Exhibit 10.13
ASSET TRANSFER AGREEMENT
BETWEEN
LIGHT SCIENCES CORPORATION
AND
LIGHT SCIENCES ONCOLOGY, INC.
DATED OCTOBER 5, 2005
LIST OF SCHEDULES
Schedule Description
- -------- -----------
A Transferred Assets
B Assigned Contracts
C Required Consents
D Certain Transferring Employees
E Transferring Employees Executing Releases
LIST OF EXHIBITS
Exhibit Description
- ------- -----------
A-1 Bill of Sale for Drug Product
A-2 Bill of Sale for Equipment
B Sublease Agreement
C Exclusive License Agreement
D Sublicense Agreement
E Clinical Supply Agreement
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ASSET TRANSFER AGREEMENT
This Agreement, dated as ofOctober 5, 2005, is made and entered into by and
between: Light Sciences Corporation, a Washington corporation ("LSC"), and Light
Sciences Oncology, Inc., a Washington corporation ("LSO").
RECITALS
A. LSC has developed a light activated treatment system known as Lit(x).
B. LSO, a wholly owned subsidiary of LSC, has been formed to further
research, develop and commercialize Lit(x) in the field specified in the
Exclusive License Agreement referenced below ("FIELD").
C. LSC wishes to transfer to LSO, and LSO wishes to obtain from LSC,
certain assets, contracts, regulatory filings and licenses necessary or useful
for LSO to further develop and commercialize Lit(x) in the Field, subject to the
terms and conditions of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the promises and agreements set forth
herein, the parties agree as follows:
SECTION 1. TRANSFER OF ASSETS AND RELATED TRANSACTIONS
1.1 TRANSFER OF ASSETS
LSC will sell, assign, transfer and convey to LSO on the Closing Date (as
defined in Section 2) all right, title and interest of LSC in and to all
equipment, devices, drug product, packaging, books, certificates, documents,
files, records, results, protocols and other tangible assets necessary or useful
for the research, development or commercialization of Lit(x) in the Field,
including, without limitation, the assets described in attached Schedule A
("TRANSFERRED ASSETS"). LSC will sell, assign, transfer and convey the
Transferred Assets to LSO pursuant to the Bills of Sale attached as Exhibit A-1
and Exhibit A-2 (each, a "BILL OF SALE"). To the extent that the Transferred
Assets include works of authorship subject to copyright protection, LSC will
sell, assign, transfer and convey to LSO on the Closing Date all copyrights in
and to such works, including, without limitation, all causes of action and
rights to sue and recover damages for past infringement. Notwithstanding this
Section 1.1, the Transferred Assets do not include the equipment identified as
"Designated Shared Equipment" in the Sublease Agreement (as defined in Section
1.3).
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1.2 ASSIGNMENT AND ASSUMPTION OF ASSIGNED CONTRACTS
(a) LSC will assign to LSO on the Closing Date all right, title and
interest of LSC in and under the contracts listed in attached Schedule B
("ASSIGNED Contracts"), including, without limitation, all claims of LSC under
any Assigned Contract arising before the Closing Date and all data, reports,
records or other documents furnished to LSC under the Assigned Contracts before
the Closing Date.
(b) Upon the Closing (as defined in Section 2), LSO will assume the
liabilities and obligations of LSC arising under the Assigned Contracts after
the Closing Date ("ASSUMED OBLIGATIONS"). LSO will fully and timely perform all
of the Assumed Obligations in accordance with the applicable Assigned Contracts.
Notwithstanding anything to the contrary in this Agreement, LSO will succeed to
and assume, and LSO will be responsible for, only those liabilities or
obligations arising out of any claim resulting from any act or omission of LSO
with respect to the Assigned Contracts occurring after the Closing Date.
(c) Before the Closing Date, LSC will obtain consent in the form provided
by LSO for the assignment of the Assigned Contracts listed in attached Schedule
C ("REQUIRED CONSENTS").
