order Terms contained in the applicable Purchase Order to exclusively govern and control each of the Parties’ respective rights and obligations regarding the subject matter of this Agreement, and this Agreement is expressly limited to such terms and conditions. Without limitation of the foregoing, any additional, contrary or different terms contained in any Purchase Order or other request or communication by Buyer pertaining to the sale of Goods by Bio-Techne, and any attempt to modify, supersede, supplement or otherwise alter this Agreement, will not modify this Agreement or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized Representatives of both Parties.

 

2.3         Right to Manufacture and Sell Competitive Goods. This Agreement does not limit Bio-Techne’s right to manufacture or sell, or preclude Bio-Techne from manufacturing or selling, to any Person, or entering into any agreement with any other Person related to the manufacture or sale of, the Goods and other goods or products that are similar to or competitive with the Goods.

 

2.4          Use of Goods and Restrictions. The Goods may be repackaged and relabeled, and must be sold or used under Buyer’s own label; Bio-Techne shall not be identified on any Product sold by Buyer (e.g., packaging, printed marketing materials, web, etc.), provided, however, that Buyer may inform its customers of the identity of Bio-Techne if asked directly about Buyer’s suppliers. Buyer acknowledges that Goods are not submitted by Bio-Techne for regulatory review or validated for clinical, therapeutic or diagnostic use, safety or efficacy, or any other specific use or application. It is solely Buyer’s responsibility to ensure the Goods are suitable for Buyer’s intended market. Buyer is solely responsible for complying with all applicable laws, regulations and governmental policies when reselling Goods and for obtaining all necessary approvals, permissions and/or licenses or intellectual property rights from applicable third parties, as may be required for Buyer’s intended uses or sales. Buyer is also responsible for any technical support provided to its customers.

 

 

3.             Ordering Procedure.

 

3.1          Non-binding Forecasts of Buyer’s Requirements. Within [*****] following the full execution of this Agreement, Buyer shall provide to Bio-Techne a Forecast for the [*****]. Pursuant to Bio-Techne’s reasonable request, but in no case more frequently than [*****], Buyer shall deliver to Bio-Techne a [*****] Forecast for the period beginning with the first day of such [*****]. Forecasts are for informational purposes only and do not create any binding obligations on behalf of either Party; provided, however, that Bio-Techne shall not be required to manufacture and sell to Buyer any quantity of Goods that is unreasonably disproportionate to any Forecast for the [*****] covered by such Forecast. Upon receipt of each Forecast, Bio-Techne shall provide written notification to Buyer of any deviations or changes to the Goods or Specifications.

 

3.2          Purchase Orders. Buyer shall issue to Bio-Techne Purchase Orders (containing applicable Basic Purchase Order Terms that are consistent with the terms of this Agreement), in written form via facsimile, e-mail or US mail. By issuing a Purchase Order to Bio-Techne, Buyer makes an offer to purchase Goods pursuant to the terms and conditions of this Agreement and the Basic Purchase Order Terms contained in such Purchase Order, and on no other terms. For the avoidance of doubt, any variations made to the terms and conditions of this Agreement by Buyer in any Purchase Order are void and have no effect. Buyer shall be obligated to purchase from Bio-Techne quantities of Goods specified in a Purchase Order.

 

3.3          Acceptance, Rejection and Cancellation of Purchase Orders. Bio-Techne accepts a Purchase Order by confirming the order in writing or by delivering the applicable Goods to Buyer, whichever occurs first. Bio-Techne may reject a Purchase Order or cancel a previously accepted Purchase Order, which it may do without liability or penalty, and without constituting a waiver of any of Bio-Techne’s rights or remedies under this Agreement or any Purchase Order, by providing written notice to Buyer specifying the applicable date of rejection or cancellation, if any one or more of the events described under Sections 7.3(a)-(c) has occurred.

 

4.             Shipment, Delivery, Acceptance and Inspection.

 

4.1          Shipment. Unless otherwise expressly agreed by the Parties in writing, Bio- Techne shall select the method of shipment of and the carrier for the Goods. Bio-Techne may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale and Buyer shall pay for the Goods shipped, in accordance with the payment terms specified in Section 5.3, whether such shipment is in whole or partial fulfillment of a Purchase Order.

 

4.2          Packaging and Labeling. Bio-Techne shall properly pack, mark and ship Goods and provide Buyer with shipment documentation showing the Purchase Order number, Bio- Techne’s identification number for the subject Goods, the quantity of pieces in shipment, the number of cartons or containers in shipment, Bio-Techne’s name, the bill of lading number and the country of origin.

 

 

4.3          Delivery. Unless otherwise expressly agreed by the Parties in writing, Bio-Techne shall deliver the Goods to the Delivery Location, using Bio-Techne’s standard methods for packaging and shipping such Goods. All Prices are [*****].

 

4.4          Late Delivery. Any time quoted for delivery is an estimate only; provided, however, that Bio-Techne shall use commercially reasonable efforts to deliver all Goods on or before the Requested Delivery Date. If Bio-Techne has delayed shipment of all or any Goods for more than thirty (30) days after the Requested Delivery Date and if such delay is not due to any action or inaction of Buyer or otherwise excused in accordance with the terms and conditions of this Agreement, Buyer may, as its sole remedy therefor, cancel the portion of the related Purchase Order covering the delayed Goods by giving Bio-Techne written Notice within [*****] of the Requested Delivery Date. Buyer has the right to obtain the quantity of Goods covered by the cancelled portion of such Purchase Order from sources other than Bio-Techne, and all such Goods shall be deemed to have been purchased under this Agreement for purposes of satisfying Buyer’s purchasing requirements hereunder. Subject to Buyer’s rights under this Section 4.4, no delay in the shipment or delivery of any Good relieves Buyer of its obligations under this Agreement, including accepting delivery of any remaining installment or other orders of Goods.

 

4.5          Transfer of Title and Risk of Loss.

 

(a)               Title to Goods shipped under any Purchase Order passes to Buyer upon Bio-Techne’s tender of the Goods to the earner at [*****].

 

(b)               Risk of loss to Goods shipped under any Purchase Order passes to Buyer upon Bio-Techne’s tender of such units to the carrier at [*****].

 

4.6          Inspection. Buyer shall inspect Goods received under this Agreement within [*****] of receipt of such Goods (“Inspection Period”) and either accept or, only if any such Goods are Nonconforming Goods, reject such Goods. Buyer will be deemed to have accepted Goods unless it provides Bio-Techne with written Notice of any Nonconforming Goods within [*****] following the Inspection Period, stating with specificity all defects and nonconformities, and furnishing such other written evidence or other documentation as may be reasonably required by Bio-Techne (including the subject Goods, or a representative sample thereof, which Buyer contends are Nonconforming Goods). All defects and nonconformities that are not so specified will be deemed waived by Buyer, such Goods shall be deemed to have been accepted by Buyer, and no attempted revocation of acceptance will be effective. If Buyer timely notifies Bio-Techne of any Nonconforming Goods, Bio-Techne shall determine, in its reasonable discretion, whether the Goods are Nonconforming Goods. If Bio- Techne determines that such Goods are Nonconforming Goods, Bio-Techne shall provide the remedies set forth in Section 10.5.

 

4.7           Limited Right of Return. Except as provided under Section 4.6, Section 10.5 and Section 10.7, Buyer has no right to return Goods shipped to Buyer pursuant to this Agreement.

 

 

5.             Price and Payment.

 

5.1           Price. Buyer shall purchase the Goods from Bio-Techne at the amounts set forth on Schedule 1 attached hereto (“Price”). The Price shall remain firm for [*****] after the Effective Date, except as otherwise may be agreed to in writing by both Parties. Thereafter, upon [*****] prior written notice and no more often than once each year, the Bio- Techne may adjust the purchase prices by submitting a new Schedule 1 to Buyer; provided however, that such purchase price adjustments shall be limited to the lesser of [*****] or the percentage increase, if any, in the United States Bureau of Labor Statistics Consumer Price Index, based on the last published index number. The base index shall be [*****]. The Goods and purchase prices in Schedule 1, as amended from time to time, shall apply to each single purchase order for each single shipment.

 

5.2          Shipping Charges, Insurance and Faxes. Buyer shall pay for all shipping charges and insurance costs. In addition, all Prices are exclusive of, and Buyer is solely responsible for, and shall pay all Taxes, with respect to, or measured by, the manufacture, sale, shipment, use or Price of the Goods (including interest and penalties thereon); provided, however, that Buyer shall not be responsible for any Taxes imposed on, or with respect to, Bio-Techne’s income, revenues, gross receipts, Personnel or real or personal property or other assets.

 

5.3          Payment Terms. Bio-Techne shall issue invoices to Buyer for all Goods ordered, setting forth in reasonable detail the amounts payable by Buyer under this Agreement. Buyer shall pay to Bio-Techne all invoiced amounts within [*****] from Buyer’s receipt of such invoice. Buyer shall make all payments in US dollars by check or wire transfer, in accordance with the following wire instructions:

 

[*****]

 

5.4          Late Payments. Except for invoiced payments that Buyer has successfully disputed, Buyer shall pay interest on all late payments (whether during the Term or after the expiration or earlier termination of the Term), calculated daily and compounded [*****]. Buyer shall also reimburse Bio-Techne for all reasonable costs incurred by Bio-Techne in collecting any late payments, including attorneys’ fees and court costs. In addition to all other remedies available under this Agreement or at Law (which Bio-Techne does not waive by the exercise of any rights under this Agreement), if Buyer fails to pay any undisputed amounts when due under this Agreement, Bio-Techne may (a) suspend the delivery of any Goods, (b) reject Buyer’s Purchase Orders or cancel accepted Purchase Orders pursuant to the terms of Section 3.3 or (c) terminate this Agreement pursuant to the terms of Section 7.3(a).

 

5.5           No Set-off Right. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any Purchase Order, any other agreement, document or Law to, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Bio- Techne or any of its Affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Bio-Techne or Bio-Techne’s Affiliates, whether relating to Bio-Techne’s or its Affiliates’ breach or non-performance of this Agreement, any Purchase Order, any other agreement between (a) Buyer or any of its Affiliates and (b) Bio-Techne or any of its Affiliates, or otherwise.

 

 

6.            Royalties.

 

6.1          Royalties for Buyer Products. Beginning with [*****], Buyer shall pay Supplier a royalty of [*****] of the Net Sales of any Buyer Products.

 

6.2           Royalties for Services. Beginning with the [*****], Buyer will pay a royalty of [*****] on the Net Sales for such Buyer Services.

 

6.3           [*****].

 

6.4           Royalty Payments, Reports. Within [*****] after the end of each [*****] in which this Agreement is in effect, Buyer shall deliver to Bio-Techne full, true, and accurate reports of its activities relating to this Agreement during the preceding [*****] (hereinafter a “Royalty Report”). These Royalty Reports must include: [*****]. The Royalty Report shall also separately include the same information for any Buyer’s Services sold or distributed by Buyer. If no royalties are due, Buyer shall so report.

 

7.            Term; Termination.

 

7.1          Initial Term. The term of this Agreement commences on the Effective Date and continues through December 31, 2026, unless it is earlier terminated pursuant to the terms of this Agreement or applicable Law (the “Initial Term”).

 

7.2           Renewal Term. Upon expiration of the Initial Term, the term of this Agreement will automatically renew for additional successive five (5) year terms, unless either Party provides written Notice of non-renewal at least one (1) year prior to the end of the then-current term (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless any Renewal Term is earlier terminated pursuant to the terms of this Agreement or applicable Law. If the Initial Term or any Renewal Term is renewed for any Renewal Term(s) pursuant to this Section 7.2, the terms and conditions of this Agreement during each such Renewal Term will be the same as the terms in effect immediately prior to such renewal. In the event either Party provides timely Notice of its intent not to renew this Agreement, then, unless earlier terminated in accordance with its terms, this Agreement terminates on the expiration of the Initial Term or then-current Renewal Term, as applicable.

 

7.3           Bio-Techne’s Right to Terminate. Bio-Techne may terminate this Agreement, by providing written Notice to Buyer:

 

(a)               if Buyer fails to pay any amount when due under this Agreement (“Payment Failure”);

 

(b)               if Buyer is in material breach of any representation, warranty or covenant of Buyer under this Agreement (other than committing a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Buyer within a commercially reasonable period of time (in no case exceeding [*****] after Buyer’s receipt of written Notice of such breach;

 

  

(c)                if Buyer (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

 

Any termination under this Section 7.3 will be effective on Buyer’s receipt of Bio- Techne’s written Notice of termination or such later date (if any) set forth in such Notice.

 

7.4           Buyer’s Right to Terminate. Buyer may terminate this Agreement, by providing written Notice to Bio-Techne:

 

(a)               if Bio-Techne is in material breach of any representation, warranty or covenant of Bio-Techne under this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by Bio-Techne within [*****] after Bio- Techne’s receipt of written Notice of such breach; or

 

(b)               if Bio-Techne (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or

 

(c)               in the event of a Force Majeure Event affecting Bio-Techne’s performance under this Agreement for more than [*****].

 

7.5           Effect of Expiration or Termination.

 

(a)               Upon the expiration or earlier termination of this Agreement, all indebtedness of Buyer to Bio-Techne under this Agreement of any kind, shall become immediately due and payable to Bio-Techne, without further notice to Buyer.

 

(b)              Expiration or termination of the Term will not affect any rights or obligations of the Parties that:

 

(i)                 come into effect prior to termination or expiration of this Agreement; or

 

 

 

 

 

(ii)              otherwise survive the expiration or earlier termination of this Agreement pursuant to Section 16.3 and were incurred by the Parties prior to such expiration or earlier termination.

 

(c)                Any Notice of termination under this Agreement automatically operates as a cancellation of any deliveries of Goods to Buyer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Goods had been accepted by Bio-Techne. With respect to any Goods that are still in transit upon termination of this Agreement, Bio-Techne may require, in its sole discretion, that all sales and deliveries of such Goods be made on either a cash-only or certified-check basis.

 

(d)                Upon the expiration or earlier termination of this Agreement, Buyer shall:

 

(i)               destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on Bio-Techne’s Confidential Information;

 

(ii)              permanently erase all of Bio-Techne’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems. Buyer shall destroy any such copies upon the normal expiration of its backup files; and

 

(iii)            certify in writing to Bio-Techne that it has complied with the requirements of this clause.

 

(e)                Termination of this Agreement will not constitute a waiver of any of either Party’s rights, remedies or defenses under this Agreement, at law, in equity or otherwise.

 

8.              Obligations of Buyer.

 

8.1              Certain Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, neither Buyer nor any Buyer Personnel shall:

 

(a)                make any representations, warranties, guarantees, indemnities, similar claims or other commitments:

 

(i)               actually, apparently or ostensibly on behalf of Bio-Techne, or

 

(ii)              to any customer or other Person with respect to the Goods, which are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims or other commitments in this Agreement or any written documentation provided by Bio-Techne to Buyer.

 

 

9.              Compliance with Laws. Buyer shall at all times comply with all Laws applicable to this Agreement, Buyer’s performance of its obligations hereunder and Buyer’s use or sale of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the purchase, use or resale of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of resale, lease, shipment, use or otherwise, that violates any Law.

 

10.            Representations and Warranties.

 

10.1          Buyer’s Representations and Warranties. Buyer represents and warrants to Bio- Techne that:

 

(a)                     it is a corporation, duly organized, validly existing and in good standing under the laws of the Sweden;

 

(b)                     it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required;

 

(c)                     it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;

 

(d)                     the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement, and the delivery of this Agreement by Buyer, have been duly authorized by all necessary action on the part of Buyer;

 

(e)                     the execution, delivery and performance of this Agreement by Buyer will not violate, conflict with, require consent under or result in any breach or default under (i) any of Buyer’s organizational documents, (ii) any applicable Law or (iii) with or without notice or lapse of time or both, the provisions of any material Buyer Contract;

 

(f)                      this Agreement has been executed and delivered by Buyer and (assuming due authorization, execution and delivery by Bio-Techne) constitutes the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms;

 

(g)                     it is in compliance with all applicable Laws and Buyer Contracts relating to this Agreement, the Goods and the operation of its business;

 

(h)                     it has obtained all licenses, authorizations, approvals, consents or permits required by applicable Laws to conduct its business generally and to perform its obligations under this Agreement.

 

 

10.2      Bio-Techne’s Representations and Warranties. Bio-Techne represents and warrants to Buyer that:

 

(a)                     it is a corporation, duly organized, validly existing and in good standing under the laws of the Minnesota;

 

(b)                     it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required;

 

(c)                     it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;

 

(d)                     the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement, and the delivery of this Agreement by Bio-Techne, have been duly authorized by all necessary action on the part of Bio-Techne; and

 

(e)                     the execution, delivery and performance of this Agreement by Bio-Techne will not violate, conflict with, require consent under or result in any breach or default under (i) any of Bio-Techne’s organizational documents, (ii) any applicable Law or (iii) with or without notice or lapse of time or both, the provisions of any Bio-Techne Contract;

 

(f)                      this Agreement has been executed and delivered by Bio-Techne and (assuming due authorization, execution and delivery by Buyer) constitutes the legal, valid and binding obligation of Bio-Techne, enforceable against Bio-Techne in accordance with its terms;

 

(g)                     it is in compliance with all applicable Laws and Bio-Techne Contracts relating to this Agreement, the Goods and the operation of its business; and

 

(h)                     it has obtained all licenses, authorizations, approvals, consents or permits required by applicable Laws to conduct its business generally and to perform its obligations under this Agreement.

 

10.3      Limited Product Warranty. Subject to the provisions of Sections 10.4 through 10.7, Bio-Techne warrants to Buyer (the “Product Warranty”) that:

 

(a)                     for the period of time stated on each Good’s data sheet (the “Warranty Period”), each Good will materially conform to the specifications set forth on the product data sheet; and

 

(b)                     Buyer will receive good and valid title to all Goods, free and clear of all encumbrances and liens of any kind.

 

10.4          Product Warranty Limitations. The Product Warranty does not apply to any Good that:

 

(a)                     has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling,

 

abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Bio-Techne;

 

 

(b)                     has been reconstructed, repaired or altered by Persons other than Bio- Techne or its authorized Representative; or

 

(c)                     has been used with any third-party products, hardware or product that has not been previously approved in writing by Bio-Techne.

 

10.5          Buyer’s Exclusive Remedy for Defective Goods or Nonconforming Goods. Notwithstanding any other provision of this Agreement (except for Section 10.7), this Section 10.5 contains Buyer’s exclusive remedy for Defective Goods or Nonconforming Goods. Buyer’s remedy under this Section 10.5 is conditioned upon Buyer’s compliance with its obligations under Section 10.5(a) and Section 10.5(b) below. During the Warranty Period, with respect to any allegedly Defective Goods:

 

(a)                     Buyer shall notify Bio-Techne, in writing, of any alleged claim or defect within [*****] from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period);

 

(b)                     Buyer shall ship, at its expense, such allegedly Defective Goods to Bio-Techne’s facility located at Minneapolis, for inspection and testing by Bio-Techne;

 

(c)                     if Bio-Techne’s inspection and testing reveals, to Bio-Techne’s reasonable satisfaction, that such Goods are Defective or Nonconforming and any such defect has not been caused or contributed to by any of the factors described under Section 10.4 above, subject to Section 10.5(a) and Section 10.5(b). Bio-Techne shall in its sole discretion and at its expense, repair or replace such Defective Goods; and

 

(d)                     Bio-Techne shall ship to Buyer, at Bio-Techne’s expense and risk of loss, the repaired or replaced Goods to a location designated by Buyer, and credit Buyer for the shipping expense incurred in this Section 10.5(b).

 

Buyer has no right to return for repair, replacement, credit or refund any Good except as set forth in this Section 10.5 (or if otherwise applicable, Section 10.7). In no event shall Buyer reconstruct, repair, alter or replace any Good, in whole or in part, either itself or by or through any third party.

 

SUBJECT TO SECTION 10.7, THIS SECTION 10.5 SETS FORTH BUYER’S SOLE REMEDY AND BIO-TECHNE’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH IN SECTION 10.3.

 

 

10.6          DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES; NON-RELIANCE. EXCEPT FOR THE PRODUCT WARRANTY SET FORTH IN SECTION 10.3, (A) NEITHER BIO-TECHNE NOR ANY PERSON ON BIO-TECHNE’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY BIO-TECHNE, OR ANY OTHER PERSON ON BIO-TECHNE’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 10.2 AND 10.3 OF THIS AGREEMENT.

 

10.7          Withdrawal of Goods. If Bio-Techne determines that any Goods sold to Buyer may be Defective, at Bio-Techne’s request, Buyer shall withdraw all similar Goods from sale and, at Bio-Techne’s option, either return such Goods to Bio-Techne (pursuant to the terms of Section 10.5(b)) or destroy the Goods and provide Bio-Techne with written certification of such destruction. Notwithstanding the limitations of Section 10.5, if Buyer returns all withdrawn Goods or destroys all withdrawn Goods and provides Bio-Techne with written certification of such destruction within [*****] following Bio-Techne’s withdrawal request, in either case consistent with Bio-Techne’s instructions, unless any such defect has not been caused or contributed to by any of the factors described under Section 10.4, Bio-Techne shall (a) repair or replace all such returned Goods or (b) replace such destroyed Goods, in either case pursuant to the terms of Section 10.5(d). THIS SECTION 10.7 SETS FORTH BUYER’S SOLE REMEDY AND BIO-TECHNE’S ENTIRE LIABILITY FOR ANY GOODS THAT ARE WITHDRAWN PURSUANT TO THIS SECTION 10.7.

 

10.8          Nothing in this Agreement shall be construed as:

 

(a)               a warranty or representation that anything made, used, sold or otherwise disposed of under any license granted in this Agreement is or will be free from infringement of patents or other intellectual property rights; or

 

(b)               an obligation to bring or prosecute actions or suits against third parties; or

 

(c)               conferring by implication, estoppel or otherwise any license or rights under any patents or other intellectual property of Bio-Techne other than the Goods; or

 

(d)               an obligation to furnish any know-how not provided in Goods licensed hereunder; or

 

(e)               a warranty or representation of the freedom to operate using the Goods.

 

 

11.              Indemnification.

 

11.1          Mutual Indemnification. Subject to the terms and conditions of this Agreement, including those set forth in Section 11.2, each Party (as “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its officers, directors, employees, agents, Affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), arising out or resulting from any third-party Claim alleging:

 

(a)               a material breach or non-fulfillment of any representation or warranty set forth in Section 10 of this Agreement by Indemnifying Party or Indemnifying Party’s Personnel;

 

(b)               any grossly negligent or more culpable act or omission of Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of this Agreement;

 

(c)               any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Indemnifying Party or its Personnel.

 

Notwithstanding anything to the contrary in this Agreement, this Section 11.1 does not apply to any Claim (whether direct or indirect) for which a sole or exclusive remedy is provided for under another section of this Agreement, including Section 4.4 or Section 10.5.

 

11.2          Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, an Indemnifying Party is not obligated to indemnify or defend (if applicable) an Indemnified Party against any Claim if such Claim or corresponding Losses arise out of or result from the Indemnified Party’s or its Personnel’s:

 

(a)               gross negligence or more culpable act or omission (including recklessness or willful misconduct);

 

(b)               bad faith failure to materially comply with any of its obligations set forth in this Agreement.

 

 

11.3          To the maximum extent permitted by applicable law, none of Bio-Techne, its directors, officers, employees, or agents (each an “Indemnified Person”) shall have any liability or responsibility whatsoever to Buyer or any other person or Entity for or on account of any injury, loss, or damage of any kind or nature, sustained by, or any damage assessed or asserted against, or any other liability incurred by or imposed upon, Buyer or any other person or Entity, whether direct, indirect, special, punitive, incidental, consequential or otherwise arising under any legal theory (and further excluding without limitation any existing or anticipated profits or opportunities for profits lost by Buyer) arising out of or in connection with or resulting from (i) the use or sale of the Goods by Buyer or its Affiliates; (ii) any advertising or other promotional activities with respect to either of the foregoing; or (iii) the production, use, or sale of any product, process or service, identified, characterized or otherwise developed by Buyer or any Affiliate with the aid or use of the Goods. Buyer shall indemnify and hold each Indemnified Person harmless against all claims, demands, losses, damages or penalties (including, but not limited to, attorneys’ fees) made against any Indemnified Person with respect to items (i) through (iii) above, whether or not such claims are groundless or without merit or basis. Bio- Techne shall promptly notify Buyer in writing of any claim or suit brought against Bio-Techne in respect of which Bio-Techne intends to invoke the provisions of this Article 11. Buyer shall keep Bio-Techne informed on a current basis of its defense of any claims pursuant to this Article 11.

 

11.4          EXCLUSIVE REMEDY. THIS SECTION 11 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 11.

 

12.              Intellectual Property Rights.

 

12.1          Ownership. Buyer acknowledges and agrees that:

 

(a)               except to the extent provided in a separate written agreement between Buyer and Bio-Techne, Bio-Techne (or its licensors) will retain all Intellectual Property Rights used to create, embodied in, used in and otherwise relating to the Goods and any of their component parts;

 

(b)               any and all Bio-Techne’s Intellectual Property Rights are the sole and exclusive property of Bio-Techne or its licensors;

 

(c)               Buyer shall not acquire any ownership interest in any of Bio-Techne’s Intellectual Property Rights under this Agreement;

 

(d)               any goodwill derived from the use by Buyer of Bio-Techne’s Intellectual Property Rights inures to the benefit of Bio-Techne or its licensors, as the case may be;

 

(e)               if Buyer acquires any Intellectual Property Rights in or relating to any product (including any Good) purchased under this Agreement (including any rights in any Trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Bio- Techne or its licensors, as the case may be, without further action by either Party; and

 

(f)                Buyer shall use Bio-Techne’s Intellectual Property Rights only in accordance with this Agreement and any instructions of Bio-Techne.

 

 

12.2          Prohibited Acts. Buyer shall not:

 

(a)               take any action that interferes with any of Bio-Techne’s rights in or to Bio- Techne’s Intellectual Property Rights, including Bio-Techne’s ownership or exercise thereof;

 

(b)               challenge any right, title or interest of Bio-Techne in or to Bio-Techne’s Intellectual Property Rights;

 

(c)               make any claim or take any action adverse to Bio-Techne’s ownership of Bio-Techne’s Intellectual Property Rights;

 

(d)               engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under this Agreement (including Goods) or any Bio-Techne Trademark.