(d) LSC will use its best efforts to obtain, within thirty (30) days after
the Closing Date, consent in the form provided by LSO for the assignment of any
Assigned Contract not listed in Schedule C that cannot be assigned to LSO
without the consent of the other contracting party. Notwithstanding anything in
this Agreement to the contrary, this Agreement will not constitute or require
LSC to assign any Assigned Contract or LSO to assume any Assumed Obligation with
respect thereto if the assignment of the Assigned Contract without the consent
of a third party would constitute a breach thereof or give the third party the
right to terminate the Assigned Contract. Until such consent is obtained, LSC
will use its best efforts to provide LSO the benefits of any such Assigned
Contract, including, without limitation, enforcing the Assigned Contract for the
benefit of, and as directed by, LSO at LSO's expense.
1.3 SUBLEASE AND SPACE SHARING
Commencing on the Closing Date, LSC will sublease to and share with LSO
certain office and laboratory space pursuant to the Sublease Agreement attached
as Exhibit B ("SUBLEASE AGREEMENT").
1.4 LICENSE AGREEMENT
On the Closing Date, LSC will exclusively license to LSO certain
intellectual property and intellectual property rights associated with Lit(x)
for use in the Field
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pursuant to the Exclusive License Agreement attached as Exhibit C ("EXCLUSIVE
LICENSE AGREEMENT").
1.5 SUBLICENSE AGREEMENT
On the Closing Date, LSC will sublicense to LSO certain intellectual
property and intellectual property rights associated with Lit(x) for use in the
Field pursuant to the Sublicense Agreement attached as Exhibit D ("SUBLICENSE
AGREEMENT").
1.6 TRANSFER OF REGULATORY FILINGS
(a) LSC will transfer and assign to LSO on the Closing Date all right,
title and interest of LSC in and to any and all INDs, drug master files and
other regulatory filings or registrations and all supplements and amendments
thereto that pertain to the use of Lit(x) and its components in the Field.
Promptly after the Closing Date, LSC will submit all information and documents
to the applicable regulatory authorities necessary to effect such transfer.
(b) Following the Closing Date, LSC will make available to LSO and permit
LSO to cross reference any and all regulatory filings or registrations and all
supplements and amendments thereto of LSC not assigned to LSO under this
Agreement that are useful or necessary for the conduct of LSO's business. If LSC
has the right to cross reference any regulatory filings or registrations of a
third party that are useful or necessary for the conduct of LSO's business, then
LSC will use reasonable efforts to obtain permission for LSO to cross reference
such filings or registrations. All such information will be deemed the
Confidential Information of LSC under this Agreement.
1.7 RELATED AGREEMENTS
The Bills of Sale, Sublease Agreement, Exclusive License Agreement and
Sublicense Agreement are hereinafter referred to collectively as the "RELATED
AGREEMENTS" and are incorporated into this Agreement by this reference.
1.8 EXCLUDED LIABILITIES
LSO does not assume and will not become liable for, and LSC will pay and be
responsible for, any and all claims, debts, liabilities, taxes, penalties and
obligations arising from or relating to (a) ownership, use or other dealings
with the Transferred Assets before the Closing Date, and (b) the Assigned
Contracts before the Closing Date. Without limiting the foregoing, LSO will not
succeed to or assume, and LSO will not be responsible for, any liability or
obligation arising out of any claim resulting from any act or omission of LSC
with respect to the Assigned Contracts on or before
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the Closing Date, including, without limitation, any breach by LSC of any
Assigned Contract or any failure by LSC to discharge or perform any liability or
obligation arising on or before the Closing Date under any such Assigned
Contract.
SECTION 2. CLOSING
The consummation of the transactions contemplated by this Agreement
("CLOSING") will take place at the offices of Perkins Coie LLP, 1201 Third
Avenue, Seattle, WA 98101, on the day prior to the closing of the Series A
Convertible Preferred Stock financing of LSO ("CLOSING DATE").