 

13.              Confidentiality.

 

13.1          Scope of Confidential Information. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, goods and services, Forecasts, confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information and other sensitive or proprietary information. Such information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media and whether or not marked, designated or otherwise identified as “confidential,” is collectively referred to as “Confidential Information” hereunder. Notwithstanding the foregoing, Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence:

 

(a)               is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 13 by the Receiving Party or any of its Representatives;

 

(b)               is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;

 

(c)               was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party;

 

(d)               was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or

 

(e)               is required to be disclosed pursuant to applicable Law.

 

 

13.2          Protection of Confidential Information. The Receiving Party shall, for two (2) years after expiry of Term:

 

(a)               protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;

 

(b)               not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and

 

(c)               not disclose any such Confidential Information to any Person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

 

The Receiving Party shall be responsible for any breach of this Section 13 caused by any of its Representatives. On the expiration or earlier termination of this Agreement, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, pursuant to Section 7.5(d), promptly destroy all Confidential Information and copies thereof that it has received under this Agreement.

 

14.              Access and Audit Rights. Buyer hereby grants Bio-Techne access to Buyer’s operations, facilities, books and records, correspondence, writings, drawings, and receipts related to the Goods and payment of Royalties in accordance with Section 6 for the purpose of ensuring Buyer’s compliance with the terms of this Agreement. Buyer shall maintain all pertinent books and records for a period of [*****]. Buyer shall also cooperate fully with Bio-Techne with respect to all reasonable requests of Bio-Techne relating to the foregoing access rights.

 

15.              Insurance. During the Term, each Party shall, at its own expense, maintain and carry in full force and effect commercial general liability insurance (including product liability coverage) in a sum no less than [*****] with financially sound and reputable insurers, and upon the other Party’s request, shall provide the other Party with a certificate of insurance evidencing the insurance coverage specified in this Section.

 

16.              Miscellaneous.

 

16.1          Relationship of the Parties. The relationship between Bio-Techne and Buyer is solely that of vendor and customer, and they are independent contracting parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.

 

16.2          Entire Agreement. This Agreement, including and together with the Basic Purchase Order Terms and any related exhibits and schedules, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 

 

16.3          Survival; Statute of Limitations. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein will survive the expiration or earlier termination of this Agreement for a period of two (2) years after such expiration or termination; and (b) Sections 1, 10, 11, 12, and 13 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of [*****] after such expiration or termination. All other provisions of this Agreement will not survive the expiration or earlier termination of this Agreement. Notwithstanding any right under any applicable statute of limitations to bring a claim, no Action based upon or arising in any way out of this Agreement may be brought by either Party after the expiration of the applicable survival or other period set forth in this Section 16.3 and the Parties waive the right to file any such Action after the expiration of the applicable survival or other period; provided, however, that the foregoing waiver and limitation do not apply to the collection of any amounts due to Bio-Techne under this Agreement.

 

16.4          Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this section). All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.

 

Notice to Bio-Techne:	[*****]
Notice to Buyer:	[*****]

 

16.5          Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

 

 

16.6          Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

 

16.7          Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

16.8          Amendment and Modification. No amendment to this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party.

 

16.9          Waiver.

 

(a)               No waiver under this Agreement is effective unless it is in writing and signed by the Party waiving its right.

 

(b)               Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.

 

(c)               None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement:

 

(i)               any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or

 

(ii)              any act, omission or course of dealing between the Parties.

 

16.10       Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Buyer’s rights under Section 4.4, Section 4.6, Section 10.5 and each of the Parties’ rights under Section 11 are such Party’s exclusive remedies for the events specified therein.

 

 

16.11       Equitable Remedies. Buyer acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 12 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Buyer of any such obligations, Bio-Techne shall, in addition to any and all other rights and remedies that may be available to Bio-Techne at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Buyer agrees that Buyer will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 16.11.

 

16.12       Assignment. Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Bio-Techne. Bio-Techne may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of Bio-Techne’s assets. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement.

 

16.13       Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.

 

16.14       No Third-Party Beneficiaries. Except as expressly set forth in the second sentence of this Section 16.14, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

16.15       Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”), shall be submitted for negotiation and resolution to the CEO of Bio-Techne (or to such other person of equivalent or superior position designated by Bio-Techne in a written Notice to Buyer) and the CEO of Buyer (or to such other person of equivalent or superior position designated by Buyer in a written Notice to Bio-Techne), by delivery of written Notice (each, a “Dispute Notice”) from either of the Parties to the other Party. Such persons shall negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute within [*****] after delivery of the applicable Dispute Notice, either Party may tile suit in a court of competent jurisdiction in accordance with the provisions of Section 16.17 hereunder.

 

16.16       Governing Law. This Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of Minnesota, United States of America, without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

 

 

16.17       Choice of Forum. In case the pre-litigation dispute resolution as set out in Article 16.15 above does not lead to an amicable solution, any dispute, controversy or claim arising under, out of or relating to this Agreement, including any subsequent amendments, shall be referred to and finally be settled in accordance with the Arbitration Rules of the London Court of International Arbitration (LCIA) without recourse to the ordinary courts of law. The place of arbitration is London, England. The number of arbitrators is three (3). The language of the arbitral proceedings is English.

 

16.18       Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement, if the party sending such facsimile, e-mail or other means of electronic transmission has received express confirmation that the recipient party received the Agreement (not merely an electronic facsimile confirmation or automatic e-mail reply).

 

16.19       Force Majeure. Bio-Techne shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, if such failure or delay is caused by or results from acts beyond Bio-Techne’s control, including: (a) acts of nature; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) requirements of Law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (I) action by any Governmental Authority (whether or not having the effect of Law); (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) shortages of or delays in receiving raw materials; or (j) shortage of adequate power or transportation facilities (each, a “Force Majeure Event”).

 

 

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first set forth above.

 

	BIO-TECHNE CORPORATION
	By	/s/ N. David Eansor
	Name: N. David Eansor
	Title: Sr, VP, Biotech Division
	OLINK PROTEOMICS AB
	By	/s/ Ann-Charlotte Falk
	Name: Ann-Charlotte Falk, CEO
	Title Olink Proteomics AB

 

 

EXHIBIT A

 

SPECIFICATIONS – ANTIBODIES

 

[*****]

 

 

EXHIBIT B – PROTEINS

 

[*****]

 

 

SCHEDULE 1

 

GOODS

 

[*****]

 

 

Exhibit 10.2

 

 

 

CERTAIN INFORMATION IN THIS DOCUMENT, MARKED BY [****], HAS BEEN EXCLUDED PURSUANT TO REGULATION S-K, ITEM 601(b)(10)(iv). SUCH EXCLUDED INFORMATION IS NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.

 

OEM SUPPLY AGREEMENT

 

This OEM Supply Agreement (this “Agreement”) is entered into as of December 29, 2016 (the “Effective Date”) by and between Fluidigm Corporation, a Delaware corporation with its principal place of business at 7000 Shoreline Court, Suite 100, South San Francisco, CA 94080 (“Fluidigm”), and Olink Proteomics AB, a Swedish corporation with its principal place of business at Dag Hammarskjölds väg 52B, SE-752 37 Uppsala, Sweden (“Olink”).

 

A

Fluidigm designs, manufactures and sells equipment incorporating integrated fluidic circuit technology,

 

B

Olink desires to sell certain products (“Olink Products” as further defined in Section 1.4), incorporating aspects of certain Fluidigm products (“Fluidigm Products” as further defined in Section 1.3), and Fluidigm desires to make such Fluidigm Products available to Olink, subject to the terms and conditions of this Agreement.

 

Therefore, the parties agree as follows:

 

1.   CERTAIN DEFINITIONS

 

1.1            “Confidential Information” means any proprietary information disclosed by one party to the other that is in written, graphic, machine readable or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature. Confidential Information may also include oral disclosures provided that such information is designated as confidential at the time of disclosure and reduced to a written summary by the disclosing party within [****] after its oral disclosure, which is marked in a manner to indicate its confidential nature and delivered to the receiving party Confidential Information will not include any information that (a) was publicly known and made generally available prior to the time of disclosure by the disclosing party, (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party, (c) is already in the possession of the receiving party at the time of disclosure, (d) is obtained by the receiving party from a third party without a breach of such third party s obligations of confidentiality, or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

 

1.2            “Documentation” means any documentation or materials provided or made available by Fluidigm to Olink under this Agreement, including documentation and materials describing Fluidigm Products.

 

1.3            “Fluidigm Products” [****] as described in Exhibit A. Fluidigm shall give Olink advance written notice at least [****] before the cancellation of any Fluidigm Product. With respect to the modification of any Fluidigm Product, Fluidigm shall give Olink updated protocols, published specifications, and all quality control reports necessary for Olink’s system validation at least [****] for [****] and [****] for all other products listed above before the first delivery of modified Fluidigm Product.

 

1.4            “Olink Products” means products marketed or sold by Olink that comprise a Fluidigm Product.

 

2.   GENERAL OBLIGATIONS

 

2.1            Relationship. Subject to the terms of this Agreement, Fluidigm agrees to sell Fluidigm Products to Olink that are identified in Exhibit A.

 

2.2            Account Manager. Each party will designate a single point of contact within its organization to manage the relationship established by this Agreement (“Account Manager”). Either party may change its Account Manager by providing written notice to the other party. The Account Managers will meet as necessary to discuss the business relationship and manage the activities contemplated by this Agreement. Disputes that cannot be resolved by the Account Managers will be escalated to more senior executives for resolution.

 

2.3            Advertising and Marketing Practices. In advertising and marketing of Fluidigm Products and otherwise performing under this Agreement, Olink will: (a) not engage in any deceptive, misleading, illegal, or unethical practices; (b) not make any representations, warranties, or guarantees concerning the Fluidigm Products that are inconsistent with or in addition to those made by Fluidigm in this Agreement; and (c) comply with all applicable federal, state, and local laws and regulations. Olink will indemnify, defend, and hold Fluidigm harmless from and against all damages, liabilities, costs, and expenses, including attorneys’ and experts fees and expenses, that Fluidigm may incur as the result of any action brought against Fluidigm and arising out of the acts of Olink or its agents in breach of this Section 1.1.

 

 

2.4            Training. Olink will ensure that its employee sales representatives receive appropriate training relating to the Olink Products, and document who has received such training and the date such training was provided.

 

2.5            Proprietary Rights. Title to and ownership of all intellectual property rights embodied by the Fluidigm Products, including all related technical know-how, are and as between the parties will remain the exclusive property of Fluidigm and its suppliers. Olink will not reverse engineer, disassemble, or otherwise attempt to reconstruct, identify or discover any underlying ideas, techniques or functionalities of the Fluidigm Products. [****].

 

2.6            Export Restrictions. Olink will obtain all necessary permits and licenses as may be required by, and conforming with, all applicable laws and regulations poor to making the Olink Products available, and all laws, rules and regulations as they pertain to the responsibility to sell Olink Products. Olink represents and warrants that Olink is not located in, under the control of. or a national or resident of any country on the United States Commerce Department’s Table of Denial Orders.

 

2.7            Regulatory Compliance. Olink shall be solely responsible for obtaining and maintaining all necessary and required regulatory clearances, approvals and licenses from all applicable regulatory agencies to commercialize and distribute the Olink Products including any required medical device clearances, approvals and licenses Olink shall comply with all applicable laws and regulations. During the Term, Olink shall be solely responsible for performing any required recall or market withdraw of the Olink Products. Olink shall keep a record of all written and oral complaints concerning the Olink Products. Olink shall promptly inform Fluidigm of all known Fluidigm Product defects, safety problems or any information associated with the safety of the Fluidigm Products and shall promptly notify Fluidigm in writing of any third party dispute involving a Fluidigm Product.

 

2.8            Quality. Subject to Section 10, Olink shall be solely responsible for responding to, and addressing all, customer complaints related to the Olink Products. Olink shall promptly forward to Fluidigm all customer complaints related directly to the quality or performance of the Fluidigm Products.

 

2.9            Direct Sales by Fluidigm. Fluidigm reserves the unrestricted right to market, and sell Fluidigm Products worldwide, including without limitation through distributors, resellers, and other third party intermediaries and directly to any customer.

 

3.   PURCHASE OF FLUIDIGM PRODUCTS

 

3.1            Purchase Orders. The purchase and sale of Fluidigm Products will be made against specific written purchase orders submitted by Olink to Fluidigm or to any Fluidigm distributor pursuant to Fluidigm s written instructions. All purchase orders shall contain the information set forth in Exhibit B attached hereto. If Olink is in compliance with Section 5.1 at the time it submits a purchase order, Fluidigm or the Fluidigm distributor shall accept all such binding purchase orders made pursuant to Section 3.6. Fluidigm or the Fluidigm distributor will notify Olink of acceptance within 14 days of receipt. Accepted purchase orders are non-cancelable. In the event that a Fluidigm distributor accepts a purchase order on behalf of Fluidigm, Fluidigm shall ensure such distributor’s compliance with the terms of this Agreement.

 

3.2            Fluidigm Product Pricing. The purchase price for each Fluidigm Product is set forth in Exhibit A. Fluidigm may revise the pricing set forth in Exhibit A at any time by providing [****] prior written notice, such price revisions will occur no more than [****]. Such revised prices will apply to all purchase orders received after [****] following notice of the revision. Prices do not include any taxes, customs charges, duties, or transportation, rigging, drayage, insurance charges or any other costs associated with Fluidigm’s delivery to Olink’s specified location.

 

3.3            Delivery, Acceptance and Title. Unless otherwise expressly agreed to in writing by Fluidigm, all deliveries to destinations within the United States are [****], and all deliveries to destinations outside the U.S. are [****]. Fluidigm’s title (except for software, which is only licensed), and all risk of loss, passes to Olink, and Fluidigm’s liability as to delivery ceases, [****]. For avoidance of doubt, if the above-identified shipping terms are deemed not to apply, title and risk of loss shall pass to Olink upon [****] unless both parties agree in advance and in writing otherwise. Unless specific shipping instructions have been agreed to in writing between Fluidigm and Olink, Fluidigm will ship in accordance with its standard practices and In compliance with all applicable laws and regulations. For multiple unit and/or multiple Fluidigm Product orders, Fluidigm may make delivery in installments, and each installment shall be deemed to be a separate sale. Fluidigm may issue a separate invoice for each installment, which invoice shall be paid without regard to prior or subsequent installments. Subject to the terms and conditions herein, all Products shall be conclusively and irrevocably deemed accepted without qualification by Olink upon delivery. Olink, however, will notify Fluidigm or its representative in writing of any nonconformity to Fluidigm’s extant specifications promptly after delivery. Fluidigm shall be entitled to repair or replace damaged, missing or nonconforming Fluidigm Products, and, subject to the indemnification obligations in section 10, such repair or replacement shall constitute Clink’s sole and exclusive remedies, and Fluidigm’s sole liability and obligation, for any damaged, missing or nonconforming Fluidigm Products.

 

 

3.4            Instrument Inspection. Without limiting the preceding section, within [****] of receipt, Olink shall promptly uncrate and visually inspect any Fluidigm Product upon receipt and notify Fluidigm in writing of receipt of the Fluidigm Product and any visual damage or missing parts that Olink notes. If Olink fails to comply with this section, Olink shall be deemed to have waived its rights to claim incorrect or incomplete delivery or packaging and any related warranty rights.

 

3.5            Recalls. If Fluidigm decides to recall, replace or take other action with respect to any Fluidigm Products, it will promptly notify Olink and Olink will immediately cease distribution of any units of Olink Product incorporating such Fluidigm Products in its possession or control, which are subject to the action until the course of action to be taken has been determined. Olink will maintain traceability record to ensure that each Fluidigm Product can be located at an end-user customer site. In the event Fluidigm initiates a voluntary or mandatory recall of Fluidigm Product, Fluidigm will be responsible for bringing its products into compliance with appropriate regulatory statutes and will bear costs necessary to do so.

 

3.6            Forecasts. At least [****] before the start of each calendar quarter during the Term. Olink will provide Fluidigm with a written, [****] forecast in good faith its anticipated Fluidigm Product needs for the upcoming [****]. The forecast for the immediately upcoming [****] will be binding on Olink and Olink shall submit purchase orders in amount not less than the binding portion of the forecast[****].

 

3.7            Pricing. Olink will set the price for its resale of Olink Products to Olink customers (“Customers”) at its sole discretion and may offer the Olink Products in connection with other Olink services or products for a single price.

 

4.   SUPPORT

 

4.1            INTENTIONALLY OMITTED

 

5.   PAYMENT TERMS AND REPORTING

 

5.1            Payment Terms. Unless otherwise expressly agreed to in writing by Fluidigm, Fluidigm shall invoice Olink for Fluidigm Products ordered by Olink upon shipment of the Fluidigm Product and such invoice shall cover Olink’s purchase price for the Fluidigm Product and any freight, insurance, Taxes and Olink shall pay all such amounts. Unless otherwise expressly agreed to in writing by Fluidigm, all invoices shall be issued and payable in U.S. Dollars, and are due and payable [****] from date of invoice, subject to credit approval. Each delivery shall be considered a separate and independent transaction and payment therefor made accordingly. Amounts outstanding [****] from the date of invoice shall be subject to a service charge of [****], or the maximum allowed by applicable law, if less. If Olink fails to make any payment when due or if Fluidigm deems Olink to be or to have become un-creditworthy, then, without prejudice to Fluidigm’s rights. Fluidigm may, at its option, cancel or suspend future deliveries, and/or require prepayment, letter of credit, or other payment method(s).

 

5.2            Security Interest. Fluidigm hereby reserves a purchase money security interest in Fluidigm Products sold and the proceeds thereof, in the amount of its purchase price. In the event of default by Olink of any of its obligations to Fluidigm, Fluidigm will have the right to repossess the Fluidigm Products sold hereunder without liability to Olink, and Olink will assemble the Fluidigm Products so that Fluidigm may repossess them without a breach of the peace. These security interests will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage, in order to perfect Fluidigm’s security interest. On request of Fluidigm, Olink will execute financing statements and other instruments Fluidigm may request to perfect its security interest.

 

5.3            Taxes. Each Party shall be responsible for the payment of its own tax liabilities arising from this Agreement’s transaction. All transfer documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement shall be borne and paid by respective party when due.

 

6.   TERM AND TERMINATION

 

6.1            Term. This Agreement will commence upon the Effective Date and continue for five (5) years (“Initial Term”), unless earlier terminated in accordance with the provisions of this Agreement. This Agreement will automatically renew for additional successive twelve (12)-month terms unless at least ninety (90) days before the end of the then-current term either party provides written notice to the other party that it does not want to renew. After the first thirty (30) months of the Initial Term. Fluidigm shall also have the option, in sole and absolute discretion, to terminate this Agreement in the event Olink purchases less than eighty percent (80%) of the amounts set forth in the binding forecasts provided by Olink pursuant to Section 3.6 for three consecutive calendar quarters.

 

 

6.2            Suspension: Termination for Cause. Fluidigm may immediately suspend provision of Fluidigm Products if Olink fails to make any payment to Fluidigm within [****] of the receipt of the associated invoice. If either party fails to perform any of its material obligations under this Agreement, including payment in accordance with Section 6, the other party may terminate this Agreement by giving [****] prior written notice, provided that the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the [****]. If either party commits or suffers (voluntarily or involuntarily) an act of bankruptcy, receivership, liquidation, or similar event, the other party may immediately terminate this Agreement.

 

6.3            Termination for Provider Failure. Fluidigm may terminate this Agreement [****] after the provision of written notice to Olink if any third party provider upon which Fluidigm relies in a material respect to manufacture the Fluidigm Products ceases to perform on Fluidigm’s behalf for any reason and Fluidigm is not able to procure the third party provider’s products or services from another party on similar terms to those with the original third party supplier. If Fluidigm terminates this Agreement under Section 6.3, then Fluidigm shall give Olink the right to purchase its pro rata basis of any remaining Fluidigm Products in Fluidigm s inventory at the then-current price

 

6.4            No Liability for Termination. Except as expressly required by law, in the event of termination of this Agreement by either party in accordance with any of the provisions of this Agreement, neither party will be liable to the other, because of such termination, for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of Fluidigm or Olink. Termination will not. however, relieve either party of obligations incurred prior to the effective date of the termination.

 

6.5            Effects of Termination

 

(a)            In addition the following provisions will survive any expiration or termination of this Agreement: Sections 5, 6.4, 6.5, 8, 9, 10, 11, 12, and 13, The termination or expiration of this Agreement will not relieve Olink of the obligation to pay any fees that are due to Fluidigm under this Agreement

 

7.   TRADEMARK USAGE

 

7.1            Use of Company Names. Fluidigm may identify Olink in Fluidigm advertising and marketing materials provided that such materials are approved in writing in advance by Olink, such approval not to be unreasonably withheld. Olink may identify Fluidigm as the supplier Of the Fluidigm Products in Olink s advertising and marketing materials provided that such materials are approved in writing in advance by Fluidigm, such approval not to be unreasonably withheld.

 

8.   LIMITED WARRANTIES AND DISCLAIMER

 

8.1            Limited Warranty to Olink. Fluidigm warrants to and only to Olink that for [****] from the date of shipping (“Instrument Warranty Period”) that the Fluidigm Products shall be free from defects in design, material and workmanship, and conform to Fluidigm’s published specifications at the time of purchase in all material respects Clink’s sole and exclusive remedy and Fluidigm’s sole and exclusive liability, under the foregoing warranty shall be for Fluidigm to repair or replace, as determined by Fluidigm in its reasonable discretion, such Fluidigm Products. Nonconforming Fluidigm Products will be serviced al Clink’s facility or, at Fluidigm’s option, Fluidigm’s facility. If service is performed at Fluidigm’s facility. Fluidigm will bear shipping costs including insurance and risk of loss. This limited warranty is subject to certain exceptions listed below

 

8.2            Exceptions. These warranties shall not apply to and shall be void for any Fluidigm Product that (i) was subject to improper or abnormal use, storage, or operating environment, or any abuse, neglect, negligence or accident, including without limitation Olink’s failure to properly perform routine maintenance and maintain the Fluidigm Product site in accordance with Fluidigm’s written requirements or the use of the Fluidigm Product with any non-Fluidigm product (except as may be specifically recommended, with respect to standard laboratory reagents, tools and equipment ancillary to use of the Fluidigm Product, in the then-current documentation for that Fluidigm Product), (ii) has been incorrectly installed at an end users facility by any person other the Fluidigm or its authorized representative, (iii) repaired, altered, disassembled or reassembled, or moved within, or removed from, Olink’s facility by persons other than Fluidigm or its, (iv) has failed due to externally caused short circuits, incorrect voltages, failure or fluctuation of electrical power, lightning, static or other improper external inputs, or due to Force Majeure, or (v) used with any item other than Fluidigm Products (except as may be set forth in the extant applicable Fluidigm protocol for use of a Fluidigm Product, with associated standard laboratory tools and equipment ancillary to use of such Product). For example, use of an Olink Product with [****] voids the warranty for that reader, unless specifically authorized in writing by Fluidigm. Olink acknowledges that failure to comply with any restriction of use set forth herein will invalidate any warranty provided herein for the reader used in a non-compliant manner. For clarity, and without limitation, use of an Fluidigm Product with consumables other than the Consumables specified for use with that Fluidigm Product will void the warranty for that Fluidigm Product. Without limiting the foregoing, with regard to software, these warranties shall not apply to any failure to conform that is caused by the use or operation of the software in an environment other than that intended or recommended by Fluidigm, or modifications to the software not made or authorized by Fluidigm. Except for assignments in accordance with section 13.2. These warranties are not transferable or assignable, including without limitation, in any re-sale of a Fluidigm Product, and any such attempt to transfer or assign these warranties shall be void Fluidigm neither assumes, nor authorizes any other person to assume for it, any other obligations or liabilities in connection with the sale of Fluidigm Products. Repair or replacement of a Fluidigm Product shall not extend the original warranty period for that Fluidigm Product Except as detailed in section 8.1. Fluidigm s warranties do not cover de-installation, re-installation, or transportation of Fluidigm Products.

 

 

8.3            WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED TO OLINK UNDER SECTION 8 1. FLUIDIGM MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER FLUIDIGM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND ACCURACY. FLUIDIGM DOES NOT WARRANT AGAINST INTERFERENCE WITH ENJOYMENT OR AGAINST INFRINGEMENT EXCEPT AS PROVIDED IN SECTION 9. OLINK WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF FLUIDIGM TO ANY CUSTOMER OR OTHER THIRD PARTY EXCEPT THAT OLINK MAY PASS ON ANY REPRESENTATION AND WARRANTY TO THE EXTENT NOT INCONSISTENT WITH THIS AGREEMENT

 

8.4            Warranties. Olink warrants to Fluidigm that its entry into this Agreement is rightful and does not violate any other agreement to which it is a party, and its conduct in performing its obligations under this Agreement will conform to all applicable laws, treaties and international agreements; general and local industry standards, rules and regulations; and good commercial practices. Fluidigm warrants to Olink that its entry into this Agreement is rightful and does not violate any other agreement to which it is a party, and its conduct In performing its obligations under this Agreement will conform to all applicable laws, treaties and international agreements; general and local industry standards, rules and regulations; and good commercial practices

 

9.   INTELLECTUAL PROPERTY INFRINGEMENT

 

9.1            Infringement Defense. Fluidigm will indemnify, defend and hold harmless Olink and its employees, directors, agents, and representatives (“Olink Indemnified Parties”) from any actual or threatened third party claim that the Fluidigm Products as provided by Fluidigm directly infringe or misappropriate any patent, copyright or trade secret right of any third party if: (a) the applicable Olink Indemnified Party gives Fluidigm written notice of the claim within 30 days of its filing, (b) Fluidigm has full and complete control and responsibility over the defense and associated costs of defense including attorneys’ fees and with respect to accused Fluidigm components, settlement of the claim, (c) the applicable Olink Indemnified Party provides assistance in connection with the defense and settlement of the claim as Fluidigm may reasonably request, and (d) the applicable Olink Indemnified Party complies with any settlement or court order mads in connection with the claim (e.g. relating to the future use of any infringing materials).

 

9.2            Infringement Indemnification. Fluidigm will indemnify each of the Olink Indemnified Parties against (a) all damages, costs and attorneys’ fees finally awarded against any of them in any proceeding under Section 91; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Fluidigm’s consent after Fluidigm has accepted defense of such claim); and (c) if any proceeding arising under Section 9.1 is settled, ail amounts to any third party agreed to by Fluidigm in settlement of any such claims.