SECTION 3. REPRESENTATIONS AND WARRANTIES OF LSC
In addition to any representations and warranties contained in the Related
Agreements, LSC represents and warrants to LSO as of the date of this Agreement
and as of the Closing Date:
3.1 ORGANIZATION
LSC is a Washington corporation duly incorporated and validly existing
under the laws of the state of Washington. LSC has the power and authority to
own, operate and carry on its business as it is now being conducted.
3.2 AUTHORIZATION
LSC has all necessary power and authority to execute and deliver this
Agreement and the Related Agreements, to perform its obligations under this
Agreement and the Related Agreements and to consummate the transactions
contemplated by this Agreement and the Related Agreements. The execution and
delivery by LSC of this Agreement and the Related Agreements, the performance by
LSC of its obligations under this Agreement and the Related Agreements and the
consummation by LSC of the transactions contemplated by this Agreement and the
Related Agreements have been duly authorized by all necessary action. This
Agreement constitutes a valid and binding obligation of LSC and is enforceable
in accordance with its terms, and the Related Agreements, when executed and
delivered by LSC, will constitute valid and binding obligations of LSC, subject
to laws of general application relating to bankruptcy, insolvency,
reorganization, moratorium, relief of debtors, other laws relating to or
affecting enforcement of creditors' rights and rules of law governing specific
performance, injunctive relief or other equitable remedies.
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3.3 OTHER AGREEMENTS
The execution, delivery and performance of this Agreement and the Related
Agreements will not cause LSC to be in violation of or in default under any
applicable laws, articles of incorporation or bylaws of LSC, or any agreement or
instrument to which LSC is a party or by which its assets may be bound.
3.4 TRANSFERRED ASSETS
LSC has good, valid and marketable title to all of the Transferred Assets,
free and clear of any and all claims, judgments, licenses, liens, restrictions,
security interests and other encumbrances.
3.5 ASSIGNED CONTRACTS
The Assigned Contracts are valid, binding and enforceable in accordance
with their terms against LSC and each other party thereto and are in full force
and effect, LSC has performed all obligations imposed on it thereunder, and
neither LSC, nor to the knowledge of LSC, any other party thereto, is in breach
or default thereunder, nor is there any event that with notice or lapse of time,
or both, would constitute a default by LSC or, to the knowledge of LSC, any
other party thereunder. LSC has not received any notice of any breach,
termination or cancellation of any Assigned Contract and, to its knowledge, no
party thereto intends to terminate or cancel any Assigned Contract. True and
complete copies of each Assigned Contract have been delivered to LSO.
3.6 LITIGATION
There are no actions, claims, investigations or proceedings pending or, to
the knowledge of LSC, threatened against LSC affecting any of the Transferred
Assets, Assigned Contracts, the Related Agreements, the regulatory filings or
registrations transferred under Section 1.6 or the premises leased under the
Sublease Agreement before any court, arbitrator or governmental authority and
there is no valid basis for any such action, claim, investigation or proceeding.
There are no outstanding or unsatisfied judgments, orders, decrees or
stipulations to which LSC is a party or, to the knowledge of LSC, affecting any
of the Transferred Assets or the Assigned Contracts.
3.7 TAXES
All income, gross receipts, personal property, use, transfer, payroll and
other taxes and related obligations of LSC with respect to the operation of its
business and ownership of the Transferred Assets have been timely paid or are
being contested in good faith.
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3.8 CONSENTS AND APPROVALS
No consent, approval or authorization of, or declaration, filing or
registration with, any governmental body is required for the execution, delivery
and performance by LSC of this Agreement and the Related Agreements and for the
consummation by LSC of the transactions contemplated hereby and thereby. Except
for the consents described in Section 1.2, no consent, approval or authorization
of any third party is required for the execution, delivery and performance by
LSC of this Agreement and the Related Agreements and the consummation by LSC of
the transactions contemplated hereby and thereby.
3.9 COMPLIANCE WITH LAWS
LSC is and has been in compliance with all federal, state, local and
foreign laws, rules, regulations, ordinances, decrees and orders applicable to
the operation or conduct of its business or ownership, use or other disposition
of the Transferred Assets.
3.10 EXCLUSIVITY
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 3 AND THE
RELATED AGREEMENTS ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES OF
LSC. LSC DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR USE.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF LSO
In addition to any representations and warranties contained in the Related
Agreements, LSO represents and warrants to LSC as of the date of this Agreement
and as of the Closing Date:
4.1 ORGANIZATION
LSO is a corporation duly incorporated and validly existing under the laws
of the state of Washington.
4.2 AUTHORIZATION
LSO has all necessary power and authority to execute and deliver this
Agreement and the Related Agreements, to perform its obligations under this
Agreement and the Related Agreements and to consummate the transactions
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contemplated by this Agreement and the Related Agreements. The execution and
delivery by LSO of this Agreement and the Related Agreements, the performance by
LSO of its obligations under this Agreement and the Related Agreements and the
consummation by LSO of the transactions contemplated by this Agreement and the
Related Agreements have been duly authorized by all necessary corporate action.
This Agreement constitutes a valid and binding obligation of LSO, enforceable in
accordance with its terms, and the Related Agreements, when executed and
delivered by LSO, will constitute valid and binding obligations of LSO,
enforceable in accordance with their respective terms, subject to laws of
general application relating to bankruptcy, insolvency, reorganization,
moratorium, relief of debtors, other laws relating to or affecting enforcement
of creditors' rights and rules of law governing specific performance, injunctive
relief or other equitable remedies.
4.3 OTHER AGREEMENTS
The execution, delivery and performance of this Agreement and the Related
Agreements will not cause LSO to be in violation of or in default under any
applicable laws, the articles of incorporation or bylaws of LSO, or any
agreement or instrument to which LSO is a party or by which its assets may be
bound.
4.4 EXCLUSIVITY
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 4 AND THE
RELATED AGREEMENTS ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES OF
LSO. LSO DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR USE.
SECTION 5. CLOSING CONDITIONS
5.1 CONDUCT OF BUSINESS PRIOR TO CLOSING
Except for actions taken with the consent of LSO, from the date of this
Agreement until the Closing Date, LSC will (a) give notice to LSO promptly upon
becoming aware of any inaccuracy of any of LSC's representations or warranties
made herein or in a Related Agreement; and (b) conduct its business in the
ordinary course and in a manner consistent with past practice.
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5.2 CONDITIONS TO LSO'S OBLIGATION TO CLOSE
The obligation of LSO to close the transactions contemplated by this
Agreement will be subject to the satisfaction at or before the Closing Date of
each of the following conditions, any one or more of which may be waived by LSO:
(a) the representations and warranties of LSC made in this Agreement
and in any Related Agreement will be true, complete and correct in all material
respects on and as of the Closing Date;
(b) LSC will have executed and delivered to LSO all of the Related
Agreements;
(c) LSC will have obtained and delivered the Required Consents to LSO;
(d) the individuals set forth on Schedule D will have agreed to accept
offers of employment with LSO;
(e) LSC will not be the subject of a bankruptcy case or other
insolvency proceeding; and
(f) no action, suit, proceeding or investigation by or before any
court or governmental authority will have been instituted (i) to restrain,
prohibit or invalidate the transactions contemplated by this Agreement or the
Related Agreements; or (ii) that seeks damages by reason of completion of any
such transaction.
5.3 CONDITIONS TO LSC'S OBLIGATION TO CLOSE
The obligation of LSC to close the transactions contemplated by this
Agreement will be subject to the satisfaction at or before the Closing Date of
each of the following conditions, any one or more of which may be waived by LSC:
(a) the representations and warranties of LSO made in this Agreement
and in any Related Agreement will be true, complete and correct in all material
respects on and as of the Closing Date;
(b) LSO will have executed and delivered to LSC all of the Related
Agreements and the Clinical Supply Agreement attached as Exhibit E; and
(c) no action, suit, proceeding or investigation by or before any
court or governmental authority will have been instituted (i) to restrain,
prohibit or invalidate the transactions contemplated by this Agreement or the
Related
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Agreements; or (ii) that seeks damages by reason of completion of any such
transaction.