 

9.3            Mitigation of Infringement Action. If any Fluidigm Product becomes, or in Fluidigm’s reasonable opinion is likely to become, subject of a claim of infringement of any third party under Section 9.1, then Fluidigm will either: (a) procure the continuing right of Olink to sell the Fluidigm Products; (b) replace or modify the Fluidigm Products in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Fluidigm is unable to do either (a) or (b), Fluidigm may (c) terminate this Agreement with respect to such Fluidigm Product only.

 

 

 

9.4            Exclusions. Fluidigm will have no obligation under this Section 9 for any infringement to the extent that it arises out of or is based upon: (a) the combination, operation or use of the Fluidigm Products with any other product or service if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Fluidigm Products required by or provided by Olink, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) sale of the Fluidigm Products outside of the scope of this Agreement; or (d) Olink’s failure to comply with instructions provided by Fluidigm, if the alleged infringement would not have occurred but for such failure (collectively, the “Excluded Causes”).

 

9.5            Exclusive Remedy. This Section 9 states Fluidigm’s sole and exclusive liability, and the Olink indemnified Parties’ sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Fluidigm Products or Olink’s marketing or sale of the Fluidigm Products.

 

10.  INDEMNIFICATION

 

10.1          Olink Indemnification. Olink will indemnify, defend and hold Fluidigm and its affiliates and their employees, directors, agents, and representatives (“Fluidigm Indemnified Parties”) harmless from any actual or threatened third party claim arising out of or based upon the Excluded Causes. Olink’s performance or failure to perform under this Agreement, Olink’s failure to comply with applicable laws and regulations; or Olink’s negligence or willful misconduct, if: (a) the applicable Fluidigm Indemnified Party gives Olink prompt written notice of the claim; (b) Olink has full and complete control over the defense and settlement of the claim; (c) the applicable Fluidigm Indemnified Party provides assistance in connection with the defense and settlement of the claim as Olink may reasonably request; and (d) the applicable Fluidigm Indemnified Party complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).

 

10.2          Fluidigm Indemnification. Fluidigm will indemnify, defend, and hold harmless Olink (“Olink Indemnified Party”) from any actual or threatened third party claim arising out of or based upon (a) any breach by Fluidigm of this Agreement, including any representations and warranties herein; (b) any failure of Fluidigm to perform or any breach by Fluidigm of any of its covenants or obligations contained in this Agreement or Fluidigm’s negligence or willful misconduct, (c) any failure of Fluidigm to comply with applicable laws and regulation; and; (d) the use, export, import, manufacture, or exploitation of Fluidigm Products if: (a) the applicable Olink Indemnified Party gives Fluidigm prompt written notice of the claim; (b) Fluidigm has full and complete control over the defense and settlement of the claim; (c) the applicable Olink Indemnified Party provides assistance in connection with the defense and settlement of the claim as Fluidigm may reasonably request; and (d) the applicable Olink Indemnified Party complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).

 

10.3          Indemnification. As described in Sections 10.1 and 10.2, an indemnifying Party will indemnify each of the Indemnified Parties against (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 10.1 or 10.2; (b) all out-of- pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without the indemnifying Party’s consent after the indemnifying Party has accepted defense of such claim); and, (c) if any proceeding arising under Section 10.1 or 10.2 is settled, the indemnifying Party will pay any amounts to any third party agreed to by the indemnifying Party in settlement of any such claims. Each party agrees to maintain appropriate insurance to cover such party’s respective risks and liabilities under this Agreement with coverage amounts commensurate with such risks and liabilities, taking into account each party’s capability for self-insurance.

 

10.4          Exclusions. Olink will have no obligation under this Section 10 to the extent that Fluidigm is obligated under Section 9.1 to defend Olink against such third party claim. Fluidigm will reimburse Olink for costs or damages that result from any such actions in accordance with Section 10.

 

11.  CONFIDENTIAL INFORMATION

 

11.1          Non-Use and Non-Disclosure. Each party will (a) treat as confidential all Confidential Information of the other party, (b) not disclose such Confidential Information to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section, provided that the disclosing party has obtained the written consent to such disclosure from the other party, and (c) will not use such Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each party is permitted to disclose the other party’s Confidential Information if required by law so long as the other party is given prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting such information from public disclosure.

 

 

11.2          Confidentiality of Agreement. Neither party to this Agreement will disclose the terms of this Agreement to any third party without the consent of the other party, except as required by securities or other applicable laws. Notwithstanding the above provisions, each party may disclose the terms of this Agreement (a) in connection with the requirements of a public offering or securities filing, (b) in confidence, to accountants, banks, and financing sources and their advisors, (c) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement, or (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.

 

12.  LIMITATION OF LIABILITY

 

12.1          DISCLAIMER OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL. SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

 

12.2          CAP ON LIABILITY. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY OLINK TO FLUIDIGM UNDER THIS AGREEMENT [****].

 

12.3          INDEPENDENT ALLOCATIONS OF RISK. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FLUIDIGM TO OLINK AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

 

13.  GENERAL

 

13.1          Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to- day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party.

 

Nothing in this Agreement will create a joint venture, joint enterprise or partnership, or any relationship other than that of independent contractors, which is the only relationship intended by the parties

 

13.2          Non-Assignability and Binding Effect. Neither Party may assign its rights and obligations under this Agreement without the written consent of the other Party, except pursuant to a merger acquisition, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will be tending upon and inure to the benefit of the parties and their successors and assigns.

 

13.3          Notices. Any notice required or permitted to be given under this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier return receipt requested, to the appropriate party at the address set forth above and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.

 

13.4          Force Majeure. Nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.

 

13.5          Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with Fluidigm’s corporate policies regarding foreign business practices as disclosed to Olink. Olink and its employees and agents will not directly or indirectly make and offer payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Fluidigm in obtaining, retaining, or directing any such business.

 

 

13.6          Governing Law and Arbitration. This Agreement and any disputes arising out of or relating do this Agreement (including its formation or termination) or Fluidigm’s goods software or related services (“Disputes”) shall be governed by and interpreted in accordance with the laws of the State of New York, U.S.A. excluding choice of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. Fluidigm and Olink agree that any dispute or controversy arising out of or in connection with this Agreement shall be finally settled by binding arbitration under the extant rules of the International Centre for Dispute Resolution, by one (1) arbitrator appointed in accordance with such rules. The venue of any such arbitration shall be New York. The arbitration shall be conducted in English, and any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or a true copy thereof. The decision and/or award rendered by the arbitrator shall be written, final and non-appealable, and the parties agree that the decision and award of the arbitrator shall be the sole exclusive and binding remedy between them regarding any and all disputes controversies, claims and counterclaims property before the arbitrator. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award, punitive or exemplary damages against any party The costs of any arbitration, including administrative fees and fees of the arbitrator, shall be shared equally by the parties, and each party shall bear the cost of its own attorneys’ and expert fees, provided that the arbitrator may at his or her discretion award to the prevailing party the costs and expenses incurred by the prevailing party in connection with the arbitration proceeding. The decision and/or award of the arbitrator may be entered m any court of competent jurisdiction for a judicial recognition of the decision and applicable orders of enforcement (which may include, without limitation, permanent injunctive relief or orders for specific performance or for equitable relief), and either party may apply to any court of competent jurisdiction for appropriate restraining orders or temporary injunctive relief pending resolution of any arbitration proceeding. For avoidance of doubt, any such equitable remedies shall be cumulative and not exclusive and are in addition to any other remedies which either party may have under this Agreement or applicable law.

 

13.7          Remedies Cumulative. The remedies provided to the parties under this Agreement are cumulative and will not exclude any other remedies to which a party may be lawfully entitled.

 

13.8         Waiver and Severability. The waiver by either party of any breach of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation under this Agreement will not be a waiver of such party s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement If any part of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect.

 

13.9          Drafting and Interpretation. The parties have had an equal opportunity to participate in the drafting of this Agreement and the attached Exhibits. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context a singular number will include the plural the plural number will include the singular, and the gender of any pronoun will include all genders.

 

13.10        Entire Agreement. This Agreement, including any Exhibits, is the final and complete expression of all agreements between these parties and supersedes all previous oral and written agreements regarding these matters. It may be changed only by a written agreement signed by the party against whom enforcement is sought. The Exhibits referred to in this Agreement are incorporated by this reference as if fully set forth here.

 

13.11        Execution in Counterparts and by Facsimile. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute but one and the same instrument. The Agreement may be executed and delivered electronically by facsimile or PDF and the parties agree that such facsimile or PDF execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each party may use such facsimile or PDF signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used.

 

13.12        Language. This Agreement is in the English language only, which language will be controlling m all respects, and ail versions hereof in any other language will not be binding on the parties. All communications and notices to be made or given pursuant to this Agreement will be in the English language.

 

 

For Fluidigm Corporation			For Olink Proteomics AB
Name:	Steve McPaail		Name:	Lotta Falk, CEO
Title:	CCO		Title:	Olink Proteomics AM
Signature:	/s/ Steve McPaail		Signature:	/s/ Lotta Falk
Date:	29 Dec. 2016		Date:	Dec. 23, 2016

 

 

EXHIBIT A

 

FLUIDIGM PRODUCTS, STRATEGIC PRICING AND NON-BINDING INDICATIONS OF POTENTIAL FUTURE ANNUAL VOLUMES

 

[****]

 

 

EXHIBIT B

 

PURCHASE ORDER REQUIREMENTS

 

[****]

 

 

 

Exhibit 10.3

 

Lease

 

by and between

 

Cresset Grove LLC,

Landlord,

 

and

 

Olink Proteomics, Inc.,

Tenant

 

Dated: May 11, 2018

 

Property: 65 Grove Street, Watertown, Massachusetts

 

 

TABLE OF CONTENTS

 

Article I FUNDAMENTAL LEASE PROVISIONS		1
1.1	Reference Subjects	1
Article II PREMISES AND TERM		3
2.1	Premises	3
2.2	Acceptance of Premises	3
2.3	Term	3
Article III CONDITION OF PREMISES AND TENANT WORK		4
3.1	Initial Construction	4
3.2	Delivery of Possession	4
3.3	Early Access	5
3.4	General Provisions Applicable to Construction	5
Article IV RENT		5
4.1	Annual Fixed Rent	5
4.2	Method of Payment	5
4.3	Additional Rent	6
4.4	Allocation of Certain Operating Expenses	8
4.5	Electricity and Water	8
4.6	Audit	8
Article V ADDITIONAL COVENANTS		9
5.1	Tenant’s Covenants	9
5.2	Landlord’s Covenants	14
Article VI INSURANCE; CASUALTY; TAKING		17
6.1	Insurance	17
6.2	Fire or Casualty	18
6.3	Waiver of Claim - Indemnification	19
6.4	Nonwaiver	19
6.5	Condemnation	19
Article VII DEFAULT		20
7.1	Events of Default	20
7.2	Remedies for Default	21
7.3	Remedies Cumulative	21
7.4	Effect of Waivers of Default	22
7.5	No Accord and Satisfaction:  No Surrender	22
7.6	Waiver of Jury	22
7.7	Landlord’s Curing and Enforcement	22
7.8	Landlord’s Default	23
7.9	Vacancy During Last Three Months	23
7.10	Security Deposit	23
7.11	Guaranty	23

 

 

Article VIII MISCELLANEOUS PROVISIONS		24
8.1	Notice from One Party to the Other	24
8.2	Quiet Enjoyment	24
8.3	Limitation of Landlord’s Liability	24
8.4	Applicable Law and Construction	24
8.5	Successors and Assigns	25
8.6	Relationship of the Parties	25
8.7	Estoppel Certificate	25
8.8	Notice of Lease	25
8.9	Construction on Adjacent Premises	25
8.10	Tenant As Business Entity	26
8.11	Intentionally Omitted	26
8.12	Parking	26
Article IX BROKERS		26
9.1	Brokers	26
Article X LANDLORD’S FINANCING		27
10.1	Subordination and Superiority of Lease	27
10.2	Rent Assignment	27
10.3	Other Instruments	28
10.4	Landlord Representations and Warrantees	28

 

APPENDIX A	PREMISES PLAN	A-1
APPENDIX B	WORK LETTER	B-1
APPENDIX C	RULES AND REGULATIONS	C-1
APPENDIX D	FORM OF LETTER OF CREDIT	D-1
APPENDIX E	FORM OF GUARANTY OF LEASE	E-1

 

 

LEASE

 

Article I

 

FUNDAMENTAL LEASE PROVISIONS

 

1.1               Reference Subjects. Each reference in this Lease to any of the following subjects shall be construed to incorporate the information stated for that subject in this Section.

 

EFFECTIVE DATE:	May 11, 2018
PREMISES:	A portion of the first (1st) floor of the Building, as depicted on Appendix A attached hereto.
BUILDING:	The building consisting of approximately 114,517 rentable square feet located at 65 Grove Street, Watertown, MA
PROPERTY:	The Building and the land upon which it is located
LANDLORD:	Cresset Grove LLC, a Massachusetts limited liability company
LANDLORD’S NOTICE ADDRESS:	c/o Cresset Development LLC [*************] [*************] Attn:  Edward G. Nardi
LANDLORD’S MANAGING AGENT:	Cresset Management LLC [*************] [*************]
TENANT:	Olink Proteomics, Inc., a Delaware corporation
NOTICE ADDRESS OF TENANT PRIOR TO LEASE COMMENCEMENT DATE:	[*************] [*************] Attn:  Jon Heimer
NOTICE ADDRESS OF TENANT AS OF LEASE COMMENCEMENT DATE:	65 Grove Street, 1st Floor Watertown MA 02472 Attn:  Jon Heimer
INITIAL TERM:	Five (5) Years
LEASE YEAR:	The first Lease Year of the Term shall commence on the Lease Commencement Date and end on the last day of the month in which the first (1st) anniversary of the Lease Commencement Date shall occur (unless the Commencement Date shall occur on the first day of a month, in which case the first Lease Year shall end on the day before the first (1st) anniversary of the Commencement Date).  Subsequent Lease Years shall commence on the day after the last day of the first Lease Year or an anniversary thereof, and shall end on an anniversary of the last day of the first Lease Year.

 

 

LEASE COMMENCEMENT DATE:	As defined in Section 2.3 hereof.
LEASE EXPIRATION DATE:	The last day of the sixtieth (60th) month after the Lease Commencement Date

 

ANNUAL FIXED RENT:	Lease Year		Fixed Rent/RSF			Annual Fixed Rent			Monthly Fixed Rent
	Year 1		$	29.00		$	182,584.00		$	15,215.33
	Year 2		$	29.87		$	188,061.52		$	15,671.79
	Year 3		$	30.77		$	193,727.92		$	16,143.99
	Year 4		$	31.69		$	199,520.24		$	16,626.69
	Year 5		$	32.64		$	205,501.44		$	17,125.12

 

PARKING SPACES:	18 unreserved spaces (approximately three (3) spaces per 1,000 rentable square feet)
PREMISES RENTABLE AREA:	Approximately Six Thousand Two Hundred Ninety-Six (6,296) rentable square feet
TENANT’S PERCENTAGE SHARE:	5.50%
PERMITTED USES:	Subject to applicable zoning, for general office, research and development, and laboratory use, and for no other purpose whatsoever.
PUBLIC LIABILITY INSURANCE:	$1,000,000 per occurrence/$2,000,000 in the aggregate, with $5,000,000 umbrella coverage per occurrence
BROKER:	Newmark Grubb Knight Frank
SECURITY DEPOSIT:	$64,109.01 either in cash or in the form of an irrevocable letter of credit attached hereto as Appendix D.
GUARANTOR:	Olink Proteomics AB, a Swedish corporation

 

APPENDICES:	Appendix A -	Premises Plan
	Appendix B -	Landlord’s Work Letter
	Appendix C -	Rules and Regulations
	Appendix D -	Form of Letter of Credit
	Appendix E -	Form of Guaranty of Lease

 

 

Article II

 

PREMISES AND TERM

 

2.1               Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises, subject to and with the benefit of the terms, covenants and conditions of this Lease, and rights, agreements, easements and restrictions of record applicable to the property of which the Premises are a part, all of which Tenant shall perform and observe insofar as the same are applicable to the Premises. Subject to the rules and regulations established by Landlord, attached hereto as Appendix C, as they may be amended from time to time (the “Rules and Regulations”), Tenant shall have the appurtenant rights in common with others to use (a) the common lobbies, hallways, stairways and elevators of the Building serving the Premises in common with others, (b) the exterior walkways, sidewalks and driveways necessary for access to the Premises, and (c) the parking areas serving the Premises. Except as specifically provided herein to the contrary, all the perimeter walls of the Premises except the interior surfaces thereof, any space in or adjacent to the Premises used for shafts, stacks, pipes, conduits, wires and appurtenant fixtures, fan rooms, ducts, electric or other utilities, sinks or other Building facilities, and the use thereof, are expressly excluded from the Premises and reserved to Landlord. Landlord excepts and reserves the right from time to time (a) to install, use, maintain, repair, replace and relocate within the Premises and other parts of the Building, or either, pipes, meters and other equipment, machinery, apparatus and appurtenant fixtures; and (b) to make additions to the Building and alter or relocate any entranceways, common areas or other facilities (including without limitation all access driveways, walkways and parking areas) serving the Premises provided that none of the foregoing unreasonably interferes with Tenant’s use and enjoyment of the Premises for the permitted use. Tenant shall have access to the Building 24 hours per day, 7 days a week.

 

2.2               Acceptance of Premises. Tenant acknowledges that it has inspected the Premises and except as expressly set forth in this Lease, accepts the same in the condition they are in on the Lease Commencement Date, it being expressly agreed that Landlord shall have no obligation, liability or risk whatsoever with respect to the Premises or their condition, except as expressly set forth in this Lease. Tenant further acknowledges that neither Landlord nor any agent or employee of Landlord has made any representations or warranties of any kind, express or implied, concerning the Premises, their condition or this Lease (including, without limitation, any express or implied warranties of merchantability, fitness, habitability or suitability for Tenant’s particular purposes) except as expressly set forth in this Lease. Notwithstanding the foregoing. Landlord represents and warrants that to Landlord’s knowledge, as of the Lease Commencement Date, (i) the Premises and Property shall comply with all applicable federal, state, and local laws, codes, rules, and regulations, and Landlord’s insurance requirements under this Lease, (ii) the roof of the Building shall be in good working order and shall not leak, and (iii) the mechanical, electrical and Building HVAC systems serving the Premises shall be in good working order.

 

2.3               Term. The Lease Commencement Date shall be the first to occur of the following:

 

(a)                the date on which Landlord delivers the Premises to Tenant and substantial completion (as hereinafter defined) of Landlord’s Work (as defined in the Work Letter (as hereinafter defined)) has occurred; or

 

 

(b)                if Landlord reasonably determines that the date of substantial completion of Landlord’s Work is delayed by reason of Tenant Delay(s) (as defined in the Work Letter), the date on which, in Landlord’s reasonable judgment, Landlord’s Work would have been substantially completed but for such Tenant Delay(s). “Substantial completion’’ of Landlord’s Work shall mean completion of such Landlord’s Work except for items which can be completed after Tenant’s occupancy without undue interference with Tenant’s use of all of the Premises including the lab space (i.e. so-called “punchlist items”) and receipt of a certificate of occupancy for the Premises from the appropriate authority and the existence of such punchlist items shall not prevent Tenant from using all material portions of the Premises. Landlord shall use reasonable efforts to complete all punchlist items within thirty (30) days at times and in a manner so as to not unreasonably interfere with Tenant’s use of the Premises for the permitted use, or, if such completion is not feasible for any reason, as soon as conditions permit, and Tenant shall afford Landlord access to the Premises for such purpose.

 

Article III

 

CONDITION OF PREMISES AND TENANT WORK

 

3.1               Initial Construction. As indicated in the Work Letter attached hereto as Appendix B (the “Work Letter”), Landlord shall complete Landlord’s Work as specified therein. Tenant shall have until May 11, 2018, to submit a permit set of plans for Landlord’s Work for Landlord’s approval of the same at Landlord’s sole discretion. Except for Landlord’s Work or as otherwise expressly provided for herein, Landlord is leasing the Premises to Tenant “as is”, without any representations or warranties of any kind (including, without limitation, any express or implied warranties of merchantability, fitness or habitability), subject to all recorded matters, laws, ordinances and governmental regulations and orders.

 

3.2               Delivery of Possession. (a) Except for latent defects and punchlist items, and except to the extent Tenant shall have given Landlord notice not later than sixty (60) days after the Commencement Date of defects in Landlord’s Work, Tenant shall have no claim that Landlord has failed to perform any of Landlord’s Work. Notwithstanding the foregoing, during the first year of the Lease Term Landlord shall repair latent defects at Landlord’s sole cost and expense and shall not include the cost thereof as an Operating Cost.

 

(b)                Landlord shall use diligent efforts to deliver the Premises with Landlord’s Work substantially completed no later than the date that is three (3) months after receipt by Landlord of a building permit for Landlord’s Work (the “Estimated Delivery Date”). If Landlord fails to deliver the Premises with Landlord’s Work substantially completed by the date that is one (1) month after the Estimated Delivery Date, other than due to Tenant Delays or Force Majeure Delays (as defined in the Work Letter), Tenant shall receive a credit toward Rent equal to one day of Base Rent for each day of delay until the Premises are delivered; provided however if Tenant’s current Landlord permits Tenant to remain in its current Premises at the current rent and without further penalties, Tenant shall not be entitled to any rent credit. If Landlord fails to deliver the Premises with Landlord’s Work substantially completed by the date that is two (2) months after the Estimated Delivery Date (the “Extended Delivery Date”), other than due to Tenant Delays or Force Majeure Delays, Tenant shall receive a credit toward Rent equal to two days of Base Rent for each day of delay after the Extended Delivery Date until the Premises are delivered; provided however if Tenant’s current Landlord permits Tenant to remain in its current Premises at the current rent and without further penalties, Tenant shall not be entitled to any rent credit. If Landlord fails to deliver the Premises with Landlord’s Work substantially completed by the date that is two (2) months after the Extended Delivery Date, other than due to Tenant Delays or Force Majeure Delays, Tenant shall have the option to terminate this Lease upon ten (10) business days’ written notice. Within one (1) week of receipt of the building permit for Landlord’s Work, Landlord shall provide notice to Tenant regarding whether Landlord reasonably expects to deliver the Premises to Tenant with Landlord’s Work completed by the Estimated Delivery Date, and shall provide weekly updates to Tenant thereafter.

 

 

3.3               Early Access. Landlord shall permit Tenant access (at Tenant’s sole risk) to the Premises for the thirty (30) day period prior to the anticipated Lease Commencement Date for the purposes of making measurements and installing telecommunications and business equipment and furnishings in the Premises prior to Tenant’s taking possession of the Premises if such can be done without material interference with, or delay in the performance of, Landlord’s Work in the Premises and in harmony with Landlord’s contractors and subcontractors. Any interference with or delay in Landlord’s Work as a result thereof shall be deemed a Tenant Delay.

 

3.4               General Provisions Applicable to Construction. Tenant shall not make any installations, alterations, additions, or improvements in or to the Premises, including, without limitation, any apertures in the walls, partitions, ceilings or floors, without on each occasion obtaining the prior written consent of Landlord, which shall not be unreasonably withheld; provided, however, non-structural alterations costing less than $50,000 shall be permitted without Landlord’s consent, but with at least twenty (20) days’ advance written notice. Tenant shall reimburse Landlord for all reasonable costs incurred by Landlord or any Superior Mortgagee (as defined below) in reviewing Tenant’s proposed installation, alterations, additions or improvements. Any such work so approved by Landlord shall be performed only in accordance with plans and specifications therefor approved by Landlord, which approval shall not be unreasonably withheld. Tenant shall procure at Tenant’s sole expense all necessary permits and licenses before undertaking any work on the Premises and shall perform all such work in a good and workmanlike manner employing materials of good quality and so as to conform with all applicable insurance requirements, laws, ordinances, regulations and orders of governmental authorities. Tenant shall employ for such work only contractors approved by Landlord who can work in harmony with those contractors employed by Landlord, if any, and Tenant shall require all contractors employed by Tenant to carry worker’s compensation insurance in accordance with statutory requirements and commercial general liability insurance covering such contractors on or about the Premises with a combined single limit not less than $1,000,000 per occurrence/$2,000,000 aggregate and shall submit certificates evidencing such coverage to Landlord prior to the commencement of such work. Tenant shall indemnify and hold harmless Landlord from all injury, loss, claims or damage to any person or property occasioned by or growing out of such work, unless such injury, loss, claim or damage arises from the negligence or willful misconduct of Landlord, its agents, employees or contractors. Landlord may inspect the work of Tenant at reasonable times and give notice of observed defects. Upon completion of any such work, Tenant shall provide Landlord with “as built” plans, copies of all construction contracts and proof of payment for all labor and materials.

 

Article IV

 

RENT

 

4.1               Annual Fixed Rent. Annual Fixed Rent during the Term of this Lease shall be the amount per annum set forth in Section 1.1.

 

4.2               Method of Payment. Tenant covenants and agrees to pay the Annual Fixed Rent to Landlord in advance in equal monthly installments (or in the appropriate monthly installments for monthly periods during any Lease Year) on the first day of each calendar month during the Term beginning on the Lease Commencement Date. Tenant shall make ratable payment of Annual Fixed Rent for any portion of a Lease Year (or month) in which the same accrues, all payments of Annual Fixed Rent and additional rent and other sums due hereunder to be paid in current U.S. exchange at the Landlord’s Notice Address or such other place as Landlord may by notice in writing to Tenant from time to time, without demand and without set-off or deduction.

 

 

Without limiting the generality of the foregoing, and except as otherwise specifically provided herein, Tenant’s obligation so to pay shall not be discharged or otherwise affected by reason of the application of any law or regulation now or hereafter applicable to the Premises, or any other restriction of or interference with the use thereof by Tenant, or any damage to or destruction of the Premises by casualty or taking, or on account of any failure by Landlord to perform hereunder or otherwise, or due to any other occurrence. Tenant shall, however, have and maintain, subject to the provisions hereof, the right to seek and obtain from time to time judgments for direct money damages occasioned by Landlord’s breach of the covenants of this Lease.