5.4 CLOSING DELIVERIES OF LSC
LSC will deliver the following to LSO at the Closing, and the delivery of
each will be a condition to LSO's obligations hereunder:
(a) the originals (or if not in existence, copies) of the Assigned
Contracts and any amendments thereto and all data, reports, records or other
documents furnished to LSC under the Assigned Contracts before the Closing Date;
(b) the Transferred Assets (including, without limitation, original
copies of all clinical data, protocols and records associated with Lit(x));
(c) a certificate of LSC signed by the President of LSC certifying as
to the accuracy, to such officer's knowledge in his capacity as an officer of
LSC, of the representations and warranties of LSC contained in this Agreement
and in Article 3 of the Series A Preferred Stock Purchase Agreement among LSO,
LSC and the investors named therein ("PURCHASE AGREEMENT"); and
(d) such other documents, certificates, consents, waivers and
supporting papers as LSO or its counsel may deem necessary or advisable to
consummate the transactions contemplated by this Agreement.
5.5 CLOSING DELIVERIES OF LSO
LSO will deliver the following to LSC at the Closing: a certificate of LSO
signed by the President and Secretary of LSO certifying as to the accuracy, to
each such officer's knowledge in his capacity as an officer of LSO, of the
representations and warranties of LSO contained in this Agreement and in Article
3 of the Purchase Agreement.
SECTION 6. COVENANTS
6.1 RELEASES
LSO and LSC will each use commercially reasonable efforts to obtain a
release of employment related claims in a form reasonably acceptable to LSC from
the individuals set forth on Schedule E before the Closing Date. The foregoing
will not constitute a condition to either party's obligations hereunder.
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6.2 CONFIDENTIALITY
Upon and following the Closing Date, LSC will not use and will not
disclose, disseminate, display, publish or distribute to any third party any
information or data relating to or included in the Transferred Assets, Assigned
Contracts or regulatory filings transferred under Section 1.6 or the terms of
this Agreement, the Related Agreements or the Assigned Contracts without the
prior written consent of LSO. However, the foregoing will not restrict the use
or disclosure of any information that: (a) is a matter of public knowledge as of
the date of this Closing Date; (b) becomes a matter of public knowledge, without
fault on the part of LSC, subsequent to the Closing Date; or (c) is disclosed to
LSC by a third party lawfully having possession of such information after the
Closing Date without an obligation of confidentiality to LSO or a prior
obligation of confidentiality to LSC. Further, notwithstanding the foregoing
restrictions, LSC may disclose or produce any information protected under this
Section 6.2 if and to the extent required by any discovery request, subpoena,
court order, governmental action, or to the extent LSC believes in good faith on
the basis of an opinion of counsel that such disclosure is required by
applicable law or regulation; provided, that LSC gives LSO reasonable advance
notice of the same (e.g., so as to afford LSO a reasonable opportunity to
appear, object and obtain a protective order or other appropriate relief
regarding such disclosure).
6.3 ENFORCEMENT OF OTHER AGREEMENTS
Upon request, LSC will, as directed by LSO, enforce for the benefit of LSO
all non-disclosure, confidentiality, invention assignment, consulting, license
and other agreements between LSC and any third party that are not included in
the Assigned Contracts and that protect or cover any Confidential Information of
LSO or otherwise pertain to the Transferred Assets or business of LSO. LSO will
reimburse all actual and reasonable expenses incurred by LSC to enforce such
agreements as directed by LSO.
6.4 FURTHER ASSURANCES
After the Closing Date, LSC will from time to time at LSO's request execute
and deliver, or cause to be executed and delivered, such further instruments of
conveyance, assignment, transfer or other documents, and perform such further
acts and obtain such further consents, approvals and authorizations, as LSO may
reasonably require in order to consummate the transactions described in this
Agreement, fully effect or evidence the conveyance and transfer to LSO of, or
perfect LSO's right, title and interest in, any of the Assigned Contracts,
Transferred Assets or regulatory filings transferred under Section 1.6, or to
obtain possession or control of any of the Transferred Assets.