 

4.3               Additional Rent.

 

4.3.1          Additional Rent - Landlord’s Taxes. Tenant covenants and agrees to pay to Landlord, as additional rent, Tenant’s Percentage Share of Landlord’s Taxes (hereafter defined) for each fiscal tax period, or ratable portion thereof, included in the Lease Term. Tenant shall make estimated payments on account of increases in Landlord’s Taxes in monthly installments on the first day of each month, in amounts reasonably estimated from time to time by Landlord to provide for the full payment of Tenant’s obligation with respect to Landlord’s Taxes on the date such Taxes are due, and with a final payment adjustment between the parties within thirty (30) days after Landlord provides Tenant a statement of Landlord’s Taxes and Tenant’s Share of such Taxes for Landlord’s most recent tax year. Within one hundred twenty (120) days (or such additional time thereafter as is reasonable under the circumstances) after the end of each calendar year, Landlord shall deliver to Tenant a statement of (a) the amount of Landlord’s Taxes for such calendar year, with a copy of the applicable tax bill(s), and (b) the amount of Tenant’s Percentage Share of such taxes. If a statement is delivered more than one year after the end of the applicable calendar year to which it relates, Tenant shall not be liable for any Additional Rent relating to Landlord’s Taxes for such applicable year to the extent Tenant was not notified of such amounts due in an earlier written notice. This section shall survive the expiration or earlier termination of this Lease.

 

4.3.2          Landlord’s Taxes - Definition. As used in this Lease, the term “Landlord’s Taxes” shall mean all taxes, assessments, betterments (amortized over the longest period of time permitted by the municipality to be paid), excises, user fees and all other governmental charges and fees of any kind or nature, or impositions or agreed payments in lieu thereof or voluntary payments made in connection with the provision of governmental services or improvements of benefit to the Building (including any so-called linkage, impact or voluntary betterment payments), and all penalties and interest thereon (if due to Tenant’s failure to make timely payments on account of Landlord’s taxes), assessed or imposed against the Premises or the property of which the Premises are a part (including without limitation any personal property taxes levied on such property or on fixtures or equipment used in connection therewith), or upon Landlord by virtue of its ownership thereof, other than a federal or state income tax of general application. If during the Term the present system of ad valorem taxation of property shall be changed so that, in lieu of or in addition to the whole or any part of such ad valorem tax, there shall be assessed, levied or imposed on such property or Premises or on Landlord any kind or nature of federal, state, county, municipal or other governmental capital levy, income, sales, franchise, excise or similar tax, assessment, levy, charge or fee (as distinct from the federal and state income tax in effect on the Lease Commencement Date) measured by or based in whole or in part upon Building valuation, mortgage valuation, rents or any other incidents, benefits or measures of real property or real property operations, then any and all of such taxes, assessments, levies, charges and fees shall be included within the term Landlord’s Taxes. An appropriate adjustment or refund shall be made in the amount due from or paid by Tenant to Landlord on account of any final abatement, rebate or refund, less the cost and expense of obtaining the same, within thirty (30) days after receipt of same by Landlord.

 

Landlord’s Taxes include reasonable expenses, including fees of attorneys, appraisers and other consultants, incurred in connection with any efforts to obtain abatements or reductions or to assure maintenance of Landlord’s Taxes for any tax fiscal year wholly or partially included in the Term, whether or not successful and whether or not such efforts involve filing of actual abatement applications or initiation of formal proceedings.

 

 

4.3.3          Additional Rent - Operating Expenses. Tenant covenants and agrees to pay to Landlord, as additional rent, Tenant’s Percentage Share of Landlord’s Operating Expenses (hereafter defined) for each of Landlord’s calendar years, or ratable portion thereof, included in the Lease Term. Tenant shall make estimated payments on account of Operating Expenses in monthly installments on the first day of each month in advance, based on amounts reasonably estimated from time to time by Landlord, and with a final payment adjustment between the parties within 14 days after Landlord provides Tenant a statement of Landlord’s Operating Expenses and Tenant’s Share of such Operating Expenses over Base Operating Expenses for Landlord’s most recent calendar year. This section shall survive the expiration or earlier termination of this Lease.

 

4.3.4          Landlord’s Operating Expenses - Definition. “Landlord’s Operating Expenses” means all costs paid or incurred in servicing, operating, managing, maintaining, and repairing the Property and the facilities and appurtenances thereto (except as related specifically to portions of the Property occupied by other tenants), including, without limitation, the costs of the following: (i) supplies, materials and total wage and labor costs and all costs and expenses of independent contractors paid or incurred on account of all persons engaged in the operation, maintenance, security, cleaning and repair of the Building and the land, facilities and appurtenances thereto, including social security, unemployment compensation, pension, vacation, sick pay and other so-called “fringe benefits”; (ii) services furnished generally to tenants of the Building by Landlord; (iii) utilities consumed and expenses incurred in the operation of the Property and the land, facilities and appurtenances thereto; (iv) casualty, liability, workmen’s compensation and all other insurance expenses (and the amount of any deductible in the event of an insured loss), all insurance to be in such amounts and insuring against such risks as Landlord may in its sole discretion from time to time decide; (v) snow removal, planting, landscaping, grounds and parking operation, maintenance and repair expenses and any charges payable pursuant to any declarations or recorded covenants; (vi) management fees which do not exceed those customarily paid with respect to buildings in the area which are similar to the Building, and fees for required licenses or permits; (vii) rental or reasonable depreciation of equipment used in the operation of the Building and the land, facilities and appurtenances thereto, and personal property taxes assessed upon such equipment; and (viii) costs of operating any Building amenities including, without limitation, cafeterias and shower and locker facilities, if any. In addition, if Landlord from time to time and in the ordinary course of maintaining the Property, repairs or replaces any Building components, improvements or equipment or installs any new components, improvements or equipment to the Building (including without limitation energy conservation improvements or other improvements), then the cost of such items amortized over their reasonable life shall be included in Landlord’s Operating Expenses. Landlord’s Operating Expenses shall not include payments of principal, interest or other charges on mortgages or payments of any rent by Landlord on account of any ground lease of the land on which the Building is situated or any lease of the Building; costs of work or services for particular tenants separately reimbursable to Landlord by such tenants; advertising, marketing costs and leasing commissions; costs of so-called leasehold improvements to rentable areas in the Building; payments relating to or arising from any breach by the Landlord of applicable laws; any payments for which a third party is responsible (including but not limited to, another tenant or an insurer); utility expenses that are separately metered for any individual tenant in the Building; expenses for services provided by Landlord for the exclusive benefit of a given tenant or tenants for which Landlord is directly reimbursed by such tenant or tenants; management fees in excess of 4% of the gross revenues of the Property and compensation for administrative staff, executives and officers of Landlord above the level of building manager; all costs, fees and disbursements relating to activities for the solicitation, negotiation and execution of leases for space in the Building (including but not limited to advertising costs, leasing commissions and attorneys’ fees therefor); the costs associated with the operation of the business of the ownership or entity which constitutes “Landlord”, including costs of selling, syndicating, financing or mortgaging any of Landlord’s interest in the Property; repairs or other work required due to fire or other casualty; capital expenditures for items other than Essential Capital Expenditures (as defined below); payments to affiliates of Landlord (excluding property management fees), but only to the extent that they exceed market charges; depreciation; environmental testing, compliance, or remediation; brokerage commissions, legal fees, and other costs incurred in the selling or financing the Building, litigating, or resolving disputes; legal fees and costs arising out of the construction, use, occupation or maintenance of the Building, or the enforcement of any agreements affecting the Building; reserves; costs to acquire art or decoration to the Building; Landlord’s charitable or political contributions; costs required to repair construction defects related to the initial renovation of the Building; and Landlord’s travel or entertainment expenses. “Essential Capital Expenditures” shall mean capital expenditures that are (a) required to comply with any legal requirements coming into applicability after the Effective Date, or (b) reasonably anticipated to result in a reduction in (or minimize increases in) Operating Expenses. Essential Capital Expenditures shall be amortized over the useful life of the applicable item based on industry standards and generally accepted accounting principles until such cost or expense has been fully recovered.

 

 

4.4               Allocation of Certain Operating Expenses. If at any time during the Term, Landlord provides services only with respect to portions of the Building which include the Premises or incurs other Operating Expenses allocable to portions of the Building which include the Premises alone, then such Operating Expenses shall be charged entirely to those tenants, including Tenant, of such portions, notwithstanding the provisions hereof referring to Tenant’s Percentage Share. If, during any period for which Landlord’s Operating Expenses are being computed, less than all of the Building is occupied by tenants, or if Landlord is not supplying all tenants with the services being supplied hereunder, Operating Expenses shall be reasonably estimated and extrapolated by Landlord to determine the Operating Expenses that would have been incurred if the Building were fully occupied for such year and such services were being supplied to all tenants, and such estimated and extrapolated amount shall be deemed to be Landlord’s Operating Expenses for such period.

 

4.5               Electricity and Water. The Premises shall be separately metered, and Tenant shall pay, as Additional Rent, all costs of its electricity usage directly to the appropriate utility company and shall provide to Landlord, at Landlord’s request, proof of such payments. At Landlord’s election, the Premises shall be separately metered, and Tenant shall pay, as Additional Rent, all costs of its water usage directly to the appropriate utility company and shall provide to Landlord, at Landlord’s request, proof of such payments.

 

4.6               Audit. At the request of Tenant at any time within sixty (60) days after Landlord delivers Landlord’s statement of Operating Expenses to Tenant, Tenant (at Tenant’s expense) shall have the right to examine Landlord’s books and records applicable to Landlord’s Operating Expenses. Such right to examine the records shall be exercisable: (i) upon reasonable advance notice to Landlord and at reasonable times during Landlord’s business hours; (ii) only during the 60-day period following Tenant’s receipt of Landlord’s statement of the actual amount of Landlord’s Operating Expenses for the applicable calendar year; and (iii) not more than once each calendar year. In the event (a) an audit of Landlord’s Operating Expenses for such year, conducted by an independent certified public accountant retained by Tenant or an auditing firm approved by Landlord for such purpose who is not employed or retained on a contingency basis, indicates that certain items were improperly included in Landlord’s Operating Expenses and resulted in an overcharge of 5% or more to Tenant and (b) an independent certified public accountant retained by Landlord at Landlord’s expense agrees with the results of said audit, then Landlord shall refund the overage to Tenant and reimburse Tenant for its audit expenses up to $2,500. If Tenant’s accountant and Landlord’s accountant disagree on whether there was an overcharge of more than 5%, then unless the dispute is resolved by the parties, Landlord’s Operating Expenses calculations shall be determined by arbitration in accordance with the then prevailing rules of the American Arbitration Association. If the arbitration proceedings result in a determination that the Operating Costs Statement contained an aggregate discrepancy of more than 5%, Landlord shall bear all costs in connection with such arbitration. If the arbitration proceedings result in a determination that the Operating Costs Statement contained an aggregate discrepancy of less than 5%, Tenant shall bear all costs in connection with such arbitration.

 

 

Article V

ADDITIONAL COVENANTS

 

5.1               Tenant’s Covenants. Tenant covenants that at all times during the Term and such further time as Tenant (or persons claiming by, through or under it) occupies the Premises or any part thereof, it shall perform and observe the following conditions, all at its sole cost and expense:

 

5.1.1           Utilities and Services. Tenant shall provide and pay all charges and deposits for gas, water, sewer, electricity, and other energy, utilities and services if and to the extent used or consumed on the Premises and not included in the Operating Expenses of the Building during the Term which now or hereafter separately serve the Premises, or are not expressly to be provided by Landlord elsewhere hereunder. It is understood and agreed that except as may be expressly provided hereunder, Landlord shall be under no obligation whatsoever to furnish any such services to the Premises, and shall not be liable for (nor suffer any reduction in any rent on account of) any interruption or failure in the supply of the same.

 

5.1.2          Maintenance. Tenant shall maintain, repair and secure the Premises, all improvements and appurtenances thereto, all access areas thereof, and all installations and equipment used in connection therewith, and shall pay all costs and expenses of so doing, keeping the Premises in good order, repair and condition, reasonable wear and tear, and damage by casualty and taking (to the extent provided in Article VI only) excepted. Without limiting the generality of the foregoing, Tenant shall keep all interior walls, floor surfaces and coverings, interior glass, interior windows, doors, partitions, all fixtures and equipment, pipes and drains and other installations used in or exclusively serving the Premises in such good order, repair and condition. Notwithstanding the foregoing, except if caused by Tenant’s misuse, negligence or willful misconduct, Tenant shall not be responsible for electrical, plumbing and Building HVAC systems, but Tenant shall be responsible for any HVAC systems exclusively serving the Premises.

 

5.1.3          Use, Compliance with Laws, AUL.

 

5.1.3.1    Compliance with Laws. Tenant shall use the Premises continuously and uninterruptedly only for the Permitted Uses, and then only as permitted under federal, state, and local laws, regulations and orders applicable from time to time, including without limitation municipal bylaws, land use and zoning laws, environmental laws and regulations (including all laws and regulations regulating the production, use, and disposal of any pollutant or toxic or hazardous material), and occupational health and safety laws, and shall procure all approvals, licenses and permits necessary therefor, in each case giving Landlord true and complete copies of the same and all applications therefor. Tenant shall promptly comply with all present and future laws applicable to Tenant’s use of the Premises or Tenant’s signs thereon, foreseen or unforeseen, and whether or not the same necessitate structural or other extraordinary changes or improvements (but only if such structural or other extraordinary changes or improvements are due to Tenant’s specific use versus general office or lab use) to the Premises or interfere with its particular use and enjoyment of the Premises, and shall keep the Premises equipped with adequate safety appliances and comply with all requirements reasonable in light of the use Tenant is making of the Premises. If Tenant’s use of the Premises results in any unforeseen increase in the premium for any insurance carried by Landlord, then upon Landlord’s notice to Tenant of such increase Tenant shall pay the same to Landlord upon demand as additional rent. Tenant shall, in any event, indemnify, save Landlord harmless, and defend from all loss, claim, damage, cost or expense (including reasonable attorneys’ fees of counsel of Landlord’s choice against whom Tenant makes no reasonable objection) on account of Tenant’s failure so to comply with the obligations of this Section (paying the same to Landlord upon demand as Additional Rent). Tenant’s obligations in the preceding sentence shall survive the expiration or earlier termination of this Lease. Tenant shall conform to the Rules and Regulations from time to time promulgated by Landlord for the operation, care and use of the common areas of the Building and appurtenant improvements and areas in which Tenant is granted rights of use by the terms of this Lease.

 

 

5.1.3.2    Activity and Use Limitation. Landlord and Tenant acknowledge that the Premises are subject to an Activity and Use Limitation, a notice of which is recorded with the Middlesex (South) Registry of Deeds in Book 60629, Page 36 (the “AUL”), and a Declaration of Use Restrictions and Affirmative Covenants dated as June 24, 2014 recorded with said Registry in Book 63800, Page 255 (the “Declaration of Use Restrictions”). Notwithstanding anything in this Lease to the contrary. Tenant agrees that it shall, at all times, comply with the AUL and the Declaration of Use Restrictions and shall not use, or permit the Premises to be used, in violation thereof.

 

5.1.4          Liens and Encumbrances. Tenant shall not create or suffer, shall keep Landlord’s property, the Premises and Tenant’s leasehold free of, and shall promptly remove and discharge, any lien, notice of contract, charge, security interest, mortgage or other encumbrance which arises for any reason, voluntarily or involuntarily, as a result of any act or omission by Tenant or persons claiming by, through or under Tenant, or any of their agents, employees or independent contractors, including without limitation liens which arise by reason of labor or materials furnished or claimed to have been furnished to Tenant or for the Premises.

 

5.1.5          Waiver and Indemnity.

 

5.1.5.1    Waiver. Tenant releases Landlord, Landlord’s mortgagee, Landlord’s property manager and their respective agents and employees from, and waives all claims for, damage or injury to person or property and loss of business sustained by Tenant and resulting from the Building or the Premises or any part thereof or any equipment therein becoming in disrepair, or resulting from any accident in or about the Building unless caused by the negligent act or omission of Landlord, its agents, or employees, except as provided hereinafter in this section. This paragraph shall apply particularly, but not exclusively, to flooding, damage caused by Building equipment and apparatus, water, snow, frost, steam, excessive heat or cold, broken glass, sewage, gas, odors, excessive noise or vibration or the bursting or leaking of pipes, plumbing fixtures or sprinkler devices. Without limiting the generality of the foregoing, Tenant waives all claims and rights of recovery against Landlord, its property manager and their respective agents and employees for any loss or damage to any property of Tenant, which loss or damage is insured against, or required to be insured against, by Tenant pursuant to Section 6.1 hereof, whether or not such loss or damage is due to the fault or negligence of Landlord, its property manager or their respective agents or employees, and regardless of the amount of insurance proceeds collected or collectible under any insurance policies in effect.

 

5.1.5.2    Indemnity. Tenant agrees to indemnify, defend and hold harmless Landlord, Landlord’s mortgagee, Landlord’s property manager, members, officers and lenders and their respective agents and employees, from and against any and all claims, demands, actions, liabilities, damages, costs and expenses (including attorneys’ fees), for injuries to any persons and damage to or theft or misappropriation or loss of property occurring in or about the Building and arising from the use and occupancy of the Premises or from any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises (including, without limitation, any alteration by Tenant) or from any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant to be performed under this Lease or due to any other act or omission of Tenant, its subtenants, assignees, invitees, employees, contractors and agents. Without limiting the foregoing, Tenant shall indemnify, defend and hold Landlord, Landlord’s property manager and Landlord’s mortgagee harmless from any claims, liabilities, damages, costs and expenses arising out of the use or storage of hazardous or toxic materials in the Building by Tenant. If any such proceeding is filed against Landlord or any such indemnified party, Tenant agrees to defend Landlord or such party in such proceeding at Tenant’s sole cost by legal counsel reasonably satisfactory to Landlord, if requested by Landlord. Landlord agrees to indemnify, defend and hold harmless Tenant, Tenant’s members, officers and employees, from and against any actual claims, demands, actions, liabilities, damages, costs and expenses (including attorneys’ fees), for injuries to any persons and damage to or theft or misappropriation or loss of property occurring in or about the Building and arising from the negligence or willful misconduct of Landlord.

 

The provisions of Section 5.1.5 shall survive the expiration or earlier termination of this Lease.

 

 

5.1.6          Landlord’s Right to Enter. Landlord and its agents or employees may upon reasonable notice, and without unreasonable interference with Tenant’s use of the Premises, enter the Premises during business hours (and in case of emergency at any time) for the purpose of performing repairs or replacements, or exercising any of the rights reserved to Landlord herein, or securing or protecting Landlord’s property or the Premises, or removing any alterations or additions not consented to by Landlord, and similarly upon reasonable notice, and without unreasonable interference with Tenant’s use of the Premises, may show the Premises to prospective purchasers and lenders, and during the last 12 months of the Term to prospective tenants, and may keep affixed in suitable places notices for letting and selling. Except in case of emergency, Landlord shall be subject in entering the Premises to reasonable security conditions, if any, set forth by Tenant in writing to Landlord

 

5.1.7          Personal Property at Tenant’s Risk. Landlord’s obligation or election to repair or restore the Premises under this Lease shall not include the repair, restoration or replacement of the furniture or any other personal property owned by or in the possession of Tenant, all of which shall be at Tenant’s sole risk.

 

5.1.8          Overloading, Nuisance, Etc.. Tenant shall not, either with or without negligence, injure, overload, deface, damage or otherwise harm Landlord’s property, the Premises or any part or component thereof; commit any nuisance; permit the emission of any hazardous agents or substances; allow the release or other escape of any biologically or chemically active or other hazardous substances or materials so as to impregnate, impair or in any manner affect, even temporarily, any element or part of Landlord’s property or the Premises or allow the storage or use of such substances or materials in any manner not sanctioned by law or by the highest standards prevailing in the industry for the storage and use of such substances or materials; nor shall Tenant bring onto the Premises any such materials or substances except to use in the ordinary course of Tenant’s business, and then only after written notice is given to Landlord of the identity of such substances or materials; permit the occurrence of objectionable noise or odors; or make, allow or suffer any waste whatsoever to Landlord’s property or the Premises. Landlord may inspect the Premises from time to time, and Tenant will cooperate with such inspections. Without limitation, “hazardous substances” shall include such substances described in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601 et seq. and the regulations adopted thereunder, and “hazardous materials” shall include such materials described in the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901 et. seq.; in the Massachusetts Hazardous Waste Management Act, as amended, M.G.L. Chapter 21, and oil and hazardous materials as defined in the Massachusetts Oil and Hazardous Material Release Prevention Act, as amended, M.G.L., Chapter 21E, and the regulations adopted under these acts. In addition, Tenant shall execute affidavits, representations and the like from time to time at Landlord’s request concerning Tenant’s best knowledge and belief regarding the presence or absence of hazardous materials and substances on the Premises or Property. In all events, Tenant shall indemnify Landlord, Landlord’s property manager, and Landlord’s mortgagees as provided in Section 5.1.5 from any liability arising from or related to the release or threatened release of hazardous materials and substances on the Premises by or on behalf of Tenant, its agents, contractors and invitees. (At the request of Landlord, Tenant will from time to time confirm such indemnity to mortgagees directly with such mortgagees.) The provisions of this Section 5.1.8 shall survive the expiration or earlier termination of this Lease.

 

 

5.1.9          Yield Up. At the expiration or earlier termination of this Lease, Tenant (and all persons claiming by, through or under it) shall, without the necessity of any notice, surrender the Premises (including all Tenant Work, and all replacements thereof, except such additions, alterations and other Tenant Work as Landlord may direct to be removed, which shall be removed by Tenant and the Premises restored to their pre-existing condition) and all keys to the Premises, remove all of its trade fixtures and personal property not bolted or otherwise attached to the Premises (and such trade fixtures and other property bolted or attached to the Premises as Landlord may direct), and all Tenant’s signs wherever located, in each case repairing damage to the Premises and Property which results in the course of such removal and restoring the Premises and Property to a fully functional and tenantable condition (including the filling of all floor holes, the removal of all disconnected wiring back to junction boxes and the replacement of all damaged ceiling tiles). Tenant shall yield up the Premises broom-clean and in good order, repair and condition, reasonable wear and tear and damage by casualty and taking (to the extent provided in Article VI only) excepted. Any property not so removed within thirty (30) days after the expiration or termination of the Lease shall be deemed abandoned and may be removed and disposed of by Landlord in such manner as Landlord shall determine, and Tenant shall pay to Landlord the reasonable cost and expense incurred by it in effecting such removal and disposition and in making any incidental repairs to the Premises. Notwithstanding the foregoing, Tenant shall not be required to remove Landlord’s Work and Tenant shall not be required to remove any Tenant’s Work which has been approved by Landlord unless, at the time of such approval, Tenant requests the ability to allow such work to remain at the end of the Lease Term and Landlord concurs in writing.

 

5.1.10      Holding Over. If Tenant (or anyone claiming by, through or under Tenant) shall remain in possession of the Premises or any part thereof after the expiration or earlier termination of this Lease with respect to any portion of the Premises without any agreement in writing executed with Landlord, the person remaining in possession shall be deemed a tenant at sufferance. Tenant shall thereafter pay Annual Fixed Rent at one hundred fifty percent (150%) of the amount payable for the twelve-month period immediately preceding such expiration or termination and with all additional rent payable and covenants of Tenant in force as otherwise herein provided, and Tenant shall be liable to Landlord for all damages, including consequential damages, incurred in fact, of such breach. After acceptance of the full amount of such rent by Landlord the person remaining in possession shall be deemed a tenant from month-to-month, terminable at any time by unilateral action of Landlord or Tenant, at such rent and otherwise subject to and having agreed to perform all of the provisions of this Lease, but Landlord will not be deemed to have relinquished any claims for damages.

 

5.1.11      Assignment, Subletting.

 

(a)                Tenant shall not, without the prior written consent of Landlord, which shall not be unreasonably withheld: (i) assign, convey, mortgage or otherwise transfer this Lease or any interest hereunder, or sublease the Premises, or any part thereof, whether voluntarily or by operation of law; or (ii) permit the use of the Premises or any part thereof by any person other than Tenant and its employees. Any such transfer, sublease or use described in the preceding sentence (herein referred to as a “Transfer”, which term shall include any reassignment of this Lease after any initial assignment of this Lease by the Tenant named herein, or any subsequent reassignment and any assignment of any sublease with respect to all or any portion of the Premises and any sub-subleasing of any portion of the Premises previously subleased) occurring without the prior written consent of Landlord shall be void and of no effect. Landlord’s consent to any Transfer shall not constitute a waiver of Landlord’s right to withhold its consent to any future Transfer. Landlord’s consent to any Transfer or acceptance of rent from any party other than Tenant shall not release Tenant from any covenant or obligation under this Lease. Landlord may require as a condition to its consent to any assignment of this Lease that the assignee execute an instrument in which such assignee assumes the obligations of Tenant hereunder.

 

 

(b)                If Tenant desires the consent of Landlord to a Transfer, Tenant shall submit to Landlord, at least sixty (60) days prior to the proposed effective date of the Transfer, a written notice which includes such information as Landlord may reasonably require about the proposed Transfer and the transferee, including: (i) the name, business and financial condition of the prospective transferee, (ii) a true and complete copy of the proposed instrument containing all of the terms and conditions of such transfer, (iii) a written agreement of the assignee, subtenant or licensee, in recordable form reasonably approved by Landlord, agreeing with Landlord to perform and observe all of the terms, covenants, and conditions of this Lease, and (iv) such other factors as Landlord may reasonably deem relevant. If Landlord does not terminate this Lease, in whole or in part, pursuant to Section 5.1.11(c), Landlord shall not unreasonably withhold its consent to any assignment or sublease. Landlord shall not be deemed to have unreasonably withheld its consent if, in the judgment of Landlord: (i) the transferee is of a character or engaged in a business which is not in keeping with the standards or criteria used by Landlord in leasing the Building; (ii) the financial condition of the transferee is such that it may not be able to perform its obligations in connection with this Lease; (iii) the purpose for which the transferee intends to use the Premises or portion thereof is in violation of the terms of this Lease or the lease of any other tenant in the Building; (iv) the transferee is a tenant of the Building and Landlord has been in active negotiations with said tenant at any point during the prior three (3) months; (v) consent to the Transfer would violate any provisions of a Superior Mortgage, or (vi) any other basis which Landlord reasonably deems appropriate. If Landlord consents to any Transfer, Tenant shall pay to Landlord fifty percent (50%) of all rent and other consideration received by Tenant in excess of the Rent paid by Tenant hereunder for the portion of the Premises so transferred. Such rent shall be paid as and when received by Tenant. In addition, Tenant shall pay to Landlord any reasonable attorneys’ fees and expenses incurred by Landlord in connection with any proposed Transfer, whether or not Landlord consents to such Transfer.

 

(c)                Other than with respect to a Transfer permitted by subsection (d) below, Landlord shall have the right to terminate this Lease as to that portion of the Premises covered by a Transfer. Landlord may exercise such right to terminate by giving notice to Tenant at any time within thirty (30) days after the date on which Tenant has furnished to Landlord all of the items required under Section 5.1.11(b) above. If Landlord exercises such right to terminate, Landlord shall be entitled to recover possession of, and Tenant shall surrender such portion of, the Premises (with appropriate demising partitions erected at the expense of Landlord) on the later of (i) the effective date of the proposed Transfer, or (ii) sixty (60) days after the date of Landlord’s notice of termination. In the event Landlord exercises such right to terminate, Landlord shall have the right to enter into a lease with the proposed transferee without incurring any liability to Tenant on account thereof.

 

(d)                Notwithstanding the prohibitions set forth in subsection (a) above, Tenant may, without Landlord’s consent, assign its interest in this Lease or sublet the Premises to a corporation or other entity which shall (i) control, (ii) be under the control of, or (iii) be under common control with, Tenant (the term “control” as used herein shall mean ownership of more than 50% of the outstanding voting stock of a corporation, or other equivalent equity and control interest if Tenant is not a corporation) so long as (A) the principal purpose of such assignment or sublease is not the acquisition of Tenant’s interest in this Lease (except if such assignment or sublease is made for a valid intracorporate business purpose to an entity described in clause (iii) above) and is not made to circumvent the provisions of this section, (B) any such assignee or sublessee shall have a net worth, determined in accordance with generally accepted accounting principles, consistently applied, after giving effect to such assignment or sublease equal to or greater than Tenant’s net worth, as so determined, on the date of such assignment, (C) the Tenant named herein shall remain liable for all obligations of Tenant under this Lease, (D) prior to such assignment, such assignee shall enter into a written agreement with Landlord agreeing to be directly bound to Landlord under the terms of this Lease and (E) Tenant provides at least thirty (30) days’ prior written notice to Landlord of such assignment or sublease and copies of any relevant documentation relating to same.

 

 

(e)                In no event shall any Transfer release or relieve Tenant from its obligations to fully observe or perform all of the terms, covenants and conditions of this Lease on its part to be observed or performed. It is agreed that the liabilities and obligations of Tenant hereunder are enforceable either before, simultaneously with, or after proceeding against any assignee, sublessee or other transferee of Tenant. Further, Tenant agrees that the amount of any rent or other payment for the use or occupancy of all or any part of the Premises, by sublease, license, assignment of this Lease, or otherwise, shall not depend, in whole or in part, on the income or profits derived by any person or entity from the Premises, other than an amount based on a fixed percentage or percentages of gross receipts or sales.

 

(f)                 Notwithstanding any transfer of this Lease, Tenant’s (and any guarantor’s) liability to Landlord shall in all events remain direct and primary. Any transferee of all or a substantial part of Tenant’s interest in the Premises shall be deemed to have agreed directly with Landlord to be jointly and severally liable with Tenant for the performance of all of Tenant’s covenants under this Lease; and such assignee shall upon request execute and deliver such instruments as Landlord reasonably requests in confirmation thereof (and agrees that its failure to do so shall be subject to the default provisions hereof). Landlord may collect rent and other charges from such transferee (and upon notice such transferee shall pay directly to Landlord) and apply the net amount collected to the rent and other charges herein reserved, but no transfer shall be deemed a waiver of the provisions of this Section, or the acceptance of the transferee as a tenant, or a release of Tenant or any guarantor from direct and primary liability for the performance of all of the covenants of this Lease. The consent by Landlord to any transfer shall not relieve Tenant from the obligation of obtaining the express consent of Landlord to any modification of such transfer or a further assignment, subletting, license or occupancy; nor shall Landlord’s consent alter in any manner whatsoever the terms of this Lease, to which any transfer at all times shall be subject and subordinate. The breach by Tenant of any covenant in this Section shall be a default for which there is no cure period.

 

(g)                Notwithstanding the foregoing, Landlord’s consent shall not be required under this Section to (i) Tenant’s merger with or consolidation into an entity, or where all or substantially all of the ownership interests in Tenant are sold to an entity (ii) the assignment of this Lease or the subletting of the Premises to a third party which acquires all or substantially all of Tenant’s assets, provided, however, that (A) any such assignee or sublessee shall have a net worth, determined in accordance with generally accepted accounting principles, consistently applied, after giving effect to such assignment or sublease equal to or greater than Tenant’s net worth, as so determined, on the date of such assignment, (B) the Tenant named herein shall remain liable for all obligations of Tenant under this Lease, (C) prior to such assignment, such assignee shall enter into a written agreement with Landlord agreeing to be directly bound to Landlord under the terms of this Lease and (D) Tenant provides at least thirty (30) days’ prior written notice to Landlord of such assignment or sublease and copies of any relevant documentation relating to same.

 

5.2               Landlord’s Covenants.

 

5.2.1          Building Services. Landlord shall furnish the services and utilities described in this Section 5.2. The provisions of such services shall be in a first class manner consistent with the standards applicable to similar buildings in the vicinity of the Property. Tenant may obtain additional services and utilities from time to time if the same are obtainable by Landlord upon reasonable advance request and Tenant shall pay for the same at reasonable rates from time to time established by Landlord upon demand as additional rent. Landlord’s obligation shall be subject to the other provisions of this Lease, reasonable wear and tear and damage caused by or resulting from the acts or omissions of Tenant or its transferees (or their agents, employees, invitees and independent contractors), fire, casualty or eminent domain takings.

 

 

5.2.1.1    Landlord’s Maintenance. Landlord shall maintain in good condition and repair the foundations, exterior walls, exterior windows, masonry, structural floors and roof, plumbing, electrical, water and sewer systems and elevators of the Building insofar as such elements affect the Premises, and the exterior walkways, sidewalks, driveways and parking areas referred to in Section 2.1; but in no event shall Landlord be obligated to repair interior glass, interior windows of the Premises and doors of the Premises, whether interior or exterior (which responsibility shall be Tenant’s), or to repair or maintain any system installed as Tenant Work. Landlord shall provide and reasonably maintain heating, ventilating and air conditioning systems (other than those exclusively serving the Premises). Landlord shall also maintain the common areas of the Building (including restrooms and parking areas) in good condition and repair.

 

5.2.1.2    Office Identification. Subject to Section 5.1.3, Landlord shall provide and install, at Landlord’s expense, Building standard signage on the entry door to the Premises and on the lobby directory to identify Tenant’s official name; all such letters and numerals to be in the Building standard graphics

 

5.2.1.3    Grounds Maintenance. Landlord shall reasonably maintain the grounds adjacent to the Building and the walkways, sidewalks, driveways, landscaping, lighting and parking areas referred to in Section 2.1, including removal of snow and ice.

 

5.2.1.4    Cleaning. Landlord shall clean the Premises (after 5:00 p.m. on business days) and remove Tenant’s trash (after 5:00 p.m. on business days) from the Premises (but Landlord shall not be obligated to remove any trash resulting from improvements or alterations of Tenant) provided the Premises are kept in good order by Tenant. The cost of said cleaning by Landlord shall be included in Operating Expenses. Tenant shall provide Landlord with full access to the Premises to fulfill its responsibilities under this Section 5.2.1.4.

 

5.2.1.5    Landlord shall provide the following additional services:

 

(i)                 HVAC service to the Premises and the common areas of the Building during “Normal Business Hours”, meaning 8:00 a.m. to 6:00 p.m. Monday through Friday (federal, state and local holidays excepted) and under normal business operation to provide a reasonably comfortable temperature. In the event Tenant requires HVAC service to the Premises outside of Normal Business Hours, Landlord agrees to provide such additional HVAC service, and Tenant agrees to pay Landlord for such additional HVAC service at the then current Building rate (which is currently $75.00 per hour) as Additional Rent within thirty (30) days after billing. Such hourly rate shall be subject to reasonable adjustments from time to time to reflect increases in Landlord’s actual costs for providing such additional HVAC service.

 

(ii)               Warm and cold running water for restrooms in the common areas.

 

(iii)             Electricity to the Premises for lights and outlets in amounts suitable for standard office and lab equipment; Landlord represents that the Building has a 480 Volt/3-Phase, 3000 Amp electrical capacity serving the Building.

 

(iv)              Adequate lighting for common areas, including but not limited to stairwells, walkways and parking areas.

 

(v)                On site amenities including but not limited to shower and locker facilities, a bike storage area, and outdoor seating space.

 

(vi)              A card reading Building security system that Tenant may integrate with Tenant’s security system.

 

 

5.2.2          Interruptions. Landlord shall not be liable to Tenant in damages or by reduction of rent or otherwise by reason of inconvenience or annoyance or for loss of business arising from Landlord or its agents or employees entering the Premises for any of the purposes authorized in this Lease or for repairing, altering or improving the Building in a manner reasonable in light of the circumstances so long as such actions do not unreasonably interfere with Tenant’s use of the Premises. In case Landlord is prevented or delayed from making any repairs or replacements or furnishing any services or performing any other covenant or duty to be performed on Landlord’s part by reason of any cause reasonably beyond Landlord’s control, Landlord shall not be liable to Tenant therefor, nor shall the same give rise to a claim in Tenant’s favor that such failure constitutes actual or constructive, total or partial, eviction from the Premises. Landlord reserves the right to stop any service or utility system, when necessary by reason of accident or emergency, or until necessary repairs have been completed; provided, however, that in each instance of stoppage, Landlord shall give Tenant such notice as is practicable under the circumstances of the expected duration of such stoppage and will exercise reasonable diligence to eliminate the cause thereof. Except in case of emergency repairs Landlord will give Tenant reasonable advance notice of any contemplated stoppage and will use reasonable efforts to avoid unnecessary inconvenience to Tenant by reason thereof.

 

Notwithstanding the foregoing, and subject to the terms and conditions of this Lease, if (A) (1) Landlord fails to perform its maintenance obligations under this Lease or fails to use reasonable efforts to avoid interference with Tenant’s business operations in the exercise of rights hereunder with respect to repairs or improvements to the Building or Landlord materially interferes with Tenant’s business operations due to actions taken under Section 8.9 below, or (2) there is an interruption, suspension or stoppage of any service which Landlord is required to provide pursuant to this Lease, including but not limited to the provision of utilities, ((1) and (2) each a “Service Interruption”), (B) such Service Interruption was the result of causes, events or circumstances within Landlord’s reasonable control, (C) such Service Interruption was not caused by Tenant or Tenant’s agents, (D) such Service Interruption continues for more than three (3) consecutive business days after (i) Landlord’s receipt of written notice from Tenant of such Service Interruption or (ii) Landlord become aware of such Service Interruption, and (E) as a result of such Service Interruption, the conduct of Tenant’s normal business operations in the Premises is materially and adversely affected, then there shall be an abatement of one day’s Base Rent for each day during which such Service Interruption continues after such three (3) consecutive Business Day period; provided, however, that if any portion of the Premises is reasonably usable for Tenant’s normal business operations or if Tenant conducts all or any part of its business operations in any portion of the Premises notwithstanding such Service Interruption, then the amount of the daily abatement of Base Rent shall be proportionate to the nature and extent of the interruption of Tenant’s normal business operations or ability to use the Premises. In the event such Service Interruption continues for more than ninety (90) days, Tenant may terminate this Lease.

 

 

 

Article VI

INSURANCE; CASUALTY; TAKING

 

6.1           Insurance.

 

6.1.1       Coverage. Tenant shall purchase and maintain insurance during the entire Term of the Lease for the benefit of the Tenant and Landlord (as their interests may appear) with terms and coverages reasonably satisfactory to Landlord, and with insurers having a minimum A.M. Best rating of A-/VIII, and with such increases in limits as Landlord may from time to time reasonably request, but initially Tenant shall maintain the following coverages in the following amounts:

 

 

 

(a)               Commercial General Liability Insurance naming Landlord, Landlord’s management, leasing and development agents and Landlord’s mortgagee(s) from time to time as additional insureds, with coverage for premises/operations, personal injury, products/completed operations and contractual liability with combined single limits of liability of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage. Tenant shall also have umbrella coverage of at least $5,000,000.

 

(b)               Property Insurance covering property damage and business interruption for not less than one year. Covered property shall include all tenant improvements in the Premises, office furniture, trade fixtures, office equipment, merchandise and all other items of Tenant’s property on the Premises. Such insurance shall be written on a special form (formerly, “all risk”) basis including but not limited to the perils of fire, extended coverage, windstorm, vandalism, malicious mischief, sprinkler leakage, flood and earthquake, for the full replacement cost value of the covered items and in amounts that meet any co-insurance clause of the policies of insurance with a deductible amount not to exceed $5,000.

 

(c)             Workers’ Compensation Insurance with statutory benefits and Employers’ Liability Insurance with the following amounts: Each Accident - $500,000; Disease - Policy Limit - $500,000; Disease - Each Employee - $500,000.

 

Tenant shall, prior to the commencement of the Lease Term and on each anniversary of the Lease Commencement Date and/or renewal date thereof, furnish to Landlord certificate(s) evidencing such coverage, which certificate(s) shall state that such insurance coverage may not be changed or canceled without at least thirty (30) days’ prior written notice to Landlord and Tenant. The insurance maintained by Tenant shall be deemed to be primary insurance, and any insurance maintained by Landlord shall be deemed secondary thereto.

 

6.1.2        Landlord’s Insurance. Landlord will maintain in effect coverage no less broad than ISO CP 10 30 Special Form (formerly “all risk”) covering loss of or damage to the Property in the amount of its replacement value with such endorsements and deductibles as Landlord determines from time to time. Landlord will have the right to obtain flood, earthquake, and such other insurance as Landlord determines from time to time or is required by any mortgagee of the Property. Landlord will not insure Tenant’s fixtures or equipment or building improvements installed or paid by Tenant. Landlord shall obtain commercial general liability insurance in an amount (not less than $2,000,000) and with coverage determined by Landlord insuring Landlord against liability with respect to the Premises and the Property. The policy obtained by Landlord will not provide primary insurance and will not be contributory, with any liability insurance maintained by Tenant.

 

6.1.3        Avoid Action Increasing Rates. Tenant shall comply with all applicable laws and ordinances, all orders and decrees of court and all requirements of other governmental authorities, and shall not, directly or indirectly, make any use of the Premises which may thereby be prohibited or be dangerous to person or property or which may jeopardize any insurance coverage or may increase the cost of insurance or require additional insurance coverage. If Tenant fails to comply with the provisions of this Section 6.1.3 and (i) any insurance coverage is jeopardized and Tenant fails to correct such dangerous or prohibited use following ten (10) days’ notice or (ii) insurance premiums are increased and Tenant fails or (iii) such use is not general office or lab use, following ten (10) days’ notice, to cease such use, then in each event such failure shall constitute an Event of Default by Tenant hereunder, without any further notice or cure right, and Landlord shall have all of its remedies as set forth in the Lease.

 

 

6.1.4        Waiver of Subrogation. Landlord and Tenant each hereby waive any and every claim for recovery from the other for any and all loss of or damage to the Building or Premises or to the contents thereof, which loss or damage is covered by valid and collectible property insurance policies. Landlord waives any and every claim against Tenant for any and all loss of or damage to the Building or the Premises or contents thereof, which would have been covered had the insurance policies required to be maintained by Landlord by this Lease been in force, to the extent that such loss or damage would have been recoverable under such insurance policies. Tenant waives any and every claim against Landlord for any and all loss of, or damage to, the Building or Premises or the contents thereof, which would have been covered had the insurance policies required to be maintained by Tenant under this Lease been in force, to the extent that such loss or damage would have been recoverable under such insurance policies. Inasmuch as this mutual waiver will preclude the assignment of any such claim by subrogation (or otherwise) to an insurance company (or any other person), Landlord and Tenant each agree to give to each insurance company which has issued, or in the future may issue, to it policies of property insurance, written notice of the terms of this mutual waiver, and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of said waiver.

 

6.2          Fire or Casualty. If the Premises or the Building (including machinery or equipment used in its operation) shall be damaged by fire or other casualty and if such damage does not cause a termination of this Lease as described in the following sentences, then Landlord shall repair and restore the damage with reasonable promptness, subject to reasonable delays for insurance adjustments and delays caused by matters beyond Landlord’s reasonable control, but Landlord shall not be obligated to expend for repairing or restoring the damage an amount in excess of the proceeds of insurance recovered with respect to the damage. If in Landlord’s estimate the Premises cannot be restored within two hundred seventy (270) days from the date of such fire or casualty, then Landlord shall give notice to Tenant of such estimate within ninety (90) days after such fire or casualty. Tenant may elect in writing sixty (60) days following the date of such notice from Landlord, time being of the essence, to terminate this Lease effective as of the date of Tenant’s notice. If any such damage (i) renders 25% of the Building untenantable or (ii) renders general Building systems inoperable and such systems cannot be repaired in Landlord’s reasonable estimate within two hundred seventy (270) days from the date of such damage or (iii) occurs within the last Lease Year, Landlord shall have the right to terminate this Lease as of the date of such damage upon written notice given to the Tenant at any time within one hundred twenty (120) days after the date of such damage. If (iii) above occurs or Landlord fails to restore the Premises within one hundred eighty (180) days after the casualty, Tenant may terminate this Lease within thirty (30) days following the date upon which such termination rights was triggered. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease, by virtue of any delays in completion of such repairs and restoration. Annual Fixed Rent and additional rent, however, shall abate on those portions of the Premises as are, from time to time, untenantable and, in fact, unoccupied by Tenant as a result of such damage.

 

Notwithstanding anything to the contrary herein set forth, Landlord shall have no duty pursuant to this Section 6.2 to repair or restore any portion of any alterations, additions, installation or improvements in the Premises or the decoration thereto except to the extent that the proceeds of the insurance carried by Tenant are timely received by Landlord. If Tenant desires any other additional repairs or restoration, and if Landlord consents thereto, it shall be done at Tenant’s sole cost and expense subject to all of the applicable provisions of the Lease. Tenant acknowledges that Landlord shall be entitled to the full proceeds of any insurance coverage whether carried by Landlord or Tenant, for damage to any alterations, addition, installation, improvements or decorations performed or installed by Tenant which would become the Landlord’s property upon the termination of the Lease.

 

 

6.3          Waiver of Claim - Indemnification. Without limiting any other provisions hereof, Tenant agrees to defend, protect, indemnify and save Landlord and its partners, members, affiliates, officers, agents, servants and employees and Landlord’s management, leasing and development agents and Landlord’s mortgagee(s) from time to time from and against all liability to third parties arising out of the use of the Premises or the acts or omissions of Tenant or its servants, agents, employees, contractors, suppliers, workers or invitees. Landlord and its partners, members, affiliates, officers, agents, servants and employees shall not be liable for any damage either to person, property or business resulting from the loss of the use thereof sustained by Tenant or by other persons due to the Building or any part thereof or any appurtenances thereto becoming out of repair, or due to the happening of any accident or event in or about the Building, including the Premises, or due to any act or neglect of any tenant or occupant of the Building or of any other person, unless and then only to the extent caused by the negligence or willful misconduct of Landlord or its agents, employees or contractors. This provision shall apply particularly, but not exclusively, to damage caused by gas, electricity, snow, ice, frost, steam, sewage, sewer gas or odors, fire, water or by the bursting or leaking of pipes, faucets, sprinklers, plumbing fixtures and windows, and except as provided above, shall apply without distinction as to the person whose act or neglect was responsible for the damage and shall apply whether the damage was due to any of the causes specifically enumerated above or to some other cause of an entirely different kind. Tenant further agrees that all personal property upon the Premises, or upon loading docks, recovering and holding areas, or freight elevators of the Building, shall be at the risk of Tenant only, and, except as otherwise provided for in this Section 6.3, that Landlord shall not be liable for any loss or damage thereto or theft thereof. The provisions of this Article VI shall survive the expiration or earlier termination of this Lease.

 

6.4          Nonwaiver. No waiver of any provisions of this Lease shall be implied by any failure of Landlord to enforce any remedy on account of the violation of such provisions, even if such violation is continued or repeated subsequently, and no express waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in the manner specifically stated. No receipt for monies by Landlord from Tenant after the termination of this Lease shall in any way alter the length of the Lease Term or of Tenant’s right to possession hereunder or after the finding of any notice shall reinstate, continue or extend the Lease Term or affect any notice given Tenant prior to the receipt of such monies, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possession of the Premises, Landlord may receive and collect any Annual Fixed Rent and Additional Rent due, and the payment of said Annual Fixed Rent and Additional Rent shall not waive or affect said notice, suit or judgment.

 

6.5          Condemnation. If the Land or the Building (or any portion of the Building, the loss of which would require reconfiguration or restoration of the Building which Landlord reasonably estimates will cost in excess of 25% of the current replacement cost of the Building) shall be taken or condemned by any competent authority for any public or quasi-public use or purpose, Landlord shall have the right to cancel the Lease upon not less than sixty (60) days’ notice prior to the date of cancellation designated in the notice. No money or other consideration shall be payable by Landlord to Tenant for the right of cancellation and Tenant shall have no right to share in the condemnation award or in any judgment for damages caused by such taking or condemnation except to the extent any such award or judgment includes leasehold compensation.

 

If any such taking (i) renders 25% of the Building untenantable or (ii) renders general Building systems inoperable and such systems cannot be repaired in Landlord’s reasonable estimate within two hundred seventy (270) days from the date of such taking or (iii) renders the Premises unusable for the Tenant’s normal business operations, or (iv) occurs within the last Lease Year, or (v) renders more than 25% of the onsite parking unusable (without reasonable replacement being provided), Landlord or Tenant shall have the right to terminate this Lease as of the date of such taking upon written notice given to the other party at any time within one hundred twenty (120) days after the date such taking becomes effective. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease, by virtue of any delays in completion of repairs or restoration following a taking. Annual Fixed Rent and additional rent, however, shall abate on those portions of the Premises as are, from time to time, untenantable and, in fact, unoccupied by Tenant as a result of such taking.

 

 

Article VII

DEFAULT

 

7.1          Events of Default. (a) If Tenant fails to pay any installment of Annual Fixed Rent or additional rent or other sum or charge hereunder when due, provided, however, that on the first occasion in any twelve-month period and one additional time during the Lease Term, Landlord shall furnish Tenant with written notice of such failure and permit Tenant a five-day period to cure such failure, (b) intentionally omitted, or (c) if Tenant shall vacate or abandon all or substantially all of the Premises, or (d) if any assignment shall be made by Tenant (or any assignee, sublessee or guarantor of Tenant) for the benefit of creditors, or (e) if Tenant’s leasehold interest shall be taken on execution or by other process of law, or (f) if a petition is filed by Tenant (or any assignee, sublessee or guarantor of Tenant) for adjudication as a bankrupt, or for reorganization or an arrangement under any provision of any bankruptcy or reorganization act then in force and effect, or (g) if an involuntary petition under the provisions of any bankruptcy act is filed against Tenant (or any assignee, sublessee or guarantor of Tenant) and such involuntary petition is not dismissed within thirty (30) days thereafter, or (h) if Tenant (or any assignee, sublessee or guarantor of Tenant) shall be declared bankrupt or insolvent according to law, or (i) if a receiver, trustee or assignee shall be petitioned for and not contested by Tenant for the whole or any part of Tenant’s (or such assignee’s, sublessee’s or guarantor’s) property, or if a receiver, trustee or assignee shall be appointed over Tenant’s (or such other person’s) objection and not be removed within thirty (30) days thereafter, or (j) if any representation or warranty made by Tenant shall be untrue in any material respect, or (k) if Tenant fails to perform any other material covenant, agreement or condition hereunder and such default continues for thirty (30) days after written notice (provided, however, that such thirty (30) day period shall be reasonably extended in the case of such non-monetary default if the matter complained of can be cured, but the cure cannot be completed within such period and Tenant begins promptly to cure within such period and thereafter diligently completes the cure within sixty (60) days of the initial default; if such matters cannot be cured, then there shall be no cure period), then, and in any such case, Landlord and its agents and employees lawfully may, in addition to and not in derogation of any remedies for any preceding breach, immediately or at any time thereafter, without demand or notice and with or without process of law, enter into and upon the Premises or any part thereof in the name of the whole, or mail or deliver a notice of termination of the Term addressed to Tenant at the Premises or at any other address herein provided, and thereby terminate this Lease and repossess the same as of Landlord’s former estate. Upon such entry or mailing or delivery, as the case may be, the Term shall terminate, all executory rights of Tenant and all obligations of Landlord under this Lease shall immediately cease, and Landlord may expel Tenant and all persons claiming by, through or under Tenant and remove its and their effects (forcibly if necessary) without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or prior breach of covenants; and Tenant hereby waives all statutory and equitable rights to its leasehold (including without limitation rights in the nature of further cure or of redemption, if any). Landlord may, without notice, store Tenant’s effects (and those of any person claiming by, through or under Tenant) at the expense and risk of Tenant and, if Landlord so elects, may sell such effects at public auction or auctions or at private sale or sales after ten (10) days’ notice to Tenant (which notice Tenant agrees is reasonable) and apply the net proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay over the balance, if any, to Tenant. If any payment of Annual Fixed Rent, additional rent, or other payment due from Tenant to Landlord is not paid when due, then Landlord may, at its option, in addition to all other remedies hereunder, impose a late charge on Tenant equal to 5% of the amount in question, which late charge will be due upon demand as additional rent.

 

 

Rent forgivenesses and lease brokerage commissions (collectively “Tenant Inducements”), if any, have been agreed to or paid by Landlord as inducements for Tenant faithfully to perform all of its obligations. For all purposes, upon the occurrence of any default and the lapse of the applicable cure period, if any, any Tenant Inducements shall be deemed void as of the date hereof as though such had never been included.

 

7.2          Remedies for Default.

 

7.2.1       Reletting Expenses Damages. If this Lease is terminated for default, then Tenant covenants, as an additional cumulative obligation after such termination, to pay all of Landlord’s reasonable costs and expenses related thereto or in collecting amounts due hereunder, including reasonable attorneys’ fees, and all of Landlord’s reasonable expenses in connection with reletting, including without limitation, tenant inducements, brokerage commissions, fees for legal services, expenses of preparing the Premises for reletting and the like (“Reletting Expenses”). It is agreed by Tenant that Landlord may (i) relet the Premises or any part or parts thereof for a term or terms which may at Landlord’s option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Term, and may grant such tenant inducements as Landlord in its sole judgment considers advisable, and (ii) make such alterations, repairs and decorations in the Premises as Landlord in its sole discretion considers advisable, and no action of Landlord in accordance with the foregoing nor any failure to relet or to collect rent under any reletting shall operate or be construed to release or reduce Tenant’s liability. Any obligation to relet the Premises imposed upon Landlord by law shall be subject to Landlord’s reasonable objectives of developing its property in a harmonious manner with appropriate mixes of tenants, uses, floor areas, terms, etc. Landlord’s Reletting Expenses together with all sums otherwise provided for in this Lease, whether incurred prior to or after such termination, shall be due and payable immediately from time to time upon notice from Landlord. Landlord shall use commercially reasonable efforts to mitigate its damages.