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SECTION 7. TERMINATION
This Agreement may be terminated before the Closing:
(a) by mutual written agreement of LSO and LSC;
(b) by LSO, by giving written notice to LSC at any time, if any of the
conditions set forth in Section 5.2 or 5.4 is not satisfied at the time at which
the Closing would otherwise occur, or if the satisfaction of any such condition
is or becomes impossible;
(c) by LSC, by giving written notice to LSO at any time, if any of the
conditions set forth in Section 5.3 is not satisfied at the time at which the
Closing would otherwise occur, or if the satisfaction of any such condition is
or becomes impossible; and
(d) by LSO, by giving written notice to LSC, if the closing of the
Series A Convertible Preferred Stock financing of LSO does not close on or
before October 17, 2005.
SECTION 8. INDEMNIFICATION
8.1 INDEMNIFICATION BY LSC
LSC will defend and indemnify and hold harmless LSO against any and all
liabilities, losses, damages, claims, costs, expenses, interest, awards,
judgments and penalties (including, without limitation, reasonable attorneys'
fees and expenses) actually suffered or incurred (a "LOSS") by LSO arising out
of or resulting from:
(a) any inaccuracy in any representation or warranty made by LSC in
Section 3 of this Agreement or in a Related Agreement; and
(b) any claims asserted against LSO for acts or omissions of LSC
occurring before the Closing, including, without limitation, any claims
arising under any Assigned Contract, arising from or relating to the
ownership, use or other disposition of the Transferred Assets, or arising
from any liabilities described in Section 1.8.
8.2 INDEMNIFICATION BY LSO
LSO will defend and indemnify LSC against any and all Losses arising out of
or in connection with:
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(a) any inaccuracy in any representation or warranty made by LSO in
Section 4 of this Agreement; and
(b) the failure of LSO to perform any Assumed Obligation.
8.3 INDEMNIFICATION PROCEDURE
In order to receive indemnification of any third party claim indemnified
under Section 8.1 or 8.2, as applicable, LSC and LSO (each, an "INDEMNIFIED
PARTY") must:
(a) give the other party ("INDEMNIFYING PARTY") prompt written notice
of the claim from which the Indemnified Party seeks indemnification;
(b) cooperate with the Indemnifying Party, at the Indemnifying Party's
expense, in connection with the defense and settlement of the claim; and
(c) not settle or compromise the claim without the prior written
consent of the Indemnifying Party, which consent will not be unreasonably
withheld.
SECTION 9. MISCELLANEOUS
9.1 PRESS RELEASES
Neither party will release any press release regarding the transactions
contemplated by this Agreement without the other party's prior written consent,
except as may be required by applicable law or regulation.
9.2 RELATIONSHIP OF THE PARTIES
Neither this Agreement nor any of the Related Agreements will be
interpreted or construed to create or evidence any partnership, agency or
similar relationship between the parties or as imposing any partnership, agency
or similar obligation or liability on any party.
9.3 NOTICES
All notices and other communications hereunder will be in writing and will
be deemed given if delivered personally, by fax (receipt confirmed), or by
registered or certified mail, return receipt requested and postage prepaid or
sent by express courier service (receipt verified), to the parties at the
following addresses (or at such other addresses for a party as will be specified
by the like notice; provided, that notices of a change of address will be
effective only upon receipt thereof):
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To LSC: Light Sciences Corporation
34931 SE Douglas Street
Suite 200
Snoqualmie, WA 98065
Attn.: ____________________
Fax: ______________________
To LSO: Light Sciences Oncology, Inc.
34931 SE Douglas Street
Suite 200
Snoqualmie, WA 98065
Attn.: ____________________
Fax: ______________________
All such notices and communications will be deemed effective when received.