 

7.2.2        Termination Damages. If this Lease is terminated for default, then unless and until Landlord elects lump sum liquidated damages described in Section 7.2.3 below Tenant covenants, as an additional cumulative obligation after any such termination, to pay punctually to Landlord all the sums and perform all the obligations which Tenant covenants in this Lease to pay and to perform in the same manner and to the same extent and at the same time as if this Lease had not been terminated. In calculating the amounts to be paid by Tenant pursuant to the preceding sentence Tenant shall be credited with the net proceeds of any rent then actually received by Landlord from a reletting of the Premises after deducting all sums provided for in this Lease to be paid by Tenant and not then paid.

 

7.2.3        Lump Sum Liquidated Damages. If this Lease is terminated for default, then Tenant covenants, as an additional cumulative obligation after termination, to pay forthwith to Landlord at Landlord’s election made by written notice to Tenant at any time after termination, as liquidated damages a single lump sum payment equal to the sum of (i) all sums provided for in this Lease to be paid by Tenant and not then paid at the time of such election, plus either (ii) the excess of all of the rent reserved for the residue of the Term (with additional rent on account of Landlord’s Taxes and Operating Expenses deemed to increase 5% in each year on a compounding basis) over all of the rent actually received (or which rent Tenant shows by clear and convincing evidence will be received), on account of the Premises during such period, which rent from reletting shall be reduced by reasonable projections of vacancies and by Landlord’s Reletting Expenses described above to the extent not theretofore paid to Landlord, or (iii) an amount equal to the sum of all of the rent and other sums due hereunder and payable with respect to the ten (10)-month period next following the date of termination.

 

7.3           Remedies Cumulative. Any and all rights and remedies Landlord may have under this Lease, and at law and equity, shall be cumulative (other than the liquidated damages under Section 7.2.3, which is an alternative to the remedies under Sections 7.2.1 and 7.2.2) and shall not be deemed inconsistent with each other, and any two or more of all such rights and remedies may be exercised at the same time insofar as permitted by law. Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove and obtain in proceedings for bankruptcy or insolvency by reason of the termination or rejection of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when and governing the proceedings in which the damages are to be proved, whether such amount be greater, equal to, or less than the amount of the loss or damages referred to in the preceding Section.

 

 

7.4          Effect of Waivers of Default. Any consent or permission by Landlord to any act or omission which otherwise would be a breach of any covenant or condition, or any waiver by Landlord of the breach of any covenant or condition, shall not in any way be held or construed to operate so as to impair the continuing obligation of such covenant or condition, or otherwise operate to permit other similar acts or omissions. No breach shall be deemed to have been waived unless and until such waiver be in writing and signed by Landlord. The failure of Landlord to seek redress for violation of or insist upon the strict performance of any covenant or condition of this Lease, or the receipt by Landlord of rent with knowledge of any violation, shall not be deemed a consent to or waiver of such violation, nor shall it prevent a subsequent act, which would otherwise constitute a violation, from in fact being a violation.

 

7.5          No Accord and Satisfaction; No Surrender. No acceptance by Landlord of a lesser sum than the Annual Fixed Rent, additional rent or any other sum or charge then due shall be deemed to be other than on account of the earliest installment of such rent, sum or charge due; nor shall any endorsement or statement on any check or in any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such installment or pursue any other right or remedy available to it. The delivery of keys (or any similar act) to Landlord or any agent or employee of Landlord shall not operate as a termination of this Lease or an acceptance of a surrender of the Premises, which may occur only upon Landlord’s written acknowledgement of same.

 

7.6          Waiver of Jury. Landlord and Tenant hereby waive trial by jury in any summary proceeding in any emergency or other statutory remedy, or in any action based, in whole or in part, on non-payment of rent or other default under this Lease.

 

7.7          Landlord’s Curing and Enforcement. If Tenant shall neglect or fail to perform or observe any covenant or condition of this Lease and shall not cure such default within the applicable cure period, Landlord may, at its option, without waiving any claim for breach, at any time thereafter cure such default for the account of Tenant, and any amount paid or any liability incurred by Landlord in so doing shall be deemed paid or incurred for the account of Tenant, and Tenant shall reimburse Landlord therefor, together with an administrative charge of fifteen (15%) per cent of the amount thereof, on demand as additional rent; and Tenant shall further indemnify and save Landlord harmless in the manner elsewhere provided in this Lease in connection with all of Landlord’s actions in effecting any such cure. Notwithstanding any other provision herein concerning cure periods, Landlord may cure any default for the account of Tenant after such notice to Tenant, if any, as is reasonable under the circumstances (including telephone notice) if the curing of such default prior to the expiration of the applicable cure period is reasonably necessary to prevent likely damage to the Premises or other improvements or possible injury to persons, or to protect Landlord’s interest in its property or the Premises. Tenant shall pay to Landlord on demand as additional rent all of the costs and expenses of Landlord, including such administrative charge and reasonable attorneys’ fees, incurred in enforcing any covenant or condition of this Lease. Without limiting any of its other rights or remedies, any sum due hereunder shall, in addition, bear interest from the date due at the greater of (i) one percent (1%) for each month (or ratable portion thereof) the same remains unpaid, or (ii) three percent (3%) per annum (or ratable portion thereof) above the so-called base or prime lending rate charged by Sovereign Bank from time to time on 90 day loans to its most credit-worthy borrowers; provided that interest shall never exceed the maximum rate permitted under applicable law.

 

 

In the event Tenant breaches any covenant or fails to observe any condition set forth in Article VII with respect to the insurance required to be maintained by Tenant, then without limiting any other right or remedy, and notwithstanding any other provision herein concerning notice and cure of defaults, Landlord may immediately and without notice to Tenant obtain such insurance, and Tenant shall pay the cost thereof and Landlord’s expenses related thereto upon demand as additional rent.

 

7.8          Landlord’s Default. In no event shall Landlord be in default unless notice thereof has been given to Landlord (and all mortgagees of which Tenant has notice) and Landlord (or any such mortgagee at its sole discretion) fails to perform within 30 days (provided, however, that such 30 day period shall be reasonably extended for up to ninety (90) days if such performance begins within such period and thereafter is diligently pursued, or if such mortgagee notifies Tenant within such period that it intends to cure on behalf of Landlord and thereafter begins and diligently pursues curing with reasonable promptness).

 

7.9          Vacancy During Last Three Months. If Tenant vacates substantially all of the Premises (or substantially all of major portions of the Premises, including a floor thereof) at any time within the last 3 months of the Term, Landlord may enter the Premises (or such portions) and, after written notice to Tenant, commence demolition work or construction of leasehold improvements for future tenants. The exercise of such right by Landlord will not affect Tenant’s obligations to pay Annual Fixed Rent or additional rent with respect to the Premises (or such portions), which obligations shall continue without abatement until the end of the Term.

 

7.10        Security Deposit. Upon execution of this Lease, Tenant shall deposit the Security Deposit with Landlord as security for the performance of Tenant’s obligations under this Lease. Upon the occurrence of a Default, Landlord may use all or any part of the Security Deposit for the payment of any Rent or for the payment of any amount which Landlord may pay or become obligated to pay by reason of such Default, or to compensate Landlord for any loss or damage which Landlord may suffer by reason of such Default. If any portion of the Security Deposit is used, Tenant shall within five (5) days after written demand therefor restore the Security Deposit to its original amount. Landlord shall not be required to keep the Security Deposit separate from its general funds, and Tenant shall not be entitled to interest on the Security Deposit. In no event shall the Security Deposit be considered an advanced payment of Rent, and in no event shall Tenant be entitled to use the Security Deposit for the payment of Rent. If no default by Tenant exists hereunder, the Security Deposit or any balance thereof shall be returned to Tenant within thirty (30) days after the expiration of the Term and vacation of the Premises by Tenant. Landlord shall have the right to transfer the Security Deposit to any purchaser of the Building. Upon such transfer and receipt of written notice from transferee that it is assuming the Lease, Tenant shall look solely to such purchaser for return of the Security Deposit; and Landlord shall be relieved of any liability with respect to the Security Deposit.

 

If the Security Deposit is in the form of an unconditional, irrevocable letter of credit, such letter of credit shall be issued by a financial institution acceptable to Landlord and in the form of Appendix D. The letter of credit shall be renewed by Tenant at least thirty (30) days prior to expiration and shall remain in effect until sixty (60) days after the scheduled end of the Term.

 

7.11        Guaranty. As a condition to this Lease being executed by Landlord, Guarantor is concurrently herewith executing a Guaranty of Lease in the form of Appendix E which guaranties Tenant’s obligations under this Lease.

 

 

Article VIII

 

MISCELLANEOUS PROVISIONS

 

8.1          Notice from One Party to the Other. All notices required or permitted hereunder shall be in writing and shall be deemed duly served if mailed by certified mail, postage prepaid, by recognized overnight courier, or by facsimile transmission which provides confirmation of receipt, addressed, if to Tenant, at the address of Tenant or such other address as Tenant shall have last designated by notice in writing to Landlord and, if to Landlord, at the address of Landlord or such other address as Landlord shall have last designated by notice in writing to Tenant. If requested, Tenant shall send copies of all such notices in like manner to Landlord’s mortgagees and any other persons having an interest in the Premises and designated by Landlord. Any notice so addressed shall be deemed duly served on the second business day following the day of mailing if so mailed by registered or certified mail, return receipt requested, whether or not accepted, on the following business day if sent by recognized overnight courier, whether or not accepted, and on the day of receipt if received on or before 5 p.m. in the time zone of the recipient, if sent by facsimile.

 

8.2          Quiet Enjoyment. Landlord agrees that upon Tenant’s paying all rent and performing and observing all covenants, conditions and other provisions on its part to be performed and observed, Tenant may peaceably and quietly have, hold and enjoy the Premises during the Term without disturbance by Landlord or anyone claiming by, through or under it, subject always to the terms of this Lease, provisions of law, and rights or interests of record to which this Lease may be or become subject and subordinate.

 

8.3          Limitation of Landlord’s Liability. Landlord shall be liable only for breaches of Landlord’s obligations occurring while Landlord is owner of the fee of which the Premises are a part (provided, however, that if Landlord shall ever sell and lease-back such fee, or the ground thereof or the improvements thereon, then “fee” shall, in such event, be deemed to mean Landlord’s leasehold interest). Tenant (and all persons claiming by, through or under Tenant) agrees to look solely to Landlord’s interest from time to time in the fee of which the Premises are a part for satisfaction of any claim or recovery of any judgment from Landlord; it being agreed that neither Landlord nor any trustee, beneficiary, partner, member, manager, shareholder, agent or employee of Landlord shall ever be personally or individually liable for any claim or judgment, or otherwise, to Tenant (or such persons). In no event shall Landlord or Tenant ever be liable to the other party for indirect or consequential damages (except Tenant may be liable for such damages for holdover under Section 5.10 above), nor shall Landlord ever be answerable or liable in any equitable judicial proceeding or order beyond the extent of its interest in the fee of which the Premises are a part.

 

8.4          Applicable Law and Construction. This Lease may be executed in counterpart copies and shall be governed by and construed as a sealed instrument in accordance with the laws of The Commonwealth of Massachusetts. If any provision shall to any extent be invalid, the remainder of this Lease shall not be affected. Other than contemporaneous instruments executed and delivered of even date, if any, this Lease contains all of the agreements between Landlord and Tenant with respect to the Premises and supersedes all prior dealings between them with respect thereto. There are no oral agreements between Landlord and Tenant affecting this Lease. This Lease may be amended only by an instrument in writing executed by Landlord and Tenant. The enumeration of specific examples of a general provision shall not be construed as a limitation of the general provision. Unless a party’s approval or consent is required by its terms not to be unreasonably withheld, such approval or consent may be withheld in the party’s sole discretion. If Tenant is granted any extension or other option, to be effective the exercise (and notice thereof) shall be unconditional, time always being of the essence to any options; and if Tenant purports to condition the exercise of any option or vary its terms in any manner, then the option granted will automatically and immediately become null and void and the purported exercise will be ineffective. This Lease and all consents, notices and other related instruments may be reproduced by any party by photographic, microfilm, microfiche or other reproduction process and the originals thereof may be destroyed; and each party agrees that reproductions will be admissible in evidence to the same extent as the original itself in and judicial or administrative proceeding (whether or not the original is in existence and whether or not reproduction was made in the regular course of business), and further reproduction will likewise be admissible. The titles of the several Articles and Sections are for convenience only, and shall not be considered a part hereof. The submission of a form of this Lease or any summary of its terms shall not constitute an offer by Landlord to Tenant; but a leasehold shall only be created and the parties bound when this Lease is executed and delivered by both Landlord and Tenant.

 

 

8.5          Successors and Assigns. Except as herein provided otherwise, the agreements and conditions in this Lease contained on the part of Landlord to be performed and observed shall be binding upon Landlord and its legal representatives, successors and assigns, and shall inure to the benefit of Tenant and its legal representatives, successors and assigns; and the agreements and conditions on the part of Tenant to be performed and observed shall be binding upon Tenant (and any guarantor of Tenant) and Tenant’s legal representatives, successors and assigns and shall inure to the benefit of Landlord and its legal representatives, successors and assigns.

 

8.6          Relationship of the Parties. Nothing herein shall be construed as creating the relationship between Landlord and Tenant of principal and agent, or of partners or joint venturers; it being understood and agreed that neither the manner of fixing rent, nor any other provision of this Lease, nor any act of the parties, shall ever be deemed to create any relationship between them other than the relationship of landlord and tenant.

 

8.7           Estoppel Certificate. Within ten (10) days of either party’s request, Landlord and Tenant agree, in favor of the other, to execute, acknowledge and deliver a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if there have been any modifications that the same is in full force and effect as modified and stating the modifications), and the amount and dates to which the Annual Fixed Rent (and additional rent and all other charges) have been paid and any other information reasonably requested by the requesting party or Landlord’s mortgagee. Both parties intend and agree that any such statement may be relied upon by any prospective purchaser, mortgagee, or other person to whom the same is delivered. Tenant acknowledges that prompt execution and delivery of such statements, and all instruments referred to in Article X, constitute essential requirements of any financings or sales by Landlord, and Tenant will indemnify Landlord in the manner elsewhere provided against all costs and damages (including consequential damages) directly or indirectly resulting from Tenant’s failure to comply herewith (notwithstanding any grace period) or Landlord’s right to execute the same on Tenant’s behalf.

 

8.8           Notice of Lease. Neither party shall record this Lease nor any notice of lease.

 

8.9           Construction on Adjacent Premises. Landlord shall have the right, in connection with any development within or adjacent to the Building, to grant easements through the Building for access and egress to and from such development and for the installation, maintenance, repair, replacement or relocation of utilities serving such development and/or the Premises and for the installation, removal, maintenance, repair and replacement of windows and walkways related to such development, provided that such action does not unreasonably interfere with Tenant’s use of the Premises. Such right shall include the right to grant such easements through the Premises, provided that installations, replacements or relocations of utilities in the Premises shall, as far as practicable, be placed above ceiling surfaces, below floor surfaces or within perimeter walls. This Lease shall be subject and subordinate to any easements so granted. Landlord and its agents, employees, licensees and contractors shall also have the right during any construction period for any such development to enter the Premises to undertake work pursuant to any easement granted pursuant to the above paragraph; to shore up the foundations and/or walls of the Premises and Building; to erect scaffolding and protective barricades around the Premises or in other locations within or adjacent to the Building; and to do any other act necessary for the safety of the Premises or Building or the expeditious completion of such construction. Except as provided in Section 5.22, Landlord shall not be liable to Tenant for any compensation or reduction of rent by reason of inconvenience or annoyance or for loss of business resulting from any act by Landlord pursuant to this Section. Landlord shall use reasonable efforts so as not to unreasonably interfere with the conduct of Tenant’s business and to minimize the extent and duration of any inconvenience, annoyance or disturbance to Tenant resulting from any work pursuant to this Section in or about the Premises or Building, consistent with accepted construction practice. It is not intended that the exercise of such rights will result in any substantial permanent reduction in the floor area of the Premises, but if any act by Landlord pursuant to this Section results in a permanent reduction in the floor area of the Premises (more than five percent (5%) thereof) and such reduction adversely affects the ability of Tenant to operate in the Premises in accordance with this Lease, then Tenant shall have the option to terminate this Lease upon thirty (30) days’ advance written notice to Landlord, subject to any and all provisions that shall survive the termination of this Lease.

 

 

8.10        Tenant As Business Entity. If Tenant is a business entity, then the person or persons executing this Lease on behalf of Tenant jointly and severally warrant and represent that (a) Tenant is duly organized, validly existing and in good standing under the laws of the jurisdiction in which such entity was organized; (b) Tenant has the authority to own its property and to carry on its business as contemplated under this Lease; (c) to Tenant’s knowledge, Tenant is in compliance with all laws and orders of public authorities applicable to Tenant; (d) Tenant has duly executed and delivered this Lease; (e) the execution, delivery and performance by Tenant of this Lease (i) are within the powers of Tenant, (ii) have been duly authorized by all requisite action, (iii) will not, to the best of Tenant’s knowledge and belief, violate any provision of law or any order of any court or agency of government, or any agreement or other instrument to which Tenant is a party or by which it or any of its property is bound, and (iv) will not result in the imposition of any lien or charge on any of Tenant’s property, except by the provisions of this Lease; and (f) the Lease is a valid and binding obligation of Tenant enforceable in accordance with its terms. Tenant, if a business entity, agrees that breach of the foregoing warranty and representation shall at Landlord’s election be a default under this Lease for which there shall be no cure. This warranty and representation shall survive the termination of the Term. Simultaneously with the execution of the Lease, Tenant shall deliver to Landlord, if Landlord so requests, (i) a certificate of legal existence and good standing and (ii) a certified copy of a resolution of Tenant’s directors, manager, or general partner authorizing the execution of this Lease or other evidence of such authority reasonably acceptable to Landlord.

 

8.11         Intentionally Omitted.

 

8.12        Parking. During the Term, Tenant shall be permitted to use at no cost to Tenant its allocable share of vehicular parking spaces in the parking areas designated by Landlord for use by Building tenants, subject to such reasonable terms, conditions and regulations as are from time to time applicable to authorized users of such parking areas. Such parking spaces shall be available for Tenant’s use on an unassigned, non-reserved basis. Landlord specifically reserves the right to establish parking protocols such as sticker or card access or other similar structured parking controls.

 

Article IX

BROKERS

 

9.1          Brokers. Tenant represents and warrants to Landlord that it has not dealt with any broker (other than the Broker identified in Section 1.1, if any) in connection with this Lease or the Premises and agrees to indemnify and save Landlord harmless from all loss, claim, damage, cost or expense (including reasonable attorneys’ fees of counsel of Landlord’s choice against whom Tenant makes no reasonable objection) arising from any breach of this representation and warranty. The warranty, representation and indemnity in this Section 9.1 shall survive the expiration or any earlier termination of this Lease. The commission of Broker shall be paid by Landlord pursuant to a separate written agreement.

 

 

 

Article X

 

LANDLORD’S FINANCING

 

10.1           Subordination and Superiority of Lease. Tenant agrees that this Lease and the rights of Tenant hereunder will be subject and subordinate to the present or future lien of any mortgage (and at Landlord’s election, to the lien of any subordinate mortgage or mortgages) and to the rights of any lessor under any ground or improvements lease of the Premises (collectively referred to in this Lease as a “mortgage” and the holder or lessor thereof from time to time as a “mortgagee”), and to all advances and interest thereunder and all modifications, renewals, extensions and consolidations thereof; and that Tenant shall attorn to any such mortgagee succeeding to Landlord’s interest in the Property by foreclosure, deed in lieu of foreclosure, or otherwise, promptly after the giving of notice by such mortgagee requiring such attornment, provided  however, that Landlord uses reasonable efforts to cause the mortgagee of any mortgage to execute and deliver to Tenant an agreement on such mortgagee’s standard form in which the mortgagee agrees that Tenant shall not be disturbed in its possession upon Tenant’s attornment to such mortgagee as Landlord and performance of its Lease covenants (both of which conditions Tenant agrees with all mortgagees to perform). Tenant agrees that any mortgagee may at its option unilaterally elect to subordinate, in whole or in part and by instrument in form and substance satisfactory to such mortgagee alone, the lien of its mortgage (or the priority of its ground lease) to some or all provisions of this Lease.

 

Tenant agrees that this Lease shall survive the merger of estates of ground (or improvements) lessor and lessee. Until a mortgagee (either superior or subordinate to this Lease) forecloses Landlord’s equity of redemption (or terminates in the case of a ground or improvements lease), no mortgagee shall be liable for failure to perform any of Landlord’s obligations (and such mortgagee shall thereafter be liable only after it succeeds to and holds Landlord’s interest and then only as limited herein). Any mortgagee (or any other successor to Landlord acquiring the Property by foreclosure, deed in lieu of foreclosure, or otherwise) shall not be (i) liable for any previous act or omission of Landlord under the Lease; (ii) subject to any credit, demand, claim, counterclaim, offset or defense which theretofore accrued to Tenant against Landlord; (iii) unless consented to by such mortgagee, bound by any previous amendment or modification of the Lease or by any previous prepayment of more than one month’s payment of Annual Fixed Rent or additional rent; (iv) required to account for any security deposit of Tenant other than any security deposit actually delivered to such mortgagee by Landlord; (v) bound by any obligation to make any payment to Tenant or grant any credits, except for services, repairs, maintenance and restoration provided for under the Lease to be performed by Landlord after the date of such attornment; or (vi) responsible for any monies owing by Landlord to Tenant. Tenant shall give notice of any alleged non-performance on the part of Landlord to any mortgagee of which Tenant has notice, simultaneously with the default notice delivered to Landlord; and Tenant agrees that such mortgagee shall have a separate, consecutive reasonable cure period of no less than 30 days (to be reasonably extended in the same manner Landlord’s 30 day cure period is to be extended) following Landlord’s cure period during which such mortgagee may, but need not, cure any nonperformance by Landlord. The agreements in this Lease with respect to the rights and powers of a mortgagee constitute a continuing offer to any person which may be accepted by taking a mortgage (or entering into a ground or improvements lease) of the Premises.

 

10.2           Rent Assignment. If from time to time Landlord assigns this Lease or the rents payable hereunder to any person, whether such assignment is conditional in nature or otherwise, such assignment shall not be deemed an assumption by the assignee of any obligations of Landlord; but the assignee shall be responsible only for non-performance of Landlord’s obligations which occur after it succeeds to and only while it holds Landlord’s interest in the Premises.

 

 

10.3           Other Instruments. The provisions of this Article shall be self-operative; nevertheless, Tenant agrees to execute, acknowledge and deliver any subordination, attornment or priority agreements or other instruments conforming to the provisions of this Article (and being otherwise commercially reasonable) from time to time requested by Landlord or any mortgagee in furtherance of the foregoing, and further agrees that its failure to do so within ten (10) days after written demand shall be subject to the monetary default provisions of this Lease.

 

10.4           Landlord Representations and Warrantees. As a material inducement to Tenant to enter into this Lease, Landlord (and, individually each party executing this Lease on behalf of Landlord), intending that Tenant rely thereon, represents and warrants to Tenant that as of the date hereof:

 

(i)                Landlord and the party executing on behalf of Landlord are fully and properly authorized to execute and enter into this Lease on behalf of and to deliver this Lease to Tenant;

 

(ii)               Landlord is the sole owner of the property and owns a fee simple interest therein

 

(iii)              Landlord has not received written notice that the Property is in violation of any applicable environmental laws, and

 

(iv)              Landlord is not currently a party in any litigation which could impair Landlord’s ability to observe the terms and conditions of this Lease or perform its obligations hereunder

 

SIGNATURES FOLLOW ON NEXT PAGE

 

 

WITNESS the execution hereof under seal as of the date first set forth above.

 

TENANT:	OLINK PROTEOMICS, INC.,
	a Delaware corporation
	By:	/s/ Jon Heimer
		Name:	Jon Heimer
		Title:	CEO
LANDLORD:	CRESSET GROVE LLC,
	a Massachusetts limited liability company
	By:	/s/ Edward Nardi
		Name:	Edward G. Nardi
		Title:	Manager

 

 

APPENDIX A

 

PREMISES PLAN

 

 

 

 

APPENDIX B

 

WORK LETTER

 

THIS WORK LETTER AGREEMENT (“Work Letter”) is entered into as of the ___ day of ________, 2018 by and between CRESSET GROVE LLC (“Landlord”), and OLINK PROTEOMICS, INC. (“Tenant”).

 

RECITALS

 

A.              Concurrently with the execution of this Work Letter, Landlord and Tenant have entered into the Lease covering certain Premises more particularly described in the Lease. All terms not defined herein have the same meanings as set forth in the Lease.

 

B.              In order to induce Tenant to enter into the Lease and in consideration of the mutual covenants hereinafter contained, Landlord and Tenant agree as follows:

 

1.               LANDLORD’S WORK. As used in the Lease and this Work Letter, the term “Landlord’s Work” means those items of general tenant improvement construction shown on the Final Plans (described in Paragraph 5(a) below), including, but not limited to, partitioning, doors, ceilings, floor coverings, wall finishes (including paint and wall coverings), electrical (including lighting, switching, outlets, etc.), plumbing, heating, ventilating and air conditioning, fire protection, cabinets and other millwork and distribution of Building services such as sprinkler and electrical service. All Landlord’s Work and components thereof shall at all times be and remain the sole property of Landlord.

 

2.               CONSTRUCTION REPRESENTATIVES. Landlord appoints the following person(s) as Landlord’s representative (“Landlord’s Representative”) to act for Landlord in all matters covered by this Work Letter:

 

Edward G. Nardi
c/o Cresset Development, LLC
120 Water Street, Suite 500
Boston, MA 02109

 

Tenant appoints the following person(s) as Tenant’s representative (“Tenant Representative”) to act for Tenant in all matters covered by this Work Letter.