9.4 ASSIGNMENT
Neither LSC nor LSO will assign this Agreement any of its rights or
obligations under this Agreement to any third party before the Closing Date
without the other party's prior written consent. Following the Closing Date,
this Agreement will be binding upon and inure to the benefit of the parties and
their respective successors and assigns, except that each Related Agreement will
be assignable solely to the extent set forth in the Related Agreement.
9.5 SPECIFIC PERFORMANCE
Each party acknowledges that the other party would be damaged irreparably
in the event any of the provisions of this Agreement are not performed in
accordance with their specific terms or otherwise are breached. Accordingly,
each party will be entitled to specific performance of the terms and provisions
of this Agreement and the Related Agreements.
9.6 NONWAIVER
The failure of a party to insist on or enforce strict performance of any
provision of this Agreement or to exercise any right or remedy under this
Agreement or any Related Agreement to which it is a party will not be construed
as a waiver or relinquishment to any extent of the right to assert or rely upon
any such provision, right or remedy in that or any other instance; rather, the
same will be and remain in full force and effect.
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9.7 SEVERABILITY
If any provision of this Agreement or any Related Agreement or the
application thereof to any person or circumstance will be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement or Related
Agreement, as the case may be, and the application thereof will not be affected
and will be enforceable to the fullest extent permitted by law.
9.8 GOVERNING LAW; JURISDICTION AND VENUE
This Agreement, each Related Agreement and the performance under them will
be interpreted, construed and enforced in all respects in accordance with the
laws of the state of Washington, without reference to its principles relating to
conflicts of law. Each party irrevocably consents to the jurisdiction and venue
of the state and federal courts in King County, Washington, U.S.A., for any
action, claim, proceeding or suit arising out of or in connection with this
Agreement or any Related Agreement. LSC will not commence or prosecute any suit
or claim to enforce this Agreement or any Related Agreement, or otherwise
arising under or by reason of this Agreement or any Related Agreement, other
than in such courts.
9.9 JURY WAIVER
Each party hereby waives any right to trial by jury of any claim arising
out of this Agreement and any Related Agreement, whether now or hereafter
arising and whether sounding in contract, tort or otherwise, and hereby consents
and agrees that any such claim may, at a party's election, be decided by trial
without a jury and that either party may file an original counterpart or copy of
this Section 9.9 with any court as written evidence of the waiver and agreement
contained herein.
9.10 AMENDMENT
No amendment, modification or waiver of any of the provisions of this
Agreement or any Related Agreement will be valid unless set forth in a written
instrument signed by the party to be bound thereby.
9.11 NO THIRD PARTY RIGHTS
There are no third party beneficiaries under this Agreement or any Related
Agreement. Neither this Agreement nor any Related Agreement will confer any
right or remedy on, or be enforceable by, any third party. No action may be
commenced or prosecuted against either party by any third party claiming as a
third party beneficiary of this Agreement or any Related Agreement or any of the
transactions contemplated hereunder.
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9.12 ATTORNEYS' FEES
In the event of any litigation, claim, proceeding or arbitration with
respect to this Agreement or the Related Agreements, the prevailing party will
be paid its reasonable legal fees and expenses by the opposing party.
9.13 ENTIRE AGREEMENT
This Agreement and the Related Agreements and the Exhibits and Schedules
referenced herein and therein set forth the entire agreement, and supersede any
and all prior agreements, between the parties with regard to the subject matter
hereof. This Agreement and the Related Agreements are intended to be correlative
and complementary. However, in the event of a conflict between any provision of
this Agreement and any provision of any Related Agreement, the provision of the
applicable Related Agreement will control with respect to the subject matter of
the Related Agreement.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first set forth above.
LSC: LSO:
Light Sciences Corporation Light Sciences Oncology, Inc.
By /s/ Albert Luderer By /s/ Jay Winship
---------------------------------- -------------------------------------
Name Albert Luderer Name Jay Winship
Title CEO Title COO
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