 

	Jon Heimer

 

All communications with respect to the matters covered by this Work Letter are to be made to Landlord’s Representative or Tenant’s Representative, as the case may be, in writing, in compliance with the notice provisions of the Lease. Either party may change its representative under this Work Letter at any time by written notice to the other party in compliance with the notice provisions of the Lease.

 

3.               DESIGN AND CONSTRUCTION. All Landlord’s Work shall be performed by contractors selected and engaged by Landlord. Tenant has engaged Miller Dyer Spears to design the interior space of the Premises (the “Architect”), which is acceptable to Landlord.

 

 

 

 

4.        WORK SCHEDULE. Attached hereto as Schedule 1 is a schedule (the “Work Schedule”) which sets forth the timetable for the planning and completion of the installation of the Landlord’s Work. The Work Schedule has been approved by both Landlord and Tenant.

 

5.        TENANT IMPROVEMENT PLANS.

 

(a)       Preparation of Final Plans. Attached hereto as Schedule 2 are a preliminary floor plan and outline specifications (“the “Preliminary Plans”) and an initial cost estimate, which have been approved by both Landlord and Tenant. In accordance with the Work Schedule and the Preliminary Plans, the Architect will prepare complete architectural plans and complete, fully-engineered construction drawings and specifications for all of Landlord’s Work, including mechanical, electrical, plumbing and structural elements (collectively the “Final Plans”). The Final Plans will show: (i) the subdivision (including partitions and walls), layout, lighting, finish and decoration work (including carpeting and other floor coverings) for the Premises; (ii) all internal and external communications and utility facilities which will require the installation of conduits or other improvements from the base Building shell; and (iii) all other specifications for Landlord’s Work. The Final Plans will be submitted to Landlord for its confirmation that the Final Plans are in accordance with the Preliminary Plans. Landlord agrees to advise Tenant in writing of any disapproval of the Final Plans within three (3) business days of receipt thereof, specifying its reason(s) for disapproval and the bases therefor, provided, however, Landlord shall not unreasonably withhold approval. If Landlord in its reasonable discretion does not approve the Final Plans, Tenant will then cause the Architect to redesign the Final Plans incorporating the revisions reasonably requested by Landlord so as to make the Final Plans consistent with the Preliminary Plans. Within ten business days its approval of the Final Plans, Landlord shall provide Tenant with a written summary (the “Buildout Cost Summary”) of the cost of the Landlord’s Work, based on the Final Plans, that is in excess of the Tenant Improvement Allowance (defined below) and Amortized Allowance, as applicable (defined below) (“Excess Costs”). The cost of Landlord’s Work shall include a construction management fee to Landlord equal to three percent (3%) of the construction costs for Landlord’s Work, including all hard and softs costs (the “Construction Management Fee”). Tenant agrees to advise Landlord in writing of any disapproval of the Buildout Cost Summary, and the reasons therefor within five business days of receipt thereof. If Tenant fails to timely deliver to Landlord Tenant’s written disapproval of the Buildout Cost Summary, the Buildout Cost Summary shall be deemed approved by Tenant. If the revised Buildout Cost Summary is timely disapproved by Tenant pursuant to this paragraph, Tenant shall provide to Landlord a written explanation of the reason(s) for such disapproval concurrently with its disapproval, and the Buildout Cost Summary, as appropriate, shall be promptly revised and resubmitted to Tenant for approval. If Tenant fails to provide a written explanation as and when required by this paragraph, the Buildout Cost Summary shall be deemed approved by Tenant. Tenant agrees to approve in writing the revised Buildout Cost Summary within five business days of its receipt thereof. If Tenant fails to timely deliver to Landlord written approval of the Buildout Cost Summary, the Buildout Cost Summary shall be deemed approved by Tenant. Tenant’s approval of the Buildout Cost Summary shall constitute Tenant’s agreement to pay Landlord the Excess Costs.

 

(b)       Requirements of the Final Plans. The Final Plans will include locations and complete dimensions, and Landlord’s Work, as shown on the Final Plans, will: (i) be compatible with the Building shell and with the design, construction and equipment of the Building; (ii) comply with all applicable laws, ordinances, rules and regulations of all governmental authorities having jurisdiction, and all applicable insurance regulations; and (iii) be of a nature and quality consistent with the overall objectives of Landlord for the Building, as determined by Landlord in its reasonable but subjective discretion.

 

(c)       Submittal of Final Plans. Once approved, the Architect will submit the Final Plans to the appropriate governmental agencies for plan checking and the issuance of a building permit. The Architect will make any changes to the Final Plans which are requested by the applicable governmental authorities to obtain the building permit. Any changes requested by governmental authorities will be made only with the prior written approval of Landlord, and only if Tenant agrees to pay any excess costs resulting from the design and/or construction of such requested changes (the “Additional Costs”). Landlord shall revise the Buildout Cost Summary by increasing the Excess Costs by the amount of the Additional Costs resulting from plan modifications required by any governmental authority. Tenant hereby acknowledges that any such changes will be subject to the terms of Section 5 below. Any Additional Costs are to be paid by Tenant to Landlord within ten days after receipt by Tenant of an invoice for such Additional Costs from Landlord.

 

 

6.        PAYMENT FOR LANDLORD’S WORK.

 

(a)       Tenant Improvement Allowance and Excess Costs. Landlord shall pay for Landlord’s Work up to a maximum of $50.00 per rentable square foot (the “Tenant Improvement Allowance”). At Tenant’s option, Landlord shall also provide up to a maximum of $ 10.00 per rentable square foot toward Landlord’s Work which shall be amortized over the Initial Term with interest at 8% per annum and payable monthly as Additional Rent (the “Amortized Allowance”). The Tenant Improvement Allowance and the Amortized Allowance shall only be used for:

 

(i)       Payment of plan check, permit and license fees relating to construction of Landlord’s Work.

 

(ii)      Construction of Landlord’s Work, including, without limitation, the following:

 

(A)      Installation within the Premises of all partitioning, doors, floor coverings, ceilings, wall coverings and painting, millwork and similar items;

 

(B)       All electrical wiring, lighting fixtures, outlets and switches, and other electrical work to be installed within the Premises;

 

(C)      The furnishing and installation of all duct work, terminal boxes, diffusers and accessories required for the completion of the heating, ventilation and air conditioning systems within the Premises, including the cost of meter and key control for after-hour air conditioning;

 

(D)    Any additional tenant requirements including, but not limited to, air quality control, special heating, ventilation and air conditioning, noise or vibration control or other special systems;

 

(E)       All fire and life safety control systems such as fire walls, sprinklers, fire alarms, including piping and wiring, installed within the Premises;

 

(F)       All plumbing, including fixtures and pipes, to be installed within the Premises;

 

(G)      Testing and inspection costs;

 

(H)      Contractor’s fees, including, but not limited to, any fees based on general conditions; and

 

(I)       The Construction Management Fee.

 

 

(iii)      All other costs to be reasonably expended by Landlord in the construction of Landlord’s Work.

 

(b)       Changes. If, after the Final Plans and the Excess Costs Summary have been approved by Tenant, Tenant requests any changes or substitutions to the Final Plans or to Landlord’s Work during construction, Tenant shall complete a change order request form approved by Landlord and forward it to Landlord’s representative. All such changes shall be subject to Landlord’s prior written approval in accordance with Paragraph 11. Prior to commencing any change, Landlord shall prepare and deliver to Tenant, for Tenant’s approval, a change order setting forth the total cost of such change, which shall include associated architectural, engineering, construction contractor’s costs and fees, and completion schedule changes. If Tenant fails to approve such change order within three (3) business days after delivery by Landlord, Tenant shall be deemed to have withdrawn the proposed change and Landlord shall not proceed to perform the change. Any additional costs related to such change are to be paid by Tenant to Landlord within ten days after receipt by Tenant of an invoice for such additional costs from Landlord.

 

(c)       Payment of Excess Costs. Within five days of Landlord’s request (which request shall include reasonable backup documentation), Tenant shall pay to Landlord that portion of the Excess Costs payable with respect to each construction draw presented by Landlord’s contractor based on the percentage that the Excess Costs bear to the total cost of Landlord’s Work. Notwithstanding the foregoing, if the amount of the Excess Costs changes as a result of a change order. Tenant shall pay such increased amount within ten (10) days of receipt by Tenant of an invoice, together with reasonable supporting documentation, for such increased costs. Notwithstanding the foregoing, Landlord shall pay (i) the cost of the new entry to the Premises at the existing storefront to the extent such cost is in excess of what the typical interior glass entry system costs and (ii) the cost of the underground sawcutting/trenching/concrete work for the two bathrooms.

 

(d)       Credit. Unless specifically set forth herein, Tenant shall not be entitled to any credit for any portion of the Tenant Improvement Allowance or Amortized Allowance which is not used.

 

7.         CONSTRUCTION OF LANDLORD’S WORK. Until Tenant approves the Final Plans and the Buildout Cost Summary, and all necessary permits have been obtained from the appropriate governmental authorities, Landlord will be under no obligation to cause the construction of any of Landlord’s Work. Once the foregoing conditions have been met, Landlord will commence and diligently proceed with the construction of the Landlord’s Work pursuant to the terms of a contract between Landlord and Landlord’s contractor calling for the completion of Landlord’s Work in a good and workmanlike manner conforming to all applicable Legal Requirements, subject to Tenant Delays (as described in Paragraph 8 below) and Force Majeure Delays (as described in Paragraph 9 below). The costs of Landlord’s Work shall be paid as provided in Paragraphs 5 and 6 hereof. Construction inspections will be made periodically by qualified Landlord employees or subcontractors and Tenant shall have the right to have qualified Tenant employees or subcontractors review compliance of Landlord’s Work with the Final Plans.

 

8.        TENANT DELAYS. For purposes of this Work Letter, “Tenant Delays” means any delay in the completion of the Landlord’s Work or Landlord obtaining a certificate of occupancy resulting from any or all of the following:

 

(a)       Tenant’s failure to timely perform any of its obligations pursuant to this Work Letter, including any failure to submit or approve any item or complete, on or before the due date therefor, any action item which is Tenant’s responsibility pursuant to this Work Letter or the Work Schedule;

 

(b)       Change orders requested by Tenant after approval of the Final Plans;

 

 

(c)       Any delay of Tenant in making payment to Landlord for any costs due from Tenant under this Work Letter or the Lease;

 

(d)       Any work performed by or on behalf of Tenant, including, without limitation, installation of HVAC or refrigeration equipment;

 

(e)       Any unavailability or delay in the delivery of specialized equipment required by Tenant; or

 

(f)        Any other material act or failure to act by Tenant, Tenant’s employees, agents, architects, independent contractors, consultants and/or any other person performing or required to perform services on behalf of Tenant.

 

9.         FORCE MAJEURE DELAYS. For purposes of the Work Letter, “Force Majeure Delays” means any and all causes beyond Landlord’s reasonable control, including, without limitation, delays caused by Tenant, other tenants, governmental regulation, governmental restriction, strike, labor dispute, riot, accident, mechanical breakdown, shortages of or inability to obtain labor, fuel, steam, water, electricity or materials, acts of God, war, enemy action, civil commotion, fire or other casualty.

 

10.       APPROVALS. Whenever any party under this Work Letter must reasonably grant its approval such party shall also not unreasonably delay or condition its approval. Unless otherwise required by the terms of this Work Letter, any approval shall be deemed granted unless such party responds unless otherwise provided herein within seven (7) days after its receipt of the items for which approval is sought.

 

11.       LANDLORD’S APPROVAL. Landlord, in its sole discretion, may withhold its approval of the Final Plans, change orders or other documents or plans that:

 

(a)       Exceeds or adversely affects the structural integrity of the Building, or any part of the heating, ventilating, air conditioning, plumbing, mechanical, electrical, communication, or other systems of the Building;

 

(b)       Violates any agreement which affects the Building or the Land or binds the Landlord; or

 

(c)       Does not conform to the applicable building code or is not approved by any governmental, quasi-governmental, or utility authority with jurisdiction over the Premises.

 

12.       DEFAULTS BY TENANT. In the event of any default by Tenant with respect to any of the provisions of this Work Letter or any other agreement with Landlord relating to construction in or about the Premises, and Tenant’s failure to timely cure such default after delivery of written notice same, Landlord may, in addition to exercising any other right or remedy Landlord may have, treat such default as a default by Tenant under the Lease and exercise any or all rights available under the Lease in connection therewith, including, if applicable, the right of termination. In the event of any termination of the Lease by Landlord, Landlord may elect in its absolute discretion, with respect to any work performed by or on behalf of Tenant prior to the date of such termination, to either:

 

(a)       retain for its own use part or all of any such work, without compensation to Tenant therefor; or

 

(b)       demolish or remove part or all of any such work and restore part or all of the Premises to its condition prior to the initial tender of possession thereof to Tenant, in which event Tenant shall reimburse Landlord upon demand for all costs reasonably incurred by Landlord in connection with such demolition, removal and/or restoration.

 

 

IN WITNESS WHEREOF, the undersigned Landlord and Tenant have caused this Work Letter to be duly executed by their duly authorized representatives as of the date of the Lease.

 

LANDLORD:
CRESSET GROVE LLC
By:	/s/ Edward Nardi
	Name:	Edward G. Nardi
	Title:	Manager

 

TENANT:
OLINK PROTEOMICS, INC.
By:	/s/ Jon Heimer
	Name:	Jon Heimer
	Title:	CEO

 

 

SCHEDULE 1

 

WORK SCHEDULE

 

 

SCHEDULE 2

 

PRELIMINARY PLANS

 

(see attached)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

 

 

 

 

 

 

 

 

 

 

APPENDIX C

RULES AND REGULATIONS

 

The following Rules and Regulations constitute a part of the Lease and of Tenant’s obligations thereunder in respect of Tenant’s use and occupancy of the Premises in the Building. In the event of any direct conflict between the terms of these Rules and Regulations, as the same may be amended, and the terms and provisions of this Lease, the terms of the Lease shall control. Tenant acknowledges that these Rules and Regulations are intended to supplement the Lease.

 

I.       BUILDING HOURS

 

1.1        Except to the extent otherwise provided in this Lease, the Building is open from 8:00 a.m. to 6:00 p.m. Monday through Friday. The Building is closed on Saturdays, Sundays and all national holidays. Notwithstanding the foregoing, Tenant shall have access to the Building 24 hours per day, 7 days a week.

 

1.2       If you wish to use the Building during other times, please obtain pass-cards for authorized members of your staff from Landlord’s Managing Agent. As additional security, all persons entering the Building after hours are required to sign in and out in a logbook provided for that purpose.

 

1.3       If you will need after-hours heating or air conditioning services, please notify Landlord’s Managing Agent by 3:00 p.m. on the previous working day. (These Building services are either reduced or shut off completely when the Building is closed) You will be charged for overtime use of the Building services.

 

1.4       You are advised, for the protection and safety of your personnel, to lock front doors at the end of each working day. Front doors should also be locked whenever your receptionist leaves the area.

 

1.5       If you have night-line telephone service, please submit a list of numbers and personnel to Landlord’s Managing Agent. This will enable the security guard to contact your office after 6:00 p.m. on the occasions when visitors call after normal working hours.

 

1.6       If you wish to remove fixtures or materials from your premises after 6:00 p.m. or to have work performed after 6:00 p.m. by someone who does not have a Building pass. Landlord’s Managing Agent must be notified.

 

II.       ELEVATORS, DELIVERIES AND PARKING

 

2.1       If you expect delivery of any bulky material, notify the Landlord’s Managing Agent reasonably in advance so that elevators may be scheduled and elevator pads may be installed. This protects both your shipment and the elevators. For the convenience of all, elevators may not be used for deliveries during the peak traffic hours of 8:00 a.m. to 9:30 a.m.; 11:30 a.m. to 1:30 p.m.; and 4:30 p.m. to 6:00 p.m.

 

2.2       All larger deliveries must be made from the designated Building loading dock area. Large deliveries can be expedited by notifying Landlord’s Managing Agent twenty-four (24) hours in advance. The receiving area can accommodate only certain types and sizes of vehicles. All hand trucks used for interior deliveries must be equipped with rubber bumpers and tires.

 

2.3       The loading dock may be used only for deliveries. No vehicles are allowed to stand or park in this area after unloading nor are vehicles allowed to park at the loading dock for service calls. You should advise your vendors and suppliers of this rule. Any vehicles abusing the truck dock privileges are subject to being towed at the owner’s expense.

 

 

III.       GENERAL USE OF BUILDING AND PREMISES

 

3.1       Tenants are not permitted to place or store property on the sidewalks, passageways, parking areas or courtyards adjacent to the Building or in the elevators, vestibules, stairways, or corridors (except as may be necessary for brief periods during deliveries).

 

3.2       No bicycles or animals may be brought into or kept in or about the Building or premises except in designated areas. Notwithstanding the foregoing, Tenant may have a small non-shedding or hypoallergenic dog (less than 15 pounds) in the Premises so long as such animal remains in an office and does not cause any damage to, or leave any waste on or about, the Property. Tenant is responsible for any damage caused at the Property by such animal. Bicycle racks shall be made available at the Building.

 

3.3       Rubbish, rags, sweepings, acid and any and all harmful or damaging substances may not be deposited in the lavatories or in the janitor closets. Please make arrangements with Landlord’s Managing Agent for disposal of any unusual trash.

 

3.4       The Building is a “smoke-free” building; smoking is prohibited in the Building lobby and other common areas, all elevators, all rest rooms, the elevator lobby on each floor (even if such floor is occupied by only one tenant) and the parking garage.

 

IV.       REPAIRS AND SERVICES

 

4.1       You are responsible for all general repairs and maintenance of your Premises including, but not limited to, Tenant supplied supplementary air conditioning, exterior doors and exterior signs. Except as otherwise specifically provided for in the Lease, all repairs, installations or alterations to the Building or its fixtures must first be approved and scheduled by Landlord’s Managing Agent.

 

4.2       All requests for work to be done in your Premises by any of the Building Management Staff should be directed to Landlord’s Managing Agent. Building employees are not permitted to perform any work outside their regular duties except upon special instructions from Landlord’s Managing Agent.

 

4.3       All schedules for the performance of your construction and repair work must be coordinated by Landlord’s Managing Agent to avoid conflicts with various building construction and maintenance schedules. Tenants must inform Landlord’s Managing Agent at least 72 hours before any work is to begin (except in the case of emergency), of the nature of the work, where and when it is to be performed, the name of the contractor or concern doing the work, and the name of the individual who will supervise the performance of the work. You will be required to obtain from the persons doing work, certificates of insurance coverage, signed lien waivers, and payment and performance bonds in form and substance satisfactory to Landlord. Work may not begin until such requirements have been satisfied.

 

4.4       Landlord shall purchase and install, at your expense, all lamps, tubes, bulbs, starters and ballasts.

 

 

V.       ELECTRICAL SYSTEM; ENERGY CONSERVATION

 

5.1       In order to assure that the Building’s electrical standards are not exceeded and to avert possible adverse effect on the Building’s electrical system, you may not, without Landlord’s prior consent, connect any fixtures, appliances or equipment to the Building’s electric distribution system other than standard office equipment, such as typewriters, pencil sharpeners, adding machines, hand held or desk top calculators, dictaphones, office computers and copiers and the lab and other equipment necessary for Tenant’s use (but not to exceed Tenant’s proportionate share of the Building’s electrical service.

 

5.2       Notwithstanding anything to the contrary contained in the Lease, Landlord reserves the right to implement policies and procedures it deems, in its reasonable judgment, to be necessary or expedient in order to conserve and/or preserve energy and related services, or to be necessary or required in order to comply with applicable government laws, rules, regulations, codes, orders and standards.

 

5.3       The windows of the Building are designed for insulation and to reduce glare. Building standard blinds or drapes contribute to the effectiveness of the Building’s heating and cooling systems. You should keep the blinds or drapes closed when windows are exposed to the sun’s rays in summer and keep them open when the sun is bright enough to provide warmth during the winter months.

 

VI.       COOKING AND RELATED ACTIVITIES

 

6.1       You may not use or permit the use of any part of the Premises for the preparation or dispensing of food, but may heat food with use of a microwave and/or toaster oven. You may, nevertheless, with Landlord’s prior written consent, which consent shall not be unreasonably withheld, install hot-cold water fountains, coffee makers and refrigerator-sink-stove combinations for the preparation of beverages and foods, provided that no cooking, frying, etc., are carried on that require special exhaust venting. The Building contains no facilities to provide special venting.

 

VII.       LIFE SAFETY AND EMERGENCY PROCEDURES

 

7.1       In case of emergency situations such as power failure, water leaks or serious injury, call Landlord’s Managing Agent immediately. In case of fire or smoke, pull the nearest alarm (located on your floor) and then call Landlord’s Managing Agent.

 

 

APPENDIX D

FORM OF LETTER OF CREDIT

 

[On Bank’s Letterhead]

 

IRREVOCABLE LETTER OF CREDIT

 

[Date]

 

Irrevocable Letter of Credit No. ________

 

Beneficiary

 

CRESSET GROVE LLC
c/o Cresset Development LLC
[*************]
[*************]
Attn: Edward G. Nardi

 

Applicant
[Name]
[Address]

 

Expiration Date: [Sixty Days after scheduled Expiration Date of Lease]

 

Ladies and Gentlemen:

 

________________________ (“Issuer”) hereby issues our Irrevocable Letter of Credit No. ________in Beneficiary’s favor in the amount of ________________________ U.S. Dollars available by your sight drafts drawn on us and accompanied by a written statement signed on behalf of CRESSET GROVE LLC. its successors or assigns, stating as follows:

 

“The undersigned certifies that CRESSET GROVE LLC and/or its successors and assigns is entitled to draw under the Irrevocable Letter of Credit No. _____ pursuant to the terms of a Lease, dated __________, between CRESSET GROVE LLC and [Applicant].”

 

Partial drawings are permitted.

 

We engage with you that all drafts drawn under and in compliance with the terms of this Irrevocable Letter of Credit will be duly honored if presented to us on or before the expiration date set forth above. Any draft drawn by you under this Irrevocable Letter of Credit must bear the clause “Drawn on Irrevocable Letter of Credit No. ________ of [Issuer Bank]’’.

 

 

This Irrevocable Letter of Credit is fully transferable and assignable by Beneficiary and its successors, assigns and transferees. Beneficiary shall send a written request to Issuer to assign or transfer this Irrevocable Letter of Credit and upon presentation of this Irrevocable Letter of Credit, as it may be amended. to Issuer, Issuer shall re-issue this Irrevocable Letter of Credit in the then outstanding amount in favor of Beneficiary’s successor, assign or transferee.

 

This Irrevocable Letter of Credit sets forth in full the terms of our undertaking, and such undertaking shall not in any way be limited, modified, amended or amplified, except by a written document executed by the parties hereto.

 

Except as otherwise expressly stated herein, this Irrevocable Letter of Credit is subject to the “International Standby Practices” (1SP98) International Chamber of Commerce (Publication No. 590).”

 

Very truly yours,

 

[ISSUING BANK]

 

By:
	Name:
	Title:

 

 

APPENDIX E

FORM OF GUARANTY OF LEASE

 

WHEREAS, simultaneously with the execution of this Guaranty, Cresset Grove LLC, a Massachusetts limited liability company (“Landlord”), having an office in care of c/o Cresset Development LLC, [*************], Attn: Edward G. Nardi, and Olink Proteomics, Inc., a Delaware corporation, having a principal office at ___________ (“Tenant”), are entering into a certain Lease (the “Lease”) dated as of _______, 20__ affecting space in the building located at 65 Grove Street, Watertown, Massachusetts; and

 

WHEREAS, OLINK PROTEOMICS AB, a Swedish corporation (the “Guarantor”) is the parent of Tenant, and therefore has a substantial financial interest in Tenant and is deriving a direct benefit from the existence of the Lease.

 

NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, and as a material inducement to Landlord to execute the Lease, the undersigned agrees as follows:

 

1.        Guaranty. The undersigned Guarantor hereby absolutely, unconditionally, and irrevocably guarantees the full and timely performance by Tenant of each and every term, condition and covenant to be performed by Tenant under the Lease, including without implied limitation the Tenant’s obligation to pay such rents, charges, costs and impositions as are set forth in the Lease. Guarantor further agrees to defend with counsel acceptable to Landlord, and to indemnify and save Landlord harmless from and against any and all loss, cost, damage or liability arising out of any breach by Tenant of any of the terms, conditions and covenants of the Lease, or out of any breach of warranty or misrepresentation made by Tenant under the Lease or heretofore or hereafter made to Landlord, including reasonable attorneys’ fees and any other costs incurred by Landlord in connection therewith.

 

2.         Direct Enforcement. The undertakings contained in this Guaranty shall be the personal liability of Guarantor. Guarantor acknowledges that after any event of default by Tenant in the performance of any term, condition or covenant of the Lease, which default continues beyond any applicable cure period, the liability of Guarantor under this Guaranty shall be primary and that, in the enforcement of its rights, Landlord shall be entitled to look to Guarantor for the performance of the obligations of Tenant which Guarantor has guaranteed, without first commencing any action or proceedings against Tenant, and likewise, enforcement of Landlord’s rights against Tenant shall not impair the right of Landlord to enforce this Guaranty, and any such action by Landlord shall not operate as a release of the liability of Guarantor under this Guaranty. The guaranteed obligations include both payment and performance. The obligations of the Guarantor shall be absolute and unconditional and shall remain in full force and effect until all amounts due pursuant to the Lease have been paid in full and all of Tenant’s obligations thereunder have been performed in full.

 

3.         Guarantor’s Performance of Tenant’s Obligations. Guarantor agrees that, in addition to any other rights given to Landlord hereby, in the event of any default by Tenant in the performance of any term, condition or covenant of the Lease, it will forthwith cause Tenant to, or will itself, pay, perform and observe said term, condition or covenant of the Lease.

 

4.         Subrogation. From and after the occurrence of any default and the expiration of any applicable notice and/or cure period (if any is required under Article VII of the Lease) by Tenant in the performance of any term, condition, covenant or obligation under the Lease, Guarantor agrees that Guarantor will not accept or receive any dividend, payment or reimbursement from Tenant, including any payment on account of any indebtedness from Tenant to Guarantor, and that if Guarantor does then receive any such dividend, payment or reimbursement the same shall be held in trust for Landlord and forthwith will be turned over to Landlord in the form received.

 

 

5.        Financial Condition. Guarantor agrees from time to time, upon Landlord’s request, but not more frequently than once a year, to deliver to Landlord forthwith Guarantor’s financial statements. All financial statements heretofore delivered to Landlord by Guarantor are, and all financial statements hereafter delivered to Landlord by Guarantor will be, true and correct in all material respects and fair presentations of the financial condition of Guarantor as of the date thereof, prepared in accordance with generally accepted accounting practices. No material adverse change has occurred in the financial condition of Guarantor since the date of the financial statements heretofore delivered to Landlord.

 

6.        Waivers. Guarantor agrees that none of its obligations and no rights against Guarantor hereunder shall in any way be discharged, impaired otherwise affected by any extension of time for, or by any partial or complete waiver of the performance of any of Tenant’s obligations under the Lease, or by any other alteration, amendment, assignment, expansion, extension or modification in or to the Lease, or by any release or waiver of any term, covenant or condition of the Lease, or by any delay in the enforcement of any rights against Tenant, Guarantor or any other person or entity under the Lease. Without limitation, Guarantor agrees that the Lease may be altered, amended, assigned, expanded, extended or modified from time to time on such terms and provisions as may be satisfactory to Landlord without notice to or further assent by Guarantor, and Guarantor hereby waives notice of acceptance of this Guaranty, notice of any obligations guaranteed hereby or of any action taken or omitted in reliance hereon, and notice of any defaults of Tenant under the Lease and waives presentment, demand for payment or performance, protest, notice of dishonor, nonpayment or nonperformance of any such obligations, suit or taking other action by Landlord against, and any other notice to, any party liable thereon and waives suretyship defenses generally, other than full and timely payment and performance of all obligations hereby guaranteed. No invalidity, irregularity or unenforceability of all or any part of such obligations or of any security therefor and no insolvency, bankruptcy, liquidation proceeding or dissolution affecting Tenant or Guarantor shall affect, impair or be a defense to this Guaranty. The liability of the Guarantor hereunder is primary and unconditional and shall not be subject to any offset, defense (other than the defense of full and timely payment and performance) or counterclaim of Guarantor.

 

7.        Enforceability. Guarantor represents that this Guaranty, and the Lease hereby guaranteed, as originally delivered and as modified, amended or supplemented, have been duly authorized and are the legal, valid and binding obligations of Guarantor and Tenant, enforceable in accordance with their respective terms, and Guarantor further agrees that no invalidity of any such Guaranty shall affect or impair Guarantor’s liability under this Guaranty.

 

8.        Recourse. This instrument is intended to be fully effective in accordance with its terms notwithstanding any exculpatory provisions inconsistent herewith contained in the Lease.

 

9.        Joint and Several Liability. If more than one party executes this Guaranty the term Guarantor shall mean all of them, and each of them shall be jointly and severally liable hereunder.

 

10.      Notices. All notices or other communications required or provided to be sent by either party shall be in writing and shall be deemed duly given if sent either (a) by registered or certified mail, postage prepaid, return receipt requested, or (b) by overnight mail service as provided by the U.S. mail or by a nationally recognized private common carrier with provisions for receipt of delivery, or (c) by hand. All notices shall be addressed as follows:

 

 

To Landlord:	c/o Cresset Development LLC [*************] [*************] Attn: Edward G. Nardi
with copies to:	Lerner & Holmes PC [*************] [*************] Attn: Faith Glickman Rossi, Esq.
To Guarantor:	Olink Proteomics AB

All such notices shall be effective when received.

 

Any address or name specified above may be changed by notice given to the addressee by the other party in accordance with provisions above. The inability to deliver notice because of a changed address of which no notice was given as provided above, or because of rejection or other refusal to accept any notice, shall be deemed to be the receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. Any notice to be given by any party hereto may be given by the counsel for such party.

 

10.       Successors and Assigns. This Guaranty shall be binding upon Guarantor and his successors or assigns, and shall inure to the benefit of Landlord, its successors or assigns. Guarantor agrees that this Guaranty shall be assignable by Landlord in connection with an assignment of Landlord’s interest in the Lease. The benefit of this Guaranty shall extend to any successor of Landlord as owner of the Property (or any portion thereof).

 

11.       Applicable Law. This instrument shall be construed in accordance with the laws of the Commonwealth of Massachusetts. Guarantor agrees that any actions hereunder may be brought and remain in the state or federal courts of such Commonwealth and agrees to accept the jurisdiction and venue of such courts in any such action.

 

12.       Effective Date. This Guaranty is effective as of __________, 2018.

 

Executed as a sealed instrument as of the _____ day of ________, 2018.

 

	GUARANTOR:
	OLINK PROTEOMICS AB
	By:
		Name: Title:

 

[ADD APPROPRIATE NOTARY BLOCK FOR EXECUTION]

 

 

Exhibit 10.4

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

Translation of Supplementary agreement No 6 to Lease No 54304-2031 

 

Landlord	Uppsala Science Park KB, 916512-8126
Tenant	Olink Proteomics AB. 559046-8632
Property	Kronåsen 1:1, Bio Med It 1
Property adress	Dag Hammarskjölds väg 52, Uppsala
Lease Agreement	54304-2031 signed 2010-11-11 with annexes and supplementary agreements.

 

Between the Parties the Lease Agreement is valid. The Tenant is expanding and needs more efficient workspace. Because of adaptations and streamlining of the lab/production area and a more flexible workflow, the Parties have this day made the following additions to the Lease Agreement:

 

1) The Lease Agreement will be valid until 2022-12-31. The Tenant shall have a unilateral right to termination on 2020-12-31, and 2021-12-31 with a 9-month notice period each year. For this reason, the Tenant's base rent will increase by 100 SEK/sqm which gives a new base rent of SEK 1 896 906 excluding VAT.

 

2) The Landlord will order and perform adaptation in the premises in accordance with the attached adaptation attachment.

 

3) The Tenant must pay for the adjustment during three years as an annuity payment from 2019-10-01 to 2022-09-30 which means that for each quarterly rent payment a rental supplement of SEK 181 935 excluding VAT shall be paid. A total of SEK 2 183 233 excluding VAT. Should the Tenant exercise his right to early termination, the Tenant will pay the remaining amount, as a one-off payment in connection with the last invoice.

 

4) This supplement applies from 2019-08-01.

 

5) With the exception of the above, the Lease Agreement is subject to unchanged terms.

 

The Parties will sign the Additional Agreement by means of an electronic signature equivalent to a signature. 

 

VASAKRONAN AB (publ)

Olink Proteomics AB

 

Uppsala science park KB, according to a power of attorney	Magnus Eriksson
Karin Boberg
Mårten Thorstensson

 

Summary of Supplementary agreement No 5 to Lease No 54304-2031

 

Similar to “Supplementary agreement No 6 to Lease No 54304-2031” with a Term from 2018-08-07 to 2019-12-31.

 

No new contractual terms in effect after the Term.

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

Summary of Supplementary agreement No 4 to Lease No 54304-2031

 

Similar to “Supplementary agreement No 6 to Lease No 54304-2031” with a Term from 2016-11-01 to 2018-12-31.

 

No new contractual terms in effect after the Term. 

 

Summary of Supplementary agreement No 3 to Lease No 54304-2031

 

Similar to “Supplementary agreement No 6 to Lease No 54304-2031” with a Term from 2016-06-08 to 2017-12-31.

 

No new contractual terms in effect after the Term. 

 

Summary of Supplementary agreement No 2 to Lease No 54304-2031

 

Similar to “Supplementary agreement No 6 to Lease No 54304-2031” with a Term from 2013-03-05 to 2016-12-31.

 

No new contractual terms in effect after the Term. 

 

Summary of Supplementary agreement No 1 to Lease No 54304-2031

 

Similar to “Supplementary agreement No 6 to Lease No 54304-2031” with a Term from 2012-01-12.

 

Allows installation of a refrigerated room that Lessee must design according to standards and maintain at own cost. No other new contractual terms in effect after the Term. 

 

Summary of Lease Agreement 54304-2031 

 

Parties

 

The Lease Agreement (hereinafter referred to as the “Lease”) was entered into on November 11th, 2010 by and between:

 

The Landlord: Uppsala Science Park KB (916512-8126) a limited partnership company with an address at c/o Vasakronan AB (PUBL) Box 30074, 104 25 Stockholm

 

And

 

The Lessee: Olink AB (556663-6998) (Succeeded by Olink Proteomics AB) 

 

1.

Subject Matter of the Lease

 

Tenancy of office and laboratory spaces of ca 902 m2 located on Dag Hammarskölds väg 52, 75183, Uppsala, Sweden, on the property designated as “Kronåsen 1:1”.

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

2.

Condition of the Lease

 

The premises are rented in without inventory in their current condition without adaptations made for Lessee.

 

3.

Term of the Lease and Termination

 

The term of the Lease was until the 31st of December 2013, automatically extended 3 years at the time unless terminated with 9 months’ notice.

 

4.

Rent

 

The Company shall pay an annual rent of 1 653 000 SEK per year with an annual increase based on an index clause (Based on the Statistics Sweden consumer price index) and a discount ladder listed in the appendix. Additional fees per year, subject to the index clause, are to be paid for: (i) heating 76 700 SEK; (ii) air conditioning is 45 000 SEK; (iii) and waste handling 18 000 SEK.

 

The fee per year for property tax (calculated as 23,1 % of the total tax for the property) is 146 344 SEK to be adjusted based on the current tax level.

 

Rent and additional costs are to be invoiced quarterly.

 

5.

Maintenance Costs

 

In addition to the rent and fees, the Company shall bear all operating and ancillary costs and be responsible for the maintenance of the office and laboratory building except for the roof.

 

6.

Other

 

Lessee is responsible for acquiring insurance and any approvals for its activities in on the property.

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

Summary and translation of Supplementary agreement No 4 to Lease No 54304-2501 

 

Landlord	Uppsala Science Park KB, 916512-8126
Tenant	Olink Proteomics AB. 559046-8632
Property	Kronåsen 1:1, Bio Med It 1
Property adress	Dag Hammarskjölds väg 52, Uppsala
Lease Agreement	54304-2501 signed 2016-11-07 with annexes and supplementary agreements.

 

Between the Parties the Lease Agreement is valid. The Tenant is expanding and is in need of a flexible Lease and the Parties have this day made the following additions to the Lease Agreement:

 

1) The Lease Agreement will be valid until 2022-12-31. The Tenant shall have a unilateral right to termination on 2020-12-31, and 2021-12-31 with a 9-month notice period each year. The Tenant's base rent will increase by 100 SEK/sqm which gives a new base rent of SEK 1,162 282 excluding VAT.

 

2) This supplement applies from 2019-08-01.

 

3) With the exception of the above, the Lease Agreement is subject to unchanged terms.

 

Summary and translation of Supplementary agreement No 3 to Lease No 54304-2501

 

Landlord	Uppsala Science Park KB, 916512-8126
Tenant	Olink Proteomics AB. 559046-8632
Property	Kronåsen 1:1, Bio Med It 1
Property adress	Dag Hammarskjölds väg 52, Uppsala
Lease Agreement	54304-2501 signed 2016-11-07 with annexes and supplementary agreements.

 

The Lease Agreement is binding between the Parties. The Tenant rents premises in the property and the Tenant wishes to expand its premises by adding space as shown below. Considering this, the Parties have on this date concluded the following additions to the Lease:

 

1.

Size and scope of the premises

 

The Tenant expands its premises by adding an additional area of 220 sqm on level 5. The Tenant's

 

entire leased area under the Lease is approximately 506 sqm. The entire room is marked green and the additional area has been highlighted in red on drawing appendix 2 which replaces the previous drawing annex to the Lease.

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

2.

The Landlord's actions in the premises

 

The additional area is rented “as is” and without action from the Landlord. Existing surfaces and additional surface areas are today separated through a door that easily opens. 

 

3.

Base rent

 

The new base rent for the premises amounts to SEK 1 058 200 per year. The basic rent is the rent excl. agreed upon rent supplements. The basic rent is indexed according to the rental agreement with the base index given therein. 

 

4.

Unforeseen costs

 

The share of the premises under the heading "Unforeseen costs" on the second page of the Lease form is changed to 11.49 percent. 

 

5.

Rental supplement for heating, cooling, etc.

 

The Tenant must pay as a rental supplement:

 

·

SEK 50 400 per year for heating,

·

SEK 28 280 per year for comfort cooling.

 

6.

Ventilation

 

Ventilation to the premises is provided via the property's common ventilation system. The ventilation system operates weekdays from 08:00 to 18:00. The ventilation is dimensioned for a maximum of 47 persons, which has been determined taking into account the layout of the premises at the time of entry.

 

7.

Index adjustment of rental surcharges for heating, cooling, etc.

 

The rental supplement is indexed according to the Lease and is paid at the same time as the basic rent.

 

8.

Rental supplement for waste management

 

The rental supplement paid by the Tenant for waste management is changed to SEK 10 120 per year. The rental supplement is indexed according to the Lease and is paid at the same time as the basic rent.

 

9.

Property tax

 

The Tenant's share, which must remain unchanged during the rental period, is changed to 11.49 per cent.

 

The rent supplement that the Tenant is paying for property tax increases. 

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

10.

Payment of new basic rent and rental supplement

 

The new base rent and the new agreed rental supplements be due from from 2019-04-01 when the Tenant gets access.

 

11.

Previous agreements, restoration, etc.

 

The Tenant has rented part of the premises since 2016-12-01.

 

The Tenant's restoration obligation under the Lease for the part of the premises that the Tenant originally leased shall be made on the basis of the condition of the premises were in as of the original date of entry, i.e. since 2016-12-01. The Tenant's responsibility for regulatory requirements, etc. in the Lease is valid even if the requirement was already applicable on the original date of access to part of the premises, at the time of signature of this Supplementary Agreement or having later appeared. 

 

12.

Other

 

Apart from that provided for in this Supplementary Agreement, the Lease shall be subject to unchanged terms. 

 

13.

Electronic signing

 

Summary and translation of Supplementary agreement No 2 to Lease No 54304-2501 

 

Landlord	Uppsala Science Park KB, 916512-8126
Tenant	Olink Proteomics AB. 559046-8632
Property	Kronåsen 1:1, Bio Med It 1
Property adress	Dag Hammarskjölds väg 52, Uppsala
Lease Agreement	54304-2501 signed 2016-10-27 with annexes and supplementary agreements.

 

Between the Parties the Lease Agreement is valid. The Tenant wants to make a small adjustment to the premises and the Parties have this day made the following additions to the Lease Agreement:

 

1) The Lessee waives its one-sided right to terminate the Lease on 2018-11-30 with a 6-month notice.

 

2) The Lease is extended to 2019-12-31 with a 9-month notice.

 

3) The Tenants makes the adaptations that are shown in the appendix.

 

4) The Tenant will pay for the adaptations by additions to the rent to a sum of 31 703 SEK.

 

5) With the exception of the above, the Lease Agreement is subject to unchanged terms.

 

The Parties will sign the Additional Agreement by means of an electronic signature equivalent to a signature.

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

Summary and translation of Supplementary agreement No 2 to Lease No 54304-2501

 

Between the Parties the Lease Agreement is valid. The Tenant may have need of more space and the Parties have this day made the following additions to the Lease Agreement:

 

1. the Lessee has a one-sided right to terminate the Lease to move on the 31^st of November 2018 with a 6-month notice.

 

2. With the exception of the above, the Lease Agreement is subject to unchanged terms.

 

Signed on 2016-11-07 

 

Summary of Lease Agreement 54304-2501

 

Parties

 

The Lease Agreement (hereinafter referred to as the “Lease”) was entered into on November 11th, 2010 by and between:

 

The Landlord: Uppsala Science Park KB (916512-8126) a limited partnership company with an address at c/o Vasakronan AB (PUBL) Box 30074, 104 25 Stockholm

 

And

 

The Lessee: Olink Proteomics AB (559046-8632)

 

1.

Subject Matter of the Lease

 

Tenancy of office spaces of ca 286 m2 located on Dag Hammarskölds väg 52, 75183, Uppsala, Sweden, on the property designated as “Kronåsen 1:1”.

 

2.

Condition of the Lease

 

The premises are rented in without inventory in their current condition without adaptations made for Lessee.

 

3.

Term of the Lease and Termination

 

The term of the Lease was until the 2016-12-01 to 2019-1130, automatically extended 3 years at the time unless terminated with 9 months’ notice.

 

4.

Rent

 

The Company shall pay an annual rent of 572 000 SEK per year with an annual increase based on an index clause (Based on the Statistics Sweden consumer price index) and a discount ladder listed in the appendix. Additional fees per year, subject to the index clause, are to be paid for: (i) heating 22 880 SEK; (ii) air conditioning is 12 870 SEK; (iii) and waste handling 5 720 SEK.

 

The fee per year for property tax (calculated as 7 % of the total tax for the property) is 37 380 SEK to be adjusted based on the current tax level.

 

Rent and additional costs are to be invoiced quarterly.

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

5.

Maintenance Costs

 

In addition to the rent and fees, the Company shall bear all operating and ancillary costs and be responsible for the maintenance of the office and laboratory building with the exception of the roof.

 

6.

Other

 

Lessee is responsible for acquiring insurance and any approvals for its activities in on the property. 

 

SUMMARY

 

A notice that Olink AB changes its legal entity to Olink Proteomics AB and succeeds the former. 

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

Summary of Lease Agreement 54304-2005

 

Parties

 

The Lease Agreement (hereinafter referred to as the “Lease”) was entered into on November 11th, 2010 by and between:

 

The Landlord: Uppsala Science Park KB (916512-8126) a limited partnership company with an address at c/o Vasakronan AB (PUBL) Box 30074, 104 25 Stockholm

 

And

 

The Lessee: Olink AB 

 

1.

Subject Matter of the Lease

 

Tenancy of storage space of ca 25 m2 located on Dag Hammarskölds väg 52, 75183, Uppsala, Sweden, on the property designated as “Kronåsen 1:1”.

 

2.

Condition of the Lease

 

The premises are rented in without inventory in their current condition without adaptations made for Lessee.

 

3.

Term of the Lease and Termination

 

The term of the Lease was until the 2011-01-01 unless terminated with 3 months’ notice.

 

4.

Rent

 

The Company shall pay an annual rent of 18 750 SEK per year with an annual increase based on an 2 % index clause starting 2012-01-01.

 

Rent and additional costs are to be invoiced monthly.

 

5.

Maintenance Costs

 

In addition to the rent and fees, the Company shall bear all operating and ancillary costs and be responsible for the maintenance of the office and laboratory building with the exception of the roof.

 

6.

Other

 

Lessee is responsible for acquiring insurance and any approvals for its activities in on the property.

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

Summary and translation of Supplementary agreement No 2 to Lease 54304-0203

 

Landlord	Uppsala Science Park KB, 916512-8126
Tenant	Olink Proteomics AB. 559046-8632
Property	Kronåsen 1:1, Bio Med It 1
Property adress	Dag Hammarskjölds väg 52, Uppsala
Lease Agreement	54304-2501 signed 2015-12-22 with annexes and supplementary agreements.

 

Between the Parties the Lease Agreement is valid. The Tenant is expanding and needs more efficient spaces. Due to adaptations made and increased efficiency of lab- and production space and a more flexible term the Parties have this day made the following additions to the Lease Agreement:

 

1) The Lease applies until 2022-12-31. The Tenant shall have a unilateral right to termination for moving 2020-12-31 and 2021-12-31, with 9 months' notice, which means on the 30^th of March each year. As a result of this the Tenant's base rent shall increase by 100 SEK/sqm, which gives a new base rent of 434,600 SEK excluding VAT. 

 

2) The Landlord will perform adaptations of the premises in accordance with the attached adaptation attachment.

 

3) The Tenant must pay for the adjustments for three years as an annuity payment from 2019-10-01 - 2022- 09-30 which means that for each quarterly rent it shall pay a rental supplement of SEK 54,581 excluding VAT. A total of SEK 2,183,233 excluding VAT. Should the Tenant exercise his right to early -31, the Tenant must: pay the remaining amounts at any time as a one-off payment in connection with the last notification.

 

4) This supplement applies from 2019-08-01.

 

5) With the exception of the above, the Lease Agreement is subject to unchanged terms.

 

6)

 

The Parties sign the Additional Agreement by means of an electronic signature corresponding to a signature. 

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

Summary and translation of Supplementary agreement No 1 to Lease 54304-0203 

 

Landlord	Uppsala Science Park KB, 916512-8126
Tenant	Olink Proteomics AB. 559046-8632
Property	Kronåsen 1:1, Bio Med It 1
Property adress	Dag Hammarskjölds väg 52, Uppsala
Lease Agreement	54304-2501 signed 2015-12-22 with annexes and supplementary agreements.

 

Between the Parties the Lease Agreement is valid. The Tenant want to harmonize the Terms of its rental agreements and the Parties have this day made the following additions to the Lease Agreement:

 

1) The Term of the Lease is extended to 2019-12-31 with a 9-month notice.

 

2) With the exception of the above, the Lease Agreement is subject to unchanged terms.

 

2018-12-05 

 

SUMMARY

 

A notice that Olink AB changes it entity to Olink Proteomics AB and succeeds the former. 

 

Summary of Lease Agreement 54304-0203

 

Parties

 

The Lease Agreement (hereinafter referred to as the “Lease”) was entered into on November 11th, 2010 by and between:

 

The Landlord: Uppsala Science Park KB (916512-8126) a limited partnership company with an address at c/o Vasakronan AB (PUBL) Box 30074, 104 25 Stockholm

 

And

 

The Lessee: Olink AB 

 

1.

Subject Matter of the Lease

 

Tenancy of office and lab space of ca 200 m2 located on Dag Hammarskölds väg 52, 75183, Uppsala, Sweden, on the property designated as “Kronåsen 1:1”.

 

2.

Condition of the Lease

 

The premises are rented in without inventory in their current condition without adaptations made for Lessee.

 

3.

Term of the Lease and Termination

 

The term of the Lease was from 2015-12-01 until the 2018-11-30 unless terminated with 9 months’ notice and extended 3 years otherwise.

 

4.

Rent

 

The Company shall pay an annual rent of 390 000 SEK per year per year with an annual increase based on an index clause (Based on the Statistics Sweden consumer price index) and a discount ladder listed in the appendix. Additional fees per year, subject to the index clause, are to be paid for: (i) heating 16 000 SEK; (ii) air conditioning is 9 000 SEK; (iii) and waste handling 4 000 SEK.

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

The fee per year for property tax (calculated as 5,12 % of the total tax for the property) is 8 921 SEK to be adjusted based on the current tax level.

 

Maintenance Costs

 

In addition to the rent and fees, the Company shall bear all operating and ancillary costs and be responsible for the maintenance of the office and laboratory building with the exception of the roof.

 

5.

Other

 

Lessee is responsible for acquiring insurance and any approvals for its activities in on the property.

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

Summary and translation of Supplementary agreement No 1 to Lease 54304-0501 

 

Landlord	Uppsala Science Park KB, 916512-8126
Tenant	Olink Proteomics AB. 559046-8632
Property	Kronåsen 1:1, Bio Med It 1
Property adress	Dag Hammarskjölds väg 52, Uppsala

 

Lease Agreement 54304-0501 signed 2018-08-20 with annexes and supplementary agreements.

 

Between the Parties the Lease Agreement is valid. The Tenant wants to adapt the premises and the Parties have this day made the following additions to the Lease Agreement:

 

1) The Landlord will adapt premises in accordance with appendices 1 and 2.

 

2) Due to this the base rent will change to 1 492 00 SEK excl. VAT.

 

3) Clause 5.4 of the Lease will cease to be applicable which means that the agreement can be terminated 2021-08-31 at the earliest.

 

4) This amendment is valid from 2018-11-01

 

5) With the exception of the above, the Lease Agreement is subject to unchanged terms. 

 

2018-10-12 

 

Summary of Lease Agreement 54304-0501

 

Parties

 

The Lease Agreement (hereinafter referred to as the “Lease”) was entered into on November 11th, 2010 by and between:

 

The Landlord: Uppsala Science Park KB (916512-8126) a limited partnership company with an address at c/o Vasakronan AB (PUBL) Box 30074, 104 25 Stockholm

 

And

 

The Lessee: Olink Proteomics AB (559046-8632) 

 

1.

Subject Matter of the Lease

 

Tenancy of office and lab space of ca 649 m2 located on Dag Hammarskölds väg 52, 75183, Uppsala, Sweden, on the property designated as “Kronåsen 1:1”.

 

2.

Condition of the Lease

 

The premises are rented in without inventory in their current condition without adaptations made for Lessee.

 

 

TRANSLATION FROM SWEDISH ORIGINAL 21 January 2021

 

3.

Term of the Lease and Termination

 

The term of the Lease was from 2018-09-01 until the 2021-08-31 unless terminated with 9 months’ notice and extended 3 years otherwise.

 

4.

Rent

 

The Company shall pay an annual rent of 1 298 000 SEK per year per year with an annual increase based on an index clause (Based on the Statistics Sweden consumer price index) and a discount ladder listed in the appendix. Additional fees per year, subject to the index clause, are to be paid for: (i) heating 58 400 SEK; (ii) air conditioning is 32 450 SEK; (iii) and waste handling 13 000 SEK.

 

The fee per year for property tax (calculated as 15,4 % of the total tax for the property) is 27 076 SEK to be adjusted based on the current tax level.

 

Maintenance Costs

 

In addition to the rent and fees, the Company shall bear all operating and ancillary costs and be responsible for the maintenance of the office and laboratory building with the exception of the roof.

 

5.

Other

 

Lessee is responsible for acquiring insurance and any approvals for its activities in on the property.

 

 

Exhibit 21.1

 

SUBSIDIARIES OF KNILO HOLDCO AB

 

Name		Jurisdiction of Formation / Incorporation
Knilo BidCo AB		Sweden
Olink Proteomics Holding AB		Sweden
Olink Proteomics AB		Sweden
Agrisera Aktiebolag		Sweden
Olink KK		Japan
Olink Biotech (Shanghai) Co., Ltd		China
Olink Proteomics Inc.		Delaware
Olink Proteomics Limited		England & Wales
Olink Proteomics B.V.		The Netherlands
Olink Proteomics GmbH		Germany

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the use in this Registration Statement on Form F-1 of Olink Holding AB (publ) of our report dated February 26, 2021 relating to the financial statements of Knilo HoldCo AB and our report dated December 11, 2020 relating to the financial statements of Olink Proteomics Holding AB, which appear in this Registration Statement.  We also consent to the references to us under the heading “Experts” in such Registration Statement.

 

/s/ ÖhrlingsPricewaterhouseCoopers AB

Stockholm, Sweden

March 3, 2021